Journal of Civil Rights and Economic Development Volume 21 Issue 1 Volume 21, Fall 2006, Issue 1 Article 11 Enemy Combatants and Due Process: The Judiciary's Role in Curbing Executive Power Melissa M. Tomkiel Follow this and additional works at: https://scholarship.law.stjohns.edu/jcred This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in Journal of Civil Rights and Economic Development by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. ENEMY COMBATANTS AND DUE PROCESS: THE JUDICIARY'S ROLE IN CURBING EXECUTIVE POWER MELISSA M. TOMKIEL* "The accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny."1 INTRODUCTION In response to the terrorist attacks of September 11, 2001, the Executive branch launched a global 'war on terror' aimed at dismantling global terrorist cells and protecting the United States from further attacks. In the days following September 11, President Bush declared a state of national emergency and, in his capacity as Commander in Chief, dispatched United States military troops to Afghanistan, whose Taliban government was known to shelter Al Qaeda, the terrorist network claiming responsibility for the attacks.2 Congress then issued an authorization for the President to "use all necessary and appropriate force" against organizations or nations who aided in the September 11 attacks, and recognized the President's "authority under the Constitution to take action to deter and J.D. Candidate, St. John's University School of Law, June 2006; B.A. Political Science, American Studies, magna cum laude, University of Notre Dame, May 2002. The author wishes to thank Professor Philip Weinberg for his insight and guidance in the preparation of this Note. 1 THE FEDERALIST No. 47, at 336 (James Madison) (Benjamin Fletcher Wright ed., 1961) (expressing Founders' view of need for separation of powers). 2 Proclamation No. 7463, 66 Fed. Reg. 48199 (Sept. 14, 2001) (announcing intent to act pursuant to statutory authorization in the event of national emergency); see Charles I. Lugosi, Rule of Law or Rule By Law: The Detention of Yaser Hamdi, 30 AM. J. CRIM. L. 225, 227 (2003) (describing President's escalating rhetoric against terrorists in support of military action). ST JOHN'SJO URNAL OFLEGAL COMMENTARY [Vol. 21:1 prevent acts of international terrorism against the United States." 3 Since the military occupation of Afghanistan began, thousands of individuals suspected of alignment with terrorist networks have been taken into custody of the U.S. military. Initially it was determined that of those taken into custody, the American citizens captured either at home or abroad and foreign nationals captured within U.S. borders would be tried in the regular court system. 4 However, in response to the government's expenditure of considerable resources in developing these federal cases coupled with the growing concern over intelligence exposure, the Executive branch began putting those captured into military brigs for indefinite imprisonment without access to counsel. 5 The 3 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, 224 (2001). PL 107-40 provides: To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States. Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled .... In General.-That the President is authorized 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. Id. 4 Michael J. Kelly, Executive Excess v. JudicialProcess: American Judicial Responses to the Government's War on Terror, 13 IND. INT'L & COMP. L. REV. 787, 788 (2003) (explaining that John Walker Lindh, an American citizen, was charged in federal court, whereas Yassar Hamdi and Jose Padilla, also American citizens, have been detained in naval brigs); see John Lichtenthal, Note, The PatriotAct and Bush's Military Tribunals: Effective Enforcement or Attacks on Civil Liberties?, 10 BUFF. HUM. RTS. L. REV. 399, 415 (2004) (pointing out differences in treatment between Americans citizens). 5 See Kelly, supra note 4, at 788 (offering explanation for government's change in tactics); see also Lugosi, supra note 2, at 230 (noting that after American citizenship of a Guantanamo Bay detainee was discovered, he was removed to a naval brig). 2006] ENEMY COMBA TANTS AND DUE PROCESS justification for this treatment is that these prisoners have been designated "enemy combatants" by the Justice Department. 6 The term 'enemy combatant' derives from the Supreme Court case Ex parte Quirin,7 where the Court ruled that Americans assisting Nazis in destroying U.S. industrial targets could be tried in military commissions instead of civilian courts. 8 Even though at least one of the defendants asserted his American citizenship and the civilian courts were open, President Roosevelt designated the defendants, who were mostly German citizens, "unlawful combatants" and determined that they should be tried in military tribunals. 9 Although the Court did not accept the government's argument that the actions of the President were not subject to judicial review, the Court did affirm the President's action as well as features of the military tribunals that disregarded Fifth and Sixth Amendment rights for the defendants, including the defendant American citizen.1O The government relies on this case as authority for justifying its policy of indefinite detention for the current 'enemy combatants,'11 even though Quirin is highly criticized and often categorized along side other notorious Supreme Court decisions such as Plessy v. Ferguson,12 Dred Scott v. Sandford,13 and Korematsu v. United States.14 6 See Kelly, supra note 4, at 794 (listing two citizens who have been labeled 'enemy combatants'); see also Steven R. Swanson, Enemy Combatants and the Writ of Habeas Corpus, 35 ARIZ. ST. L.J. 939, 939-40 (2003) (stating that United States uses label 'enemy combatant' in order to detain suspected wrongdoers). 7 317 U.S. 1 (1942) (involving German-born saboteurs). 8 See Ex parte Quirin, 317 U.S. 1, 37-40 (1942) (presenting rationale against 'enemy belligerents'); see also Swanson, supra note 6, at 953 (explaining Court's reasoning in sanctioning a military commission in which to try saboteurs). 9 Quirin, 317 U.S. at 35 (recognizing government's designation of 'unlawful combatant'); see Swanson, supra note 6, at 951 (giving history of President Roosevelt's actions toward the detained men). 10 See Quirin, 317 U.S. at 45 (concluding that Fifth and Sixth Amendments placed no restrictions on authority to try offenses in this case); see also Swanson, supra note 6, at 955 (explaining Court's refusal to treat alleged American citizen differently than other 'unlawful combatants'). 11 See Kelly, supra note 4, at 798 (relating government's reliance on Quirin); see also Ingrid Brunk Wuerth, Authorizations for the Use of Force, International Law, and the CharmingBetsy Canon, 46 B.C. L. REV. 293, 307 (2005) (explaining Court's acceptance of the government's reliance on Quirin). 12 163 U.S. 537 (1896). 13 60 U.S. 393 (1856). 14 323 U.S. 214 (1944); see Kelly, supra note 4, at 798 (lumping in Quirin with Plessy, Dred Scott, and Korematsu as disfavored cases). ST JOHN'SJO URNAL OFLEGAL COMMENTARY [Vol. 21:1 The criteria for classification of a detainee as an "enemy combatant" is kept secret by those responsible for making the determination, namely the Attorney General, the Secretary of Defense, and the CIA director.15 As Solicitor General Ted Olsen explains about the enemy combatant distinction, "[t]here will be judgments and instincts and evaluations and implementations that have to be made by the executive that are probably going to be different from day to day, depending on the circumstances." 16 This elusive definition results in the indefinite detention of a diverse pool of defendants and has presented the courts with significant problems in delineating the authority of the Executive and balancing national security interests against the Constitutional rights of the accused.17 In each case, ranging from American citizens captured abroad18 to foreign citizens captured in the U.S.,19 the government justifies its detention policies with national security interests and argues that separation of powers precludes the courts from forcing the government to justify its enemy combatant classification. 20 This argument is not unique to the 15 See Kelly, supra note 4, at 797 (stating who determines which detainees are 'enemy combatants'); see also Lugosi, supra note 2, at 228 (noting executive's secrecy over how to define 'enemy combatant'). 16 Charles Lane, In Terror War, 2nd Track for Suspects; Those Designated 'Combatants'Lose Legal Protections, WASH.