Fordham Law Review Volume 71 Issue 6 Article 5 2003 Safeguarding the Enemy Within: The Need for Procedural Protections for U.S. Citizens Detained as Enemy Combatants Under Ex Parte Quirin Thomas J. Lepri Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Thomas J. Lepri, Safeguarding the Enemy Within: The Need for Procedural Protections for U.S. Citizens Detained as Enemy Combatants Under Ex Parte Quirin, 71 Fordham L. Rev. 2565 (2003). Available at: https://ir.lawnet.fordham.edu/flr/vol71/iss6/5 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. SAFEGUARDING THE ENEMY WITHIN: THE NEED FOR PROCEDURAL PROTECTIONS FOR U.S. CITIZENS DETAINED AS ENEMY COMBATANTS UNDER EX PARTE QUIRIN Thomas J. Lepri* INTRODUCTION On September 11, 2001, terrorist attacks took the lives of more than 3,000 people in New York City, Washington, D.C., and rural Pennsylvania.' The federal government reacted swiftly. On September 18, Congress authorized President George W. Bush "to use all necessary and appropriate force against those nations, organizations, or persons he determine[d] planned, authorized, committed, or aided the terrorist attacks. ' '2 Two months later, President Bush issued a military order authorizing the creation of military tribunals to try non-U.S. citizens who belonged to the al Qaeda terrorist group and "engaged in, aided or abetted, or conspired to commit" certain acts of terrorism against the United States.' Both the military order and the September 18 Congressional Authorization were designed with an eye toward the war in Afghanistan. At the same time, law enforcement officials were forced to deal with domestic threats that lacked precedent in recent history. In response to these threats, a "parallel system" of justice has developed wherein the government has claimed the authority to detain indefinitely individuals suspected of terrorist activity, including U.S. citizens, as "enemy combatants. '4 The most visible application of this doctrine thus far has been the case of Jose Padilla.5 In early May 2002, the FBI arrested Padilla in * J.D. Candidate, 2004, Fordham University School of Law. A thousand thanks and much love to my wife, Cressida, and my daughter, Miranda. 1. Death Toll: 3,025 Victims at3 Sites, Seattle Times, Sept. 11,2002, at A6. 2. Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001) [hereinafter Authorization]. 3. Military Order-Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57833, 57834 (Nov. 13, 2001). 4. See Charles Lane, In Terror War, 2nd Track for Suspects; Those Designated 'Combatants' Lose Legal Protections, Wash. Post, Dec. 1, 2002, at A01 ("[lit is different than the criminal procedure system we all know and love. It's a separate track for people we catch in the war." (quoting a Bush administration official)). 5. See infra Part II.B. 2565 2566 FORDHAM LAW REVIEW [Vol. 71 Chicago at O'Hare International Airport for his alleged participation in an al Qaeda plot to detonate a radiological bomb in the United States.' The rough outlines of Padilla's life are well known by now. An American citizen, Padilla was born in Brooklyn, New York, and moved to Chicago with his family when he was four years old.7 While some neighbors knew him as "Pucho," an affable child and good student,' he became familiar to Chicago law enforcement authorities in the 1980s as a local gang member, according to government officials.9 In 1983, when Padilla was twelve years old, a jury convicted him of murder in Chicago."' He was imprisoned until his eighteenth birthday." In 1991, he went to prison in Florida on charges of aggravated assault and firing a handgun. 2 After his release, he began referring to himself as Ibrahim Padilla and moved to Egypt. 3 His 4 mother reportedly feared he had joined a cult. According to the government, Padilla afterwards traveled to Pakistan, Saudi Arabia, and Afghanistan." In Afghanistan in 2001, he met with al Qaeda lieutenant Abu Zubaydah, with whom he developed a plan to build and detonate a radiological bomb in the United States. The plan allegedly included stealing radioactive7 material from within the United States once Padilla had returned. 6. See Dan Eggen & Susan Schmidt, 'Dirty Bomb' Plot Uncovered, U.S. Says; Suspected Al Qaeda Operative Held as 'Enemy Combatant', Wash. Post, June 11, 2002, at Al; see also Ted Bridis, U.S. Nabs 'Dirty Bomb' Suspect, Associated Press Newswires, June 10, 2002; Andrew Buncombe, U.S. Stops AI-Qa'ida 'Dirty Bomb' Attack on Washington, The Independent (London), June 11, 2002, at 1; John Hendren, Alleged Bomb Plotter to Be Held Indefinitely, Pentagon Says, L.A. Times, June 11, 2002, at A18; Donna Leinwand & Jack Kelley, U.S.: 'Dirty Bomb' Plot Foiled, USA Today, June 11, 2002, at IA; James Risen & Philip Shenon, Traces of Terror: The Investigation; U.S. Says It Halted Qaeda Plot to Use Radioactive Bomb, N.Y. Times, June 11, 2002, at Al; Roland Watson & James Doran, AI-Qaeda's 'Dirty Bomb' Plotter Held, Times (London), June 11, 2002, at 19. 7. Robert C. Herguth et al., Former Chicagoan 'Trained with the Enemy,' U.S. Says, Chicago Sun-Times, June 10, 2002, at 3. 8. Id. 9. Id.; see also Respondents' Response to, and Motion to Dismiss, The Amended Petition for a Writ of Habeas Corpus at app. 2, Padilla v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002) (No. 02-4445) [hereinafter Government Brief]. But see Caroline Daniel & Jeremy Grant, Ex-gang member who went unnoticed, Fin. Times (London), June 11, 2002, at 3 (stating Chicago police have no record of Padilla). 10. Government Brief, supra note 9, app. at 2. News reports following Padilla's detention put his age at 31. See, e.g., Herguth, supra note 7, at 3. Thus, if these figures are accurate, in 1983, at the time of his conviction, Padilla would have been 12 or 13 years old. 11. Government Brief, supra note 9, app. at 2. 12. Id.; see also Herguth, supra note 7, at 3. 13. Government Brief, supra note 9, app. at 2. Subsequent to Padilla's moving to Egypt in 1998, he became known as Abdullah Al Muhajir, according to the Mobbs Declaration. Id. 14. Herguth, supra note 7, at 3. 15. Government Brief, supra note 9, app. at 3. 16. Id. 17. Id. 2003] ENEMY COMBATANTS 2567 Federal agents arrested Padilla immediately upon his arrival in Chicago on May 8, 2002." The U.S. Marshals Service held him as a material witness in a grand jury investigation 9 until June 9, when he was transferred to a Charleston, South Carolina, Navy brig, where he has remained without access to counsel and without being formally charged.2z The government has justified curtailing Padilla's Fifth and Sixth Amendment rights by declaring him an "enemy combatant," a term that has lain dormant in the United States judicial system for the last sixty years, and whose meaning is extremely unclear.2' Under the enemy combatants doctrine, the government claims the right to detain U.S. citizens indefinitely without charging them. This Note addresses the government's application of the enemy combatants doctrine to detain suspected terrorists. Part I explores the judicial origins of the term "enemy combatants" and its cognate in international law, "unlawful combatants. ' 22 Part I also examines the Foreign Intelligence Surveillance Act as an example of a congressional attempt to provide detailed procedural safeguards against executive abuse in national security matters.23 Part II discusses the main questions posed by two recent enemy combatant cases, Hamdi v. Rumsfeld 4 and Padilla v. Bush25 : What procedural protections should suspected enemy combatants have, and by what standard should the government's determination that an individual is an enemy combatant be reviewed? Part II also discusses the benefits and pitfalls of the clear alternative to enemy combatant detentions: affording suspects the full protections of the normal rules of civil procedure.26 Finally, Part II examines civilian trials, such as the trials of the 1993 World Trade Center bombing conspirators and the 1998 embassy bombers.27 Part III proposes a set of procedural safeguards to the unsettled questions presented by Hamdi and Padilla.2" It does so by using the law of war and the procedures codified in the Foreign Intelligence Surveillance Act as models. Detainees, this part argues, should have rights in accordance with those models, including the 18. Id. app. at 4. 19. Id. 20. See, e.g., Editorial, The Right to Counsel, N.Y. Times, Jan. 24, 2003, at A22 (noting Padilla has been held in the South Carolina brig since June 2002); Benjamin Weiser, U.S. Asks Judge to Deny Terror Suspect Access to Lawyer, Saying It Could Harm Interrogation, N.Y. Times, Jan. 10, 2003, at All (noting Padilla is one of two U.S. citizens held since September 11, 2001, without being formally charged); see also infra notes 147-59 and accompanying text. 21. See infra Part 1; see also notes 152-55 and accompanying text. 22. See infra notes 33-81 and accompanying text. 23. See infra notes 82-106 and accompanying text. 24. 316 F.3d 450 (4th Cir. 2003): see also infra notes 109-46 and accompanying text. 25. 233 F.