Indefinite detention after Boumediene: judicial trailblazing in uncharted and unfamiliar territory.

• Author: Sparrow, Tyler L.

"[A]s critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat." (1)

1. Introduction

   The United States holds due process of law as one of its most cherished and revered constitutional protections. (2) The national reverence for due process, however, has not been evident over the past seven years during which hundreds of people have been detained without charges at Guantanamo Bay Naval Base (Guantanamo Bay) as threats to national security. (3) abdulrahim abdul razak al Ginco was a college student in the United arab emirates when he fled his strict Muslim father for Afghanistan in 2001. (4) After a brief association with the Taliban and/or Al Qaeda, Taliban soldiers brutally tortured Al Ginco until he falsely confessed to being a spy, and imprisoned him in the infamous Sarpusa prison in Kandahar. (5) When a reporter acquiesced to Al Ginco's pleadings and alerted the newly arrived U.S. forces to his presence, Al Ginco was not liberated, but rather sent to Guantanamo Bay as an enemy combatant. (6) Al Ginco spent the next seven years enduring sleep deprivation, stress positions, snarling dogs, and separation from his family, all while never formally charged with any crime. (7)

   Hundreds of "unlawful enemy combatants"--those who the United States deems a threat to national security--have been, and continue to be, imprisoned at Guantanamo Bay. (8) American forces captured some detainees on the battlefields of Afghanistan or iraq, but many were simply plucked from their lives, often based on tenuous evidence of wrongdoing. (9) There has been enormous debate both at home and abroad about the legality of the United States's detention of these individuals, with critics claiming this practice runs afoul of due process, one of our nation's most fundamental protections. (10)

   There are several key pieces of legislation the Bush Administration, and later the Obama Administration, have relied upon for legal justification of the indefinite detention of those they deem to be a threat to national security. (11) The Bush Administration relied, in large part, on the President's Article II powers as Commander-in-Chief, pursuant to the Authorization for Use of Military Force (AUMF), as well as the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA), in authorizing detention. (12) The obama Administration has moved away from this legal justification for detention, and instead states detention is justified solely on the power the AUMF grants the President. (13) The AUMF is a broad grant of power given to the President in the wake of the terrorist attacks of September 11, 2001, authorizing the use of military force against "those responsible for the ... attacks launched against the United States." (14) Perhaps responding to intense debate regarding the proper definition of "unlawful enemy combatant," the Obama Administration abandoned the term as a basis for detention.15 After the Obama Administration dropped the term "unlawful enemy combatant" as a justification for detention, there were significant debates about whether the term was a useful framework outside the realm of detention justification. (16) Nevertheless, the power of the U.S. government to indefinitely detain was dealt its most severe blow when the Supreme Court ruled in Boumediene v. Bush (17) that detainees being held at Guantanamo Bay were entitled to challenge their detention by filing for the writ of habeas corpus in the federal courts. (18)

   In the wake of Boumediene, there has been a flood of litigation in which detainees seek the writ of habeas corpus challenging their detention as unlawful. (19) As of this writing, there have been roughly thirteen detainees released, while at least sixteen others who were granted the writ of habeas corpus remain confined in a state of limbo at Guantanamo Bay. (20) With no clear guidance on how to proceed with these novel issues, the judges of the United States District Court for the District of Columbia have had the difficult task of determining which of the petitioning detainees are lawfully detained, and which have been put through an excruciating ordeal without legal justification. (21) Part II.A of this Note will discuss the historical precedent for the detention of enemy combatants, the writ of habeas corpus, and issues implicating separation of powers during times of national and international crisis. (22) Part II.B will explore the evolution of legislation dealing with detention of enemy combatants from World War II to the present, focusing on how such legislation has come to pass, and its utilization by the executive branch. (23) Part II.C will then examine how the Supreme Court granted detainees the ability to challenge their detention, and how that ability affects habeas corpus litigation in the federal courts. (24) Part II.D will examine the importance of the Al Ginco decision and its implications on detainee habeas corpus litigation. (25) Finally, Part III of this Note will call for legislation that may serve to unify the courts in their consideration of detainee habeas corpus actions, maintain the correct separation of powers throughout the three branches of the U.S. government, and ensure that no one is indefinitely detained without clear legal justification. (26)

2. HISTORY

   In early 2002, the first detainees from the War on Terror arrived in Guantanamo Bay. (27) The United States did not inform the men of their alleged crimes, permit them access to counsel, or allow them to inform their families of their whereabouts. (28) Within a month of the detainees' arrival at Guantanamo Bay, and without their knowledge, a group of lawyers filed the first Guantanamo detainee habeas corpus action on their behalf. (29) This section will explore the evolution of the case law dealing with preventative detention, as well as the legislation that purports to justify detention. (30)

   1. Early Preventative Detention Case Law

      American history is replete with instances of people challenging their detention as illegal. (31) The most notable challenges to detention have come in the wake of major wars, when the U.S. government detained many people, including American citizens, without formal civilian criminal charges. (32) This body of case law sets the broad framework for habeas corpus actions brought by Guantanamo detainees today. (33) This Note will illustrate, however, that these cases did not fully prepare the federal judiciary for the difficult legal questions presented by this new breed of habeas actions. (34)

      The first major case to consider military detention in the absence of civilian criminal charges was the 1866 case of Ex parte Milligan (35) In 1864, authorities arrested Lamdin Milligan at his Indiana home and tried him before a military commission, which charged him with and convicted him of conspiracy against the U.S. government, affording aid and comfort to rebels against the authority of the United States, inciting insurrection, disloyal practices, and violations of the laws of war. (36) On appeal, the Supreme Court held Milligan's trial and conviction by a military commission illegal because the federal courts of Indiana were still in operation. (37) The Court explained that while the Constitution authorizes Congress to suspend the writ of habeas corpus, the suspension power is a limited one. (38) Congress is not authorized to suspend the writ of habeas corpus "unless when in Cases of Rebellion or Invasion the public Safety may require it." (39) Nevertheless, the Court held President Lincoln's suspension of the writ during the Civil War unconstitutional, despite what many would classify as a Southern "rebellion." (40)

      Although Milligan is different from the modern detainee habeas corpus actions in a number of ways, it is historically significant for considering the extent of military jurisdiction during a suspension of habeas corpus. (41) More importantly, Milligan limits the ability of the executive branch to charge civilians outside the control of the judiciary even when habeas corpus has been suspended pursuant to the Suspension Clause. (42)

      In 1942, the United States captured eight German conspirators attempting to invade the United States and destroy military targets. (43) Ex parte Quirin presented the Supreme Court with a new and difficult question regarding habeas corpus. (44) The Supreme Court considered whether President Roosevelt exceeded his authority as commander-in-chief when ordering a military commission to try the petitioners. (45) The Court held that Congress, under the Articles of War, authorized the president to order the trial of unlawful enemy combatants by military commission. (46) Quirin successfully illustrates separation of powers during wartime: Congress passed legislation granting the Executive power to detain, and the Judiciary subsequently validated it as constitutional. (47)

      Perhaps the most important case affecting modern detainee habeas corpus actions is Johnson v. Eisentrager. (48) Eisentrager and twenty other German nationals were captured in China and tried there by a U.S. military commission for violating the laws of war by continuing military operations against the United States after the unconditional surrender of Germany in WWII. (49) The Court, in a six-to-three opinion, held non-resident enemy aliens did not enjoy access to the courts of the United States during wartime, and thus petitioners had no right to seek the writ of habeas corpus in U.S. courts. (50) The Court reasoned that it is an alien's presence within the territorial jurisdiction of the United States that gives the Judiciary authority to act. (51) Eisentrager later...