18 USC 4001(a)

[Michael MASINTER]

Does the language suffice to empower the detention of persons, like
Padilla, who are not accused of having "planned, authorized, committed or
aided the terrorist attacks" or of having "harbored such organizations or
persons?"  To be sure the language authorizes the use of force to prevent
future attacks, but only against those who, in some sense, planned,
authorized, or committed the 9/11 attacks or those who harbored them.

Stated more broadly, does PL 107-40 suffice to empower the detention of
anyone claimed to have any affiliation with AQ even if unrelated to the
9/11 attacks.

18 U.S.C. 4001(a) imposes a blanket limitation on the power to detain; PL
107-40 is at best an ambiguous exception (as applied to Padilla). Shoudn't
PL 107-40 be construed as written rather than as it might have been
written had it intended to authorize war against AQ and all those who
claim allegiance to it? I think the scope of the authorization in PL
107-40 presents a real question as applied to individuals detained in the
U.S. not alleged to be in any way linked to the 9/11 attacks.

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Mon, 4 Nov 2002, Volokh, Eugene wrote:

>     By the way, what about the authorization of the use of force, Pub. L.
> 107-40, which says that "the President is authorized to use *all necessary
> and appropriate force* against those nations, organizations, or persons he
> determines planned, authorized, committed, or aided the terrorist attacks
> that occurred on September 11, 2001, or harbored such organizations or
> persons, in order to prevent any future acts of international terrorism
> against the United States by such nations, organizations or persons"?
>
>     I take it that, in context, "all necessary and appropriate force"
> against a nation or organization means the sort of force that is
> traditionally used in military action.  This would include both lethal
> attacks on soldiers of those nations or members of those military
> organizations, and, once the members surrender or are disarmed, their
> continued forcible detention as prisoners of war or other detainees (if they
> aren't entitled to POW status).
>
>     This doesn't, of course, resolve any constitutional questions; but I
> wonder whether it would resolve the 18 USC 4001(a) issue.
>
>     Eugene
>
>
> -----Original Message-----
> From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
> Sent: Monday, November 04, 2002 10:49 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: War
>
>
>
>         Here's what Ashcroft said about this at a Senate Judiciary Committee
> hearing on July 25, 2002:
>
>         "Let me address 4001(a) of Title 18, U.S. Code, which is a title
> dealing with the criminal law and with the criminal justice system. The
> president's authority to detain enemy combatants, including U.S. citizens,
> is
>
> based on his commander-in- chief responsibilities under the Constitution,
> not provisions of the criminal code, and it is bolstered by the Congress's
> September 18th, 2001 authorization to use force, which plainly includes the
> force necessary to detain enemy combatants.
>
>         "Section 4001(a) does not, and constitutionally I don't believe it
> could interfere with the president's constitutional power as
> commander-in-chief.  (Section) 4001(a) reads, 'No citizen shall be
> imprisoned or otherwise detained by the United States except pursuant to an
> act of Congress.' And as you mentioned, that was enacted in 1971.
>
>         "While the language appears broad, the section as a whole plainly
> addresses the attorney general's authority with respect to federal civilian
> prison system detainees and not the president's constitutional power as the
> commander-in-chief to detain enemy combatants."
>
>         I quote this just because that's Ashcroft's view, and not to express
> a view on whether he's right.
>
>         Eugene
>
>