Presidential Authority to Detain "Enemy Combatants"

By Elsea, Jennifer K. | Presidential Studies Quarterly, September 2003 | Go to article overview

Presidential Authority to Detain "Enemy Combatants"


Elsea, Jennifer K., Presidential Studies Quarterly


President Bush claims the power, as Commander in Chief of the Armed Forces, to determine that any person, including an American citizen, who is suspected of being a member, agent, or associate of Al Qaeda, the Taliban, or possibly any other terrorist organization, is an "enemy combatant" who can be detained in U.S. military custody until hostilities end, pursuant to the international law of war (Dworkin 2002). Attorney General John Ashcroft has taken the view that the authority to detain "enemy combatants" belongs to the president alone, and that any interference in that authority by Congress would thus be unconstitutional (U.S. Senate 2002). Even if congressional authority were necessary, the government argues, such permission can be found in the Authorization to Use Force (AUF; Pub. L. No. 107-40, 115 Stat. 224 [2001]). So far, the courts have agreed that Congress has authorized the detention of "enemy combatants."

The definition of "enemy combatant," (1) however, appears to be much broader than that which has historically applied during armed conflict, and, as applied in the particular case of suspected "dirty bomber" Jose Padilla, appears to be without precedent. The detention of Yaser Hamdi seems to be more defensible in terms of the law of war, because he was allegedly captured during combat, yet he is not being held as a prisoner of war. Both men are held incommunicado in the custody of the military, neither has been charged with a crime, and the government is seeking to deny them access to counsel, saying that enemy combatants have no right to counsel, and that allowing such access would interfere with wartime intelligence efforts.

Traditionally, the only persons treated as enemy combatants were those captured during actual battle, with the exception of the German saboteurs who landed on U.S. beaches from military submarines. (2) "Fifth columnists," or those agents of the enemy who infiltrate the domestic territory of a belligerent to commit acts of sabotage or terror in furtherance of the enemy's war efforts, have been arrested and tried as criminals in civil courts, or, if the accused were members of the enemy's armed forces, tried for violation of the law of war in military court. Citizens from enemy foreign countries who were thought to present a danger, but who could not be charged with a crime have been interned as enemy aliens under the Alien Enemy Act, 50 U.S.C. [subsection] 21 et seq., even if they were bona fide members of the armed forces of an enemy state. (3) The only other circumstances in which courts have explicitly upheld the preventive detention of citizens for security reasons, without charge or any kind of hearing, have involved instances of martial law (Moyer v. Peabody, 212 U.S. 78 [1909]; Zimmerman v. United States 132 F.2d 442 [9th Cir. 1943]).

The distinction between enemy aliens and enemy combatants may prove critical. Whereas Congress has traditionally declined to regulate the conduct of the military in its treatment of prisoners taken during battle, Congress has taken a more active role regarding the treatment of enemy aliens, setting down a more precise definition for who may be treated as such and under what conditions. Under the Alien Enemy Act, 50 U.S.C. [subsection] 21 et seq., alien enemies include "all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized." This designation is further limited to times of declared war or presidentially proclaimed "predatory invasion," and the statute broadly prescribes the types of restrictions the president may place, by proclamation, on alien enemies, including possible detention and deportation, and the denial of access to U.S. courts. Where U.S. citizens not subject to treatment as prisoners of war have been interned as possible threats to the national security, additional statutory authority to at least ratify the presidentially claimed power to intern them was crucial if the detentions were to be validated by the courts, and even then it appears that due process considerations played a role. …

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Presidential Authority to Detain "Enemy Combatants"
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