Thinking about detention [with apologies for cross posting]

Mark Tushnet tushnet at LAW.GEORGETOWN.EDU
Tue Jun 11 09:45:23 PDT 2002

I've been trying to figure out how to think about the legal status of Al
Mujahir/Padilla.  Here are some quite preliminary thoughts.

1.  Because, as I understand it, as a U.S. citizen, he is not within the
jurisdiction of the military tribunals (and therefore the reference in
Ex parte Quirin to unlawful combatants is irrelevant), what appears to
be at stake is the detention of a U.S. citizen by the U.S. military on
U.S. soil, without any judicial order authorizing the detention.  This
seems to me the classic case for which habeas corpus was intended, to
test the legality of the detention.

2.  If the government's position is that the detention need not be
authorized (or found lawful) by a court, this is a suspension of the
privilege of the writ of habeas corpus, and the relevant cases are Ex
parte Milligan and Duncan v. Kahanamoku.

3.  Because the civil courts are open, there's a prima facie problem
with the detention understood as a suspension of the writ.  (This
morning's paper contains a suggestion by Ruth Wedgwood that the
detention is similar to those by Union forces of Confederate soldiers.
My understanding, which could be corrected by those with more knowledge,
is that the POW camps for Confederate soldiers were in the states of the
South -- e.g., Andersonville -- where the civil courts were not open.
Does anyone know whether there were POW camps for Confederates in Union
states, or whether camps in the South were maintained after the civil
courts reopened [itself, I would think, a tricky question, given the
military dimensions of Reconstruction]?).

4.  The first question with respect to a suspension of the writ is
whether any statute authorizes the president to suspend the writ.  Next,
is a "suspension" targeted at a single individual permissible when a
generalized suspension would not be?  Finally, does the president have
inherent authority -- as commander-in-chief, or otherwise -- to suspend
the writ as to an individual, even without congressional authorization?
(I take it that the last two questions are the reason that President
Bush personally authorized the transfer to military jurisdiction.)

5.  Finally, assuming that the administration's position is that habeas
corpus remains available to test the legality of the detention and that
the detention is legal, what's the analysis?  (The relevant cases here
would seem to be ones dealing with preventive detention in a criminal
context, but I don't know those cases well enough to know what to think
about their extension to the present context.)
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