Detention of enemy combatants

[Volokh, Eugene]

    I appreciate Tobias's point about hearsay; I stressed it simply because
Tobias's original post started with it.  I agree that the judgment that the
person is an enemy combatant must be reviewed in civilian court (I'm not
sure that the judgment as to whether he is an *unlawful* combatant would be
thus reviewable; this is a separate question).  I'm tempted to say that the
government must be given considerable flexibility in its methods of proof
here, though I realize the risks of such an approach, and would love to hear
more about any rules that people might propose to govern this.

    Eugene

-----Original Message-----
From: Tobias Barrington Wolff [mailto:tbwolff at UCDAVIS.EDU]
Sent: Tuesday, October 29, 2002 10:46 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Detention of enemy combatants



Eugene writes, in part:



        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.


The use of hearsay information -- especially in situations where the
original witnesses are unavailable, though that does not appear to be the
case here -- is the least offensive among the extraordinarily offensive
series of positions that the government has taken, as detailed in my post.
There is much I could say about the issue -- for example, that we are not
even dealing with ordinary hearsay here, but with government summaries of
what witnesses said, coupled with a refusal to release written or recorded
versions of those original statements, which presents none of the problems
that Eugene raises.  With all due respect to Eugene, however, I would
consider it an inappropriate distraction to comment in isolation upon the
issue of hearsay before addressing the much broader implications of the
government's position in the Hamdi case.

-- T



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


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