Detention of enemy combatants

[Volokh, Eugene]

        I'm quite glad that the discussion has shifted to specific
constitutional questions, and in my view the question of detention of
Padilla, Hamdi, and others strikes me as particularly troubling.  My sense
is that the Administration has indeed overreached, though the view of some
on the other extreme strikes me as unsound, too; but I think it would be
great if we focused some more on this question.

        As I understand it, there are two doctrines in tension here.  The
first is of course the traditional rule that the government may not lock
someone up for alleged misconduct without civilian judicial process, which
usually requires a criminal trial (though in some situations might require
other hearings, for instance as to medical quarantines or psychiatric
commitment).

        The second is the equally traditional -- though fortunately more
rarely applied -- rule that the government may lock up enemy combatants (or
at least many classes of enemy combatants) for the duration of hostilities.
These are traditionally seen as prisoners of war, but this is an ambiguous
term; it is sometimes used to include all enemy combatants who are taken
prisoner (including, for instance, spies and saboteurs) and sometimes used
to cover only those who are entitled to prisoner of war treatment under the
Geneva Convention (which excludes spies, saboteurs, and others).  This is
why the term "enemy detainee" or "enemy combatant" has generally been used
to describe those who are seen as not being eligible for POW status under
the Convention.

        Surely it cannot be the case that the Constitution requires civilian
process for all enemy combatants detained by the military; that has never
been the rule, and it couldn't be the rule (habeas petitions for every
German and Japanese soldier captured by American forces?).  Johnson v.
Eisentrager makes clear that at least habeas is unavailable to noncitizens
detained overseas.

        But as I understand it, during the Civil War the federal armies
detained Southern soldiers -- who were indeed seen by the U.S. as U.S.
citizens, and were held on territory that the U.S. treated as U.S. soil --
as enemy detainees, again without recourse to civilian courts.  (Please
correct me if I'm mistaken.)  And I think that this has generally been
understood the rule more broadly; see, e.g., Moyer v. Peabody, 212 U.S. 78
(1909), which arose during civil unrest in Colorado, and which reinforced
the right (albeit in the context of a brief insurrection) to detain rebels
"by way of precaution, to prevent the exercise of hostile power" -- the
traditional justification for detaining enemy combatants.  "Public danger
warrants the substitution of executive process for judicial process.  This
was admitted with regard to killing men in the actual clash of arms; and we
think it obvious, although it was disputed, that the same is true of
temporary detention to prevent apprehended harm."

        Now without doubt this is a doctrine that has the potential for
grave abuse, and yet it seems to me that it is also necessary and sanctioned
by tradition and experience.  The question, it seems to me, are what are its
limits, both as to Hamdi (who was detained in Afghanistan, I believe) and
Padilla (who was detained in the U.S.).

        My very tentative thinking is that the civilian courts must be able
to review the question whether the person is indeed an enemy combatant --
which is to say whether he was in fact a soldier (though query how this is
determined with regard to spies or saboteurs, rather than those who carry
arms openly) in an enemy force -- at least where the person is (1) a U.S.
citizen who is (2) held within the U.S. (query how it should come out when
only one of these two items are present).  The only question there should be
whether he is an enemy combatant; once it is found that he is, I see no
constitutional barrier to the military indefinitely detaining him.  But I
agree that, at least as to U.S. citizens held within the U.S. the executive
cannot have the final say (cf., e.g., Ex Parte Milligan).

        Still, I think this is a close and different question, and
necessarily one that's influenced by the special exigencies of military
operations.  I'd love to hear what others think about this.

        Eugene
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