The Latest on Enemy Combatants

Yesterday, Judge Henry F. Floyd of the US District Court for South Carolina held that Jose Padillla, an American citizen arrested on American soil, could not properly be detained as an "enemy combatant" and must be either charged as a criminal defendant or released. The case, Padilla v. Hanft, is the third lower court decision to come out of the Supreme Court's trilogy of enemy combatant cases last summer.

In Hamdi, the Supreme Court held that the "Authorization For Use Of Military Force" (AUMF)passed by Congress shortly after the 9/11 attacks had implicitly authorized the President to capture and detain individuals actively opposing such use of force and/or supporting those responsible for the 9/11 attacks. Thus, the court upheld the detention of Hamdi, even though he too was an American citizen, since he was captured on a foreign battlefield carrying a weapon in active opposition to US forces. Padilla, by contrast, was arrested, unarmed, by civilian law enforcement officials, at Chicago's O'Hare Airport, without a struggle of any sort.

Interestingly, though, the Hanft decision did not turn on whether Padilla was, in fact, an "enemy combatant". Indeed, given the procedural posture of the case (a motion by Padilla for summary judgment), the court was required to assume that the government's factual allegations were true: that Padilla had been in Pakistan and had returned to the United States with the intention of detonating a "dirty bomb." Assuming those contentions are true, it is hard to argue that Padilla is any less an "enemy combatant" than Hamdi was. Nevertheless, while accepting, as he had to, the Supreme Court's holding the AUMF did authorize military detention of American citizens captured on foreign battlefields, Judge Floyd held that it did not authorize military detention of citizens captured on American soil.

To my mind, this is all singularly unsatisfying. The Due Process Clause of the US Constitution provides that "No person shall be . . . deprived of . . . liberty . . . without due process of law . . . " On it's face, at least, this prohibition is directed at the government and protects any "person" whether or not the person is a US citizen. However, the requirements necessary to satisfy "due process" are not fixed but rather can and do vary with the circumstances. Perhaps it is true, therefore, as the Supreme Court held in Rasul, that the only "process" that is "due" to "enemy combatants" is an opportunity to contest the factual basis of their classification. In the case of citizens, however, the Due Process Clause is supplemented by the Detention Act, which was passed by Congress in 1950 in reaction to the internment of Japanese-American citizens during World War II. That Act provides that "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."

The government argued both in Hamdi and Hanft that the Detention Act applies only to civilian detentions, not to military detentions ordered by the President in his conduct of a war. The Supreme Court side-stepped this argument, holding that, even if "an Act of Congress" was required, the AUMF provided that Act, at least under the circumstances presented by the Hamdi case.

But, the AUMF does not speak explicitly about detention at all. It provides, simply, that the President is authorized to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the [9/11] terrorist attacks" or "harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Nevertheless, the Supreme Court held that explicit authorization was not required:

The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. . . . We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.

The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin, 317 U. S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. . . .

In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

But, if that is the case, how is Padilla different from Hamdi? The premise of the Hamdi decision was that the United States was at war with Afghanistan and more broadly with Al Queda. If Padilla, acting as an agent or supporter of Al Queda, was plotting to commit a terrorist act (as Judge Floyd was required to assume for purposes of ruling in the motion for summary judgment), then how can the government's interests in his detention be any less (or any less authorized by the AUMF) that they were in the case of Hamdi? The fact that Hamdi was captured abroad while Padilla was captured here hardly seems to be a principled reason for different treatment. Suppose Padilla had been a part of a guerilla force invading the United States? In short, I have to agree with the government that the issue of where an "enemy combatant" is captured is a meaningless distinction, especially in reference to deciding what was and was not authorized by the AUMF.

Yet, at an intuitive level, Judge Floyd's decision seems unassailable. And, if Judge Floyd is right, yet Padilla cannot distinguished in any meaningful way from Hamdi, then perhaps it is the Supreme Court's decision in Hamdi that deserves to be questioned.

It seems to me that Justice Scalia, in his Hamdi dissent, may actually have the "right" answer. Yes, the exigencies of a battlefield do allow military commanders to detain people opposing them for some period of time. But, within a fairly short period of time, those authorities have to process these detainees into two categories: non-citizens and citizens. Non-citizens captured on a battlefield can be detained for the duration of the conflict so as to prevent them from returning to the battlefield, but must be released as soon as the conflict ends. Citizens, by contrast, must either be released or charged with a crime regardless of whether the conflict is ongoing.

But what crime could Padilla and Hamdi be charged with. In Padilla's case, if the government's contentions are true and provable, the potential criminal charges are probably myriad: conspiracy to commit murder being only the most obvious. But what about Hamdi. He was, arguably, "just a soldier" captured on a battlefield, no more guilty of a crime than any of the POWs captured by the US in WWII. As Scalia suggests, though, his citizenship makes all of the difference. If he truly was an enemy combatant, actively engaged in fighting US forces on a foreign battlefield, is he not, in fact, guilty of treason? This is Scalia's point when he writes:

Justice O'Connor, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained until the cessation of hostilities and then released. Ante, at 10-11. That is probably an accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process.

Citizenship, in short, is a two-edged sword. One edge cuts against the government, limiting the government's incarceration power (primarily) to cases where the citizen is charged with, tired within a reasonable time for, and convicted of a crime. The other edge, however, cuts against the citizen, imposing upon him obligations not imposed on aliens. Principal among these, of course, is to refrain from taking up arms against his country and/or aiding an abetting an enemy with which his country is at war.

The difficulty with this is that the government, despite being convinced that the citizen is planning to commit a terrorist act or has been actively engaged in aiding and abetting an enemy in a time of war, may not be able prove that fact with sufficient certainty to secure a criminal conviction, either because the evidence does not reach the "beyond a reasonable doubt" standard or because the government can not reveal the evidence without creating other, perhaps even more serious, dangers. In this case, an actual terrorist could well go free.

As this last point illustrates, these cases present a conflict of values. What do we value more, security or due process and the presumption of innocence. I, at least, come down in favor of the former. I would prefer to accept the risk that an actual terrorist will go free than to deny to a citizen accused of terrorism the due process rights to which, as a citizen, he is entitled.