2006 Legislative Priorities Anti-Terrorism and Preservation of Due Process -- Enemy Combatants

Background

Status

ABA Policy

Key Points

Links

Background

The September 11 and other terrorist attacks, at home and abroad, have raised difficult questions for our legal and political systems. In times of crisis our government has often struggled to find the proper balance between the protection of the populous and each person's individual rights. Our national experience has taught us that we must always guard against the dangers of overreaction and undue trespass on individual rights, lest we neglect the very freedoms we are fighting to protect.

At least two U.S. citizens have been designated as "enemy combatants" and detained incommunicado without access to counsel or meaningful judicial review. As the Court of Appeals for the Fourth Circuit noted in the case of Yaser Hamdi, the government has taken the position that "with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charge or counsel on the government's say-so." An ABA Task Force on the Treatment of Enemy Combatants was created to examine the complex questions of statutory, constitutional, and international law and policy raised by such detentions.

Status

In the 109th Congress, Representative Adam Schiff (D-CA) re-introduced a bill, H.R. 1076, to authorize the detention of enemy combatants and to set out procedural requirements for their detention. In the previous Congress, Senator Jeff Bingaman (D-NM) offered an amendment to the Department of Defense (DOD) FY 2004 appropriations bill that would require DOD to share with the relevant congressional committees information about those who are being held as enemy combatants. The amendment was tabled on a 52-42 vote.

On December 18, 2003, the Court of Appeals for the Second Circuit ruled that the President lacked the authority to detain American citizen Jose Padilla (the so-called "dirty bomber") as an "enemy combatant" without specific congressional authorization. The ABA filed an amicus brief, arguing that Padilla is entitled to meaningful judicial review of the basis for his detention, which necessarily requires access to counsel. Padilla was arrested in May of 2002, in Chicago and subsequently declared by President Bush to be an enemy combatant and held incommunicado without access to his lawyer in a Navy brig in South Carolina. The appeals court gave the government 30 days to release Mr. Padilla or to take some other action, such as bringing criminal charges against him in civilian court or seek to hold him as a material witness in connection with a grand jury proceeding. The U.S. Supreme Court heard appeals from the Hamdi and Padilla cases on April 28, 2004. The ABA filed an amicus brief in the Hamdi case, arguing that fundamental due process requires that U.S. citizens indefinitely detained by the government have access to counsel and the opportunity to challenge the allegations against them.

In a blow to the Bush Administration’s legal policies for its war against terrorism, the U.S. Supreme Court on June 28, 2004 held in two decisions that U.S. citizens being held by the military as “enemy combatants” must be given a “meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker.” In rejecting the Administration’s argument that the executive branch alone has the authority to impose open-ended detentions on citizens and non-citizens deemed enemy combatants, the Court said “history and common sense teach us that an unchecked system of detention carries the potential to become means for oppression and abuse of others who do not present that sort of threat.” Hamdi v. Rumsfeld, No. 03-6696, and Rasul, et al., v. Bush, President of the United States, et al., No. 03-334.

In the case of Rumsfeld, Secretary of Defense v. Padilla, et al. No. 03-1027, the Court held that Padilla’s attorney would have to resubmit his petition for habeas corpus because his attorney filed it in the wrong court. Padilla filed a habeas corpus petition in the District Court of South Carolina on July 2, 2004. In February 2005, the District Court judge granted Padilla's petition, ruling that an endorsement of indefinite detentions without charge would be a "betrayal of this nation's commitment to the separation of powers that safeguards our democratic values and individual liberties." The government filed an appeal. On June 13, 2005, the U.S. Supreme Court refused to intervene in the case, allowing the 4th Circuit Court of the Appeals proceed with hearing the government's appeal on July 19.

ABA Policy

The ABA urges that U.S. citizens and residents who are detained within the United States based on their designation as "enemy combatants" be afforded the opportunity for meaningful judicial review of their status, under a standard according such deference to the designation as the reviewing court determines to be appropriate to accommodate the needs of the detainee and the requirements of national security; that they not be denied access to counsel in connection with the opportunity for such review, subject to appropriate conditions as may be set by the court to accommodate the needs of the detainee and the requirements of national security; that Congress, in coordination with the Executive Branch, establish clear standards and procedures governing the designation and treatment of U.S. citizens, residents, or others who are detained within the United States as "enemy combatants;" and that in setting and executing national policy regarding detention of "enemy combatants," Congress and the Executive Branch should consider how the policy adopted by the United States might affect the response of other nations to future acts of terrorism. The Association adopted policy at the 2004 Annual Meeting condemning the use of torture and cruel, inhuman, and degrading treatment of detainees in Iraq, Afghanistan and elsewhere by U.S. personnel. The policy also calls upon the Administration to comply fully with the U.S. Constitution and international laws and conventions ratified by the U.S. that outlaw torture, and urges the President and Congress to establish an independent, bipartisan commission with subpoena power to investigate the abuses of detainees.

Key Points

• By direct constitutional demand, the writ of habeas corpus provides access to the federal courts to challenge detentions of persons by the Executive.
  
  
• Substantial, but not absolute, deference should be given to Executive Branch designations of enemy combatants.
  
  
• The right to judicial review would be hollow unless detainees as enemy combatants are afforded meaningful access to counsel and to the effective assistance of counsel in order to appropriately challenge their detention.
  
  
• To preserve national security interests, the court may establish appropriate conditions to accommodate the needs of the government and the detainee.
  
  
• The Congress, in coordination with the Executive Branch, should establish clear standards and procedures governing detention of a U.S. citizen or resident, pursuant to 18 U.S.C. 4001 (a) which provides that "[n] o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."

Association Links

Staff Contact: Kerry Lawrence, Legislative Counsel
Last Updated: September 13, 2006