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Enemy Combatants": Modern Lessons from Mr

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Enemy Combatants Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 2004 The rP esident's Power to Detain "Enemy Combatants": Modern Lessons from Mr. Madison's Forgotten War Ingrid Wuerth Follow this and additional works at: http://scholarship.law.vanderbilt.edu/faculty-publications Part of the Law Commons Recommended Citation Ingrid Wuerth, The President's Power to Detain "Enemy Combatants": Modern Lessons from Mr. Madison's Forgotten War, 98 Northwestern University Law Review. 1567 (2004) Available at: http://scholarship.law.vanderbilt.edu/faculty-publications/43 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Copyright 2004 by Northwestern University, School of Law Printed in U.S.A. Northwestern University Law Review Vol. 98, No. 4 THE PRESIDENT'S POWER TO DETAIN "ENEMY COMBATANTS": MODERN LESSONS FROM MR. MADISON'S FORGOTTEN WAR IngridBrunk Wuerth° I. INTRODUCTION The War of 1812 seems an improbable source for answers to modem questions about the President's power as Commander in Chief.' James Madison was not a strong wartime President and the office of Commander in Chief did not really come into its own until Lincoln took the helm almost half a century later.2 Modem scholarship on the President's war powers has 3 little time for the first declared war of the new 4republic, dubbed "Mr. Madison's war" by contemporaries who opposed it. The war on terrorism-so different from the rows of British soldiers descending on America from the North during the winter of 1813-has, however, generated a series of federal court cases that find interesting paral- lels in state court cases from that first declared war. These modem cases challenge the military detentions in the United States of those deemed "en- emy combatants,"5 confronting us with pressing and difficult questions .Associate Professor of Law, University of Cincinnati College of Law; B.A., University of North Carolina at Chapel Hill; J.D., University of Chicago. Thanks to the many friends and colleagues who offered helpful comments and suggestions and to the participants in workshops at the University of Houston Law Center, St. Louis University School of Law, and the University of Cincinnati College of Law. I am particularly grateful to A. Christopher Bryant, Jack Chin, Adam Feibelman, Joel Goldstein, Emily Houh, Donna Nagy, David Sloss, Wendy Parker, and Michael Van Alstine. For excellent re- search assistance, thanks to librarian James Hart. The Harold C. Schott Foundation provided generous summer research funding to support this project. 1 See U.S. CONST. art. II, § 2. 2 See EDWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS, 1787-1984, at 263-64 (5th ed. 1984). 3 Id. at 263; CLINTON ROSSITER & RICHARD P. LONGAKER, THE SUPREME COURT AND THE COMMANDER IN CHIEF 14, 121 n.100 (expanded ed. 1976); WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME 68-70, 170 (1998); LOUIS W. KOENIG, THE CHIEF EXECUTIVE 237-63 (1964). 4 See RALPH KETCHAM, JAMES MADISON: A BIOGRAPHY 537 (1971). 5 The term "enemy combatant" refers broadly to those captured during wartime who are affiliated with the enemy. See Hamdi v. Rumsfeld, 316 F.3d 450, 463 n.3 (4th Cir. 2003) (Hamdi III) ("Persons captured during wartime are often referred to as 'enemy combatants."'); see also American Bar Associa- tion Task Force on Treatment of Enemy Combatants 7 (August 8, 2002), available at http://www.abanet.org/leadership/enemycombatants.pdf ("The term 'enemy combatant' is not a term of 1567 HeinOnline -- 98 Nw. U. L. Rev. 1567 2003-2004 NORTHWESTERN UNIVERSITY LAW REVIEW about the President's power as Commander in Chief.6 These questions in- clude the scope of the President's inherent authority to detain U.S. citizens as "enemy combatants," the importance of congressional authorization in determining the scope of the President's constitutional authority, and the appropriate role of international law in domestic constitutional interpreta- tion. During the War of 1812, the young nation faced similar issues. Over the course of that war, courts issued writs of habeas corpus to and awarded damages against military commanders in the field who detained U.S. citi- zens suspected of aiding the enemy. These early cases thus suggest that the President lacks inherent constitutional authority to detain U.S. citizens as enemy combatants. Cases from the War of 1812 also engaged other key questions of relevance today. An 1814 U.S. Supreme Court case, for ex- ample, used international law to help interpret the scope of the President's constitutional authority during war.7 The modem enemy combatant cases flirt with this idea, often vaguely invoking international law without ex- plaining why.8 Then, too, cases arising out of General Andrew Jackson's military rule in New Orleans provide a counter-history to modem dogma about judicial restraint in the face of military authority during times of war. Although perhaps tempting, it would be wrong to dismiss these cases as mere anachronisms. Fought on our own territory against a powerful ad- versary, the War of 1812 allows us to consider judicial responses to military authority in a time of grave national peril. Moreover, the War of 1812 is the only declared war from which we might draw even arguably contempo- raneous conclusions about the founding generation's view of the relation- art which has a long established meaning."); News Release, United States Department of Defense, No. 497-02, DOD Responds to ABA Enemy Combatant Report (Oct. 2, 2002) (describing and defending the government's policy with respect to enemy combatants), available at http://www.defenselink.mil/ news/Oct2002/b 10022002 bt497-02.html. 6 See generally Hamdi 111,316 F.3d 450; Hamdi v. Rumsfeld, 296 F.3d 278, 283 (4th Cir. 2002) (Hamdi 11); Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 590, 592 (S.D.N.Y. 2002), aff'd in part and rev'd in part sub noma.Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003). 7 Brown v. United States, 12 U.S. (8 Cranch) 110 (1814); see infra Part IV.A. 8 Hamdi v. Rumsfeld, 337 F.3d 335, 341 (4th Cir. 2003) (Hamdi IV) (Wilkinson, J., concurring in the denial of rehearing en banc) (reasoning that "Hamdi is being held according to the time-honored laws and customs of war"); Hamdi v. Rumsfeld, 243 F. Supp. 2d 527, 530-31, 532 (E.D. Va. 2002), rev'd, 316 F.3d 450 (4th Cir. 2003) (concluding that, based on the particular facts, the requirements of the Geneva Convention Relative to the Treatment of Prisoners of War had not been met with respect to Hamdi, reasoning that "any determination of these issues would be premature," and then noting that meaningful constitutional review must involve a determination of U.S. treaty requirements, but never explaining exactly why and how U.S. treaty requirements were relevant to its analysis); Padilla,233 F. Supp. 2d at 590, 592 (using the law of war to determine whether the President may exercise his Com- mander-in-Chief powers absent a congressional declaration of war without exploring why international law is relevant to this issue); Handi H1,296 F.3d at 283 (relying on principles of international law dis- cussed in Exparte Quirin, 317 U.S. 1, 31, 37 (1942), without identifying them as principles of interna- tional law or explaining why international law is relevant to the constitutionality of Hamdi's detention). 1568 HeinOnline -- 98 Nw. U. L. Rev. 1568 2003-2004 98:1567 (2004) The President'sPower to Detain "Enemy Combatants" ship between the courts and military authority. 9 As an attorney for one de- tainee during the War of 1812 wrote: "It is a matter of astonishment" that "in the life of the men who framed [The Declaration of Independence], it should be urged in a Court of justice, that this military power can be exer- cised in this country."'" Most importantly, these cases are not obsolete; in- stead they engage the very themes--congressional authorization, international law, the institutional role of courts in times of war-that shape the courts' modem approach to the President's war powers. Yet the cases on which this Article focuses are generally neglected in modem scholarship and form no part of the contemporary canon on the scope of the President's war powers. Part II of this Article introduces the modem enemy combatant cases, briefly summarizes the litigation in the Fourth and Second Circuits, and dis- tinguishes a key case upon which the government relies: Ex parte Quirin." Part III demonstrates that the declaration of war in 1812 did not itself give the President the power to detain U.S. citizens captured in the United States during that conflict, no matter how pressing the military justification. 2 These cases, considered with more recent precedent, suggest that the Presi- dent lacks the constitutional power to detain U.S. citizens as enemy com- batants. As Part IV details, the recent enemy combatant cases have sought constitutional traction from international law by reasoning that the deten- 9 See David P. Currie, Rumors of Wars: Presidentialand CongressionalWar Powers, 1809-1829, 67 U. CHI. L. REV. 1, 2 (2000) (reasoning that events from President Madison's Administration can "greatly enrich our understanding of the original understanding of the division of war powers between the President and Congress"); Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C.
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