Wartime detention of enemy combatants: what if there were a war and no one could be detained without an attorney?

• Author: Hemingway, Thomas L.

1. BACKGROUND

   On September 11, 2001, two aircraft hijacked by members of al Qaeda slammed into the World Trade Center in New York City. A third hijacked airliner hit the Pentagon, and a fourth plunged into a field in Pennsylvania after passengers attempted to regain control of the aircraft. Nearly 3000 innocent civilians were killed.

   In the wake of this unprecedented attack, Congress reacted swiftly and issued the "Joint Resolution to Authorize the Use of United States Armed Forces Against Those Responsible for the Recent Attacks Launched Against the United States" (hereinafter AUMF) on September 18, 2001. (1) This resolution states, in part, 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 terrorist attacks that occurred on September 11, 2001." (2) Soon after this resolution, U.S. and coalition forces commenced operations in Afghanistan against Taliban and al Qaeda forces, fighting non-traditional enemies in a decidedly new kind of war. Unlike in past wars, these enemies were not state actors, nor did they abide by the rules traditionally followed in war by combatants. This new kind of war also required a new approach to enemies captured and those who committed violations of the law of war.

   President Bush responded to this new paradigm by issuing a Presidential Military Order in November 2001 authorizing the Department of Defense to establish military commissions to bring to justice those non-citizen members of al Qaeda and other terrorist organizations that threaten the security of America and its allies. (3) This Presidential Military Order marked the first time since World War II that the President authorized military commissions to try enemy combatants for violations of the law of war. (4) The Presidential Military Order, [section] 2, defined those subject to the order as:

   [A]ny individual who is not a United States citizen with respect to whom [the President] determine(s) from time to time in writing that: (1) there is reason to believe that such individual, at the relevant times, (i) is or was a member of the organization known as al Qaeda; (ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or (iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and (2) it is in the interest of the United States that such individual be subject to this order. (5) Separate from the Order establishing Military Commissions, the administration embarked on a policy affecting the detention of certain enemy combatants. The AUMF authorized the President to detain enemy combatants engaged in hostilities against America. An "enemy combatant" is defined as:

   [A]n individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces. (6) The Department of Defense chose to detain at Guantanamo Bay, Cuba, (GTMO) some of these captured belligerents, not as criminals, but to prevent them from rejoining hostilities. Currently, over 500 enemy combatants are detained by the Department of Defense at GTMO. (7) The President has determined that a small subset of these detainees will face trial by Military Commissions for violations of the laws of war, a distinct set of offenses separate from traditional civilian offenses. (8)

   Not surprisingly, enemy combatant detainees, through friends of court, soon filed petitions for writ of habeas corpus in federal court to review the legality of their detention as enemy combatants. (9) Petitioners challenged their detentions with claims that they were not combatants and had not committed any offenses against the laws of war. They challenged the failure of the United States to charge them with any offense and to provide them with access to counsel and the courts. (10) The petitioners ran the gamut from U.S. citizens and non-citizens detained in the United States and GTMO, to non-citizens detained in Afghanistan and elsewhere.

   The Supreme Court first weighed in on detainee-related issues stemming from the current war in Hamdi v. Rumsfeld. The Court in Hamdi addressed the question of whether U.S. citizens, as enemy combatants, could be detained by the United States, holding that U.S. citizens could be held as enemy combatants, but were entitled as a matter of right to a hearing that provided some minimal procedural rights as guaranteed by the Constitution. (11) Specifically, a detained enemy combatant who is a U.S. citizen is entitled to "notice of the factual basis for his classification, and a fair opportunity to rebut the government's factual assertions before a neutral decision maker." (12)

   The Supreme Court then considered the ability to detain non-citizen enemy combatants in Rasul v. Bush. There, the court held that non-citizen enemy combatants could be detained until the end of hostilities. Rejecting claims by the government that detainees held at GTMO were not in U.S. territory and thus could not seek habeas relief, the Court held that detainees were entitled to seek a review of their detention under the federal habeas statute, 28 U.S.C. [section] 2241. (13) The Court did not examine whether non-citizen detainees were entitled to constitutional protections and did not discuss hearing rights of non-citizen detainees.

   In response to the Supreme Court decision in Hamdi, the Deputy Secretary of Defense ordered the establishment of tribunals to determine the status of enemy combatants detained at GTMO. (14) On July 29, 2004, the Secretary of the Navy implemented the Deputy Secretary's Order by promulgating "Implementation of Combatant Status Review Procedures for Enemy Combatants at Guantanamo Bay, Cuba," (15) as well as tribunals (Combatant Status Review Tribunals, or CSRTs) to "determine ... whether the individuals detained by the Department of Defense at the U.S. Naval Base Guantanamo Bay, Cuba, are properly classified as enemy combatants." (16)

   As a result of the Directive's implementation, all Department of Defense detainees presently at GTMO have been afforded an opportunity to challenge their status as enemy combatants before CSRTs. (17) Since implementation of the CSRT procedures, detainees have challenged their detention by writ of habeas corpus petitions filed in federal court. The response by the courts who have addressed these challenges to the CSRT processes reflects a fundamental misunderstanding of the nature and purpose of enemy detentions in the Global War on Terror and a tortured application of criminal law concepts to fundamentally humanitarian and law of war issues. Two decisions rendered by the U.S. District Court for the District of Columbia, and a decision rendered by the Unites States District Court for South Carolina, addressing the detention of enemy combatants underscore the difficulty of federal courts in addressing issues involving wartime enemy detainees. (18)

   In the case of In re Guantanamo Detainee Cases, the U.S. District Court for the District of Columbia held that the Due Process requirements of the Fifth Amendment are applicable to all wartime detainees at GTMO and that the CSRT processes fail to meet these Constitutional requirements because wartime detainees are not provided counsel or limited access to classified materials. (19) A different judge from the same District Court reached the opposite result in Khalid, et al. v. Bush, holding that non-resident aliens captured and detained pursuant to the AUMF "have no viable constitutional basis to seek a writ of habeas corpus." (20) In addition to these rulings, the District Court for South Carolina reviewed the case of a U.S. citizen captured on U.S. soil and designated an "enemy combatant" by the President. That Court held in Padilla v. Hanfi that the petitioner could not be detained unless criminal charges were brought against him. (21)

   These District Court decisions, coupled with the perceived ambiguity of the Supreme Court decisions, are currently fueling the wartime detainee habeas petitions of unprecedented number and scope. At the present time, over two hundred detainees at GTMO have filed petitions for writ of habeas corpus challenging their detention.

   The courts, by merging law of war concepts with those of criminal law enforcement, have inadvertently opened a Pandora's Box of endless litigation in the U.S. courts by those who are our enemies during a time of war and whom we have detained to protect ourselves and our country. The law of war is a unique body of law formerly left within the discretion of the military and the President as Commander-in-Chief, subject to Congressional oversight. The law of war is unlike criminal law and the "law enforcement" methods employed to enforce that criminal law. The courts appear to have defaulted to a law enforcement paradigm to determine whether detention of enemy combatants is lawful--focusing on rights to counsel, access to information, a right to be heard and to rebut findings. These are rights afforded to those who are held pending criminal charges. Wartime enemy detainees at GTMO are not held on the basis of possible or pending criminal charges. Wartime enemy detainees are held to remove them from hostilities and to ensure that they do not return to fight against America by targeting innocent civilians. The courts, by focusing on criminal law concepts, requirements, and rights, have demanded far more of the military to justify the detention of wartime enemy...