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January 01, 2003

“Unlawful Combatants” in the United States: Drawing the Fine Line Between Law and War

by Daniel Kanstroom

Anything that comes up in the United States tends to be looked at as a law enforcement matter, ‘. . . decide whether or not he’s guilty or innocent and give him due process.’ Of course if . . . you’ve got the risk of terrorists . . . killing thousands or tens of thousands of people, you’re not terribly interested in whether or not the person is potentially a subject for law enforcement.

Donald Rumsfeld, quoted in Tom Brune & John Riley, Taking Liberties; Collateral Damage, Newsday, Sept. 15, 2002, at A3.

May the U.S. government lawfully incarcerate a U.S. citizen on U.S. soil for an indeterminate period in solitary confinement without providing the following rights: legal process, disclosure of evidence, access to counsel, family visitation, and judicial review? Before September 11, 2001, most Americans might have thought the question absurd, but this is the reality faced by Jose Padilla and Yaser Esam Hamdi, due to their having been designated by the executive branch as “unlawful [or “enemy”] combatants.” Like other aspects of enforcement after the September 11 attacks—secret removal proceedings and unprecedented use of material witness warrants, for example—their cases provoke and demand answers to a series of fundamental and unresolved legal questions of U.S. law.


Jose Padilla, a native-born U.S. citizen, allegedly reentered the United States from Afghanistan pursuant to a plot to detonate a radioactive bomb. A Chicago gang member once convicted of murder, Padilla had allegedly converted to Islam in prison, moved to Egypt, changed his name to Abdullah al Muhajir, and, according to government sources, met with Al Qaeda members. Arrested at O’Hare airport, he was first detained as a “material witness.” For reasons that remain unclear, on June 9, 2002, he was designated by President Bush as an “enemy combatant” and sent to a naval brig in South Carolina, where he has been detained incommunicado—uncharged and without access to counsel. Yaser Hamdi was seized while fighting for the Taliban in Afghanistan and was transferred from the U.S. base at Guantanamo Bay to the Norfolk Naval Station brig after authorities discovered he was a U.S. citizen born in Louisiana.

The U.S. government has argued that, as “unlawful combatants,” both men should continue to be detained in accordance with the “laws and customs of war,” which would mean they have no rights as criminal defendants or, for that matter, as civil detainees under the U.S. Constitution. This precludes rights to due process, counsel, bail, or a speedy trial and leaves them caught in a shadowy post-September 11 no-man’s land, awaiting resolution of their cases by courts before which they have never appeared, represented by lawyers with whom they have never spoken.

Fortunately, the U.S. rule of law is not so easily evaded as some members of the administration might wish. Both men’s cases are currently under consideration by federal courts pursuant to writs of habeas corpus, Hamdi’s before the U.S. Court of Appeals for the Fourth Circuit in Virginia and Padilla’s before the U.S. District Court for the Southern District of New York. The specific issues in both cases are whether the men are entitled to counsel and what information the government must disclose, to whom, about its determination of each man’s status as an unlawful combatant.

In Padilla v. Bush, No. 02 Civ. 4445 (MBM) (S.D.N.Y.), the government has relied upon a classified document that has not been given to Padilla’s lawyers, although it released an unclassified version and apparently has urged the court to review the classified version. Padilla’s lawyers have argued that the court should not base a decision on either version of the document until counsel are allowed to consult with their client and hear his response. As they wrote in their brief, “Jose Padilla should be granted the fundamental right to have his voice heard by this court.” Such statements raise the fundamental question whether, as a citizen, he retains such a right, or his unlawful combatant status—as determined by the government—deprives him of the panoply of constitutional protections available to U.S. citizens (or to any person detained within the United States by the government).

What Is an “Unlawful Combatant”?

The general rule of U.S. law has long been that civilian courts have jurisdiction over citizens detained by the military. See Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) (a citizen arrested during Civil War for “holding communication with the enemy,” “conspiring to seize munitions . . . [and] liberate prisoners of war,” and inciting rebellion could not be tried by military courts, so long as civilian courts were open. This principle was reiterated in Duncan v. Kahanamoku, 327 U.S. 304 (1946), which involved two trials of ordinary offenses in military courts in Hawaii during World War II, while civilian courts were open. The government sought to distinguish Milligan because Hawaii was near the active theater of war and under threat of invasion, but the Court reversed both convictions.

The possibility of an exception to Milligan for “unlawful combatants” derives from Ex parte Quirin, 317 U.S. 1 (1942), and the interstices of international law. Quirin dealt with a military commission trial of Nazi saboteurs, one of whom was a U.S. citizen. The Supreme Court held that certain enemy belligerents—specifically those who “without uniform come secretly through the lines for the purpose of waging war”—may be detained without constitutional protections even if they are U.S. citizens:

[T]he law of war draws a distinction between . . . 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.

This distinction may also be found within the structures of international law, particularly the 1949 Geneva Conventions. The Geneva Conventions state that members of armed forces (such as Al Qaeda) qualify for prisoner of war status if they meet four criteria: (1) being commanded by a person responsible for subordinates; (2) having a fixed distinctive sign recognizable at a distance; (3) carrying arms openly; and (4) conducting operations in accordance with the laws and customs of war. Although it seems likely that Al Qaeda fighters would fail the last three criteria, the question—potentially relevant to Hamdi—whether Taliban fighters should qualify as lawful combatants is a closer one. It should be noted, in any case, that Article 5 of the Third Geneva Convention requires that a tribunal determine whether a person is entitled to POW or even civilian status. Thus, every captured individual should be presumed a prisoner of war until determined otherwise by a competent tribunal.

Any person can theoretically be tried for war crimes, but those given POW status cannot be criminally tried for violent acts committed in battle. Some “unlawful combatants” could face trial by military tribunals, but the Bush Military Order of November 13, 2001, exempts U.S. citizens, which indicates that Padilla and Hamdi would end up in the civilian criminal justice system, as happened with John Walker Lindh.

Other distinctions between POW and unlawful combatant status involve the protections against forced interrogation and harsh detention conditions. Torture is prohibited against anyone under international and U.S. law, but POWs are more specifically protected than unlawful combatants against physical coercion and intensive interrogation. Thus, unlawful combatants could face unmediated and unsupervised interrogation and be denied access to counsel, family, or virtually any nonmilitary personnel (with only the possible exception of the International Committee of the Red Cross). Further, Article 118 of the Convention requires that prisoners of war be “repatriated without delay after the cessation of active hostilities,” but the administration may well believe some of its captives are too dangerous ever to be released. So long as Al Qaeda and its supporters exist, will the U.S. government agree there has been, in the words of the Geneva Conventions, a “cessation of active hostilities”?

The Role of the Judicial Branch

Textual constitutional authority for a meaningful judicial role begins with the Suspension Clause of the Constitution, which explicitly states that “the privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Courts have long construed this provision to maintain habeas review, even during times of declared war.

In Quirin the defendants had their status as “unlawful combatants” determined by a properly formed military commission expressly authorized by statute. The defendants had access to counsel throughout the proceedings and were ultimately able to seek judicial review of the findings of the commission. Quirin thus stands for the proposition that civilian courts should not, at the very least, categorically decline to review habeas cases where the government alleges that a person is an “unlawful” or “enemy” combatant.

The question of the proper scope of judicial review still remains open, however. Shortly after September 11, Congress authorized the president to use all necessary and appropriate force against “nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks [or] harbored such organizations or persons.” Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001). The Fourth Circuit considered this authorization and the fact that the Hamdi case arose

in the context of foreign relations and national security, where a court’s deference to the political branches of our national government is considerable [and the president wields] delicate, plenary and exclusive power . . . as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.

The court concluded that the president was acting in this case with statutory authorization from Congress, and that judicial deference extends to military designations of individuals as enemy combatants in times of active hostilities, as well as to their detention after capture on the field of battle.

In the context of long-term detention of noncitizens, however, the Supreme Court recently stated:

[T]he Constitution may well preclude granting an administrative body the unreviewable authority to make determinations implicating fundamental rights. . . . The serious constitutional problem arising out of a statute that, in these circumstances, permits an indefinite, perhaps permanent, deprivation of human liberty without any such protection is obvious.

Zadvydas v. Davis , 533 U.S. 678, 692 (2001).

Hamdi and Padilla, however, have not yet had the benefit of a status determination by any competent tribunal, military or otherwise.

Rights of Unlawful Combatants

The fundamental questions at issue in Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002), could not be more profound. Litigation up to the end of 2002 has centered on the rights of unlawful combatants to counsel and release. The government has stated that “enemy combatants who are captured and detained on the battlefield in a foreign land” have “no general right under the laws and customs of war, or the Constitution . . . to meet with counsel concerning their detention, much less to meet with counsel in private, without military authorities present.”

On May 10, 2002, the federal public defender for the Eastern District of Virginia filed a habeas corpus petition challenging the government’s detention of Hamdi, naming Hamdi and himself as next friend as petitioners and seeking (1) “private and unmonitored communications” between the detainee and his counsel; (2) an end to all interrogations; and (3) the release of Hamdi from “Respondents’ unlawful custody.” The district court held that Hamdi must be allowed to meet with his attorney because of “fundamental justice provided under the Constitution of the United States.” (Although there is general agreement that the Sixth Amendment right to counsel would not apply to a formally uncharged “unlawful combatant.”) The court specified that this meeting was to be private, with only Hamdi, the attorney, and the interpreter present; without military personnel; and free from listening or recording devices of any kind.

The United States quickly filed a motion for stay pending appeal of the district court’s unmonitored-access order, and the Fourth Circuit granted the stay. In the meantime, Hamdi’s father filed a separate petition for a writ of habeas corpus, although he did not request that counsel be granted unmonitored access to his son. The district court granted the petition in part, and the United States again appealed. At this point, the Fourth Circuit began to consider the hard constitutional questions presented by Hamdi’s case and remanded for development of a fuller record.

Hamdi’s public defender has argued that “no evidence has been submitted to support” Hamdi’s status as an enemy combatant and that Hamdi, as a U.S. citizen detained in the United States, is entitled to constitutional protections, including unmonitored access to counsel. The Fourth Circuit, without specifying a precise standard, decided the district court had not adequately addressed these fundamental questions. The court did, however, reject the invitation of the government to dismiss the petition in its entirety based on the argument that “given the constitutionally limited role of the courts in reviewing military decisions, courts may not second-guess the military’s determination that an individual is an enemy combatant and should be detained as such.” The government, in short, asserted that its determinations “are the first and final word.” Hamdi at 283. Fortunately, the court declined to embrace so sweeping a proposition that any U.S. citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government’s say-so, with no meaningful judicial review.

It seems the government has retreated from an extreme position, albeit slightly, as the litigation has progressed. The government sought to file an ex parte supplemental declaration that, it said, would discuss “the military’s determination to detain petitioner Hamdi as an enemy combatant.” The district court, after hearing the government’s evidence, found it insufficient to establish such status because it failed to substantiate the primary witness’s authority to make such determinations for the executive, to specify the nature of Hamdi’s alleged affiliation with the Taliban, or to include almost all of the specific evidence on which its conclusions rested. The district court then ordered the government to produce further information (for review in camera) to support the designation of Hamdi as “enemy combatant” and to explain why he must be held incommunicado.

Padilla’s case, though not as far along as that of Hamdi, seems likely to raise similar issues. Most recently, on December 4, 2002, U.S. Dictrict Judge Michael Mukasey ruled that Padilla has the right to challenge his detention in court and, therefore, to consult with counsel. It appears certain that the government will appeal this ruling, as it did in Hamdi’s case. The judge has not yet decided, however, whether there is enough evidence to support the administration’s finding that Padilla is an “unlawful combatant.”


In a recent case brought by the Detroit Free Press against John Ashcroft, 303 F.3d 681 (6th Cir. 2002), the court stated, “Democracies die behind closed doors.” Our judicial system now seems tasked with confronting assertions of executive authority within the United States that would have been almost unthinkable a short time ago. Perhaps our courts should recall the admonition in Milligan, written in the aftermath of the Civil War: “The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”

Daniel Kanstroom

Daniel Kanstroom is an associate clinical professor and director of the Boston College Immigration and Asylum Project in Massachusetts.