Detention of American Citizens as Enemy Combatants

CRS Report for Congress
Detention of American Citizens
as Enemy Combatants
Updated March 31, 2005
Jennifer K. Elsea
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Detention of American Citizens as Enemy Combatants
The Supreme Court in 2004 issued three decisions related to the detention of
“enemy combatants,” including two that deal with U.S. citizens in military custody
on American soil. In Hamdi v. Rumsfeld, a plurality held that a U.S. citizen allegedly
captured during combat in Afghanistan and incarcerated at a Navy brig in South
Carolina is entitled to notice and an opportunity to be heard by a neutral decision-
maker regarding the government’s reasons for detaining him. The Court in Rumsfeld
v. Padilla overturned a lower court’s grant of habeas corpus to another U.S. citizen
in military custody in South Carolina on jurisdictional grounds. The decisions affirm
the President’s powers to detain “enemy combatants,”including those who are U.S.
citizens, as part of the necessary force authorized by Congress after the terrorist
attacks of September 11, 2001. However the Court appears to have limited the scope
of individuals who may be treated as enemy combatants pursuant to that authority,
and clarified that such detainees have some due process rights under the U.S.
Constitution. This report, which will be updated as necessary, analyzes the authority
to detain American citizens who are suspected of being members, agents, or
associates of Al Qaeda, the Taliban and possibly other terrorist organizations as
“enemy combatants.”
The Department of Justice argues that the recent decisions, coupled with two
World War II era cases, Ex parte Quirin and In re Territo, support its contention that
the President may order that certain U.S. citizens as well as non-citizens be held as
enemy combatants pursuant to the law of war and Article II of the Constitution.
Critics, however, question whether the decisions permit the detention of U.S. citizens
captured away from any actual battlefield, in order to prevent terrorist acts or gather
intelligence; and some argue that Congress has prohibited such detention of U.S.
citizens when it enacted 18 U.S.C. § 4001(a).
This report provides background information regarding the cases of two U.S.
citizens deemed “enemy combatants,” Yaser Esam Hamdi, who has been returned
to Saudi Arabia, and Jose Padilla, who remains in military custody while the
government appeals a district court order to charge him with a crime or release him.
A brief introduction to the law of war pertinent to the detention of different
categories of individuals is offered, followed by brief analyses of the main legal
precedents invoked to support the President’s actions, as well as Ex parte Milligan,
which some argue supports the opposite conclusion. A discussion of U.S. practice
during wartime to detain persons deemed dangerous to the national security follows,
including legislative history that may help to shed light on Congress’ intent in
authorizing the use of force to fight terrorism. Finally, the report briefly analyzes the
proposed Detention of Enemy Combatants Act, H.R. 1076, which would authorize
the President to detain U.S. citizens and residents who are determined to be “enemy
combatants” in certain circumstances. The report concludes that historically, even
during declared wars, additional statutory authority has been seen as necessary to
validate the detention of citizens not members of any armed forces, casting in some
doubt the argument that the power to detain persons arrested in a context other than
actual hostilities is necessarily implied by an authorization to use force.

Background ......................................................2
Status and Detention of Persons in War................................5
U.S. Precedent for Detention of Citizens as Enemy Combatants.............8
Ex Parte Quirin...............................................8
In Re Territo.................................................10
Ex Parte Milligan.............................................12
Moyer v. Peabody............................................14
U.S. Practice - Detention of Enemies on U.S. Territory...................16
Internment of Enemy Aliens during World War I....................17
Internment of Enemies during World War II........................20
The Cold War................................................28
Recent and Current “Enemy Combatant” Cases.........................32
The Case of Yaser Esam Hamdi.................................33
The Case of Jose Padilla.......................................36
Legal Authority to Detain “Enemy Combatants”.........................40
The Authorization to Use Force..................................42
Title 10, U.S.C...............................................45
18 U.S.C. § 4001(a)...........................................48
The Role of Congress..............................................49
The Proposed Detention of Enemy Combatants Act..................49
Section-by-section Analysis.................................50
Possible Legal Issues..........................................52
Some Constitutional Questions..............................52
International Legal Issues...................................55
Conclusion ......................................................57

Detention of American Citizens as
Enemy Combatants
This report analyzes the authority to detain American citizens who are suspected
of being members, agents, or associates of Al Qaeda, the Taliban, or other terrorist
organizations as “enemy combatants.”1 In June, 2004, the Supreme Court issued
three decisions related to the detention of “enemy combatants.” In Rasul v. Bush,2
the Court held that aliens detained at the U.S. Naval Station at Guantanamo Bay,
Cuba, have access to federal courts to challenge their detention. In Hamdi v.
Rumsfeld,3 a plurality held that a U.S. citizen allegedly captured during combat in
Afghanistan and incarcerated at a Navy brig in South Carolina was entitled to notice
and an opportunity to be heard by a neutral decision-maker regarding the
government’s reasons for detaining him. The government instead reached an
agreement with the petitioner that allowed him to return to Saudi Arabia, where he
also holds citizenship, subject to certain conditions. The Court in Rumsfeld v.
Padilla4 overturned a lower court’s grant of habeas corpus to another U.S. citizen in
military custody in South Carolina on jurisdictional grounds, sending the case to a
district court in the Fourth Circuit for a new trial. The district court found that
Padilla’s detention is unlawful;5 the government has appealed.

1 Under the law of war, enemy combatants are generally members of the military of the
opposing party who are authorized to participate directly in battle (as opposed to non-
combatants, such as military surgeons and medics). Enemy combatants may be targeted by
the military or captured and detained as a wartime preventive measure. See generally
Treatment of ‘Battlefield Detainees’ in the War on Terrorism, CRS Report RL31367.
According to the government rules establishing Combatant Status Review Tribunals, in the
context of the war against terrorism,
[T]he termenemy combatant shall mean an 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.
Department of Defense Order of July 9, 2004, available at
[] (last visited Feb. 2,
2005). In the context of foreign detainees held at the Guantanamo Bay Naval Station, one
D.C. federal district judge has held the above definition to be overly broad because it
potentially extends to persons who have not engaged in hostilities against the United States.
In re Guantanamo Detainee Cases, 2005 WL 195356 (D.D.C. Jan. 31, 2005). The
government has appealed the ruling to the D.C. Circuit Court of Appeals.
2 124 S.Ct. 2686 (2004).
3 124 S.Ct. 2633 (2004).
4 124 S.Ct. 2711 (2004).
5 Padilla v. Hanft, No. Civ.A. 2:04-2221-26A (D.S.C. Feb. 28, 2005).

The decisions affirm the President’s powers to detain “enemy combatants” as
part of the necessary force authorized by Congress after the terrorist attacks of
September 11, 2001.6 The Court found the President’s detention of U.S. citizens is
not necessarily foreclosed by 18 U.S.C. § 4001(a), which provides that no U.S.
citizen may be detained except pursuant to an act of Congress. However, the Court
appears to have limited the scope of individuals who may be treated as enemy
combatants pursuant to that authority, and clarified that such detainees have some
due process rights under the U.S. Constitution.7 Petitioners for Padilla maintain that
18 U.S.C. § 4001(a) bars his detention without trial.8 The District Court for the
District of South Carolina has agreed, and ordered the government to end his military
The Attorney General announced on June 10, 2002, that an American citizen,
Jose Padilla, also known as Abdullah Muhajir, was arrested May 8, 2002 upon his
return from Pakistan, allegedly with the intent of participating in a plot to use a
radiological bomb against unknown targets within the United States. Padilla was
detained under a court order as a material witness until the Department of Justice
faced a court deadline to either bring charges or release him. After prosecutors
reportedly either lacked the physical evidence or were unwilling to disclose classified
evidence necessary to bring charges against Padilla, President Bush signed an
unspecified order declaring him to be an “enemy combatant,” and transferred him to9
the custody of the Department of Defense. The Administration takes the position
that the law of war allows the United States to detain indefinitely members, agents
or associates of Al Qaeda and other terrorist organizations, without charging them
with a crime under either criminal statutes or the international law of war,10
notwithstanding their American citizenship. The Administration also initially

6 Authorization for Use of Military Force (“the AUMF”), P.L. 107-40, 115 Stat. 224 (2001).
7 Hamdi v. Rumsfeld, 124 S.Ct. 2633, 2640 (2004).
There can be no doubt that individuals who fought against the United States in
Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda
terrorist network responsible for those attacks, are individuals Congress sought to target
in passing the AUMF. We conclude that detention of individuals falling into the limited
category we are considering, for the duration of the particular conflict in which they were
captured, is so fundamental and accepted an incident to war as to be an exercise of the
necessary and appropriate force” Congress has authorized the President to use.
8 Two Justices who joined the Hamdi plurality of six, and Justice Scalia, who dissented,
would have found that 18 U.S.C. § 4001(a) (the “Non-detention Act) precludes detention
of persons in Hamdi’s circumstances.
9 See Tom Brune and Craig Gordon, American Arrested in “Dirty Bomb” Plot, NEWSDAY,
June 11, 2002, at A5.
10 See Press Release, Department of Defense General Counsel William J. Haynes II, DoD
Responds to ABA Enemy Combatant Report, (Oct. 2, 2002), available at
[](last visited Feb. 7,


denied Padilla access to his attorney,11 arguing that he has no constitutional right to
an attorney because he has not been charged with a crime.12 After a federal judge
ruled that Padilla has a right to challenge his detention and the concomitant right to
consult with an attorney,13 the government moved for a reconsideration of the order
based on its assertion that no conditions were possible that would permit Padilla to
communicate with his lawyer without endangering national security, which the judge
considered but rejected.14 The judge certified the case for interlocutory appeal to the
U.S. Court of Appeals for the Second Circuit, including the issue of the President’s
authority to order Padilla’s detention as an enemy combatant.15 The Second Circuit
held that the President does not have the inherent authority, nor has Congress
authorized him to declare U.S. citizens captured on U.S. territory in non-combat
circumstances to be enemy combatants and place them under military jurisdiction.16
The government granted Padilla a limited right to meet with his attorney under
government monitoring and appealed the decision to the Supreme Court, which heard
the case on expedited appeal. The Court disposed of the case without deciding the
merits, in a 5-4 order vacating the decision below and holding that the petition should
have been brought in the Fourth Circuit, where Padilla is being held, rather than New
The Supreme Court decided the petition of another American citizen who was
detained without charges as an “enemy combatant” on the same day.17 Yaser Eser

11 A public defender was appointed to represent Padilla while he was detained as a material
witness, pursuant to the Material Witness Statute, 18 U.S.C. § 3144. The judge determined
that this relationship is sufficient to qualify her as “next friend” of Padilla, with standing to
pursue a petition for writ of habeas corpus on his behalf. 233 F.Supp.2d at 578.
12 The Administration takes the position that
in the case of citizens who take up arms against America, any interest those individuals
might have in obtaining the assistance of counsel for the purpose of preparing a habeas
petition must give way to the national security needs of this country to gather intelligence
from captured enemy combatants. Although the right to counsel is a fundamental part of
our criminal justice system, it is undeniably foreign to the law of war. Imagine the burden
on our ability to wage war if those trying to kill our soldiers and civilians were given the
opportunity tolawyer up when they are captured. Respectfully, those who urge the
extension of the right to counsel to these combatants, for the purpose of filing a habeas
petition, confuse the context of war with that of the criminal justice system.
See Alberto R. Gonzales, Remarks to the American Bar Association Standing Committee
on Law and National Security (Feb. 24, 2004), available at
[] (last visited Feb. 7, 2005).
13 233 F.Supp.2d at 605.
14 243 F.Supp.2d 42 (S.D.N.Y. 2003), aff’g on reh’g 233 F.Supp.2d 564 (S.D.N.Y. 2002).
15 256 F.Supp.2d 218 (S.D.N.Y. 2003).
16 Padilla ex rel. Newman v. Bush, 352 F.3d 695 (2d Cir. 2003), vacated sub nom Rumsfeld
v. Padilla, 124 S.Ct. 2711 (2004).
17 The first American citizen caught up in the war on terrorism, John Walker Lindh, who
was captured in Afghanistan, was charged in federal district court with conspiring to kill
Americans. He asserted the defense of combat immunity, which the government argued is
not possible given the fact that President Bush has declared that no member of the Taliban

Hamdi, who had been captured in Afghanistan, was initially detained at the U.S.
Naval Station in Guantánamo Bay, Cuba with other detainees captured in
Afghanistan and other countries, until it was discovered that he was born in Baton
Rouge and thus had a colorable claim to U.S. citizenship. He was then transferred
to a high-security naval brig in South Carolina, where he was held in military
custody without criminal charge. After an attorney filed a petition for habeas corpus
on his behalf, the government asserted it had the unreviewable prerogative to detain
him without trial and without providing him access to an attorney, as a necessary
exercise of the President’s authority as Commander-in-Chief to provide for national
security and defense.18 The Fourth Circuit largely agreed with the government’s
position, reversing two orders issued by the district court and ordering the case
dismissed.19 The Supreme Court reversed in part, affirming the President’s authority
to detain Hamdi as an “enemy combatant” under the AUMF, but ruling that Hamdi
was entitled to a hearing to challenge his status.20 The government subsequently
negotiated an agreement that would allow Hamdi to return to Saudi Arabia, obviating
the need for a hearing and a determination of whether Hamdi was entitled to the
assistance of counsel. The government interprets the decision in Hamdi to apply to
Padilla as well as the detainees at Guantánamo Bay.

17 (...continued)
can qualify as a lawful combatant See United States v. John Walker Lindh, Criminal No.
02-37-A (E.D. Va.), Government’s Opposition to Defendant’s Motion to Dismiss Count One
of the Indictment for Failure to State a Violation of the Charging Statute (Combat
Immunity)(#2). The defendant ultimately agreed to plead guilty to a charge of supplying
services to the Taliban, in violation of 50 U.S.C. § 1705(b), and carrying an explosive
during the commission of a felony in violation of 18 U.S.C. § 844(h)(2); the government
dropped the conspiracy charge. The United States further agreed to forego any right it has
to treat the defendant as an unlawful enemy combatant based on the conduct alleged in the
Indictment ... [unless the government later] determine[s] that the defendant has engaged in
conduct proscribed by the offenses now listed at 18 U.S.C. § 2332b(g)(5)(B), or conduct
now proscribed under 50 U.S.C. § 1705, [in which case the plea] agreement ... shall be null
and void, and the United States may immediately invoke any right it has at that time to
capture and detain the defendant as an unlawful enemy combatant based on the conduct
alleged in the Indictment.
See United States v. John Walker Lindh, Criminal No. 02-37-A (E.D. Va.), Plea Agreement
at paragraph 21. Neither 18 U.S.C. § 2332b(g)(5)(B) (defining federal crime of terrorism)
nor 50 U.S.C. § 1705 (providing criminal penalty for violation of any license, order, or
regulation issued by the President pursuant to the International Emergency Economic
Powers Act (IEEPA)) makes mention of the possibility that offenders may be declared to
be “enemy combatants.”
18 See Hamdi v. Rumsfeld, No. 02-6895 (4th Cir.) Government Brief on Appeal of the United
States District Court for the Eastern District of Virginia, available at
[](appealing the order
to provide the federal public defender with unmonitored access to the detainee) (last visited
Feb. 7, 2005).
19 Hamdi v. Rumsfeld, 316 F.3d 450, reh’g denied 337 F.3d 335 (4th Cir. 2003), cert.
granted (U.S. Jan. 9, 2004)(No. 03-6696).
20 Hamdi v. Rumsfeld, __ U.S. __, 124 S.Ct. 2633 (2004).

These two cases are distinguishable because the government reportedly captured
Hamdi on the battlefield, possibly creating a presumption that he is a combatant.21
Unlike Padilla, Hamdi was not alleged to have committed specific acts which could
violate the law of war if committed by a lawful soldier. Padilla, even if he were a
legitimate enemy combatant, would not likely be entitled to combat immunity for his
alleged involvement in an enemy plot to commit acts of terrorism on American soil.22
In both cases, the Government invoked its authority under the international law of
war, and the President’s authority as Commander-In-Chief, to justify the detention.23
The Administration also argued that if congressional authorization were necessary,
it could be found in the Authorization to Use Force (“AUMF”)24 and other statutes.
The Supreme Court agreed that the AUMF authorizes the detention of combatants
captured during hostilities, but did not elaborate on the scope of that authority, nor
did it decide whether the President has inherent authority to order detentions or if
other statutory authority also applied.
Status and Detention of Persons in War
The law of war divides persons in the midst of an armed conflict into two broad25
categories: combatants and civilians. 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

21 The White House has stated it uses a more strenuous legal process for determining who
among U.S. citizens arrested within the United States meets the legal definition to be
designated an “enemy combatant.” See Gonzales, supra note 8. While noting that no
specific procedure is required by law, White House Counsel Gonzales described the
procedure as follows:
In any case where it appears that a U.S. citizen captured within the United States may be
an al Qaeda operative and thus may qualify as an enemy combatant, information on the
individual is developed and numerous options are considered by the various relevant
agencies (the Department of Defense, CIA and DOJ), including the potential for a
criminal prosecution, detention as a material witness, and detention as an enemy
combatant. Options often are narrowed by the type of information available, and the best
course of action in a given case may be influenced by numerous factors including the
assessment of the individual’s threat potential and value as a possible intelligence source.
. . . When it appears that criminal prosecution and detention as a material witness are, on
balance, less-than-ideal options as long-term solutions to the situation, we may initiate
some type of informal process to present to the appropriate decision makers the question
whether an individual might qualify for designation as an enemy combatant. But even this
work is not actually commenced unless the Office of Legal Counsel at the Department of
Justice has tentatively advised, based on oral briefings, that the individual meets the legal
standard for enemy combatant status. . . .
22 See Ex parte Quirin, 317 U.S. 1 (1942).
23 See DoD Press Release, supra note 6 (“Article II of the Constitution is the primary basis
for the President’s authority to detain enemy combatants”).
24 Authorization for Use of Military Force (“AUMF”), P.L. 107-40, 115 Stat. 224 (2001).

1995)(hereinafter “HANDBOOK”).

consequences of their conduct.26 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.27 Civilians are not authorized to fight, but are protected from
deliberate targeting by combatants as long as they do not take up arms. 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. To limit
exposure of civilians to military attacks, combatants are required, as a general rule,
to distinguish themselves from civilians. Combatants who fail to distinguish
themselves from civilians run the risk of being denied the privilege to be treated as
prisoners of war if captured by the enemy.
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. Under these conventions, parties to an
armed conflict have the right to capture and intern enemy soldiers28 as well as
civilians who pose a danger to the security of the state,29 at least for the duration of
hostilities.30 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. POWs are detained for
security purposes, to remove those soldiers as a threat from the battlefield. The law

26 See id.
27 See id. at 67. See also OPERATIONAL LAW HANDBOOK, chapter 2 (2002) available at
[http://www.j a gc AGCNET Internet/Homepages/AC/CLAMO-Public.nsf].
(Lawful combatants have valid combatant status and receive law of war protection;
however, others who participate in combat, without valid combatant status, may be treated
as criminals under domestic law.) Id. Members of an organized armed force, group or unit
who are not medical or religious personnel are combatants. Id. Combatants are lawful
targets during combat operations. Prisoners of war are considered noncombatants and must
be protected by the Detaining Power. See id. The term “enemy combatant” appears most
frequently in the context of military rules of engagement, which stress that only enemy
combatants may lawfully be attacked during military operations.
28 See The Geneva Convention Relative to the Treatment of Prisoners of War, August 12,

1949, 6 U.S.T. 3317 (hereinafter “GPW”). GPW art. 21 states:

The Detaining Power may subject prisoners of war to internment. It may impose
on them the obligation of not leaving, beyond certain limits, the camp where they
are interned, or if the said camp is fenced in, of not going outside its perimeter.
Subject to the provisions of the present Convention relative to penal and
disciplinary sanctions, prisoners of war may not be held in close confinement
except where necessary to safeguard their health and then only during the
continuation of the circumstances which make such confinement necessary.
29 See Geneva Convention Relative to the Protection of Civilian Persons in Time of War,
Aug. 12, 1949, 6 U.S.T. 3516 [hereinafter “GC”]. GC art. 42 states:
The internment or placing in assigned residence of protected persons may be
ordered only if the security of the Detaining Power makes it absolutely
30 See GPW, supra note 26, art. 21.

of war encourages capture and detention of enemy combatants as a more humane
alternative to accomplish the same purpose than by wounding or killing them.
Enemy civilians may be interned for similar reasons, although the law of war
does not permit them to be treated as lawful military targets. 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, they are held in order to prevent their
acting on behalf of the enemy and to deprive the enemy of resources it might use in
its war efforts. 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.31 The Supreme Court has upheld internment
programs promulgated under the Alien Enemy Act.32 This form of detention, like the
detention of POWs, is administrative rather than punitive, and thus no criminal trial
is required.33
The Detaining Power may punish enemy soldiers and civilians for crimes
committed prior to their capture as well as during captivity, but only after a fair trial
in accordance with the relevant convention and other applicable international law.
However, it is unclear whether a person who is neither a POW nor an enemy alien
may be detained without criminal charges,34 and if such detention is lawful, what
process is due the detainee under the Constitution or international law. The

31 50 U.S.C. § 21 (defining “enemy” as “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”).
32 See Ludecke v. Watkins, 335 U.S. 160 (1948) (upholding President’s authority to order
the removal of all alien enemies “who shall be deemed by the Attorney General to be
dangerous to the public peace and safety of the United States”). The Supreme Court
declined to review the determination by the Alien Enemy Hearing Board that the petitioner
was dangerous, and noted that no question as to the validity of the administrative hearings
had been raised. Id. at 163, n.4. However, the Court also noted that an enemy alien
restrained pursuant to the act did have access to the courts to challenge whether the statutory
criteria were met, in other words, whether a “declared war” existed and whether the person
restrained is in fact an enemy alien fourteen years or older. Id. at 170-72, n.17.
33 Internees may challenge their detention in court. See id.
34 See generally Treatment of “Battlefield Detainees” in the War on Terrorism, CRS Report
RL31367. The question appears to turn on whether the label “unlawful combatant” may
be applied across the board to all members of a belligerent group, or whether it applies only
on an individual basis to those who participate unlawfully in combat. It would seem that
denying belligerent status to all members of a group amounts to denying the group as a
whole belligerent status, in which case it would not be possible to engage in armed conflict
with it. As one observer comments:
According to their terms, the Geneva Conventions apply symmetricallythat is to say,
they are either applicable to both sides in a conflict, or to neither. Therefore the White
House statement that the Geneva Conventions do not extend to Al Qaeda is effectively a
declaration that the entire military campaign against terrorism is not covered by the
Geneva Conventions.
See Dworkin, supra note 1.

conditions of detention may also give rise to the question of whether they amount to
punishment, in this case, notwithstanding DoD’s recognition that the purpose for
detaining “enemy combatants” is not punitive in nature.35
U.S. Precedent for Detention of Citizens
as Enemy Combatants
The Department of Justice reads the Hamdi decision as supporting its reliance
primarily on two cases to support its contention that the Constitution permits the
detention without criminal charge of American citizens under certain circumstances.
The government argues that the 1942 Supreme Court decision in Ex parte Quirin (the
German saboteurs case) and the 9th Circuit case In re Territo, read together, permit
the government to hold American citizens as “enemy combatants,” regardless of their
membership in any legitimate military organization. Others, however, distinguish
those cases as dealing with occurrences during a war declared by Congress and
involving members of the armed forces of hostile enemy states, and further argue that
the Civil War case Ex parte Milligan forecloses this theory.
Ex Parte Quirin
After eight Nazi saboteurs were caught by the Federal Bureau of Investigation
(FBI), the President issued a proclamation declaring that “the safety of the United
States demands that all enemies who have entered upon the territory of the United
States as part of an invasion or predatory incursion, or who have entered in order to
commit sabotage, espionage or other hostile or warlike acts, should be promptly tried
in accordance with the law of war.”36 The eight German saboteurs (one of whom
claimed U.S. citizenship) were tried by military commission for entering the United
States by submarine, shedding their military uniforms, and conspiring to use
explosives on certain war industries and war utilities. In the case of Ex parte Quirin,
the Supreme Court denied their writs of habeas corpus (although upholding their
right to petition for the writ, despite language in the Presidential proclamation
purporting to bar judicial review), holding that trial by such a commission did not37
offend the Constitution and was authorized by statute. It also found the citizenship
of the saboteurs irrelevant to the determination of whether the saboteurs were “enemy38
belligerents” within the meaning of the Hague Convention and the law of war.

35 See DOD Press Release, supra note 6 (“The purposes of detaining enemy combatants
during wartime are, among other things, to gather intelligence and to ensure that detainees
do not return to assist the enemy.... Then, as now, the purpose of detention was not to
punish, but to protect.”)
36 Proclamation No. 2561, of July 2, 1942, 7 Fed. Reg. 5101, 56 Stat. 1964.
37 See Ex parte Quirin, 317 U.S. 1, 26-28 (1942) (finding authority for military commissions
in the Articles of War, codified at 10 U.S.C. §§ 1471-1593 (1940).
38 See id. at 37-38 (“Citizens who associate themselves with the military arm of the enemy
government, and with its aid, guidance and direction enter this country bent on hostile acts
are enemy belligerents within the meaning of the Hague Convention and the law of war.”);

To reach its decision, the Court applied the international common law of war,
as Congress had incorporated it by reference through Article 15 of the Articles of
War,39 and the President’s proclamation that
[A]ll persons who are subjects, citizens or residents of any nation at war with the
United States or who give obedience to or act under the direction of any such
nation, and who during time of war enter or attempt to enter the United States ...
through coastal or boundary defenses, and are charged with committing or
attempting or preparing to commit sabotage, espionage, hostile or warlike acts,
or violations of the law of war, shall be subject to the law of war and to the40
jurisdiction of military tribunals.
Whether the accused could have been detained as “enemy combatants” without41
any intent to try them before a military tribunal was not a question before the Court,
but the Court suggested the possibility. It stated:
By universal agreement and practice, the law of war draws a distinction between
the armed forces and the peaceful populations of belligerent nations and also
between those who are lawful and unlawful combatants. Lawful combatants are
subject to capture and detention as prisoners of war by opposing military forces.
Unlawful combatants are likewise subject to capture and detention, but in
addition they are subject to trial and punishment by military tribunals for acts42
which render their belligerency unlawful.
In its discussion of the status of “unlawful combatant,” the Court did not
distinguish between enemy soldiers who forfeit the right to be treated as prisoners of
war by failing to distinguish themselves as belligerents, as the petitioners had done,
and civilians who commit hostile acts during war without having the right to
participate in combat. Both types of individuals may be called “unlawful
combatants,” yet the circumstances that give rise to their status differ in ways that

38 (...continued)
see also Colepaugh v. Looney, 235 F.2d 429, 432 (10th Cir. 1956) (“[T]he petitioner’s
citizenship in the United States does not ... confer upon him any constitutional rights not
accorded any other belligerent under the laws of war.”), cert. denied, 352 U.S. 1014 (1957).
39 Similar language is now part of the UCMJ. See 10 U.S.C. § 821 (providing jurisdiction
for courts-martial does not deprive military commissions of concurrent jurisdiction in
relevant cases).
40 317 U.S. at 22-23 (citing Proclamation No. 2561, 7 Fed. Reg. 5101(1942)).
41 At oral argument before the Supreme Court, Attorney General Biddle suggested that had
the prisoners been captured by the military rather than arrested by the FBI, the military
could have detained them “in any way they wanted,” without any arraignment or any sort
OF THE UNITED STATES 597 (Philip B. Kurland and Gerhard Casper, eds. 1975).
42 317 U.S. at 30-31 (emphasis added; footnote omitted).

may be legally significant.43 However, the Court did recognize that the petitioners
fit into the first category,44 and expressly limited its opinion to the facts of the case:
We have no occasion now to define with meticulous care the ultimate boundaries
of the jurisdiction of military tribunals to try persons according to the law of war.
It is enough that petitioners here, upon the conceded facts, were plainly within
those boundaries, and were held in good faith for trial by military commission,
charged with being enemies who, with the purpose of destroying war materials
and utilities, entered or after entry remained in our territory without uniform —
an offense against the law of war. We hold only that those particular acts
constitute an offense against the law of war which the Constitution authorizes to45
be tried by military commission.
In Re Territo
In the case In re Territo,46 an American citizen who had been inducted into the
Italian army was captured during battle in Italy and transferred to a detention center
for prisoners of war in the United States. He petitioned for a writ of habeas corpus,
arguing that his U.S. citizenship foreclosed his being held as a POW. The court
disagreed, finding that citizenship does not necessarily “affect[] the status of one
captured on the field of battle.”47 The court stated:
Those who have written texts upon the subject of prisoners of war agree that all
persons who are active in opposing an army in war may be captured and except
for spies and other non-uniformed plotters and actors for the enemy are prisoners48
of war.
The petitioner argued that the Geneva Convention did not apply in cases such
as his. The court found no authority in support of that contention, noting that “[i]n49
war, all residents of the enemy country are enemies.” The court also cited
approvingly the following passage:
A neutral, or a citizen of the United States, domiciled in the enemy country, not
only in respect to his property but also as to his capacity to sue, is deemed as

43 Combatants are bound by all of the laws of war regulating conduct during combat, while
civilians are not really combatants at all, and are thus prohibited from participating in
combat, regardless of whether they follow generally applicable combat rules. See generally
CRS Report RL31367.
44 See supra note 36.
45 317 U.S. at 45-46.
46 156 F.2d 142 (9th Cir. 1946).
47 Id. at 145.
48 Id. (emphasis added; citations omitted).
49 Id. (citing Lamar’s Executor v. Browne, 92 U.S. 187, 194 (1875)).

much an alien enemy as a person actually born under the allegiance and residing50
within the dominions of the hostile nation.
While recognizing that Quirin was not directly in point, it found the discussion of
U.S. citizenship to be “indicative of the proper conclusion”:
Citizens who associate themselves with the military arm of the enemy
government, and with its aid, guidance and direction enter this country bent on
hostile acts are enemy belligerents within the meaning of the Hague Convention51
and the law of war.
The court had no occasion to consider whether a citizen who becomes
associated with an armed group not affiliated with an enemy government and not
otherwise covered under the terms of the Hague Convention could be detained
without charge pursuant to the law of war,52 particularly those not captured by the
military during battle.
Confining the Territo and Quirin opinions to their facts, they may not provide
a solid foundation for the President’s designation and detention of Padilla as an
enemy combatant. It may be argued that the language referring to the capture and
detention of unlawful combatants — seemingly without indictment on criminal
charges — is dicta; the petitioners in those cases did not challenge the contention
that they served in the armed forces of an enemy state with which the United States
was engaged in a declared war. We are unaware of any U.S. precedent confirming
the constitutional power of the President to detain indefinitely a person accused of
being an unlawful combatant due to mere membership in or association with a group
that does not qualify as a legitimate belligerent, with or without the authorization of53
Congress. The Supreme Court rejected a similar contention in the Civil War case
of Ex parte Milligan, discussed infra, where Congress had limited the authority to
detain persons in military custody.

50 Id. (citing WHITING, WAR POWERS UNDER THE CONST., 340-42 (1862)).
51 Id. (citing Quirin at 37-38).
52 Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,

1907, 36 Stat. 2277, 205 Consol. T.S. 277. Article 1 states:

The laws, rights, and duties of war apply not only to armies, but also to militia and
volunteer corps, fulfilling the following conditions:
To be commanded by a person responsible for his subordinates;
To have a fixed distinctive emblem recognizable at a distance;
To carry arms openly; and
To conduct their operations in accordance with the laws and customs of war.
In countries where militia or volunteer corps constitute the army, or form part of it, they
are included under the denominationarmy.
53 In that regard, cf. Ex parte Toscano, 208 F. 938 (S.D. Cal. 1913) (applying Hague
Convention to authorize holding of Mexican federalist troops, who had crossed the border
into the United States and surrendered to U.S. forces, as prisoners of war although the
United States was neutral in the conflict and the belligerent parties were not recognized as

At most, arguably, the two cases above may be read to demonstrate that, at least
in the context of a declared war against a recognized state, U.S. citizenship is not
constitutionally relevant to the treatment of members of enemy forces under the law
of war. Neither case addresses the constitutionality of the process used to determine
who is a member of an enemy force and whether a detainee qualifies for POW
privileges. Inasmuch as the President has determined that Al Qaeda is not a state but
a criminal organization to which the Geneva Convention does not apply,54 and
inasmuch as the Hague Convention would seem to apply to neither Al Qaeda nor the
Taliban for the same reasons that have been given to preclude their treatment as
prisoners of war,55 it may be argued that Al Qaeda is not directly subject to the law
of war and therefore its members may not be detained as “enemy combatants”
pursuant to it solely on the basis of their association with Al Qaeda.56 Taliban
fighters captured in Afghanistan are a closer fit within the traditional understanding
of who may be treated as enemy combatants, but may be able to contest the
determination that they are not entitled to POW status.57
Ex Parte Milligan
In Ex parte Milligan,58 the Supreme Court addressed the question whether a
civilian citizen of Indiana who was allegedly a member of the Sons of Liberty, an
organized group of conspirators with alleged links to the Confederate States that
planned to commit acts of sabotage against the North, could constitutionally be tried
by military commission. The Court recognized military commission jurisdiction over
violations of the “laws and usages of war,” but stated those laws and usages “... can
never be applied to citizens in states which have upheld the authority of the

54 See Press Release, White House, Status of Detainees at Guantanamo (Feb. 7, 2002)
available at [] (last
visited Feb. 7, 2005).
55 See id.
56 See Jordan J. Paust, Antiterrorism Military Commissions: Courting Illegality, 23 MICH.
J. INTL L. 1, 8 n.16 (2001)(arguing that “[u]nder international law, war conduct and war
crimes can occur at the hands of non-state actors, but they must be participants in a war or
insurgency, or have achieved a status of belligerents or insurgents involved in an armed
conflict”). An alternate interpretation might start from the premise that what is not
prohibited by the Geneva Conventions is permitted under international law. This appears
to be the point of departure for Judge Mukasey’s analysis in the initial Padilla opinion. See
Padilla ex rel. Newman v. Bush, 233 F.Supp.2d 564, 592-93 (S.D.N.Y. 2002) (“It is not that
the Third Geneva Convention authorizes particular treatment for or confinement of unlawful
combatants; it is simply that that convention does not protect them.”). However, it may be
argued that GC, supra note 27, which had no corollary in previous Geneva Conventions on
prisoners, would protect persons who are not protected by GPW. See Karman Nabulsi,
Evolving Conceptions of Civilians and Belligerents 9, 18-20, in CIVILIANS IN WAR (Simon
Chesterman, ed. 2001).
57 Rasul v. Bush, __ U.S. __, 124 S.Ct. 2686 (2004) (federal courts have jurisdiction to hear
petitions for habeas corpus on behalf of detainees held at Guantanamo Bay).
58 71 U.S. (4 Wall.) 2 (1866).

government, and where the courts are open and their process unobstructed.”59 The
Supreme Court explained its reasoning:
It will be borne in mind that this is not a question of the power to proclaim
martial law, when war exists in a community and the courts and civil authorities
are overthrown. Nor is it a question what rule a military commander, at the head
of his army, can impose on states in rebellion to cripple their resources and quell
the insurrection .... Martial law cannot arise from a threatened invasion. The
necessity must be actual and present; the invasion real, such as effectively closes60
the courts and deposes the civil administration.
The government had argued in the alternative that Milligan could be held as a
prisoner of war “as if he had been taken in action with arms in his hands,”61 and thus
excluded from the privileges of a statute requiring courts to free persons detained
without charge. The government argued:
Finally, if the military tribunal has no jurisdiction, the petitioner may be held as
a prisoner of war, aiding with arms the enemies of the United States, and held,
under the authority of the United States, until the war terminates, then to be
handed over by the military to the civil authorities, to be tried for his crimes62
under the acts of Congress, and before the courts which he has selected.
Milligan, however, argued “that it had been ‘wholly out of his power to have
acquired belligerent rights, or to have placed himself in such relation to the
government as to have enabled him to violate the laws of war,’”63 as he was charged.
The Court appears to have agreed with Milligan, replying:
It is not easy to see how he can be treated as a prisoner of war, when he lived in
Indiana for the past twenty years, was arrested there, and had not been, during the
late troubles, a resident of any of the states in rebellion. If in Indiana he
conspired with bad men to assist the enemy, he is punishable for it in the courts
of Indiana; but, when tried for the offence, he cannot plead the rights of war; for
he was not engaged in legal acts of hostility against the government, and only
such persons, when captured, are prisoners of war. If he cannot enjoy the
immunities attaching to the character of a prisoner of war, how can he be subject64
to their pains and penalties?
In Quirin, the Supreme Court distinguished its holding from Milligan, finding
that the petitioners were enemy belligerents and that the charge made out a valid
allegation of an offense against the law of war for which the President was authorized

59 Id. at 121.
60 Id. at 127.
61 Id. at 21 (argument for the government).
62 Id. The statute expressly excepted prisoners of war.
63 Id. at 8.
64 131.

to order trial by a military commission.65 The Court noted that Milligan had not been
a part of or associated with the armed forces of the enemy, and therefore was a non-
belligerent, not subject to the law of war.66 The Sons of Liberty, it seems, did not
qualify as a belligerent for the purposes of the law of war, even though it was alleged
to be plotting hostile acts on behalf of the Confederacy. Milligan was interpreted by
some state courts to preclude the trial by military commission of persons accused of
participating in guerrilla activities in Union territory,67 and despite Congress’ efforts
to immunize executive officials for actions done under military authority during the
Civil War,68 the Supreme Court of Illinois upheld damages awarded to Madison Y.
Johnson, who, accused of being “a belligerent” but never charged with any offense,
was confined under orders issued by the Secretary of War.69
The Hamdi Court found that Milligan did not apply to a U.S. citizen captured
in Afghanistan. Justice O’Connor wrote that Milligan
does not undermine our holding about the Government’s authority to seize enemy
combatants, as we define that term today. In that case, the Court made repeated
reference to the fact that its inquiry into whether the military tribunal had
jurisdiction to try and punish Milligan turned in large part on the fact that
Milligan was not a prisoner of war, but a resident of Indiana arrested while at
home there. That fact was central to its conclusion. Had Milligan been captured
while he was assisting Confederate soldiers by carrying a rifle against Union
troops on a Confederate battlefield, the holding of the Court might well have
been different. The Court’s repeated explanations that Milligan was not a
prisoner of war suggest that had these different circumstances been present he
could have been detained under military authority for the duration of the conflict,70
whether or not he was a citizen.
Moyer v. Peabody
The government cites Moyer v. Peabody71 to support its contention that the
President has the authority during war, subject only to extremely deferential review
by the courts, to detain an individual the government believes to be dangerous or72
likely to assist the enemy. The government further asserts that the case supports the
historical “unavailability” of due process rights, such as the right to counsel, in the

65 Ex Parte Quirin, 317 U.S. 1, 45 (1942).
66 Id.
67 Thompson v. Wharton, 70 Ky. (7 Bush) 563 (Ky. 1870); Eginton v. Brain, 7 Ky.Op. 516
(Ky. 1874).
68 Act Cong. March 2, 1867, 14 Stat. 432.
69 Johnson v. Jones, 44 Ill. 142 (Ill. 1867); see also Carver v. Jones, 45 Ill. 334 (Ill. 1867);
Sheehan v. Jones, 44 Ill. 167 (Ill. 1867).
70 124 S.Ct. at 2642 (citations omitted).
71 212 U.S. 78 (1909).
72 See Respondents’ Reply in Support of Motion to Dismiss the Amended Petition for a Writ
of Habeas Corpus, Padilla ex rel. Newman v. Bush, 02 Civ. 4445, at 18, available at

case of enemy combatants.73 In Moyer, the Supreme Court declined to grant relief
to the plaintiff in a civil suit against the governor of Colorado based on the former’s
detention without charge during a miners’ strike (deemed by the governor to be an
insurrection), stating:
So long as such arrests are made in good faith and in the honest belief that they
are needed in order to head the insurrection off, the governor is the final judge
and cannot be subjected to an action after he is out of office, on the ground that74
he had not reasonable ground for his belief.
The Court based its views in part on the laws and constitution of the state of
Colorado, which empowered the governor to repel or suppress insurrections by
calling out the militia, which the Court noted, envisioned the
ordinary use of soldiers to that end; that he may kill persons who resist, and, of
course, that he may use the milder measure of seizing the bodies of those whom
he considers to stand in the way of restoring peace. Such arrests are not
necessarily for punishment, but are by way of precaution, to prevent the exercise75
of hostile power.
The Court further clarified:
If we suppose a governor with a very long term of office, it may be that a case
could be imagined in which the length of the imprisonment would raise a
different question. But there is nothing in the duration of the plaintiff’s detention
or in the allegations of the complaint that would warrant submitting the judgment
of the governor to revision by a jury. It is not alleged that his judgment was not
honest, if that be material, or that the plaintiff was detained after fears of the
insurrection were at an end.
Based on the context of the case, the holding may be limited to actual battles and
situations of martial law where troops are authorized to use deadly force as
necessary.76 While the Court notes that “[p]ublic danger warrants the substitution of77
executive process for judicial process,” it also noted that
[t]his was admitted with regard to killing men in the actual clash of arms; and we
think it obvious, although it was disputed, that the same is true of temporary

73 Id. at 23-24.
74 212 U.S. at 85. The Court noted that “[t]he facts that we are to assume are that a state of
insurrection existed and that the governor, without sufficient reason, but in good faith, in the
course of putting the insurrection down, held the plaintiff until he thought that he safely
could release him.”
75 Id. at 84-85.
76 See Sterling v. Constantin, 287 U.S. 378, 400-01 (1932)(limiting Moyer to its facts and
stating that is well established that executive discretion to respond to emergencies does not
mean that “every sort of action the Governor may take, no matter how unjustified by the
exigency or subversive of private right and the jurisdiction of the courts, otherwise
available, is conclusively supported by mere executive fiat”).
77 Id at 85 (citing Keely v. Sanders, 99 U.S. 441, 446 (1878)).

detention to prevent apprehended harm. As no one would deny that there was
immunity for ordering a company to fire upon a mob in insurrection, and that a
state law authorizing the governor to deprive citizens of life under such
circumstances was consistent with the 14th Amendment, we are of opinion that78
the same is true of a law authorizing by implication what was done in this case.
It may also be argued that, as a claim for civil damages rather than a direct
challenge in the form of a petition for habeas corpus, the Moyer case does not stand
for a general executive authority to detain individuals deemed to be dangerous,
without the ordinary constitutional restrictions. As an interpretation of Colorado’s
constitution rather than that of the United States, the decision may not apply to
Presidential action. Other courts have reached the opposite conclusion — that those
wrongfully detained by order of the President may recover damages from their
capt o rs. 79
U.S. Practice - Detention of Enemies on U.S.
The following sections give a brief treatment of the twentieth-century history
of the internment of individuals who are deemed “enemies” or determined to be too
dangerous to remain at liberty during a national emergency. A survey of the history
reveals that persons who are considered likely to act as an enemy agent on U.S.
territory traditionally have been treated as alien enemies rather than prisoners of war
or “enemy combatants” by the military, even when the individuals were members of
the armed forces of enemy nations, although in the latter case they might also be tried
by military commission or court-martial, if accused of a crime. Persons acting within
the territory of the United States on behalf of an enemy state who were not members
of the armed forces of that state, including American citizens accused of spying or
sabotage, have been tried in federal court. Individuals captured on the battlefield
abroad have been handled in accordance with government regulations interpreting the
law of war.80

78 Id. at 85-86.
79 See, e.g., Ex parte Orozco, 201 F. 106 (W.D. Texas 1912) (alien held by military without
charge on suspicion of organizing military expedition in violation of neutrality laws awarded
damages); ex parte De la Fuente, 201 F. 119 (W.D. Texas 1912) (same); see also Hohri v.
United States, 586 F.Supp. 769 (D.D.C. 1984), aff’d per curiam 847 F.2d 779 (Fed.
Cir.1988), cert denied 488 U.S. 925 (1988) (Japanese-American internees and their
descendants suffered damages for unconstitutional taking based on World War II internment
where government was aware that military necessity to justify the internment was
unfounded, although suit was barred by statute of limitations).
80 See DoD Dir. 2310.1, DoD Program for Enemy Prisoners of War (EPOW) and Other
Detainees (1994); see generally CRS Report RL31367 (summarizing history of U.S.
treatment of battlefield captives).

Internment of Enemy Aliens during World War I
The Alien Enemy Act was originally enacted in 1798 as part of the Alien and
Sedition Act,81 but saw greater use during World War I than in previous wars.82 The
statute grants the President broad authority, during a declared war or presidentially
proclaimed “predatory invasion,” to institute restrictions affecting alien enemies,
including possible detention and deportation. On April 6, 1917, the date Congress
declared war against Germany, President Wilson issued a Proclamation under the
Alien Enemy Act warning alien enemies against violations of the law or hostilities
against the United States.83 Offenders would be subject not only to the applicable
penalties prescribed by the domestic laws they violated, but would also be subject to
restraint, required to give security, or subject to removal from the United States under
regulations promulgated by the President.84
The government urged the courts to uphold the constitutionality of the act as
a proper exercise of Congress’ power over the persons and property of alien enemies
found on U.S. territory during war, a power it argued derives from the power of
Congress to declare war and make rules concerning captures on land and water,85 and
which was also consistent with the powers residing in sovereign nations under
international law. The law was vital to national security because “[a]n army of spies,
incendiaries, and propagandists may be more dangerous than an army of soldiers.”86
The President reported to Congress a list of 21 instances of “improper activities of
German officials, agents, and sympathizers in the United States” prior to the
declaration of war.87 The government further argued that the statute did not require

81 Act of July 6, 1798, §1,1 Stat. 577.
82 See Supplemental Brief for the United States in Support of the Plenary Power of Congress
over Alien Enemies, and the Constitutionality of the Alien Enemy Act 20 (1918), Ex parte
Gilroy, 257 F. 110 (S.D.N.Y. 1919), (hereinafter “Alien Enemy Brief”) (observing that the
cases arising under the Alien Enemy Act “contain no expression of doubt by the courts as
to its constitutionality”). In Gilroy, the government argued that the Executive’s
determination that an individual is an enemy alien is final, even though it can be shown that
the individual is a citizen. 257 F. at 112. The court rejected that contention, finding the
petitioner was an American citizen and not subject to the Alien Enemy Act. Id.
83 40 Stat. 1650 (1917).
84 40 Stat. 1651 (1917).
85 See Alien Enemy Brief, supra note 80, at 39. The government further argued that the issue
of what was to be done with enemy persons as well as property was dictated by policy, to
be determined by Congress rather than the courts, and did not flow as a necessary power as
the result of a declaration of war. See id. at 50 (citing Brown v. United States, (8 Cranch)

110, 126).

86 Id. at 40.
87 See id. at 41. The list was excerpted from H.Rept. 65-1 (1917) and listed 21 incidents
“chosen at random” to demonstrate the dangerousness of German agents and the need to
intern them. The list included both civilians and military members. One incident described
a group of German reservists who organized an expedition to go into Canada and carry out
hostile acts. See id. at 71(reporting indictments had been returned against the conspirators).

a hearing prior to internment, because the power and duty of the President was to act
to prevent harm in the context of war, which required the ability to act based on
suspicion rather than only on proven facts.88
While the act would permit regulations affecting all persons within the statutory
definition of alien enemy,89 it was the practice of the United States to apply
restrictions only to alien enemies who were found to constitute an active danger to
the state.90 Aliens affected by orders promulgated under the act did not have recourse
to the courts to object to the orders on the grounds that the determination was not
made in accordance with due process of law, but could bring habeas corpus petitions
to challenge their status as enemy aliens.91
In at least two instances, enemy spies or saboteurs entered the territory of the
United States and were subsequently arrested. Pablo Waberski admitted to U.S.
secret agents to being a spy sent by the Germans to “blow things up in the United
States.” Waberski, who was posing as a Russian national, was arrested upon crossing
the border from Mexico into the United States and charged with “lurking as a spy”
under article 82 of the Articles of War.92 Attorney General T. W. Gregory opined in
a letter to the President that the jurisdiction of the military to try Waberski by military
tribunal was improper, noting that the prisoner had not entered any camp or
fortification, did not appear to have been in Europe during the war, and thus could
not have come through the fighting lines or field of military operations.93 An ensuing
disagreement between the Departments of War and Justice over the respective

87 (...continued)
The report of the Attorney General for the year ending 1917 contained another list of federal
court cases involving German agents, some of whom were military officers. See id at
Appendix C. Some of the cases cited involved hostile acts, such as using explosives against
ships and other targets, conducting military expeditions, and recruiting spies and
insurrectionists. See id.
88 See id. at 43.
89 See 50 U.S.C. § 21 (including all natives, citizens, denizens, or subjects of the hostile
nation or government over the age of 18 within the United States, excepting those who had
been naturalized). The act was broadened in 1918 to include women. Act of April 16, 1918,
P.L. 65-131, 40 Stat. 531 (1918).
90 See National Defense Migration, Fourth Interim Report of the House Select Committee
Investigating Migration, Findings and Recommendations on Problems of Evacuation of
Enemy Aliens and Others from Prohibited Military Zones, H.Rept. 77-2124, at153 n.4
(1942) (hereinafter “Defense Migration Report”)(contrasting U.S. practice against history
of indiscriminate internment of enemy aliens applied during World War I in the United
Kingdom, France and Germany). International law now provides protection for enemy
aliens, including those definitely suspected of hostile activity against the state. See GC,
supra note 27, art. 5.
91 See Minotto v. Bradley, 252 F. 600 (N.D. Ill. 1918); Ex parte Fronklin, 253 F. 984 (N.D.
Miss. 1918).
92 Now article 106, UCMJ, codified at 10 U.S.C. § 906.
93 See 31 Op. Att’y Gen. 356 (1918) (citing article 29 of the Hague Convention of 1917,
Respecting the Laws and Customs of War on Land).

jurisdictions of the FBI and military counterintelligence to conduct domestic
surveillance was resolved by compromise.94
Waberski, an officer of the German armed forces whose real name turned out
to be Lothar Witzke, was sentenced to death by a military commission.
Subsequently, the new Attorney General, A. Mitchell Palmer, reversed the earlier AG
opinion based on a new understanding of the facts of the case, including proof that
the prisoner was a German citizen and that there were military encampments close
to the area where he was arrested.95 President Wilson commuted Witzke’s sentence
to life imprisonment at hard labor in Fort Leavenworth and later pardoned him,
possibly due to lingering doubts about the propriety of the military tribunal’s
jurisdiction to try the accused spy,96 even though Congress had defined the crime of
spying and provided by statute that it was an offense triable by military commission.97
The question of military jurisdiction over accused enemy spies arose again in
the case of United States ex rel. Wessels v. McDonald,98 a habeas corpus proceeding
brought by Herman Wessels to challenge his detention by military authorities while
he was awaiting court-martial for spying. The accused was an officer in the German
Imperial Navy who used a forged Swiss passport to enter the United States and
operated as an enemy agent in New York City. He was initially detained as an alien
enemy pursuant to a warrant issued in accordance with statute. He contested his
detention on the basis that the port of New York was not in the theater of battle and
courts in New York were open and functioning, arguing Milligan required that he be
tried by an Article III court.99 The court found that its inquiry was confined to
determining whether jurisdiction by court martial was valid, which it answered
affirmatively after examining relevant statutes and finding that, under international
law, the act of spying was not technically a crime.100 The court concluded that the
constitutional safeguards available to criminal defendants did not apply, noting that
whoever “joins the forces of an enemy alien surrenders th[e] right to constitutional
protections.” The Supreme Court did not have the opportunity to address the merits
of the case, having dismissed the appeal per stipulation of the parties.101 However,
two American citizens who were alleged to have conspired to commit espionage with

94 See National Counterintelligence Center, Counterintelligence Reader: American
Revolution to World War II, available at [].
95 See 40 Op. Att’y Gen. 561 (1919). The opinion was not published until July 29, 1942,
during the trial of the eight Nazi saboteurs.
96 See National Counterintelligence Center, supra note 92.
97 Article of War 82 provided that those caught lurking as spies near military facilities “or
elsewhere” could be tried by military tribunal.
98 265 F. 754 (E.D.N.Y.1920).
99 Id. at 758.
100 Id. at 762 (noting that a spy may not be tried under international law when he returns to
his own lines, and that spying is a military offense only).
101 Wessels v. McDonald, 256 U.S. 705 (1921).

Wessels were tried and acquitted of treason in federal court,102 and subsequently
In 1918, a bill was introduced in the Senate to provide for trial by court-martial
of persons not in the military who were accused of espionage, sabotage, or other
conduct that could hurt the war effort.103 In a letter to Representative John E. Raker
explaining his opposition to the idea, Attorney General T.W. Gregory provided
statistics about war-related arrests and prosecutions.104 According to the letter, of 508
espionage cases that had reached a disposition, 335 had resulted in convictions, 31
persons were acquitted, and 125 cases were dismissed.105 Sedition and disloyalty
charges had yielded 110 convictions and 90 dismissals or acquittals.106
Acknowledging that the statistics were incomplete, the Attorney General concluded
that the statistics did not show a cause for concern.107 He also reiterated his position
that trial of civilians for offenses committed outside of military territory by court-
martial would be unconstitutional, and attributed the complaints about the
inadequacies of the laws or their enforcement to:
the fact that people, under the emotional stress of the war, easily magnify rumor
into fact, or treat an accusation of disloyalty as though it were equal to proof of
disloyalty. No reason, however, has as yet developed which would justify
punishing men for crime without trying them in accordance with the time-108
honored American method of arriving at the truth.
The record does not disclose any mention of the option of deeming suspects to be
unlawful combatants based on their alleged association with the enemy, detaining
them without any kind of trial.
Internment of Enemies during World War II
During the Second World War, President Roosevelt made numerous
proclamations under the Alien Enemy Act for the purpose of interning aliens deemed

102 See United States v. Fricke, 259 F. 673 (S.D.N.Y. 1919); United States v. Robinson, 259
F. 685 (S. D. N. Y. 1919).
103 S. 4364, 65th Cong. (1918). The bill would have found that:
owing to changes in the conditions of modern warfare, whereby the enemy now
attempts to attack and injure the prosecution of the war by the United States, by
means of civilian and other agents and supporters behind the lines spreading false
statements and propaganda, injuring and destroying the things and utilities
prepared or adapted for the use of the land and naval forces of the United States,
... the United States [now constitutes] a part of the zone of operations ....
104 See 57 CONG. REC. APP. pt. 5, at 528-29 (1918).
105 See id.
106 See id.
107 See id. at 528.
108 See id.

dangerous or likely to engage in espionage or sabotage.109 At the outset of the war,
the internments were effected under civil authority of the Attorney General, who
established “prohibited areas” in which no aliens of Japanese, Italian, or German
descent were permitted to enter or remain, as well as a host of other restraints on
affected aliens. The President, acting under statutory authority, delegated to the
Attorney General the authority to prescribe regulations for the execution of the
program. Attorney General Francis Biddle created the Alien Enemy Control Unit to
review the recommendations of hearing boards handling the cases of the more than
2,500 enemy aliens in the temporary custody of the Immigration and Naturalization
Service (INS).110
In February of 1942, the President extended the program to cover certain
citizens111 as well as enemy aliens, and turned over the authority to prescribe
“military areas” to the Secretary of War, who further delegated the responsibilities
under the order with respect to the west coast to the Commanding General of the
Western Defense Command. The new order, Executive Order 9066,112 clearly
amended the policy established under the earlier proclamations regarding aliens and
restricted areas, but did not rely on the authority of Alien Enemy Act, as the previous
proclamations had done.113 Although the Department of Justice denied that the
transfer of authority to the Department of War was motivated by a desire to avoid
constitutional issues with regard to the restriction or detention of citizens, the House
Select Committee Investigating National Defense Migration found the shift in
authority significant, as it appeared to rely on the nation’s war powers directly, and
could find no support in the Alien Enemy Act with respect to citizens.114 The
summary exercise of authority under that act to restrain aliens was thought by the

109 The President issued the following proclamations under the authority of 50 U.S.C. § 21:
Proc. No. 2525, Dec. 7, 1941, 55 Stat. Pt. 2, 1700 (with respect to invasion by Japan); Proc.
No. 2526, Dec. 8, 1941, 55 Stat. Pt. 2, 1705 (with respect to threatened invasion by
Germany); Proc. No. 2527, Dec. 8, 1941, 55 Stat. Pt. 2, 1707 (with respect to threatened
invasion by Italy).
110 See Defense Migration Report, supra note 88, at 163.
111 General De Witt’s declaration of military areas indicated that five classes of civilians
were to be affected:
Class 1, all persons who are suspected of espionage, sabotage, fifth column, or
other subversive activity; class 2, Japanese aliens; class 3, American-born
persons of Japanese lineage; class 4, German aliens; class 5, Italian aliens.
See id.
112 17 Fed. Reg. 1407 (Feb. 19, 1942).
113 See Defense Migration Report, supra note 88, at 162-66 (recounting history of general
evacuation orders issued by Lt. Gen. John De Witt, commanding general of the western
defense command).
114 See id. at 166. Attorney General Francis Biddle later wrote that he had opposed the
evacuation of Japanese-American citizens, and had let it be known that his Department
“would have nothing to do with any interference with citizens, or recommend the suspension
of the writ of habeas corpus.” See FRANCIS BIDDLE, IN BRIEF AUTHORITY 216-17 (1962);
id. at 219 (reporting his reaffirmation to the President of his continuing opposition to the
evacuation just prior to the signing of the Order).

Committee to be untenable in the case of U.S. citizens, and the War Department felt
congressional authorization was necessary to provide authority for its enforcement.115
Congress granted the War Department’s request, enacting with only minor
changes the proposed legislation providing for punishment for the knowing violation
of any exclusion order issued pursuant to Executive Order 9066 or similar executive
order.116 A policy of mass evacuation from the West Coast of persons of Japanese
descent — citizens as well as aliens — followed, which soon transformed into a
system of compulsive internment at “relocation centers.”117 Persons of German and
Italian descent (and others) were treated more selectively, receiving prompt (though
probably not full and fair) loyalty hearings118 to determine whether they should be
interned, paroled, or released. The disparity of treatment was explained by the theory
that it would be impossible or too time-consuming to attempt to distinguish the loyal
from the disloyal among persons of Japanese descent.119
In a series of cases, the Supreme Court limited but did not explicitly strike down
the internment program. In the Hirabayashi case, the Supreme Court found the
curfew imposed upon persons of Japanese ancestry to be constitutional as a valid
war-time security measure, even as implemented against U.S. citizens, emphasizing
the importance of congressional ratification of the Executive Order.120 Hirabayashi
was also indicted for violating an order excluding him from virtually the entire west
coast, but the Court did not review the constitutionality of the exclusion measure
because the sentences for the two charges were to run concurrently.121 Because the
restrictions affected citizens solely because of their Japanese descent, the Court
framed the relevant inquiry as a question of equal protection, asking
whether in the light of all the facts and circumstances there was any substantial
basis for the conclusion, in which Congress and the military commander united,
that the curfew as applied was a protective measure necessary to meet the threat

115 See Defense Migration Report, supra note 88, at 167.
116 P.L. 77-503, codified at 18 U.S.C. 1383 (1970 ed.), repealed by P.L. 94-412, Title V, §

501(e) (1976).

118 See id. at 285 (describing impediments to full and fair hearings, including a prohibition
on detainees’ representation by an attorney, inability to object to questions, presumption in
favor of the government, and ultimate decision falling to reviewers at the Alien Enemy
Control Unit).
119 See id. at 288-89 (pointing out that there appeared to have been a greater danger of
sabotage and espionage committed by German agents, substantiated by the German
saboteurs case noted supra).
120 Hirabayashi v. United States, 320 U.S. 81, 89-90 (1943) (emphasizing that the act of
March 21, 1942, specifically provided for the enforcement of curfews).
121 Id. at 105 (also declining to address the government’s contention that an order to report
to the Civilian Control Station did not necessarily entail internment at a relocation center).

of sabotage and espionage which would substantially affect the war effort and122
which might reasonably be expected to aid a threatened enemy invasion.
In a concurring opinion, Justice Douglas added that in effect, due process
considerations did not apply to ensure that only individuals who were actually
disloyal were affected by the restrictions, even if it were to turn out that only a small
percentage of Japanese-Americans were actually disloyal.123 However, he noted that
a more serious question would arise if a citizen did not have an opportunity at some
point to demonstrate his loyalty in order to be reclassified and no longer subject to124
the restrictions.
In Korematsu,125 the Supreme Court upheld the conviction of an American
citizen for remaining in his home, despite the fact that it was located on a newly
declared “Military Area” and was thus off-limits to persons of Japanese descent.
Fred Korematsu also challenged the detention of Japanese-Americans in internment
camps, but the Court declined to consider the constitutionality of the detention itself,
as Korematsu’s conviction was for violating the exclusion order only. The Court, in
effect, validated the treatment of citizens in a manner similar to that of enemy aliens
by reading Executive Order 9066 together with the act of Congress ratifying it as
sufficient authority under the combined war powers of the President and Congress,
thus avoiding having to address the statutory scope of the Alien Enemy Act.
In Ex parte Endo,126 however, decided the same day as Korematsu, the Supreme
Court did not find adequate statutory underpinnings to support the internment of
loyal citizens. The Court ruled that the authority to exclude persons of Japanese
ancestry from declared military areas did not encompass the authority to detain
concededly loyal Americans. Such authority, it found, could not be implied from the127
power to protect against espionage and sabotage during wartime. The Court
declined to decide the constitutional issue presented by the evacuation and internment
program, instead interpreting the executive order, along with the act of March 27,

1942 (congressional ratification of the order),128 narrowly to give it the greatest129

chance of surviving constitutional review. Accordingly, the Court noted that
detention in Relocation Centers was not mentioned in the statute or executive order,
but was developed during the implementation of the program. As such, the authority
to detain citizens could only be found by implication in the act, and must therefore
be found to serve the ends Congress and the President had intended to reach. Since
the detention of a loyal citizen did not further the campaign against espionage and
sabotage, it could not be authorized by implication.

122 Id. at 95.
123 Id. at 106 (Douglas, J., concurring).
124 Id. at 109 (Douglas, J., concurring).
125 323 U.S. 214 (1944).
126 323 U.S. 283 (1944).
127 323 U.S. at 302.
128 Id. at 298 (citing Hirabayashi at 87-91).
129 Id. at 299.

The Court avoided the question of whether internment of citizens would be
constitutionally permissible where loyalty were at issue or where Congress explicitly
authorized it, but the Court’s use of the term “concededly loyal” to limit the scope
of the finding may be read to suggest that there is a Fifth Amendment guarantee of
due process applicable to a determination of loyalty or dangerousness. While the
Fifth Amendment would not require the same process that is due in a criminal case,
it would likely require at least reasonable notice of the allegations and an opportunity
for the detainee to be heard.
At least one American with no ethnic ties to or association with an enemy
country was subjected to an exclusion order issued pursuant to Executive Order
9066. Homer Wilcox, a native of Ohio, was excluded from his home in San Diego
and removed by military force to Nevada, although the exclusion board had
determined that he had no association with any enemy and was more aptly described
as a “harmless crackpot.”130 He was the manager of a religious publication that
preached pacifism, and was indicted along with several others for fraud in connection
with the publication.131 The district court awarded damages in favor of Wilcox, but
the circuit court reversed, finding the exclusion within the authority of the military
command under Executive Order 9066 and 18 U.S.C. § 1383, and holding that
the evidence concerning plaintiff’s activities and associations provided a
reasonable ground for the belief by defendant ... that plaintiff had committed
acts of disloyalty and was engaged in a type of subversive activity and leadership
which might instigate others to carry out activities which would facilitate the
commission of espionage and sabotage and encourage them to oppose measures
taken for the military security of Military Areas Nos. 1 and 2, and that plaintiff’s
presence in the said areas from which he had been excluded would increase the
likelihood of espionage and sabotage and would constitute a danger to military132
security of those areas.
The court also found that the act of Congress penalizing violations of military orders
under Executive Order 9066 did not preclude General De Witt from using military133
personnel to forcibly eject Wilcox from his home.
The Japanese internment program has since been widely discredited,134 the
convictions of some persons for violating the orders have been vacated,135 and the136
victims have received compensation, but the constitutionality of detention of

130 See Wilcox v. Emmons, 67 F.Supp 339 (S.D. Cal.), rev’d sub nom De Witt v. Wilcox,

161 F.2d 785 (9th Cir. 1947).

131 De Witt v. Wilcox, 161 F.2d 785 (9th Cir.), cert. denied, 332 U.S. 763 (1947).
132 Id at 790.
133 Id. at 788.
134 See generally PERSONAL JUSTICE DENIED, supra note 115.
135 Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984); Hirabayashi v. United
States, 828 F.2d 591 (9th Cir. 1987); Yasui v. United States, 772 F.2d 1496 (9th Cir. 1985).
136 Through the Civil Liberties Act of 1988, Congress provided $20,000 to each surviving

citizens during war who are deemed dangerous has never expressly been ruled per
se unconstitutional.137 In the cases of citizens of other ethnic backgrounds who were
interned or otherwise subject to restrictions under Executive Order 9066, courts
played a role in determining whether the restrictions were justified, sometimes
resulting in the removal of restrictions.138 Because these persons were afforded a
limited hearing to determine their dangerousness, a court later ruled that the Equal
Protection Clause of the Constitution did not require that they receive compensation
equal to that which Congress granted in 1988 to Japanese-American internees.139
It may be argued that Hirabayashi and the other cases validating Executive
Order 9066 (up to a point) support the constitutionality of preventive detention of
citizens during war, at least insofar as the determination of dangerousness of the
individual interned is supported by some evidence and some semblance of due
process is accorded the internee. However, it was emphasized in these cases that
Congress had specifically ratified Executive Order 9066 by enacting 18 U.S.C. §
1383, providing a penalty for violation of military orders issued under the Executive
Order. Thus, even though the restrictions and internments occurred in the midst of
a declared war, a presidential order coupled with specific legislation appear to have
been required to validate the measures. The internment of Japanese-American
citizens without individualized determination of dangerousness was found not to be
authorized by the Executive Order and ratifying legislation (the Court thereby
avoiding the constitutional issue), although the President had issued a separate
Executive Order to set up the War Relocation Authority140 and Congress had given
its tacit support for the internments by appropriating funds for the effort.141

136 (...continued)
individual who had been confined in the camps. P.L. 100-383, 102 Stat. 903 (1988), codified
at 50 U.S.C. App. §§ 1989b et seq.
137 But see Hohri v. United States, 586 F.Supp. 769 (D.D.C. 1984), aff’d per curiam 847
F.2d 779 (Fed. Cir.1988), cert denied 488 U.S. 925 (1988) (unconstitutional taking of
property interests of internees was found where government officials were aware of
allegations that there was no military necessity sufficient to justify internment).
138 See, e.g. De Witt v. Wilcox, 161 F.2d 785 (9th Cir. 1947)(reversing award of damages to
U.S. citizen who had been ordered excluded from the west coast and who was forcibly
removed to Las Vegas by the military); Schueller v. Drum, 51 F.Supp. 383 (E.D. Pa.
(1943)(exclusion order pertaining to naturalized citizen vacated where the facts were not
found that “would justify the abridgement of petitioner’s constitutional rights”); Scherzberg
v. Maderia, 57 F.Supp. 42 (E.D. Pa. 1944)(despite deference to the Congress and the
President with regard to wartime actions, whether the facts of a specific case provided
rational basis for individual order remained justiciable, and in the present case, “civil law
[was] ample to cope with every emergency arising under the war effort”).
139 See Jacobs v. Barr, 959 F.2d 313 (D.C. Cir. 1992).
140 Exec. Order No. 9102 (1942) (purporting to implement Exec. Order No. 9066).
141 See Ex parte Endo, 323 U.S. 283 (1944).

The only persons who were treated as enemy combatants pursuant to
Proclamation No. 2561142 were members of the German military who had been
captured after landing on U.S. beaches from German submarines.143 Collaborators
and persons who harbored such saboteurs were tried in federal courts for treason or
violations of other statutes.144 Hans Haupt, the father of one of the saboteurs, was
sentenced to death for treason, but this sentence was overturned on the ground that
procedures used during the trial violated the defendant’s rights.145 On retrial, Haupt
was sentenced to life imprisonment, but his sentence was later commuted on the
condition that he leave the country. Another person charged with treason for his part
in the saboteurs’ conspiracy, Helmut Leiner, was acquitted of treason but then
interned as an enemy alien.146 Anthony Cramer, an American citizen convicted of
treason for assisting one of the saboteurs to carry out financial transactions, had his
conviction overturned by the Supreme Court on the grounds that the overt acts on
which the charge was based were insufficient to prove treason.147 Emil Krepper, a
pastor living in New Jersey, came under suspicion because his name was found
printed in secret ink on the saboteur’s handkerchief, although he never met with any
of the saboteurs. He was indicted for violating TWEA and receiving a salary from
the German government without reporting his activity as a foreign agent.148
These cases involving collaborators with the Quirin eight, as well as other
unrelated cases of sabotage or collaboration with the enemy during World War II, did
not result in any military determinations that those accused were enemy combatants.
It is thus not clear what kind of association with Germany or with other enemy
saboteurs, short of actual membership in the German armed forces, would have
enabled the military to detain them as enemy combatants under the law of war.149 It

142 Proclamation No. 2561, of July 2, 1942, 7 Fed. Reg. 5101, 56 Stat. 1964. Like Exec.
Order No. 9066 issued earlier that same year, Proc. 2561 retained terminology from the
Alien Enemy Act but did not explicitly rely on it for authority. However, during oral
argument before the Supreme Court, the Attorney General placed some emphasis on the fact
that the Proclamation was consistent with the Alien Enemy Act as well as the Articles of
War, and was thus authorized by Congress. See LANDMARK BRIEFS, supra note 39, at 594-


143 There were ten in all. Eight saboteurs were tried by military commission in 1942. See
Ex parte Quirin, 317 U.S. 1 (1942). Two other saboteurs landed by submarine in 1945 and
were convicted by military commission. See Colepaugh v. Looney, 235 F.2d 429 (10th Cir.

1956). See Military Tribunals: The Quirin Precedent, CRS Report RL31340.

144 CRS Report RL31340 at 15.
145 United States v. Haupt, 136 F.2d 661 (7th Cir. 1943).
146 Leiner is Interned After Acquittal Ordered by Court in Treason Case, NY TIMES, Dec.
1, 1942, at 1. He was subsequently indicted for violating the Trading with the Enemy Act
(TWEA). Leiner Reindicted for Aiding Treason, NY TIMES, Dec. 5, 1942, at 17.
147 Cramer v. United States, 325 U.S. 1 (1945). He was later found guilty of violating the
TWEA and censorship laws.
148 See Krepper Guilty as Spy, NY TIMES, Mar. 15, 1945, at 25.
149 See also discussion regarding proposed War Security Act, supra note 44, and
accompanying text.

appears that Quirin was not interpreted at the time as having established executive
authority to detain persons based on their alleged hostile intent, particularly without
any kind of a trial.
After the Quirin decision, the Attorney General asked Congress to pass
legislation to strengthen criminal law relating to internal security during wartime.150
Attorney General Biddle wrote that new law was necessary to cover serious gaps and
inadequacies in criminal law, which he argued did not provide sufficient punishment
for hostile enemy acts perpetrated on the territory of the United States.151 The House
Committee on the Judiciary endorsed the proposed War Security Act, pointing to the
fact that it had been necessary to try the eight Nazi saboteurs by military commission
due to the inadequacy of the penal code to punish the accused for acts that had not
yet been carried out.152 It also suggested that military jurisdiction might be
unavailable to try enemy saboteurs who had not “landed as part of a small invasion
bent upon acts of illegal hostilities.”153 The bill passed in the House of
Representatives, but was not subsequently taken up in the Senate.

150 H.Rept. 78-219 (1943) (describing Justice Department proposal introduced in previous
Congress as H.R. 7737, then under consideration as amended in H.R. 2087). The War
Security Act would have provided punishment for a list of “hostile acts against the United
States” if committed with the intent to aid a country with which the United States was at
war, to include sabotage, espionage, harboring or concealing an agent or member of the
armed forces of an enemy state, or entering or leaving the United States with the intent of
providing aid to the enemy. It also would have made it a criminal offense to fail to report
information giving rise to probable cause to believe that another has committed, is
committing or plans to commit a hostile act against the United States. Id. at 11. Title II of
the act would have modified court procedure in cases involving these “hostile acts”as well
as certain other statutes, that would have allowed the Attorney General to certify the
importance of a case to the war effort, resulting in expedited proceedings, enhanced secrecy
for such proceedings, and a requirement for the approval of a federal judge to release the
accused on bail. The act was not intended to affect the jurisdiction of military tribunals and
did not cover uniformed members of the enemy acting in accordance with the law of war.
Id. at 12.
151 See id. at 1-2 (letter from Attorney General to the House of Representatives dated
October 17, 1942).
152 See id. at 5 (stating that the maximum criminal punishment for a conspiracy to commit
sabotage would have been only two years).
153 See id; see also 1942 ATTY GEN. ANN. REP. 13. This view was echoed during floor
debate of the proposed act in the House of Representatives. Supporters and detractors of
the bill alike seemed to agree that the military tribunal upheld in Ex parte Quirin was an
extraordinary measure that was constitutionally permissible only because the saboteurs had
come “wearing German uniforms” and thus were “subject to be prosecuted under military
law.” See 89 Cong. Rec. 2780 - 82 (1943) (remarks by Reps. Michener, Rankin, and
Kefauver). There does not appear to be any suggestion that Quirin could be interpreted to
authorize the detention without trial of individuals suspected of hostile intent by designating
them to be unlawful enemy combatants.

The Cold War
After the close of World War II, the Congress turned its attention to the threat
of communism. Recognizing that the Communist Party presented a different kind of
threat from that of a strictly military attack, members of Congress sought to address
the internal threat with innovative legislation.154 Introduced in the wake of the North
Korean attack on South Korea, the Internal Security Act (ISA) of 1950155 was the
culmination of many legislative efforts to provide means to fight what was viewed
as a foreign conspiracy to infiltrate the United States and overthrow the government
by means of a combination of propaganda, espionage, sabotage, and terrorist acts.156
The Attorney General presented to the Congress a draft bill that would strengthen the
espionage statutes, amend the Foreign Agents Registration Act, and provide authority
for U.S. intelligence agencies to intercept communications.157 According to the
Attorney General, the legislation was necessary because
[t]he swift and more devastating weapons of modern warfare coupled with the
treacherous operations of those who would weaken our country internally,
preliminary to and in conjunction with external attack, have made it imperative158
that we strengthen and maintain an alert and effective peacetime vigilance.
S. 4037 combined the proposed legislation with other bills related to national
security, including measures to exclude and expel subversive aliens, to detain or
supervise aliens awaiting deportation, and to deny members of communist
organizations the right to travel on a U.S. passport. The bill also contained a
requirement for Communist-controlled organizations and Communist-front159
organizations to register as such. President Truman and opponents of the so-called
McCarran Act thought the registration requirements and other provisions likely to

154 During the initial debate of the Internal Security Act (ISA), it was urged:
As our case is new, we must think anew and act anew.
See 96 Cong. Rec. 14,296, 14,297 (1950)(remarks of Sen. Wiley, quoting Abraham
155 64 Stat. 987 (1950).
156 See id. §2(1) (finding)
There exists a world Communist movement which, in its origins, its
development, and its present practice is a world-wide revolutionary movement
whose purpose it is, by treachery, deceit, infiltration into other groups
(governmental or otherwise), espionage, sabotage, terrorism, and any other
means deemed necessary to establish a Communist totalitarian dictatorship ....
157 See 95 CONG. REC. 440-43 (1949) (Sen. McCarran introducing S. 595).
158 Letter from Attorney General Tom C. Clark to Sen. McCarran, reprinted at 95 CONG.
REC. 441, 442 (1949).
159 See S.Rept. 81-2369, Protecting the Internal Security of the United States 4 (1950)
(defining Communist-controlled organizations based on “their domination by a foreign
government or the world Communist movement”).

be either unconstitutional or ineffective, and expressed concern about possible far-
reaching civil liberties implications.160
Opponents of the McCarran Act sought to substitute a new bill designed to
address the security concerns in what they viewed as a more tailored manner. Senator
Kilgore introduced the Emergency Detention Act161 (Kilgore bill) to authorize the
President to declare a national emergency under certain conditions, during which the
Attorney General could enact regulations for the preventive incarceration of persons
suspected of subversive ties. At the time of the debate, 18 U.S.C. § 1383 was still on
the books and would have ostensibly supported the declaration of military areas and
the enforcement of certain restrictions against aliens or citizens deemed dangerous.
Proponents of the Kilgore bill argued that the proposed legislation would create a
program for internment of enemies that would contain sufficient procedural
safeguards to render it invulnerable to court invalidation based on Ex parte Endo.162
The final version of the ISA contained both the McCarran Act and the
Emergency Detention Act. President Truman vetoed the bill, voicing his continued
opposition to the McCarran Act. The President did not take a firm position with
regard to the Emergency Detention Act, stating that
it may be that legislation of this type should be on the statute books. But the
provisions in [the ISA] would very probably prove ineffective to achieve the
objective sought, since they would not suspend the writ of habeas corpus, and
under our legal system to detain a man not charged with a crime would raise
serious constitutional questions unless the writ of habeas corpus were163
The President recommended further study on the matter of preventive detention for
national security purposes. Congress passed the ISA over the President’s veto.164
The Emergency Detention Act, Title II of the ISA, authorized the President to
declare an “Internal Security Emergency” in the event of an invasion of the territory
of the United States or its possessions, a declaration of war by Congress, or
insurrection within the United States in aid of a foreign enemy, where the President
deemed implementation of the measures “essential to the preservation, protection

160 See S.Rept. 81-2369 (minority views of Sen. Kilgore).
161 64 Stat. 1019 (1950) (authorizing the President to declare an “Internal Security
Emergency,” in the event of war, invasion, or insurrection in aid of a foreign enemy, which
would authorize the Attorney General to “apprehend and by order detain each person ...
[where] there is reasonable ground to believe that such person may engage in acts of
espionage or sabotage.”).
162 See 96 CONG. REC. 14,414, 14,418 (remarks of Sen. Douglas, a co-sponsor of the Kilgore
bill, discussing legal precedent for proposed internment and identifying procedural
safeguards incorporated in the proposed bill).
163 See Internal Security Act, 1950 — Veto Message from the President of the United States,
96 CONG. REC. 15,629, 15,630 (1950). (Section 116 of the Emergency Detention Act
explicitly preserved the right to habeas corpus).
164 See 96 CONG. REC. 15,633, 15,726 81st Cong. 2nd Sess. (1950).

and defense of the Constitution.”165 The act authorized the maintenance of the
internment and prisoner-of-war camps used during World War II for use during
subsequent crises, and authorized the Attorney General, during national emergencies
under the act, to issue warrants for the apprehension of “those persons as to whom
there is a reasonable ground to believe that such persons probably will engage in, or
conspire to engage in acts of sabotage or espionage.” Detainees were to be taken
before a preliminary hearing officer within 48 hours of their arrest, where each
detainee would be informed of the grounds for his detention and of his rights, which
included the right to counsel, the privilege against self-incrimination, the right to
introduce evidence and cross-examine witnesses.166 The Attorney General was
required to present evidence to the detainee and to the hearing officer or board “to
the fullest extent possible consistent with national security.”167 Evidence that could
be used to determine whether a person could be detained as dangerous included
evidence that a person received training from or had ever committed or conspired to
commit espionage or sabotage on behalf of an entity of a foreign Communist party
or the Communist Party of the United States, or any other group that seeks the
overthrow of the government of the United States by force.168
No internal emergencies were declared pursuant to the Emergency Detention
Act, despite the United States’ involvement in active hostilities against Communist
forces in Korea and Vietnam and the continued suspicion regarding the existence of
revolutionary and subversive elements within the United States.169 Nevertheless, the
continued existence of the act aroused concern among many citizens, who believed
the act could be used as an “instrumentality for apprehending and detaining citizens
who hold unpopular beliefs and views.”170 Several bills were introduced to amend
or repeal the act.171 The Justice Department supported the repeal of the act, opining

165 ISA title II, § 102, 64 Stat. 1021.
166 Id.§ 104, 64 Stat. 1022.
167 Id.§ 104(f), 64 Stat. 1023 (excluding evidence of any officers or agents of the
government, the revelation of which would be dangerous to the security and safety of the
United States).
168 Id. § 109(h).
169 See H.Rept. 1351, at 1, (1968) entitled “Guerrilla Warfare Advocates in the United
States,” in which the House Committee on Un-American Activities stated its belief that
“there can be no doubt about the fact that there are mixed Communist and black nationalist
elements which are planning and organizing guerrilla-type operations against the United
States.” The Committee concluded that “[a]cts of overt violence by the guerrillas would
mean that they had declared a ‘state of war’ within the country and, therefore, would forfeit
their rights as in wartime. The McCarran Act provides for various detention centers to be
operated throughout the country and these might be utilized for the temporary imprisonment
of warring guerrillas.” Id at 59.
170 See H.Rept. 92-116, at 2, reprinted in 1971 U.S.C.C.A.N. 1435, 1436.
171 Id; see also H.Rept. 91-1599, at 1-2 (Emergency Detention Act of 1950 Amendments,
report accompanying H.R. 19163) (describing public concern based on misconception that
the act authorized the detention of individuals based on race). According to the Justice
Department, the rumors that a system of concentration camps existed was likely instigated

that the potential advantage offered by the statute in times of emergency was
outweighed by the benefits that repealing the detention statute would have by allaying
the fears and suspicions (however unfounded they might have been) of concerned
Congress decided to repeal the Emergency Detention Act in toto in 1971, and
enacted in its place a prohibition on the detention of American citizens except
pursuant to an act of Congress.173 The new language was intended to prevent a return
to the pre-1950 state of affairs, in which “citizens [might be] subject to arbitrary
executive authority” without prior congressional action.174 Executive Order 9066
was formally rescinded in 1976.175 Congress repealed 18 U.S.C. § 1383 later that
year. 176
It may be argued that Congress, in passing the Emergency Detention Act in
1950, was legislating based on its constitutional war powers, to provide for the
preventive detention during national security emergencies of those who might be
expected to act as enemy agents, though not technically within the definition of “alien
enemies.” It does not, therefore, appear that Congress contemplated that the
President already had the constitutional power to declare such individuals to be
enemy combatants, subject to detention under the law of war, except under very
narrow circumstances. The much earlier legislative history accompanying the passage
of the Alien Enemy Act may also be interpreted to suggest that the internment of
enemy spies and saboteurs in war was not ordinarily a military power that could be
exercised by the President alone, or at least, not a power with which Congress could
not constitutionally interfere.177

171 (...continued)
by a pamphlet distributed by a group named Citizens Committee for Constitutional
Liberties, which had been found to be a Communist-front organization that aimed to nullify
the ISA. Id. at 9. H.R. 19163 would have amended the Emergency Detention Act to clarify
persons to whom it could apply and to include procedural safeguards.
172 Id. at 1437.
173 P.L. 92-128 (1971), codified at 18 U.S.C. § 4001(a).
174 See H.Rept. 92-116, at 5 (1971) reprinted in 1971 U.S.C.C.A.N. 1435, 1438 (concluding
that the legislation “will assure that no detention camps can be established without at least
the acquiescence of the Congress”).
175 Proc. 4417, 41 Fed. Reg. 7741 (Feb. 20, 1976) (proclaiming retroactively the termination
of Executive Order 9066 as of the date of cessation of hostilities of World War II, December

31, 1946).

176 See National Emergencies Act § 501(e), P.L. 94-412, 90 Stat. 1255 (Sep. 14, 1976).
According to the legislative history, Congress repealed the penalty for violating military
orders with respect to military areas proclaimed pursuant to any executive order because the
measure had been intended only for wartime, and noted the repeal was consistent with the
earlier repeal of the Emergency Detention Act. See H.Rept. 94-238, at 9-10 (1976).
177 See Alien Enemy Brief, supra note 79, at 14-15.
In this country, [the power to intern enemies] is not lodged wholly in the
Executive; it is in Congress. Perhaps, if war was declared, the President might

The repeal of the Emergency Detention Act and the enactment of 18 U.S.C.
§ 4001(a) may be interpreted to preclude the detention of American citizens as enemy
agents or traitors unless convicted of a crime. If the law of war traditionally supports
the detention of such persons as enemy combatants or unlawful combatants, it may
be questioned why such an approach has not been utilized during past conflicts,
during which the internal security risk of hostile action by “fifth columnists,” spies,
and saboteurs was frequently perceived to equal the danger of military clashes on the
Recent and Current “Enemy Combatant” Cases
One U.S. citizen is known to remain in custody in the United States as an enemy
combatant; the other has been released. It was reported that one Canadian citizen
was being held in U.S. military custody in the United States after his arrest by the178
Canadian Security Intelligence Service. It is unclear whether the man, Mohamed
Mansour Jabarah, is considered an “enemy combatant,” but he reportedly was held
for interrogation and not charged with any offense. A Qatari national who was
lawfully present in the United States has also been declared an “enemy combatant”
and turned over to military custody. The man, Ali Saleh Kahlah Al-Marri, was
originally detained as a material witness on December 12, 2001, in connection with
the investigation into the attacks of September 11, 2001. He was later charged with
credit card fraud and scheduled to stand trial beginning July 21, 2003. However, on
June 23, 2003, President Bush designated him an “enemy combatant” and directed
that he be transferred to the Naval Consolidated Brig in Charleston, South Carolina,
where he is currently being held. His attorneys filed a petition for habeas corpus on
his behalf in the District Court for the Central District of Illinois, which dismissed179

the petition for improper venue.
177 (...continued)
then, as Commander in Chief, exercise a military power over these people; but
it would be best to settle these regulations by civil
(Quoting remarks of Mr. Sewall from 2 Annals of Congress 1790, 5 Congress (1798).
Others may have believed the President had the authority to intern all enemies once war was
[The discretionary power to take enemy aliens into custody] could not be looked
as a dangerous or exorbitant power, since the President would have the power,
the moment war was declared, to apprehend the whole of these people as
enemies, and make them prisoners of war. ... This bill ought rather to be
considered as an amelioration or modification of those powers which the
President already possesses as Commander in Chief, and which the martial law
would prove more rigorous than those proposed by this new regulation.
See id. at 15-16 (quoting remarks of Mr. Otis in Congress, 2 Annals of Congress 1790-91,th

5 Congress (1798).

178 See Allan Thompson, Canadian Held at U.S. Military Base, TORONTO STAR, 8/3/02, at
A09, available online at 2002 WL 24326723.
179 Al-Marri v. Bush, 274 F.Supp.2d 1003 (C.D. Ill. 2003), aff’d 360 F.3d 707 (7th Cir.), cert
denied 125 S.Ct. 34 (2004).

The Case of Yaser Esam Hamdi
Hamdi’s case may be likened to Territo in that he was captured on a field of
battle and was not charged with committing any offense. In Territo, the court cited
the 1929 Geneva Convention Relative to the Treatment of Prisoners of War as the
legal authority for the detention of the petitioner as a prisoner of war, and the
petitioner did not dispute that he had served as a member of the Italian armed forces,
with which the United States was then at war. The sole question before the court was
whether a U.S. citizen could lawfully be treated as a prisoner of war under U.S. law
and the law of war. Territo did not contest his capture as a war prisoner or claim that
his rights under the 1929 Geneva Convention had been violated.
Hamdi, however, reportedly claimed that he is not a member of Al Qaeda or the
Taliban and was present in Afghanistan only to provide humanitarian assistance.180
The Fourth Circuit agreed that “[i]t has long been established that if Hamdi is indeed
an ‘enemy combatant’ who was captured during hostilities in Afghanistan, the
government’s present detention of him is a lawful one.”181 The Fourth Circuit
ordered the district judge to dismiss the petition, holding essentially that a
determination by the military that an individual is an enemy combatant is conclusive,
so long as it is supported by some evidence.182
In the first interlocutory appeal, the Fourth Circuit vacated a district court order
that the prisoner be provided immediate, unmonitored access to an attorney, urging
the district court to show deference to the government in its examination of the issue,
but expressly declining to embrace the “sweeping proposition” that “with no
meaningful judicial review, any American citizen alleged to be an enemy combatant
could be detained indefinitely without charges or counsel on the government’s say-
so.”183 On remand, the district court ordered the government to provide additional
information to support its conclusion that Hamdi is an enemy combatant.184 The
court found the petitioner to be entitled to due process of law under the Fifth
Amendment, and expressed the intent to inquire into the authority of the person
making the determination of Hamdi’s status, whether the screening criteria used to
determine such status meet due process requirements, the national security aims
served by his continued detention, and whether the relevant military regulations and
international law require a different procedure.185

180 See Hamdi v. Rumsfeld, 296 F.3d 278, 281-83 (4th Cir. 2002)(“Hamdi II”).
181 Id. at 283.
182 See Hamdi v. Rumsfeld, 316 F.3d 450 (“Hamdi III”), reh’g en banc denied, 337 F.3d 335
(4th Cir. 2003)(where individual is designated as an enemy combatant and it is undisputed
that he was captured in a combat zone, no further judicial inquiry is warranted after the
government “has set forth factual assertions which would establish a legally valid basis for
the petitioner’s detention”).
183 See Hamdi II, 296 F.3d at 283.
184 See Hamdi v. Rumsfeld, 243 F.Supp.2d 527, 532 (E.D. Va. 2002).
185 Id. at 530. The court refers to the DoD Joint Service Regulation, Enemy Prisoners of

On appeal to the Fourth Circuit, the government argued that the proof already
submitted to the court, which consisted of a declaration by Michael Mobbs, a special
advisor to the Under Secretary of Defense for Policy, was sufficient as a matter of
law to establish the legality of the detention.186 The Fourth Circuit agreed,187
declaring that since the Hamdi petition conceded that Hamdi had been seized in
Afghanistan during a time of military hostilities, there were no disputed facts that
would necessitate the evidentiary hearing ordered by the district court, which could
also involve a significant interference with the war effort.188 The court also disposed
of the legal arguments put forth on Hamdi’s behalf, finding that 18 U.S.C. § 4001(a)
does not apply and that the Geneva Conventions are non-self-executing treaties and
therefore do not give individuals a right of action. The court vacated the production
order issued by the district court and ordered the petition to be dismissed.
The Supreme Court vacated the Fourth Circuit decision and remanded it to
allow Hamdi a meaningful opportunity to contest his status as an “enemy
combatant.” However, the Justices could not reach a consensus for the rationale.
Justice O’Connor, joined by the Chief Justice as well as Justices Kennedy and Breyer
wrote the opinion for the Court. The plurality found that although detention such as
Hamdi’s is an ordinary aspect of war-fighting and thus was authorized by implication
by the AUMF, “due process demands that a citizen held in the United States as an
enemy combatant be given a meaningful opportunity to contest the factual basis for
that detention before a neutral decisionmaker.189 Declaring that “a state of war is not
a blank check for the President when it comes to the rights of the Nation’s citizens,”
the Court rejected the Government's view that separation of powers principles
“mandate a heavily circumscribed role for the courts in such circumstances.”190 It
also rejected the Fourth Circuit’s characterization of the circumstances surrounding
Hamdi’s seizure as “undisputed,”191 and held that for Hamdi to continue to be
detained as an enemy combatant,192 he would need to be found to have been “part of
or supporting forces hostile to the United States or coalition partners” and “engaged

185 (...continued)
War, Retained Personnel, Civilian Internees and Other Detainees (1997), and the GPW,
which provide for a hearing to determine the status of those captured during hostilities. See
CRS Report RL31367.
186 See Government’s Motion for Interlocutory Appeal and Stay, Aug. 19, 2002.
187 See Hamdi v. Rumsfeld, 316 F.3d 450 (“Hamdi III”), reh’g en banc denied 337 F.3d 335
(4th Cir. 2003), vacated and remanded 124 S.Ct. 2633 (2004).
188 Id. at 461.
189 124 S.Ct. at 2365.
190 Id. at 2650.
191 Id. at 2644.
192 The plurality emphasized that “process is due only when the determination is made to
continue to hold those who have been seized,” and would not be required for “initial
captures on the battlefield.” Id. at 2649.

in an armed conflict against the United States,”193 and that his detention was
authorized only so long as active hostilities continue in Afghanistan.
At the same time, the plurality did not call for a hearing that would comport
with all of the requirements the Constitution applies to a criminal trial. Instead, a
balancing test to weigh the risk of erroneous deprivation of a detainee’s liberty
interest against the government’s interest in fighting a war may suffice. Such a
procedure, the plurality suggested, could eliminate certain procedures that have
“questionable additional value in light of the burden on the Government,”194 so that
“enemy combatant proceedings may be tailored to alleviate their uncommon potential
to burden the Executive at a time of ongoing military conflict.”195 However, at least
in the case of citizens, the “some evidence” standard urged by the government would
be insufficient.196
The plurality emphasized that its interpretation of the AUMF’s grant of
authority for the use of “necessary and appropriate force” is “based on longstanding
law-of-war principles,” but that “[i]f the practical circumstances of a given conflict
are entirely unlike those of the conflicts that informed the development of the law of
war, that understanding may unravel.”197 Based on the conventional understanding
of the conflict as limited to the hostilities in Afghanistan, the plurality stated that
“indefinite detention for the purpose of interrogation is not authorized.”198
The United States may detain, for the duration of these hostilities, individuals
legitimately determined to be Taliban combatants who “engaged in an armed
conflict against the United States.” If the record establishes that United States
troops are still involved in active combat in Afghanistan, those detentions are
part of the exercise of “necessary and appropriate force,” and therefore are
authorized by the [AUMF].
Justice Souter, joined by Justice Ginsburg, agreed that Hamdi is entitled to due
process, including the right to counsel (but without the qualifications suggested by
Justice O’Connor), and joined the plurality to provide sufficient votes to vacate the

193 Id. at 2642.
194 Id. at 2649.
195 Id. at 2648 (citing Mathews v. Eldrige, 424 U.S. 319, 335 (1976)). The plurality
suggested some possible departures from the Due Process requirements applicable in
criminal courts:
Hearsay, for example, may need to be accepted as the most reliable available evidence
from the Government in such a proceeding. Likewise, the Constitution would not be
offended by a presumption in favor of the Government's evidence, so long as that
presumption remained a rebuttable one and fair opportunity for rebuttal were provided.
Thus, once the Government puts forth credible evidence that the habeas petitioner meets
the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence
with more persuasive evidence that he falls outside the criteria.
Id. at 2649.
196 Id. at 2641.
197 Id.
198 Id.

decision below.199 However, finding no explicit authority in the AUMF (or other
statutes) to detain persons as enemy combatants, they would have determined that 18
U.S.C. § 4001(a) precludes the detention of American citizens as enemy combatants
altogether. Justice Scalia, joined by Justice Stevens, dissented from the plurality
opinion, arguing that the detention of a U.S. citizen under the circumstances
described could only occur after a trial on criminal charges or where Congress has
suspended the Writ of Habeas Corpus. Only Justice Thomas would have affirmed
the decision below.
The Case of Jose Padilla
The Supreme Court did not resolve the case of Jose Padilla, who was arrested
in Chicago and initially alleged to be involved in a plot to detonate a “dirty bomb.”
Instead, a majority of five Justices vacated the Second Circuit’s opinion favorable to
Padilla based on the lack of jurisdiction.200 Four Justices would have found
jurisdiction based on the “exceptional circumstances” of the case201 and affirmed the
holding below that detention is prohibited under 18 U.S.C. § 4001(a). The dissenters
indicated they might find preventive detention to be acceptable under some
Executive detention of subversive citizens, like detention of enemy soldiers to
keep them off the battlefield, may sometimes be justified to prevent persons from
launching or becoming missiles of destruction. It may not, however, be justified
by the naked interest in using unlawful procedures to extract information.
Incommunicado detention for months on end is such a procedure. Whether the
information so procured is more or less reliable than that acquired by more
extreme forms of torture is of no consequence. For if this Nation is to remain
true to the ideals symbolized by its flag, it must not wield the tools of tyrants202
even to resist an assault by the forces of tyranny.
The case is now in the Fourth Circuit. The District Court for the District of
South Carolina granted Padilla’s motion for summary judgment and ordered the
government to release Padilla from military detention, while suggesting Padilla could
be kept in civilian custody if charged with a crime or determined to be a material
witness. Padilla’s attorneys had based their argument on the dissenting opinion of
four Supreme Court Justices, who would have found Padilla’s detention barred by
the Non-Detention Act, and the language in Hamdi seemingly limiting the scope of
authorization to combatants captured in Afghanistan. The government argued that
Padilla’s detention is covered under the Hamdi decision’s interpretation of the
AUMF because he is alleged to have attended an Al Qaeda training camp in
Afghanistan before traveling to Pakistan and then to the United States,203 apparently

199 Id. at 2660 (Souter, J concurring).
200 Rumsfeld v. Padilla, 124 S.Ct. 2711 (2004).
201 124 S.Ct. at 2729 (Stevens, J., dissenting).
202 Id. at 2735 (Stevens, J., dissenting).
203 See Respondents’ Answer to the Petition for a Writ of Habeas Corpus at 2, Padilla v.

based on information obtained from interrogations of Padilla and other persons
detained as “enemy combatants.” The judge disagreed, finding that express authority
from Congress would be necessary and that the AUMF contains no such authority:
[S]ince Petitioner's alleged terrorist plans were thwarted when he was arrested
on the material witness warrant, the Court finds that the President's subsequent
decision to detain Petitioner as an enemy combatant was neither necessary nor204
Accordingly, the court found that Padilla’s detention is barred by 18 U.S.C. §


The government further argued that even if Congress had not intended to permit
the capture and detention of persons outside of the battlefield, the President’s
interpretation and application of the AUMF is entitled to great deference because he
was operating under a broad grant of authority from Congress in an area where he205
“possesses independent constitutional authority.” The court was not persuaded:
Certainly Respondent does not intend to argue here that, just because the
President states that Petitioner's detention is “consistent with the laws of the
United States, including the Authorization for Use of Military Force” that makes
it so. Not only is such a statement in direct contravention to the well settled
separation of powers doctrine, it is simply not the law. Moreover, such a
statement is deeply troubling. If such a position were ever adopted by the courts,
it would totally eviscerate the limits placed on Presidential authority to protect206
the citizenry's individual liberties.
The court disagreed that the President has inherent authority as Commander-in-
Chief of the Armed Forces to determine wartime measures, quoting the Hamdi Court
[w]here the exercise of Commander-in-Chief powers, no matter how well
intentioned, is challenged on the ground that it collides with the powers assigned207
by the Constitution to Congress, a fundamental role exists for the courts.
The government has appealed the case to the Fourth Circuit Court of Appeals,
and has asked for a stay of the district court’s order to release Padilla from military
detention. The government argues that the facts of Padilla’s case are very similar to

203 (...continued)
Hanft, C/A No. 02:04 2221-26AJ (D.S.C. filed 2004)[hereinafter “Government Answer”]
(arguing that these circumstances, “[i]f anything, [make Padilla] more, not less, of an enemy
204 Padilla v. Hanft, C/A No. 02:04 2221-26AJ, slip op. at 8 (D.S.C. Feb. 28, 2005).
205 See Government Answer, supra note 203, at 20.
206 Padilla, slip op. at 10.
207 Id. at 11 (citing Hamdi, 352 F.3d at 713). Furthermore, the court stated, "Congress, not
the Executive, should control utilization of the war power as an instrument of domestic
policy." Id. (citing Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 644 (Jackson,
J., concurring)).

the facts behind Ex parte Quirin. A federal judge in the Second Circuit had agreed
with this argument, finding that the allegation that Padilla traveled to the United
States to detonate a “dirty bomb” on behalf of Al Qaeda, if true, would validate the
government’s authority to detain him under military custody.208 The petitioner
argued that Quirin is inapposite, given that the eight saboteurs in 1942 were charged
and tried by military commission, and were given access to an attorney. The Court
of Appeals for the Second Circuit agreed with the petitioner, reversing the district
court’s finding.209 The district court in the Fourth Circuit followed the Second
Circuit opinion.
Padilla’s attorneys argue that the case bears closer resemblance to the Civil War
case Ex parte Milligan210 than to either the Quirin or Territo cases. The government
argues that Milligan is inapposite to the petition of Padilla on the grounds that
Padilla, like petitioners in Quirin, is “a belligerent associated with the enemy who
sought to enter the United States during wartime in an effort to aid the enemy’s
commission of hostile acts, and who therefore is subject to the laws of war.”211 (This,
presumably, is to be contrasted with the case of Milligan, who was a civilian and had
never traveled outside the state of Indiana.)
The government does not allege that Padilla entered the country illegally or
landed as part of a military offensive.212 In Quirin, the petitioners were members of
the German armed forces and admitted to having entered the country surreptitiously
by way of German naval submarine. The government’s argument appears to presume
that there is no relevant difference between the landing of the German saboteurs and
Padilla’s entry into the United States by means of a commercial flight, neither under
disguise nor using false identification.213 Under this theory, the relevant factor would
appear to be whether the petitioner had ever left the country and traveled to “enemy
territory,” regardless of how he re-entered the country.

208 Padilla ex rel. Newman v. Bush, 233 F.Supp.2d 564, 569 (S.D.N.Y. 2002)(holding that
“the President is authorized under the Constitution and by law to direct the military to detain
enemy combatants in the circumstances present here...”).
209 See Padilla ex rel. Newman v. Bush, 352 F.3d 695, 717 (2d Cir. 2003)(finding that both
Milligan and Ex parte Quirin support its conclusion that specific congressional
authorization is necessary to support detention of persons in the United States).
210 71 U.S. (4 Wall.) 2 (1866).
211 See Government Answer at 15.
212 The government did argue that Padilla had not technically “entered” the country, since
he was arrested at the airport, but the judge rejected the theory as unsupported. Slip op. at

6, fn 9.

213 The government appears to interpret Quirin to establish a legal standard for designating
persons as enemy combatants. See Gonzales, supra note 8, at 8.
Th[e legal] standard [for determining enemy combatant status] was articulated by the
Supreme Court in Quirin, where the Court made clear that, at a minimum, citizens who
associate themselves with the military arm of the enemy government, and with its aid,
guidance, and direction enter this country bent on hostile acts are enemy belligerents
within the meaning of . . . the law of war, and thus may be detained. The important factor,
therefore, is that the person has become a member or associated himself with hostile
enemy forces, thereby attaining the status of enemy combatant.

However, it may be argued that under Quirin, the surreptitious nature of the
petitioners’ arrival onto the territory of the United States through coastal defenses,
by means of enemy vessels that would have been lawful targets had the Navy or
Coast Guard identified them as such, was a major determinant of the petitioners’
status as enemy combatants.214 Had they entered the country openly and lawfully,
they might not have lost their right to be treated as prisoners of war. Padilla’s arrival
by apparently lawful means arguably has no bearing on whether he is subject to
military jurisdiction.
The government disputes Padilla’s claim that the laws of war do not apply to Al
Qaeda and thus could never apply to him. The government finds support for the
opposite claim in the AUMF and The Prize Cases.215 Because the President has, by
Executive Order, recognized a state of war against Al Qaeda, the government argues
the laws of war must apply, and anyone associated with Al Qaeda may therefore
properly be deemed to be an “enemy belligerent.” However, it is not clear that Al
Qaeda is a belligerent under the law of war, because such status would ordinarily
imply belligerent rights that the Administration has been unwilling to concede.
The government argues that Milligan is inapposite; “whereas Milligan was not
engaged in legal acts of hostility against the government, ... the President determined
that Padilla engaged in hostile and war-like acts.”216 However, the quoted language
from Ex parte Quirin may be somewhat misleading, inasmuch as Milligan was
indeed alleged to have engaged in hostile and warlike acts, but these were not legal
acts of hostility because Milligan was not a lawful combatant. Thus, whether
Milligan applies may depend on the emphasis placed on the legality of the acts of
hostility of which Milligan was accused, rather than whether Milligan was engaged
in acts of hostility at all. The Milligan opinion seems to view the nature of the
legality of the acts to be based on Milligan’s legitimacy as a belligerent rather than
the nature of the acts. It may be argued that Padilla, like Milligan, was not engaged
in legal acts of hostility, because he is not a lawful belligerent. Milligan’s
membership in the Sons of Liberty did not secure his legitimacy as a belligerent, but
neither did it give the government the right to detain him as a prisoner of war.217

214 Entering the country through coastal defenses was an explicit prohibition in Proc. 2561,
and evidence of such an entry was found to be dispositive of both the crime and its
amenability to military jurisdiction, regardless of the intent of the accused. See Colepaugh
v. Looney, 235 F.2d 429, 432 (10th Cir. 1956). There is currently no published
proclamation to the effect that persons who travel from overseas may be treated as unlawful
enemy combatants. While President Bush issued a military order providing for the detention
of persons who are associated with Al Qaeda or other terrorist organizations, it does not
apply to citizens. See Military Order, November 13, 2001 Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16,


215 See Government Answer at 12.
216 Id at 12 (citing 71 U.S. (4. Wall.) at 131).
217 See 71 U.S. (4 Wall.) at 131 (suggesting that only lawful belligerents may be detained in
accordance with the laws and usages of war); see also Ex parte Quirin, 317 U.S. 1, 45
(distinguishing Milligan because Milligan “was not an enemy belligerent either entitled to

The government further argues that Milligan is inapposite in this case because
Milligan, “not being a part of or associated with armed forces of the enemy,” could
not be held as a belligerent, while Padilla, in contrast, is alleged to be associated with
the armed forces of the enemy. However, it might be recalled that the government
had argued that Milligan was allegedly associated with the Confederate Army, a
recognized belligerent, and that he was in effect accused of acting as an unlawful
belligerent.218 Therefore, it may be argued that the important distinction in Quirin
was the nature and status of the enemy forces with whom he was associated, rather
than whether he was associated with a hostile force at all. The petitioners in Quirin
were all conceded to be working for the armed forces of an enemy State in a declared
war. What association with the enemy short of membership in its armed forces might
have brought the saboteurs under military jurisdiction is unclear.
The continuing validity of Milligan has been questioned by some scholars, even
though the Quirin Court declined to overrule it, while others assert that the essential
meaning of the case has only to do with situations of martial law or, perhaps, civil
wars. Furthermore, it has been noted that the portion of the plurality in Milligan
asserting that Congress could not constitutionally authorize the President to use the
military to detain and try civilians may be considered dicta with correspondingly less
precedential value, inasmuch as Congress had implicitly denied such authority.
However, the Hamdi Court, in distinguishing Milligan from Hamdi, placed emphasis
on the fact that Milligan was not considered a prisoner of war, suggesting that it may
recognize the distinction between Milligan and Quirin as a function of combatant
Legal Authority to Detain “Enemy Combatants”
The law of war permits belligerents to seize the bodies and property of enemy219
aliens. The Administration has taken the view that the authority to detain “enemy
combatants” belongs to the President alone, and that any interference in that authority220
by Congress would thus be unconstitutional. However, the Constitution explicitly

217 (...continued)
the status of a prisoner of war or subject to the penalties imposed upon unlawful
218 According to the record, evidence showed that Milligan was a member of
a powerful secret association, composed of citizens and others, [that] existed
within the state, under military organization, conspiring against the draft, and
plotting insurrection, the liberation of the prisoners of war at various depots, the
seizure of the state and national arsenals, armed cooperation with the enemy, and
war against the national government.
See id. at 141 (concurring opinion, in which four Justices took the position that under the
circumstances, Congress could have constitutionally authorized military tribunals to try
civilians, but had “by the strongest implication” prohibited them).
219 See Brown v. United States, 12 U.S. (8 Cranch) 110, 121 (1814).
220 See Oversight of the Department of Justice: Hearing Before the Senate Judiciary

gives to Congress the power to make rules concerning captures on land and water,221
which has long supported Congress’ authority to regulate the capture and disposition
of prizes of war as well as confiscation of property belonging to enemy aliens.222
Both sides point to the Steel Seizure Case223 to provide a framework for the
courts to decide the extent of the President’s authority. In that Korean War-era case,
the Supreme Court declared unconstitutional a presidential order seizing control of
steel mills that had ceased production due to a labor dispute, an action justified by
President Truman on the basis of wartime exigencies, despite the absence of
legislative authority. Justice Jackson set forth the following oft-cited formula to
determine whether Presidential authority is constitutional:
1. When the President acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all that he possesses in
his own right plus all that Congress can delegate. . . . A seizure executed by the
President pursuant to an Act of Congress would be supported by the strongest of
presumptions and the widest latitude of judicial interpretation, and the burden of
persuasion would rest heavily upon any who might attack it.
2. When the President acts in absence of either a congressional grant or denial
of authority, he can only rely upon his own independent powers, but there is a
zone of twilight in which he and Congress may have concurrent authority, or in
which its distribution is uncertain. Therefore, congressional inertia, indifference
or quiescence may sometimes, at least as a practical matter, enable, if not invite,
measures on independent presidential responsibility. In this area, any actual test
of power is likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or
implied will of Congress, his power is at its lowest ebb, for then he can rely only
upon his own constitutional powers minus any constitutional powers of Congress
over the matter. Courts can sustain exclusive Presidential control in such a case
only by disabling the Congress from acting upon the subject. Presidential claim

220 (...continued)
Committee, 107th Cong. (2002) (testimony of Attorney General John Ashcroft). The
government invites the courts to construe 18 U.S.C. § 4001(a) to avoid finding that it
involved a congressional effort to interfere with the basic executive power to detain enemy
combatants, as such a construction would render the statute unconstitutional. See Reply
Brief for Respondents-Appellants, Hamdi v. Rumsfeld (02-7338); Respondents’ Reply in
Support of Motion to Dismiss the Amended Petition for a Writ of Habeas Corpus at fn. 5,
Padilla ex rel. Newman v. Bush, 02 Civ. 4445 (citing Public Citizen, 491 U.S. 440, 482
(Kennedy, J., concurring) (Congress cannot “encroach[] upon a power that the text of the
Constitution commits in explicit terms to the President”); INS v. Chadha, 462 U.S. 919
(1983); Barenblatt v. United States, 360 U.S. 109, 111-112 (1959); United States v. Klein,

80 U.S. (13 Wall.) 128, 148 (1871)).

221 U.S.CONST. Art. I, § 8, cl. 11.
222 See Brown v. United States, 12 U.S. (8 Cranch) 110 (1814); The Siren, 80 U.S. (13
Wall.) 389 (1871).
223 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).

to a power at once so conclusive and preclusive must be scrutinized with caution,224
for what is at stake is the equilibrium established by our constitutional system.
The parties disagree as to where in this formula the present actions fall. Padilla
and Hamdi, and their supporters generally argue that such constitutional authority,
if it exists, is dependant upon specific authorization by Congress, which they argue
is missing (or even explicitly denied pursuant to 18 U.S.C. § 4001(a)) in the present
circumstances, placing the controversy into the second or third category above. The
government, on the other hand, sees the issue as one that falls squarely into the first
category, asserting that Congressional authority for the detentions clearly exists,
although such authority is not strictly necessary. Congressional authority, the225
government argues, may be found in the Authorization to Use Force and a
provision of title 10, U.S.C., authorizing payment for expenses related to detention
of prisoners of war. Accordingly, the following sections examine the constitutional
authority to take prisoners in war and, if congressional authority is required, whether
Congress has provided it, or, with respect to U.S. citizens, prohibited it.
The Authorization to Use Force
The government argues, and the Supreme Court has agreed, that the
identification and detention of enemy combatants is encompassed within Congress’
express authorization to the President “to use force against those ‘nations,
organizations, or persons he determines’ were responsible for the September 11,

2001 terrorist attacks.” The scope of that authority, however, remains open to debate.

Some argue that since Congress only authorized force and did not formally declare
war, that the absence of language explicitly addressing the detention of either alien
enemies or American citizens captured away from any battlefield cannot be read to
imply such authority.226
The government asserts that the lack of a formal declaration of war is not
relevant to the existence of a war and unnecessary to invoke the law of war. While
a declaration is unnecessary for the existence of an armed conflict according to the
international law of war, it may be argued that a formal declaration is necessary to
determine what law applies domestically, whether to aliens or citizens.227 For

224 Id. at 637-38 (Jackson, J., concurring) (footnotes and citations omitted).
225 P.L. 107-40, 115 Stat. 224 (2001).
226 The Fourth and Second Circuits agreed that Hamdi and Padilla are inapposite cases. See
Hamdi IV, 337 F.3d at 344; Padilla ex rel. Newman v. Bush, 352 F.3d 695, 717 (2d Cir.
2003). The Second Circuit noted that
While it may be possible to infer a power of detention from the Joint Resolution in the
battlefield context where detentions are necessary to carry out the war, there is no reason
to suspect from the language of the Joint Resolution that Congress believed it would be
authorizing the detention of an American citizen already held in a federal correctional
institution and not “arrayed against our troops” in the field of battle.
Id. at 723.
227 See Padilla, 352 F.3d at 713 (stating that separation-of-powers concerns are “heightened

example, the Alien Enemy Act and the Trading with the Enemy Act (TWEA),228 both
of which regulate the domestic conduct of persons during a war, expressly require a
declared war and are not triggered by the authorization to use force.229 The
Emergency Detention Act, in effect from 1950 to 1971, had similar requirements
prior to the invocation of its measures.
At least one statutory provision in the Uniform Code of Military Justice (UCMJ)
that might authorize the military to detain certain civilians “in time of war” has been
interpreted to mean only a war declared by Congress.230 There is also military
jurisdiction to try any person “caught lurking as a spy” during time of war,231
including citizens,232 or anyone suspected of aiding or abetting the enemy.233 It has
not been decided whether the phrase “in time of war” or reference to “the enemy” in
the these articles of the UCMJ also require a declaration of war by Congress;
however, the same reasoning applied in Averette234 and followed in Robb could be
found to apply here, at least with respect to persons who may not claim combatant
A recognition [that the conflict in Vietnam qualifies as a war in the ordinary
sense of the word] should not serve as a shortcut for a formal declaration of war,
at least in the sensitive area of subjecting civilians to military jurisdiction
On the other hand, the Manual for Courts Martial (MCM) defines “time of war” to
include declared war as well as “a factual determination by the President that the
existence of hostilities warrants a finding that a ‘time of war’” exists for the punitive
portions of the MCM.235 Likewise, with respect to conduct on the part of military
members, the MCM does not restrict references to “enemy” to mean an enemy

227 (...continued)
when the Commander-in-Chief’s powers are exercised in the domestic sphere”)(citing
Youngstown, 343 U.S. at 645(Jackson, J., concuring).
228 50 U.S. App. § 1 et seq.
229 See generally Declarations of War and Authorizations for the Use of Military Force:
Background and Legal Implications, CRS Report RL31133 (identifying statutes effective
only during declared wars or during hostilities).
230 See Robb v. United States, 456 F.2d 768 (Ct. Cl. 1972) (finding Vietnam conflict, while
considered a war as that term is ordinarily used, was not a war for the purposes of 10 U.S.C.
§ 802(a)(10), applying to trial by court-martial of persons accompanying the armed forces
in the field).
231 10 U.S.C. § 906.
232 United States ex rel. Wessels v. McDonald, 265 F. 754 (E.D.N.Y.), appeal dismissed,

256 U.S. 705 (1920).

233 10 U.S.C. § 904.
234 United States v. Averette, 41 C.M.R. 363 (1970).
235 Rule 103(19), Rules for Courts-Martial. See also United States v. Monday, 36 C.M.R.
711 (1966) (finding the term “enemy” as used in Article 99, UCMJ, includes not only
organized armed forces of the enemy in time of war but any hostile party which forcibly
seeks to defeat U.S. forces).

government or its armed forces.236 For example, the offense of “misbehavior before
the enemy” does not require a declaration of war.237 It should be noted that these
offenses are associated with conduct on the battlefield.
The government notes that its military practice has long been to detain enemy
combatants in conflicts where war was not formally declared and Congress did not
expressly authorize the capture of enemies. However, we are not aware of any
modern court ruling as to whether and under what circumstances citizens may be held
as “enemy combatants,” where no formal declaration of war has been enacted.
Hamdi confirms that the authorization to employ ground troops against an enemy
army necessarily encompasses the authority to capture battlefield enemies, because
it is an essential aspect of fighting a battle. International law does not permit the
intentional killing of civilians or soldiers who are hors de combat, preferring capture
as the method of neutralizing enemies on the battlefield.238 However, the war powers
involving conduct off the battlefield, such as those authorizing the detention of alien
enemies or regulating commerce with the enemy, are not necessarily a vital aspect
of the use of the military, and have traditionally been subject to legislation and not
implied by circumstance. For example, the Supreme Court held that the President has
no implied authority to promulgate regulations permitting the capture of enemy
property during hostilities short of a declared war, even where Congress had
authorized a “limited” war.239
It may be argued that, because the internment of enemy aliens as potential spies
and saboteurs pursuant to the Alien Enemy Act240 requires a declaration of war or a
presidential proclamation, it would seem reasonable to infer that the express
permission of Congress is necessary for other forms of military detention of non-
military persons within the United States, especially those who are U.S. citizens.241
To conclude otherwise would appear to require an assumption that Congress intended
in this instance to authorize the President to detain American citizens under fewer
restrictions than apply in the case of enemy aliens during a declared war.242
However, it might also be argued that the United States is a battlefield in the war
against terrorism in more than just a metaphorical sense. The AUMF appears to

236 See supra note 1.
237 Art. 99, UCMJ; see United States v. Monday, 36 C.M.R. 711 (1966).
238 See generally Department of the Army, FM 27-10, The Law of Land Warfare (1956).
239 See Brown v. United States, 12 U.S. (8 Cranch) 110 (1814).
240 See discussion about Alien Enemy Act, supra note 79 et seq., and accompanying text.
241 See supra discussion of Emergency Detention Act, which contained similar requirements.
242 The Second Circuit in Padilla noted that the AUMF expressly provides that it is
“intended to constitute specific statutory authorization within the meaning of ... the War
Powers Resolution.” 352 F.3d at 724. The court viewed it as
...unlikely — indeed, inconceivable — that Congress would expressly provide in the Joint
Resolution an authorization required by the War Powers Resolution [50 U.S.C. § 1544(b)]
but, at the same time, leave unstated and to inference something so significant and
unprecedented as authorization to detain American citizens under[18 U.S.C. § 4001(a)].

authorize the use of force anywhere in the world, including the territory of the United
States, against any persons determined by the President to have “planned, authorized,
committed, or aided the terrorist attacks” or “harbored such organizations or
persons.” Under this view, the United States is under actual and continuing enemy
attack, and Congress delegated to the President the authority to declare those persons
he determined to be subject to the AUMF to be wartime enemies. The U.S. military
would be authorized to use force to kill or capture persons it identifies as “enemy
combatants,” even within the United States.243 However, those seeking a less
expansive interpretation of the AUMF might argue that it must be read, if possible,
to conform to international law and the Constitution. Under this view, for example,
it might be questioned whether those sources of law provide adequate basis for a war
against alleged members of a criminal organization and those who harbor them.244
Title 10, U.S.C
Before the Second Circuit, the government argued that Congress also authorized
the detention of enemy combatants in 10 U.S.C. § 956(5), which authorizes the use
of appropriated funds for “expenses incident to the maintenance, pay, and allowance
of prisoners of war” as well as “other persons in the custody of the Army, Navy, or
Air Force whose status is determined by the Secretary concerned to be similar to
prisoners of war.” The Administration interprets the phrase “similar to prisoners of
war” to include “enemy combatants” who are not treated as prisoners of war. The
Supreme Court plurality did not address this contention, having found the AUMF to
provide the necessary authority. The Second Circuit in Padilla rejected it based on
its interpretation of Ex parte Endo requiring that language authorizing funds must
“clearly” and “unmistakably” authorize the detention of American citizens.245 The
government appears to have dropped the argument in the Fourth Circuit, although
that court found it persuasive.246

243 The missile attack of alleged Al Qaeda operatives in Yemen in November, 2002, by an
unmanned aerial vehicle belonging to the Central Intelligence Agency appears to be based
on this concept of the war against terrorism. See Dworkin, supra note 1. According to one
DoD official:
[T]he President has defined our current campaign against Al-Qaeda and similar terrorists
of global reach as a “war.” This accurately portrays the state of armed conflict that exists
and the resulting military actions to combat the continuing threat of terrorist acts against
the United States and our friends and allies.
[T]he United States is involved in an armed conflict with al-Qaeda and other global
terrorists and those who harbor and support such terrorists. As such, the law of armed
conflict with regards to targeting and hors de combat” applies in this conflict as it would
in any other.
See id. (excerpts from interview with Charles Allen, Deputy General Counsel for International Affairs
at the Department of Defense).
244 See id.; Paust, supra note 58, at 8; Mark A. Drumbl, Victimhood in Our Neighborhood:
Terrorist Crime, Taliban Guilt, and the Asymmetries of the International Legal Order, 81
N.C. L. REV. 1, 23-24 (2002)(arguing U.S. policy on terrorism is blurring law enforcement,
military intervention, and the killing of suspected enemies).
245 352 F.3d at 723 (citing 323 U.S. at 303 n.24).
246 316 F.3d at 468 (“It is difficult if not impossible to understand how Congress could make

It is not clear from the legislative history of 10 U.S.C. § 956(5) that Congress
accepted the notion that there is a category of wartime detainees separate from
prisoners of war and interned alien enemies. The language was first codified into
title 10, U.S.C. in 1984, but has long been included in appropriations bills for the
Department of Defense. It first appeared in the Third Supplemental National Defense
Appropriation Act of 1942,247 when the Army requested an addition to the defense
appropriations bill to provide the authority for the Secretary of War to
utilize any appropriation available for the Military Establishment under such
regulation as the Secretary of War may prescribe for all expenses incident to the
maintenance, pay and allowances of prisoners of war, other persons in Army
custody whose status is determined by the Secretary of War to be similar to
prisoners of war, and persons detained in Army custody, pursuant to Presidential248
It was explained that the expenses were in connection with keeping and
maintaining prisoners of war and others in military custody not provided for by any
appropriation; the example given was the construction of stockade authorized to be
built in Honolulu and water supply for prisoners on Oahu.249 The following colloquy
took place during Senate debate on the bill:
Mr. DANAHER. Mr. President, will the Senator from Tennessee permit me to
invite his attention to page 9 of the bill before he starts on a new title?
Mr. McKELLAR. Certainly.
Mr. DANAHER. In lines 2 and 3 on page 9, we find that the committee has
amended the bill to provide ‘for all expenses incident to the maintenance, pay,
and allowances of prisoners of war,” and notably, “other persons in Army
custody whose status is determined by the Secretary of War to be similar to
prisoners of war.” That is new language, apparently, and I should like to have the
Senator explain what other class of persons there may be in Army custody whose
status is similar to that of prisoners of war.
Mr. McKELLAR. Enemies who are found in this country are taken up by the
Army, and they have to be provided for. It was testified that at times it was very
necessary to arrest civilians and to provide for their care.
Mr. DANAHER. I have not the slightest doubt that it is necessary, Is there
existing law under which they are at present being taken up by the Army?
Mr. McKELLAR. The Army did not want to take a chance about it.
Mr, DANAHER. Is there an existing law under which such persons are today
being taken up by the Army and being held as prisoners?
Mr. McKELLAR. The advice to the Committee was that there is not, and in order
to make it absolutely sure the committee thought there should be such a
provision, and this provision was inserted. I am quite sure the Senator will, under
the circumstances, agree that it should be included in the bill.

246 (...continued)
appropriations for the detention of persons ‘similar to prisoners of war’ without also
authorizing their detention in the first instance.”)
247 P.L. 77-353, title III § 103, 55 Stat. 810, 813 (1941).
248 Third Supplemental National Defense Appropriation Act of 1942: Hearing on H.R. 6159
before the Subcomm. of the Senate Comm. on Appropriations, 77th Cong., at 78-79 (1941).
249 See id.

Mr. DANAHER. I have not the slightest question that it is absolutely necessary
that certain classes of persons be taken up, not allowed to roam at large to our
detriment. There is no question as to that. All I wish to know is where authority
to do that is found in the law. Is their status defined? Under what circumstances
may they be taken up? If there be no such authority anywhere, then I think we
should very promptly and properly direct our attention to such a field. We
certainly are not going to authorize it merely by providing in an appropriation bill
for an allotment of money to be paid after they are taken up.
Mr. McKELLAR. The Senator misunderstands me. The appropriation is not to
pay for their being taken up, but it is to maintain them and to keep them safely
after they are taken up by whatever authority, that this appropriation is
Mr. DANAHER. The Senator feels he is quite correct in saying that up to now
there is no authorization provided by statute for their being taken up by the
Mr. McKELLAR. There is no authorization for taking care of them and feeding
them and imprisoning them, and no place to imprison them, as I understand. 250
Mr. DANAHER. I thank the Senator.
Prior to the amendment coming up for a vote, Senator Danaher took the occasion to
look up which sections of law provided authority for the Army to detain persons, and
concluded the authority was to be found in the Alien Enemy Act, 50 U.S.C. § 21,
which he read into the Record in its entirety and explained:
I understand that since the first of the week the President has in fact issued
proclamations under the authority of the section just quoted, and that so much of
this section as applies to prisoners of war and those whom the Secretary of War
may deem to be similar in status to prisoners of war, is comprehended within the
terms of the proclamations that are applicable outside the immediate territorial
limits of the United States. In view of the fact that that important section does
implement both the statute and the proclamations issued pursuant thereto, I feel251
that it is important that the Record should show what the situation is.
The amendment was agreed to. Similar language has appeared in subsequent
defense appropriations until 1983, when it was added to title 10 as a note to section252253
138, and then codified in 1984 in its present form. The Senate debate did not
question the President’s authority to detain prisoners of war, despite the absence of
express statutory authority, but only questioned the meaning of “other persons similar
to prisoners of war.” The legislative history could be interpreted to demonstrate that
the language was meant only to pay for the exercise of authority found elsewhere, in
particular the provisions of 50 U.S.C. § 21. It is unlikely that 10 U.S.C. §956(5)
would be interpreted as amending 50 U.S.C. § 21 with respect to the requirement for
a declared war or Presidential proclamation. As an appropriations measure, it
probably could not be interpreted to authorize by implication what Congress has not

250 87 CONG. REC. 9707-08 (1941).
251 87 CONG. REC. 9724-25 (1941). The proclamations to which he was referring are those
listed supra at note 107.
252 P.L. 98-212, Title VII, § 706, 97 Stat. 1437 (1983).
253 P.L. 98-525, Title XIV, §§ 1403(a)(1) & 1404, 98 Stat. 2621 (1984).

provided for elsewhere, nor is it likely that the language would be interpreted to
repeal by implication express language contradicting the interpretation.
Legislation regarding prisoners of war and enemy aliens subsequent to the
Defense Authorization Act arguably supports the understanding that, at least on the
territory of the United States, Congress did not contemplate that any persons would
be interned in any status other than that of prisoner of war or enemy alien. In 1945,
at the request of the Attorney General Biddle, Congress enacted a provision making
it a criminal offense to procure or aid in the escape of persons interned as prisoners
of war or alien enemies.254 The provision was recommended to fill a gap in the law,
which provided for the punishment of persons who procure or aid the escape of
prisoners properly in the custody of the Attorney General or confined in any penal or
correctional institution.255

18 U.S.C. § 4001(a)

The petitioners in both Hamdi and Padilla asserted that Congress expressly has
forbidden the detention of U.S. citizens without statutory authority, and that no
statutory support for the detention of U.S. citizens as “enemy combatants” can be
found. They cite 18 U.S.C. § 4001(a), which provides:
No citizen shall be imprisoned or otherwise detained by the United States except
pursuant to an Act of Congress.
This language originated with the repeal of the Emergency Detention Act256 in 1971.
The legislative history demonstrates that Congress intended to prevent recurrence of
internments in detention camps such as those that had occurred during the Second
World War with respect to Japanese-Americans.257 The language “imprisoned or
otherwise detained” in 18 U.S.C. § 4001(a) has been construed literally by the
Supreme Court to proscribe “detention of any kind by the United States absent a
congressional grant of authority to detain.”258 The four Justices of the Hamdi
plurality and presumably Justice Thomas in his dissent agreed that it does not
prohibit detention pursuant to the law of war. Justices Souter and Ginsburg agreed
with that as a general principle, but would not have applied it to Hamdi because they
argued that the government was not following the customary law of war with respect

254 P.L. 79-47, codified at 18 U.S.C. § 757.
255 See H.Rept. 79-59, at 1-2 (1945).
256 64 Stat. 1019 (1950)(authorizing the President to declare an “Internal Security
Emergency,” in the event of war, invasion, or insurrection in aid of a foreign enemy, which
would authorize the Attorney General to “apprehend and by order detain each person ...
[where] there is reasonable ground to believe that such person may engage in acts of
espionage or sabotage.”).
257 P.L. 92-128, codified at 18 U.S.C. § 4001(a) (2001).The legislative history suggests that
the main purpose of the act was to prevent detention, without due process of law, of citizens
during internal security emergencies. See H.Rept. 92-116 (1971) reprinted in 1971
U.S.C.C.A.N. 1435-1439; discussion of detention during the Cold War, supra.
258 Howe v. Smith, 452 U.S. 473, 479 n.3 (1981).

to persons captured in Afghanistan. Justices Stevens and Scalia, in dissent, would
have found the AUMF insufficiently clear to override the prohibition.259
Petitioners for Padilla argue that the authorization found under the AUMF in
Hamdi does not apply to Padilla’s case. The Department of Justice takes the opposite
view. Further, it notes that 18 U.S.C. § 4001(b) refers to federal penal and
correctional institutions, except for military or naval institutions, and thus concludes
that § 4001(a) likewise refers only to federal penitentiaries.260 The Fourth Circuit
previously found in Hamdi III that § 4001(a) was not intended to apply to enemy
combatants, since there was no evidence in the legislative record that Congress had
intended to “overturn the long-standing rule that an armed and hostile American
citizen captured on the battlefield during wartime may be treated like the enemy
combatant that he is.”261 The Fourth Circuit distinguished the facts of Hamdi’s case
from those in Padilla’s, however.262 The District Court for the District of South
Carolina found, as the Second Circuit had, that § 4001(a) does apply to U.S.
prisoners in Padilla’s situation.
The Role of Congress
Congress has ample authority under Article I of the Constitution to regulate the
capture and detention of enemy combatants.263 One bill has been introduced in theth
109 Congress, the Detention of Enemy Combatants Act, H.R. 1076, that would
assert congressional authority to limit the detention of U.S. persons as enemy
combatants to defined circumstances, as well as address some of the due process
concerns that have been raised. While it appears that express statutory authorization
to detain persons arrested away from any battlefield would clarify constitutional
separation of powers issues, some constitutional questions may remain. The
Supreme Court has never expressly upheld the administrative detention or internment
of U.S. citizens and non-alien enemies during war as a preventive measure.
The Proposed Detention of Enemy Combatants Act
The Detention of Enemy Combatants Act, H.R. 1076, would assert
congressional authority to limit the detention of U.S. persons as enemy combatants
to defined circumstances and address some of the due process concerns that have
been raised with respect to the designation of enemy combatants. H.R. 1076 would
authorize the President to detain U.S. citizens and residents who are determined to

259 Hamdi at 2671 (Scalia, J., dissenting).
260 The 2d Circuit rejected this reasoning. 352 F.3d 695, 721-22.
261 Hamdi III, 316 F.3d at 468.
262 Hamdi IV, 337 F.3d at 344.
263 U.S. Const. art. I, § 8, cl. 10-14 (power to define and punish “Offenses against the Law
of Nations”; war powers); Id. § 8, cl. 18 (power to make necessary and proper laws).

be “enemy combatants” in accordance with procedures established by the Secretary
of Defense in consultation with the Secretary of State and the Attorney General. The
bill would permit detainees to have access to attorneys to challenge the basis for their
detention, and would not suspend the writ of habeas corpus. The bill would not
apply to combatants captured on a battlefield overseas or suspected criminals arrested
abroad who are not U.S. citizens or residents.
Section-by-section Analysis.
Section 2. Findings. H.R. 1076 would find that the United States and its
allies are engaged in an armed conflict with Al Qaeda as justified under international
law for certain terrorist attacks. Paras. 1-6. The bill would take note of the
difficulties inherent in determining who is an enemy combatant in the context of the
present war, but reaffirm the need to detain enemy combatants as appropriate “to
protect the safety of the public and those involved in the investigation and
prosecution of terrorism, to facilitate the use of classified evidence without
compromising intelligence or military efforts, to gather unimpeded vital information
from the detainee, and otherwise to protect national security interests.” Para. 8-9.
Further, the bill would find that the Executive must be allowed broad latitude to
establish regulations for determining which U.S. citizens and residents may be
detained, and that courts must give broad deference to military judgment in such
matters. Para. 10. It would verify that section 4001(a) of title 18, U.S. Code
“proscribes detention of any kind ... absent a congressional grant of authority to
detain.” Para. 11. The bill would find that Congress has authorized the President to
detain U.S. persons “who are members of al Qaeda, or knowingly cooperated with
members of al Qaeda in the planning, authorizing, committing, aiding or abetting of
one or more terrorist acts against the United States.” Para. 12. The bill would find
that constitutional protection does not cease during wartime, para. 13, and declare
that it does not authorize the detention of U.S. persons as enemy combatants
“indefinitely without charges and hold them incommunicado without a hearing and
without access to counsel on the basis of a unilateral determination that the person
may be connected with an organization that intends harm to the United States.” Para.
14. It would reaffirm the right to habeas corpus, para. 15, and declare that Congress
“has a responsibility for maintaining vigorous oversight of detention of [U.S.
persons] to assure ... due process.” Para. 16.
Section 3. Detention of Enemy Combatants. Section 3 authorizes the
detention of enemy combatants, which it defines as U.S. persons or residents “who
are members of Al Qaeda or knowingly cooperated with a member of al Qaeda in the
planning, authorizing, committing, aiding or abetting of one or more terrorist acts
against the United States,” but who are not entitled to prisoner-of-war status. The
authority to establish the standards, process, and criteria to be used for the “enemy
combatant” designation would be delegated to the Secretary of Defense, in
consultation with the Secretary of State and the Attorney General. It would not
require different procedures depending on the circumstances of capture or arrest of
the designee, but, assuming the act would apply extraterritorially, presumably the
military would continue using rules of engagement developed for a particular military
operation to identify enemy combatants during battle, at least until it could be
determined whether a captured person is a U.S. person.

Section 4. Procedural Requirements. The procedural rules established
under section 3 would be required to establish clear standards and procedures that
would preserve the Government’s ability to detain U.S. persons or residents who may
threaten the United States or who might be able to furnish valuable intelligence. The
rules would also be required to contain procedures for the protection of classified
information or information that, if released, could impede the investigation of
terrorism. Lastly, the rules would also have to provide detainees with timely access
to judicial review (in the U.S. District Court for the District of Columbia, according
to sec. 5(b)) and access to counsel.
Section 5. Detention. Section 5 would limit the duration of detention under
the act to a period in which the President certifies that the war against Al Qaeda is
ongoing and that there is “an investigation with a view toward prosecution, a
prosecution, or a post-trial proceeding” in the case of the detainee. Because it does
not expressly limit the latter requirement to proceedings before Article III courts, the
condition might arguably be satisfied by trial by military commission or some other264
administrative tribunal. The President would also have to certify that detention is
warranted to prevent the detainee “from aiding persons attempting to commit terrorist
acts against the United States.” The certification would have to be renewed after 180
days, with no limit on the number of successive certifications. Subsection (c) would
authorize the Secretary of Defense to designate an appropriate location for the
detentions authorized under the act, and would list minimal requirements for the
condition of detention to ensure humane treatment.
Section 6. Reports to Congress. Section 6 would require an annual report
to Congress identifying each individual “subject to, or detained pursuant to the
authority of [the] Act.” It is unclear who would be “subject to” the provisions of
H.R. 1076 but not detained pursuant to them. Perhaps the phrase “subject to ... the
Act” is meant to cover those who are detained within the regular criminal justice
system or pursuant to the authority of immigration laws, but who fit the criteria to be
deemed enemy combatants.
Section 7. United States Person or Resident Defined. Section 7
borrows the definition of “U.S. person” from section 101(i) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(i)), which currently covers
a citizen of the United States, an alien lawfully admitted for permanent residence
(as defined in section 1101(a)(20) of title 8), an unincorporated association a
substantial number of members of which are citizens of the United States or
aliens lawfully admitted for permanent residence, or a corporation which is
incorporated in the United States, but does not include a corporation or an
association which is a foreign power, as defined in subsection (a)(1), (2), or (3)
of this section.

264 The President’s Military Order authorizing the detention and possible trial by military
commission of persons involved in terrorism excludes U.S. citizens from its purview. See
Military Order, November 13, 2001 Detention, Treatment, and Trial of Certain Non-Citizens
in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001). The President may have
the authority to issue a new order to authorize military commissions to try enemy
combatants who are U.S. citizens. See Ex parte Quirin, 317 U.S. 1 (1942).

“Lawfully admitted for permanent residence” is defined under 8 U.S.C. §
1101(a)(20) to mean “the status of having been lawfully accorded the privilege of
residing permanently in the United States as an immigrant in accordance with the
immigration laws, such status not having changed.” Section 7 of H.R. 1076 also
includes a separate subsection that defines “U.S. person or resident” to include “an
alien lawfully admitted to the United States for permanent residence.” It is unclear
whether this language is intended to cover a broader category of persons than the
definition already referenced in subsection (1). It appears that H.R. 1076 would not
reach aliens lawfully admitted to the United States on a temporary basis or who are
awaiting final approval of their applications for permanent residence, nor would it
reach aliens present in the United States unlawfully. This omission could be read
either to imply that the President has the inherent authority under the Constitution to
detain persons not covered under the definition in section 7, or unless Congress has
provided such authority elsewhere, it could be read to preclude the detention of such
persons as enemy combatants.
Section 8. Termination of Authority. Section 8 is a sunset provision
terminating the above authority as of December 31, 2007. The authority would
effectively terminate earlier if the armed conflict with Al Qaeda were to end prior to
that date.
Possible Legal Issues
Petitioners on behalf of U.S. citizens held in military custody argue that 18
U.S.C. § 4001(a), which prohibits the detention of U.S. citizens except as authorized
by an act of Congress, prohibits the military’s detention of U.S. citizens as enemy
combatants. While H.R. 1076 would appear to resolve the question of whether
statutory law prohibits the detention of U.S. citizens as enemy combatants, it leaves
open some legal questions pertaining to the detention of persons as enemy
combatants that may arise under the Constitution and international law.
Some Constitutional Questions. The Supreme Court has never expressly
upheld the administrative detention or internment of U.S. citizens and non-alien
enemies during war as a preventive measure.
Congressional Authority. In Ex parte Milligan,265 the Supreme Court
invalidated a military detention and sentence of a civilian for violations of the law of
war, despite accusations that Milligan conspired and committed hostile acts against
the United States.266 A plurality of the Milligan Court agreed that Congress was not
empowered to authorize the President to assert military jurisdiction in areas not
subject to martial law, but scholars disagree as to whether that portion of the opinion
is binding as law or is merely dicta. The Administration may take the view that only
the President, and not Congress, has the constitutional authority to detain enemy
combatants, but it appears from the historical survey above that the contention lacks
any solid legal precedent.

265 71 U.S. (4 Wall.) 2 (1866).
266 Id. at 131.

The Korematsu267 decision is frequently cited as upholding the internment of
Japanese-Americans during World War II, but the Supreme Court expressly limited
its decision to the legality of excluding these citizens from declared military areas.
Ex parte Endo268 invalidated the detention of a U.S. citizen who was “concededly
loyal” to the United States, possibly implying that the detention of disloyal citizens
may be permissible under some circumstances, but leaving open the question of what
constitutional due process is required to determine the loyalty of persons the
government sought to intern. In 1950, Congress passed the Emergency Detention
Act (EDA),269 which authorized the President to declare an “Internal Security
Emergency,” during which the President could authorize the apprehension and
detention of any person deemed reasonably likely to engage in acts of espionage or
sabotage. However, this authority was never exercised, and the EDA was repealed
without any court having had the opportunity to evaluate its constitutionality.270 H.R.
1076 would guarantee access to counsel and the right to challenge detention by
petitioning for a writ of habeas corpus, but gives the executive little other guidance
as to what due process the act requires.
Bill of Attainder. H.R. 1076 may be subject to criticism for possibly violating271
the constitutional prohibition of bills of attainder. The Constitution prohibits
Congress from enacting legislation to punish specific persons or easily identifiable272
groups of persons. Section 3 of H.R. 1076 would authorize the President to detain
persons based on their membership in Al Qaeda or knowing cooperation with a
member of Al Qaeda. Although the stated purpose for the detention appears to be
preventive rather than punitive, the nature of the restraint and the requirement that
non-members of Al Qaeda act “knowingly” probably make it punitive for the purpose
of finding a bill of attainder.273 However, section 5 would require a certification that
there is “an ongoing investigation with a view toward prosecution, a prosecution, or
a post-trial proceeding” and that the detention is warranted to prevent the person from
contributing to terrorist acts against the United States. The requirement for an

267 323 U.S. 214 (1944).
268 323 U.S. 283 (1944).
269 64 Stat. 1019 (1950).
270 P.L. 92-128, 85 Stat. 347 (1971).
271 U.S. CONST. art. I, § 9, cl. 3.
272 See United States v. Lovett, 328 U.S. 303, 315 (1946)(stating the clause prohibits all
legislative acts, “no matter what their form, that apply either to named individuals or to
easily ascertainable members of a group in such a way as to inflict punishment on them
without a judicial trial ...”).
273 Relevant factors for determining the punitive nature of a law include whether a sanction
involves an affirmative disability or restraint, whether it has historically been regarded as
a punishment, whether it requires a finding of scienter, whether it promotes the traditional
aims of punishment, whether behavior to which it applies is already a crime, whether an
alternative purpose is assignable for it, and whether it appears excessive in relation to the
alternative purpose assigned. See Kennedy v. Mendoza-Martinez 372 U.S. 144, 168 (1963).

individualized finding of dangerousness would likely defeat any challenges that the
act amounts to a legislative determination of guilt.274
Ex Post Facto Law. Similarly, H.R. 1076 could be subject to challenge as275
an impermissible ex post facto law. Every law that makes criminal an act that was
innocent at the time it was committed, or that increases the punishment to a crime276
already committed, is an ex post facto law prohibited by the Constitution. The
prohibition does not apply to laws of a non-criminal or non-punitive nature,277 but278
cannot be evaded by clothing a punitive law in civil guise. If a U.S. person were
detained pursuant to the Detention of Enemy Combatants Act for past membership
in Al Qaeda, for example, or for cooperation with terrorists that took place prior to
the enactment of the act, such detainee might challenge the act as imposing new
burdens for past conduct, in violation of the Ex Post Facto Clause of the
Constitution. However, detention under the act could continue only for so long as
“an investigation with a view toward prosecution, a prosecution, or a post-trial
proceeding” with respect to a particular detainee were ongoing, and only if the
President certifies that detention is warranted to prevent further acts of terrorism, in
which case detention could be permissible under ordinary penal statutes. The legality
of the detention will likely depend on the extent to which the procedures put in place
by the executive satisfy the constitutional requirements for a temporary deprivation
of liberty.
Due Process for Non-Resident Aliens. H.R. 1076 does not apply to non-
resident aliens and other non-citizens not lawfully admitted for permanent residence
in the United States. Although Hamdi may be read to apply due process rights only
in the case of U.S. citizens, legislation that applies in a different way to non-resident
aliens, for example without mandating any sort of hearing at all, may raise
constitutional issues. Aliens in the United States, whatever their immigration status,279
are “persons” whose liberty interests are protected by the Fifth Amendment. While
the standards for administrative decisions relating to immigration status are not as
extensive as due process requirements for criminal procedures, other types of
proceedings do not treat aliens as having fewer rights under the Constitution. Of
course, the existence of a state of war might work as an exception to this general rule.
During a declared war, enemy aliens are by statute subject to detention and280
deportation based on their nationality, in accordance with procedures set up by the

274 See United States v. Brown, 381 U.S. 437, 450 (1965) (distinguishing from bills of
attainder provisions that “leave to courts and juries the job of deciding what persons have
committed the specified acts or possess the specified characteristics”).
275 U.S. CONST. art. I, § 9, cl. 3.
276 See Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798).
277 Id. at 393.
278 Burgess v. Salmon, 97 U.S. 381 (1878).
279 See, eg, Zadvydas v. Davis, 533 U.S. 678 (2001); Mathews v. Diaz, 426 U.S. 67 (1976).
280 Alien Enemy Act, 50 U.S.C. § 21 (defining as enemy aliens “all natives, citizens,
denizens, or subjects of the hostile nation or government, being of the age of fourteen years

executive branch. The Supreme Court validated such a program during World War
II.281 It may thus be permissible for Congress, in the exercise of its war powers, to
enact specific legislation defining who may be interned as an enemy based on factors
other than nationality, but it is not clear that the President has the authority to intern
persons as enemies without specific authorization from Congress. If non-permanent
resident aliens are intended to be subject to detention as enemy combatants, it may
be advisable to include them under the same authority that applies to citizens and
aliens lawfully admitted for permanent residence in the United States.
International Legal Issues. Because the detention of enemy combatants282
is a means of conducting war, it is subject to the international law of war. H.R.

1076 would not authorize the detention of enemy combatants who are entitled to283

prisoner of war status under the Third Geneva Convention, but it could be read to
authorize the detention of civilian persons protected by the Fourth Geneva284
Convention under conditions that do not meet the requirements of that treaty. It
is not clear whether the 1949 Geneva Conventions apply in their entirety during the
war against terrorism as they would in the case of an international war, or whether
the war should be categorized as an “armed conflict not of an international character
occurring in the territory of one of the High Contracting Parties,” in which case only

280 (...continued)
and upward, who shall be within the United States and not actually naturalized”).
281 See Ludecke v. Watkins, 335 U.S. 160 (1948). The Court noted that an enemy alien
restrained pursuant to 50 U.S.C. § 21 has access to the courts to challenge whether the
statutory criteria were met, in other words, whether a “declared war” existed and whether
the person restrained is in fact an enemy alien. Id. at 170-72, n.17.
282 See generally CRS Report RL31367, Treatment of “Battlefield Detainees” in the War
on Terrorism, (overview of the 1949 Geneva Conventions relating to prisoners and other
victims of war).
283 See GPW, supra note 26.
284 See GC, supra note 27.

common article 3 of the Geneva Conventions would apply.285 H.R. 1076 may satisfy
U.S. obligations under common article 3.
H.R. 1076 may come under criticism for failing to define “enemy combatant”
as that term is ordinarily understood in the context of the law of war. As a general
rule, combatants are soldiers and others who engage in combat. Combatants are
lawful military targets during combat operations, but the law of war prefers capture
and detention as a more humane alternative to killing or wounding them. Aiders and
abettors of the enemy (and terrorists) traditionally have been treated as criminal
civilians rather than enemy combatants, and are not ordinarily treated as lawful
military targets except perhaps in the extreme circumstances where the use of deadly
force would be warranted against a person committing or about to commit a hostile
act.286 The use of the phrase “enemy combatant” to describe both battlefield
combatants and criminals arrested in areas where law and order appear to prevail
suggests that the use of military force is authorized as if a global battle were taking

285 The 1949 Geneva Conventions share several types of common provisions. The first three
articles of each Convention are identical. Common Article 3 has been described as “a
convention within a convention” to provide a general formula covering respect for intrinsic
human values that would always be in force, without regard to the characterization the
parties to a conflict might give it. Article 3 provides, in part, that:
1. Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by
sickness, wounds, detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and
in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular humiliating and degrading
(d) The passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court, affording
all the judicial guarantees which are recognized as indispensable by
civilized peoples.
286 Israel’s targeted killings of terrorist leaders might serve as precedent for the targeting of
persons deemed to be enemy combatants, but the practice has generated controversy. See
Question of the Violation of Human Rights in the Occupied Arab Territories, Including
Palestine, Report of the Special Rapporteur of the Commission on Human Rights 10-12,
U.N. Doc. E/CN.4/2004/6 (2003); see also Emanuel Gross, Democracy in the War Against
Terrorism — the Israeli Experience, 35 LOY. L.A. L. REV. 1161, 1194 (2003)(noting that
preemptive killings of terrorists “are only permitted as a last resort where there is no
possibility of capturing the terrorist alive”).

It appears likely that the Supreme Court has not issued its last word on “enemy287
combatants” and executive detention as a means to prosecute the war on terrorism.
Lower courts that have addressed questions the Supreme Court left unanswered have
not achieved a consensus, although it appears that the trend does not favor the
expansive view of executive power urged by the government. As a consequence, the
extent to which the Congress has authorized the detention without trial of American
citizens as “enemy combatants” will likely remain an important issue for determining
the validity of the Administration’s tactics. While the broad language of the
Authorization for the Use of Military Force (“AUMF”)288 authorizes the use of such
military force as the President deems appropriate in order to prevent future acts of
terrorism, it remains possible to argue that the AUMF was not intended to authorize
the President to assert all of the war powers usually reserved for formal declarations
of war.289
History shows that even during declared wars, additional statutory authority has
been seen as necessary to validate the detention of citizens not members of any armed
forces. Courts, however, have not explicitly ruled on the point with respect to
circumstances like these. Congressional activity since the Quirin decision suggests
that Congress did not interpret Quirin as a significant departure from prior practice
with regard to restriction of civil liberties during war. If that is the case, it may be
that Congress intended to authorize the capture and detention of individuals like
Hamdi — persons captured on the battlefield during actual hostilities — for so long
as military operations remain necessary, while withholding the authority to detain
individuals like Padilla — an accused enemy agent operating domestically — except
in accordance with regular due process of law. If Congress were to pass legislation
authorizing the detention of persons as enemy combatants, future detentions would

287 Former Attorney General John Ashcroft clarified that the detention of suspicious aliens,
as well as some citizens, is one facet of the government’s strategy for preventing future acts
of terrorism. See Phil Hirschkorn, Feds to Appeal Ruling on Post-Sept. 11 Tactics, CNN,
May 5, 2002, available at []
(citing quotation attributed to Attorney General John Ashcroft, that “[a]ggressive detention
of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new
288 See supra note 27, and accompanying text.
289 See generally J. Gregory Sidak, To Declare War, 41 DUKE L.J. 27 (1991); Declarations
of War and Authorizations for the Use of Military Force: Historical Background and Legal
Implications, CRS Report RL31133.

likely face fewer hurdles in court.290 However, even with the express authorization
of Congress, constitutional due process issues seem likely to arise.

290 See Padilla, 352 F.3d at 699.
As this Court sits only a short distance from where the World Trade Center once
stood, we are as keenly aware as anyone of the threat al Qaeda poses to our
country and of the responsibilities the President and law enforcement officials
bear for protecting the nation. But presidential authority does not exist in a
vacuum, and this case involves not whether those responsibilities should be
aggressively pursued, but whether the President is obligated, in the circumstances
presented here, to share them with Congress.