BY APRIL FARRIS
Visiting Professor Curtis A. Bradley discussed a wide variety of legal issues surrounding the United States’ fight against terrorism in his Thursday presentation entitled “Military Detention in the War on Terror.” Bradley’s presentation, hosted by the Harvard Federalist Society, discussed legal questions unique to the war on terror including the use of detention facilities abroad, the right to habeas corpus, and the reach of U.S. jurisdiction beyond American shores.
According to Bradley, military detention arose as a controversial issue in recent years in part due to intensive media coverage of the Guantanamo Bay facility. However, the United States utilized military detention facilities extensively in World War II. While the nature of the conflict differed from the present situation, their use was uncontroversial – even when they held U.S. citizens.
“There were POW camps in the U.S. in World War II,” Bradley said. “Some of the people in the camps were U.S. citizens. If an American was found to be fighting for Germany and Italy, it didn’t matter. They could be held.”
The most famous World War II case on this issue was Ex Parte Quirin (or the “Nazi Saboteurs Case”) which concerned a band of people who came to the U.S. by submarine with the goal of exploding American industrial facilities. These individuals – including one American – were quickly rounded up and tried in military tribunals. Although the military trial and detention of an American citizen were challenged, the Court concluded that “citizenship in the U.S. of an enemy belligerent does not relieve him from the consequences of his belligerency.”
The World War II cases, Bradley said, do not resolve all legal questions regarding the current conflict because of key differences between the conflicts: World War II had a foreseeable end date while this conflict does not, and the identity of the enemy is no longer clear as it was in world War II. Although World War II was a formally declared war while the War on
Terror is not, Bradley said that distinction is unimportant as the U.S. has been in many undeclared wars since World War II including the Korean War and the Vietnam War.
Although the unprecedented nature of the conflict has raised many new legal questions, Bradley said that a recent line of Supreme Court cases has addressed uncertainties regarding the detention of U.S. citizens who are found to be enemy combatants- a class of individuals covered by the Use of Force Authorization.”In Hamdi v. Rumsfeld, the Court had to think about what to do if [detained enemy combatants] are US citizens,” Bradley said.
“To decide this question, they went back to the Nazi Saboteurs case.”While the plurality found that a U.S. citizen could be classified as an enemy combatant, the Supreme Court imposed a new requirement on the government.
“The Court did impose a restraint on the government, at least for U.S. citizens.” Bradley said. “Citizens get to challenge the government’s classification as an enemy combatant and must be given a fair opportunity to rebut the government before a neutral decision-maker.”
To accommodate this new directive, the Government established Combatant Status Review Tribunals. Citizens could make their case before a panel of three military officers. According to Bradley, 550 people have gone through the process, and 40 have been found not to be combatants. In 2005, the government created Administrative Review Boards to conduct a yearly review on whether to continue detentions for all detainees, including non-citizens. While this process led to the release of some individuals held at Guantanamo, a few problems have resulted.
“When some of the prisoners are released, even if they’re found not to be enemy combatants, their home countries often won’t take them.” Bradley said. “Also, some of those who have been released have already been found to be fighting again in Iraq or Afghanistan.”
In 2003, the Supreme Court also addressed the rights of U.S. citizens deemed to be enemy combatants in the Rumsfeld v. Padilla. According to Bradley, the cases had many similarities.
“Like Hamdi, Padilla associated with forces hostile to the United States in Afghanistan. Padilla took up arms against US forces in the same way and to the same extent as Hamdi. Because like Hamdi, Padilla is an enemy combatant and his detention is no less necessary than Hamdi’s in order to prevent his return to the battlefield, the President is authorized by the Authorization to Use Military Force to detain Padilla as a fundamental incident to conduct of war.”
The Supreme Court dismissed the Padilla case on procedural grounds and remanded the case to the lower court, but the cases established a clear principle.
“After these cases, there was no question that Hamdi and Padilla could file a writ of habeas corpus” Bradley said. “They might lose, but they could test it out if they’re U.S. citizens held in the U.S. This also applied to people held in Guantanamo Bay since Guantanamo Bay is essentially a U.S. territory.”
Following these decisions, United States court dockets began to fill rapidly with habeas petitions from people held at Guantanamo. In response, Congress passed the Detainee Treatment Act. Bradley said the Act established that there would no longer be a habeas review for Guantanamo detainees, but these individuals could still appeal to the D.C. Circuit to determine whether the Combatant Status Review Tribunal process was followed.
The Supreme Court addressed the habeas issue again in Hamdan v. Rumsfeld, a case filed by a Guantanamo inmate before the Detainee Treatment Act was passed. This ruling was followed by the Military Commissions Act of 2006, which, “basically knocked out any statutory right for anyone labeled an enemy combatant.”
Even following all these cases, Bradley said that a question still remains to be resolved: Do the detainees at Guantanamo have a Constitutional right to habeas review?
But with the 2007 acceptance of a certiorari petition in Boumediene v. Bush and al Odah v. United States, Bradley said that question might finally receive an answer. While he could not say for certain how the case would come out, Bradley speculated that the court would find “some Constitutional rights at Guantanamo” due to Guantanamo Bay’s status as something similar to a U.S. territory.
Although the United States has detention facilities, some larger than Guantanamo Bay, in other countries, those establishments could be removed by the foreign government. However, because the United States cannot ever be “kicked out” of its territory in Cuba, Bradley said that the inmates at Guantanamo could have a special legal status not shared by inmates at other foreign facilities.
While he said there would likely be dissents and concurrences, he predicted that Justice Kennedy would write the opinion. If that opinion grants constitutional rights to Guantanamo inmates, Bradley said that it will be a milestone for the court.
“If Kennedy does this, the Constitution will have extra-territorial reach.”
How far beyond U.S. shores will that reach extend?
“About 90 miles.” Bradley said. “Justice Kennedy will take this to Guantanamo, but maybe nowhere else. The Supreme Court won’t want everyone in the world to petition, so they may say the lease in Cuba is special.”