A small problem of precedent: 18 U.S.C. § 4001(a) and the detention of U.S. citizen "enemy combatants".

• Author: Vladeck, Stephen I.

In 1971, Congress repealed the Emergency Detention Act, part of the Internal Security Act of 1950, (1) by writing into 18 U.S.C. [section] 4001(a) the provision that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." (2) Enacted amid mounting public pressure during the Vietnam War, [section] 4001(a) sought to "restrict the ... detention of citizens of the United States to situations in which statutory authority for their incarceration exists." (3) At the time, it represented a legislative response to the outrage over the executive internment of Japanese Americans during World War II, detentions carried out pursuant only to a presidential order. (4) Today, [section] 4001(a) represents a bar to the Bush Administration's current policy of detaining U.S. citizens as "enemy combatants," absent congressional authorization, without charges and without access to counsel or the courts. (5)

This Comment analyzes that policy in light of the current force of [section] 4001(a) and Howe v. Smith, the 1981 Supreme Court decision that embraced an expansive reading of the antidetention statute. (6) Since, under Howe, [section] 4001(a) applies to all U.S. citizens regardless of "enemy combatant" status, (7) the only remaining issue is whether Congress authorized the detentions in question. After tracing the history of [section] 4001(a), this Comment evaluates, and finds inadequate, the Administration's various justifications for the detention of U.S. citizens as "enemy combatants." The analysis concludes that, in the absence of clear congressional authorization, the detention policy not only violates [section] 4001(a) but also shows complete disregard for the deeper purpose behind this provision's enactment and the fundamental separation of powers principles manifested therein.

I

In the twenty-one years it was on the books, the Emergency Detention Act was never invoked to detain U.S. citizens without charges. Nevertheless, as the House Judiciary Committee noted, "[a]lthough no President has ever used or attempted to use these provisions, the mere continued existence of the Emergency Detention Act has aroused much concern among American citizens, lest the Detention Act become an instrumentality for apprehending and detaining citizens who hold unpopular beliefs and views." (8) The legislative history demonstrates that the Committee was concerned that mere repeal of the Detention Act would send an ambiguous message about presidential power. Hence, the Report continued, "it is not enough merely to repeal the Detention Act.... Repeal alone might leave citizens subject to arbitrary executive action, with no clear demarcation of the limits of executive authority." (9) Thus, the 1971 Act added [section] 4001(a), with the clear understanding that "imprisonment or other detention of citizens should be limited to situations in which a statutory authorization, an Act of Congress, exists." (10)

The Supreme Court affirmed such a broad reading in the only case it has considered involving a [section] 4001 (a) claim, upholding, in Howe v. Smith, a transfer of state prisoners to federal custody. (11) At issue was whether the transfer under 18 U.S.C. [section] 5003(a)--which authorizes the Attorney General to contract with states for the detention of state inmates in federal prisons--was authorized in circumstances other than those where there was a need for specialized treatment available only in the federal system. (12) Howe argued that, as a state prisoner, his detention was not authorized by Congress, and [section] 4001(a) thus precluded his transfer. The Court disagreed. Relying on the legislative history of [section] 5003(a), along with the construction adopted by the Bureau of Prisons, the Court affirmed the legality of the practice, finding that [section] 5003(a) was sufficiently explicit congressional authorization for Howe's transfer to satisfy the demands of [section] 4001(a). (13)

The most important pronouncement in Howe, however, came as dicta in a footnote. The government had initially claimed that Howe, as a state prisoner, lacked standing because he was not a federal prisoner; he was merely serving his sentence in a federal prison. Chief Justice Burger, writing for the Court, disagreed:

This argument ... fails to give adequate weight to the plain language of [section] 4001(a) proscribing detention of any kind by the United States, absent a congressional grant of authority to detain. If the petitioner is correct that neither [section] 5003 nor any other Act of Congress authorizes his detention by federal authorities, his detention would be illegal. (14) Thus, the Court set an unequivocal standard for [section] 4001(a): It applies to any federal detention of a U.S. citizen, and such detentions are manifestly illegal if not legislatively authorized.

II

In the aftermath of the terrorist attacks of September 11, 2001, the policy of detaining U.S. citizens without access to counsel or the courts as "enemy combatants" has brought a renewed focus on [section] 4001(a), (15) along with arguments from the government for why it does not apply, or, if it does, why Howe's requirements are fulfilled.

In particular, as of this writing, the Administration has pursued that policy with regard to two U.S. citizens: Yasser Esam Hamdi, who was transferred to U.S. custody from the Northern Alliance in Afghanistan in the fall of 2001, (16) and Jose Padilla, the so-called "dirty bomber," who was arrested on a material witness warrant outside Chicago's O'Hare International Airport on May 8, 2002. (17) Hamdi was subsequently transferred to Camp X-Ray--the temporary detention facility for noncitizens at...