DOD RESPONDS TO ABA ENEMY COMBATANT REPORT
October 02, 2002

Department of Defense General Counsel William J. Haynes II last week asserted the president’s authority to detain enemy combatants in reponse to an American Bar Association report critical of the policy.

In a letter to ABA President Alfred P. Carlton regarding conclusions in the recently released “Preliminary Report of the ABA Task Force on Treatment of Enemy Combatants,” Haynes said, “Mr. Hirshon was kind enough to send me the August 8, 2002 Preliminary Report (‘Report’) of the ABA Task Force on Treatment of Enemy Combatants (‘Task Force’). The Task Force asks the Administration to explain the basis and scope of its authority to detain U.S. citizens as enemy combatants (pp. 20-21). We have explained our position in various filings and arguments before federal courts, and elsewhere. Nevertheless, I am happy to respond now, especially since the Report contains legal errors that I am sure the Task Force will want to correct before the ABA considers whether to endorse the Report.

“There are many areas in which the Task Force’s Report concurs with the government’s analysis of its authority to detain enemy combatants. First, the Report acknowledges that the United States is currently in a state of war with al Qaeda, one that triggers Executive Branch authority to prevent further attacks. Second, the Report recognizes that the United States government possesses wartime authority to detain enemy combatants in order to prevent them from furthering enemy attacks on the United States in the future. Finally, the Report concludes that a state of war necessarily confers upon the government additional authority that it does not possess in time of peace.

“My comments address the two central issues in the Report: (1) The President’s authority to detain enemy combatants during wartime; and (2) Judicial review of the President’s determination of enemy combatant status.

“Without question, the President can detain enemy combatants, including those who are U.S. citizens, during wartime. See Ex parte Quirin, 317 U.S. 1, 31, 37 (1942); Colepaugh v. Looney, 235 F. 2d 429, 432 (10th Cir. 1956); In re Territo, 156 F. 2d 142, 145 (9th Cir. 1946). The Fourth Circuit recently reaffirmed this proposition. See Hamdi v. Rumsfeld, 296 F.3d 278, 281, 283 (4th Cir. 2002). The purposes of detaining enemy combatants during wartime are, among other things, to gather intelligence and to ensure that detainees do not return to assist the enemy. Presidents have detained enemy combatants in every major conflict in the Nation’s history, including recent conflicts such as the Gulf, Vietnam, and Korean wars. During World War II, the United States detained hundreds of thousands of prisoners of war in the United States (some of whom were U.S. citizens) without trial or counsel. Then, as now, the purpose of detention was not to punish, but to protect.

“Article II of the Constitution is the primary basis for the President’s authority to detain enemy combatants. Article II vests the ‘executive Power’ in the President and provides that he ‘shall be Commander in Chief of the Army and Navy of the United States.’ U.S. Const. art. II, 1, cl. 1; id., 2, cl. 1. These provisions invest ‘the President alone . . . with the entire charge of hostile operations’ during wartime. Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1874); see also Johnson v. Eisentrager, 339 U.S. 763, 788 (1950). The determination that an individual should be detained as an enemy combatant has traditionally been one of the President’s most fundamental military judgments.

“While Article II is a sufficient basis for the President’s authority to detain enemy combatants, in the current conflict the President also enjoys the support of Congress. In its Joint Resolution of September 18, 2001, Congress authorized ‘the President . . . 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.’ Pub. L. No. 107-40, 2(a), 115 Stat. 224 (2001) (emphasis added); see also 10 U.S.C. 956. Congress thus specifically authorized the President not only to use deadly force, but also any lesser force needed to capture and detain enemy combatants to prevent them from engaging in continued hostilities against the United States. The President’s constitutional power is at its apex when he enjoys such support from Congress, especially in the field of foreign affairs. See Dames & Moore v. Regan, 453 U.S. 654, 674 (1981); Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 635-37 & n. 2 (1952) (Jackson, J., concurring).

“The Report incorrectly suggests (p. 9) that the absence of a ‘formal Congressional ‘Declaration of War’ somehow affects the President’s power to detain enemy combatants. As explained above, Article II alone gives the President the power to detain enemies during wartime, regardless of congressional action. In any event, Congress’s September 18, 2001 Joint Resolution provides ample congressional sanction. It has long been settled that congressional approval of presidential military action need not take the form of a declaration, see, e.g., Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801); Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800). Indeed, the vast majority of U.S. military actions have not been preceded by a congressional declaration of war. The President has exercised the power to detain enemy combatants in many wars that lacked a formal declaration from Congress, including, most recently, the Gulf, Vietnam, and Korean wars. And the Fourth Circuit recently confirmed that the government currently possesses the authority to detain enemy combatants even though Congress has not declared war against al Qaida. See Hamdi, 296 F.3d at 283.

“The Report also errs in suggesting (p. 9) that the President may detain only enemy combatants who wear uniforms. This position was implicitly rejected in Quirin, a case involving enemy saboteurs captured wearing civilian clothes. See Quirin, 317 U.S. at 31 (‘Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention . . . .’). Any other rule would reward enemy combatants for violating the traditional law of war requirement to wear uniforms or a distinctive insignia as a condition of lawful combat.

“Finally, the President’s authority to detain enemy combatants is not affected by 18 U.S.C. 4001. Section 4001 requires that ‘[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.’ The text and legislative history of Section 4001, as well as its placement in Title 18 of the U.S. Code, demonstrate that Congress intended Section 4001(a) to govern only the administration of federal civilian prisons, and not to restrict the President’s constitutional authority as Commander in Chief to detain enemy combatants. Moreover, as explained above, there is an act of Congress that supports the detentions – the September 18, 2001 Joint Resolution. If Section 4001 nonetheless purported to apply to enemy combatant detentions, it would impinge on the President’s constitutional powers under Article II. Section 4001 should be read to avoid this constitutional difficulty. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992) (citations omitted).

“The Report suggests that the government’s position in the Hamdi and Padilla habeas litigation is that ‘with no meaningful judicial review, an American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the Government’s say-so.’ That statement warrants three comments.

“First, the government welcomes meaningful judicial review of its detention in the United States of ‘enemy combatants.’ As part of its Returns in Hamdi and Padilla, the government submitted ample factual evidence supporting its determinations that Hamdi and Padilla are enemy combatants. These executive branch submissions to the judiciary are literally unprecedented in our nation’s long history of wartime detentions of enemy combatants, and demonstrate our commitment to judicial review in this context. The Fourth Circuit reaffirmed that the judiciary owes the executive branch ‘considerable’ deference in the context of foreign relations and national security, especially when the President acts with congressional support, and that this considerable deference ‘extends to military designations of individuals as enemy combatants in times of active hostilities, as well as to their detention after capture on the field of battle.’ Hamdi, 296 F.3d at 281.

“Second, I am puzzled about the basis for the Report’s recommendation (pp. 23-24) that a detainee should be given counsel for purposes of seeking habeas relief. The Report correctly acknowledges (p. 23) that ‘the 6th Amendment right to counsel does not technically attach to uncharged enemy combatants,’ and that giving detainees access to counsel may sometimes be ‘unwise, impractical, or dangerous.’ But the Report goes on to argue for a right to counsel on the basis of a vague and unexplained reference (p. 24) to ‘full Due Process rights.’ There is no due process or any other legal basis, under either domestic or international law, that entitles enemy combatants to legal counsel. And providing such counsel as a matter of discretion at this time would threaten national security in at least two respects: It would interfere with ongoing efforts to gather and evaluate intelligence about the enemy. And it might enable detained enemy combatants to pass concealed messages to the enemy. Al Qaida training manuals emphasize the ‘importance,’ when detained, of ‘mastering the art of hiding messages,’ and teach that al Qaida detainees should ‘[t]ake advantage of visits to communicate with brothers outside prison and exchange information that may be helpful to them in their work outside prison . . . .’ See Birmingham UK Al Qaida Manual, page 16, para. 6, available at http://www.usdoj.gov/ag/manualpart1_4.pdf; cf. United States v. Ahmed Abdel Sattar, et al., Indictment 02 Crim. 395, 7, 16, 30 (Grand Jury Indictment, S.D.N.Y., April 9, 2002) (attorney for member of terrorist group related to al Qaida indicted for passing messages to and from convicted terrorist Sheik Omar Abdel-Rahman).

“Third, the Report misleadingly asserts that Hamdi and Padilla are being detained ‘indefinitely.’ The suggestion appears to be that Hamdi and Padilla are being detained lawlessly and without limit. That is not true. As I just explained, the constitutional power to detain during wartime is well settled. In addition, international law – including the Third Geneva Convention – unambiguously permits a government to detain enemy combatants at least until hostilities cease. I appreciate that there may be uncertainty about when hostilities cease in the novel conflict with al Qaida. But I believe that disquiet about indefinite detention is misplaced for two reasons. First, the concern is premature. In prior wars combatants (including U.S. prisoners of war) have been legally detained for years. We have not yet approached that point in the current conflict. And second, the government has no interest in detaining enemy combatants any longer than necessary, and is reviewing the requirement for their continued detention on a case-by-case basis. But as long as hostilities continue and the detainees retain intelligence value or present a threat, no law requires that the detainees be released, and it would be imprudent to do so.

“Much of the foregoing analysis responds to your query about the basis of presidential power to detain enemy combatants during wartime. But there is more at work here than the exercise of prerogatives. The Constitution confers extraordinary power on the President to enable him to carry out his ultimate responsibility of ensuring that the American people are safe and secure. To fail to exercise this power would be to fail to discharge this most basic of all presidential responsibilities.

“I agree with the Report (p. 4) that ‘[h]ow we deal with citizens suspected of terroristic activity will say much about us as a society committed to the rule of law.’ This is one of the many reasons why the government has paid such careful attention to the legal basis for its actions. In our view, the detention of enemy combatants is authorized by the Constitution, by Congress, by long historical practice, by the laws and customs of war, by Supreme Court precedent, and by lower court precedent. In this light, the Report’s ubiquitous suggestion that the detention of Hamdi and Padilla is inconsistent with the rule of law is misplaced. I hope that an examination of the precedents and arguments above will lead the Task Force to rethink its analysis and conclusions.

“One final request: Please publicize this reply with your membership and the public in the same fashion that you publicized your preliminary Report. Though Mr. Hirshon invited my comments on the Report, the ABA published the Report on its website and through press releases well before I saw it and was able to respond. I recognize that the ABA Annual Meeting provided an attractive opportunity to broadcast the Task Force’s analysis. On the other hand, the issues addressed by the Task Force are vitally important, and the ABA should have a comprehensive and balanced presentation of legal authorities before deciding whether to endorse the Task Force’s views. Thank you.”