SEATTLE UNIVERSITY LAW REVIEWVolume 26, No. 3WINTER 2003
Stacking the Deck against Suspected Terrorists: The Dwindling Procedural Limits on the Government's Power to Indefinitely Detain United States Citizens as Enemy Combatants
Nickolas A. Kacprowski(fn*)
I. INTRODUCTION
Jose Padilla is an American citizen.(fn1) The United States government took Padilla into custody on American soil in May 2002, and it has classified him as an enemy combatant, asserting that it can detain him indefinitely without charging him with any crime.(fn2) Yaser Hamdi is also an American citizen who has been detained since Fall 2001, has been classified as an enemy combatant, and has yet to be charged with a crime.(fn3) In Padilla v. Bush (fn4), the District Court for the Southern District of New York, like the Hamdi court, decided that because of the present war on terrorism, the government had the authority to classify citizens as enemy combatants. However, unlike the Hamdi court, the Padilla court ruled that, despite the government's classification of Padilla as an enemy combatant, he should be given access to an attorney in the prosecution of his habeas corpus petition and that the court would then review the charges and evidence and decide whether the government properly classified Padilla as an enemy combatant.(fn5) Both the Padilla (fn6) and the Hamdi (fn7) courts applied a Supreme Court case from World War II, Ex Parte Quirin,(fn8) to justify detention of both citizens as enemy combatants.
Because the law of war is so unclear, alleged enemy combatants are at a tremendous disadvantage with respect to the government if they do not have counsel to challenge their classification as enemy combatants through habeas petitions. The government can only classify someone as an enemy combatant if the person is accused of violating the law of war. However, the law of war is not easy thing to define. It is codified nowhere, and even the Quirin Court admitted that it is an amalgamation of military common law and international law.(fn9) Not only is the law unclear, but the question of whether a charge makes out a violation of the law of war involves an extremely fact intensive inquiry. To classify someone as an enemy combatant, the government must charge someone with violating the law of war, but it need not prove those charges. Judicial review into enemy combatant classification involves looking at the charges and seeing if under the facts alleged against the accused, it amounts to a violation of the law of war. This process is so unclear that scholars are in spirited disagreement over what type of charge in the context of the war against terrorism would be a violation of the law of war. Scholars do not even seem to be able to agree on whether the September 11 hijackers violated the law of war.(fn10)
This Note examines Padilla v. Bush as an example of the contemporary application of enemy combatant law. This Note argues that in present and future applications of enemy combatant law, courts should treat Padilla as the preferred model of application because Padilla preserves more Constitutional protections, specifically the right to counsel in bringing a habeas petition, than do Hamdi or Quirin. The Padilla decision is preferable to Hamdi because Padilla restricts the movement of enemy combatant law away from the express criminal protections of the Constitution. In contrast, Hamdi greatly accelerates such movement.
This Note makes two sub-arguments. First, the Hamdi and Padilla courts improperly relied on Quirin, because, like its contemporary case, Korematsu v. United States,(fn11) Quirin is a decision that drastically departs from express constitutional mandates and should no longer be considered good law. Second, even if Quirin is still good law, the Padilla court improperly relied upon it because the social and political context in which Quirin was decided is markedly different from the current social and political atmosphere.
The sub-argument that Quirin is bad law is a crucial step to the argument of this Note that Padilla is preferable to Hamdi as an application of enemy combatant law. It appears that Quirin is still technically good law, and the Supreme Court is unlikely to overturn it anytime soon. If lower courts feel compelled to apply Quirin, the courts should narrow its scope. For this reason, the Padilla decision is a better application of the law than the Hamdi decision.
Further, this Note argues that the Hamdi court undertook a large and unwarranted expansion of enemy combatant law as stated in Quirin. The constitutional implications of this expansion are tremendous. When a court approves the Executive's classification of an individual as an enemy combatant, the affirmation has a huge impact on the individual's constitutional criminal procedure rights: it nullifies all of them. Thus, an expansion of the Executive's power in this area is potentially quite dangerous to a citizen's rights, and the Hamdi court was imprudent in expanding the Executive's power to unilaterally revoke a citizen's constitutional rights.(fn12) The Hamdi court held that an accused enemy combatant does not have a presumptive right to representation by counsel when arguing through a habeas corpus petition that the charges against him are unwarranted. Essentially, he is an enemy combatant by nature of the Executive's classification until he proves himself otherwise, and without the assistance of counsel.
This Note argues that the approach of the Padilla court should be favored over that of the Hamdi court, as Padilla is much more protective of constitutional rights of accused enemy combatants. First, unlike Hamdi, Padilla recognized that persons classified as enemy combatants have a presumptive right to counsel in challenging the classification through a habeas corpus petition. Second, like Hamdi, the Padilla decision expanded the holding of Quirin; however, it did so in a way that provides more protection for suspected enemy combatants.(fn13)
The Note will briefly discuss the scope of the court's review of an alleged enemy combatant's habeas petition and whether the review should be limited to the legal sufficiency of the charges of violating the law of war or be extended to also reviewing the facts supporting the charges.
Section II provides the necessary background to explore enemy combatant law, including the Executive's power in times of war, and the right of an accused enemy combatant to counsel. Section II also summarizes Padilla in detail and discusses the related Hamdi and Quirin cases, in addition to other cases relevant to this discussion. Section III argues that Padilla represents the preferred application of enemy combatant law in contemporary cases. Subsection A discusses both why Quirin is a bad decision and should no longer be considered good law, and why even if it is technically good law, it is inapplicable to the war against terror. Subsections B and C contain the main argument of this Note: even assuming Quirin is good law and applicable to the war against terrorism, the Hamdi court still expanded its holding to the further detriment of a citizen's Fifth and Sixth Amendment protections, and the Padilla court expanded Quirin's holding in the opposite direction. The Padilla approach is preferable because it limits the scope of enemy combatant law's departure from constitutional procedural protections as allowed in Quirin. Section IV presents concluding remarks.
II. Background
A. Enemy Combatant Law
The law regarding the enemy combatant issue is underdeveloped. Furthermore, enemy combatant law has no explicit statutory or Constitutional foundation; it is derived exclusively from case law, and primarily from Quirin. Enemy combatant law is relevant only in times of war, or soon thereafter, and nearly every precedent where a court has addressed the issue prior to Hamdi II involves a situation in which the government has tried a person in front of a military tribunal and deprived him of his Fifth Amendment right to trial by jury and other procedural rights. The Quirin decision presents the only time a court has discussed in depth what an American citizen must be charged with doing and under what circumstances to be charged as an enemy combatant. Because Quirin is crucial precedent for this issue, this subsection will begin with a detailed examination of that case. The subsection will also discuss The Prize Cases, the other precedent the Hamdi II court cited on the enemy combatant issue. It will also discuss Ex Parte Milligan,(fn14) a major precedent the Padilla court cited, and other major precedents that are not mentioned by either court, but that are in line with the enemy combatant issue. These cases are In re Yamashita,(fn15) and the recent Eastern District of Virginia case involving the other "American Taliban," United States v. Lindh. (fn16) This subsection will also discuss the famous Korematsu (fn17) case from the World War II era.
B. Primary Cases
1. Ex Parte Quirin
In Ex Parte Quirin, the Supreme Court unanimously held that whether or not a person is properly charged with being an enemy combatant depends on whether or not he or she is charged with violating the "law of war," as recognized in treaties and the common law of nations.(fn18). The Court also held that a United States citizen could be charged as an...
