Provision for Detention and Trial of Prisoners of War and

Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Articles of War: The Nazi Saboteurs

In 1942 eight youths, seven Germans and one an American, all of whom had received training in sabotage in Berlin, were brought to this country aboard two German submarines and put ashore, one group on the Florida coast, the other on Long Island, with the idea that they would proceed forthwith to practice their art on American factories, military equipment, and installations. Making their way inland, the saboteurs were soon picked up by the FBI, some in New York, others in Chicago, and turned over to the Provost Marshal of the District of Columbia. On July 2, the President appointed a military commission to try them for violation of the laws of war, to wit: for not wearing fixed emblems to indicate their combatant status. In the midst of the trial, the accused petitioned the Supreme Court and the United States District Court for the District of Columbia for leave to bring habeas corpus proceedings. Their argument embraced the contentions: (1) that the offense charged against them was not known to the laws of the United States; (2) that it was not one arising in the land and naval forces; and (3) that the tribunal trying them had not been constituted in accordance with the requirements of the Articles of War.

The first argument the Court met as follows: The act of Congress in providing for the trial before military tribunals of offenses against the law of war is sufficiently definite, although Congress has not undertaken to codify or mark the precise boundaries of the law of war, or to enumerate or define by statute all the acts which that law condemns. “. . . [T]hose who during time of war pass surreptitiously from enemy territory into . . . [that of the United States], discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission.” 1 The second argument it disposed of by showing that petitioners’ case was of a kind that was never deemed to be within the terms of the Fifth and Sixth Amendments, citing in confirmation of this position the trial of Major Andre.2 The third contention the Court overruled by declining to draw the line between the powers of Congress and the President in the premises,3 thereby, in effect, attributing to the President the right to amend the Articles of War in a case of the kind before the Court ad libitum.

The decision might well have rested on the ground that the Constitution is without restrictive force in wartime in a situation of this sort. The saboteurs were invaders; their penetration of the boundary of the country, projected from units of a hostile fleet, was essentially a military operation, their capture was a continuation of that operation. Punishment of the saboteurs was therefore within the President’s purely martial powers as Commander in Chief. Moreover, seven of the petitioners were enemy aliens, and so, strictly speaking, without constitutional status. Even had they been civilians properly domiciled in the United States at the outbreak of the war, they would have been subject under the statutes to restraint and other disciplinary action by the President without appeals to the courts. In any event, the Court rejected the jurisdictional challenge by one of the saboteurs on the basis of his claim to U.S. citizenship, finding U.S. citizenship wholly irrelevant to the determination of whether a wartime captive is an “enemy belligerent” within the meaning of the law of war.4 , cert. denied, 352 U.S. 1014 (1957) ( “[T]he petitioner’s citizenship in the United States does not . . . confer upon him any constitutional rights not accorded any other belligerent under the laws of war.” ).

Articles of War: World War II Crimes

As a matter of fact, in General Yamashita’s case,5 which was brought after the termination of hostilities for alleged “war crimes,” the Court abandoned its restrictive conception altogether. In the words of Justice Rutledge’s dissenting opinion in this case: “The difference between the Court’s view of this proceeding and my own comes down in the end to the view, on the one hand, that there is no law restrictive upon these proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military and, on the other hand, that the provisions of the Articles of War, of the Geneva Convention and the Fifth Amendment apply.” 6 And the adherence of the United States to the Charter of London in August 1945, under which the Nazi leaders were brought to trial, is explicable by the same theory. These individuals were charged with the crime of instigating aggressive war, which at the time of its commission was not a crime either under international law or under the laws of the prosecuting governments. It must be presumed that the President is not in his capacity as Supreme Commander bound by the prohibition in the Constitution of ex post facto laws, nor does international law forbid ex post facto laws.7

Articles of War: Response to the Attacks of September 11, 2001

In response to the September 11, 2001, terrorist attacks on New York City's World Trade Center and the Pentagon in Washington, D.C., Congress passed the “Authorization for Use of Military Force,” 8 which provided that the President may use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks [or] harbored such organizations or persons.” During a military action in Afghanistan pursuant to this authorization, a United States citizen, Yaser Hamdi, was taken prisoner. The Executive Branch argued that it had plenary authority under Article II to hold such an “enemy combatant” for the duration of hostilities, and to deny him meaningful recourse to the federal courts. In Hamdi v. Rumsfeld, the Court agreed that the President was authorized to detain a United States citizen seized in Afghanistan, although a majority of the Court appeared to reject the notion that such power was inherent in the Presidency, relying instead on statutory grounds.9 However, the Court did find that the government may not detain the petitioner indefinitely for purposes of interrogation, and must afford him the opportunity to offer evidence that he is not an enemy combatant.10

In Rasul v. Bush,11 the Court rejected an Executive Branch argument that foreign prisoners being held at Guantanamo Bay were outside of federal court jurisdiction. The Court distinguished earlier case law arising during World War II that denied habeas corpus petitions from German citizens who had been captured and tried overseas by United States military tribunals.12 In Rasul, the Court noted that the Guantanamo petitioners were not citizens of a country at war with the United States,13 had not been afforded any form of tribunal, and were being held in a territory over which the United States exercised exclusive jurisdiction and control.14 In addition, the Court found that statutory grounds existed for the extension of habeas corpus to these prisoners.15 , which had previously been construed to require the presence of a petitioner in a district court's jurisdiction, was now satisfied by the presence of a jailor-custodian. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973). Another “enemy combatant” case, this one involving an American citizen arrested on American soil, was remanded after the Court found that a federal court's habeas jurisdiction under 28 U.S.C. § 2241 was limited to jurisdiction over the immediate custodian of a petitioner. Rumsfeld v. Padilla, 542 U.S. 426 (2004) (federal court's jurisdiction over Secretary of Defense Rumsfeld not sufficient to satisfy presence requirement under 28 U.S.C. § 2241). In Munaf v. Geren, 128 S. Ct. 2207 (2008), the Court held that the federal habeas statute, 28 U.S.C. § 2241, applied to American citizens held by the Multinational Force—Iraq, an international coalition force operating in Iraq and composed of 26 different nations, including the United States. The Court concluded that the habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command, even when those forces are acting as part of a multinational coalition.

In response to Rasul, Congress amended the habeas statute to eliminate all federal habeas jurisdiction over detainees, whether its basis was statutory or constitutional.16 , that this language of the Detainee Treatment Act did not apply to detainees whose cases were pending at the time of enactment, the language was amended by the Military Commissions Act of 2006, Pub. L. No. 109-366, to also apply to pending cases where a detainee had been determined to be an enemy combatant. This amendment was challenged in Boumediene v. Bush,17 . as a violation of the Suspension Clause.18 Although the historical record did not contain significant common-law applications of the writ to foreign nationals who were apprehended and detained overseas, the Court did not find this conclusive in evaluating whether habeas applied in this case.19 Emphasizing a “functional” approach to the issue,20 the Court considered (1) the citizenship and status of the detainee and the adequacy of the process through which the status determination was made; (2) the nature of the sites where apprehension and detention took place; and (3) any practical obstacles inherent in resolving the prisoner’s entitlement to the writ. As in Rasul, the Court distinguished previous case law, noting that the instant detainees disputed their enemy status, that their ability to dispute their status had been limited, that they were held in a location (Guantanamo Bay, Cuba) under the de facto jurisdiction of the United States, and that complying with the demands of habeas petitions would not interfere with the government's military mission. Thus, the Court concluded that the Suspension Clause was in full effect regarding these detainees.

Footnotes

1

Ex parte Quirin, 317 U.S. 1, 29–30, 35 (1942).

2

317 U.S. at 41–42.

3

317 U.S. at 28–29.

4

Ex parte Quirin, 317 U.S. 1, 37–38 (1942) ( “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war.” ). See also Colepaugh v. Looney, 235 F.2d 429, 432 (10th Cir. 1956), cert. denied, 352 U.S. 1014 (1957) ( “[T]he petitioner’s citizenship in the United States does not . . . confer upon him any constitutional rights not accorded any other belligerent under the laws of war.” ).

5

In re Yamashita, 327 U.S. 1 (1946).

6

327 U.S. at 81.

7

See Gross, The Criminality of Aggressive War, 41 Am. Pol. Sci. Rev. 205 (1947).

8

Pub. L. No. 107-40, 115 Stat. 224 (2001).

9

542 U.S. 507 (2004). There was no opinion of the Court. Justice O’Connor, joined by Chief Justice Rehnquist, Justice Kennedy and Justice Breyer, avoided ruling on the Executive Branch argument that such detentions could be authorized by its Article II powers alone, and relied instead on the “Authorization for Use of Military Force” passed by Congress. Justice Thomas also found that the Executive Branch had the power to detain the petitioner, although his dissenting opinion found that such detentions were authorized by Article II. Justice Souter, joined by Justice Ginsburg, rejected the argument that the Congress had authorized such detentions, while Justice Scalia, joined with Justice Stevens, denied that such congressional authorization was possible without a suspension of the writ of habeas corpus.

10

At a minimum, the petitioner must be given notice of the asserted factual basis for holding him, must be given a fair chance to rebut that evidence before a neutral decisionmaker, and must be allowed to consult an attorney. 542 U.S. at 533, 539.

11

542 U.S. 466 (2004).

12

Johnson v. Eisentrager, 339 U.S. 763, 789 (1950).

13

The petitioners were Australians and Kuwaitis.

14

Rasul v. Bush, 542 U.S. at 467.

15

The Court found that 28 U.S.C. § 2241, which had previously been construed to require the presence of a petitioner in a district court's jurisdiction, was now satisfied by the presence of a jailor-custodian. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973). Another “enemy combatant” case, this one involving an American citizen arrested on American soil, was remanded after the Court found that a federal court's habeas jurisdiction under 28 U.S.C. § 2241 was limited to jurisdiction over the immediate custodian of a petitioner. Rumsfeld v. Padilla, 542 U.S. 426 (2004) (federal court's jurisdiction over Secretary of Defense Rumsfeld not sufficient to satisfy presence requirement under 28 U.S.C. § 2241). In Munaf v. Geren, 128 S. Ct. 2207 (2008), the Court held that the federal habeas statute, 28 U.S.C. § 2241, applied to American citizens held by the Multinational Force—Iraq, an international coalition force operating in Iraq and composed of 26 different nations, including the United States. The Court concluded that the habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command, even when those forces are acting as part of a multinational coalition.

16

Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005(e)(1) (providing that “no court . . . shall have jurisdiction to hear or consider . . . an application for a writ of habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay” ). After the Court decided, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that this language of the Detainee Treatment Act did not apply to detainees whose cases were pending at the time of enactment, the language was amended by the Military Commissions Act of 2006, Pub. L. No. 109-366, to also apply to pending cases where a detainee had been determined to be an enemy combatant.

17

553 U.S. 723 (2008).

18

U.S. Const. art. I, § 9, cl. 2 provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” In Boumediene, the government argued only that the Suspension Clause did not apply to the detainees; it did not argue that Congress had acted to suspend habeas.

19

“[G]iven the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have confronted cases with close parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on this point.” 553 U.S. at 752.

20

553 U.S. at 764. “[Q]uestions of extraterritoriality turn on objective factors and practical concerns, not formalism.” Id.