Detention of enemy combatants

[Volokh, Eugene]

        Well, let's say that during World War II some French soldiers turned
over to U.S. custody someone they said they found fighting for the German
army.  It turns out this man was a U.S. citizen.  He's then taken to a POW
camp in Virginia, and petitions for habeas corpus.  The U.S. says "Sure,
we're relying on hearsay, but in war we often rely on hearsay.  And, no, we
can't identify the soldiers -- we have no idea who they were."  Should the
alleged German soldier be released?

        Incidentally, I agree that some civilian court review is necessary,
and I disagree with the claim that the government's position is
"unreviewable in any court."  Also, I think the rules might be different if
the person is found on American soil, or more broadly outside the theater of
war.  (As to formal state of war, I'm quite sure that whether or not a war
is declared is irrelevant; the question is whether a war in fact exists.)
So I'm not entirely on the government's side.

        But unless you want to turn war into an adjunct of the civilian
justice system, with soldiers of allied forces being subpoenaed to testify
about whom they caught and when and under what condition (what happens, by
the way, if those soldiers are in battle? or dead? or missing in action?),
it seems to me that one can't just apply traditional rules about hearsay or
discovery to these situations.

        Eugene

Tobias Wolff writes:

> In furtherance of Mark's comments, I note that the federal
> government had arguments yesterday before the Fourth Circuit
> on the Yasir Hamdi detention.  According to NPR's reporting
> of the argument:
>
> -  The government has relied solely upon a two-page affidavit
> by a Defense Department official, containing the (hearsay)
> accounts of two Northern Alliance soldiers to the effect that
> Hamdi was captured on the battlefield, with the Taliban,
> holding an AK-47 rifle.
>
> -  It has refused to identify the soldiers offering this
> account, or to provide access to their original statements,
> or to permit Hamdi from obtaining any discovery on the
> underlying information at all.
>
> -  It has taken the position that the Department's
> determination that Hamdi is an "unlawful combatant" is
> unreviewable by any court (a position, it is worth
> reiterating, that is squarely rejected in Ex Parte Quirin).
>
> -  In response to questions by Chief Judge Wilkinson, the
> government has asserted that:
>
>    (1) it can detain "unlawful combatants" for as long as it
> decides, in its sole discretion, that such detention is necessary;
>
>    (2) it can detain American citizens and foreign nationals
> with equal freedom;
>
>    (3) it can detain such individuals even when found on
> American soil and in a civilian (i.e. non-combat) setting; and
>
>    (4) it can detain such individuals whether or not a formal
> state of war exists if the Department feels, in its sole and
> unreviewable discretion, that such detention is necessary for
> national security.
>
> I would be most grateful to hear a principled defense of this
> position from my colleagues on this list.
>
> -- Tobias
>
>
>
> > In response to Earl Maltz's post:  One of the problems in this
> > "discussion" is that the "conservatives" have not engaged in a
> > discussion at all.  They have simply asserted that the terms being
> > used were insufficiently well-defined for them to figure out why
> > particular policies were being described as evidence of an
> > authoritarian constitutional vision, without either defending the
> > policies in substantive constitutional terms or explaining
> why those
> > policies did not provide evidence for the assertions about a
> > constitutional vision. Conservatives may continue to refuse
> to engage
> > the merits of the substantive claims, or the larger argument about
> > constitutionalism, as Earl recommends.  But I for one would
> not take
> > that as evidence that conservatives have cogent responses
> to the (at
> > least by now) reasonably well-focused claims made in other postings.
> >
> > To get more specific:  Precisely what position seems most
> > constitutionally defensible, from a conservative point of
> view, about
> > the evidentiary requirements that must be satisfied before
> an American
> > citizen can be held in indefinite detention?  Or, even more
> specific,
> > why (if it is) is it a sufficient justification for such a
> detention
> > that an employee of the government identified solely by
> name and not
> > by position has signed and submitted to a court an affidavit
> > containing factual assertions that, if true, might justify the
> > detention?
> >
>
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