class #19: preventive detention: u.s. persons within the ...class #19: preventive detention: u.s....

Class #19: Preventive Detention:

U.S. Persons within the Territorial U.S.

Professor Emily BermanTuesday, October 28, 2014

Tuesday, October 28, 2014

Recap WPRDiscuss Koh testimony & the definition of “hostilities”

Law of war detention within the US

•Hamdi v. Rumsfeld

•Padilla & Al-Marri

2

3

1) President submits a report to Congress within 48

hours of introducing U.S. troops into hostilities (or

into situations in which hostilities are reasonably

imminent).

2) Once the report is submitted, the 60-day clock

begins to tick (renewable for up to 30 days).

3) During those 60/90 days, Congress may

unilaterally terminate hostilities, formally

authorize hostilities, extend time, or do nothing.

4) In theory, if Congress does nothing, President’s

authority expires at end of 60/90-day clock.

National Security Law

The War Powers Resolution of 1973

4

On March 19, 2011, President Obama

deployed U.S. aircraft to (1) enforce a no-fly

zone over Libya; & (2) launch airstrikes

designed to protect civilians from attacks by

the Libyan military.

On March 21, President Obama reported his

actions to Congress, stating that the letter

was “consistent with” (not “required by”)

the WPR.


The 2011 Libya Operation

5

As the 60-day clock was about to run out, the

Obama Administration argued that

“hostilities” had terminated around April 4,

when the U.S. shifted into a “supporting” role

for NATO.

According to the executive branch,

“hostilities” means “a situation in which units

of the U.S. armed forces are actively engaged

in exchanges of fire with opposing units of

hostile force.” (Koh testimony at 6)


The 2011 Libya Operation

6

1) The President has no inherent war power.

2) The President has inherent, but defeasible,

power. He can act unless and until Congress

cuts off his authority.

3) The President has inherent, indefeasible war

powers. He is empowered to act not only

without congressional authorization, but also

(at least sometimes) in the face of

congressional restrictions.


Consider Three Views of The War Power

Established Contexts

• Pre-trial detention

• Mental illness

• Sex offenders

• Immigration (up to 6 months)

Requirements

• Dangerousness or flight risk

• Strict procedural protections required

by the due process clause of the 5A

• Periodic review7

Facts:

• Congress delegated the power to suspend

habeas corpus to Lincoln, subject to limits.

• Milligan’s detention exceeded those limits

Question: Is there any other authority that

would justify Milligan’s detention and trial?

Court:

• Unanimously agrees that Lincoln lacked

the authority to create military tribunals

such as the one that convicted Milligan. 8

Background: U.S. citizen is captured by the

Northern Alliance in Afghanistan in 2001. He

is transferred to Guantánamo in 2002. After

learning that he was born in LA, Hamdi is

transferred to VA brig, at which point his

father brings a habeas petition on his behalf.

Issues:

1. May government detain Hamdi as an

“enemy combatant”?

2. If so, what process is Hamdi entitled to

when contesting the assertion that he is,

in fact, an “enemy combatant”? 9

Defining Enemy Combatants:

• (832) “[F]or purposes of this case, the

‘enemy combatant’ that [the government] is

seeking to detain is an individual who, it

alleges, was ‘part of or supporting forces

hostile to the United States or coalition

partners’ in Afghanistan and who ‘engaged in

an armed conflict against the United States’

there. We therefore answer only the narrow

question before us: whether the detention of

citizens falling within that definition is

authorized.” 10

National Security Law Hamdi: Justice O’Connor’s Plurality Opinion

The Non-detention Act, 18 U.S.C. § 4001(a):

“No citizen shall be imprisoned or

otherwise detained by the United States

except pursuant to an Act of Congress.”

AUMF (840 n.11): Authorizes 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 Sept. 11,

2001.” 11

O’Connor (+ Rehnquist, Kennedy, &Breyer, JJ.):

• AUMF authorizes Hamdi’s detention.

• Hamdi has a due process right to contest the

factual basis for his detention before neutral

decisionmaker.

Souter (+ Ginsburg), JJ., concurring “in part”:

• AUMF does not authorize Hamdi’s detention.

Scalia (+ Stevens), JJ., dissenting:

• U.S. citizens can only be held pursuant to criminal

charges or a valid suspension of habeas corpus.

Thomas, J., dissenting:

• AUMF authorizes; Mobbs Decl.was sufficient. 12

“We conclude that detention of

individuals falling into the limited

category we are considering, for the

duration of the particular conflict in which

they were captured, is so fundamental

and accepted an incident to war as to be

an exercise of the ‘necessary and

appropriate force’ Congress has

authorized the President to use.” (833)


13


• Part of or supporting forces hostile to

the United States or coalition partners

in Afghanistan.

• Engaged in an armed conflict against

the United States there.

• For the duration of the conflict.

• To prevent return to the battlefield.

14



• (833) “[W]e understand Congress’ grant of

authority for the use of ‘necessary and

appropriate force’ to include the authority to

detain for the duration of the relevant

conflict, and our understanding is based on

longstanding law-of-war principles. If the

practical circumstances of a given conflict

are entirely unlike those of the conflicts that

informed the development of the law of war,

that understanding may unravel.”

15

National Security LawHamdi: Justice O’Connor’s Plurality Opinion

Required Procedures

• “We therefore hold that a citizen-

detainee seeking to challenge his

classification as an enemy combatant

must receive notice of the factual basis

for his classification, and a fair

opportunity to rebut the Government’s

factual assertions before a neutral

decisionmaker.” (837)

16

National Security LawHamdi: Justice O’Connor’s Plurality Opinion

“For reasons of inescapable human

nature, the branch of the Government

asked to counter a serious thereat is not

the branch on which to rest the Nation’s

entire reliance in striking the balance

between the will to win and the cost in

liberty on the way to victory; the

responsibility for security will naturally

amplify the claim that security

legitimately raises.” (841)


Hamdi: Justice Souter’s “Concurrence”

17

Argues that the AUMF is not a sufficiently clear

statement of congressional intent. (841)

Notes that the GCs might provide authority to

detain Hamdi as a POW, but the government is

not holding or treating Hamdi consistently with

those protections. (843)

Concurs anyway: “[T]he need to give practical

effect to the conclusions of eight Members of

the Court rejecting the Government’s position

calls for me to join with the plurality in

ordering remand on terms closest to those I

would impose.” (not in your case book) 18


Hamdi: Justice Souter’s “Concurrence”

“The Suspension Clause of the Constitution .

. . would be a sham if it could be evaded by

congressional prescription of requirements

other than the common-law requirement of

committal for criminal prosecution that

render the writ, though available,

unavailing. If the Suspension Clause does

not guarantee the citizen that he will either

be tried or released . . . it guarantees him

very little indeed.” (850)19


Hamdi: Justice Scalia’s Dissent

“Several limitations give my views in

this matter a relatively narrow compass.

They apply only to citizens, accused of

being enemy combatants, who are

detained within the territorial

jurisdiction of a federal court. . . . Where

the citizen is captured outside and held

outside the United States, the

constitutional requirements may be

different.” (850)20


Hamdi: Justice Scalia’s Dissent

“This detention falls squarely within the

Federal Government’s war powers, and

we lack the expertise and capacity to

second-guess that decision. As such,

petitioners’ habeas challenge should fail,

and there is no reason to remand the

case.” (851)

21


Hamdi: Justice Thomas’ Dissent

The government did not give Hamdi a

hearing to determine his status.

Instead, it announced that it believed

Hamdi no longer posed a threat to the

United States or had any intelligence value.

After almost three years of detention, the

government released Hamdi to Saudi Arabia

in October 2004.

In return, he agreed to renounce terrorism,

surrender his U.S. citizenship, & neither visit

[5 countries] nor sue the US government . 22


Hamdi: The Aftermath

class #19: preventive detention: u.s. persons within the ...class #19: preventive detention: u.s....

Documents