Class #19: Preventive Detention:
U.S. Persons within the Territorial U.S.
Professor Emily BermanTuesday, October 28, 2014
Tuesday, October 28, 2014
Recap WPRDiscuss Koh testimony & the definition of “hostilities”
Law of war detention within the US
•Hamdi v. Rumsfeld
•Padilla & Al-Marri
2
3
1) President submits a report to Congress within 48
hours of introducing U.S. troops into hostilities (or
into situations in which hostilities are reasonably
imminent).
2) Once the report is submitted, the 60-day clock
begins to tick (renewable for up to 30 days).
3) During those 60/90 days, Congress may
unilaterally terminate hostilities, formally
authorize hostilities, extend time, or do nothing.
4) In theory, if Congress does nothing, President’s
authority expires at end of 60/90-day clock.
National Security Law
The War Powers Resolution of 1973
4
On March 19, 2011, President Obama
deployed U.S. aircraft to (1) enforce a no-fly
zone over Libya; & (2) launch airstrikes
designed to protect civilians from attacks by
the Libyan military.
On March 21, President Obama reported his
actions to Congress, stating that the letter
was “consistent with” (not “required by”)
the WPR.
National Security Law
The 2011 Libya Operation
5
As the 60-day clock was about to run out, the
Obama Administration argued that
“hostilities” had terminated around April 4,
when the U.S. shifted into a “supporting” role
for NATO.
According to the executive branch,
“hostilities” means “a situation in which units
of the U.S. armed forces are actively engaged
in exchanges of fire with opposing units of
hostile force.” (Koh testimony at 6)
National Security Law
The 2011 Libya Operation
6
1) The President has no inherent war power.
2) The President has inherent, but defeasible,
power. He can act unless and until Congress
cuts off his authority.
3) The President has inherent, indefeasible war
powers. He is empowered to act not only
without congressional authorization, but also
(at least sometimes) in the face of
congressional restrictions.
National Security Law
Consider Three Views of The War Power
Established Contexts
• Pre-trial detention
• Mental illness
• Sex offenders
• Immigration (up to 6 months)
Requirements
• Dangerousness or flight risk
• Strict procedural protections required
by the due process clause of the 5A
• Periodic review7
Facts:
• Congress delegated the power to suspend
habeas corpus to Lincoln, subject to limits.
• Milligan’s detention exceeded those limits
Question: Is there any other authority that
would justify Milligan’s detention and trial?
Court:
• Unanimously agrees that Lincoln lacked
the authority to create military tribunals
such as the one that convicted Milligan. 8
Background: U.S. citizen is captured by the
Northern Alliance in Afghanistan in 2001. He
is transferred to Guantánamo in 2002. After
learning that he was born in LA, Hamdi is
transferred to VA brig, at which point his
father brings a habeas petition on his behalf.
Issues:
1. May government detain Hamdi as an
“enemy combatant”?
2. If so, what process is Hamdi entitled to
when contesting the assertion that he is,
in fact, an “enemy combatant”? 9
Defining Enemy Combatants:
• (832) “[F]or purposes of this case, the
‘enemy combatant’ that [the government] is
seeking to detain is an individual who, it
alleges, was ‘part of or supporting forces
hostile to the United States or coalition
partners’ in Afghanistan and who ‘engaged in
an armed conflict against the United States’
there. We therefore answer only the narrow
question before us: whether the detention of
citizens falling within that definition is
authorized.” 10
National Security Law Hamdi: Justice O’Connor’s Plurality Opinion
The Non-detention Act, 18 U.S.C. § 4001(a):
“No citizen shall be imprisoned or
otherwise detained by the United States
except pursuant to an Act of Congress.”
AUMF (840 n.11): Authorizes the President
to use “all necessary and appropriate
force against those nations, organizations,
or persons he determines planned,
authorized, committed, or aided the
terrorist attacks that occurred on Sept. 11,
2001.” 11
O’Connor (+ Rehnquist, Kennedy, &Breyer, JJ.):
• AUMF authorizes Hamdi’s detention.
• Hamdi has a due process right to contest the
factual basis for his detention before neutral
decisionmaker.
Souter (+ Ginsburg), JJ., concurring “in part”:
• AUMF does not authorize Hamdi’s detention.
Scalia (+ Stevens), JJ., dissenting:
• U.S. citizens can only be held pursuant to criminal
charges or a valid suspension of habeas corpus.
Thomas, J., dissenting:
• AUMF authorizes; Mobbs Decl.was sufficient. 12
“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.” (833)
National Security Law Hamdi: Justice O’Connor’s Plurality Opinion
13
Defining Enemy Combatants:
• Part of or supporting forces hostile to
the United States or coalition partners
in Afghanistan.
• Engaged in an armed conflict against
the United States there.
• For the duration of the conflict.
• To prevent return to the battlefield.
14
National Security Law Hamdi: Justice O’Connor’s Plurality Opinion
Defining Enemy Combatants:
• (833) “[W]e understand Congress’ grant of
authority for the use of ‘necessary and
appropriate force’ to include the authority to
detain for the duration of the relevant
conflict, and our understanding is based on
longstanding law-of-war principles. If 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.”
15
National Security LawHamdi: Justice O’Connor’s Plurality Opinion
Required Procedures
• “We therefore hold that a citizen-
detainee seeking to challenge his
classification as an enemy combatant
must receive notice of the factual basis
for his classification, and a fair
opportunity to rebut the Government’s
factual assertions before a neutral
decisionmaker.” (837)
16
National Security LawHamdi: Justice O’Connor’s Plurality Opinion
“For reasons of inescapable human
nature, the branch of the Government
asked to counter a serious thereat is not
the branch on which to rest the Nation’s
entire reliance in striking the balance
between the will to win and the cost in
liberty on the way to victory; the
responsibility for security will naturally
amplify the claim that security
legitimately raises.” (841)
National Security Law
Hamdi: Justice Souter’s “Concurrence”
17
Argues that the AUMF is not a sufficiently clear
statement of congressional intent. (841)
Notes that the GCs might provide authority to
detain Hamdi as a POW, but the government is
not holding or treating Hamdi consistently with
those protections. (843)
Concurs anyway: “[T]he need to give practical
effect to the conclusions of eight Members of
the Court rejecting the Government’s position
calls for me to join with the plurality in
ordering remand on terms closest to those I
would impose.” (not in your case book) 18
National Security Law
Hamdi: Justice Souter’s “Concurrence”
“The Suspension Clause of the Constitution .
. . would be a sham if it could be evaded by
congressional prescription of requirements
other than the common-law requirement of
committal for criminal prosecution that
render the writ, though available,
unavailing. If the Suspension Clause does
not guarantee the citizen that he will either
be tried or released . . . it guarantees him
very little indeed.” (850)19
National Security Law
Hamdi: Justice Scalia’s Dissent
“Several limitations give my views in
this matter a relatively narrow compass.
They apply only to citizens, accused of
being enemy combatants, who are
detained within the territorial
jurisdiction of a federal court. . . . Where
the citizen is captured outside and held
outside the United States, the
constitutional requirements may be
different.” (850)20
National Security Law
Hamdi: Justice Scalia’s Dissent
“This detention falls squarely within the
Federal Government’s war powers, and
we lack the expertise and capacity to
second-guess that decision. As such,
petitioners’ habeas challenge should fail,
and there is no reason to remand the
case.” (851)
21
National Security Law
Hamdi: Justice Thomas’ Dissent
The government did not give Hamdi a
hearing to determine his status.
Instead, it announced that it believed
Hamdi no longer posed a threat to the
United States or had any intelligence value.
After almost three years of detention, the
government released Hamdi to Saudi Arabia
in October 2004.
In return, he agreed to renounce terrorism,
surrender his U.S. citizenship, & neither visit
[5 countries] nor sue the US government . 22
National Security Law
Hamdi: The Aftermath