V. Other Possible Legal Regimes That Can Be Legislatively Created

While the running of a war is a power that is squarely placed by the Constitution with the Executive, Congress alone can declare a war. For that matter Congress can probably “un-declare” one (although to our knowledge that has never been tried). In any event, Congress also always has the power of the purse strings, and they can choose to defund any detainment center that doesn’t follow certain regulations.{48} In other words, Congress can order the Executive Branch to treat detainees in a certain fashion or they will not pay for the detainment. This is a perfectly Constitutional action.{49}

Congress has several choices. They can take the Executive Branch’s current actions (discussed in Section IV, above) and turn it into law, rather than Executive discretion. They can create an artificial end for detainment, like a set period of years. They can make sunset clauses in the authorization of force against the terrorists, whereby if Congress does not affirmatively say “Yes, keep detaining these people” every x number of years the war is over by default and the detainees are released. Or Congress can do nothing if they are satisfied with the current state of events. And certainly this list of options is not an exhaustive one, Congress can pass almost any law they wish to on the lengths of detainment, the terms of containment, and the substantive treatment of the detainees (so longer as the law is structured under the Spending Clause).

This ends our factual statements of law. Beyond this point we will give our opinions, conclusions, and recommended courses of action.

VI. Opinion/Conclusion – T.K.

When this nation chooses to go to war, it chooses to face the realities of war. While many of the enemy will die, many too will be taken into custody on grounds nothing more substantial than opposing America: rightly so. As a necessity, the U.S. Military needs to have the ability to detain those who would likely seek to do them, or the U.S. generally, harm. Nevertheless, an enemy combatant, as well as an official prisoner of war under the Geneva Conventions, has not been charged or tried for any crime. Reports of torture and ill-treatment aside, the United States is still claiming the power to hold an individual for an indefinite period of time on nothing more than his presence in a war zone. The war on terror is different from any war we have fought before, and therefore the boundaries and the rules of the war are drastically different from anything we have previously encountered. Applying the moral guidelines of previous conflicts to prisoners taken in Iraq, or elsewhere in the name of fighting terrorism abroad, will not work. The Geneva Conventions are not a maximum protection. There is nothing stopping the U.S. from applying the same standards of due process afforded to citizens to non-citizens. Frankly, if we are to give due process rights to a U.S. citizen accused of terrorism, then I see no reason not to extend that same right to a non-citizen.

Letting terrorists go free is ridiculous, but keeping a man locked up for his entire life as an enemy combatant undercuts the freedom Americans stand for when we fight terrorism. Mr. Silverman paints a horrid picture of suicide bombers and fear. Obviously, a man who straps a bomb to his baby stroller deserves a life in prison for the murder of innocent civilians, but under our current system he won’t. Instead, the President locks him away as an enemy combatant without trial. He becomes a part of an abstracted collection of prisoners that is easy to hate because we do not really know why they have been detained. Some of the collection should probably waste away in prison for killing innocents, but others have been waging a more traditional war. Others still have probably slipped through the cracks of the United States’ review process and didn’t even deserve the label of “enemy combatant” in the first place. Under the Geneva Conventions, prisoners of war should be returned to their homeland after the war has ended. The Geneva Conventions, however, were penned in an effort to cope with traditional warfare in a time when wars had obvious sides and obvious conclusions. Therefore, even if a prisoner of war was improperly held, the detaining country would be forced to return him at some point in the foreseeable future. The war on terror, though, has no foreseeable conclusion. Even if it did, the prisoners that the President is detaining fall outside of the protections of the Geneva Conventions. However, we should not allow any of our Presidents to hold men indefinitely without trial. If the United States is to lead the charge against terrorism, then we need to lead by example. Freedom should not be horded by America alone.

In times of war, it is easy to let fear overwhelm us. The fear is made all the more real when we see videos of our reporters being decapitated and have to face the fact that our friends and family members are dying abroad. We cannot, however, live in fear – for that fear is what will lead to the sacrifice of liberties worth fighting for. We must also remember that our country is one that promises liberty for all. Although we cannot afford, nor would it be wise, to bring our country to the world, we can show the world that our patriotism is more than rote nationalism. In order to lead by example, even when facing down men raging against the West with suicide tactics, we need to remain true to the principal that a man detained without trial is a man deprived of an inalienable right.

On the other hand, we must remain practical especially in times of war. Extended detention of non-citizens captured in a battle against the U.S. is probably wise. There is no use in sending a man back to the battlefield to fight against us again. In order to balance the realities of running a war against the need to protect what America stands for at home and abroad, Congress needs to limit the power of the President to freely define the terms of war. A Congress in today’s times that simply delivers an open declaration of war to the President is an irresponsible Congress. The war on terror is such an open declaration. When will all of the enemy combatants held in Guantanamo Bay have their day in court, have the opportunity to stand for crimes committed, or else go back to their homelands? If the United States were to reduce its military presence in Iraq would the war be “over?” What if we pulled out entirely? Obviously, not all terrorists live in Iraq, nor are they even necessarily a part of the same organization. If we hold one, we may be holding him merely as an individual actor and not as a member of any terror cell or larger group. Are all of these enemy combatants to spend the rest of their lives in military custody? Such a loophole smacks of an abuse of power, and although there are customs in place to review an individual’s status as an enemy combatant, mistakes are made, customs may be changed, and even the definition of what an enemy combatant is may be broadened or narrowed according to the whim of the President. Although tradition may favor the President, Congress now needs to check the executive in order to cope with the changing face of war.

Congress should check the President by better defining the boundaries of war through the spending clause and devising a wartime review process for enemy combatants at least semi-divorced from military channels. When Congress delivers an authorization for war to the President, it also needs to take it upon itself to ensure that American values are protected not only through the exercise of war, but also during the war as well. In the future, war will become all the more difficult to define. As it does, however, Congress needs to become more sophisticated in coping with the fallout of war in the form of detainees – else the word “war” becomes nothing more than code to grant the Executive power to enact all that we as United States citizens oppose.

VII. Opinion/Conclusion – Charles

What do you think will happen if our troops know that they will have to let captured terrorists go while the terrorists may still pose a threat? Whether this is due to a finding by the Supreme Court or an act of Congress, the result will be the same. Our military will stop taking prisoners; they’ll kill them to keep them from ever threatening Americans again. The “do good no matter who bears the cost” mentality demonstrated by many who do not trust American power in any form will get the poor, innocent luckless sap with the rifle (who they supposedly seek to protect) killed. Civilian casualties in war, now decreased through use of laser-guided “smart” technology, would be increased by the pontification and sermonizing of the ivory-tower evangelicals.

Fear of an unchecked sovereign is real, but the more immediate threat is another 3,000 dead Americans. Fathers, mothers, sons, daughters, from infants to the elderly, are all targets in the minds of pathological killers who do not care if they themselves die. That is a far heavier concern on my personal moral balance scale than the possibility that an innocent man may spend a year at Guantanamo Bay, or that a filthy murderer may become old and gray in the only prison in the world where the inmates do not rape one another.

I will say that the fear of the unchecked sovereign is real in my mind when it comes to U.S. citizens. A U.S. citizen is far more likely to be a threat to a politician than a non-U.S. citizen, and thus more likely to be detained for political reasons rather than security ones. As such I support the idea for sunset provisions for the detainment of U.S. citizens in the War on Terror, but not for non-citizens. (This is assuming that the Supreme Court finally makes up its mind and allows the detainment of U.S. citizens who deny being terrorists. The Court has shown a great reluctance to confront that issue.)

I do not support the use of sunset provisions to release detainees who are not U.S. citizens. While I agree with my esteemed colleague Mr. Koppang when he states that the Geneva Conventions do not need to be a maximum level of protection, I am satisfied with the Executive Branch’s actions in setting up the CSRTs and the ARBs. Sunset provisions for non-citizens are wholly unnecessary, and potentially dangerous. I simply do not wish to send terrorists a signal than by a certain deadline if they exert enough pressure, or if they blow up the U.S. Capitol Building, their buddies will be set free. The possibility that these terrorists may spend the rest of their lives in detainment does not bother me. We put our own citizens in jail for life terms when they murder one or two people for monetary gain. These men in Guantanamo seek to kill thousands if not millions for no other motivation than pure hatred. These men in Guantanamo are not like captured soldiers in a war who will go home and stand down after hostilities are over. The war is never over in their minds, not so long as one American draws breath. These men in Guantanamo are not like the aggressors of the former Soviet Union, who did not wish to die. These men seek death eagerly, so long as they can bring some of us with them. The mindset of these terrorists is that it is wonderful and praiseworthy to strap dynamite to oneself, walk into the middle of a crowd of women in Jerusalem pushing baby strollers, and then set the explosives off. The evil that drives that mind deserves no mercy.

I sympathize with the possibility of the luckless sap with the rifle tending to his goats, and then finding himself in a firefight. I think that the processes now in place are well equipped to deal with that possibility. I have no problem with the fact that these processes are at the discretion of the Executive Branch. The Executive Branch needs discretion, they need the ability to be flexible and make decisions. If the Congress had the ability to make such decisions with such flexibility then an Executive Branch would not be needed at all. The check on the Executive Branch is an election every four years. Tying the Executive’s hands with rules that might work today but not tomorrow is both absurd and perilous.

Lastly, I do not care that our willingness to exert force to protect ourselves can sometimes give us bad PR. In a civilized setting a man prefers to be liked rather than feared, but the world is not civilized, despite its veneer. It is populated by far too many who only understand the use of aggressive force or the threat of the same.

Footnotes:
{48} While Justices Brennan and O’Connor indicated in South Dakota v. Dole, 483 U.S. 203 (1987) that Congress’ Spending Clause power had to be more than generally related to the pursuit of “the general welfare,” the majority felt otherwise. Current Constitutional law gives Congress absolute power in spending issues and Congress can put conditions on whatever they agree to pay for. In any event the Dole case sought to balance the Federal Spending power with the 10th Amendment’s protection of state power, which is a far less clear issue than balancing the Congressional power to declare war and spend money for a war with the Executive power to run a war. It is likely that the Dole dissenters (who are incidentally no longer on the Court) would not have a problem with Congress conditionally defunding the detainment of non-citizen combatants.
{49} Whether or not it is a wise action or an effective action is not a question that we address - until the Opinion/Conclusion sections in any event. A law can be Constitutional and still be stupid, and a law can be Unconstitutional and be brilliant. The two questions are unrelated.

III. Detainment of Non-citizens

It is worth noting that Justice Scalia, who wrote so strongly and vociferously against indefinite detainment of citizens in the Hamdi case, has recently called the idea of giving non-citizen enemy combatants a trial “crazy.”{28} For Justice Scalia at least, holding the status of a United States citizen is a key distinction.

While U.S. citizens are undoubtedly the ones who receive the greatest benefits of the United States Constitution, it cannot be said that the Constitution only covers citizens and no one else. The 14th Amendment to the Constitution says that no “person” shall be denied equal protection of the laws. Since the Equal Protection Clause specifically says “person” and not “citizen” (whereas the 14th Amendment’s Privileges or Immunities Clause in the same section specifically says “citizen”), the Supreme Court long ago said that non-citizens have access to the protection of law in our court system.{29} This does not mean that all discriminatory treatment of non-citizens by statute or executive order will fail.{30} The Supreme Court has ruled that Congress’ plenary power to control immigration and the President’s duty to protect the country both require greater judicial deference, and as such a far less strict judicial review takes place.{31} However, such deference is not extended to administrative agencies when they act without direct executive order.{32} President Bush issued an executive order on the detention of non-citizens on November 13, 2001.

Executive Order 66 FR 57833 is entitled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” This multi-page order lays out the rules and guidelines for the Defense Department to follow in not processing certain non-citizens through the regular court system. While the Supreme Court has yet to rule on the constitutionality of the discrimination against non-citizens in this particular executive order, precedent suggests that since there was a rational basis for the discrimination, the Court will uphold it.{33} The only thing that the Supreme Court has said on the matter is that if the non-citizen detainees do have any rights in the Federal court system, then the fact that the detainees are not held on American soil (but rather in Guantanamo Bay) is not a bar to their petition for Habeas Corpus rights.{34} Currently the detainees in that case (Rasul v. Bush) are having their case reheard on remand,{35} and the issue has worked its way up{36} to the Supreme Court again (albeit with a diifferent party).{37}

It is worth noting that once an alien defendant is in the court system and his trial is underway, it seems unlikely that the Supreme Court would allow them to be removed from the system. While the strategic decisions made by the Justice Department in the Zacarias Moussaoui prosecution (the “20th hijacker” case) are not publicly available, we can speculate that the administration does not think that removing Moussaoui to a military detention setting at this point would not survive a Constitutional challenge.{38}

To summarize, until the Supreme Court rules definitively on the President’s detention order in a rehearing of Rasul or some similar case, when non-citizens are captured in battle by the United States military, the Constitution offers them no protection directly. In Article VI, §2 of the Constitution it says that the Constitution is the supreme law of the land, and so are all laws and treaties made pursuant to the Constitution. This means that a treaty that the United States has signed can affect the Executive Branch’s detainment of non-citizens even if the Constitution itself does not.

Of course it must be remembered that interpretation of all treaties are subject to judicial review. That means that the ones who decide what a treaty means and whether it applies are the members of the United States Supreme Court. What the International Red Cross says, what Amnesty International says, what the Hague says, and even what the United Nations says is irrelevant in terms of being a controlling legal authority in the United States. It may be persuasive, but it is not controlling. Our controlling judicial body is the United States Supreme Court. Where the judicial branch has not ruled on the matter, the interpreting body is by default the enforcing party (typically a federal agency). This means that unless the Supreme Court says otherwise, the only controlling law in a treaty is the Executive Branch’s reasonable interpretation of that treaty.

A. The Geneva Conventions

Without a doubt the body of law most relevant to the detainment of enemy combatants at Guantanamo Bay is the Geneva Conventions, a series of separate treaties regarding the conduct of war between those nations who signed to it. In fact the current administration has been very careful to use the legally significant term “enemy combatants” as opposed to the more well-known term “prisoners of war” due to one of the 3rd Geneva Convention that regulates the detainment of prisoners of war. However, the Geneva Conventions only apply to the nations who have signed it.{39} Al-Qaeda is not a signatory to the Geneva Conventions, and as such the United States is not bound by the Geneva Conventions when dealing with Al-Qaeda members.

What about former members of the Taliban? Afghanistan is a signatory to the Geneva Conventions, and as such any combatant detained while fighting for the former Afghan government can be covered by the Geneva Conventions. For that matter what about any other combatant captured by U.S. troops that can somehow be shown to be acting for a country that is a Geneva Conventions signatory? These captured and detained combatants may still not covered by any Geneva Convention protocols, even if their countries are Geneva Convention members.

In the Third Geneva Convention covering treatment of prisoners of war, Article 4A defines who is covered by the Convention. Sub-section 2 of that article discusses when irregular militia fighters are covered under the treaty, stating: “Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.”

Terrorists deliberately do not wear fixed insignia, they deliberately do not carry their arms openly, and they deliberately directly target civilians (as opposed to trying to target military facilities and indirectly hitting civilians) in violation of the laws of war. Thus terrorists do not meet conditions (b), (c), or (d) and therefore do not qualify for Geneva Convention protection. (Whether or not they meet (a) depends on the inner workings of their organizations, which are not always known, but after failing to meet the other three this is irrelevant.) The terrorists have not earned any rights under the Geneva Conventions, and by their very actions they have placed themselves outside of the protection of this law.

An objection can be raised to declaring the detainees to be enemy combatants and not prisoners of war based on the next part of the Third Geneva Convention. Article 5 of that Convention says: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” It seems that if “any doubt” arises the Executive Branch cannot simply declare enemy combatants to be improper combatants under the Geneva Conventions, but must instead await the declaration from “a competent tribunal” that the terrorists do not deserve proper Prisoner of War status.

The fallacy with this argument is that one, no definition of what constitutes a competent tribunal is given. “Tribunal” seems to imply a group at least, but competent in what? Law? Military strategy? Experience in analyzing intelligence on terrorist activities? Certainly the Pentagon’s officers in the Judge Advocate General’s program are competent to do all of those, as well as the members of the National Security Council. Article 5 does not require that the competent tribunal make their determination before, during, or after hostilities have started, only that they must do so after doubts arise. Given that our intelligence agencies, military forces, and State Department have been concerned with terrorist activities for decades, it is hard to say that a competent tribunal has not already considered these doubts.

The second fallacy is more of a threshold problem. What does “any doubt” mean? Any doubt whatsoever? Any doubt in the minds of disgruntled political adversaries of whichever party currently holds the White House? Any doubt in the mind of Osama bin Laden? How about any doubt in the mind of General Tommy Franks? Or any reasonable doubt in the minds of the tribunal? The level of doubt needed and what criteria it is judged by, is unknown. Without a definitive standard of doubt, nothing keeps our armed forces from judging the combatant’s status as within the Geneva Convention or not based on what they see in front of their own eyes.

As always, the final ruling on the definition of these terms can only be made by the United States Supreme Court which interprets the language of treaties. And when the Court has not ruled on a subject, the Executive Branch is free to implement whatever interpretation of the treaty language is reasonably defensible. As demonstrated, the current course chosen is one that is not necessarily blocked by the language of the Third Geneva Convention, Article 5, and what “academic authority” has to say about the issue is not legally controlling. In fact the only thing that one can say with any definiteness is that any interpretation of the Geneva Conventions that takes power away from the Executive Branch’s assigned powers in Article II of the Constitution is bound to fail. This is because we have a method for changing the Constitution, and it does not involve signing a treaty. It involves a two-thirds vote in the House and Senate and the approval of three-quarters of the state legislatures.{40}

In conclusion, given the nature of their activities, the Geneva Conventions are utterly irrelevant to terrorists captured in the War on Terror.

B. Other Treaties

There are no other treaties of international law that address captured combatants per se, but there is a Universal Declaration of Human Rights adopted by the United Nations on December 10th, 1948. The Declaration contains 30 Articles which are meant to be objectives to be followed by governments. In particular, Article 6 provides that “Everyone has the right to recognition everywhere as a person before the law.” Further, Article 7 provides that “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” This seems to be talking about people during peacetime and not enemy combatants, but the fact is that this Declaration has no signatories and is therefore not legally binding.{41}

There may be yet other treaties to address, and those would be extradition treaties between the U.S. and other countries regarding sending those charged with crimes back to their home country. The possibility of those private treaties and their possible applicability are beyond the scope of this paper.

In summary, there is no international law binding on the United States (except possibly for bilateral extradition treaties) that covers this sort of enemy combatant.

IV. Rights And Access Currently Granted To Detainees

Despite having no current legal requirement to give rights to those detainees that are not U.S. citizens, the Executive Branch does have certain processes in place to review the status of the detainees. These processes were the subject of a July 14, 2005 Senate Armed Services Committee’s Subcommittee on Personnel hearing. The transcript of the hearing has not yet been published by the Senate, but the opening statements of those testifying have been made available,{42} and C-span has video of the entire three hours.{43} While much of the hearing focused on military commissions, which are not the subject of this paper, a substantial portion of the hearing focused on detainment issues.

Among those testifying were the Judge Advocate Generals of the various branches of the armed services. They stated in a prepared statement{44} that individuals taken into Depart of Defense control in connection with the ongoing hostilities undergo a multi-step screening process to determine if their detention is necessary. Commanders in the field first use all available information to determine whether the individual is “part of or supporting forces hostile to the United States or coalition partners, and engaged in an armed conflict against the United States.”{45} If the field commander found that the person fit that description, they would be detained. Some would be sent on to Guantanamo Bay. Between August of 2004 and January of 2005, Combat Status Review Tribunals (“CSRTs”) reviewed the status of all individuals detained at Guantanamo.{46} Each detainee was given an opportunity to contest, in a fact-based proceeding, their initial designation as an enemy combatant. Beyond this challenge to initial designation, in December 2004 Administrative Review Boards (“ARBs”) were set up to determine whether those who had been reaffirmed to initially have been enemy combatants still posed a threat to the United States and its allies, or whether there was another need for continual detention (such as whether or not the detainee possessed valuable intelligence about terrorist operations). These ARBs allow a detainee to plead his case before a panel of three military officers. Even if the Board finds that the detainee still needs to be detained at that time, the detainee’s case is reviewed annually. Neither the CSRTs nor the ARBs are bound by the Federal Rules of Evidence that govern the Federal court system.

Rear Admiral James M. McGarrah, Director of the Administrative Review of the Detention of Enemy Combatants, also testified to the Senate Subcommittee.{47} He gave more detail about the working of the CSRTs and the ARBs, and what they were based on. Both sets of tribunals use information obtained in coordination with the Departments of State, Defense, Homeland Security, Justice, and the Central Intelligence Agency and the National Security Council. Where practical, the Department of State also coordinates with the detainee’s home nation for information to the benefit of the detainee, including the opportunity to submit information from the detainee’s family.

Rear Admiral McGarrah testified that the CSRTs have been set up with rules consistent with Army Regulation 190-8, which incidentally give the detainees more opportunities to present evidence for their release than the tribunal requirements of Article 5 of the 1949 Geneva Convention Relative to the treatment of Prisoners of War. (Although he did not disagree with the Defense Department’s position that these detainees were not covered by the Geneva Conventions.) These opportunities for detainees include: the opportunity for review by a neutral decision-making panel which make their decision by a majority vote based on a preponderance of the evidence; the opportunity to attend all open portions of the proceedings; the opportunity for the detainee to call witnesses on his behalf if they are relevant and reasonably available; the opportunity to question witnesses called by the tribunal; the opportunity to testify on his own behalf only if he wishes; and the use of an interpreter if necessary. In addition the CSRTs give the detainees protections beyond even what Army Regulation 190-8 requires, such as: the detainee has the opportunity to receive assistance from a military officer to ensure he understands the process and the opportunities available, and to prepare for his hearing; the detainee has the advantage of the CSRT Recorder being obligated to search government files for evidence suggesting that the detainee is not an enemy combatant; the detainee has the protection of express qualifications in the CSRT guidelines to ensure the independence and lack of prejudgment of the tribunal; the detainee has the opportunity to see an unclassified summary of the evidence against him in advance of the hearing; the detainee has the result of his CSRT decision automatically reviewed by a higher authority; and the detainee is allowed to introduce relevant and reasonably available documentary evidence.

The Rear Admiral then described the working of the ARBs and their annual reviews of the detainees to see whether or not detention is still justified. The ARB process provides the detainees with many opportunities, just as the CSRT process does. These include: the opportunity for review by a neutral decision-making panel of three commissioned military officers sworn to execute their duties faithfully and impartially; the opportunity to attend all open portions of the proceedings; the opportunity for the detainee to testify on his behalf if he so desires; the opportunity to receive an interpreter when necessary; and the opportunity to receive assistance from a military officer to ensure that the detainee understands the process, and to prepare for his hearing.

In summary the current situation is as follows: the detainees have their status reviewed before commitment to Guantanamo bay, and annually afterwards, in a setting that actually gives them more rights and options that the Geneva Conventions would. However this setup exists entirely at the discretion of the Executive Branch, and can be unilaterally revoked or amended at any time.

Footnotes:
{28} Newsweek reported this based on a March 8th lecture by Justice Scalia, with more comprehensive detail on the matter at http:// http://www.mediainfo.com/eandp/news/article_display.jsp?vnu_content_id=1002236937 (last visited on March 28, 2006)
{29} Yick Wo v. Hopkins, 118 U.S. 356 (1886)
{30} A more detailed legal analysis of this issue can be found in ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 671-680 (Aspen Publishers 2001)
{31} See e.g. Mathews v. Diaz, 426 U.S. 67 (1976), upholding a law denying Medicaid benefits to aliens not admitted for permanent residence
{32} Hamptom v. Wong, 426 U.S. 88 (1976)
{33} See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936) (finding that the President has “plenary power over foreign affairs”), and Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427-428 (1964) (The judiciary should only interfere in Presidential decrees that are less important to the implications foreign policy and when there is less codification or consensus concerning the particular area of international law.)
{34} Rasul v. Bush, 542 U.S. 466 (2004)
{35} See 103 Fed.Appx. 676 and 2004 WL 1613572
{36} Following the Supreme Court’s Hamdi ruling in 2004, Congress passed the Detainee Treatment Act, funneling all Guantanamo Bay cases to the D.C. Circuit Court of Appeals, and limiting the jurisdiction of the Federal court system to hear Habeas Corpus challenges by detainees. The Supreme Court will undoubtedly rule on the constitutionality of this congressional action as well when it rules on the Hamdan case. See footnote 6, infra.
{37} That would be the pending Hamdan case again. As a technical point, the petitioners in the Rasul case were suing under the Alien Tort Act, 28 U.S.C. §1350, not the Civil Rights Act, but as a practical matter if the Executive Branch is immune to one in this question of Article II powers then it is immune to the other. If Executive Order 66 FR 57833 is constitutional, then the Rasul/Hamdan petitioners are under military jurisdiction, and those laws do not apply to that court system.
{38} Mr. Moussaoui was arrested on August 17, 2001 for immigration violations. Recall that the 14th Amendment case law usually only allows for discrimination based on alien status if said discrimination comes directly from a direct executive order, and the executive order relating to the detainment of terrorists was dated on September 13th of that year, almost a month after Moussaoui’s arrest. See footnotes 29-33, infra.
{39} Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, article 2
{40} See U.S. CONST. art. V
{41} See http://www.unac.org/rights/question.html (last visited on March 30, 2006)
{42} See http://armed-services.senate.gov/e_witnesslist.cfm?id=1559 (last visited on March 23, 2006)
{43} See rtsp://cspanrm.fplive.net/cspan/project/iraq/iraq071405_detention.rm (last visited March 30, 2006)
{44} Found at http://armed-services.senate.gov/statemnt/2005/July/Joint%20Statement%2007-14-05.pdf (last visited April 3, 2006)
{45} See http://www.defenselink.mil/news/detainees.html (last visited February 27, 2006)
{46} The timing has caused some to speculate that the Hamdi decision triggered this. (See the Wall Street Journal’s April 1-2 weekend edition’s op-ed on page A6, “Terrorists and the Supreme Court.”)
{47} Found at http://armed-services.senate.gov/statemnt/2005/July/McGarrah%2007-14-05.pdf (last visited April 3, 2006)

I. Introduction

Deciding to make war on someone is likely to get a person killed or - if they are lucky - captured. Being captured means being detained and deprived of all liberty, until the cessation of hostilities. Usually one can tell when hostilities have ceased because one of the governments involved signs some papers. For 230 years our nation has been exercising the option of taking and detaining prisoners whenever it has been at war, including when it was at war with itself. And in those wars, once the hostilities were over and the right papers signed, captured soldiers were returned to their native countries. Only now, we have a large number of prisoners who acknowledge no government that can sign papers for them. In order to keep these belligerents from continuing to attack us, it seems we may need to detain them indefinitely.

Power corrupts, and to paraphrase Lord Acton, unchecked power corrupts in an unchecked fashion. The direct result of unchecked power is that it creates tyranny. Our country was designed to have its government consist of checks and balances to prevent any one person or persons from gaining absolute power. The legal policy that guided the writing of our Constitution was to divide power up, and thereby protect the governed. In particular those who drafted the Constitution were concerned with the tyrant’s ability to charge political foes with crimes real, implied, or imagined, and lock them away from all notice, compassion, or justice.

Here lies the shadow cast by the detainment center at Guantanamo Bay. On one hand we are protecting our country by keeping those who desire to make war in a place where they can do no harm. On the other hand, these irregular militiamen have no government to speak for them, no one to negotiate terms of their surrender and release. A conflict exists between a policy of preventing further harm and the foundation of our Separation of Powers system. On one hand, “the war power of the national government…obviously includes the ability to detain those (even United States citizens) who fight against our troops.”{1} On the other hand, “the very core of liberty secured by our…system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”{2} Can we achieve both policies, or are they mutually exclusive?

If we want to be able to wage war effectively, there can be only one commander-in-chief. Mindful of this reality of organization and management, the Founding Fathers declared in the Constitution: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”{3} Whatever actions the armed forces take, including the taking of prisoners, the President is ultimately in charge of. But if we want to keep that commander-in-chief – whether it is a conservative Republican today or a liberal Democrat in four years – from abusing that power, some check on it has to exist. What checks exist on this Executive power now, and constitutionally what other checks could conceivably be designed? Are there any treaties currently covering detained enemy fighters? Do the Geneva Conventions apply at all here, and do we even want them to apply? Does it make a difference if the detained enemy combatant is a United States citizen or not?

To further complicate discussing these matters there is a great deal of confusion about what rights these enemy combatants actually have, or what rights they ought to have. The intricacies of the Geneva Conventions are not widely known, and it is easy to think that we might currently be violating them.{4} Others have wondered how we can be “holding people without charges,” despite the fact that the Fifth Amendment has never had extra-territorial application to foreign persons outside of the United States.{5} This paper seeks to clarify these matters for the laymen and attempt to give alternative policies and answers to the questions raised.

We only come to discuss the power to detain and any checks on it that currently exist or could potentially exist. This paper does not seek to address other issues, such as trial by military commission for war crimes{6} or substantive treatment of those currently detained.{7}

Another limitation to this paper is that the first five sections are limited to a purely legal analysis, not a tactical analysis. An example of a tactical argument would be advocating the closing of our detainment centers because they make us look bad and lower our moral stature in the world, or advocating that they stay open to intimidate would-be terrorists. These arguments address the effectiveness of a policy, not whether or not said policy is legal or Constitutional.

We also do not seek to praise or condemn either the current administration or past ones for their use of the detainment power, because this is a larger issue than any one President or for that matter any one war. We urge the reader to remove their feeling about the current administration, pro or con, from their minds before reading. The question of appropriate application of the detainment power is one that will continue far into the future, and it shouldn’t be clouded by one’s personal political tendencies.{8}

II. Detainment of U.S. Citizens

The primary document controlling the application of United States law to a United States citizen is of course the Constitution. Does the Constitution allow for a U.S. citizen to be detained as an enemy combatant? If it does, do the various checks on the government’s ability to charge someone with a crime (primarily the 4th, 5th, and 6th Amendments to the Constitution) affect the ability of the government to detain someone for military activities? The answer to the first question is undoubtedly yes, but while the answer to the second is also yes, it is less clear.

A U.S. citizen that fights against the United States can be captured on the battlefield as a combatant, not as a criminal. There is clear and emphatic precedent that says when you are captured in war you are not necessarily being charged with a crime.{9} These are not merely pedantic differences of labeling. A criminal is protected by the Bill of Rights. A prisoner of war is protected by the Geneva Conventions. An enemy combatant is someone who engages in combat for the enemy, and they could be different legal breed altogether, possibly unprotected by either set of laws.

The most recent Supreme Court jurisprudence in this area comes from two cases in the post September 11th era; Hamdi v. Rumsfeld{10} and Rumsfeld v. Padilla{11}.  These two cases were challenges by U.S. citizens detained as enemy combatants. They both had oral arguments before the Supreme Court on April 28, 2004 and they both had their rulings handed down on June 28, 2004, but despite the similarity in timing of the cases the various Justices’ opinions shift according to each detainees circumstances.

The Hamdi case involved a man captured in Afghanistan while holding a weapon on a battlefield. Determined by the United States forces present to be an enemy combatant for the Taliban, he was sent to Guantanamo Bay’s detention facilities. This man, Yaser Esam Hamdi, is an American citizen. His father had petitioned the district court, saying that his son Yaser was an aid worker, not a terrorist. Mr. Hamdi’s father claimed that his son was armed for self-protection and was simply in the wrong place at the wrong time. The Defense Department responded with a report that said otherwise, detailing the younger Hamdi’s affiliation with a Taliban unit among other activities. The judge in the case said that the government had not proven their allegations and ordered the Defense Department to turn over more information, including information of a classified nature. The judge held that Mr. Hamdi’s was constitutionally entitled to a full hearing in District Court on the threshold question as to whether or not he really was an enemy combatant as opposed to being just some luckless sap with a rifle who got caught in a crossfire. On appeal, the 4th Circuit said that the courts cannot order anything in this matter because “the authority to capture those who take up arms against America belongs to the Commander in Chief.”{12} The appellate court found it only necessary to ask the Executive Branch (in the form of Defense Department official Michael Mobbs) to make some showing of the battlefield evidence proving that the government had a case.{13} This ruling meant that – in the 4th Federal Circuit at least – any U.S. citizen could be picked up abroad on locked away on merely the Executive Branch’s say-so. Not surprisingly, The United States Supreme Court granted certiorari, agreeing to hear the case.

The Supreme Court considered the narrow question as to whether or not a U.S. citizen had the right to challenge in a regular Federal Court, with all of the protections of the Bill of Rights and all of the Federal Rules of Evidence, that citizen’s being labeled an enemy combatant. The Court’s ruling was incredibly fractured.

Justice Thomas took the position that the detainment of enemy combatants was a wholly Article II war-making power, and thus the judiciary could issue no ruling on the matter.{14} Mr. Hamdi was at the mercy of the Executive Branch.

Justices O’Connor, Breyer, Kennedy, and Chief Justice Rhenquist took the position that the Congressional authorization of force against those who participated in the September 11th attacks allowed for detainment of citizens,{15} but that the 5th Amendment gave citizens a right to challenge their being labeled a combatant as a threshold matter.{16} That challenge would be made in a Federal courtroom with all of the Federal Rules of Evidence applying, but the issue would not be one of guilt or innocence, merely the accused’s status as an enemy combatant or not.{17} If found as an enemy combatant the Defendant would be then under the jurisdiction of the armed forces, i.e. the Executive Branch, and could potentially be detained indefinitely. (This was the full searching review that the 4th Circuit appellate court had denied to Mr. Hamdi.)

Justices Souter and Ginsburg agreed that in theory if Congress had authorized the detainment of citizens then Mr. Hamdi would only have the right to challenge his being labeled a combatant. However these two Justices found that the words “all appropriate and necessary force” in the Congressional Authorization for war following the terrorist attacks of September 11th were not specific enough to warrant the potentially indefinite detainment of an American citizen.{18}

Finally, Justices Scalia and Stevens strongly disagreed with the prospect of American citizens being detained indefinitely on the Executive Branch’s say-so, even with a threshold hearing of status.{19} Justice Scalia was particularly vociferous in his insistence that the ability to detain enemies was the hallmark of a dictator, and a major concern of the drafters of the Constitution.{20} Both Justice Scalia and Justice Stevens held that no citizen could be detained in the fashion that Mr. Hamdi was without Congress specifically suspending Habeas Corpus rights, as stated in the Constitution, Article I, §9, clause 2.{21} And yet even there it would only be a suspension of such rights, not an abrogation. The detention could not be indefinite.{22}

In summary, only a four-justice plurality has held that U.S. citizens detained on a foreign battlefield as enemy combatants have the right to challenge their labeling as a combatant and no more. Two of those four Justices, Chief Justice Rhenquist and Justice O’Connor, are no longer on the court. What the new Justices, Chief Justice Roberts and Justice Alito, will say is not predictable. As the gulf between Justice Thomas and Justice Scalia illustrates, even Justices who generally agree with one another may disagree on this matter. Therefore while we know what the current law is – that a citizen picked up under arms in a foreign country only has the right to challenge his initial label, it is doubtful that the law will stay in its present form.

In contrast to Yaser Esam Hamdi, who was a battlefield captive captured in the wilds of Afghanistan, Rumsfeld v. Padilla deals with a man stopped in the decidedly non-exotic locale of Chicago’s O’Hare International Airport. Jose Padilla was arrested by the FBI, not the military, and initially charged in the Federal domestic courts regarding a plot to set off a “dirty” bomb. Only after a later finding by the Executive Branch that Mr. Padilla was an Al-Qaeda member and a militarily significant part of the War on Terror was the defendant remanded to military custody. Given that the Padilla case was heard and its ruling issued on the same day as the Hamdi case, one would expect an opinion of law reflecting these distinguishing factors. Instead, the case was remanded on procedural grounds on a 5-4 vote. A majority of the court voted that as Padilla named the Secretary of Defense in his suit instead of properly naming the commander of the military base that held him, the case would have to be remanded to work its way through the system again. The dissent argued that to do such a thing would be a miscarriage of justice. Interestingly, Justice Scalia, who dissented in Hamdi, agreed with the majority in Padilla; and Justice Breyer, who voted with the plurality in Hamdi, now voted with the dissent in Padilla. The Padilla case has since worked its way back up the system with the proper party named. In the meantime the government sought to release Mr. Padilla from military custody back to federal law-enforcement officials for a standard criminal trial, but the appellate court did not wish allow the transfer until the legal issues were resolved regarding the initial transfer to military custody had been addressed. On April 3rd of this year, after considering the petition for certiorari, the Court denied it. As Mr. Padilla was already back in the regular court system, the Court seemed to consider the matter moot for the moment.{23}

It should be noted, however, despite the Court’s dodging of the central issue, there is still precedent for the military to have custody over Mr. Padilla rather than the regular Federal court system. In Ex Parte Quirin,{24} a group of men who were almost all U.S. citizens arrived on Long Island, N.Y. via submarine from Nazi Germany. These men buried their German uniforms and proceeded to move about the country with explosives for the purpose of sabotage. The FBI caught them on American soil, but shortly after their capture they were transferred to military authorities by an executive order from President Roosevelt. President Roosevelt also directed that these men be tried by a military tribunal rather than a conventional court. The captured men petitioned the Supreme Court, stating that the President’s actions were unconstitutional and that the 5th and 6th Amendments guaranteed them a jury trial in the regular court system. The Supreme Court’s response was that the President had full power as Commander-in-Chief to prosecute the war, that Congress had full power to raise money for the war and to make rules for the armed forces, and that Congress had power under Article I, §8, clause 18 of the Constitution to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”{25} The Court found that the Congress had passed legislation to support military detentions and tribunals for World War II, and that the 5th and 6th Amendments had not been written concerning military detention and trial. The Court did specifically note, however, that they were not trying to determine “to what extent the President as Commander-in-Chief has constitutional power to create military commissions without the support of Congressional legislation.”{26} Doubtless if the Padilla case swerves back to one of military jurisdiction, the Supreme Court will have to decide, among other things, what the Congressional authorization of “all necessary and appropriate force” means. (It is worth noting, however, that Justice Scalia distinguished Ex Parte Quirin in his Hamdi dissent by pointing out that the citizens in Quirin had admitted to being members of the enemy force – something that Mr. Padilla and Mr. Hamdi have not admitted to.){27}

In summary the current law is as follows: A U.S. citizen captured on a foreign battlefield by U.S. troops has access to the court system only to challenge his label as an enemy combatant (Hamdi). A U.S. citizen captured on domestic soil who is admittedly an enemy combatant has no rights to standard federal trial process whatsoever (Ex Parte Quirrin).

Footnotes:
{1} Hamdi v. Rumsfeld, 542 U.S. 507 (2004) at 586-587, THOMAS, J., Dissenting (internal citations omitted)
{2} Id. at 554-555, SCALIA, J., Dissenting
{3} U.S. CONST. Art. II, §2, cl. 1
{4} As we will detail later, the Geneva Conventions do not apply to every armed force.
{5} See e.g.  Johnson v. Eisentrager, 339 U.S. 763 (1950), and Zadvydas v. Davis, 533 U.S. 678 (2001). But see Rasul v. Bush, 542 U.S. 466 (2004) at footnote 34, supra.
{6} The applicability of military commissions to try the detainees at Guantanamo Bay, and the alternative possibility of their place in the standard legal system, has been taken up by the Supreme Court. The Court granted certiorari to petitioner Salim Ahmed Hamdan on November 7th, 2005 (126 S.Ct. 622), and as of this writing oral arguments have just been heard in the case, with a ruling expected in late June.
{7} Accounts regarding substantive treatment of the detainees vary widely according to the media outlets one chooses to listen to.
{8} As a disclaimer, one of the authors voted for President Bush in the 2004 election, and the other voted for Senator Kerry.
{9} As will be detailed later in Ex Parte Quirin, supra
{10} 542 U.S. 507
{11} 542 U.S. 426
{12} Hamdi v. Rumsfeld, 296 F.3d 278, 281-282 (4th Cir. 2002)
{13} This is referred to as only a limited judicial inquiry, as opposed to a searching review of the factual determinations underlying Mr. Hamdi’s seizure.
{14} Hamdi at 579
{15} Id. at 517
{16} Id. at 533-535
{17} Id. at 534. “A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error…”
{18} While the Congressional authorization for the use of force was certainly specific enough to go war and to take prisoners, there is a pre-existing statute against detention of U.S. citizens. The two Justices found that his statute, 18 U.S.C. §4001(a), was adopted specifically to preclude citizen detentions like those of Americans of Japanese ancestry in World War II. Hamdi at 542-543.
{19} Id. at 554-558
{20} “No fewer than 10 issues of the Federalist were devoted in whole or in part to allaying fears of oppression from the proposed Constitution’s authorization of standing armies in peacetime…Except for the actual command of military forces, all…explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II.” Id. at 568-569.
{21} Id. at 554
{22} “The Constitution’s Suspension Clause…allows Congress to relax the usual protections temporarily.” (emphasis ours) Id. at 554
{23} Justice Kennedy wrote that while Mr. Padilla had a continuing concern that his status might be altered again, that concern “can be addressed if the necessity arises.” (See Gina Holland, Supreme Court Avoids Combatant Challenge, ASSOCIATED PRESS, April 3rd, 2006.) Four out of nine Justices on the Supreme Court have to agree to grant certiorari, and only three – Justices Souter, Breyer, and Ginsburg – were willing to do so. Oddly, Justice Stevens, who authored the vigorous dissent in the original Padilla ruling, voted with the majority to deny certiorari this time.
{24} 317 U.S. 1 (1942)
{25} Id. at 28
{26} Id. at 29
{27} Hamdi at 571
{28} Newsweek reported this based on a March 8th lecture by Justice Scalia, with more comprehensive detail on the matter at http:// http://www.mediainfo.com/eandp/news/article_display.jsp?vnu_content_id=1002236937 (last visited on March 28, 2006)