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Summary:
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 cites two World War II era cases, Ex parte Quirin and In re Territo, to 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 the assertion of executive authority to detain U.S. citizens, without ordinary due process of law, 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). So far, federal courts have agreed with the Bush Administration that Congress authorized such detentions in its authorization for the President to use force against those he determines are responsible for the September 11, 2001, attacks on the United States. Many observers expect that the issue will reach the Supreme Court, where the debate may center on whether congressional authorization is necessary and whether Congress has in fact authorized the detentions. This report provides background information regarding the cases of two U.S. citizens who are currently in military custody as "enemy combatants," Yaser Esam Hamdi and Jose Padilla. 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. While Congress has not generally played a major role in the detention of enemy combatants captured on the battlefield, Congress has actively legislated in areas concerning internal security, to protect the nation from the hostile activities of enemy agents. The report provides brief synopses of the facts and the present disposition of the cases of Jose Padilla and Yaser Esam Hamdi. Because Hamdi was captured in Afghanistan during active hostilities there, there may be a presumption that he is an enemy combatant and that his detention is similar to the traditional treatment of prisoners of war (POW), although he has not been determined to qualify for POW status. The case of Padilla, however, appears to raise additional legal questions, because the allegations against him would seem to place him in the category of persons traditionally treated as alien enemies rather than enemy soldiers. Finally, the report addresses the constitutional and statutory sources that arguably provide authority for the detention of enemy combatants, as well as those that may prevent the exercise of that power with respect to U.S. citizens. 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 is necessarily implied by an authorization to use force.
