ENEMY COMBATANTS AND THE JURISDICTIONAL FACT DOCTRINE

Transcription

1 ENEMY COMBATANTS AND THE JURISDICTIONAL FACT DOCTRINE David L. Franklin * INTRODUCTION The Bush Administration s assertion of authority to designate and detain individuals as enemy combatants as part of its global war against terrorism has generated an enormous amount of debate and litigation. But it has also exposed a fundamental fault line in ways of thinking about constitutional law, between those who conceptualize constitutional issues primarily from the perspective of individual rights and those who view them primarily from the perspective of the allocation and structuring of government power. Of course, the two perspectives are not mutually exclusive; the treatment of enemy combatants, like many other actions by the federal government, raises important issues both of individual rights and separation of powers. Yet I will argue that the difference in emphasis matters and, further, that the structural approach can usefully complement the individual rights approach in dealing with central aspects of the enemy combatant problem. 1 Two examples may help to illuminate the conceptual divide. The first is the Supreme Court s decision in Hamdi v. Rumsfeld. 2 After concluding that Congress had authorized the President to detain a United States citizen captured on the battlefield in Afghanistan as an enemy combatant, Justice O Connor s plurality opinion turned to the issue of the detainee s right to challenge his designation. The plurality addressed this issue from the perspective of the Due Process Clause, a perspective which led Justice O Connor to apply the multi-factor, * Assistant Professor, DePaul University College of Law. I thank Steve Siegel, Kevin Stack, and the participants in the Chicago Junior Faculty Workshop for their helpful comments, and Gerrit Wieringa for his able research assistance. Errors are mine. 1 This is not to say that the individual rights view is never appropriate. For example, the use of torture, discussion of which lies beyond the scope of this article, plainly raises an issue of fundamental human rights and ought to be treated as such. And, as the discussion below will demonstrate, the structural approach must be attentive to, and informed by, its impact on individual rights U.S. 507 (2004). 1001

2 1002 CARDOZO LAW REVIEW [Vol. 29:3 functionalist balancing analysis of Mathews v. Eldridge. 3 Speaking on this point for a six-justice majority, Justice O Connor concluded that Yaser Hamdi was entitled to a meaningful opportunity to contest his designation as an enemy combatant before a neutral decisionmaker. 4 The Court added, however, that these fact-finding proceedings could be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. 5 Accordingly, the Court concluded, hearsay may need to be accepted as the most reliable available evidence from the Government in such a proceeding, 6 and the factfinder may entertain a rebuttable presumption in favor of the government s evidence. 7 Finally, the Court hinted at the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal, rather than an Article III court. 8 By contrast, Justice Scalia, joined in dissent by Justice Stevens, approached the case primarily from a structural perspective. In his view, the Executive Branch lacks the power to detain a U.S. citizen without criminal charges unless Congress has suspended the writ of habeas corpus. 9 For Justice Scalia, then, a U.S. citizen s due process entitlement in cases involving loss of liberty is synonymous (absent suspension) with the right to trial by jury. 10 In his usual pugnacious style, Justice Scalia accused the plurality of using a Mr. Fix-it Mentality to cobble together a novel factfinding procedure for challenges to enemy combatant designations rather than relying on procedural mechanisms already well-established in our constitutional tradition. 11 The second example comes from the D.C. Circuit s recent decision in Boumediene v. Bush, on which the Supreme Court has since granted certiorari. 12 In a 2-1 decision, the appeals court panel held that the U.S. 319 (1976). 4 Hamdi, 542 U.S. at Id. 6 Id. at Id. at Id. at Id. at (Scalia, J., dissenting). Justice Scalia noted that, historically, exceptions exist for noncriminal detention such as civil commitment of the mentally ill and temporary quarantine of those with contagious or infectious illnesses. Id. at Id. There is room to debate Justice Scalia s assumption that a congressional suspension of habeas corpus would simultaneously act as an authorization of unilateral executive detention. See Trevor W. Morrison, Hamdi s Habeas Puzzle: Suspension as Authorization?, 91 CORNELL L. REV. 411 (2006) (questioning Justice Scalia s assumption); David L. Shapiro, Habeas Corpus, Suspension, and Detention: Another View, 82 NOTRE DAME L. REV. 59 (2006) (supporting Justice Scalia s assumption); Trevor W. Morrison, Suspension and the Extrajudicial Constitution, 107 COLUM. L. REV (2007) (responding to Shapiro s critique). 11 Hamdi, 542 U.S. at 576 (Scalia, J., dissenting) F.3d 981 (D.C. Cir. 2007), cert. granted, 127 S. Ct (2007).

3 2008] ENEMY COMBATANTS 1003 Military Commissions Act of 2006 (MCA) deprived the federal courts of habeas jurisdiction over petitions filed by detainees at Guantánamo Bay Naval Base, and that, so construed, the MCA was constitutional. 13 Judge Randolph, writing for the panel majority, concluded that Congress could deny the Guantánamo detainees access to habeas without offending the Suspension Clause because, as aliens held outside the territory of the United States, the detainees lay beyond the class of people to whom the writ would have been available in Judge Rogers, writing in dissent, maintained that the petitioners would have been eligible for the writ at common law, and that because the MCA did not provide them with an adequate substitute for habeas, the Suspension Clause prohibited enforcement of that statute s jurisdiction-stripping provisions. 15 Judges Randolph and Rogers disagreed on many points, but on one point in particular they simply seemed to talk past one another. The dissent characterized the Suspension Clause as providing a limit on Congress s powers rather than an individual right. 16 In response, the majority demurred, noting simply that all individual rights are limitations on the government, 17 and caricaturing the dissent s argument as based on the absurd notion that aliens outside the United States are entitled to the protection of the Separation of Powers because they have no individual rights under the Separation of Powers. 18 In both Hamdi and Boumediene, then, the majority took an individual rights approach that proved less protective of individual rights than the structural approach articulated by the dissent. 19 Structural analysis also holds the promise of greater clarity. 20 In Hamdi, for instance, the Court s holding like the Mathews framework out of 13 Id. 14 Id. at As Judge Rogers noted in dissent, the majority s reasoning is open to question, given that the Supreme Court has stated that the Suspension Clause protects the writ as of 1789 at the absolute minimum. Id. at 1000 & n.5. Perhaps recognizing this potential weakness, the panel majority added that the petitioners, as aliens without property or presence in the United States, have no constitutional rights to vindicate through habeas anyway. Id. at On this question, see the authorities cited infra, note Id. at Id. at (Rogers, J., dissenting). 17 Id. at Id. at I do not want to overgeneralize this observation. After all, the structural approach adopted by Justice Scalia in Hamdi would withhold all constitutional protection from non-citizen detainees, and possibly also from citizens captured and held outside the United States. 542 U.S. 507, 577 (2004) (Scalia, J., dissenting). And it is worth remembering that Justice Thomas, who also took a structural approach in his Hamdi dissent, emphasizing the separation of powers and the need for judicial deference to executive decision-making during wartime, would have denied all relief even to Hamdi. Id. at Cf. Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. REV. 989 (2006) (arguing for formalism over functionalism with respect to separation of powers issues in criminal cases).

4 1004 CARDOZO LAW REVIEW [Vol. 29:3 which it grew has imprecise contours. Many crucial questions remain unanswered: Could there be cases in which fewer procedures are required than in Hamdi s? Conversely, might there be cases in which hearsay evidence and burden-shifting would offend Due Process? Can non-citizens claim the protections of the Due Process Clause? 21 This article approaches the issue of enemy combatant designation from a structural perspective that of the jurisdictional fact doctrine. That doctrine calls for independent judicial review of any fact determined by an executive branch tribunal that is essential to the jurisdiction of that tribunal. The application of the doctrine to enemy combatant designations is, in its basic outlines, straightforward: Military tribunals have no jurisdiction to try non-combatants, and military authorities have no jurisdiction to detain them indefinitely. A detainee s status as a combatant on the one hand or a civilian on the other is therefore a jurisdictional fact which must be subjected to searching inquiry by an Article III court. Such judicial inquiry into jurisdictional facts typically occurs via the mechanism of habeas corpus. Indeed, this sort of inquiry vindicates the core historical function of the habeas writ to inquire into the jurisdiction of the executive officer in whose custody a person is being held, and to require release if that jurisdiction is lacking. Of course, the proper dividing line between combatant and civilian status is not self-evident, and difficult questions remain with respect to procedures and presumptions in various categories of cases. The political branches must enjoy some latitude in answering these questions. Yet, as I will argue by focusing on the case of Ali Saleh Kahlah al-marri a resident alien captured at his home in the United States and detained as an enemy combatant the jurisdictional fact doctrine insists that courts have an important role to play in ensuring that the Executive Branch does not exercise power beyond its jurisdictional limits. 22 Part I of this article describes the Executive Branch s policy of designating and detaining enemy combatants, as well as subsequent 21 On this last question, see Rasul v. Bush, 542 U.S. 466, 483 n.15 (2004) (suggesting an affirmative answer), and the thoughtful colloquy between Kermit Roosevelt III, Guantánamo and the Conflict of Laws: Rasul and Beyond, 153 U. PA. L. REV (2005), and Gerald L. Neuman, Extraterritorial Rights and Constitutional Methodology after Rasul v. Bush, 153 U. PA. L. REV (2005). The government does not appear seriously to contest that a resident alien captured and detained on United States territory, such as al-marri, can assert due process rights. 22 For other scholarship advocating a structural approach to the enemy combatant problem, see Jared A. Goldstein, Habeas Without Rights, WISC. L. REV. (forthcoming 2007), available at Emily Calhoun, The Accounting: Habeas Corpus and Enemy Combatants, 79 U. COLO. L. REV. (forthcoming 2007), available at and Samuel Issacharoff & Richard Pildes, Between Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime, 5 THEORETICAL INQUIRIES L. 1 (2004).

5 2008] ENEMY COMBATANTS 1005 legislative and judicial responses to that policy, such as the Detainee Treatment Act of 2004, the Military Commissions Act of 2006, and the Supreme Court s decisions in Hamdi, Rasul, and Hamdan. It concludes with a discussion of the al-marri decision recently handed down by a panel of the Fourth Circuit. Part II describes the jurisdictional fact doctrine and its articulation in the landmark case of Crowell v. Benson. As Part II explains, although the doctrine no longer retains its saliency within the field of administrative law, it continues to shed valuable light on the structural function of judicial review in checking the excesses of the coordinate branches, particularly through the mechanism of habeas corpus. Part III argues that facts concerning a detainee s status as a combatant or civilian qualify as jurisdictional within the meaning of the doctrine, and therefore ought to be subjected to independent judicial review. This Part demonstrates that combatancy has long been recognized as a jurisdictional fact within American constitutional law, as well as under international humanitarian law. It concludes by applying the jurisdictional fact doctrine to the case of al-marri and other individuals detained as enemy combatants. I. EXECUTIVE BRANCH ENEMY COMBATANT DESIGNATION AND LEGISLATIVE AND JUDICIAL RESPONSES One week after the terrorist attacks of September 11, 2001, Congress enacted a joint resolution authorizing the President to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided [those attacks], or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons. 23 Military operations in Afghanistan against Taliban and al-qaeda forces began soon afterward, during which thousands of people were captured by United States and allied forces. 24 Hundreds of these detainees were transferred to Guantánamo Bay Naval Base in Cuba. The Executive Branch has consistently maintained that these detainees are unlawful enemy combatants rather than prisoners of war protected by the Third Geneva Convention. 25 In Rasul v. Bush, 26 the Supreme Court held that district 23 Authorization for the Use of Military Force, Pub. L. No , 115 Stat. 224 (2001). 24 Many individuals were apprehended overseas but far from any theater of traditional military operations, in places like Gambia, Zambia, Bosnia, and Thailand. See In re Guantánamo Detainee Cases, 355 F. Supp. 2d 443, 446 (D.D.C. 2005), rev d sub nom., Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007). 25 See, e.g., Press Release, Office of the Press Secretary, The White House, Fact Sheet, Status of Detainees at Guantánamo (Feb. 7, 2002), On the distinction

6 1006 CARDOZO LAW REVIEW [Vol. 29:3 courts had jurisdiction under the federal habeas statute, 28 U.S.C. 2241, to entertain habeas corpus applications by detainees challenging the legality of their detentions. In its Hamdi decision handed down the same day, the Court held that the President could detain as an enemy combatant a United States citizen captured on the battlefield in Afghanistan, but that the detainee was entitled to challenge his enemy combatant designation before a neutral decisionmaker. 27 In response to the Supreme Court s decisions in Hamdi and Rasul, the Department of Defense established a system of Combatant Status Review Tribunals (CSRT) to determine whether detainees merited classification as combatants. 28 While the Court in Hamdi operated on the assumption that an enemy combatant was a person who had actively taken up arms against the United States or its allies, the order establishing the CSRT process adopted a broader definition. It defined enemy combatant as an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces. 29 CSRTs are composed of three neutral commissioned officers of the U.S. Armed Forces, each of whom possesses the appropriate security clearance and none of whom was involved in the apprehension of the detainee. 30 Detainees are not permitted access to counsel; instead, they are assigned an officer of the United States military as a personal representative to assist them in presenting their case to the tribunal. 31 This officer is allowed to view any relevant information that is in the possession of the Department of Defense, but is not permitted to share classified information with the detainee. 32 Notice is given to the detainee in advance of proceedings of the unclassified basis for his designation as an enemy combatant. 33 He is provided with an interpreter and permitted to call witnesses if the tribunal deems them reasonably available. 34 A Recorder gathers information on the detainee that is reasonably between lawful and unlawful combatants, see infra text accompanying notes U.S. 466 (2004) U.S. 507 (2004). Hamdi is discussed in greater detail supra, text accompanying notes Memorandum from Paul Wolfowitz, Deputy Sec y of Def., to the Sec y of the Navy (July 7, 2004), [hereinafter Wolfowitz Memorandum]. See also Memorandum from Gordon England, Sec y of the Navy (July 29, 2004), 29 Wolfowitz Memorandum, supra note 28 at Id. 31 Id. 32 Id. 33 Id. at Id. at 2-3.

7 2008] ENEMY COMBATANTS 1007 available to the government and provides it to the CSRT members. 35 CSRTs are not bound by the ordinary rules of evidence, and may, for example, consider hearsay evidence. 36 Appeal is to the Convening Authority, a military official designated by the Secretary of the Navy. 37 The Executive Branch has also instituted an annual review process whereby an Annual Review Board (ARB) consisting of three military officers recommends whether a detainee continues to pose a risk to the security of the United States or its allies and should therefore remain in detention. 38 In the first round of ARB proceedings, completed in February 2006, the Department of Defense reviewed the status of 463 detainees, as a result of which 14 detainees were released, 120 were transferred to the custody of authorities in their countries of origin, and 329 continued to be detained. 39 A recent comprehensive study of 393 CSRT transcripts reveals that in practice the procedural guarantees associated with these proceedings have been so minimal as to be effectively meaningless. 40 According to the study, the government did not produce a single witness during any proceeding; all requests by detainees to present witnesses other than those already detained at Guantánamo were denied; the only documentary evidence that detainees were allowed to introduce were letters from family and friends, even when other evidence such as passports, hospital records, and records of official proceedings was already in the government s possession; detainees were presented only with a summary of the government s classified evidence, which in every instance was so conclusory as to preclude any rebuttal; the tribunal found in every case that the government s classified evidence was reliable and valid; and in most cases, the detainee s personal representative met with the detainee only once, for no more than ninety 35 Id. at Id. at Id. at 2-3. See also Memorandum from Gordon England, Deputy Sec y of Def., to the Secretaries of the Military Dep ts, Chairman of the Joint Chiefs of Staff, and Under Sec y of Def. for Policy (July 14, 2006), 38 Paul Wolfowitz, Deputy Sec y of Def., Order on Administrative Review Procedures for Enemy Combatants in the Control of the Department of Defense at Guantánamo Bay, Cuba (May 11, 2004), The Geneva Conventions call for review twice a year for civilian internments, Geneva Convention Relative to the Protection of Civilian Persons In Time of War, art. 43, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV], and administrative detention, id. art Press Release, U.S. Dep t of Def., Guantánamo Bay Detainee Administrative Review Board Decisions Completed (Feb. 9, 2006), 40 Mark Denbeaux & Joshua W. Denbeaux, No-Hearing Hearings CSRT: The Modern Habeas Corpus? (Seton Hall Pub. Law Res. Paper Series, Paper No ) (2006), available at

8 1008 CARDOZO LAW REVIEW [Vol. 29:3 minutes including time for translation, only a week before the hearing. 41 It should come as no surprise that the study did not find a single case in which the CSRT process resulted in a determination that a detainee was not an enemy combatant. There were three proceedings in which the initial tribunal made such a finding, but in each of these cases the initial finding was eventually reversed by a new tribunal. 42 In one instance, after a tribunal unanimously determined that the detainee was not properly designated as an enemy combatant, intelligence personnel conducted another search for relevant information. That information was presented to a second tribunal with different members who then unanimously determined that the detainee was properly classified as an enemy combatant. 43 In another case, two Tribunals concluded that the detainee was improperly classified as an enemy combatant; after new information was sought, found, and presented to yet a third tribunal, that Tribunal considered all of the information and unanimously determined that the detainee was properly classified as an enemy combatant. 44 Transcripts of CSRT proceedings reveal their almost farcical nature. In one hearing, a detainee joked that he had seen bin Laden five times [t]hree times on Al Jazeera and twice on Yemeni news. His CSRT file dutifully recorded that [d]etainee admitted to knowing Osama bin Laden. 45 Another detainee sarcastically slammed his hands on the table during an especially long interrogation and yelled, Fine, you got me; I m a terrorist. His CSRT concluded that the detainee admitted he is a terrorist. 46 In another hearing, the detainee stated, I am prepared now to tell you, if you have anything or any evidence, even if it is just very little..., then I am ready to be punished.... If I was in your place and I apologize in advance for these words but if a supervisor came to me and showed me accusations like these, I would take these accusations and I would hit him in the face with them. Sorry about that. This detainee was also deemed an enemy combatant. 47 Joseph Margulies aptly summarizes the CSRT system: [A]ny proceeding that forces an alien prisoner unfamiliar with our justice system and held incommunicado to disprove allegations he cannot see, and whose reliability he cannot test, before a military panel whose superiors have repeatedly prejudged the result, all 41 Id. at Id. at Id. at Id. at 39 (quoting CSRT transcript). 45 JOSEPH MARGULIES, GUANTÁNAMO AND THE ABUSE OF PRESIDENTIAL POWER 165 (2006) (quoting Corine Hegland, Empty Evidence, NAT L J., Feb. 3, 2006, available at 46 Id. 47 In re Guantánamo Detainee Cases, 355 F. Supp. 2d 443, (D.D.C. 2005).

9 2008] ENEMY COMBATANTS 1009 without counsel, does not deserve to be called a hearing. 48 More recently, the procedural adequacy of the CSRT system has come under fire from the inside. Stephen Abraham, an attorney and army reserve colonel who served as a liaison officer for the Pentagon s Office for the Administrative Review of the Detention of Enemy Combatants (OARDEC) and as a member of a CSRT, filed an affidavit with the Supreme Court criticizing the entire CSRT process. 49 According to Abraham, the information on detainees was assembled by CSRT Reporters and case writers, who had limited intelligence experience and who compiled their reports on the basis of generalized intelligence that was often outdated [and] generic or based on incomplete databases of detainee-related information. 50 As a result, case writers and reporters often rejected some information arbitrarily while accepting other information without any articulable rationale. 51 Abraham s particular assignment within OARDEC was to provide a statement to be relied on by CSRT panel members that the government did not possess exculpatory information related to the detainee in question. 52 He concluded that he was unable to carry out this assignment because the relevant intelligence agencies refused to provide him with all relevant information. 53 On the one occasion in which Abraham served on a CSRT, he and the two other officers serving on the panel unanimously concluded that the information presented to them concerning the enemy combatant status of the detainee lacked even the most fundamental earmarks of objectively credible evidence. 54 Follow-up questioning of the Recorder by the panel yielded only the response, We ll have to get back to you. 55 The panel concluded that there was no factual basis for labeling the detainee an enemy combatant. The leadership within the Department of Defense responded by questioning the validity of this finding and insisting that the hearing be reopened. Ultimately, the panel did not change its ruling; the response by OARDEC was to initiate an inquiry into what went wrong MARGULIES, supra note 45, at Reply to Opposition to Petition for Rehearing, Declaration of Stephen Abraham, Lieutenant Colonel, United States Army Reserve, Al Odah v. United States, No , 2007 U.S. LEXIS (Oct. 1, 2007), 50 Id. 8, Id Id Id Id Id. 56 Id. 23. In a subsequent declaration, Abraham elaborated on his critique of the CSRT process, asserting in particular that the Department of Defense failed to obtain exculpatory evidence concerning alleged enemy combatants even when such evidence was readily available. Petition for Reinstatement, Declaration of Stephen Abraham, Lieutenant Colonel, United States

10 1010 CARDOZO LAW REVIEW [Vol. 29:3 Not surprisingly, the evidence indicates that many of the individuals being detained as enemy combatants probably do not qualify as combatants under any sensible understanding of the term. One study indicates that, according to the Department of Defense s own reports, as of 2005, 55% of the detainees at Guantánamo were not determined to have committed any hostile acts against the United States or its allies. Only eight percent were alleged to be al-qaeda fighters, and of the remaining detainees, 40% had no definitive connection to al Qaeda and 18% had no definitive affiliation with al Qaeda or the Taliban. 57 Notwithstanding these serious shortcomings, Congress has placed its stamp of approval on the CSRT mechanism. The Detainee Treatment Act of 2005 (DTA), enacted by Congress in response to the Supreme Court s Rasul decision, 58 requires the Secretary of Defense to report to the House and Senate Armed Services Committees concerning the procedures of CSRTs and ARBs. 59 The DTA mandates that the official who exercises final review authority over detainee status review must be a civilian appointed by the President and confirmed by the Senate. 60 The DTA also amended 28 U.S.C in an effort to strip the federal courts of jurisdiction over habeas corpus petitions or other claims challenging any aspect of detention at Guantánamo. 61 Instead, the statute vested exclusive jurisdiction on the Court of Appeals for the District of Columbia Circuit to review final determinations of CSRT proceedings. 62 The scope of review by the D.C. Circuit is limited: the court may only inquire into whether the determination of the CSRT was consistent with the standards and procedures specified by the Secretary of Defense, including whether the determination of enemy combatant status was supported by a preponderance of the evidence, taking into account the rebuttable presumption in favor of the government s evidence. 63 In addition, the court is permitted to assess the constitutionality and legality of those standards and procedures. 64 Army Reserve, Hamad v. Gates, No , 2007 U.S. App. LEXIS (Nov. 9, 2007), at MARK DENBEAUX & JOSEPH DENBEAUX, REPORT ON GUANTÁNAMO DETAINEES: A PROFILE OF 517 DETAINEES THROUGH ANALYSIS OF DEPARTMENT OF DEFENSE DATA 2 (2006), U.S. 466 (2004). 59 Detainee Treatment Act of 2005, Pub. L. No , 1005, 119 Stat (2005). 60 Id. 1005(a)(2). 61 Id. 1005(e)(1). 62 Id. 1005(e)(2). 63 Id. 1005(e)(2)(C)(i). 64 Id. 1005(e)(2)(C)(ii). The D.C. Circuit has required the government to include in the record on review of CSRT proceedings all of the information the CSRTs were authorized to obtain and consider, and has entered a protective order presumptively entitling counsel for detainees to access to classified information relating to their clients. Bismullah v. Gates, 501 F.3d 178, 180 (D.C. Cir. 2007).

11 2008] ENEMY COMBATANTS 1011 In its 2006 decision in Hamdan v. Rumsfeld, 65 the Supreme Court held that the DTA did not eliminate federal court jurisdiction over pending habeas claims by detainees held at Guantánamo, 66 and proceeded to invalidate the Executive Branch s system of military commissions for trying those detainees. 67 In the wake of Hamdan, Congress enacted the MCA in order to place its legislative imprimatur on the military commission system, as the Court had demanded. 68 The MCA therefore primarily deals with standards, procedures, and limited judicial review for military commission proceedings used to try enemy combatants, rather than the antecedent issue of determining enemy combatant status, but it does contain some provisions relevant to the current discussion. The MCA responds to the Court s threshold ruling in Hamdan by making clear that courts are stripped of jurisdiction over all detentionrelated claims, including pending habeas claims, brought by any alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. 69 More importantly for present purposes, the MCA provides the first congressional definition of unlawful enemy combatant : A person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. 70 The MCA defines lawful enemy combatant as a member of the regular forces of a State party engaged in hostilities against the United States; a member of a militia or other armed group belonging to a State party engaged in such hostilities and abiding by rules of war such as the wearing of distinctive insignia; or a member of a regular armed force of a hostile state not recognized by the United States S. Ct (2006). 66 Id. at Id. at See also id. at (Kennedy, J., concurring). 68 Military Commissions Act of 2006, Pub. L. No , 120 Stat (2006). 69 Id. 7(a), (b). 70 Id. 948a(1). 71 Id. 948a(2). Cf. Geneva Convention Relative to the Treatment of Prisoners of War art. 4A(2), Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III].

12 1012 CARDOZO LAW REVIEW [Vol. 29:3 As noted above, the D.C. Circuit in Boumediene upheld the MCA s elimination of habeas jurisdiction for Guantánamo detainees. 72 The Supreme Court initially denied review of that decision, but in an unusual move, later made an about-face and granted certiorari. 73 The Boumediene litigation presents difficult constitutional issues because it involves aliens captured abroad and held outside the (putative) borders of the United States. The Hamdi case, 74 which dealt with an American citizen captured on the battlefield in Afghanistan, represented an even more aggressive assertion of executive authority than Boumediene. But perhaps the most sweeping assertion of Executive Branch authority to designate and detain enemy combatants is the case of Ali Saleh Kahlah al-marri, because although al-marri is not a U.S. citizen, he is a resident alien who was arrested at his home in the United States. Indeed, his is the only known pending case involving an alleged enemy combatant who was detained within United States territory. 75 Al-Marri is a citizen of Qatar who entered the United States on a student visa on September 10, 2001, to pursue a master s degree at Bradley University in Peoria, Illinois. 76 The government contends that al-marri is an al Qaeda operative whose superiors urged that he enter the United States before the attacks of September 11, which could be expected to trigger tighter border controls. On December 12, 2001, FBI agents arrested al-marri at the home he shared with his wife and children in Peoria. The government transferred him to New York City, where he was initially held as a material witness in connection with the September 11 attacks. Al-Marri was eventually indicted on criminal charges involving credit card fraud and false statements, and a jury trial was scheduled for July Less than a month before the trial was to begin, however, President Bush designated al-marri as an enemy combatant and ordered that he be transferred to the custody of the Department of Defense. At the same time, the U.S. Attorney s Office formally dropped all criminal charges against him. Al-Marri was then 72 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007). For discussion, see supra text accompanying notes Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), cert. denied, 127 S. Ct (2007), reh g granted, vacated, and cert. granted, 127 S. Ct (2007). 74 For discussion, see supra text accompanying notes Jose Padilla is a U.S. citizen who was detained at O Hare Airport in Chicago and designated an enemy combatant. See Rumsfeld v. Padilla, 542 U.S. 426 (2004) (dismissing Padilla s application for habeas writ on grounds that district court lacked jurisdiction over his immediate custodian). Padilla was later transferred to the civilian justice system for trial. His lawyers argued, unsuccessfully, that he was incompetent to stand trial after years of mistreatment in military custody. See Deborah Sontag, U.S. Judge Finds Padilla Competent to Face Trial, N.Y. TIMES, Mar. 1, 2007, at A14. He was eventually convicted of conspiracy to commit acts of terrorism after a federal jury trial. See Abby Goodnough, Jose Padilla Convicted on All Counts in Terror Trial, N.Y. TIMES, Aug. 16, 2007, at A1. 76 Al-Marri v. Bush, 274 F. Supp. 2d 1003 (C.D. Ill. 2003), aff d sub. nom., Al-Marri v. Rumsfeld, 360 F.3d 707 (7th Cir. 2004).

13 2008] ENEMY COMBATANTS 1013 transferred to a military brig in Charleston, South Carolina, where he remains today. Al-Marri sought a writ of habeas corpus, alleging among other things unlawful detention and denial of due process. The district court denied al-marri s habeas petition. It concluded, first, that the President has the legal authority under the Supreme Court s decision in Hamdi 77 to detain resident aliens on U.S. soil as enemy combatants, 78 and, second, that the government had satisfied its burden under Hamdi of showing that al-marri was an enemy combatant. 79 In particular, the court held that the government s sole evidentiary exhibit, a hearsay declaration by a counterterrorism official named Jeffrey Rapp, formed an adequate basis for al-marri s detention as an enemy combatant. 80 The Rapp Declaration alleges that al-marri trained at an al Qaeda training camp in Afghanistan, met with Osama bin Laden, Khalid Shaykh Muhammed, and other terrorist leaders, offered to serve as a sleeper agent in the United States, and had used his laptop computer to research weapons of mass destruction and to store fraudulent credit card account information. 81 Al-Marri appealed the denial of habeas to the Fourth Circuit. During the pendency of the appeal, Congress enacted the MCA. 82 The government soon moved to dismiss al-marri s appeal for lack of jurisdiction, arguing that the MCA stripped the federal courts of jurisdiction over all pending habeas actions. 83 The Department of Defense ordered that al-marri be given a CSRT proceeding, and argued that al-marri s sole avenue of relief under the MCA was to file a claim in the Court of Appeals for the District of Columbia Circuit seeking limited judicial review of the CSRT s findings. 84 In June 2007, a three-judge panel of the Fourth Circuit reversed the judgment of the District Court and granted al-marri s petition for habeas relief. 85 The full Fourth Circuit later granted rehearing en banc, 86 but the panel s decision remains instructive, not least because its reasoning is likely to inform the Supreme Court s ultimate resolution of U.S. 507 (2004). 78 Al-Marri v. Hanft, 378 F. Supp. 2d 673, 682 (D.S.C. 2005). 79 Al-Marri v. Wright, 443 F. Supp. 2d 774 (D.S.C. 2006). 80 Id. at Id. at Military Commissions Act of 2006, Pub. L. No , 120 Stat (2006). 83 Respondent-Appellee s Motion to Dismiss for Lack of Jurisdiction and Proposed Briefing Schedule, Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007) (No ). 84 As of June 2007, however, al-marri had not yet received a CSRT, and the Department of Defense has stated that he will not receive one until his pending litigation is resolved. See Al- Marri v. Wright, 487 F.3d 160, (4th Cir. 2007), reh g en banc granted (Aug. 22, 2007). 85 Id. 86 Order Granting Petition for Rehearing En Banc, Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007) (No ), Al%20Marri%20rehearing%20order% pdf.

14 1014 CARDOZO LAW REVIEW [Vol. 29:3 the case. The primary thrust of the panel majority s lengthy opinion was to situate al-marri s case within the precedential landscape formed by three well-known cases a contemporary case, a World War II case, and a Civil War case. The first of these is Hamdi. 87 The panel in al-marri concluded that Hamdi s recognition of executive authority to detain enemy combatants applies only to the narrow category of those individuals who were part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the US there. 88 Al-Marri, the panel concluded, does not fit into this category. 89 The second is the rather notorious case of Ex parte Quirin, in which the Supreme Court upheld the use of military commissions to try a group of individuals, including one American citizen, accused of acting as non-uniformed saboteurs on behalf of Germany on United States territory. 90 Again, the Fourth Circuit panel in al-marri distinguished this precedent as limiting the definition of enemy belligerents [combatants] within the meaning of the law of war to a narrow category of persons, namely, 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. 91 Again, said the panel majority, al-marri does not fit. The third and final case is Ex parte Milligan, in which the Supreme Court struck down the military s attempt to assert jurisdiction over an Indiana citizen alleged to have communicated with the Confederacy and conspired to seize weapons and overthrow the Union government. 92 So long as the ordinary civilian courts are functioning and habeas has not been suspended, the Court held, Milligan must be tried in those courts, not by a military tribunal. 93 Here, the panel found that al-marri does fit like Milligan, the court concluded, he is a civilian and a lawful resident, and must be tried if at all in civilian courts. 94 According to the Fourth Circuit panel, what these three milestone U.S. 507 (2004). Hamdi is discussed in greater detail supra, text accompanying notes Al-Marri v. Wright, 487 F.3d at 180 (quoting Hamdi, 542 U.S. at ). 89 Id. at 183. Similarly, the court distinguished its own prior decision in Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005), as limited to individuals who were armed and present in a combat zone in Afghanistan as part of Taliban forces during the conflict there with the United States. Al-Marri, 487 F.3d at 180 (quoting Padilla, 423 F.3d at ) U.S. 1 (1942). As Justice Scalia pointed out in his Hamdi dissent, Quirin was not [the] Court s finest hour the Court rushed to uphold the death sentences and wrote an opinion to accompany its order only months later. Hamdi, 542 U.S. at 569. See generally LOUIS FISHER, NAZI SABOTEURS ON TRIAL: A MILITARY TRIBUNAL AND AMERICAN LAW (2003). 91 Al-Marri, 487 F.3d at 181 (quoting Quirin, 317 U.S. at 37-38) U.S. (4 Wall.) 2 (1866). 93 Id. at , Al-Marri, 487 F.3d at 187.

15 2008] ENEMY COMBATANTS 1015 precedents have in common is that all of them look to principles from the law of war to determine the boundaries of the legal category of enemy combatant. Those principles, the panel concluded, predicate enemy combatant status upon affiliation with the military arm of an enemy nation. 95 Al-Marri may very well have committed or planned to commit violent or even catastrophic acts, but on the facts as alleged by the government he is not a combatant, even if the President says so. 96 Indeed, the opinion strongly suggests, al-marri does not count as a combatant even if Congress says so, unless it suspends habeas. 97 In the final section of the opinion, the panel rejects the President s assertion of inherent presidential power to detain al-marri. 98 The President has wartime authority over enemy combatants, the court concludes, but absent suspension of habeas corpus or declaration of martial law, he lacks the power to exercise military authority over civilians: The Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them enemy combatants. 99 Two related features of the Fourth Circuit panel s al-marri decision are worth noting. First, there is no due process balancing at all in the court s opinion. Although formally its holding is predicated on the Due Process Clause, the panel (unlike the Supreme Court in Hamdi) nowhere engages in a Mathews v. Eldridge calculus in which it weighs or pretends to weigh the individual s interest in liberty against the government s interest in procedural efficiency, discounted by the probability of an erroneous decision. 100 Instead, the panel takes it as a given that, for resident alien civilians like al-marri, a criminal trial is required to justify prolonged detention. Nor does the court find any need for a further factual hearing: even if everything in the Rapp Declaration is true, al-marri s detention is still unlawful. 101 Second, it is noteworthy that the panel majority s rhetorical selfassuredness reaches its peak in the section of the opinion that deals with questions of executive power as opposed to individual rights. Thus, in the final section of the opinion, where the court directly confronts the President s claim of inherent constitutional authority to detain al-marri, it calls this a breathtaking assertion of power that far exceeds the power granted to the President by the Constitution. 102 It stresses the 95 Id. at Id. at Id. at Id. at Id. 100 See Mathews v. Eldridge, 424 U.S. 319 (1976). 101 Al-Marri, 487 F.3d at 187, Id. at 190, 193.

16 1016 CARDOZO LAW REVIEW [Vol. 29:3 centrality of the combatant-civilian distinction, emphasizing in particular the deeply rooted and ancient opposition... to the extension of military control over civilians. 103 It concludes that detention for the duration of a generations-long struggle could shred our traditional understandings of the law of war, and refuses to approve such presidential power, stating it would have disastrous consequences for the Constitution and the country : For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution.... We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic. 104 The Fourth Circuit panel had good reason to be so categorical. This case tests the outer limits of the Executive Branch s claims of authority to detain enemy combatants during wartime. Al-Marri was a lawfully admitted alien residing in the United States. He was arrested in the home he shared with his family, far from the battlefield of any shooting war. His alleged crimes, though quite serious, are of a type that ordinary criminal processes appear equipped to handle. 105 Moreover, the President has asserted the authority to hold al-marri, and others he deems enemy combatants, for the duration of the current conflict. 106 Given the global reach of the conflict and the nebulous and stateless nature of the enemy, this amounts to an assertion of the power to detain individuals indefinitely without charge. 107 Under such conditions, at the very least, the courts have an obligation to inquire into the basic factual predicates underlying the Executive Branch s assertion 103 Id. at 194 (quoting Reid v. Covert, 354 U.S. 1, 33 (1957)). 104 Id. 105 See Brief Amicus Curiae of Former Senior Justice Department Officials in Support of Petitioners-Appellants and Supporting Reversal at 10-15, Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007) (No ), 2006 WL (cataloguing successful criminal prosecutions of terrorists in the United States and elsewhere). 106 See, e.g., Alberto R. Gonzales, Counsel to the President, Remarks to the American Bar Association Standing Committee on Law and National Security (Feb. 24, 2004), reprinted in 150 Cong. Rec. S2701, S2702 (daily ed. Mar. 11, 2004) ( The law applicable in this context [i.e. the conflict with al-qaeda] is the law of war those conventions and customs that govern armed conflicts. Under these rules, captured enemy combatants, whether soldiers or saboteurs, may be detained for the duration of hostilities. ); Memorandum from William Haynes, General Counsel to the Department of Defense, to the Council on Foreign Relations (Dec. 12, 2002), available at ( War implicates legal powers and rules that are not available during peacetime. Among other things, the war context gives the President the authority to detain enemy combatants at least until hostilities cease. ). 107 Thus, while the Court in Hamdi held that established law-of-war principles limited detention of enemy combatants to the duration of active hostilities, it added that [i]f the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. 542 U.S. 507, 521 (2004).

17 2008] ENEMY COMBATANTS 1017 of authority. The next section describes a structural principle that can provide courts with the doctrinal means to do so. II. THE JURISDICTIONAL FACT DOCTRINE The jurisdictional fact doctrine holds that when a fact forms the constitutional or statutory basis for the exercise of power by an Executive Branch adjudicatory tribunal, an Article III court must make an independent finding of the fact and may in its discretion take evidence as to the fact. 108 Although it has a long history in Anglo- American jurisprudence, 109 for modern students of administrative law the doctrine is most closely associated with the case of Crowell v. Benson. 110 Crowell arose out of a claim for compensation under the Longshoremen s and Harbor Workers Compensation Act (LHWCA), a federal statute providing a system of compensation for maritime employees injured on the navigable waters of the United States. 111 Claims under the LHWCA were referred to a federal agency, the United States Employees Compensation Commission, which was authorized to hold hearings and determine facts in order to adjudicate disputed claims. 112 The Commission s orders required a court order to become effective. 113 In Crowell, the petitioner who had been the losing party in a Commission proceeding sought judicial review in order to maintain that the injured party was not his employee, and therefore that the claim lay outside the scope of the LHWCA and beyond the jurisdiction of the Commission. The Supreme Court, in an opinion by Chief Justice Hughes, upheld the constitutionality of the LHWCA. Today Crowell is remembered (if it is remembered at all) for three points. First, the Court paved the way for the creation of much of the modern administrative state by holding that Congress s delegation of adjudicative authority to an administrative agency violated neither Article III nor the Due Process Clause. 114 Second and relatedly, the 108 This definition is adapted from the classic work by LOUIS L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 625 (1965). 109 For citations to cases from the 17th, 18th, and 19th centuries, see JAFFE, supra note 108, at ; John Dickinson, Crowell v. Benson: Judicial Review of Administrative Determinations of Questions of Constitutional Fact, 80 U. PA. L. REV. 1055, (1932) U.S. 22 (1932). For an earlier case resting on similar reasoning, though framed in due process terms, see Ohio Water Co. v. Ben Avon Borough, 253 U.S. 287 (1920). 111 Crowell, 285 U.S. at The act is now known as the Longshore and Harbor Workers Compensation Act and is codified at 33 U.S.C Crowell, 285 U.S. at Id. at Id. at See, e.g., Clinton v. City of New York, 524 U.S. 417, (1998) (Breyer, J., dissenting) (noting Crowell s importance in permitting Congress to create flexible adjudicative arrangements).