Op-Ed: Supreme Court To Decide On ‘Enemy Combatants’ (New York Law Journal)

by Christopher Dunn — On April 28 the Supreme Court of the United States will hear argument in two highly publicized cases raising fundamental issues about the constitutional authority of the Executive Branch to detain in domestic military facilities American citizens allegedly involved in terrorist activity. The citizens at the center of this controversy are Jose Padilla, who was arrested in the United States in May 2002, and Yaser Hamdi, who was captured in Afghanistan in 2001; both have been held in military facilities in this country for nearly two years.

In January 2003 the Fourth Circuit held that Hamdi’s detention was lawful and dismissed his habeas corpus petition, emphasizing that he was captured during hostilities in a foreign country and thus distinguishing his case from Padilla’s. Eleven months later, the Second Circuit held that Padilla’s detention was unlawful and granted his habeas corpus petition, emphasizing that he was an American citizen arrested in the United States and thus distinguishing his case from Hamdi’s. Though the two cases arguably differ, the reasoning of the Second and Fourth Circuits cannot be reconciled, and the Supreme Court’s resolution of the cases likely will force it to decide important overlapping questions about the President’s constitutional authority, about congressional pronouncements bearing on the military detention of American citizens, and about the Court’s own sparse precedent.

Padilla v. Rumsfeld: the “dirty bomber”

On May 8, 2002, Jose Padilla was arrested in Chicago and brought to New York City pursuant to a material-witness warrant. One month later President Bush designated Padilla an “enemy combatant” who had been involved in effort to detonate a radioactive device — dubbed a “dirty bomb” — in the United States, and he was moved to a South Carolina military brig. In response to a habeas corpus petition, Southern District Chief Judge Michael Mukasey rejected Padilla’s contention that the President lacked the authority to detain him but held that the detention required “some evidence” that Padilla was an enemy combatant and further held that Padilla was entitled to meet with his attorneys to challenge the government’s factual assertions on that point. After the government informed Judge Mukasey it had no intention of allowing Padilla to meet with his lawyers, he certified the case to the Second Circuit.

The Court of Appeals ruled that Padilla’s detention was unlawful. In so ruling, the Second Circuit analyzed the case as a separation-of-powers controversy between the President and Congress, an approach that led to what appears to be a straightforward reading of constitutional and statutory provisions and one that avoided potentially controversial questions about judicial deference to Presidential authority in times of crisis.

Using this approach, the court first ruled that the President lacked inherent constitutional authority to abridge the individual liberties of American citizens during times of national emergencies, finding instead that power had been vested in Congress. In doing so, the court relied on various constitutional provisions — including the infrequently cited Third Amendment’s provision concerning the quartering of troops — and, importantly, on the Supreme Court’s decision in a case from the Civil War — discussed below — that rejected the military trial of an American citizen.

Having concluded that the President’s constitutional authority as Commander in Chief alone thus was insufficient to justify Padilla’s detention, the Second Circuit turned to whether military detention of American citizens in the aftermath of September 11 was authorized by Congress. That inquiry started with a 1971 statute that provides, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Known as the “Non-Detention Act,” the statute was passed largely in belated response to the detention of Japanese-American during World War II. The Second Circuit readily found that this statute applied to Mr. Padilla reading “the plain language of [the statute] to prohibit all detentions of citizens.”

Given this, the question remaining for the court was whether subsequent legislation authorized Padilla’s detention, and the court turned to the Joint Resolution passed by Congress eight days after September 11, which authorized the President “to use all necessary and appropriate force against those nations, organizations or persons” involved in the September 11th attack. Finding that the “plain language of the Joint Resolution contains nothing authorizing the detention of American citizens captured on United States soil, much less the express authorization” required by the Non-Detention Act, the court rejected the government’s argument that the Joint Resolution authorized Padilla’s detention. The Second Circuit therefore found the detention unlawful, granted Padilla’s habeas petition, and ordered that he be released unless charged criminally or held as a material witness.

Hamdi v. Rumsfeld: the “battlefield capture”

Yaser Hamdi was captured in Afghanistan in the fall of 2001 and taken to a Virginia military facility in April 2002. In response to his habeas corpus petition, the government filed a declaration from the Defense Department asserting Hamdi had traveled to Afghanistan to affiliate with a Taliban military unit, had received weapons training, and was in possession of rifle when captured along with a unit that had surrendered. After the district court concluded that the declaration “falls far short” of supporting Hamdi’s detention and ordered fact finding, it certified the case for appeal.

The Fourth Circuit cast the controversy as one turning significantly on the proper role of the judiciary in disputes over military battlefield actions and over Presidential actions during times of war. Consistent with this, the court stated that the detention of Hamdi “bears the closest imaginable connection to the President’s constitutional responsibilities during actual conduct of hostilities.”

Having so held, the court turned to the Non-Detention Act of 1971 and the post-September 11th Joint Resolution. Choosing not to pass on the applicability of the Non-Detention Act to Hamdi, the court reasoning instead that “even if Hamdi were right” about the statute’s application to him, the Joint Resolution authorized his detention: “[C]apturing and detaining enemy combatants is an inherent part of warfare; the “necessary and appropriate force” referenced in the congressional resolution necessarily includes the capture and detention of any and all hostile forces arrayed against our troops.”

Finally, the court held that, consistent with this authorization and the President’s broad authority, the nine-paragraph Defense Department affidavit was sufficient to justify Hamdi’s detention, and, because it was not disputed he was captured on the battlefield, the court ruled Hamdi had no right to challenge the declaration, regardless of his American citizenship. It therefore dismissed his habeas petition. As for Padilla, the Fourth Circuit emphasized that it was not ruling on Presidential authority to detain an American citizen captured in the United States.

Sparse Supreme Court Precedent

The Supreme Court has never addressed the central question in Padilla and Hamdi: the ability of the President to detain indefinitely in the United States American citizens allegedly involved in armed hostilities against the United States. Twice, however, the Court has addressed the Executive Branch’s authority to subject American citizens to military tribunals, and these cases provide the most direct precedent.

The first arose out of the trial, conviction and sentencing of Indiana resident Lambdin P. Milligan by a military commission in 1864 for having engaged in a seditious acts aimed at aiding Confederate forces and undermining Union efforts. In Ex Parte Milligan the Court held that the military commission lacked jurisdiction to try Milligan and ordered him released. The Court’s opinion is striking for its political oratory and corresponding lack of formal legal analysis, as suggested by its introduction to the question of the constitutionality of the military commission that tried Milligan:

No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people; for it is the birthright of every American citizen when charged with a crime, to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be, or how much his crimes may have shocked the sense of justice of the country, or endangered its safety. By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers.

Emphasizing that the civilian courts had been functioning in Indiana and that Congress had not authorized the tribunal, the Court ruled that Milligan’s trial by the military commission was an unconstitutional usurpation of the judicial power of Article III of the Constitution and violated Milligan’s Sixth Amendment right to trial by jury.

The Court’s other consideration of the constitutionality of military tribunals arose during World War II when German soldiers were brought by submarine in June 1942 to American shores, buried their military uniforms, and set out to attack war industries and facilities in the United States. Shortly after their capture, President Roosevelt, acting pursuant to Articles of War enacted by Congress, issued an order appointing a military commission to try the Germans and separately issued a Proclamation declaring that persons who committed acts of war on American soil would be subject to the jurisdiction of military tribunals.

In Ex Parte Quirin the Supreme Court sustained the constitutionality of the military commission’s conviction of the German soldiers. The Court started from the premise that the federal government has the power to subject to military tribunal those persons who act as “unlawful combatants” and who violate the “law of war” in the United States. (By contrast, “lawful combatants” committing such violations are deemed prisoners of war and treated accordingly.) Soldiers who secretly and without uniform pass the military lines of a belligerent nation qualify as unlawful combatants, and the Court held that the fact that one of the German soldiers was an American citizen did not change this.

In light of these principles, the Court concluded that the military commission at issue in Quirin was constitutional because Congress had expressly authorized such tribunals and because the German soldiers plainly qualified as unlawful combatants. Significantly, the Court noted that it was not passing on whether the President could create military commissions “without the support of Congressional legislation.” As for Milligan, the Court distinguished it on the grounds that Milligan did not qualify as an unlawful combatant.

Issues Before the Supreme Court

Given its rulings in Milligan and Quirin, the issue of congressional action may play a central role in the Supreme Court’s resolution of Padilla and Hamdi. To the extent the Court reads the Non-Detention Act and the Joint Resolution as did the Second Circuit, its decision in Milligan would point to an invalidation of the detentions, particularly Padilla’s. Should the Court conclude as did the Fourth Circuit, however, that Congress has authorized these detentions, the Court then would be faced with the ultimate and unprecedented constitutional question about the limits on congressional and Presidential power to authorize indefinite military detention of American citizens, even when — as with Padilla – they have been arrested on American soil. And of course the Court may reach different legal conclusions about Padilla and Hamdi.

Beyond these legal points loom two larger considerations. First is the lingering shame arising from the judicially-sanctioned detention of Japanese-Americans during World War II. Conversely, there is the horror of September 11 and the ongoing terrorist activity around the globe, which create an atmosphere in which individual liberties have not fared well in the Supreme Court.