President Bush claims the power, as Commander in Chief of the Armed Forces, to determine that any person, including an American citizen, who is suspected of being a member, agent, or associate of Al Qaeda, the Taliban, or possibly any other terrorist organization, is an "enemy combatant" who can be detained in U.S. military custody until hostilities end, pursuant to the international law of war (Dworkin 2002). Attorney General John Ashcroft has taken the view that the authority to detain "enemy combatants" belongs to the president alone, and that any interference in that authority by Congress would thus be unconstitutional (U.S. Senate 2002). Even if congressional authority were necessary, the government argues, such permission can be found in the Authorization to Use Force (AUF; Pub. L. No. 107-40, 115 Stat. 224 ). So far, the courts have agreed that Congress has authorized the detention of "enemy combatants."
The definition of "enemy combatant," (1) however, appears to be much broader than that which has historically applied during armed conflict, and, as applied in the particular case of suspected "dirty bomber" Jose Padilla, appears to be without precedent. The detention of Yaser Hamdi seems to be more defensible in terms of the law of war, because he was allegedly captured during combat, yet he is not being held as a prisoner of war. Both men are held incommunicado in the custody of the military, neither has been charged with a crime, and the government is seeking to deny them access to counsel, saying that enemy combatants have no right to counsel, and that allowing such access would interfere with wartime intelligence efforts.
Traditionally, the only persons treated as enemy combatants were those captured during actual battle, with the exception of the German saboteurs who landed on U.S. beaches from military submarines. (2) "Fifth columnists," or those agents of the enemy who infiltrate the domestic territory of a belligerent to commit acts of sabotage or terror in furtherance of the enemy's war efforts, have been arrested and tried as criminals in civil courts, or, if the accused were members of the enemy's armed forces, tried for violation of the law of war in military court. Citizens from enemy foreign countries who were thought to present a danger, but who could not be charged with a crime have been interned as enemy aliens under the Alien Enemy Act, 50 U.S.C. [subsection] 21 et seq., even if they were bona fide members of the armed forces of an enemy state. (3) The only other circumstances in which courts have explicitly upheld the preventive detention of citizens for security reasons, without charge or any kind of hearing, have involved instances of martial law (Moyer v. Peabody, 212 U.S. 78 ; Zimmerman v. United States 132 F.2d 442 [9th Cir. 1943]).
The distinction between enemy aliens and enemy combatants may prove critical. Whereas Congress has traditionally declined to regulate the conduct of the military in its treatment of prisoners taken during battle, Congress has taken a more active role regarding the treatment of enemy aliens, setting down a more precise definition for who may be treated as such and under what conditions. Under the Alien Enemy Act, 50 U.S.C. [subsection] 21 et seq., alien enemies include "all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized." This designation is further limited to times of declared war or presidentially proclaimed "predatory invasion," and the statute broadly prescribes the types of restrictions the president may place, by proclamation, on alien enemies, including possible detention and deportation, and the denial of access to U.S. courts. Where U.S. citizens not subject to treatment as prisoners of war have been interned as possible threats to the national security, additional statutory authority to at least ratify the presidentially claimed power to intern them was crucial if the detentions were to be validated by the courts, and even then it appears that due process considerations played a role.
The Department of Justice cites primarily two cases to support its contention that the Constitution permits the detention without criminal charge of American citizens under certain circumstances (U.S. Department of Justice 2002). The government argues that the 1942 Supreme Court decision in Ex parte Quirin, 317 U.S. 1, 26-28 (1942; the German saboteurs case), and the 9th Circuit case In re Territo, 156 F.2d 142 (9th Cir. 1946), read together, permit the government to hold American citizens as "enemy combatants" without trial, regardless of their membership in any legitimate military organization. In light of the administration's assertion that the current detentions are supported by the law of war and U.S. precedent, it may be helpful to evaluate the claim in the historical context of preventive detention of enemies during war or national emergency. This article seeks to provide such context.
The Law of War and Detention of Enemies
The law of war divides persons in the midst of an armed conflict into two broad categories: combatants and civilians (Fleck 1995, 65). This fundamental distinction determines the international legal status of persons participating in or affected by combat, and determines the legal protections afforded to such persons, as well as the legal consequences of their conduct. Combatants are those persons who are authorized by international law to fight in accordance with the law of war on behalf of a party to the conflict (ibid., 67; McCoubrey 1998, 133-34). Civilians are not authorized to fight, but are protected from deliberate targeting by combatants as long as they do not take up arms (Detter 2000, 285-88). In order to protect civilians, the law of war requires combatants to conduct military operations in a manner designed to minimize civilian casualties and to limit the amount of damage and suffering to that which can be justified by military necessity (Pictet 1975, 31). To limit exposure of civilians to military attacks, combatants are required, as a general rule, to distinguish themselves from civilians (Detter 2000, 135). Combatants who fail to do so run the risk of being denied the privilege to be treated as prisoners of war if captured by the enemy (Baxter 1951, 343).
The treatment of all persons who fall into the hands of the enemy during an international armed conflict depends upon the status of the person as determined under the four Geneva Conventions of 1949 for the protection of victims of war. Under these conventions, parties to an armed conflict have the right to capture and intern enemy soldiers, (4) as well as civilians who pose a danger to the security of the state, (5) at least for the duration of hostilities (GPW art. 118). The right to detain enemy combatants is not based on the supposition that the prisoner is "guilty" as an enemy for any crimes against the Detaining Power, either as an individual or as an agent of the opposing state (Pictet 1975, 46). POWs are detained for security purposes, to remove those soldiers as a threat from the battlefield. The law of war encourages capture and detention of enemy combatants as a more humane alternative to accomplishing the same purpose by wounding or killing them (Oppenheim 1952, 338).
The internment of enemy civilians is based on a similar rationale, although the law of war does not permit them to be treated as lawful military targets (FM 27-10, para. 25). As citizens of an enemy country, they may be presumed to owe allegiance to the enemy. The law of war traditionally allowed for their internment and the confiscation of their property, not because they are suspected of having committed a crime or even of harboring ill will toward the host or occupying power; but rather, to prevent their acting on behalf of the enemy and to deprive the enemy of resources it might use in its war efforts.
Thus, the law of war permits belligerents to seize the bodies and property of enemy aliens (Brown v. United States, 12 U.S. [8 Cranch] 110, 121 ). The Constitution explicitly gives to Congress the power to make rules concerning captures on land and water (Art. I, [section] 8, cl. 11). This power has long been used to support Congress's authority to regulate the capture and disposition of prizes of war, as well as confiscation of property belonging to enemy aliens. Congress has delegated to the president the authority, during a declared war or by proclamation, to provide for the restriction, internment, or removal of enemy aliens deemed dangerous (50 U.S.C. [section] 21). The Supreme Court has upheld internment programs promulgated pursuant to this statute (Ludecke v. Watkins, 335 U.S. 160 ). This form of detention, like the detention of POWs, is administrative rather than punitive, and thus no criminal trial is required.
U.S. Practice: Treatment of Enemies in War
The following sections provide a background to show how, during past conflicts, the United States has treated enemy persons who are found on the territory of the United States. It is beyond the scope of this article to provide an analysis of the U.S. treatment of enemy soldiers captured on the battlefield. These soldiers generally have been treated by the military according to its interpretation of the law of war (e.g., FM 27-10), with little guidance from Congress. (This is not to say that Congress is without the power to legislate with regard to the treatment of prisoners of war, but only that it has not done so in the past). Although there are some cases prior to the Civil War that dealt with the detention of individuals based on the claim that their freedom posed a danger to the national security, this article presumes that the seminal case Ex Parte Milligan either incorporates or overrules the prior practice.
The Civil War
At the outset of the...