Order Code RL31724
Report for Congress
Received through the CRS Web
Detention of American Citizens
as Enemy Combatants
January 30, 2003
Jennifer K. Elsea
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Detention of American Citizens as Enemy Combatants
Summary
This report, which will be updated as necessary, analyzes the authority to detain
American citizens who are suspected of being members, agents, or associates of Al
Qaeda, the Taliban and possibly other terrorist organizations as “enemy combatants.”
The Department of Justice cites two World War II era cases, Ex parte Quirin and In
re Territo, to support its contention that the President may order that certain U.S.
citizens as well as non-citizens be held as enemy combatants pursuant to the law of
war and Article II of the Constitution. Critics, however, question the assertion of
executive authority to detain U.S. citizens, without ordinary due process of law, in
order to prevent terrorist acts or gather intelligence; and some argue that Congress
has prohibited such detention of U.S. citizens when it enacted 18 U.S.C. § 4001(a).
So far, federal courts have agreed with the Bush Administration that Congress
authorized such detentions in its authorization for the President to use force against
those he determines are responsible for the September 11, 2001, attacks on the
United States. Many observers expect that the issue will reach the Supreme Court,
where the debate may center on whether congressional authorization is necessary and
whether Congress has in fact authorized the detentions.
This report provides background information regarding the cases of two U.S.
citizens who are currently in military custody as “enemy combatants,” Yaser Esam
Hamdi and Jose Padilla. A brief introduction to the law of war pertinent to the
detention of different categories of individuals is offered, followed by brief analyses
of the main legal precedents invoked to support the President’s actions, as well as Ex
parte Milligan, which some argue supports the opposite conclusion. A discussion
of U.S. practice during wartime to detain persons deemed dangerous to the national
security follows, including legislative history that may help to shed light on
Congress’ intent in authorizing the use of force to fight terrorism. While Congress
has not generally played a major role in the detention of enemy combatants captured
on the battlefield, Congress has actively legislated in areas concerning internal
security, to protect the nation from the hostile activities of enemy agents.
The report provides brief synopses of the facts and the present disposition of the
cases of Jose Padilla and Yaser Esam Hamdi. Because Hamdi was captured in
Afghanistan during active hostilities there, there may be a presumption that he is an
enemy combatant and that his detention is similar to the traditional treatment of
prisoners of war (POW), although he has not been determined to qualify for POW
status. The case of Padilla, however, appears to raise additional legal questions,
because the allegations against him would seem to place him in the category of
persons traditionally treated as alien enemies rather than enemy soldiers.
Finally, the report addresses the constitutional and statutory sources that
arguably provide authority for the detention of enemy combatants, as well as those
that may prevent the exercise of that power with respect to U.S. citizens. The report
concludes that historically, even during declared wars, additional statutory authority
has been seen as necessary to validate the detention of citizens not members of any
armed forces, casting in some doubt the argument that the power to detain is
necessarily implied by an authorization to use force.

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Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Status and Detention of Persons in War . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
U.S. Precedent for Detention of Citizens as Enemy Combatants . . . . . . . . . 6
Ex Parte Quirin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
In Re Territo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Ex Parte Milligan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Moyer v. Peabody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
U.S. Practice - Detention of Enemies on U.S. Territory . . . . . . . . . . . . . . . 15
Internment of Enemy Aliens during World War I . . . . . . . . . . . . . . . . 15
Internment of Enemies during World War II . . . . . . . . . . . . . . . . . . . . 19
The Cold War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Current “Enemy Combatant” Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
The Case of Yaser Esam Hamdi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
The Case of Jose Padilla . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Constitutional Authority to Detain “Enemy Combatants” . . . . . . . . . . . . . . 34
The Authorization to Use Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Title 10, U.S.C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
18 U.S.C. 4001(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

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Detention of American Citizens as Enemy
Combatants
This report analyzes the authority to detain American citizens who are suspected
of being members, agents, or associates of Al Qaeda, the Taliban, or other terrorist
organizations as “enemy combatants.”1 The Department of Justice cites primarily
two World War II era cases to support its contention that the President may order that
certain American citizens as well as non-citizens be held as enemy combatants.
Critics, however, note that an American citizen is not triable by military commission
under the President’s Military Order of Nov. 13, 2001 (M.O.), and question whether
a U.S. citizen may constitutionally be detained indefinitely under military custody
without being charged. It has also been argued that the President’s actions are
foreclosed by 18 U.S.C. § 4001(a), which provides that no U.S. citizen may be
1The term “enemy combatant” is not well-defined. See Gary Solis, Even a “Bad” Man has
Rights, WASH. POST, June 25, 2002, at A19 (pointing out that it stems from the Supreme
Court case Ex parte Quirin, 317 U.S. 1 (1942)). With respect to the current conflict, the term
has been variously defined by government officials to be a person with some association
with terrorist organizations, but so far it appears to have been applied in a more limited way
to cover only those suspected of some involvement with the Taliban or Al Qaeda. The
Department of Defense defines “enemy combatant” as “an individual who, under the laws
and customs of war, may be detained for the duration of an armed conflict.” See Letter from
William J. Haynes II to Senator Carl Levin (November 26, 2002), available at
[http://www.nimj.com/documens/dodletter.pdf]. In the current conflict, according to the
letter, the term includes a member, agent, or associate of Al Qaeda or the Taliban. See id.
See also Anthony Dworkin, Law and the Campaign Against Terrorism: The View from the
Pentagon, Crimes of War Project, December 16, 2002 available at
[http://www.crimesofwar.org/onnews/news-pentagon.html] (interview with Charles Allen,
Deputy General Counsel for International Affairs at the Department of Defense)(DoD
official defining “enemy combatants” in the war on terrorism as “those who are a part of that
enterprise [Al Qaeda and other global terrorist organizations] and/or threaten the United
States,” including any “member, agent or associate of Al Qaeda or the Taliban”).
We have not found a precise military definition for the term “enemy combatant.” The
Manual for Courts-Martial (MCM) defines “enemy” to include:
organized forces of the enemy in time of war, any hostile body that our forces
may be opposing, such as a rebellious mob or a band of renegades, and ...
civilians as well as members of military organizations. “Enemy” is not restricted
to the enemy government or its armed forces. All the citizens of one belligerent
are enemies of the government and all the citizens of the other.
MCM IV-34. See also discussion of the meaning of combatant, infra note 15.

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CRS-2
detained except pursuant to an act of Congress.2 So far, federal courts have agreed
with the Bush Administration that Congress authorized such detentions in its
authorization for the President to use force against those he determines are
responsible for the September 11, 2001, attacks on the United States.3 Many
observers expect that the issue will eventually reach the Supreme Court, where much
of the debate may center on whether the President has an inherent authority during
war to detain persons, and if congressional authorization is needed to exercise such
a power, whether Congress has in fact authorized the detentions.
Background
The Attorney General announced on June 10, 2002 that an American citizen,
Jose Padilla, also known as Abdullah Muhajir, was arrested May 8, 2002 upon his
return from Pakistan, allegedly with the intent of participating in a plot to use a
radiological bomb against unknown targets within the United States. Mr. Padilla was
detained under a court order as a material witness until the Department of Justice
faced a court deadline to either bring charges or release him. After prosecutors
reportedly either lacked the physical evidence or were unwilling to disclose classified
evidence necessary to bring charges against Mr. Padilla, President Bush signed an
unspecified order declaring him to be an “enemy combatant,” and transferred him to
the custody of the Department of Defense.4 The Administration has taken the
position that the law of war allows the United States to detain indefinitely members,
agents or associates of Al Qaeda and other terrorist organizations, without charging
them with a crime under either criminal statutes or the international law of war,
notwithstanding their American citizenship.5 The Administration has also denied
Padilla access to his attorney,6 arguing that he has no constitutional right to an
attorney because he has not been charged with a crime. However, a federal judge
ruled that the petitioner has a right to challenge his detention, which gives him the
2See Preliminary Report of the ABA Task Force on Treatment of Enemy Combatants, Aug.
8, 2002, available at [http://www.abanet.org/leadership/enemy_combatants.pdf].
3See Hamdi v. Rumsfeld, No. 02-7338 (4th Cir. Jan. 8, 2003) available at
[http://laws.lp.findlaw.com/4th/027338p.html]; Padilla ex rel. Newman v. Bush, 233
F.Supp.2d 564 (S.D.N.Y. Dec. 4, 2002) available at [http://news.findlaw.com/]
hdocs/docs/terrorism/ padillabush120402opn.pdf.
4See Tom Brune and Craig Gordon, American Arrested in “Dirty bomb” Plot, NEWSDAY,
June 11, 2002, at A5.
5See Press Release, Department of Defense General Counsel William J. Haynes II, DoD
Responds to ABA Enemy Combatant Report, (Oct. 2, 2002), available at
[http://www.defenselink.mil/news/Oct2002/b10022002_bt497-02.html].
6A public defender was appointed to represent Mr. Padilla while he was detained as a
material witness, pursuant to the Material Witness Statute, 18 U.S.C. § 3144. The judge
determined that this relationship is sufficient to qualify her as “next friend” of Padilla, with
standing to pursue a petition for writ of habeas corpus on his behalf. Padilla, 02 Civ. 4445,
slip op. at 19 (S.D.N.Y. Dec. 4, 2002).

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right to consult with an attorney, although some limitations may be placed on the
visits.7
One other American citizen is known to be detained without charges as an
“enemy combatant.”8 Yaser Eser Hamdi, captured in Afghanistan, was detained at
the U.S. Naval Station in Guantánamo Bay, Cuba with other detainees captured in
Afghanistan and other countries, until it was discovered that he was born in Baton
Rouge and thus had a colorable claim to U.S. citizenship. He was then transferred
to a high-security naval brig in South Carolina, where he continues to be held in
military custody without criminal charge. An attorney has filed a petition for habeas
corpus on his behalf. The government asserts it has the unreviewable prerogative to
detain him without trial and without providing him access to an attorney, as a
necessary exercise of the President’s authority as Commander-in-Chief to provide for
national security and defense.9 The Fourth Circuit has largely agreed with the
government’s position, reversing two orders issued by the district court and ordering
the case dismissed.
These two cases are distinguishable because the government reportedly captured
Mr. Hamdi on the battlefield, possibly creating a presumption that he is a combatant.
7Padilla, slip op. at 75.
8 The first American citizen caught up in the war on terrorism, John Walker Lindh, who was
captured in Afghanistan, was charged in federal district court with conspiring to kill
Americans. He asserted the defense of combat immunity, which the government argued is
not possible given the fact that President Bush has declared that no member of the Taliban
can qualify as a lawful combatant See United States v. John Walker Lindh, Criminal No.
02-37-A (E.D. Va.), Government’s Opposition to Defendant’s Motion to Dismiss Count One
of the Indictment for Failure to State a Violation of the Charging Statute (Combat
Immunity)(#2). The defendant ultimately agreed to plead guilty to a charge of supplying
services to the Taliban, in violation of 50 U.S.C. § 1705(b), and carrying an explosive
during the commission of a felony in violation of 18 U.S.C. § 844(h)(2); the government
dropped the conspiracy charge. The United States further agreed
to forego any right it has to treat the defendant as an unlawful enemy combatant
based on the conduct alleged in the Indictment ... [unless the government later]
determine[s] that the defendant has engaged in conduct proscribed by the
offenses now listed at 18 U.S.C. § 2332b(g)(5)(B), or conduct now proscribed
under 50 U.S.C. § 1705, [in which case the plea] agreement ... shall be null and
void, and the United States may immediately invoke any right it has at that time
to capture and detain the defendant as an unlawful enemy combatant based on the
conduct alleged in the Indictment.
See United States v. John Walker Lindh, Criminal No. 02-37-A (E.D. Va.), Plea Agreement
at paragraph 21. Neither 18 U.S.C. § 2332b(g)(5)(B) (defining federal crime of terrorism)
nor 50 U.S.C. § 1705 (providing criminal penalty for violation of any license, order, or
regulation issued by the President pursuant to the International Emergency Economic
Powers Act (IEEPA)) makes mention of the possibility that offenders may be declared to
be “enemy combatants.”
9See Hamdi v. Rumsfeld, No. 02-6895 (4th Cir.) Government Brief on Appeal of the United
States District Court for the Eastern District of Virginia order to provide the federal public
defender with unmonitored access to the detainee.

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Unlike Mr. Padilla, he is not alleged to have committed specific acts which would
violate the law of war if committed by a soldier. Mr. Padilla, even if he were a
legitimate enemy combatant, would not likely be entitled to combat immunity for his
alleged involvement in an enemy plot to commit acts of terrorism on American soil.10
In both cases, the Government invokes its authority under the international law of
war, and the President’s authority as Commander-In-Chief, to justify the detention.11
If authorization from Congress is necessary, the Administration argues, such
authorization can be found in the Authorization to Use Force (“AUF”).12
Status and Detention of Persons in War
The law of war divides persons in the midst of an armed conflict into two broad
categories: combatants and civilians.13 This fundamental distinction determines the
international legal status of persons participating in or affected by combat, and
determines the legal protections afforded to such persons as well as the legal
consequences of their conduct.14 Combatants are those persons who are authorized
by international law to fight in accordance with the law of war on behalf of a party
to the conflict.15 Civilians are not authorized to fight, but are protected from
deliberate targeting by combatants as long as they do not take up arms. In order to
protect civilians, the law of war requires combatants to conduct military operations
in a manner designed to minimize civilian casualties and to limit the amount of
damage and suffering to that which can be justified by military necessity. To limit
exposure of civilians to military attacks, combatants are required, as a general rule,
to distinguish themselves from civilians. Combatants who fail to distinguish
themselves from civilians run the risk of being denied the privilege to be treated as
prisoners of war if captured by the enemy.
The treatment of all persons who fall into the hands of the enemy during an
international armed conflict depends upon the status of the person as determined
10See Ex parte Quirin, 317 U.S. 1 (1942).
11See DoD Press Release, supra note 5 (“Article II of the Constitution is the primary basis
for the President’s authority to detain enemy combatants”).
12Authorization for Use of Military Force (“AUF”), Pub. L. No. 107-40, 115 Stat. 224
(2001).
13See THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 65 (Dieter Fleck, ed.
1995)(hereinafter “HANDBOOK”).
14See id.
15See id. at 67. See also OPERATIONAL LAW HANDBOOK, chapter 2 (2002) available at
[http://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/CLAMO-Public.nsf].
(Lawful combatants have valid combatant status and receive law of war protection;
however, others who participate in combat, without valid combatant status, may be treated
as criminals under domestic law.) Id. Members of an organized armed force, group or unit
who are not medical or religious personnel are combatants. Id. Combatants are lawful
targets during combat operations. Prisoners of war are considered noncombatants and must
be protected by the Detaining Power. See id. The term “enemy combatant” appears most
frequently in the context of military rules of engagement, which stress that only enemy
combatants may lawfully be attacked during military operations.

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under the four Geneva Conventions of 1949. Under these conventions, parties to an
armed conflict have the right to capture and intern enemy soldiers16 as well as
civilians who pose a danger to the security of the state,17 at least for the duration of
hostilities.18 The right to detain enemy combatants is not based on the supposition
that the prisoner is “guilty” as an enemy for any crimes against the Detaining Power,
either as an individual or as an agent of the opposing state. POWs are detained for
security purposes, to remove those soldiers as a threat from the battlefield. The law
of war encourages capture and detention of enemy combatants as a more humane
alternative to accomplish the same purpose by wounding or killing them.
Enemy civilians may be interned for similar reasons, although the law of war
does not permit them to be treated as lawful military targets. As citizens of an enemy
country, they may be presumed to owe allegiance to the enemy. The law of war
traditionally allowed for their internment and the confiscation of their property, not
because they are suspected of having committed a crime or even of harboring ill will
toward the host or occupying power; but rather, they are held in order to prevent their
acting on behalf of the enemy and to deprive the enemy of resources it might use in
its war efforts. Congress has delegated to the President the authority, during a
declared war or by proclamation, to provide for the restriction, internment or removal
of enemy aliens deemed dangerous.19 The Supreme Court has upheld internment
programs promulgated under the Alien Enemy Act.20 This form of detention, like the
16See The Geneva Convention Relative to the Treatment of Prisoners of War, August 12,
1949, 6 U.S.T. 3317 (hereinafter “GPW”). GPW art. 21 states:
The Detaining Power may subject prisoners of war to internment. It may impose on them the
obligation of not leaving, beyond certain limits, the camp where they are interned, or if the
said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the
present Convention relative to penal and disciplinary sanctions, prisoners of war may not be
held in close confinement except where necessary to safeguard their health and then only
during the continuation of the circumstances which make such confinement necessary.
17 See Geneva Convention Relative to the Protection of Civilian Persons in Time of War,
Aug. 12, 1949, 6 U.S.T. 3516 [hereinafter “GC”]. GC art. 42 states:
The internment or placing in assigned residence of protected persons may be ordered only
if the security of the Detaining Power makes it absolutely necessary.
18See GPW, supra note 16, art. 21.
1950 U.S.C. § 21 (defining “enemy” as “all natives, citizens, denizens, or subjects of the
hostile nation or government, being of the age of fourteen years and upward, who shall be
within the United States and not actually naturalized”).
20See Ludecke v. Watkins, 335 U.S. 160 (1948) (upholding President’s authority to order the
removal of all alien enemies “who shall be deemed by the Attorney General to be dangerous
to the public peace and safety of the United States”). The Supreme Court declined to review
the determination by the Alien Enemy Hearing Board that the petitioner was dangerous, and
noted that no question as to the validity of the administrative hearings had been raised. Id.
at 163, n.4. However, the Court also noted that an enemy alien restrained pursuant to the
Act did have access to the courts to challenge whether the statutory criteria were met, in
other words, whether a “declared war” existed and whether the person restrained is in fact
an enemy alien fourteen years or older. Id. at 170-72, n.17.

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detention of POWs, is administrative rather than punitive, and thus no criminal trial
is required.21
The Detaining Power may punish enemy soldiers and civilians for crimes
committed prior to their capture as well as during captivity, but only after a fair trial
in accordance with the relevant convention and other applicable international law.
However, it is unclear whether a person who is neither a POW nor an enemy alien
may be detained without criminal charges,22 and if such detention is lawful, what
process is due the detainee under the Constitution or international law. The
conditions of detention may also give rise to the question of whether they amount to
punishment, in this case, notwithstanding DoD’s recognition that the purpose for
detaining “enemy combatants” is not punitive in nature.23
U.S. Precedent for Detention of Citizens as Enemy
Combatants
The Department of Justice cites primarily two cases to support its contention
that the Constitution permits the detention without criminal charge of American
citizens under certain circumstances. The government argues that the 1942 Supreme
Court decision in Ex parte Quirin (the German saboteurs case) and the 9th Circuit
case In re Territo, read together, permit the government to hold American citizens
as “enemy combatants,” regardless of their membership in any legitimate military
organization. Others, however, distinguish those cases as dealing with occurrences
during a war declared by Congress and involving members of the armed forces of
hostile enemy states, and further argue that the Civil War case Ex parte Milligan
forecloses this theory.
Ex Parte Quirin.
After eight Nazi saboteurs were caught by the Federal Bureau of Investigation
(FBI), the President issued a proclamation declaring that “the safety of the United
21 Internees may challenge their detention in court. See id.
22See generally Treatment of “Battlefield Detainees” in the War on Terrorism, CRS Report
RL31367. The question appears to turn on whether the label “unlawful combatant” may
be applied across the board to all members of a belligerent group, or whether it applies only
on an individual basis to those who participate unlawfully in combat. It would seem that
denying belligerent status to all members of a group amounts to denying the group as a
whole belligerent status, in which case it would not be possible to engage in armed conflict
with it. As one observer comments:
According to their terms, the Geneva Conventions apply symmetrically – that is to say,
they are either applicable to both sides in a conflict, or to neither. Therefore the White
House statement that the Geneva Conventions do not extend to Al Qaeda is effectively a
declaration that the entire military campaign against terrorism is not covered by the
Geneva Conventions.
See Dworkin, supra note 1.
23See DoD Press Release, supra note 5 (“The purposes of detaining enemy combatants
during wartime are, among other things, to gather intelligence and to ensure that detainees
do not return to assist the enemy.... Then, as now, the purpose of detention was not to
punish, but to protect.”)

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States demands that all enemies who have entered upon the territory of the United
States as part of an invasion or predatory incursion, or who have entered in order to
commit sabotage, espionage or other hostile or warlike acts, should be promptly tried
in accordance with the law of war.”24 The eight German saboteurs (one of whom
claimed U.S. citizenship) were tried by military commission for entering the United
States by submarine, shedding their military uniforms, and conspiring to use
explosives on certain war industries and war utilities. In the case of Ex parte Quirin,
the Supreme Court denied their writs of habeas corpus (although upholding their
right to petition for the writ, despite language in the Presidential proclamation
purporting to bar judicial review), holding that trial by such a commission did not
offend the Constitution and was authorized by statute.25 It also found the citizenship
of the saboteurs irrelevant to the determination of whether the saboteurs were “enemy
belligerents” within the meaning of the Hague Convention and the law of war.26
To reach its decision, the Court applied the international common law of war,
as Congress had incorporated it by reference through Article 15 of the Articles of
War,27 and the President’s proclamation that
[A]ll persons who are subjects, citizens or residents of any nation at war with the
United States or who give obedience to or act under the direction of any such
nation,and who during time of war enter or attempt to enter the United States ...
through coastal or boundary defenses, and are charged with committing or
attempting or preparing to commit sabotage, espionage, hostile or warlike acts,
or violations of the law of war, shall be subject to the law of war and to the
jurisdiction of military tribunals.28
Whether the accused could have been detained as “enemy combatants” without
any intent to try them before a military tribunal was not a question before the Court,29
but the Court suggested the possibility. It stated:
24 Proclamation No. 2561, of July 2, 1942, 7 Fed. Reg. 5101, 56 Stat. 1964.
25See Ex parte Quirin, 317 U.S. 1, 26-28 (1942) (finding authority for military commissions
in the Articles of War, codified at 10 U.S.C. §§ 1471-1593 (1940).
26See id. at 37-38 (“Citizens who associate themselves with the military arm of the enemy
government, and with its aid, guidance and direction enter this country bent on hostile acts
are enemy belligerents within the meaning of the Hague Convention and the law of war.”);
see also Colepaugh v. Looney, 235 F.2d 429, 432 (10th Cir. 1956) (“[T]he petitioner’s
citizenship in the United States does not ... confer upon him any constitutional rights not
accorded any other belligerent under the laws of war.”), cert. denied 352 U.S. 1014 (1957).
27 Similar language is now part of the UCMJ. See 10 U.S.C. 821 (providing jurisdiction for
courts-martial does not deprive military commissions of concurrent jurisdiction in relevant
cases).
28317 U.S. at 22-23 (citing Proclamation No. 2561, 7 Fed. Reg. 5101(1942)).
29At oral argument before the Supreme Court, Attorney General Biddle suggested that had
the prisoners been captured by the military rather than arrested by the FBI, the military
could have detained them “in any way they wanted,” without any arraignment or any sort
of legal proceeding. See 39 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT
OF THE UNITED STATES 597 (Philip B. Kurland and Gerhard Casper, eds. 1975).

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By universal agreement and practice, the law of war draws a distinction between
the armed forces and the peaceful populations of belligerent nations and also
between those who are lawful and unlawful combatants. Lawful combatants are
subject to capture and detention as prisoners of war by opposing military forces.
Unlawful combatants are likewise subject to capture and detention, but in
addition they are subject to trial and punishment by military tribunals for acts
which render their belligerency unlawful.30
In its discussion of the status of “unlawful combatant,” the Court did not
distinguish between enemy soldiers who forfeit the right to be treated as prisoners of
war by failing to distinguish themselves as belligerents, as the petitioners had done,
and civilians who commit hostile acts during war without having the right to
participate in combat. Both types of individuals may be called “unlawful
combatants,” yet the circumstances that give rise to their status differ in ways that
may be legally significant.31 However, the Court did recognize that the petitioners fit
into the first category,32 and expressly limited its opinion to the facts of the case:
We have no occasion now to define with meticulous care the ultimate boundaries
of the jurisdiction of military tribunals to try persons according to the law of war.
It is enough that petitioners here, upon the conceded facts, were plainly within
those boundaries, and were held in good faith for trial by military commission,
charged with being enemies who, with the purpose of destroying war materials
and utilities, entered or after entry remained in our territory without uniform –
an offense against the law of war. We hold only that those particular acts
constitute an offense against the law of war which the Constitution authorizes to
be tried by military commission.33
After the Quirin decision, the Attorney General asked Congress to pass
legislation to strengthen criminal law relating to internal security during wartime.34
30Id. at 30-31 (emphasis added; footnote omitted).
31Combatants are bound by all of the laws of war regulating conduct during combat, while
civilians are not really combatants at all, and are thus prohibited from participating in
combat, regardless of whether they follow generally applicable combat rules. See generally
CRS Report RL31367.
32See supra note 26.
33Id. at 45-46.
34 H.R. REP. NO. 78-219 (1943) (describing Justice Department proposal introduced in
previous Congress as H.R. 7737, then under consideration as amended in H.R. 2087). The
War Security Act would have provided punishment for a list of “hostile acts against the
United States” if committed with the intent to aid a country with which the United States
was at war, to include sabotage, espionage, harboring or concealing an agent or member of
the armed forces of an enemy state, or entering or leaving the United States with the intent
of providing aid to the enemy. It also would have made it a criminal offense to fail to report
information giving rise to probable cause to believe that another has committed, is
committing or plans to commit a hostile act against the United States. Id. at 11. Title II of
the Act would have modified court procedure in cases involving these “hostile acts”as well
as certain other statutes, that would have allowed the Attorney General to certify the
importance of a case to the war effort, resulting in expedited proceedings, enhanced secrecy
(continued...)

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CRS-9
Attorney General Biddle wrote that new law was necessary to cover serious gaps and
inadequacies in criminal law, which he argued did not provide sufficient punishment
for hostile enemy acts perpetrated on the territory of the United States.35 The House
Committee on the Judiciary endorsed the proposed War Security Act, pointing to the
fact that it had been necessary to try the eight Nazi saboteurs by military commission
due to the inadequacy of the penal code to punish the accused for acts that had not
yet been carried out.36 It also suggested that military jurisdiction might be
unavailable to try enemy saboteurs who had not “landed as part of a small invasion
bent upon acts of illegal hostilities.”37 The bill passed in the House of
Representatives, but was not subsequently taken up in the Senate.
In Re Territo.
In the case In re Territo,38 an American citizen who had been inducted into the
Italian army was captured during battle in Italy and transferred to a detention center
for prisoners of war in the United States. He petitioned for a writ of habeas corpus,
arguing that his U.S. citizenship foreclosed his being held as a POW. The court
disagreed, finding that citizenship does not necessarily “affect[] the status of one
captured on the field of battle.”39 The court stated:
Those who have written texts upon the subject of prisoners of war agree that all
persons who are active in opposing an army in war may be captured and except
for spies and other non-uniformed plotters and actors for the enemy are prisoners
of war. 40
34(...continued)
for such proceedings, and a requirement for the approval of a federal judge to release the
accused on bail. The Act was not intended to affect the jurisdiction of military tribunals and
did not cover uniformed members of the enemy acting in accordance with the law of war.
Id. at 12.
35See id. at 1-2 (letter from Attorney General to the House of Representatives dated October
17, 1942).
36See id. at 5 (stating that the maximum criminal punishment for a conspiracy to commit
sabotage would have been only two years).
37See id; 1942 ATT’Y GEN. ANN. REP. 13. This view was echoed during floor debate of the
proposed act in the House of Representatives. Supporters and detractors of the bill alike
seemed to agree that the military tribunal upheld in Ex parte Quirin was an extraordinary
measure that was constitutionally permissible only because the saboteurs had come “wearing
German uniforms” and thus were “subject to be prosecuted under military law.” See 89
Cong. Rec. 2780 - 82 (1943) (remarks by Reps. Michener, Rankin, and Kefauver). There
does not appear to be any suggestion that Quirin could be interpreted to authorize the
detention without trial of individuals suspected of hostile intent by designating them to be
unlawful enemy combatants.
38156 F.2d 142 (9th Cir. 1946).
39Id. at 145.
40Id. (emphasis added; citations omitted).

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The petitioner argued that the Geneva Convention did not apply in cases such
as his. The court found no authority in support of that contention, noting that “[i]n
war, all residents of the enemy country are enemies.”41 The court also cited
approvingly the following passage:
A neutral, or a citizen of the United States, domiciled in the enemy country, not
only in respect to his property but also as to his capacity to sue, is deemed as
much an alien enemy as a person actually born under the allegiance and residing
within the dominions of the hostile nation.42
While recognizing that Quirin was not directly in point, it found the discussion of
U.S. citizenship to be “indicative of the proper conclusion”:
Citizens who associate themselves with the military arm of the enemy
government, and with its aid, guidance and direction enter this country bent on
hostile acts are enemy belligerents within the meaning of the Hague Convention
and the law of war.43
The court had no occasion to consider whether a citizen who becomes associated
with an armed group not affiliated with an enemy government and not otherwise
covered under the terms of the Hague Convention could be detained without charge
pursuant to the law of war,44 particularly those not captured by the military during
battle.
Confining the Territo and Quirin opinions to their facts, they may not provide a
solid foundation for the President’s designation and detention of Mr. Padilla and Mr.
Hamdi as enemy combatants. It may be argued that the language referring to the
capture and detention of unlawful combatants – seemingly without indictment on
criminal charges – is dicta; the petitioners in those cases did not challenge the
contention that they served in the armed forces of an enemy state with which the
United States was engaged in a declared war. We are unaware of any U.S. precedent
confirming the constitutional power of the President to detain indefinitely a person
accused of being an unlawful combatant due to mere membership in or association
with a group that does not qualify as a legitimate belligerent, with or without the
41Id. (citing Lamar’s Executor v. Browne, 92 U.S. 187, 194 (1875)).
42Id. (citing WHITING, WAR POWERS UNDER THE CONST., 340-42 (1862)).
43Id. (citing Quirin at 37-38).
44Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18,
1907, 36 Stat. 2277, 205 Consol. T.S. 277. Article 1 states:
The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer
corps, fulfilling the following conditions:
To be commanded by a person responsible for his subordinates;
To have a fixed distinctive emblem recognizable at a distance;
To carry arms openly; and
To conduct their operations in accordance with the laws and customs of war.
In countries where militia or volunteer corps constitute the army, or form part of it, they are
included under the denomination “army.”

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CRS-11
authorization of Congress.45 The Supreme Court rejected a similar contention in the
Civil War case of Ex parte Milligan, discussed infra, where Congress had limited the
authority to detain persons in military custody.
At most, arguably, the two cases above may be read to demonstrate that, at least
in the context of a declared war against a recognized state, U.S. citizenship is not
constitutionally relevant to the treatment of members of enemy forces under the law
of war. Neither case addresses the constitutionality of the process used to determine
who is a member of an enemy force and whether a detainee qualifies for POW
privileges. Inasmuch as the President has determined that Al Qaeda is not a state but
a criminal organization to which the Geneva Convention does not apply,46 and
inasmuch as the Hague Convention would seem to apply to neither Al Qaeda nor the
Taliban for the same reasons that have been given to preclude their treatment as
prisoners of war,47 it may be argued that Al Qaeda is not directly subject to the law of
war and therefore its members may not be detained as “enemy combatants” pursuant
to it solely on the basis of their association with Al Qaeda.48 Taliban fighters captured
in Afghanistan are a closer fit within the traditional understanding of who may be
treated as an enemy combatant, but may be able to contest the determination that they
are not entitled to POW status.49
45In that regard, cf. Ex parte Toscano, 208 F. 938 (S.D. Cal. 1913) (applying Hague
Convention to authorize holding of Mexican federalist troops, who had crossed the border
into the United States and surrendered to U.S. forces, as prisoners of war although the
United States was neutral in the conflict and the belligerent parties were not recognized as
nations).
46 See Press Release, White House, Status of Detainees at Guantanamo (Feb. 7, 2002)
(available at [http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html]).
47 See id; supra note 10.
48See Jordan J. Paust, Antiterrorism Military Commissions: Courting Illegality, 23 MICH.
J. INT’L L. 1, 8 n.16 (2001)(arguing that “[u]nder international law, war conduct and war
crimes can occur at the hands of non-state actors, but they must be participants in a war or
insurgency, or have achieved a status of belligerents or insurgents involved in an armed
conflict”). An alternate interpretation might start from the premise that what is not
prohibited by the Geneva Conventions is permitted under international law. This appears
to be the point of departure for Judge Mukasey’s analysis in the Padilla opinion. See Padilla
ex rel. Newman v. Bush, No. 02CIV445, slip op. at 59 (S.D.N.Y. Dec. 4, 2002) available
at 2002 WL 31718308 (“It is not that the Third Geneva Convention authorizes particular
treatment for or confinement of unlawful combatants; it is simply that that convention does
not protect them”.) However, it may be argued that GC, supra note 17, which had no
corollary in previous Geneva Conventions on prisoners, would protect persons who are not
protected by GPW. See Karman Nabulsi, Evolving Conceptions of Civilians and
Belligerents 9, 18-20, in CIVILIANS IN WAR (Simon Chesterman, ed. 2001).
49In Hamdi III, the court found the Geneva Conventions to be non-self-executing and
declined to address whether the petitioner is entitled to POW status. See Hamdi v. Rumsfeld,
No. 02-7338, Slip op. at 32 (4th Cir. Jan. 8, 2003) available at 2003 WL 60109. But see
United States v. Noriega, 808 F.Supp. 791 (S.D.Fla. 1992) (finding Geneva Conventions
self-executing, entitling the petitioner to POW status).

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CRS-12
Ex Parte Milligan.
In Ex parte Milligan,50 the Supreme Court addressed the question whether a
civilian citizen of Indiana who was allegedly a member of the Sons of Liberty, an
organized group of conspirators with alleged links to the Confederate States that
planned to commit acts of sabotage against the North, could constitutionally be tried
by military commission. The Court recognized military commission jurisdiction over
violations of the “laws and usages of war,” but stated those laws and usages “... can
never be applied to citizens in states which have upheld the authority of the
government, and where the courts are open and their process unobstructed.”51 The
Supreme Court explained its reasoning:
It will be borne in mind that this is not a question of the power to proclaim martial
law, when war exists in a community and the courts and civil authorities are
overthrown. Nor is it a question what rule a military commander, at the head of
his army, can impose on states in rebellion to cripple their resources and quell the
insurrection .... Martial law cannot arise from a threatened invasion. The necessity
must be actual and present; the invasion real, such as effectively closes the courts
and deposes the civil administration.52
The government had argued in the alternative that Milligan could be held as a
prisoner of war “as if he had been taken in action with arms in his hands,”53 and thus
excluded from the privileges of a statute requiring courts to free persons detained
without charge. The government argued:
Finally, if the military tribunal has no jurisdiction, the petitioner may be held as
a prisoner of war, aiding with arms the enemies of the United States, and held,
under the authority of the United States, until the war terminates, then to be
handed over by the military to the civil authorities, to be tried for his crimes under
the acts of Congress, and before the courts which he has selected.54
Milligan, however, argued “that it had been ‘wholly out of his power to have acquired
belligerent rights, or to have placed himself in such relation to the government as to
have enabled him to violate the laws of war,’”55 as he was charged. The Court appears
to have agreed with Milligan, replying:
It is not easy to see how he can be treated as a prisoner of war, when he lived in
Indiana for the past twenty years, was arrested there, and had not been, during the
late troubles, a resident of any of the states in rebellion. If in Indiana he conspired
with bad men to assist the enemy, he is punishable for it in the courts of Indiana;
but, when tried for the offence, he cannot plead the rights of war; for he was not
engaged in legal acts of hostility against the government, and only such persons,
50 71 U.S. (4 Wall.) 2 (1866).
51Id. at 121.
52Id. at 127.
53Id. at 21 (argument for the government).
54Id. The statute expressly excepted prisoners of war.
55Id. at 8.

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CRS-13
when captured, are prisoners of war. If he cannot enjoy the immunities attaching
to the character of a prisoner of war, how can he be subject to their pains and
penalties?56
In Quirin, the Supreme Court distinguished its holding from Milligan, finding
that the petitioners were enemy belligerents and that the charge made out a valid
allegation of an offense against the law of war for which the President was authorized
to order trial by a military commission.57 The Court noted that Milligan had not been
a part of or associated with the armed forces of the enemy, and therefore was a non-
belligerent, not subject to the law of war.58 The Sons of Liberty, it seems, did not
qualify as a belligerent for the purposes of the law of war, even though it was alleged
to be plotting hostile acts on behalf of the Confederacy.
Moyer v. Peabody.
The government cites Moyer v. Peabody59 to support its contention that the
President has the authority during war, subject only to extremely deferential review
by the courts, to detain an individual the government believes to be dangerous or
likely to assist the enemy.60 The government further asserts that the case supports the
historical “unavailability” of due process rights, such as the right to counsel, in the
case of enemy combatants.61 In Moyer, the Supreme Court declined to grant relief to
the plaintiff in a civil suit against the governor of Colorado based on the former’s
detention without charge during a miners’ strike (deemed by the governor to be an
insurrection), stating:
So long as such arrests are made in good faith and in the honest belief that they
are needed in order to head the insurrection off, the governor is the final judge and
cannot be subjected to an action after he is out of office, on the ground that he had
not reasonable ground for his belief.62
The Court based its views in part on the laws and constitution of the state of Colorado,
which empowered the governor to repel or suppress insurrections by calling out the
militia, which the Court noted, envisioned the
ordinary use of soldiers to that end; that he may kill persons who resist, and, of
course, that he may use the milder measure of seizing the bodies of those whom
56Id.at 131.
57Ex Parte Quirin, 317 U.S. 1, 45 (1942).
58Id.
59212 U.S. 78 (1909).
60See Respondents’ Reply in Support of Motion to Dismiss the Amended Petition for a Writ
of Habeas Corpus, Padilla ex rel. Newman v. Bush, 02 Civ. 4445, at 18.
61Id. at 23-24.
62212 U.S. at 85. The Court noted that “[t]he facts that we are to assume are that a state of
insurrection existed and that the governor, without sufficient reason, but in good faith, in the
course of putting the insurrection down, held the plaintiff until he thought that he safely
could release him.”

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he considers to stand in the way of restoring peace. Such arrests are not
necessarily for punishment, but are by way of precaution, to prevent the exercise
of hostile power.63
The Court further clarified:
If we suppose a governor with a very long term of office, it may be that a case
could be imagined in which the length of the imprisonment would raise a different
question. But there is nothing in the duration of the plaintiff’s detention or in the
allegations of the complaint that would warrant submitting the judgment of the
governor to revision by a jury. It is not alleged that his judgment was not honest,
if that be material, or that the plaintiff was detained after fears of the insurrection
were at an end.
Based on the context of the case, the holding may be limited to actual battles and
situations of martial law where troops are authorized to use deadly force as
necessary.64 While the Court notes that “[p]ublic danger warrants the substitution of
executive process for judicial process,”65 it also noted that
[t]his was admitted with regard to killing men in the actual clash of arms; and we
think it obvious, although it was disputed, that the same is true of temporary
detention to prevent apprehended harm. As no one would deny that there was
immunity for ordering a company to fire upon a mob in insurrection, and that a
state law authorizing the governor to deprive citizens of life under such
circumstances was consistent with the 14th Amendment, we are of opinion that
the same is true of a law authorizing by implication what was done in this case.66
It may also be argued that, as a claim for civil damages rather than a direct
challenge in the form of a petition for habeas corpus, the Moyer case does not stand
for a general executive authority to detain individuals deemed to be dangerous,
without the ordinary constitutional restrictions. As an interpretation of Colorado’s
constitution rather than that of the United States, the decision may not apply to
Presidential action. Other courts have reached the opposite conclusion–that those
wrongfully detained by order of the President may recover damages from their
captors.67
63Id. at 84-85.
64See Sterling v. Constantin, 287 U.S. 378, 400-01 (1932)(limiting Moyer to its facts and
stating that is well established that executive discretion to respond to emergencies does not
mean that “every sort of action the Governor may take, no matter how unjustified by the
exigency or subversive of private right and the jurisdiction of the courts, otherwise
available, is conclusively supported by mere executive fiat.”).
65Id at 85 (citing Keely v. Sanders, 99 U.S. 441, 446 (1878)).
66Id. at 85-86.
67See, e.g., Ex parte Orozco, 201 F. 106 (W.D. Texas 1912) (alien held by military without
charge on suspicion of organizing military expedition in violation of neutrality laws awarded
damages); ex parte De la Fuente, 201 F. 119 (W.D. Texas 1912) (same); see also Hohri v.
United States, 586 F.Supp. 769 (D.D.C. 1984), aff’d per curiam 847 F.2d 779 (Fed.
Cir.1988), cert denied 488 U.S. 925 (1988) (Japanese-American internees and their
(continued...)

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CRS-15
U.S. Practice - Detention of Enemies on U.S. Territory
The following sections give a brief treatment of the twentieth-century history of
the internment of individuals who are deemed “enemies” or determined to be too
dangerous to remain at liberty during a national emergency. A survey of the history
reveals that persons who are considered likely to act as an enemy agent on U.S.
territory traditionally have been treated as alien enemies rather than prisoners of war
or “enemy combatants” by the military, even when the individuals were members of
the armed forces of enemy nations, although in the latter case they might also be tried
by military tribunal or court-martial. Persons acting within the territory of the United
States on behalf of an enemy state who were not members of the armed forces of that
state, including American citizens accused of spying or sabotage, have been tried in
federal court. Individuals captured on the battlefield abroad have been handled in
accordance with government regulations interpreting the law of war.68
Internment of Enemy Aliens during World War I.
The Alien Enemy Act was originally enacted in 1798 as part of the Alien and
Sedition Act,69 but saw greater use during World War I than in previous wars.70 The
statute grants the President broad authority, during a declared war or presidentially
proclaimed “predatory invasion,” to institute restrictions affecting alien enemies,
including possible detention and deportation. On April 6, 1917, the date Congress
declared war against Germany, President Wilson issued a Proclamation under the
Alien Enemy Act warning alien enemies against violations of the law or hostilities
against the United States.71 Offenders would be subject not only to the applicable
penalties prescribed by the domestic laws they violated, but would also be subject to
restraint, required to give security, or subject to removal from the United States under
regulations promulgated by the President.72
67(...continued)
descendants suffered damages for unconstitutional taking based on World War II internment
where government was aware that military necessity to justify the internment was
unfounded, although suit was barred by statute of limitations).
68 See DoD Dir. 2310.1, DoD Program for Enemy Prisoners of War (EPOW) and Other
Detainees (1994); see generally CRS Report RL31367 (summarizing history of U.S.
treatment of battlefield captives).
69Act of July 6, 1798, §1,1 Stat. 577.
70See Supplemental Brief for the United States in Support of the Plenary Power of Congress
over Alien Enemies, and the Constitutionality of the Alien Enemy Act 20 (1918), Ex parte
Gilroy, 257 F. 110 (S.D.N.Y. 1919), (hereinafter “Alien Enemy Brief”) (observing that the
cases arising under the Alien Enemy Act “contain no expression of doubt by the courts as
to its constitutionality”). In Gilroy, the government argued that the Executive’s
determination that an individual is an enemy alien is final, even though it can be shown that
the individual is a citizen. 257 F. at 112. The court rejected that contention, finding the
petitioner was an American citizen and not subject to the Alien Enemy Act. Id.
7140 Stat. 1650 (1917).
7240 Stat. 1651 (1917).

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The government urged the courts to uphold the constitutionality of the Act as a
proper exercise of Congress’ power over the persons and property of alien enemies
found on U.S. territory during war, a power it argued derives from the power of
Congress to declare war and make rules concerning captures on land and water,73 and
which was also consistent with the powers residing in sovereign nations under
international law. The law was vital to national security because “[a]n army of spies,
incendiaries, and propagandists may be more dangerous than an army of soldiers.”74
The President reported to Congress a list of 21 instances of “improper activities of
German officials, agents, and sympathizers in the United States” prior to the
declaration of war.75 The government further argued that the statute did not require
a hearing prior to internment, because the power and duty of the President was to act
to prevent harm in the context of war, which required the ability to act based on
suspicion rather than only on proven facts.76
While the Act would permit regulations affecting all persons within the statutory
definition of alien enemy,77 it was the practice of the United States to apply
restrictions only to alien enemies who were found to constitute an active danger to the
state.78 Aliens affected by orders promulgated under the Act did not have recourse to
the courts to object to the orders on the grounds that the determination was not made
73See Alien Enemy Brief, supra note 70, at 39. The government further argued that the issue
of what was to be done with enemy persons as well as property was dictated by policy, to
be determined by Congress rather than the courts, and did not flow as a necessary power as
the result of a declaration of war. See id. at 50 (citing Brown v. United States, (8 Cranch)
110, 126).
74Id. at 40.
75See id. at 41. The list was excerpted from H.R. Rep. No. 65-1 (1917) and listed 21
incidents “chosen at random” to demonstrate the dangerousness of German agents and the
need to intern them. The list included both civilians and military members. One incident
described a group of German reservists who organized an expedition to go into Canada and
carry out hostile acts. See id. at 71(reporting indictments had been returned against the
conspirators). The report of the Attorney General for the year ending 1917 contained
another list of federal court cases involving German agents, some of whom were military
officers. See id at Appendix C. Some of the cases cited involved hostile acts, such as using
explosives against ships and other targets, conducting military expeditions, and recruiting
spies and insurrectionists. See id.
76See id. at 43.
77See 50 U.S.C. § 21 (including all natives, citizens, denizens, or subjects of the hostile
nation or government over the age of 18 within the United States, excepting those who had
been naturalized). The Act was broadened in 1918 to include women. Act of April 16,
1918, Pub. L. 65-131, 40 Stat. 531 (1918).
78See National Defense Migration, Fourth Interim Report of the House Select Committee
Investigating Migration, Findings and Recommendations on Problems of Evacuation of
Enemy Aliens and Others from Prohibited Military Zones, H.R. REP. NO. 77-2124, at153
n.4 (1942) (hereinafter “Defense Migration Report”)(contrasting U.S. practice against
history of indiscriminate internment of enemy aliens applied during World War I in the
United Kingdom, France and Germany). International law now provides protection for
enemy aliens, including those definitely suspected of hostile activity against the state. See
GC, supra note 17, art. 5.

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CRS-17
in accordance with due process of law, but could bring habeas corpus petitions to
challenge their status as enemy aliens.79
In at least two instances, enemy spies or saboteurs entered the territory of the
United States and were subsequently arrested. Pablo Waberski admitted to U.S. secret
agents to being a spy sent by the Germans to “blow things up in the United States.”
Waberski, who was posing as a Russian national, was arrested upon crossing the
border from Mexico into the United States and charged with “lurking as a spy” under
article 82 of the Articles of War.80 Attorney General T. W. Gregory opined in a letter
to the President that the jurisdiction of the military to try Waberski by military tribunal
was improper, noting that the prisoner had not entered any camp or fortification, did
not appear to have been in Europe during the war, and thus could not have come
through the fighting lines or field of military operations.81 An ensuing disagreement
between the Departments of War and Justice over the respective jurisdictions of the
FBI and military counterintelligence to conduct domestic surveillance was resolved
by compromise.82
Waberski, an officer of the German armed forces whose real name turned out to
be Lothar Witzke, was sentenced to death by a military commission. Subsequently,
the new Attorney General, A. Mitchell Palmer, reversed the earlier AG opinion based
on a new understanding of the facts of the case, including proof that the prisoner was
a German citizen and that there were military encampments close to the area where
he was arrested.83 President Wilson commuted Witzke’s sentence to life
imprisonment at hard labor in Fort Leavenworth and later pardoned him, possibly due
to lingering doubts about the propriety of the military tribunal’s jurisdiction to try the
accused spy,84 even though Congress had defined the crime of spying and provided by
statute that it was an offense triable by military commission.85
The question of military jurisdiction over accused enemy spies arose again in the
case of United States ex rel. Wessels v. McDonald,86 a habeas corpus proceeding
brought by Herman Wessels to challenge his detention by military authorities while
he was awaiting court-martial for spying. The accused was an officer in the German
Imperial Navy who used a forged Swiss passport to enter the United States and
79See Minotto v. Bradley, 252 F. 600 (N.D. Ill. 1918); Ex parte Fronklin, 253 F. 984 (N.D.
Miss. 1918).
80Now article 106, UCMJ, codified at 10 U.S.C. § 906.
81See 31 Op. Att’y Gen. 356 (1918) (citing article 29 of the Hague Convention of 1917,
Respecting the Laws and Customs of War on Land).
82See National Counterintelligence Center, Counterintelligence Reader: American
Revolution to World War II, available at [http://www.fas.org/irp/ops/ci/docs/ci1/ch3e.htm].
83See 40 Op. Att’y Gen. 561 (1919). The opinion was not published until July 29, 1942,
during the trial of the eight Nazi saboteurs.
84See National Counterintelligence Center, supra note 82.
85Article of War 82 provided that those caught lurking as spies near military facilities “or
elsewhere” could be tried by military tribunal.
86265 F. 754 (E.D.N.Y.1920).

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CRS-18
operated as an enemy agent in New York City. He was initially detained as an alien
enemy pursuant to a warrant issued in accordance with statute. He contested his
detention on the basis that the port of New York was not in the theater of battle and
courts in New York were open and functioning, arguing Milligan required that he be
tried by an Article III court.87 The court found that its inquiry was confined to
determining whether jurisdiction by court martial was valid, which it answered
affirmatively after examining relevant statutes and finding that, under international
law, the act of spying was not technically a crime.88 The court concluded that the
constitutional safeguards available to criminal defendants did not apply, noting that
whoever “joins the forces of an enemy alien surrenders th[e] right to constitutional
protections.” The Supreme Court did not have the opportunity to address the merits
of the case, having dismissed the appeal per stipulation of the parties.89 However, two
American citizens who were alleged to have conspired to commit espionage with
Wessels were tried and acquitted of treason in federal court,90 and subsequently
released.
In 1918, a bill was introduced in the Senate to provide for trial by court-martial
of persons not in the military who were accused of espionage, sabotage, or other
conduct that could hurt the war effort.91 In a letter to Rep. John E. Raker explaining
his opposition to the idea, Attorney General T.W. Gregory provided statistics about
war-related arrests and prosecutions.92 According to the letter, of 508 espionage cases
that had reached a disposition, 335 had resulted in convictions, 31 persons were
acquitted, and 125 cases were dismissed.93 Sedition and disloyalty charges had
yielded 110 convictions and 90 dismissals or acquittals.94 Acknowledging that the
statistics were incomplete, the Attorney General concluded that the statistics did not
show a cause for concern.95 He also reiterated his position that trial of civilians for
offenses committed outside of military territory by court-martial would be
unconstitutional, and attributed the complaints about the inadequacies of the laws or
their enforcement to:

87Id. at 758.
88Id. at 762 (noting that a spy may not be tried under international law when he returns to
his own lines, and that spying is a military offense only).
89Wessels v. McDonald, 256 U.S. 705 (1921).
90See United States v. Fricke, 259 F. 673 (S.D.N.Y. 1919); United States v. Robinson, 259
F. 685 (S. D. N. Y. 1919).
91S. 4364, 65th Cong. (1918). The bill would have found that:
owing to changes in the conditions of modern warfare, whereby the enemy now attempts
to attack and injure the prosecution of the war by the United States, by means of civilian
and other agents and supporters behind the lines spreading false statements and
propaganda, injuring and destroying the things and utilities prepared or adapted for the
use of the land and naval forces of the United States, ... the United States [now
constitutes] a part of the zone of operations ....
92See 57 CONG. REC. APP. pt. 5, at 528-29 (1918).
93See id.
94See id.
95See id. at 528.

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the fact that people, under the emotional stress of the war, easily magnify rumor
into fact, or treat an accusation of disloyalty as though it were equal to proof of
disloyalty. No reason, however, has as yet developed which would justify
punishing men for crime without trying them in accordance with the time-honored
American method of arriving at the truth.96
The record does not disclose any mention of the option of deeming suspects to be
unlawful combatants based on their alleged association with the enemy, detaining
them without any kind of trial.
Internment of Enemies during World War II.
During the Second World War, President Roosevelt made numerous
proclamations under the Alien Enemy Act for the purpose of interning aliens deemed
dangerous or likely to engage in espionage or sabotage.97 At the outset of the war, the
internments were effected under civil authority of the Attorney General, who
established “prohibited areas” in which no aliens of Japanese, Italian, or German
descent were permitted to enter or remain, as well as a host of other restraints on
affected aliens. The President, acting under statutory authority, delegated to the
Attorney General the authority to prescribe regulations for the execution of the
program. Attorney General Francis Biddle created the Alien Enemy Control Unit to
review the recommendations of hearing boards handling the cases of the more than
2,500 enemy aliens in the temporary custody of the Immigration and Naturalization
Service (INS).98
In February of 1942, the President extended the program to cover certain
citizens99 as well as enemy aliens, and turned over the authority to prescribe “military
areas” to the Secretary of War, who further delegated the responsibilities under the
order with respect to the west coast to the Commanding General of the Western
Defense Command. The new order, Executive Order 9066,100 clearly amended the
policy established under the earlier proclamations regarding aliens and restricted areas,
but did not rely on the authority of Alien Enemy Act, as the previous proclamations
96See id.
97The President issued the following proclamations under the authority of 50 U.S.C. § 21:
Proc. No. 2525, Dec. 7, 1941, 55 Stat. Pt. 2, 1700 (with respect to invasion by Japan); Proc.
No. 2526, Dec. 8, 1941, 55 Stat. Pt. 2, 1705 (with respect to threatened invasion by
Germany); Proc. No. 2527, Dec. 8, 1941, 55 Stat. Pt. 2, 1707 (with respect to threatened
invasion by Italy).
98See Defense Migration Report, supra note 78, at 163.
99General De Witt’s declaration of military areas indicated that five classes of civilians were
to be affected:
Class 1, all persons who are suspected of espionage, sabotage, fifth column, or
other subversive activity; class 2, Japanese aliens; class 3, American-born
persons of Japanese lineage; class 4, German aliens; class 5, Italian aliens.
See id.
10017 Fed. Reg. 1407 (Feb. 19, 1942).

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had done.101 Although the Department of Justice denied that the transfer of authority
to the Department of War was motivated by a desire to avoid constitutional issues
with regard to the restriction or detention of citizens, the House Select Committee
Investigating National Defense Migration found the shift in authority significant, as
it appeared to rely on the nation’s war powers directly, and could find no support in
the Alien Enemy Act with respect to citizens.102 The summary exercise of authority
under that Act to restrain aliens was thought by the Committee to be untenable in the
case of U.S. citizens, and the War Department felt congressional authorization was
necessary to provide authority for its enforcement.103
Congress granted the War Department’s request, enacting with only minor
changes the proposed legislation providing for punishment for the knowing violation
of any exclusion order issued pursuant to Executive Order 9066 or similar executive
order.104 A policy of mass evacuation from the West Coast of persons of Japanese
descent – citizens as well as aliens – followed, which soon transformed into a system
of compulsive internment at “relocation centers.”105 Persons of German and Italian
descent (and others) were treated more selectively, receiving prompt (though probably
not full and fair) loyalty hearings106 to determine whether they should be interned,
paroled, or released. The disparity of treatment was explained by the theory that it
would be impossible or too time-consuming to attempt to distinguish the loyal from
the disloyal among persons of Japanese descent.107
In a series of cases, the Supreme Court limited but did not explicitly strike down
the internment program. In the Hirabayashi case, the Supreme Court found the curfew
imposed upon persons of Japanese ancestry to be constitutional as a valid war-time
security measure, even as implemented against U.S. citizens, emphasizing the
101See Defense Migration Report, supra note 78, at 162-66 (recounting history of general
evacuation orders issued by Lt. Gen. John De Witt, commanding general of the western
defense command).
102See id. at 166. Attorney General Francis Biddle later wrote that he had opposed the
evacuation of Japanese-American citizens, and had let it be known that his Department
“would have nothing to do with any interference with citizens, or recommend the suspension
of the writ of habeas corpus.” See FRANCIS BIDDLE, IN BRIEF AUTHORITY 216-17 (1962);
id. at 219 (reporting his reaffirmation to the President of his continuing opposition to the
evacuation just prior to the signing of the Order).
103See Defense Migration Report, supra note 78, at 167.
104Pub. L. 77-503, codified at 18 U.S.C. 1383 (1970 ed.), repealed by Pub. L. 94-412, Title
V, § 501(e) (1976).
105See PERSONAL JUSTICE DENIED, REPORT OF THE COMMISSION ON WARTIME RELOCATION
AND INTERNMENT OF CIVILIANS 2 (1982).
106See id. at 285 (describing impediments to full and fair hearings, including a prohibition
on detainees’ representation by an attorney, inability to object to questions, presumption in
favor of the government, and ultimate decision falling to reviewers at the Alien Enemy
Control Unit).
107See id. at 288-89 (pointing out that there appeared to have been a greater danger of
sabotage and espionage committed by German agents, substantiated by the German
saboteurs case noted supra).

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importance of congressional ratification of the Executive Order.108 Hirabayashi was
also indicted for violating an order excluding him from virtually the entire west coast,
but the Court did not review the constitutionality of the exclusion measure because the
sentences for the two charges were to run concurrently.109 Because the restrictions
affected citizens solely because of their Japanese descent, the Court framed the
relevant inquiry as a question of equal protection, asking
whether in the light of all the facts and circumstances there was any substantial
basis for the conclusion, in which Congress and the military commander united,
that the curfew as applied was a protective measure necessary to meet the threat
of sabotage and espionage which would substantially affect the war effort and
which might reasonably be expected to aid a threatened enemy invasion.110
In a concurring opinion, Justice Douglas added that in effect, due process
considerations did not apply to ensure that only individuals who were actually disloyal
were affected by the restrictions, even if it were to turn out that only a small
percentage of Japanese-Americans were actually disloyal.111 However, he noted that
a more serious question would arise if a citizen did not have an opportunity at some
point to demonstrate his loyalty in order to be reclassified and no longer subject to the
restrictions.112
In Korematsu, the Supreme Court upheld the conviction of an American citizen
for remaining in his home, despite the fact that it was located on a newly declared
“Military Area” and was thus off-limits to persons of Japanese descent. Fred
Korematsu also challenged the detention of Japanese-Americans in internment camps,
but the Court declined to consider the constitutionality of the detention itself, as
Korematsu’s conviction was for violating the exclusion order only. The Court, in
effect, validated the treatment of citizens in a manner similar to that of enemy aliens
by reading Executive Order 9066 together with the act of Congress ratifying it as
sufficient authority under the combined war powers of the President and Congress,
thus avoiding having to address the statutory scope of the Alien Enemy Act.
In Ex parte Endo,113 however, decided the same day as Korematsu, the Supreme
Court did not find adequate statutory underpinnings to support the internment of loyal
citizens. The Court ruled that the authority to exclude persons of Japanese ancestry
from declared military areas did not encompass the authority to detain concededly
loyal Americans. Such authority, it found, could not be implied from the power to
108Hirabayashi v. United States, 320 U.S. 81, 89-90 (1943) (emphasizing that the Act of
March 21, 1942, specifically provided for the enforcement of curfews).
109Id. at 105 (also declining to address the government’s contention that an order to report
to the Civilian Control Station did not necessarily entail internment at a relocation center).
110Id. at 95.
111Id. at 106 (Douglas, J., concurring).
112Id. at 109 (Douglas, J., concurring).
113323 U.S. 283 (1944).

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protect against espionage and sabotage during wartime.114 The Court declined to
decide the constitutional issue presented by the evacuation and internment program,
instead interpreting the executive order, along with the Act of March 27, 1942
(congressional ratification of the order),115 narrowly to give it the greatest chance of
surviving constitutional review.116 Accordingly, the Court noted that detention in
Relocation Centers was not mentioned in the statute or executive order, but was
developed during the implementation of the program. As such, the authority to detain
citizens could only be found by implication in the Act, and must therefore be found
to serve the ends Congress and the President had intended to reach. Since the
detention of a loyal citizen did not further the campaign against espionage and
sabotage, it could not be authorized by implication.
The Court avoided the question of whether internment of citizens would be
constitutionally permissible where loyalty were at issue or where Congress explicitly
authorized it, but the Court’s use of the term “concededly loyal” to limit the scope of
the finding may be read to suggest that there is a Fifth Amendment guarantee of due
process applicable to a determination of loyalty or dangerousness. While the Fifth
Amendment would not require the same process that is due in a criminal case, it
would likely require at least reasonable notice of the allegations and an opportunity
for the detainee to be heard.
At least one American with no ethnic ties to or association with an enemy
country was subjected to an exclusion order issued pursuant to Executive Order 9066.
Homer Wilcox, a native of Ohio, was excluded from his home in San Diego and
removed by military force to Nevada, although the exclusion board had determined
that he had no association with any enemy and was more aptly described as a
“harmless crackpot.”117 He was the manager of a religious publication that preached
pacifism, and was indicted along with several others for fraud in connection with the
publication.118 The district court awarded damages in favor of Wilcox, but the circuit
court reversed, finding the exclusion within the authority of the military command
under Executive Order 9066 and 18 U.S.C. § 1383, and holding that
the evidence concerning plaintiff’s activities and associations provided a
reasonable ground for the belief by defendant ... that plaintiff had committed acts
of disloyalty and was engaged in a type of subversive activity and leadership
which might instigate others to carry out activities which would facilitate the
commission of espionage and sabotage and encourage them to oppose measures
taken for the military security of Military Areas Nos. 1 and 2, and that plaintiff’s
presence in the said areas from which he had been excluded would increase the
114323 U.S. at 302.
115Id. at 298 (citing Hirabayashi at 87-91).
116Id. at 299.
117See Wilcox v. Emmons, 67 F.Supp 339 (S.D. Cal.), rev’d sub nom De Witt v. Wilcox, 161
F.2d 785 (9th Cir. 1947).
118De Witt v. Wilcox, 161 F.2d 785 (9th Cir.), cert. denied, 332 U.S. 763 (1947).

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likelihood of espionage and sabotage and would constitute a danger to military
security of those areas.119
The court also found that the Act of Congress penalizing violations of military orders
under Executive Order 9066 did not preclude General De Witt from using military
personnel to forcibly eject Wilcox from his home.120
The Japanese internment program has since been widely discredited,121 the
convictions of some persons for violating the orders have been vacated,122 and the
victims have received compensation,123 but the constitutionality of detention of
citizens during war who are deemed dangerous has never expressly been ruled per se
unconstitutional.124 In the cases of citizens of other ethnic backgrounds who were
interned or otherwise subject to restrictions under Executive Order 9066, courts
played a role in determining whether the restrictions were justified, sometimes
resulting in the removal of restrictions.125 Because these persons were afforded a
limited hearing to determine their dangerousness, a court later ruled that the Equal
Protection Clause of the Constitution did not require that they receive compensation
equal to that which Congress granted in 1988 to Japanese-American internees.126
It may be argued that Hirabayashi and the other cases validating Executive Order
9066 (up to a point) support the constitutionality of preventive detention of citizens
during war, at least insofar as the determination of dangerousness of the individual
interned is supported by some evidence and some semblance of due process is
accorded the internee. However, it was emphasized in these cases that Congress had
specifically ratified Executive Order 9066 by enacting 18 U.S.C. § 1383, providing
119Id at 790.
120Id. at 788.
121See generally PERSONAL JUSTICE DENIED, supra note 105.
122Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984); Hirabayashi v. United
States, 828 F.2d 591 (9th Cir. 1987); Yasui v. United States, 772 F.2d 1496 (9th Cir. 1985).
123 Through the Civil Liberties Act of 1988, Congress provided $20,000 to each surviving
individual who had been confined in the camps. Pub. L. No. 100-383, 102 Stat. 903 (1988),
codified at 50 U.S.C. App. §§ 1989b et seq.
124But see Hohri v. United States, 586 F.Supp. 769 (D.D.C. 1984), aff’d per curiam 847 F.2d
779 (Fed. Cir.1988), cert denied 488 U.S. 925 (1988) (unconstitutional taking of property
interests of internees was found where government officials were aware of allegations that
there was no military necessity sufficient to justify internment).
125See, e.g. De Witt v. Wilcox, 161 F.2d 785 (9th Cir. 1947)(reversing award of damages to
U.S. citizen who had been ordered excluded from the west coast and who was forcibly
removed to Las Vegas by the military); Schueller v. Drum, 51 F.Supp. 383 (E.D. Pa.
(1943)(exclusion order pertaining to naturalized citizen vacated where the facts were not
found that “would justify the abridgement of petitioner’s constitutional rights”); Scherzberg
v. Maderia, 57 F.Supp. 42 (E.D. Pa. 1944)(despite deference to the Congress and the
President with regard to wartime actions, whether the facts of a specific case provided
rational basis for individual order remained justiciable, and in the present case, “civil law
[was] ample to cope with every emergency arising under the war effort”).
126See Jacobs v. Barr, 959 F.2d 313 (D.C. Cir. 1992).

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a penalty for violation of military orders issued under the Executive Order. Thus,
even though the restrictions and internments occurred in the midst of a declared war,
a presidential order coupled with specific legislation appear to have been required to
validate the measures. The internment of Japanese-American citizens without
individualized determination of dangerousness was found not to be authorized by the
Executive Order and ratifying legislation (the Court thereby avoiding the
constitutional issue), although the President had issued a separate Executive Order to
set up the War Relocation Authority127 and Congress had given its tacit support for the
internments by appropriating funds for the effort.128
The only persons who were treated as enemy combatants pursuant to
Proclamation No. 2561129 were members of the German military who had been
captured after landing on U.S. beaches from German submarines.130 Collaborators and
persons who harbored such saboteurs were tried in federal courts for treason or
violations of other statutes.131 Hans Haupt, the father of one of the saboteurs, was
sentenced to death for treason, but this sentence was overturned on the ground that
procedures used during the trial violated the defendant’s rights.132 On retrial, Haupt
was sentenced to life imprisonment, but his sentence was later commuted on the
condition that he leave the country. Another person charged with treason for his part
in the saboteurs’ conspiracy, Helmut Leiner, was acquitted of treason but then interned
as an enemy alien.133 Anthony Cramer, an American citizen convicted of treason for
assisting one of the saboteurs to carry out financial transactions, had his conviction
overturned by the Supreme Court on the grounds that the overt acts on which the
charge was based were insufficient to prove treason.134 Emil Krepper, a pastor living
in New Jersey, came under suspicion because his name was found printed in secret ink
on the saboteur’s handkerchief, although he never met with any of the saboteurs. He
127Exec. Order No. 9102 (1942) (purporting to implement Exec. Order No. 9066).
128See Ex parte Endo, 323 U.S. 283 (1944).
129Proclamation No. 2561, of July 2, 1942, 7 Fed. Reg. 5101, 56 Stat. 1964. Like Exec.
Order No. 9066 issued earlier that same year, Proc. 2561 retained terminology from the
Alien Enemy Act but did not explicitly rely on it for authority. However, during oral
argument before the Supreme Court, the Attorney General placed some emphasis on the fact
that the Proclamation was consistent with the Alien Enemy Act as well as the Articles of
War, and was thus authorized by Congress. See LANDMARK BRIEFS, supra note 29, at 594-
95.
130There were ten in all. Eight saboteurs were tried by military commission in 1942. See Ex
parte Quirin, 317 U.S. 1 (1942). Two other saboteurs landed by submarine in 1945 and were
convicted by military commission. See Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956).
See Military Tribunals: The Quirin Precedent, CRS Report RL31340.
131CRS Report RL31340 at 15.
132United States v. Haupt, 136 F.2d 661 (7th Cir. 1943).
133Leiner is Interned After Acquittal Ordered by Court in Treason Case, NY TIMES, Dec.
1, 1942, at 1. He was subsequently indicted for violating the Trading with the Enemy Act
(TWEA). Leiner Reindicted for Aiding Treason, NY TIMES, Dec. 5, 1942, at 17.
134Cramer v. United States, 325 U.S. 1 (1945). He was later found guilty of violating the
TWEA and censorship laws.

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was indicted for violating TWEA and receiving a salary from the German government
without reporting his activity as a foreign agent.135
These cases involving collaborators with the Quirin eight, as well as other
unrelated cases of sabotage or collaboration with the enemy during World War II, did
not result in any military determinations that those accused were enemy combatants.
It is thus not clear what kind of association with Germany or with other enemy
saboteurs, short of actual membership in the German armed forces, would have
enabled the military to detain them as enemy combatants under the law of war.136
The Cold War.
After the close of World War II, the Congress turned its attention to the threat
of communism. Recognizing that the Communist Party presented a different kind of
threat from that of a strictly military attack, members of Congress sought to address
the internal threat with innovative legislation.137 Introduced in the wake of the North
Korean attack on South Korea, the Internal Security Act (ISA) of 1950138 was the
culmination of many legislative efforts to provide means to fight what was viewed as
a foreign conspiracy to infiltrate the United States and overthrow the government by
means of a combination of propaganda, espionage, sabotage, and terrorist acts.139 The
Attorney General presented to the Congress a draft bill that would strengthen the
espionage statutes, amend the Foreign Agents Registration Act, and provide authority
for U.S. intelligence agencies to intercept communications.140 According to the
Attorney General, the legislation was necessary because
[t]he swift and more devastating weapons of modern warfare coupled with the
treacherous operations of those who would weaken our country internally,
preliminary to and in conjunction with external attack, have made it imperative
that we strengthen and maintain an alert and effective peacetime vigilance.141
135See Krepper Guilty as Spy, NY TIMES, Mar. 15, 1945, at 25.
136See also discussion regarding proposed War Security Act, supra note 34, and
accompanying text.
137During the initial debate of the Internal Security Act (ISA), it was urged:
As our case is new, we must think anew and act anew.
See 96 Cong. Rec. 14,296, 14,297 (1950)(remarks of Senator Wiley, quoting Abraham
Lincoln).
13864 Stat. 987 (1950).
139See id. §2(1) (finding)
There exists a world Communist movement which, in its origins, its development, and its
present practice is a world-wide revolutionary movement whose purpose it is, by
treachery, deceit, infiltration into other groups (governmental or otherwise), espionage,
sabotage, terrorism, and any other means deemed necessary to establish a Communist
totalitarian dictatorship ....
140See 95 CONG. REC. 440-43 (1949) (Sen. McCarran introducing S. 595).
141Letter from Attorney General Tom C. Clark to Sen. McCarran, reprinted at 95 CONG.
REC. 441, 442 (1949).

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S. 4037 combined the proposed legislation with other bills related to national
security, including measures to exclude and expel subversive aliens, to detain or
supervise aliens awaiting deportation, and to deny members of communist
organizations the right to travel on a U.S. passport. The bill also contained a
requirement for Communist-controlled organizations and Communist-front
organizations142 to register as such. President Truman and opponents of the so-called
McCarran Act thought the registration requirements and other provisions likely to be
either unconstitutional or ineffective, and expressed concern about possible far-
reaching civil liberties implications.143
Opponents of the McCarran Act sought to substitute a new bill designed to
address the security concerns in what they viewed as a more tailored manner. Senator
Kilgore introduced the Emergency Detention Act144 (Kilgore bill) to authorize the
President to declare a national emergency under certain conditions, during which the
Attorney General could enact regulations for the preventive incarceration of persons
suspected of subversive ties. At the time of the debate, 18 U.S.C. § 1383 was still on
the books and would have ostensibly supported the declaration of military areas and
the enforcement of certain restrictions against aliens or citizens deemed dangerous.
Proponents of the Kilgore bill argued that the proposed legislation would create a
program for internment of enemies that would contain sufficient procedural
safeguards to render it invulnerable to court invalidation based on Ex parte Endo.145
The final version of the ISA contained both the McCarran Act and the
Emergency Detention Act. President Truman vetoed the bill, voicing his continued
opposition to the McCarran Act. The President did not take a firm position with
regard to the Emergency Detention Act, stating that
it may be that legislation of this type should be on the statute books. But the
provisions in [the ISA] would very probably prove ineffective to achieve the
objective sought, since they would not suspend the writ of habeas corpus, and
under our legal system to detain a man not charged with a crime would raise
serious constitutional questions unless the writ of habeas corpus were
suspended.146
142See S. REP. NO. 81-2369, Protecting the Internal Security of the United States 4 (1950)
(defining Communist-controlled organizations based on “their domination by a foreign
government or the world Communist movement”).
143See S. REP. NO. 81-2369 (minority views of Sen. Kilgore).
14464 Stat. 1019 (1950) (authorizing the President to declare an “Internal Security
Emergency,” in the event of war, invasion, or insurrection in aid of a foreign enemy, which
would authorize the Attorney General to “apprehend and by order detain each person ...
[where] there is reasonable ground to believe that such person may engage in acts of
espionage or sabotage.”).
145See 96 CONG. REC. 14,414, 14,418 (remarks of Sen. Douglas, a co-sponsor of the Kilgore
bill, discussing legal precedent for proposed internment and identifying procedural
safeguards incorporated in the proposed bill).
146See Internal Security Act, 1950 – Veto Message from the President of the United States,
96 CONG. REC. 15,629, 15,630 (1950). (Section 116 of the Emergency Detention Act
(continued...)

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The President recommended further study on the matter of preventive detention for
national security purposes. Congress passed the ISA over the President’s veto.147
The Emergency Detention Act, Title II of the ISA, authorized the President to
declare an “Internal Security Emergency” in the event of an invasion of the territory
of the United States or its possessions, a declaration of war by Congress, or
insurrection within the United States in aid of a foreign enemy, where the President
deemed implementation of the measures “essential to the preservation, protection and
defense of the Constitution.”148 The Act authorized the maintenance of the internment
and prisoner-of-war camps used during World War II for use during subsequent crises,
and authorized the Attorney General, during national emergencies under the Act, to
issue warrants for the apprehension of “those persons as to whom there is a reasonable
ground to believe that such persons probably will engage in, or conspire to engage in
acts of sabotage or espionage.” Detainees were to be taken before a preliminary
hearing officer within 48 hours of their arrest, where each detainee would be informed
of the grounds for his detention and of his rights, which included the right to counsel,
the privilege against self-incrimination, the right to introduce evidence and cross-
examine witnesses.149 The Attorney General was required to present evidence to the
detainee and to the hearing officer or board “to the fullest extent possible consistent
with national security.”150 Evidence that could be used to determine whether a person
could be detained as dangerous included evidence that a person received training from
or had ever committed or conspired to commit espionage or sabotage on behalf of an
entity of a foreign Communist party or the Communist Party of the United States, or
any other group that seeks the overthrow of the government of the United States by
force.151
No internal emergencies were declared pursuant to the Emergency Detention Act,
despite the United States’ involvement in active hostilities against Communist forces
in Korea and Vietnam and the continued suspicion regarding the existence of
revolutionary and subversive elements within the United States.152 Nevertheless, the
146(...continued)
explicitly preserved the right to habeas corpus).
147See 96 CONG. REC. 15,633, 15,726 81st Cong. 2nd Sess. (1950).
148ISA title II, § 102, 64 Stat. 1021.
149Id.§ 104, 64 Stat. 1022.
150Id.§ 104(f), 64 Stat. 1023 (excluding evidence of any officers or agents of the government,
the revelation of which would be dangerous to the security and safety of the United States).
151Id. § 109(h).
152See H.R. REP. NO. 1351, at 1, (1968) entitled “Guerrilla Warfare Advocates in the United
States,” in which the House Committee on Un-American Activities stated its belief that
“there can be no doubt about the fact that there are mixed Communist and black nationalist
elements which are planning and organizing guerrilla-type operations against the United
States.” The Committee concluded that “[a]cts of overt violence by the guerrillas would
mean that they had declared a ‘state of war’ within the country and, therefore, would forfeit
their rights as in wartime. The McCarran Act provides for various detention centers to be
operated throughout the country and these might be utilized for the temporary imprisonment
(continued...)

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continued existence of the Act aroused concern among many citizens, who believed
the Act could be used as an “instrumentality for apprehending and detaining citizens
who hold unpopular beliefs and views.”153 Several bills were introduced to amend or
repeal the Act.154 The Justice Department supported the repeal of the Act, opining that
the potential advantage offered by the statute in times of emergency was outweighed
by the benefits that repealing the detention statute would have by allaying the fears
and suspicions (however unfounded they might have been) of concerned citizens.155
Congress decided to repeal the Emergency Detention Act in toto in 1971, and
enacted in its place a prohibition on the detention of American citizens except
pursuant to an act of Congress.156 The new language was intended to prevent a return
to the pre-1950 state of affairs, in which “citizens [might be] subject to arbitrary
executive authority” without prior congressional action.157 Executive Order 9066 was
formally rescinded in 1976.158 Congress repealed 18 U.S.C. §1383 later that year.159
It may be argued that Congress, in passing the Emergency Detention Act in 1950,
was legislating based on its constitutional war powers, to provide for the preventive
detention during national security emergencies of those who might be expected to act
as enemy agents, though not technically within the definition of “alien enemies.” It
does not, therefore, appear that Congress contemplated that the President already had
the constitutional power to declare such individuals to be enemy combatants, subject
to detention under the law of war, except under very narrow circumstances. The much
152(...continued)
of warring guerrillas.” Id at 59.
153See H.R. REP. NO. 92-116, at 2, reprinted in 1971 U.S.C.C.A.N. 1435, 1436.
154Id; see also H.R. REP. NO. 91-1599, at 1-2 (Emergency Detention Act of 1950
Amendments, report accompanying H.R. 19163) (describing public concern based on
misconception that the Act authorized the detention of individuals based on race).
According to the Justice Department, the rumors that a system of concentration camps
existed was likely instigated by a pamphlet distributed by a group named Citizens
Committee for Constitutional Liberties, which had been found to be a Communist-front
organization that aimed to nullify the ISA. Id. at 9. H.R. 19163 would have amended the
Emergency Detention Act to clarify persons to whom it could apply and to include
procedural safeguards.
155Id. at 1437.
156Pub. L. 92-128 (1971), codified at 18 U.S.C. § 4001(a).
157See H.R. REP. NO. 92-116, at 5 (1971) reprinted in 1971 U.S.C.C.A.N. 1435, 1438
(concluding that the legislation “will assure that no detention camps can be established
without at least the acquiescence of the Congress”).
158Proc. 4417, 41 Fed. Reg. 7741 (Feb. 20, 1976) (proclaiming retroactively the termination
of Executive Order 9066 as of the date of cessation of hostilities of World War II, December
31, 1946).
159See National Emergencies Act § 501(e), Pub. L. 94-412, 90 Stat. 1255 (Sep. 14, 1976).
According to the legislative history, Congress repealed the penalty for violating military
orders with respect to military areas proclaimed pursuant to any executive order because the
measure had been intended only for wartime, and noted the repeal was consistent with the
earlier repeal of the Emergency Detention Act. See H.R. REP. NO. 94-238, at 9-10 (1976).

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earlier legislative history accompanying the passage of the Alien Enemy Act may also
be interpreted to suggest that the internment of enemy spies and saboteurs in war was
not ordinarily a military power that could be exercised by the President alone, or at
least, not a power with which Congress could not constitutionally interfere.160
The repeal of the Emergency Detention Act and the enactment of 18 U.S.C. §
4001(a) may be interpreted to preclude the detention of American citizens as enemy
agents or traitors unless convicted of a crime. If the law of war traditionally supports
the detention of such persons as enemy combatants or unlawful combatants, it may be
questioned why such an approach has not been utilized during past conflicts, during
which the internal security risk of hostile action by “fifth columnists,” spies, and
saboteurs was frequently perceived to equal the danger of military clashes on the
battlefield.
Current “Enemy Combatant” Cases
Two U.S. citizens are known to be held in the United States as enemy
combatants. It has been reported that one Canadian citizen is being held in U.S.
military custody in the United States after his arrest by the Canadian Security
Intelligence Service.161 It is unclear whether the man, Mohamed Mansour Jabarah, is
considered an “enemy combatant,” but he is reportedly being held for interrogation
and has not been charged with any offense.
The Case of Yaser Esam Hamdi.
Mr. Hamdi’s case may be likened to Territo in that he was captured on a field of
battle and was not charged with committing any offense. In Territo, the court cited
the 1929 Geneva Convention Relative to the Treatment of Prisoners of War as the
legal authority for the detention of the petitioner as a prisoner of war, and the
petitioner did not dispute that he had served as a member of the Italian armed forces,
with which the United States was then at war. The sole question before the court was
whether a U.S. citizen could lawfully be treated as a prisoner of war under U.S. law
160See Alien Enemy Brief, supra note 69, at 14-15.
In this country, [the power to intern enemies] is not lodged wholly in the Executive; it is
in Congress. Perhaps, if war was declared, the President might then, as Commander in
Chief, exercise a military power over these people; but it would be best to settle these
regulations by civil process.(Quoting remarks of Mr. Sewall from 2 Annals of Congress
1790, 5th Congress (1798). Others may have believed the President had the authority to
intern all enemies once war was declared:
[The discretionary power to take enemy aliens into custody] could not be looked as a
dangerous or exorbitant power, since the President would have the power, the moment
war was declared, to apprehend the whole of these people as enemies, and make them
prisoners of war. ... This bill ought rather to be considered as an amelioration or
modification of those powers which the President already possesses as Commander in
Chief, and which the martial law would prove more rigorous than those proposed by this
new regulation. See id. at 15-16 (quoting remarks of Mr. Otis in Congress, 2 Annals of
Congress 1790-91, 5th Congress (1798).
161See Allan Thompson, Canadian Held at U.S. Military Base, TORONTO STAR, 8/3/02, at
A09, available online at 2002 WL 24326723.

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and the law of war. Territo did not contest his capture as a war prisoner or claim that
his rights under the 1929 Geneva Convention had been violated.
Mr. Hamdi, however, reportedly claims that he is not a member of Al Qaeda or
the Taliban and was present in Afghanistan only to provide humanitarian assistance.162
The Fourth Circuit has agreed that “[i]t has long been established that if Hamdi is
indeed an ‘enemy combatant’ who was captured during hostilities in Afghanistan, the
government’s present detention of him is a lawful one.” In its latest decision, the
Fourth Circuit ordered the district judge to dismiss the petition, holding essentially
that a determination by the military that an individual is an enemy combatant is
conclusive, so long as it is supported by some evidence.163
In the first interlocutory appeal, the Fourth Circuit vacated a district court order
that the prisoner be provided immediate, unmonitored access to an attorney, urging
the district court to show deference to the government in its examination of the issue,
but expressly declining to embrace the “sweeping proposition” that “with no
meaningful judicial review, any American citizen alleged to be an enemy combatant
could be detained indefinitely without charges or counsel on the government’s say-
so.”164
On remand, the district court ordered the government to provide additional
information to support its conclusion that Mr. Hamdi is an enemy combatant.165 The
court found the petitioner to be entitled to due process of law under the Fifth
Amendment,166 and expressed the intent to inquire into the authority of the person
making the determination of Mr. Hamdi’s status, whether the screening criteria used
to determine such status meet due process requirements, the national security aims
served by his continued detention, and whether the relevant military regulations and
international law require a different procedure.167 The government appealed the order
to the Fourth Circuit, arguing that the proof already submitted to the court, which
consisted of a declaration by Michael Mobbes, a special advisor to the Under
Secretary of Defense for Policy, is sufficient as a matter of law to establish the legality
of the detention.168 The Fourth Circuit agreed, holding that the government has
presented sufficient evidence to satisfy the habeas corpus requirements to justify
retaining Mr. Hamdi in military custody. The court declared that since the Hamdi
162See Hamdi v. Rumsfeld, 296 F.3d 278, 281, 283 (4th Cir. 2002)(“Hamdi II”).
163See Hamdi v. Rumsfeld, No. 02-7338, slip op. at 42 (4th Cir. 2003)(where individual is
designated as an enemy combatant and it is undisputed that he was captured in a combat
zone, no further judicial inquiry is warranted after the government “has set forth factual
assertions which would establish a legally valid basis for the petitioner’s detention”).
164See Hamdi II, 296 F.3d at 283.
165See Court Order, Hamdi v. Rumsfeld, Civil Action 2:02ev439, Aug. 16, 2002.
166Id. at 8.
167Id. The court refers to the DoD Joint Service Regulation, Enemy Prisoners of War,
Retained Personnel, Civilian Internees and Other Detainees (1997), and the GPW, which
provide for a hearing to determine the status of those captured during hostilities. See CRS
Report RL31367.
168See Government’s Motion for Interlocutory Appeal and Stay, Aug. 19, 2002.

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petition conceded that Hamdi had been seized in Afghanistan during a time of military
hostilities, there are no disputed facts that would necessitate the evidentiary hearing
ordered by the district court, which could also involve a significant interference with
the war effort. The court also disposed of the legal arguments put forth on Hamdi’s
behalf, finding that 18 U.S.C. §4001(a) does not apply and that the Geneva
Conventions are non-self-executing treaties and therefore do not give individuals a
right of action. The court vacated the production order issued by the district court and
ordered the petition to be dismissed.
In sum, the Fourth Circuit has validated the Executive authority to detain persons
captured by the military on the battlefield during hostilities authorized by Congress,
regardless of their U.S. citizenship. Under Hamdi II, the federal courts are not
empowered to hear the prisoner on the question of whether his designation as an
“enemy combatant” by the military was factually supported or whether the
determination was made in such a manner as to comply with the Constitution, DoD
regulations regarding the capture and detention of persons in war, or international law.
However, the court stressed that Hamdi’s capture and detention by American allied
forces “in a foreign theater of operations during active hostilities” and determination
by the United States military that he was allied with enemy forces set his case apart
from that of Jose Padilla, discussed infra.
The Case of Jose Padilla.
The government argues that the case of Jose Padilla, who was arrested in
Chicago and alleged to be involved in a plot to detonate a “dirty bomb,” is very
similar to the facts behind Ex parte Quirin. So far the judge appears to have agreed,
noting that the facts alleged by the government would, if true, validate the
government’s authority to detain him under military custody.169 However, others argue
that Quirin is inapposite, given that the eight saboteurs in 1942 were charged and tried
by military commission, and were given access to an attorney. It may also be argued
that the case bears closer resemblance to the Civil War case Ex parte Milligan170 than
to either the Quirin or Territo cases.
The government argues that Milligan is inapposite to the petition of Padilla on
the grounds that Mr. Padilla, like petitioners in Quirin, is “a belligerent associated
with the enemy who sought to enter the United States during wartime in an effort to
aid the enemy’s commission of hostile acts, and who therefore is subject to the laws
of war.”171 (This, presumably, is to be contrasted with the case of Milligan, who was
a civilian and had never traveled outside the state of Indiana.)
The government does not allege that Mr. Padilla entered the country illegally or
landed as part of a military offensive. In Quirin, the petitioners were members of the
169Padilla ex rel. Newman v. Bush, 02 Civ. 4445, slip op. at 3 (2002)(holding that “the
President is authorized under the Constitution and by law to direct the military to detain
enemy combatants in the circumstances present here...”).
170 71 U.S. (4 Wall.) 2 (1866).
171See Respondents’ Reply in Support of Motion to Dismiss the Amended Petition for a Writ
of Habeas Corpus, Padilla ex rel. Newman v. Bush, 02 Civ. 4445, at 31, n8.

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German armed forces and admitted to having entered the country surreptitiously by
way of German naval submarine. The government’s argument appears to presume
that there is no relevant difference between the landing of the German saboteurs and
Mr. Padilla’s entry into the United States by means of a commercial flight, neither
under disguise nor using false identification. Under this theory, the relevant factor
would appear to be whether the petitioner had ever left the country and traveled to
“enemy territory,” regardless of how he re-entered the country.
However, it may be argued that under Quirin, the surreptitious nature of the
petitioners’ arrival onto the territory of the United States through coastal defenses, by
means of enemy vessels that would have been lawful targets had the Navy or Coast
Guard identified them as such, was a major determinant of the petitioners’ status as
enemy combatants.172 Had they entered the country openly and lawfully, they might
not have lost their right to be treated as prisoners of war. Mr. Padilla’s arrival by
apparently lawful means arguably has no bearing on whether he is subject to military
jurisdiction.
The government disputes Padilla’s claim that the laws of war do not apply to Al
Qaeda and thus could never apply to him. The government finds support for the
opposite claim in The Prize Cases.173 Because the President has, by Executive Order,
recognized a state of war against Al Qaeda, the government argues the laws of war
must apply, and anyone associated with Al Qaeda may therefore properly be deemed
to be “enemy belligerents.” However, it is not clear that Al Qaeda is a belligerent
under the law of war, because such status would ordinarily imply belligerent rights
that the Administration has been unwilling to concede. The nature of the “association”
with “enemy forces” necessary to garner a classification as an enemy combatant is also
not entirely clear.
The government argues that Milligan is inapposite; “whereas Milligan was not
engaged in legal acts of hostility against the government, ... the President determined
172Entering the country through coastal defenses was an explicit prohibition in Proc. 2561,
and evidence of such an entry was found to be dispositive of both the crime and its
amenability to military jurisdiction, regardless of the intent of the accused. See Colepaugh
v. Looney, 235 F.2d 429, 432 (10th Cir. 1956). There is currently no published
proclamation to the effect that persons who travel from overseas may be treated as unlawful
enemy combatants. While President Bush issued a military order providing for the detention
of persons who are associated with Al Qaeda or other terrorist organizations, it does not
apply to citizens. See Military Order, November 13, 2001 Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16,
2001).
173See Respondents’ Reply in Support of Motion to Dismiss the Amended Petition for a Writ
of Habeas Corpus, Padilla ex rel. Newman v. Bush, 02 Civ. 4445, at 7, citing The Prize
Cases, 67 U.S. (2 Black) 635, 670 (1862) (“Whether the President in fulfilling his duties,
as Commander-in-Chief, in suppressing an insurrection, has met with such armed hostile
resistance, and a civil war of such alarming proportions as will compel him to accord to
them the character of belligerents, is a question to be decided by him, and this Court must
be governed by the decisions and acts of the political department of the Government to
which this power was entrusted.”).

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that Padilla engaged in hostile and war-like acts.”174 However, the quoted language
from Ex parte Quirin may be somewhat misleading, inasmuch as Milligan was indeed
alleged to have engaged in hostile and warlike acts, but these were not legal acts of
hostility because Milligan was not a lawful combatant. Thus, whether Milligan
applies may depend on the emphasis placed on the legality of the acts of hostility of
which Milligan was accused, rather than whether Milligan was engaged in acts of
hostility at all. The Milligan opinion seems to view the nature of the legality of the
acts to be based on Milligan’s legitimacy as a belligerent rather than the nature of the
acts. It may be argued that Padilla, like Milligan, was not engaged in legal acts of
hostility, because he is not a lawful belligerent. Milligan’s membership in the Sons of
Liberty did not secure his legitimacy as a belligerent, but neither did it give the
government the right to detain him as a prisoner of war.175
The government further argues that Milligan is inapposite in this case because
Milligan, “not being a part of or associated with armed forces of the enemy,” could
not be held as a belligerent, while Padilla, in contrast, is alleged to be associated with
the armed forces of the enemy. However, it might be recalled that the government had
argued that Milligan was allegedly associated with the Confederate Army, a
recognized belligerent, and that he was in effect accused of acting as an unlawful
belligerent.176 Therefore, it may be argued that the important distinction in Quirin was
the nature and status of the enemy forces with whom he was associated, rather than
whether he was associated with a hostile force at all. The petitioners in Quirin were
all actual members of the armed forces of an enemy in a declared war. What
association with the enemy short of membership in its armed forces might have
brought the saboteurs under military jurisdiction is unclear.
The continuing validity of Milligan has been questioned by some scholars, even
though the Quirin Court declined to overrule it, while others assert that the essential
meaning of the case has only to do with situations of martial law or, perhaps, civil
wars. Furthermore, it has been noted that the portion of the plurality in Milligan
asserting that Congress could not constitutionally authorize the President to use the
military to detain and try civilians may be considered dicta with correspondingly less
precedential value, inasmuch as Congress had implicitly denied such authority. At
174Id at 12 (citing 71 U.S. (4. Wall.) at 131).
175See 71 U.S. (4 Wall.) at 131 (suggesting that only lawful belligerents may be detained in
accordance with the laws and usages of war); see also Ex parte Quirin, 317 U.S. 1, 45
(distinguishing Milligan because Milligan “was not an enemy belligerent either entitled to
the status of a prisoner of war or subject to the penalties imposed upon unlawful
belligerents”).
176 According to the record, evidence showed that Milligan was a member of
a powerful secret association, composed of citizens and others, [that] existed
within the state, under military organization, conspiring against the draft, and
plotting insurrection, the liberation of the prisoners of war at various depots, the
seizure of the state and national arsenals, armed cooperation with the enemy, and
war against the national government.
See id. at 141 (concurring opinion, in which four Justices took the position that under the
circumstances, Congress could have constitutionally authorized military tribunals to try
civilians, but had “by the strongest implication” prohibited them).

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any rate, modern courts have seemed less inclined to challenge the Executive’s
authority in war or its interpretation of the law of war. Courts may treat the question
of whether belligerents are legitimate – or whether that matters – as non-justiciable.
Constitutional Authority to Detain “Enemy Combatants”
The law of war permits belligerents to seize the bodies and property of enemy
aliens.177 The Administration has taken the view that the authority to detain “enemy
combatants” belongs to the President alone, and that any interference in that authority
by Congress would thus be unconstitutional.178 However, the Constitution explicitly
gives to Congress the power to make rules concerning captures on land and water,179
which has long supported Congress’ authority to regulate the capture and disposition
of prizes of war as well as confiscation of property belonging to enemy aliens.180
Both sides point to the Steel Seizure Case181 to provide a framework for the
courts to decide the extent of the President’s authority. In that Korean War-era case,
the Supreme Court declared unconstitutional a presidential order seizing control of
steel mills that had ceased production due to a labor dispute, an action justified by
President Truman on the basis of wartime exigencies, despite the absence of
legislative authority. Justice Jackson set forth the following oft-cited formula to
determine whether Presidential authority is constitutional:
1. When the President acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all that he possesses in
his own right plus all that Congress can delegate. . . . A seizure executed by the
President pursuant to an Act of Congress would be supported by the strongest of
presumptions and the widest latitude of judicial interpretation, and the burden of
persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of
authority, he can only rely upon his own independent powers, but there is a zone
177See Brown v. United States, 12 U.S. (8 Cranch) 110, 121 (1814).
178See Oversight of the Department of Justice: Hearing Before the Senate Judiciary
Committee, 107th Cong. (2002) (testimony of Attorney General John Ashcroft). The
government invites the courts to construe 18 U.S.C. § 4001(a) to avoid finding that it
involved a congressional effort to interfere with the basic executive power to detain enemy
combatants, as such a construction would render the statute unconstitutional. See Reply
Brief for Respondents-Appellants, Hamdi v. Rumsfeld (02-7338); Respondents’ Reply in
Support of Motion to Dismiss the Amended Petition for a Writ of Habeas Corpus at fn. 5,
Padilla ex rel. Newman v. Bush, 02 Civ. 4445 (citing Public Citizen, 491 U.S. 440, 482
(Kennedy, J., concurring) (Congress cannot “encroach[] upon a power that the text of the
Constitution commits in explicit terms to the President”); INS v. Chadha, 462 U.S. 919
(1983); Barenblatt v. United States, 360 U.S. 109, 111-112 (1959); United States v. Klein,
80 U.S. (13 Wall.) 128, 148 (1871)).
179U.S.CONST. Art. I, § 8, cl. 11.
180See Brown v. United States, 12 U.S. (8 Cranch) 110 (1814); The Siren, 80 U.S. (13 Wall.)
389 (1871).
181Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).

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of twilight in which he and Congress may have concurrent authority, or in which
its distribution is uncertain. Therefore, congressional inertia, indifference or
quiescence may sometimes, at least as a practical matter, enable, if not invite,
measures on independent presidential responsibility. In this area, any actual test
of power is likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied
will of Congress, his power is at its lowest ebb, for then he can rely only upon his
own constitutional powers minus any constitutional powers of Congress over the
matter. Courts can sustain exclusive Presidential control in such a case only by
disabling the Congress from acting upon the subject. Presidential claim to a
power at once so conclusive and preclusive must be scrutinized with caution, for
what is at stake is the equilibrium established by our constitutional system.182
The parties disagree as to where in this formula the present actions fall. Padilla
and Hamdi, and their supporters generally argue that such constitutional authority, if
it exists, is dependant upon specific authorization by Congress, which they argue is
missing (or even explicitly denied) in the present circumstances, placing the
controversy into the second or third category above. The government, on the other
hand, sees the issue as one that falls squarely into the first category, asserting that
Congressional authority for the detentions clearly exists, although such authority is not
strictly necessary. Congressional authority, the government argues, may be found in
the Authorization to Use Force183 and a provision of title 10, U.S.C., authorizing
payment for expenses related to detention of prisoners of war. Accordingly, the
following sections examine the constitutional authority to take prisoners in war and,
if congressional authority is required, whether Congress has provided it.
The Authorization to Use Force.
The government argues, and two federal courts have agreed, that the
identification and detention of enemy combatants is encompassed within Congress’
express authorization to the President “to use force against those ‘nations,
organizations, or persons he determines’ were responsible for the September 11, 2001
terrorist attacks.”184 Some argue, however, that since Congress only authorized force
and did not formally declare war, that the absence of language explicitly addressing
the detention of either alien enemies or American citizens cannot be read to imply
such authority, at least with respect to persons captured away from the battlefield.
The government asserts that the lack of a formal declaration of war is not
relevant to the existence of a war and unnecessary to invoke the law of war. While
a declaration is unnecessary for the existence of an armed conflict according to the
international law of war, it may be argued that a formal declaration is necessary to
determine what law applies domestically, whether to aliens or citizens. For example,
182Id. at 637-38 (Jackson, J., concurring) (footnotes and citations omitted).
183Pub. L. No. 107-40, 115 Stat. 224 (2001).
184Hamdi II, 296 F.3d at 283 (citing AUF).

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the Alien Enemy Act and the Trading with the Enemy Act (TWEA),185 both of which
regulate the domestic conduct of persons during a war, expressly require a declared
war and are not triggered by the authorization to use force.186 The Emergency
Detention Act, in effect from 1950 to 1971, had similar requirements prior to the
invocation of its measures.
At least one statutory provision in the Uniform Code of Military Justice (UCMJ)
that might authorize the military to detain certain civilians “in time of war” has been
interpreted to mean only a war declared by Congress.187 There is also military
jurisdiction to try any person “caught lurking as a spy” during time of war,188 including
citizens,189 or anyone suspected of aiding or abetting the enemy.190 It has not been
decided whether the phrase “in time of war” or reference to “the enemy” in the these
articles of the UCMJ also require a declaration of war by Congress; however, the same
reasoning applied in Averette191 and followed in Robb could be found to apply here,
at least with respect to persons who may not claim combatant status:
A recognition [that the conflict in Vietnam qualifies as a war in the ordinary sense
of the word] should not serve as a shortcut for a formal declaration of war, at least
in the sensitive area of subjecting civilians to military jurisdiction
On the other hand, the Manual for Courts Martial (MCM) defines “time of war” to
include declared war as well as “a factual determination by the President that the
existence of hostilities warrants a finding that a ‘time of war’” exists for the punitive
portions of the MCM.192 Likewise, with respect to conduct on the part of military
members, the MCM does not restrict references to “enemy” to mean an enemy
government or its armed forces.193 For example, the offense of “misbehavior before
18550 U.S. App. § 1 et seq.
186See generally Declarations of War and Authorizations for the Use of Military Force:
Background and Legal Implications, CRS Report RL31133 (identifying statutes effective
only during declared wars or during hostilities).
187See Robb v. United States, 456 F.2d 768 (Ct. Cl. 1972) (finding Vietnam conflict, while
considered a war as that term is ordinarily used, was not a war for the purposes of 10 U.S.C.
§ 802(a)(10), applying to trial by court-martial of persons accompanying the armed forces
in the field).
18810 U.S.C. § 906.
189United States ex rel. Wessels v. McDonald, 265 F. 754 (E.D.N.Y.), appeal dismissed, 256
U.S. 705 (1920).
19010 U.S.C. § 904.
191United States v. Averette, 41 C.M.R. 363 (1970).
192Rule 103(19), Rules for Courts-Martial. See also United States v. Monday, 36 C.M.R.
711 (1966) (finding the term “enemy” as used in Article 99, UCMJ, includes not only
organized armed forces of the enemy in time of war but any hostile party which forcibly
seeks to defeat U.S. forces).
193See supra note 1.

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the enemy” does not require a declaration of war.194 It should be noted that these
offenses are associated with conduct on the battlefield.
The government notes that its military practice has long been to detain enemy
combatants in conflicts where war was not formally declared and Congress did not
expressly authorize the capture of enemies. However, we are not aware of any
modern court ruling as to whether and under what circumstances citizens may be held
as “enemy combatants,” where no formal declaration of war has been enacted. It may
be argued that any authorization to employ ground troops against an enemy army
necessarily encompasses the authority to capture battlefield enemies, because it is an
essential aspect of fighting a battle. International law does not permit the intentional
killing of civilians or soldiers who are hors de combat, preferring capture as the
method of neutralizing enemies on the battlefield.195 However, the war powers
involving conduct off the battlefield, such as those authorizing the detention of alien
enemies or regulating commerce with the enemy, are not necessarily a vital aspect of
the use of the military, and have traditionally been subject to legislation and not
implied by circumstance. For example, the Supreme Court held that the President has
no implied authority to promulgate regulations permitting the capture of enemy
property during hostilities short of a declared war, even where Congress had
authorized a “limited” war.196
It may be argued that, because the internment of enemy aliens as potential spies
and saboteurs pursuant to the Alien Enemy Act197 requires a declaration of war or a
presidential proclamation, it would seem reasonable to infer that the express
permission of Congress is necessary for other forms of military detention of non-
military persons within the United States, especially those who are U.S. citizens.198
To conclude otherwise would appear to require an assumption that Congress intended
in this instance to authorize the President to detain American citizens under fewer
restrictions than apply in the case of enemy aliens during a declared war.
However, it might also be argued that the United States is a battlefield in the war
against terrorism in more than just a metaphorical sense. The AUF appears to
authorize the use of force anywhere in the world, including the territory of the United
States, against any persons determined by the President to have “planned, authorized,
committed, or aided the terrorist attacks” or “harbored such organizations or persons.”
Under this view, the United States is under actual and continuing enemy attack, and
Congress delegated to the President the authority to declare those persons he
determined to be subject to the AUF to be wartime enemies. The U.S. military would
be authorized to use force to kill or capture persons it identifies as “enemy
194Art. 99, UCMJ; see United States v. Monday, 36 C.M.R. 711 (1966).
195See generally Department of the Army, FM 27-10, The Law of Land Warfare (1956).
196See Brown v. United States, 12 U.S. (8 Cranch) 110 (1814).
197See discussion about Alien Enemy Act, supra note 69 et seq., and accompanying text.
198See supra discussion of Emergency Detention Act, which contained similar requirements.

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combatants,” even within the United States.199 However, those seeking a less
expansive interpretation of the AUF might argue that it must be read, if possible, to
conform to international law and the Constitution. Under this view, for example, it
might be questioned whether those sources of law provide adequate basis for a war
against alleged members of a criminal organization and those who harbor them.200
Title 10, U.S.C.
The government argues that even if Congress did not explicitly authorize the
detention of enemy combatants in its resolution authorizing force, “Congress has
otherwise made clear its acceptance and assumption that the President’s
Commander-in-Chief powers in a time of war encompasses the detention of enemy
belligerents.”201 This authority, it argues, is to be found in 10 U.S.C. § 956(5), which
authorizes the use of appropriated funds for “expenses incident to the maintenance,
pay, and allowance of prisoners of war” as well as “other persons in the custody of
the Army, Navy, or Air Force whose status is determined by the Secretary concerned
to be similar to prisoners of war.” The Administration interprets the phrase “similar
to prisoners of war” to include “enemy combatants” who are not treated as prisoners
of war.202
It is not clear from the legislative history of 10 U.S.C. § 956(5) that Congress
accepted the notion that there is a category of wartime detainees separate from
prisoners of war and interned alien enemies. The language was first codified into title
10, U.S.C. in 1984, but has long been included in appropriations bills for the
Department of Defense. It first appeared in the Third Supplemental National Defense
199The recent missile attack of alleged Al Qaeda operatives in Yemen by an unmanned aerial
vehicle belonging to the Central Intelligence Agency appears to be based on this concept of
the war against terrorism. See Dworkin, supra note 1. According to one DoD official:
[T]he President has defined our current campaign against Al-Qaeda and similar terrorists
of global reach as a “war.” This accurately portrays the state of armed conflict that exists
and the resulting military actions to combat the continuing threat of terrorist acts against
the United States and our friends and allies.
[T]he United States is involved in an armed conflict with al-Qaeda and other global
terrorists and those who harbor and support such terrorists. As such, the law of armed
conflict with regards to targeting and “hors de combat” applies in this conflict as it would
in any other.
See id. (excerpts from interview with Charles Allen, Deputy General Counsel for
International Affairs at the Department of Defense).
200See id.; Paust, supra note 48, at 8; Mark A. Drumbl, Victimhood in Our Neighborhood:
Terrorist Crime, Taliban Guilt, and the Asymmetries of the International Legal Order, 81
N.C. L. REV. 1, 23-24 (2002) (arguing U.S. policy on terrorism is blurring law enforcement,
military intervention, and the killing of suspected enemies).
201See Respondents’ Reply in Support of Motion to Dismiss the Amended Petition for a Writ
of Habeas Corpus at 26, Padilla ex rel. Newman v. Bush (02 Civ. 4445).
202The 4th Circuit accepted this position in Hamdi III, however, the Padilla court found the
language of 18 U.S.C. § 4001(a) to be sufficiently clear on its face to require no inquiry into
the other statutes.

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Appropriation Act of 1942,203 when the Army requested an addition to the defense
appropriations bill to provide the authority for the Secretary of War to
utilize any appropriation available for the Military Establishment under such
regulation as the Secretary of War may prescribe for all expenses incident to the
maintenance, pay and allowances of prisoners of war, other persons in Army
custody whose status is determined by the Secretary of War to be similar to
prisoners of war, and persons detained in Army custody, pursuant to Presidential
proclamation.204
It was explained that the expenses were in connection with keeping and
maintaining prisoners of war and others in military custody not provided for by any
appropriation; the example given was the construction of stockade authorized to be
built in Honolulu and water supply for prisoners on Oahu.205 The following colloquy
took place during Senate debate on the bill:
Mr. DANAHER. Mr. President, will the Senator from Tennessee permit me to
invite his attention to page 9 of the bill before he starts on a new title?
Mr. McKELLAR. Certainly.
Mr. DANAHER. In lines 2 and 3 on page 9, we find that the committee has
amended the bill to provide ‘for all expenses incident to the maintenance, pay, and
allowances of prisoners of war,” and notably, “other persons in Army custody
whose status is determined by the Secretary of War to be similar to prisoners of
war.” That is new language, apparently, and I should like to have the Senator
explain what other class of persons there may be in Army custody whose status
is similar to that of prisoners of war.
Mr. McKELLAR. Enemies who are found in this country are taken up by the
Army, and they have to be provided for. It was testified that at times it was very
necessary to arrest civilians and to provide for their care.
Mr. DANAHER. I have not the slightest doubt that it is necessary, Is there
existing law under which they are at present being taken up by the Army?
Mr. McKELLAR. The Army did not want to take a chance about it.
Mr, DANAHER. Is there an existing law under which such persons are today
being taken up by the Army and being held as prisoners?
Mr. McKELLAR. The advice to the Committee was that there is not, and in order
to make it absolutely sure the committee thought there should be such a
provision, and this provision was inserted. I am quite sure the Senator will, under
the circumstances, agree that it should be included in the bill.
Mr. DANAHER. I have not the slightest question that it is absolutely necessary
that certain classes of persons be taken up, not allowed to roam at large to our
detriment. There is no question as to that. All I wish to know is where authority
to do that is found in the law. Is their status defined? Under what circumstances
may they be taken up? If there be no such authority anywhere, then I think we
should very promptly and properly direct our attention to such a field. We
certainly are not going to authorize it merely by providing in an appropriation bill
for an allotment of money to be paid after they are taken up.
203Pub. L. No. 77-353, title III § 103, 55 Stat. 810, 813 (1941).
204Third Supplemental National Defense Appropriation Act of 1942: Hearing on H.R. 6159
before the Subcomm. of the Senate Comm. on Appropriations, 77th Cong., at 78-79 (1941).
205See id.

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Mr. McKELLAR. The Senator misunderstands me. The appropriation is not to
pay for their being taken up, but it is to maintain them and to keep them safely
after they are taken up by whatever authority, that this appropriation is
recommended.
Mr. DANAHER. The Senator feels he is quite correct in saying that up to now
there is no authorization provided by statute for their being taken up by the
Army?
Mr. McKELLAR There is no authorization for taking care of them and feeding
them and imprisoning them, and no place to imprison them, as I understand.
Mr. DANAHER. I thank the Senator.206
Prior to the amendment coming up for a vote, Senator Danaher took the occasion to
look up which sections of law provided authority for the Army to detain persons, and
concluded the authority was to be found in the Alien Enemy Act, 50 U.S.C. § 21,
which he read into the Record in its entirety and explained:
I understand that since the first of the week the President has in fact issued
proclamations under the authority of the section just quoted, and that so much of
this section as applies to prisoners of war and those whom the Secretary of War
may deem to be similar in status to prisoners of war, is comprehended within the
terms of the proclamations that are applicable outside the immediate territorial
limits of the United States. In view of the fact that that important section does
implement both the statute and the proclamations issued pursuant thereto, I feel
that it is important that the Record should show what the situation is.207
The amendment was agreed to. Similar language has appeared in subsequent
defense appropriations until 1983, when it was added to title 10 as a note to section
138,208 and then codified in 1984 in its present form.209 The Senate debate did not
question the President’s authority to detain prisoners of war, despite the absence of
express statutory authority, but only questioned the meaning of “other persons similar
to prisoners of war.” The legislative history could be interpreted to demonstrate that
the language was meant only to pay for the exercise of authority found elsewhere, in
particular the provisions of 50 U.S.C. § 21. It is unlikely that 10 U.S.C. §956(5)
would be interpreted as amending 50 U.S.C. §21 with respect to the requirement for
a declared war or Presidential proclamation. As an appropriations measure, it
probably could not be interpreted to authorize by implication what Congress has not
provided for elsewhere, nor is it likely that the language would be interpreted to repeal
by implication express language contradicting the interpretation.

Legislation regarding prisoners of war and enemy aliens subsequent to the
Defense Authorization Act arguably supports the understanding that, at least on the
territory of the United States, Congress did not contemplate that any persons would
be interned in any status other than that of prisoner of war or enemy alien. In 1945,
at the request of the Attorney General Biddle, Congress enacted a provision making
20687 CONG. REC. 9707-08 (1941).
20787 CONG. REC. 9724-25 (1941). The proclamations to which he was referring are those
listed supra at note 97.
208Pub. L. 98-212, Title VII, § 706, 97 Stat. 1437 (1983).
209Pub. L. 98-525, Title XIV, §§ 1403(a)(1) & 1404, 98 Stat. 2621 (1984).

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it a criminal offense to procure or aid in the escape of persons interned as prisoners
of war or alien enemies.210 The provision was recommended to fill a gap in the law,
which provided for the punishment of persons who procure or aid the escape of
prisoners properly in the custody of the Attorney General or confined in any penal or
correctional institution.211
18 U.S.C. 4001(a).
The petitioners in both Hamdi and Padilla assert that Congress expressly has
forbidden the detention of U.S. citizens without statutory authority, and that no
statutory support for the detention of U.S. citizens as “enemy combatants” can be
found. They cite 18 U.S.C. § 4001(a), which provides:
No citizen shall be imprisoned or otherwise detained by the United States except
pursuant to an Act of Congress.
This language originated with the repeal of the Emergency Detention Act212 in 1971.
The legislative history demonstrates that Congress intended to prevent recurrence of
internments in detention camps such as those that had occurred during the Second
World War with respect to Japanese-Americans.213 The language “imprisoned or
otherwise detained” in 18 U.S.C. § 4001(a) would appear broad enough to include
detention pursuant to the law of war,214 and has been construed literally by the
Supreme Court to proscribe “detention of any kind by the United States absent a
congressional grant of authority to detain.”215
Attorney General Ashcroft argues that 18 U.S.C. § 4001(a) does not apply to
enemy combatants detained by the President under his authority as Commander-in-
Chief.216 The Attorney General has expressed doubt that Congress has the
constitutional authority to interfere with the President’s authority to detain enemy
combatants.217 The Department of Justice notes that 18 U.S.C. § 4001(b) refers to
federal penal and correctional institutions, except for military or naval institutions, and
210Pub. L. 79-47, codified at 18 U.S.C. § 757.
211See H.R. REP. NO. 79-59, at 1-2 (1945).
21264 Stat. 1019 (1950)(authorizing the President to declare an “Internal Security
Emergency,” in the event of war, invasion, or insurrection in aid of a foreign enemy, which
would authorize the Attorney General to “apprehend and by order detain each person ...
[where] there is reasonable ground to believe that such person may engage in acts of
espionage or sabotage.”).
213Pub. L. 92-128, codified at 18 U.S.C. § 4001(a) (2001).
214The legislative history suggests that the main purpose of the act was to prevent detention,
without due process of law, of citizens during internal security emergencies. See H.R. REP.
NO. 92-116 (1971) reprinted in 1971 U.S.C.C.A.N. 1435-1439.
215Howe v. Smith, 452 U.S. 473, 479 n.3 (1981).
216See Oversight of the Department of Justice: Hearing Before the Senate Judiciary
Committee, 107th Cong. (2002) (testimony of Attorney General John Ashcroft).
217See id.

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thus concludes that § 4001(a) likewise refers only to federal penitentiaries. Further,
the Attorney General points to statements made by Abner Mikva and others during
floor debate on the act repealing the Emergency Detention Act, to the effect that the
legislation would not affect any inherent authority the President might have to detain
citizens for national security reasons.218
The judge in the Padilla case declined to employ the suggested canons of
statutory interpretation or to address the constitutionality of 18 U.S.C. § 4001(a),
finding the language unambiguous on its face.219 The judge found that § 4001(a)
clearly applies to the present case, but that Padilla’s detention conforms to § 4001(a)
because it is carried out pursuant to an act of Congress.220 The Fourth Circuit found
that § 4001(a) was not intended to apply to enemy combatants, since there was no
evidence in the legislative record that Congress had intended to “overturn the long-
standing rule that an armed and hostile American citizen captured on the battlefield
during wartime may be treated like the enemy combatant that he is.”221
Conclusion
The two “enemy combatant” cases currently making their way through the federal
courts may have an impact on the means used to prosecute the war on terrorism. The
Attorney General has clarified that the detention of suspicious aliens, and now some
citizens as well, is one facet of the government’s strategy for preventing future acts
of terrorism.222 As a consequence, the extent to which the Congress has authorized
the detention without trial of American citizens as “enemy combatants” may become
an important issue in determining the validity of the Administration’s tactics. While
the broad language of the AUF authorizes the use of such military force as the
President deems appropriate in order to prevent future acts of terrorism, it is possible
to argue that the AUF was not intended to authorize the President to assert all of the
war powers usually reserved for formal declarations of war.223 History shows that even
218See Cong. Rec. 31,555, (1971) (statement of Rep. Mikva):
If there is any inherent power of the President of the United States, either as the Chief
Executive or as Commander in Chief, under the Constitution of the United States, to
authorize the detention of any citizen of the United States, nothing in the House bill that
is currently before this Committee interferes with that power, because obviously no act
of Congress can derogate the constitutional power of a President.
219Padilla ex rel. Newman v. Bush, 02 Civ. 4445 (S.D.N.Y. Dec. 4, 2002) at 70 (noting the
doctrine of constitutional avoidance has no application in the absence of ambiguity).
220Id. at 74 (citing P.L. 107-40, § 2(a) as authorizing action against not only those connected
to those who are directly responsible for the September 11, 2001 attacks, but also those who
engage in future acts of terrorism)
221Hamdi III, slip op. at 31-32.
222See Phil Hirschkorn, Feds to Appeal Ruling on Post-Sept. 11 Tactics, CNN, May 5, 2002,
available at [http://www.cnn.com/2002/LAW/05/03/material.witnesses/] (citing quotation
attributed to Attorney General John Ashcroft, that “[a]ggressive detention of lawbreakers
and material witnesses is vital to preventing, disrupting or delaying new attacks”).
223See generally J. Gregory Sidak, To Declare War, 41 DUKE L.J. 27 (1991); Declarations
of War and Authorizations for the Use of Military Force: Historical Background and Legal
(continued...)

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during declared wars, additional statutory authority has been seen as necessary to
validate the detention of citizens not members of any armed forces. Courts, however,
have not explicitly ruled on the point with respect to circumstances like these.
Congressional activity since the Quirin decision suggests that Congress did not
interpret Quirin as a significant departure from prior practice with regard to restriction
of civil liberties during war. If that is the case, it may be argued that Congress has
shown the intent to authorize the capture and detention of individuals like Hamdi –
persons captured on the battlefield during actual hostilities – for so long as military
operations remain necessary, while withholding the authority to detain individuals like
Padilla – an accused enemy agent operating domestically – except in accordance with
regular due process of law. Again, however, the necessity of such congressional
authorization will be an issue likely to be revisited in the current cases.
223(...continued)
Implications, CRS Report RL31133.

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