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The Detention Power Author(s): Stephen I. Vladeck Source: Yale Law & Policy Review, Vol. 22,

The Detention Power Author(s): Stephen I. Vladeck Source: Yale Law & Policy Review, Vol. 22, No. 1 (Winter, 2004), pp. 153-195 Published by: Yale Law & Policy Review, Inc.

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The Detention Power S t e p h e n I. Vladeckt I t w

The Detention Power

The Detention Power S t e p h e n I. Vladeckt I t w o
The Detention Power S t e p h e n I. Vladeckt I t w o

Stephen I. Vladeckt

The Detention Power S t e p h e n I. Vladeckt I t w o
The Detention Power S t e p h e n I. Vladeckt I t w o

It would indeed be ironic if, in the name of national defense, we would

in the name of national d e f e n s e , we would s

sanction the subversion of one of those liberties defense of the Nation worthwhile.1

which makes the

t h e N a t i o n worthwhile.1 which makes the Introduction between the
t h e N a t i o n worthwhile.1 which makes the Introduction between the

Introduction

a t i o n worthwhile.1 which makes the Introduction between the roles and responsibilities of
a t i o n worthwhile.1 which makes the Introduction between the roles and responsibilities of
a t i o n worthwhile.1 which makes the Introduction between the roles and responsibilities of
a t i o n worthwhile.1 which makes the Introduction between the roles and responsibilities of

between the roles and responsibilities

of the three branches of government -

and responsibilities of the three branches of government - h a v e i n u

have inundated the legal landscape in the aftermath of the terroristattacks of September 11, 200 1,2 and rightly so. Never is the correct balance of competing governmental interests more imperiled than during times of trouble,3 and there

i n g times of t r o u b l e , 3 and there
i n g times of t r o u b l e , 3 and there

is little doubt that, more formal legal terminology aside, the past couple of years have been just that.4 That the Constitution confers considerable power upon the government to take decisive action during such troubled times is, by now, a foregone

i s , b y n o w , a f o r e g o

Concerns over the proper separation of powers -

the delicate interplay

o p e r separation of powers - the delicate interplay f Yale Law School, J.D.
o p e r separation of powers - the delicate interplay f Yale Law School, J.D.

f Yale Law School, J.D. expected 2004. My grateful thanksto Bill Banks, Harold Koh, and Ingrid Wuerth for their helpful comments, to JonathanFreiman for illuminating conversations, to Peter

l l u m i n a t i n g conversations, to Peter B e

Beardsley, Andrea Courtois, and Jenn Peresie, just Hurwitz,JennyMartinez, Elisa Massimino, and the

& National Security Post-9/11 Project at Yale,

because, and to Fiona Doherty, Mary Hahn, Ken entirestudentcast of the Balancing Civil Liberties

of the B a l a n c i n g Civil Liberties especially Chad Golder,
of the B a l a n c i n g Civil Liberties especially Chad Golder,

especially Chad Golder, Emma Quinn-Judge, Heidee

Liberties especially Chad Golder, Emma Quinn-Judge, Heidee Stoller, andTahlia Townsend, withoutwhose i n s i g

Stoller, andTahlia Townsend, withoutwhose insights this Note would not be possible.

h t s this Note would not be p o s s i b l e

1. UnitedStatesv. Robel, 389 U.S. 258, 264 (1967).

e l , 389 U.S. 2 5 8 , 264 ( 1 9 6 7 )
e l , 389 U.S. 2 5 8 , 264 ( 1 9 6 7 )

2. See, e.g., Hamdi v. Rumsfeld, 337 F.3d 335, 351, 356 (4th Cir. 2003) (Traxler,J., concurring

(4th Cir. 2003) (Traxler,J., c o n c u r r i n g w i

with denialof rehearing en bane),petitionfor cert, filed, No. 03-6696 (U.S. Oct. 1, 2003); United States

. S . Oct. 1 , 2 0 0 3 ) ; United States e n
. S . Oct. 1 , 2 0 0 3 ) ; United States e n
. S . Oct. 1 , 2 0 0 3 ) ; United States e n
. S . Oct. 1 , 2 0 0 3 ) ; United States e n

en bane); Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 951-52 (D.C. Cir. 2003)

(Tatel,J., dissenting),petitionfor cert, filed, 72 U.S.L.W. 3248 (U.S. Sept. 29, 2003) (No. 03-472).

filed, 72 U.S.L.W. 3248 (U.S. Sept. 29, 2003) (No. 03-472). Dictatorship: Crisis Government in Modern Democracies
filed, 72 U.S.L.W. 3248 (U.S. Sept. 29, 2003) (No. 03-472). Dictatorship: Crisis Government in Modern Democracies
filed, 72 U.S.L.W. 3248 (U.S. Sept. 29, 2003) (No. 03-472). Dictatorship: Crisis Government in Modern Democracies
filed, 72 U.S.L.W. 3248 (U.S. Sept. 29, 2003) (No. 03-472). Dictatorship: Crisis Government in Modern Democracies

Dictatorship:

Crisis Government

in Modern Democracies

209-87 (Transaction Publishers 2002)

T r a n s a c t i o n Publishers 2 0 0 2

how separation of powers concernsare at theirmost poignantduring times of crisis);

(1948) (surveying

Bruce Ackerman, The EmergencyConstitution, 113 YALEL.J. (forthcoming Mar. 2004) (surveying the

113 YALEL.J. (forthcoming Mar. 2004) (surveying the c o m p e t i n g
113 YALEL.J. (forthcoming Mar. 2004) (surveying the c o m p e t i n g
113 YALEL.J. (forthcoming Mar. 2004) (surveying the c o m p e t i n g
113 YALEL.J. (forthcoming Mar. 2004) (surveying the c o m p e t i n g

competing interests and proposing a legislative solution); Oren Gross, Chaos and Rules: Should

Responses

to

Violent Crises

Always

Be

Constitutional?,

112 YALE L.J. 1011,

1134 (2003)

("Acute

L.J. 1011, 1134 ( 2 0 0 3 ) ( " A c u t e

national emergencies are a test of faith - faith in ourselves, in our ability to cope and emerge victorious in the face of adversity, andin principles thatwe hold to be 'fundamental.'").

l e s thatwe hold to be 'fundamental.'"). 4 . S e e D i a
l e s thatwe hold to be 'fundamental.'"). 4 . S e e D i a
l e s thatwe hold to be 'fundamental.'"). 4 . S e e D i a

4. See Diane P. Wood, TheRule of Law in Times of Stress, 70 U. CHI.L. REV.455 (2003). Much

has been madeof the question of whetherthe "waron terror"constitutesa "war,""emergency," or other "crisis"for constitutional purposes. See, e.g., Joan Fitzpatrick, Jurisdiction of Military Commissionsand

o f M i l i t a r y Commissionsand the Ambiguous Waron Terrorism, 96

the Ambiguous Waron Terrorism, 96 AM.J. INT'LL. 345, 346-50 (2002); Derek Jinks,September 11 and theLaws of War, 28 Yale J. INT'LL. 1 (2003); David Meltzer, Al Qa 'ida: Terroristsor Irregulars?, in Law After Ground Zero 71 (John Strawson ed., 2002). The answer,however, is mostly immaterial to the analysisherein, thusthis Note largelyneglects this immenselyimportantquestion.

Note largelyneglects this immenselyimportantquestion. ( d e s c r i b i n g t

(describing the effects of total wars on domestic governments); CLINTON

ROSSITER,

CONSTITUTIONAL

3. See generally

EDWARDS. CORWIN, TOTALWAR AND THECONSTITUTION35-77 (1947)

v.

Moussaoui, 336 F.3d 279,

284-86 (4th Cir. 2003) (Wilkinson,J., dissenting fromdenial of rehearing

Cir. 2003) (Wilkinson,J., dissenting fromdenial of rehearing 153 This content downloaded from 129.15.131.90 on Wed, 21

153

2003) (Wilkinson,J., dissenting fromdenial of rehearing 153 This content downloaded from 129.15.131.90 on Wed, 21 Aug

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Vol. 22: 1 5 3 , 2004 Yale Law & P o l i c

Vol. 22: 1 53, 2004

Vol. 22: 1 5 3 , 2004 Yale Law & P o l i c y

Yale Law & Policy Review

5 3 , 2004 Yale Law & P o l i c y Review conclusion and

conclusion and an unquestionable fact.5 One of these powers is what might be

of these p o w e r s is what m i g h t be

called the "detention" power -

the

authority to incarcerateor otherwise restrain

t h o r i t y to incarcerateor otherwise restrain individuals without a preexisting statutory

individuals without a preexisting statutory basis - e.g., criminal laws or civil commitment statutes.6This detention power is of enormous significance, for it

of enormous s i g n i f i c a n c e , for
of enormous s i g n i f i c a n c e , for

allows the government to deprive individuals of their most sacred liberty - their freedom - without affording what we have come to think of as "normal"

i n g what we have come to think of as "normal" procedural protections or judicial

procedural protections or judicial

review.

On its face,

invocation of

the

or judicial review. On its f a c e , invocation of the detention p o
or judicial review. On its f a c e , invocation of the detention p o
or judicial review. On its f a c e , invocation of the detention p o

detention power is tantamountto an assertion that the exigency of the situation

justifies the abrogation of due process. In the aftermath of September 11, the Bush Administration has advanced

b e r 1 1 , the Bush Administration has advanced just such a claim -
b e r 1 1 , the Bush Administration has advanced just such a claim -

just such a claim -

that the exigency justifies the detention7 -

in its military

the exigency justifies the detention7 - in its military confinement of hundreds of " e n

confinement of hundreds of "enemy combatants,"8including, as of fall 2003, two U.S. citizens held at Navy brigs within the United States, one non-citizen

U n i t e d S t a t e s , one non-citizen a
U n i t e d S t a t e s , one non-citizen a
U n i t e d S t a t e s , one non-citizen a

also detained at a South Carolina Navy Brig, and hundreds of non-citizens

detained at the U.S. Naval Station at Guantanamo Bay, Cuba. Invoking "the

B a y , Cuba. I n v o k i n g "the president's commander-in-chief
B a y , Cuba. I n v o k i n g "the president's commander-in-chief

president's

commander-in-chief responsibilities under the Constitution" as

responsibilities under the Constitution" as "[t]he president's authority to detain enemy

"[t]he president's authority to detain enemy combatants, including U.S. citizens,"9 the Administration has held these "enemy combatants" incommunicado, without charges, without counsel, and without due process, for, in most cases, well over two years.10

c a s e s , well over two y e a r s . 1
c a s e s , well over two y e a r s . 1
c a s e s , well over two y e a r s . 1
c a s e s , well over two y e a r s . 1
c a s e s , well over two y e a r s . 1

5. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159-60 (1963). See generally DANIEL

Constitution

176-200 (2002) (making this point in the contextof the Civil War).

Farber, Lincoln's

Civil W a r ) . F a r b e r , Lincoln's 6. I

6. I should be clear, from the outset, that by the "detention" power, I do not mean the actual

p o w e r , I do not mean the actual a u t h

authority to detain individuals initially, be they combatantson the battlefield or suspected terrorists within the United States. The detention power that this Note is concernedwith is the power to detain

Note is concernedwith is the p o w e r to detain b e y o

beyond those periodsnormally allowed by the Constitution, other statutes, or internationallaw. See, e.g.,

e s , or internationallaw. S e e , e . g . , charges without
e s , or internationallaw. S e e , e . g . , charges without
e s , or internationallaw. S e e , e . g . , charges without

charges

or internationallaw. S e e , e . g . , charges without in t h

without

in the federal criminal system). For lawful combatantswhose belligerency is not in

doubt, internationallaw generally allows theirdetentionas prisoners of war until the end of hostilities.

i s o n e r s of war until the end of hostilities. See infra

See infra Section II.B (discussing the authority to detain enemy citizen prisoners of war).

the authority to detain enemy citizen prisoners of war). 7. The e x i g e

7. The exigency of the "waron terror"has been invokedas the grounds for a whole host of policy

g r o u n d s for a whole host of p o l i
g r o u n d s for a whole host of p o l i

changes. For detailed accountings

of these, see Fiona Doherty

s e , s e e F i o n a D o h e r

Rights, Assessing the New Normal: Liberty and Security

et al., Lawyers Comm.for

for the Post-September

Human

11 United

, Lawyers Comm.for for the Post-September Human 11 United STATES (2003),

STATES (2003), http://www.lchr.org/pubs/descriptions/Assessing/AssessingtheNewNormal.pdf.

8 . A s e p a r a t e i s s u

8. A separate issue in these cases, as we will see, is the extent to which "enemy combatant"is a

extent to which " e n e m y combatant"is a termwith its o w n

termwith its own dubious meaning. See

infra note 92; see also

infra text accompanying note 190.

a text a c c o m p a n y i n g note 190.

9. Oversightof the Departmentof Justice: Hearing Before the Senate Comm.on the Judiciary,

Justice: Hearing Before the Senate Comm.on the Judiciary, 107th C o n g . , 2002
Justice: Hearing Before the Senate Comm.on the Judiciary, 107th C o n g . , 2002
Justice: Hearing Before the Senate Comm.on the Judiciary, 107th C o n g . , 2002

107th Cong., 2002 WL 1722725 (2002) (testimony of Att'y Gen. John Ashcroft).

10. Whereasthe detentionsreceived little initial attentionfrom the academy, many recent works,

a d e m y , m a n y recent w o r k s
a d e m y , m a n y recent w o r k s
a d e m y , m a n y recent w o r k s

L.J.503 (2003); IrmaAlicia Cabrera Ramirez,Comment,Unequal Treatment of UnitedStates Citizens:

e q u a l Treatment o f UnitedStates Citizens: Eroding the Constitutional Safeguards, 33 GOLDENGATEU.
e q u a l Treatment o f UnitedStates Citizens: Eroding the Constitutional Safeguards, 33 GOLDENGATEU.

Eroding the Constitutional Safeguards, 33 GOLDENGATEU.

L. REV. 207 (2003); Nickolas A.

L . REV. 2 0 7 ( 2 0 0 3 ) ; Nickolas A. Lepri,Note,
L . REV. 2 0 7 ( 2 0 0 3 ) ; Nickolas A. Lepri,Note,
L . REV. 2 0 7 ( 2 0 0 3 ) ; Nickolas A. Lepri,Note,
L . REV. 2 0 7 ( 2 0 0 3 ) ; Nickolas A. Lepri,Note,

Lepri,Note,

2 0 7 ( 2 0 0 3 ) ; Nickolas A. Lepri,Note, P r o

Procedural Protections for US. CitizensDetained as Enemy CombatantsUnder Ex parte Quirin, 71 FORDHAML. REV.2565 (2003); SamanthaA. Pitts-Kiefer,Note, Jose Padilla: Enemy Combatantor Common Criminal?, 48 VlLL.L. REV.875 (2003); AlejandraRodriguez, Comment, Is the War on Terrorism Compromising Civil Liberties?A Discussion o/Hamdi and Padilla, 39 CAL.W. L. Rev. 379

Kacprowski,Note, Stacking the Deck Against Suspected

on the Government's Power To Indefinitely Detain United States Citizens as Enemy Combatants, 26

Safeguarding the Enemy Within:TheNeed for

SEATTLEU. L. REV.651 (2003); ThomasJ.

Terrorists:The Dwindling ProceduralLimits

Judicial Power ToDeterminethe Statusand

Rightsof

Persons Detained Without Trial, 44 HARV.Int'L

mostly student-written, have focused on specific aspects

of the two cases. See, e.g., Jordan Paust,

18 U.S.C. §§

3161, 3164 (2000) (mandating, as part of the Speedy Trial Act, time limits on detention

154

a l A c t , t i m e limits on detention 154 This content

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The Detention Power T h i s N o t e a r g u

The Detention Power

The Detention Power T h i s N o t e a r g u e
The Detention Power T h i s N o t e a r g u e

This Note argues that such an inherent, constitutional executive detention

e x e c u t i v e d e t e n t i

power, particularly as invoked

against U.S. citizens,11 simply does not exist.

1 s i m p l y does n o t e x i s t
1 s i m p l y does n o t e x i s t
1 s i m p l y does n o t e x i s t

Rather, even in emergencies, the various forms of the detention power -

irrespective of the detaining authority -

have always belonged to Congress, to

- have always belonged to C o n g r e s s , to d
- have always belonged to C o n g r e s s , to d

delegate or to restrainas it sees fit. To support this claim, this Note constructs a

a i m , this Note c o n s t r u c t s

historical narrativeof the detention power in the United States, beginning with the Founding, and the various forms the detention power takes, or may be argued to take, in the Constitution. As the narrative demonstrates, from the earliest moments of the Republic, it was understoodthat the power to authorize

it was understoodthat the p o w e r to authorize detentions, even d u r
it was understoodthat the p o w e r to authorize detentions, even d u r
it was understoodthat the p o w e r to authorize detentions, even d u r

detentions, even during wartime, was a power emphatically vested in Congress, not the President. The actual act of detention was the responsibility of the

the r e s p o n s i b i l i t y of

executive branch, but only when Congress had, in some form, previously authorized the detention itself. Up until the Civil War, the debate centered on

p until the Civil W a r , the debate centered on the S u s

the Suspension Clause of the Constitution, which precludes suspension of the writ of habeas corpus "unless when in cases of rebellion or invasion the public safety may require it,"12whereas, during World War II, the power took several different forms. Most notorious was the internment of tens of thousands of

Most notorious was the internment of tens of thousands of Americans of J a p a
Most notorious was the internment of tens of thousands of Americans of J a p a

Americans of Japanese descent, but equally important were the detention and trial of Nazi saboteurs (including two U.S. citizens), the imposition of martial law in Hawaii, and the confinement of U.S. citizen enemy prisoners of war. As I argue, one of the heretofore overlooked common threads underlying

overlooked common threads u n d e r l y i n g ( 2 0
overlooked common threads u n d e r l y i n g ( 2 0
overlooked common threads u n d e r l y i n g ( 2 0

(2003); Amanda Schaffer,Comment,Life, Liberty, and the Pursuit of Terrorists:An In-DepthAnalysis

Liberty, and the Pursuit of Terrorists:An In-DepthAnalysis Right C o m b a t a n
Liberty, and the Pursuit of Terrorists:An In-DepthAnalysis Right C o m b a t a n

Right

and the Pursuit of Terrorists:An In-DepthAnalysis Right C o m b a t a n t

Combatantsand Try Those Enemy Combatants by MilitaryCommission, 30 FORDHAMURB.L.J. 1465

C o m m i s s i o n , 30 FORDHAMURB.L.J. 1465 ( 2

(2003); Stephen I. Vladeck, Policy Comment, A Small Problem of Precedent: 18 U.S.C. § 4001 (a) and

112 YALEL.J.961 (2003). Foran earlysummary of

theDetention of US. Citizen "EnemyCombatants,

o f theDetention o f US. Citizen "EnemyCombatants, " some of the p o s t

"

o f US. Citizen "EnemyCombatants, " some of the p o s t - S e
o f US. Citizen "EnemyCombatants, " some of the p o s t - S e
o f US. Citizen "EnemyCombatants, " some of the p o s t - S e

some of the post-September 11 detention issues, see Whitney D. Frazier,Note, The Constitutionalityof

Detainmentin the Wake of September11th, 90 KY.L.J. 1089 (2001-2002).

the Wake of September11th, 90 KY.L.J. 1089 (2001-2002). 1 1 . T h o u g

11. Though there is certainly no moral imperative that requires such a distinction based on

that r e q u i r e s such a distinction based on c i

citizenship, there are significant statutory and constitutional differences between the government's

between the g o v e r n m e n t ' s a s

as to the detention of its own citizens and its power to detain non-citizens, especially those

outside the territorialUnited States. Even within the United States, the Alien Enemy Act of 1798, 50

power

Alien E n e m y Act of 1 7 9 8 , 50 power U
Alien E n e m y Act of 1 7 9 8 , 50 power U
Alien E n e m y Act of 1 7 9 8 , 50 power U

U.S.C. §§ 21-24, allows the Presidentto deport alien enemies during wartimewithout due process or

r i n g wartimewithout due p r o c e s s or judicial r
r i n g wartimewithout due p r o c e s s or judicial r

judicial

g wartimewithout due p r o c e s s or judicial r e v i

review. See infra note 40 (discussing the Alien Enemy Act). Further, non-citizens identifiedas

no morethanseven days -

without charges under certain,

terrorists may be detainedfor a short period -

e d f o r a s h o r t p e r i o

statutorily-prescribed conditions. See Uniting and Strengthening America by Providing Appropriate

Tools Required To Intercept andObstructTerrorism (USA PATRIOT) Act of 2001, Pub.L. No. 107-56,

§ 412, 115 Stat. 272, 350-52 (codified at 8 U.S.C.A. § 1226a (West 2003)); see also Shirin Samar,Note,

) ) ; see also Shirin S a m a r , N o t e
) ) ; see also Shirin S a m a r , N o t e
) ) ; see also Shirin S a m a r , N o t e
) ) ; see also Shirin S a m a r , N o t e

Patrioticor Unconstitutional?The Mandatory Detention of Aliens Underthe USAPatriot Act, 55 STAN L. REV.1419 (2003) (providing an overview and an assessmentof the mandatory detention provisions).

t o r y detention p r o v i s i o n s )
t o r y detention p r o v i s i o n s )

the War on Terrorism (2003) (surveying the non-citizen issues). Because of these fundamental differences, this Note focuses on the detention power as it applies to

p o w e r as it a p p l i e s t o

the detentionof U.S. citizens only, thoughmany of the conclusions can be juxtaposed onto the cases of the Guantanamodetainees. Thus far, however, each habeas petition filed on their behalf has been

p e t i t i o n filed on their behalf has been d i
p e t i t i o n filed on their behalf has been d i
p e t i t i o n filed on their behalf has been d i

dismissed on jurisdictionalgrounds. See, e.g., Al Odah v. United States, 321

F.3d 1134 (D.C. Cir.

2003), cert, granted,

Marri, the non-citizen detainedin South Carolina, raises many of the same policy issues, even if the

124 S. Ct. 534 (2003) (Nos. 03-334, 03-343). The case of Ali Saleh KahlahAl-

0 3 - 3 4 3 ) . The case of Ali Saleh KahlahAl- 12. U
0 3 - 3 4 3 ) . The case of Ali Saleh KahlahAl- 12. U
0 3 - 3 4 3 ) . The case of Ali Saleh KahlahAl- 12. U
0 3 - 3 4 3 ) . The case of Ali Saleh KahlahAl- 12. U

12.

U.S. CONST,art. I, § 9, cl. 2.

legal issues aredistinct.See

Al-Marriv. Bush, 274 F. Supp. 2d 1003 (CD. 111. 2003).

See generally

DAVID COLE, ENEMYALIENS:DOUBLESTANDARDSAND CONSTITUTIONALFREEDOMSIN

of the Government's

To Classify United States Citizens Suspected of Terrorismas Enemy

u s p e c t e d o f Terrorismas E n e m y

155

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Vol. 22: 1 5 3 , 2004 Yale Law & P o l i c

Vol. 22: 1 53, 2004

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Yale Law & Policy Review

all of these various categories of detention was the role, in each case, of

t h e r o l e , in each c a s e , of

Congress. Courts may have historically looked to the legislature as an afterthought, desperate to somehow justify their wartime deference to the executive, but it is immensely significant that they looked in that direction at all, ratherthan deferring, as they easily could have, to a broad conception of unilateral executive power. A proper understanding of this historical

u n d e r s t a n d i n g of this historical

relationship further helps to understand the importance of the Emergency Detention Act of 1950, its repeal in 1971, and the contemporaneous codification of 18 U.S.C. § 4001 (a), which mandates that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an

States e x c e p t p u r s u a n t to
States e x c e p t p u r s u a n t to
States e x c e p t p u r s u a n t to

Act of Congress."13 As this Note argues, §4001 (a) marked a fundamental

turning point in the history of the detention power, for, to whatever extent the

of the detention power, for, to whatever extent t h e constitutional role of C o

constitutional role

of

Congress

was

implicitly

mandated prior to

1971,

i c i t l y mandated p r i o r to 1 9 7

§ 4001 (a) fundamentally and undeniably reaffirms the constitutional dynamic

b l y reaffirms the constitutional d y n a m i c envisioned b y
b l y reaffirms the constitutional d y n a m i c envisioned b y

envisioned by the Framers.

d y n a m i c envisioned b y the Framers. With that in m
d y n a m i c envisioned b y the Framers. With that in m

With that in mind, in Part IV, the Note turns to the present U.S. citizen

e Note turns to the p r e s e n t U.S. citizen " e
e Note turns to the p r e s e n t U.S. citizen " e

"enemy combatant" cases,

Hamdi and Padilla. This

Note

is not primarily about

This Note is not p r i m a r i l y about t h

these two cases, nor does it attempt to be.14 Even as it goes to press, further

Even as it g o e s to p r e s s , further proceedings

proceedings are pending in each before the Supreme Court and the Second

are pending in each before the Supreme Court and the Second Circuit, respectively. And yet, it
are pending in each before the Supreme Court and the Second Circuit, respectively. And yet, it
are pending in each before the Supreme Court and the Second Circuit, respectively. And yet, it

Circuit, respectively. And yet, it would be impossible to understand the

importance of

the argument set forth in Parts I, II, and III without

forth in Parts I, II, and I I I w i t h o u t
forth in Parts I, II, and I I I w i t h o u t

understanding the full scope of the claims advanced by the Bush Administrationin these instantcases. Thus far, the U.S. Court of Appeals for the Fourth Circuit (in Hamdi) and

for the Fourth Circuit ( i n H a m d i ) and t h
for the Fourth Circuit ( i n H a m d i ) and t h
for the Fourth Circuit ( i n H a m d i ) and t h

the U.S. District Court for the SouthernDistrict of New York (in Padilla) have

upheld the facial legality of the detentions, and have

focused much -

if not

most -

of their attention on other issues. In Hamdi, questions about the so-

a m d i , q u e s t i o n s about the
a m d i , q u e s t i o n s about the
a m d i , q u e s t i o n s about the
a m d i , q u e s t i o n s about the

called "battlefield" distinction dominate, along with concerns over the proper

a l o n g with concerns over the p r o p e r w
a l o n g with concerns over the p r o p e r w

was

o n g with concerns over the p r o p e r w a s

captured in a zone of active combat, who should have standing to press Hamdi's claims in court, and so on.15In Padilla, much of the legal wrangling

, much of the l e g a l w r a n g l i
, much of the l e g a l w r a n g l i

thus far has focused on proceduralissues, including proper venue, jurisdiction, and, most controversially, access to counsel.16

and, most controversially, access to counsel.16 evidentiary standard, whether Hamdi has actually admitted t

evidentiary standard, whether Hamdi has

actually admitted that he

whether Hamdi has actually admitted t h a t h e 13. 18 U.S.C. § 4
whether Hamdi has actually admitted t h a t h e 13. 18 U.S.C. § 4

13. 18 U.S.C. §4001 (a).

h a t h e 13. 18 U.S.C. § 4 0 0 1 ( a )

14. My earlier piece on the subject focused more directly, albeit in a more limited fashion, on the

the other pieces thus far discussing either

the other p i e c e s thus far discussing either s p e c

specific arguments at issue in those two cases, as do many of case. See sourcescited supra note 10.

n y of case. See sourcescited s u p r a note 10. 1 5 .

15. See Hamdiv. Rumsfeld (HamdiIV), 337 F.3d 335 (4th Cir. 2003), petitionfor cert, filed, No.

t i t i o n f o r cert, f i l e d ,

03-6696 (U.S. Oct. 1, 2003); Hamdiv. Rumsfeld (Hamdi///), 316 F.3d 450 (4th Cir. 2003), rev'g 243

t h Cir. 2 0 0 3 ) , r e v ' g 243 F

F.

Supp. 2d 527 (E.D. Va. 2002); Hamdiv. Rumsfeld (HamdiII), 296 F.3d 278 (4th Cir. 2002); Hamdi

v.

Rumsfeld (HamdiI), 294 F.3d 598 (4th Cir. 2002).

) , 294 F.3d 598 ( 4 t h Cir. 2 0 0 2 ) .
) , 294 F.3d 598 ( 4 t h Cir. 2 0 0 2 ) .

16. See Padilla ex rel Newman v. Rumsfeld (Padilla II), 243 F. Supp. 2d 42 (S.D.N.Y. 2003);

p . 2d 42 ( S . D . N . Y . 2 0 0
p . 2d 42 ( S . D . N . Y . 2 0 0
p . 2d 42 ( S . D . N . Y . 2 0 0

originalopinion andorderon reconsideration,JudgeMukasey certifiedPadilla for

Padillaex rel. Newman v. Bush (Padilla I), 233 F.

Supp. 2d 564 (S.D.N.Y. 2002). After adhering to the

appeal to the Second

After adhering to the a p p e a l to the Second 156 This content

156

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T h e Detention Power Y e t , u n d e r l

The Detention Power

T h e Detention Power Y e t , u n d e r l y
T h e Detention Power Y e t , u n d e r l y

Yet, underlying everything in these cases are two fundamental questions that have been too quickly dismissed: Who has the power to authorize the detention of these two U.S. citizens, and has that power been properly exercised? Whether the detentions satisfy various constitutional

detentions s a t i s f y various constitutional r e q u i r
detentions s a t i s f y various constitutional r e q u i r

requirements - such as due process - are, at their core, questions of application. Whether the detentions are constitutional on their face is a separate question altogether, one that deserves more attention, and, indeed, one that should be answered at the threshold. If there is no such thing as an executive

constitutional detention power, then the existence

of

unambiguous

detention power, then the existence of unambiguous c o n g r e s s i
detention power, then the existence of unambiguous c o n g r e s s i
detention power, then the existence of unambiguous c o n g r e s s i
detention power, then the existence of unambiguous c o n g r e s s i

congressional authorizationis

a manifest necessity. To satisfy this burden, the

To s a t i s f y this b u r d e n ,
To s a t i s f y this b u r d e n ,

government has invoked two different statutes, neither of which, as I show, demonstrates congressional acquiescence in the detentions.

a c q u i e s c e n c e in the detentions. Instead,

Instead, because of § 4001 (a), Congress's failure to specifically invoke the detention power to authorize the extra-judicial confinement of U.S. citizen "enemy combatants"is tantamountto a rejection of the Bush Administration's independent authority thereto. To be clear, I do not mean to suggest that there is no constitutional detention power, and that §4001 (a) creates statutory authority out of thin air. Instead, this Note seeks to demonstrate that the Constitution clearly creates a detention power, but vests it in Congress, and that

, but vests it in C o n g r e s s , and that

no subsequent statutory or jurisprudentialdevelopment casts this allocation in any serious doubt. Indeed, what is at stake in these cases is not the interaction between § 4001 (a) and the executive's constitutional authority, but ratherthe

a u t h o r i t y , but ratherthe executive's u s u

executive's usurpation of an authority that has always belonged to Congress. Though the executive is, and always has been, the detaining authority, the

is, and always has been, the detaining authority, the detention p o w e r itself
is, and always has been, the detaining authority, the detention p o w e r itself

detention power itself belongs to Congress, and to Congress alone. Finally, in the Conclusion, I consider the proper place of the judiciary in such troubled times. As Part IV demonstrates, the courts have thus far been loath to interferewith the actions of the executive branch in conducting the so-

executive branch in c o n d u c t i n g the so- "

"waron terror." Yet, is this the role that the courts are supposed to play?

Is this a role that we want them to play? It is hard to overstate the significance of the issues implicated here, even if some of the principals have urged the opposite.17 At stake are two of our most basic constitutional precepts: the proper separation of powers between the

called

n of p o w e r s between the c a l l e d
n of p o w e r s between the c a l l e d
n of p o w e r s between the c a l l e d

Circuit, Padillaex rel. Newmanv. Rumsfeld {Padilla III), 256 F. Supp. 2d 218 (S.D.N.Y. 2003), where oral arguments took place on November 17, 2003.

t s took p l a c e on November 1 7 , 2003. 17. See,
t s took p l a c e on November 1 7 , 2003. 17. See,

17. See, e.g.,

Padilla II, 243 F. Supp. 2d at 57 (Mukasey, C.J.) ("Those to whom images of

Supp. 2d at 57 (Mukasey, C.J.) ("Those to whom images of catastrophe come 1 1 ,

catastrophe come

11, 2001,

. easily might take comfort in recalling that it is

and Padilla's is not only the first, but also the only case of

a year and a half since September its kind. Thereis every reasonnot

m b e r its kind. Thereis e v e r y reasonnot o n l
m b e r its kind. Thereis e v e r y reasonnot o n l

only to hope,

Thereis e v e r y reasonnot o n l y to hope, b u t

but also to expect thatthis case will be just anotherof the isolated cases, like Quirin, that

andhave limited application."). This statementis all the more ironicbecause it

deal with isolatedevents

it deal with i s o l a t e d e v e n t
it deal with i s o l a t e d e v e n t
it deal with i s o l a t e d e v e n t
it deal with i s o l a t e d e v e n t
it deal with i s o l a t e d e v e n t

Rev. 1, 28 (2003) ("Those who claim thatthe United States has avoided the mistakesof the past in its

currentwaron terrorismhave failed to look beneaththe surface.").

David Cole, TheNew

McCarthyism:RepeatingHistory in the Waron Terrorism, 38 HARV.C.R.-C.L.L.

is an expansivereading

of Quirin thatis one of the major issues in these cases. See infra Section II. A; cf.

cases. See i n f r a Section II. A ; c f . 157 This

157

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V o l . 22: 1 5 3 , 2004 Yale Law & P o

Vol. 22: 1 53, 2004

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Yale Law & Policy Review

2004 Yale Law & P o l i c y R e v i e w

executive and the legislature, and the individual right to not be deprived of

r i g h t to not be d e p r i v e d

personal liberty without due process of law. Though much of the history this Note traces tangentially implicates the latter, the underlying imperative is

l y implicates the latter, the underlying imperative is u n d o u b t
l y implicates the latter, the underlying imperative is u n d o u b t

undoubtedly the former -

the importance of the proper separation of powers

former - the importance of the proper separation of powers after S e p t e
former - the importance of the proper separation of powers after S e p t e

after September 11. As James Madison warned,

e m b e r 11. As James Madison w a r n e d ,

No political truth is certainly of greater intrinsic value, or is stamped with the

v a l u e , or is s t a m p e d with

authority of more enlightenedpatrons of liberty, all powers, legislative, executive, and judiciary, in the same

[t]he accumulationof hands, whetherof one,

in the same [t]he accumulationof hands, whetherof one, a few, or many, and whether hereditary,self-appointed, or

a few, or many, and whether hereditary,self-appointed, or elective, may justly be

hereditary,self-appointed, or elective, may justly be pronounced the very definitionof tyranny. O b v i o
hereditary,self-appointed, or elective, may justly be pronounced the very definitionof tyranny. O b v i o
hereditary,self-appointed, or elective, may justly be pronounced the very definitionof tyranny. O b v i o

pronounced the very definitionof tyranny.

Obviously, the extra-judicial detention of two U.S. citizens does not a

tyrannical regime make, yet this does not mean that there is no cause for

e make, yet this does not mean that there is no cause for concern. T h
e make, yet this does not mean that there is no cause for concern. T h
e make, yet this does not mean that there is no cause for concern. T h
e make, yet this does not mean that there is no cause for concern. T h

concern. Though "[t]he world has changed since September] 1 1,

the values

since S e p t e m b e r ] 1 1 , the values

this country was founded on have not. Fear is no guide to the Constitution. We must fight the enemies of freedom abroadwithout yielding to those at home."19

y i e l d i n g to those at home."19 I . The Detention

I. The Detention

Power Through

the Civil War

I . The Detention P o w e r Through the Civil War Without q u

Without question, the Framers, in drafting the Constitution, clearly provided the federal government with the power to detain its own citizens without due process, without a right to counsel, and even without access to the courts, in certain, limited times of national emergency.20 As the primary manifestation of this intent, the Suspension Clause of the Constitution, conceived of as a defense against a tyrannical government,21 explicitly precludes suspension of the writ of habeas corpus "unless when in Cases of Rebellion or Invasion the public Safety may require it."22 When such conditions existed, the writ could be suspended, but only when the Union was in dire straits.23 Thus, the question that dominated the first century of detention-

dominated the first c e n t u r y of detention- Brian S i m
dominated the first c e n t u r y of detention- Brian S i m
dominated the first c e n t u r y of detention- Brian S i m
dominated the first c e n t u r y of detention- Brian S i m
dominated the first c e n t u r y of detention- Brian S i m
dominated the first c e n t u r y of detention- Brian S i m

Brian Simpson, In the Highest Degree Odious:

Detention

Without Trial in Wartime Britain

391 (1992) ("The power of the Executive to cast a man into prison without formulatingany charge

man into p r i s o n without formulatingany charge p e r s o
man into p r i s o n without formulatingany charge p e r s o
man into p r i s o n without formulatingany charge p e r s o
man into p r i s o n without formulatingany charge p e r s o
man into p r i s o n without formulatingany charge p e r s o

person or keep him in prison becausehe is unpopular. This is really the test of civilization.").

19. Editorial, The Waron Civil Liberties, N.Y. TIMES,Sept. 10, 2002, at A24; see also Cole, supra

at A 2 4 ; see also C o l e , s u p r
at A 2 4 ; see also C o l e , s u p r
at A 2 4 ; see also C o l e , s u p r
at A 2 4 ; see also C o l e , s u p r

of the waron terrorism, and indeedof ourdemocratic experiment,requires us to reconsiderthe shortcuts

thatwe have all too swiftly and predictablyadopted.").

too s w i f t l y and predictablyadopted."). FARBER,supra note 5, at 160-61 .
too s w i f t l y and predictablyadopted."). FARBER,supra note 5, at 160-61 .

FARBER,supra note 5, at 160-61 .

predictablyadopted."). FARBER,supra note 5, at 160-61 . 21. S e e E r i c M
predictablyadopted."). FARBER,supra note 5, at 160-61 . 21. S e e E r i c M

21. See Eric M. Freedman, Habeas Corpus: Rethinking the Great Writ of Liberty

12-19

r p u s : Rethinking the Great Writ of Liberty 12-19 (2001) (discussing the origins

(2001) (discussing the origins of the SuspensionClause).

(2001) (discussing the origins of the SuspensionClause). 2 2 . U . S . C O
(2001) (discussing the origins of the SuspensionClause). 2 2 . U . S . C O
(2001) (discussing the origins of the SuspensionClause). 2 2 . U . S . C O

22. U.S. CONST,art. I, § 9, cl. 2. 1shouldbe clearthatI do not meanto ground the detention power

solely in the Suspension Clause. If anything, the detention power is an amalgamation of various powers

the detention power is an amalgamation of various powers forms do not require the suspension of

forms do not require the

suspension of habeas to withstand

forms do not require the suspension of habeas to withstand 23. C f . Y o
forms do not require the suspension of habeas to withstand 23. C f . Y o

23. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 650 (1952) (Jackson, J.,

( 1 9 5 2 ) ( J a c k s o n , J

constitutional scrutiny.My thanksto

Professor Ingrid Wuerthfor raising this important distinction.

delegated to Congress, and most of its

20.

See

WILLIAMF. DUKER, A CONSTITUTIONALHISTORYOF HABEAS CORPUS 127-33

(1980);

note 17, at 30 ("Now more thanever it is criticalthatwe remaintrueto our

The success

and is the foundationof all totalitarian government

Nothing is more abhorrentthanto imprison a

knownto the law, and

particularly to deny him the judgment of his peers, is in the highestdegree odious

from WinstonChurchillto British Home

Secretary HerbertMorrison (Nov. 21, 1943), quoted in A.W.

18. The Federalist

No. 47, at 301 (JamesMadison)(Clinton Rossiter ed., 1961); see also Cable

158

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The Detention Power r e l a t e d j u r i s

The Detention Power

The Detention Power r e l a t e d j u r i s p
The Detention Power r e l a t e d j u r i s p

related jurisprudence was not whether such a power existed, but ratherin which

r e x i s t e d , but ratherin w h i c h

branch such power was properly vested, even though the Suspension Clause is

was properly vested, even though the Suspension Clause is p a r t of Article I
was properly vested, even though the Suspension Clause is p a r t of Article I

part of Article I - those provisions

pertaining to Congress.24

A. The Suspension Clause and the Detention Power in the Early Republic

Power in the E a r l y R e p u b l i c
Power in the E a r l y R e p u b l i c
Power in the E a r l y R e p u b l i c

Neither Congress nor the courts had much of an opportunity, prior to the

onset of the U.S. Civil War, to speak to the natureof the detention power. Two

k to the natureof the detention p o w e r . Two q u i
k to the natureof the detention p o w e r . Two q u i
k to the natureof the detention p o w e r . Two q u i

quite illustrative, as the Marshall Court twice affirmed the importance of

Court twice affirmed the i m p o r t a n c e of C
Court twice affirmed the i m p o r t a n c e of C

Congress in the detention scheme.

r e s s in the d e t e n t i o n scheme.
r e s s in the d e t e n t i o n scheme.

Bollman arose out of the fabled "Burr Conspiracy," when Vice President Aaron Burr, at the end of President Thomas Jefferson's first term in office, left the government and startedan uprising in the western states and territories.27In December 1 806, James Wilkinson, the American military commander in New Orleans, arrested Samuel Swartwout and Dr. Erick Bollman, two of Burr's

and Dr. Erick B o l l m a n , two of Burr's alleged co-conspirators.28
and Dr. Erick B o l l m a n , two of Burr's alleged co-conspirators.28

alleged co-conspirators.28 Wilkinson subsequently ignored two writs of

habeas

Wilkinson subsequently ignored two writs of habeas c o r p u s , o n
Wilkinson subsequently ignored two writs of habeas c o r p u s , o n

corpus, one from a territorial court in New Orleans and one from a federal

o r i a l court in New Orleans and one from a federal j u

judge

in

Charleston, South

Carolina, and

transported the

prisoners

to

Charleston, South Carolina, and transported the prisoners to W a s h i n g t

Washington to stand trial for treason. Eventually, after attempts to pass a bill

after a t t e m p t s to p a s s a bill
after a t t e m p t s to p a s s a bill
after a t t e m p t s to p a s s a bill

suspending the writ failed,29 the government applied to the D.C. circuit court

for an arrest warrant, to which a divided panel agreed.30 The prisoners in turn filed a petition for a writ of habeas corpus in the Supreme Court, challenging the legality of their arrestand confinement pending indictment. Bollman, the first major Supreme Court decision to consider the

early

cases, however, Ex parte Bollman25 and Brown v. United States,26 are

and Brown v. United S t a t e s , 2 6 are c o

concurring)(seizing on the Suspension Clause as the only express constitutional grant of emergency

Clause as the only express constitutional grant of emergency power to the executive). As one e

power to the executive). As one early memberof Congressput it, suspension was meantto be limitedto "instances in which the judges themselves were a part of the rebellion." DAVIDP. CURRIE, THE

of the rebellion." DAVIDP. C U R R I E , THE Constitution in Congress: The

Constitution

in Congress:

The Jeffersonians,

1801-1829, at 132 (2001) (citing 16 Annals

of

132 ( 2 0 0 1 ) ( c i t i n g 16 Annals

Cong. 414 (1807) (statement of Rep.Nelson)).

(1807) (statement of R e p . N e l s o n ) ) .
(1807) (statement of R e p . N e l s o n ) ) .
(1807) (statement of R e p . N e l s o n ) ) .

24. The role of Congress was indeed explicit in early draftsof the provision. See Developments in

the Law- Federal Habeas Corpus, 83 HARV.L. Rev. 1038, 1264 (1970) ("[I]t is fairly clear that the

" [ I ] t is f a i r l y clear that the s

suspension clause itself was addressed exclusively to Congress: the original motion for a habeasclause

as did some subsequentproposals; there is no indicationin the debates

p o s a l s ; there is no indicationin the debates mentioned Congressexpressly, that

mentioned Congressexpressly,

that the omission of referenceto Congress in the clause finally adopted was intended to broadenits

l l y a d o p t e d was intended to broadenits applicability."(footnotesomitted)); see
l l y a d o p t e d was intended to broadenits applicability."(footnotesomitted)); see
l l y a d o p t e d was intended to broadenits applicability."(footnotesomitted)); see

applicability."(footnotesomitted)); see also DUKER,supra note 20, at 131-32.

see also DUKER,supra note 20, a t 131-32. 25. 8U.S.(4Cranch)75(1807). THEBURRCONSPIRACY ( 1 9 5

25. 8U.S.(4Cranch)75(1807).

note 20, a t 131-32. 25. 8U.S.(4Cranch)75(1807). THEBURRCONSPIRACY ( 1 9 5 4 ) ( s
THEBURRCONSPIRACY ( 1 9 5 4 ) ( s u r v e y i
THEBURRCONSPIRACY ( 1 9 5 4 ) ( s u r v e y i

THEBURRCONSPIRACY

(1954) (surveying the

26. 12U.S. (8 Cranch)110(1814).

27.

i n g t h e 26. 12U.S. (8 Cranch)110(1814). 2 7 . h i s

history). PresidentJeffersonhad considereda partialsuspension of the writ in some cases arising from

n of the writ in some cases a r i s i n g from t

the incident,but, believing that only Congress could do so, he backeddown when the House rejected a suspension bill thathad passed in the Senate. See Rex A. Collings, Jr., Habeas Corpusfor Convicts -

r . , Habeas C o r p u s f o r Convicts - Constitutional

Constitutional Right or Legislative Grace?, 40 Cal. L. Rev. 335, 340 (1952) (discussing the background

40 Cal. L. Rev. 335, 340 (1952) (discussing the background 2 8 . S e e
40 Cal. L. Rev. 335, 340 (1952) (discussing the background 2 8 . S e e
40 Cal. L. Rev. 335, 340 (1952) (discussing the background 2 8 . S e e
40 Cal. L. Rev. 335, 340 (1952) (discussing the background 2 8 . S e e

28. See EricM. Freedman, Milestonesin Habeas Corpus(pt. 1), 51 ALA.L. REV. 531, 559 (2000).

Indeed, Wilkinson"washimself heavily and discreditably involved in the alleged events."Id.

y involved in the a l l e g e d events."Id. 29. See id. at

29. See id. at 559-61 (discussing the background); see also Collings,supra note 27, at 340.

the background); see also Collings,supra note 27, at 340. o f t h e p r

of the proposed Jefferson suspension); see also

CURRIE,supra note 23, at 131-33 (same).

p r a note 2 3 , at 131-33 ( s a m e ) .

30. See

UnitedStatesv. Bollman, 24 F. Cas. 1189 (C.C.D.D.C. 1807) (No. 14,822).

See generally THOMASPERKINS

ABERNATHY,

159

A S P E R K I N S A B E R N A T

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constitutional dynamic of the writ of habeas corpus, was primari