Life, Liberty, and the Pursuit of Terrorists: An In-Depth Analysis of the Government's Right to Classify United States Citizens Suspected of Terrorism as Enemy Combatants and Try Those Enemy Combatants by Military Commission
Schaffer, Amanda, Fordham Urban Law Journal
The September 11, 2001 terrorist attacks drastically changed attitudes about personal freedom. (1) Fear that a terrorist could strike at anytime, anyplace made individuals more willing to put up with inconveniences, such as longer lines at airport security and baggage checks in subway stations. (2) This fear drove the government to implement measures that it believed would help track down terrorists and prevent future attacks. (3) One such measure, promulgated by President George W. Bush, is the Military Order of November 13, 2001: "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism." (4) Those subject to the order can be "detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals." (5)
Section two of the order defines the non-citizens subject to the order. (6) Any non-U.S, citizen is subject to the order where:
[T]here is reason to believe that such individual, at the relevant times, is or was a member of the organization known as al Qaida; has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order.
This order details procedures for handling such non-citizens suspected of terrorism. (7)
While the order does not specifically give the government the right to try citizens by military commissions, (8) deeming a citizen an enemy combatant (9) gives the government the authority to try him in this manner. (10) An individual who is considered an enemy combatant can be detained for the duration of an armed conflict under the laws and customs of war, (11) not under the domestic criminal laws. (12) President Bush has declared that two U.S. citizens, Yaser Esam Hamdi and Jose Padilla, are enemy combatants, and they are currently being held in military prisons. (13) It has not yet been determined what the fate of Hamdi and Padilla will be. (14) They could be held and not tried at all, they could be tried by military commissions, like their non-citizen colleagues, or they could be tried in criminal court. (15) This Comment will explore the government's right to treat citizens as enemy combatants and whether their trials should be by military commissions or by the non-military criminal justice system.
Part I of this Comment gives background information and explains the source of the government's right to determine enemy combatant status and to use military commissions. Part I also describes the distinctions between a military trial and a regular criminal trial and explains the status of the Hamdi and Padilla cases. Part II explains why the government wants to use military commissions to try terrorists and the advantages of these commissions over regular criminal proceedings. Additionally, Part II analyzes the distinctions between citizens and non-citizens and examines the constitutionality of declaring citizens enemy combatants. Part II also discusses how terrorists differ from other types of criminals and how those differences justify disparate treatment. Part III of this Comment proposes a solution and determines that the government does have the right to treat citizens as enemy combatants. Part III also argues that military commissions should try these enemy combatants, however, there must be a structured judicial proceeding to determine whether an individual is actually an enemy combatant. (16)
ORIGINS OF THE GOVERNMENT'S RIGHT TO USE MILITARY COMMISSIONS AND TO DETERMINE ENEMY COMBATANT STATUS
A. Prior Use of Military Commissions
The United States has made use of military tribunals since the country's inception. …