Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
P. 1
Detention of American Citizens as Enemy Combatants

Detention of American Citizens as Enemy Combatants

Ratings: (0)|Views: 301 |Likes:
Published by Chuck Achberger

More info:

Published by: Chuck Achberger on May 06, 2011
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

05/16/2012

pdf

text

original

 
Congressional Research Service 
 
˜
 
The Library of Congress 
CRS Report for Congress
Received through the CRS Web
Order Code RL31724
Detention of American Citizensas Enemy Combatants
Updated March 31, 2005
Jennifer K. ElseaLegislative AttorneyAmerican Law Division
 
Detention of American Citizens as Enemy Combatants
Summary
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 custodyon American soil. In
 Hamdi v. Rumsfeld 
, a plurality held that a U.S. citizen allegedlycaptured during combat in Afghanistan and incarcerated at a Navy brig in SouthCarolina 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. citizenin military custody in South Carolina on jurisdictional grounds. The decisions affirmthe 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 terroristattacks of September 11, 2001. However the Court appears to have limited the scopeof 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 authorityto detain American citizens who are suspected of being members, agents, orassociates of Al Qaeda, the Taliban and possibly other terrorist organizations as“enemy combatants.”The Department of Justice argues that the recent decisions, coupled with twoWorld War II era cases,
 Ex parte Quirin
and
 In re Territo
, support its contention thatthe President may order that certain U.S. citizens as well as non-citizens be held asenemy 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. citizenscaptured away from any actual battlefield, in order to prevent terrorist acts or gatherintelligence; 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 returnedto Saudi Arabia, and Jose Padilla, who remains in military custody while thegovernment 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 differentcategories of individuals is offered, followed by brief analyses of the main legalprecedents 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. practiceduring wartime to detain persons deemed dangerous to the national security follows,including legislative history that may help to shed light on Congress’ intent inauthorizing the use of force to fight terrorism. Finally, the report briefly analyzes theproposed Detention of Enemy Combatants Act, H.R. 1076, which would authorizethe President to detain U.S. citizens and residents who are determined to be “enemycombatants” in certain circumstances. The report concludes that historically, evenduring declared wars, additional statutory authority has been seen as necessary tovalidate the detention of citizens not members of any armed forces, casting in somedoubt the argument that the power to detain persons arrested in a context other thanactual hostilities is necessarily implied by an authorization to use force.
 
Contents
Background......................................................2Status and Detention of Persons in War................................5U.S. Precedent for Detention of Citizens as Enemy Combatants.............8Ex Parte Quirin...............................................8In Re Territo.................................................10Ex Parte Milligan.............................................12Moyer v. Peabody............................................14U.S. Practice - Detention of Enemies on U.S. Territory...................16Internment of Enemy Aliens during World War I....................17Internment of Enemies during World War II........................20The Cold War................................................28Recent and Current “Enemy Combatant” Cases.........................32The Case of Yaser Esam Hamdi.................................33The Case of Jose Padilla.......................................36Legal Authority to Detain “Enemy Combatants.........................40The Authorization to Use Force..................................42Title 10, U.S.C...............................................4518 U.S.C. § 4001(a)...........................................48The Role of Congress..............................................49The Proposed Detention of Enemy Combatants Act..................49Section-by-section Analysis.................................50Possible Legal Issues..........................................52Some Constitutional Questions..............................52International Legal Issues...................................55Conclusion......................................................57

Activity (2)

You've already reviewed this. Edit your review.
1 thousand reads
1 hundred reads

You're Reading a Free Preview

Download
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->