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Safeguarding the Enemy Within:

The Need for Procedural Protections for U.S. Citizens Detained as Enemy Combatants Under Ex Parte Quirin

On September 11, 2001, terrorist attacks took the lives of more than

3,000 people in New York City, Washington, D.C., and rural

Pennsylvania. The federal government reacted swiftly. On

September 18, Congress authorized President George W. Bush “to

use all necessary and appropriate force against those nations,

organizations, or persons he determined planned, authorized,

committed, or aided the terrorist attacks.  Two months later,

President Bush issued a military order authorizing the creation of

military tribunals to try non-U.S. citizens who belonged to the al

Qaeda terrorist group and “engaged in, aided or abetted, or conspired

to commit” certain acts of terrorism against the United States.’ Both the military order and the September 18 CongressionalAuthorization For Use of Military Force in Response to the 9/11 were designed with an eye toward the war in Afghanistan. At the same time, law enforcement officials were forced to deal with domestic threats that lacked precedent in recent history. In response to these threats, a “parallel system” of justice has developed wherein the government has claimed the authority to detain indefinitely individuals suspected of terrorist activity, including U.S. citizens, as “enemy combatants.”

Also known as National Defense Authoriation Act (NDAA)


The most visible application of this doctrine thus far has been the

case of José Padilla. In early May 2002, the FBI arrested Padilla in

Chicago at O’Hare International Airport for his alleged participation

in an al Qaeda plot to detonate a radiological bomb in the United

States. The rough outlines of Padilla’s life are well known by now.

An American citizen, Padilla was born in Brooklyn, New York, and

moved to Chicago with his family when he was four years old. While

some neighbors knew him as “Pucho,” an affable child and good

student,’ he became familiar to Chicago law enforcement authorities

in the 1980s as a local gang member, according to government

officials. In 1983, when Padilla was twelve years old, a jury convicted

him of murder in Chicago. He was imprisoned until his eighteenth

birthday.” In 1991, he went to prison in Florida on charges of

aggravated assault and firing a handgun.  After his release, he began

referring to himself as Ibrahim Padilla and moved to Egypt.

According to the government, Padilla afterwards traveled to

Pakistan, Saudi Arabia, and Afghanistan. In Afghanistan in 2001, he

met with al Qaeda lieutenant Abu Zubaydah, with whom he

developed a plan to build and detonate a radiological bomb in the

United States. The plan allegedly included stealing radioactive

material from within the United States once Padilla had returned.


Federal agents arrested Padilla immediately upon his arrival in

Chicago on May 8, 2002.” The U.S. Marshals Service held him as a

material witness in a grand jury investigation until June 9, when he

was transferred to a Charleston, South Carolina, Navy brig, where he

has remained without access to counsel and without being formally


No Charges and No Trial, Just Jail

The government has justified curtailing Padilla’s Fifth and

Sixth Amendment rights by declaring him an “enemy combatant,” a

term that has lain dormant in the United States judicial system for the

last sixty years, and whose meaning is extremely unclear. Under the

enemy combatants doctrine, the government claims the right to detain

U.S. citizens indefinitely without charging them.

This Note addresses the government’s application of the enemy

combatants doctrine to detain suspected terrorists. Part I explores the

judicial origins of the term “enemy combatants” and its cognate in

international law, “unlawful combatants. Part I also examines the

Foreign Intelligence Surveillance Act as an example of a

congressional attempt to provide detailed procedural safeguards

against executive abuse in national security matters.

Part II discusses the main questions posed by two recent enemy combatant cases,

Hamdi v. Rumsfeld and Padilla v. Bush:

 What procedural protections should suspected enemy combatants have, and by what standard should the government’s determination that an individual is an enemy combatant be reviewed? Part II also discusses the benefits and pitfalls of the clear alternative to enemy combatant detentions:

affording suspects the full protections of the normal rules of civil

procedure. Finally, Part II examines civilian trials, such as the trials

of the 1993 World Trade Center bombing conspirators and the 1998

embassy bombers. Part III proposes a set of procedural safeguards to the unsettled questions presented by Hamdi and Padilla. It does so by using the law of war and the procedures codified in the Foreign Intelligence Surveillance Act as models. Detainees, this part argues, should have rights in accordance with those models, including the right to a fair hearing, the right to counsel, and the right to sue in tort for unlawful detentions. Moreover, this Note concludes that the government should be required to justify detentions by a showing of probable cause.


Nobody knows the exact definition of an enemy combatant. The

term first appeared in Ex parte Quirin,”‘ a case in which the Supreme

Court upheld the government’s authority to prosecute eight Nazi

saboteurs in a military court.” It seems to derive from the term

“unlawful combatants,” a label long used in international law to help

distinguish between conventional and unconventional prisoners of

war. Section A of this part describes the brief and murky history of

the term “enemy combatants” in American courts. Section B

discusses how its cognate, “unlawful combatants,” has functioned with

far greater precision in international law. Finally, Section C will

introduce the Foreign Intelligence Surveillance Act as an example of a

statutory response to the same problem presented by Quirin-the

problem of national security-in the area of wiretapping.

Judicial Origins of the Enemy Combatants Doctrine in Ex Parte Quirin

Quirin is the cornerstone of the enemy combatants’ doctrine. The

handful of subsequent Supreme Court decisions invoking Quirin have

developed this doctrine little, if at all. Unfortunately, the doctrine

produced by Quirin itself is hazy and highly fact-specific.


Quirin involved eight German-born men, all of whom had lived in

the United States at some point, and one of whom was believed to be

a naturalized American citizen. The men had attended a Berlin

sabotage school and received training in the use of explosives.” They

traveled clandestinely to the United States via submarine with the

mission of destroying transportation facilities and key elements of the

American aluminum industry. Four of these men landed via

submarine at Amagansett, Long Island, on the night of June 12,

1942. The four others landed days later at Ponte Verde Beach,

Florida.” All the men alighted wearing German military uniforms,

but they buried their uniforms and explosives upon landing and

dispersed to various parts of the country in civilian clothes.  By June

27, FBI agents had taken all eight men into custody in New York and

Chicago. )

The Federal Bureau of Investigation quickly publicized these

arrests to a public hungry for positive news on the war in Europe.

President Roosevelt ordered that the saboteurs be tried by a military

court, and he issued a proclamation on July 2 declaring that anyone

acting under the direction of hostile foreign powers was within the

jurisdiction of military tribunals.  On July 8, a military commission

convened in secret to try the saboteurs.

On July 29, the Supreme Court agreed to gather for a special

session to hear the saboteurs’ habeas petitions. The case was argued

for nine hours on July 29 and July 30. The weightiest argument

made by the defense was the applicability of the Court’s decision

eighty years earlier in Ex parte Milligan.” In Milligan, the Court

struck down the government’s attempted use of a military tribunal to

try an American citizen during the Civil War. Milligan involved an

Indiana resident arrested in his home state and put on trial before a

military commission on charges that included conspiracy against the

government, inciting insurrection, and violating the laws of war.” The

Milligan Court stated that military tribunals could not be used to try

“citizens in states which have upheld the authority of the government,

and where the courts are open and their process unobstructed.”

The Quirin Court was not swayed. Less than twenty-four hours

after arguments concluded, it issued a per curiam opinion stating that

the petitioners had failed to show cause for discharge by writ of

habeas corpus.’ The military trial of the saboteurs ended the next

day, and a few days later, the commission found all defendants guilty

and sentenced them to death. Six of the defendants in Quirin had

already been executed by the time the Quirin Court issued its full


In its opinion, the Court distinguished the facts of Quirin from

Milligan. It reasoned that the Milligan Court had found that 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.  Identified as an implied exception to Milligan’s

general rule, the concept of “enemy combatants” thus became the

dispositive factor in the Quirin Court’s analysis.

Importantly, the Quirin Court tied its definition of enemy

combatants very closely to these facts. It wrote:

Enemy combatant[s] who without uniform [come] secretly through

the lines for the purpose of waging war by destruction of life or

property, are familiar examples of belligerents who are generally

deemed not to be entitled to the status of prisoners of war, but to be

offenders against the law of war subject to trial and punishment by

military tribunals.

We can quickly identify three elements in this analysis: An enemy

combatant is a belligerent who (1) does not wear a uniform, (2)

secretly passes through the lines of battle, and (3) does so during

wartime. These elements fit neatly with the facts of Quirin. First, the

eight defendants had abandoned their German Marine Infantry

uniforms upon arriving in the United States. Second, they arrived

clandestinely “during the hours of darkness.  Third, the saboteurs

took these actions in the context of the United States’ formal

declaration of war against Germany, on whose behalf they brought

explosives “for the purpose of waging war by destruction of life or


These elements constitute the bulk of the doctrine on enemy

combatants that arises from Quirin. They represent the full extent of

the Supreme Court’s efforts to define the term “enemy combatant. ’57

For a more functional understanding of the term, one must look to

international military law.

The term “enemy combatants” seems to have derived from

“unlawful combatants,” a term that, although not included in the 1949

Geneva Conventions, has long been recognized in international

military law. Unlike the uncertainty surrounding enemy combatants,

there is general agreement about what unlawful combatants are and

how they should be treated. Unlawful combatants are combatants

who directly join in hostilities outside the limits imposed by the

international law of armed conflict. They include persons who have

“fallen into the power of the enemy” yet fail to meet the four criteria

necessary for prisoner-of-war status.”‘ First, prisoners of war must

have been “commanded by a person responsible for his

subordinates.” Second, they must have worn a uniform, or have “a

fixed distinctive sign recognizable at a distance.”‘  Third, they must

have carried arms openly.”‘ Lastly, they must have conducted “their

operations in accordance with the laws and customs of war.”

Persons not meeting all four of these criteria do not enjoy prisoner-of war


This does not necessarily mean, however, that persons who fail to

meet these criteria are automatically and immediately considered

unlawful combatants. Article 5 of the Geneva Convention Relative to

the Treatment of Prisoners of War provides that in cases of “any

doubt,” captured combatants should be given the opportunity for a

hearing before a tribunal.) Under the law of war, then, the United

States must give detainees in an armed conflict a hearing to determine

their status under the Geneva Convention in cases where their status

appears to be even slightly uncertain.

This provision establishes a bulwark against the old practice of

making Article 5 determinations arbitrarily and without scrutiny.

Detainees automatically enjoy prisoner-of-war status “until such time

as their status has been determined by a competent tribunal.

Therefore, Article 5 creates what is effectively a presumption of

innocence on the part of the detainee. Moreover, the power to

determine whether “any doubt” exists as to the status of a detainee

does not lie solely with the military. Article 45 of the 1977 Protocol

I to the 1949 Geneva Conventions provides that a detainee is

presumed a prisoner of war if, among other things, “he claims the

status of prisoner of war. Article 5 thus codifies in the law of war a

detainee’s right to argue in his own defense.

Article 5 also provides for the establishment of “competent

tribunals” to hear status disputes, although it does not specify the

composition of a “competent tribunal,” or what procedures it should

follow.  Generally speaking, this silence is not a serious problem in

conventional armed conflicts, where distinguishing between lawful

and unlawful combatants is not a very complicated matter. In a

conventional war, most prisoners taken are uniformed, carrying arms,

and part of a group under the immediate command of a single

officer. Thus, an informal and ad hoc procedure for classifying

lawful and enemy combatants is less problematic in a conventional

conflict than in one where, for example, one side does not wear

uniforms. American forces in World War II made Article 5 status

determinations in the following manner: Typically, persons of low

rank were responsible for making determinations that a detainee was

not entitled to prisoner-of-war status, and these determinations were

usually made with little deliberation. Such an informal classification

procedure, imported by analogy to the domestic setting by the

contemporaneous Quirin Court, may have worked in its context. But

an irregular conflict such as the “War on Terror” demands something

much more formal.

Vietnam was such an irregular conflict. There, the Army faced the

problem of how to make POW status determinations in an

unconventional war that made the Article 5 threshold of “any doubt”

seem much lower than it did in World War 11. The Army responded

by issuing a directive laying out a procedure for status hearings.

The directive provided that when a detainee had committed a

belligerent act, he would be referred to an Article 5 tribunal if any

doubt about his status existed or the detainee or someone on his

behalf claimed the detainee deserved POW status despite a

determination that the detainee was not a POW.  The tribunal

consisted of at least three officers, a majority of whom must have

voted in favor of denying POW status for the detainee to lose that

status. The detainee himself had a number of rights. He had the

right to a competent interpreter, a right to present his case with the

help of counsel, and the right to be present with his counsel at open

sessions of the tribunal.

The detainee had the right to select as counsel “anyone reasonably

available, including a fellow detainee. If no counsel were

reasonably available, the tribunal would appoint “a judge advocate or

other military lawyer familiar with the Geneva Conventions as

counsel” for him.7 ‘ The detainee’s counsel could present a range of

evidence: affidavits, real evidence, documents, and statements of the

detainee himself. He could call and cross-examine witnesses.”‘ He

had free access to visit and interview the detainee in private, and also

to confer privately with “essential witnesses,” including POWs.”

The international law of war, then, provides detailed procedures for

making determinations about the status of unlawful combatants. It

also includes safeguards to ensure status determinations are not made

unilaterally without regard for detainees’ ability to argue on their

behalf, either on their own or through counsel. In comparison, the

judicial doctrine on enemy combatants is sparse and undeveloped.

Judicial doctrine is not the only way the law regarding executive powers in situations involving national security has developed, of course. This law may also take statutory form, as it has in the area of wiretapping. Part C will show how, in contrast to the confusion surrounding enemy combatants, the law regarding electronic surveillance in situations involving national security is extremely detailed.

Electronic Surveillance Law Compared

Wiretapping law was not always highly developed. Indeed, it was once as murky as the enemy combatants doctrine. Before Congress passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968 wiretapping was effectively unregulated. In 1928, the Supreme Court in Olmstead v. United States  held that the Fourth Amendment’s protections against unreasonable searches and seizures did not apply to electronic eavesdropping. Government wiretapping continued essentially without restrictions for the next forty years.” It was not until 1967 that the Supreme Court held in Katz v. United States  that wiretaps were “searches” within the meaning of the Fourth Amendment, and consequently that the government must meet the

Constitution’s warrant and probable cause requirements when conducting electronic surveillance. Nevertheless, the Court specifically declined to extend its holding to cases involving national security.

A year later, Congress enacted Title I, the first federal statute to

regulate wiretapping in criminal investigations. Title III provided

that the government must meet a twofold probable-cause standard to

obtain a wiretap in a criminal investigation: (1) probable cause to

believe the individual targets of surveillance are committing one of

the crimes listed in the statute, and (2) probable cause that the

telephone or facility the government wants to tap is being used in

connection with that criminal activity, and that the wiretap will yield

“communications concerning” the activity.” To obtain a wiretapping

warrant under Title Il1, the government must also show that other

investigative procedures, such as the use of informants, are not likely

to work.

Following Katz’s lead, Title IIl explicitly exempted from its

coverage the government’s foreign intelligence gathering activities.”

However, demand for restrictions on the wiretapping authority of the

Central Intelligence Agency and Executive branch took root amidst

the widespread public distrust engendered by the Watergate scandal.

In 1976, the Senate Select Committee to Study Government

Operations with Respect to Intelligence Activities published a harshly

critical report on the government’s use of electronic surveillance.

The Committee compiled a litany of abuses of executive power,

including President Franklin D. Roosevelt’s authorization of wiretaps

of “persons suspected of subversive activities against the Government

of the United States,” and Attorney General Robert Kennedy’s

wiretapping of news reporters, Malcolm X, and the Rev. Martin

Luther King, Jr. In 1978, responding to the perceived need to curb

such executive abuses, Congress passed the Foreign Intelligence

Surveillance Act (“FISA”).

The foreign intelligence version of Title III, FISA uses a probable

cause standard that is more relaxed than that of Title III. Under

FISA, agents must make a showing that there is probable cause that

the target of surveillance is a “foreign power” or an agent of a foreign

power. In cases involving U.S. citizens, the government must show

that the target is acting for or on behalf of a foreign power, or is aiding

or conspiring with any person acting for or on behalf of a foreign

power. Unlike Title III, FISA does not require a showing of

criminal activity on the part of the target unless the target is an

American citizen suspected of spying for a foreign power; in those

cases the government must only show the target’s activities “may

involve” a violation of U.S. criminal law.”

In applications for FISA warrants, the government must also certify

that a significant “purpose of the surveillance” is “to obtain foreign

intelligence information, and that this information “cannot

reasonably be obtained by normal investigative techniques. The

government must also include its basis for these certifications.”‘ It

must state how long it will need to maintain surveillance, and if it

wants to continue surveillance indefinitely, the government must

produce facts supporting its belief that it will obtain additional

information of the same type as the information it seeks

immediately. Surveillance applications are reviewed by the FISA

court, made up of eleven federal district court judges nominated by

the Chief Justice of the United States.By statute, the FISA court

cannot approve the government’s request unless it finds probable

cause supporting the government’s belief that the surveillance target

“is a foreign power or an agent of a foreign power.”

Unlike the law regarding physical detentions of enemy combatants

within the U.S., which has remained murky and undeveloped over the

last fifty years, the law regarding electronic surveillance for foreignintelligence

gathering purposes is clear. As opposed to Quirin’s

enemy combatants doctrine, FISA provides a detailed set of

procedural safeguards. These safeguards are designed to curb abuse

of executive power without hampering the government’s ability to

conduct wiretaps in national security cases.”‘

Difficult questions arise in the case of enemy combatant detainees.

How long may the government hold suspects without charging them?

May detainees have access to counsel or the right to a hearing? Is the

government’s determination that an individual is an enemy combatant

reviewable by courts? If it is, by what standard? Part II explores the

ways two contemporary cases have raised, and largely failed to

answer, these questions.



Compare the situation of an enemy belligerent detained in South

Vietnam with that of an enemy combatant detainee such as Jose

Padilla. For more than nine months, Padilla has been held

incommunicado, with no access to counsel, or, for that matter, access

to anyone. He has not been charged with a crime, and the

government has given him no status hearing. The distinction is

clear-a U.S. citizen detained as an enemy combatant has significantly

fewer rights than a hostile enemy belligerent captured in foreign

territory by U.S. troops during an armed conflict.

The rights of enemy combatant detainees will be settled in

upcoming litigation. Padilla v. Bush”. and Hamdi v. Rumsfeld’  are

parallel enemy combatants cases, one of which may well become the

first “enemy combatants” case to reach the Supreme Court in sixty

years. If the government succeeds in its use of this undefined term

to detain U.S. citizens indefinitely, it will have a weapon of extremely

broad reach.

A. Hamdi v. Rumsfeld: A Circular Trap

Like Padilla, Yaser Esam Hamdi is a U.S. citizen.”‘ American and

allied forces captured Hamdi in Afghanistan as part of the military

operation authorized by Congress following the attacks on the

World Trade Center and Pentagon on September 11, 2001.

American troops transferred Hamdi in the fall of 2001 to Camp XRay

in Guantanomo Bay, Cuba, where he was held along with other

prisoners captured in the Afghanistan conflict. In January 2002,

when it became clear that he had been born in Louisiana, and was

therefore a U.S. citizen, authorities brought Hamdi to the Norfolk

Naval Station Brig, where the government sought -to detain him

indefinitely as an enemy combatant.

Hamdi’s father, Esam Fouad Hamdi, filed a petition for a writ of

habeas corpus on behalf of his son. The trial court appointed the

Federal Public Defender as counsel. The court also granted the

Public Defender access to Hamdi in a meeting that would be “private

between Hamdi, the attorney, and the interpreter, without military

personnel present, and without any listening or recording devices of

any kind being employed in any way. Moreover, the meeting was

to occur at least three days before the government filed its response to

Hamdi’s brief.

On interlocutory appeal, the Fourth Circuit reversed and

remanded. 12 In reaching its decision, the Hamdi court focused on

what it saw as the exceptional circumstances that made the order

unlike the “garden-variety appointment of counsel in an ordinary

criminal case,” a decision that would have been well within the

discretion of a trial court. The Fourth Circuit focused on Hamdi’s

characterization as an enemy combatant:

There is little indication that the [district] court gave proper

weight to national security concerns. The peremptory nature of the

proceedings stands in contrast to the significance of the issues before

the court. The June 11 order does not consider what effect

petitioner’s unmonitored access to counsel might have upon the

government’s ongoing gathering of intelligence. The order does not

ask to what extent federal courts are permitted to review military

judgments of combatant status. Indeed, the order does not mention

the term enemy combatant at all.

Instead, the June 11 order apparently assumes (1) that Hamdi is

not an enemy combatant or (2) even if he might be such a person, he

is nonetheless entitled not only to counsel but to immediate and

unmonitored access thereto.

The Fourth Circuit also noted that because the trial court had allowed

Hamdi to meet with his lawyer before the government had an

opportunity to present its arguments, the order failed to create “even

a modest foundation” for review at the appellate level. 123

On remand, the district court held a hearing in which it asked the

government a series of fundamental questions about the nature of the

hostilities pursuant to which Hamdi was being detained. Relating to

the indefinite nature of the detention, the court asked, “will the war

never be over as long as there is any member [or] any person who

might feel that they want to attack the United States of America or

the citizens of the United States of America?’ The court directed

the government to answer these questions in a response to Hamdi’s

petition. The government filed a response that included an affidavit

from Michael Mobbs, the Special Advisor to the Under Secretary of

Defense for Policy.  The Mobbs declaration confirmed that the

government had declared Hamdi to be an “enemy combatant,” and

gave the government’s account of Hamdi’s seizure12′ and his

subsequent transfers to Camp X-Ray and the Norfolk Navy brig. 29

The district court then held a hearing to review the sufficiency of the

Mobbs declaration.

At this hearing, the district court noted, in accordance with the

Fourth Circuit’s instructions,”‘ that “the government is entitled to

considerable deference in detention decisions during hostilities.

Nonetheless, it issued an opinion finding that the Mobbs declaration

fell “far short” of supporting the detention, and ordered the

government to turn over a list of materials to supplement its response

to Hamdi’s petition. These materials included copies of all

statements by Hamdi and the notes taken from all interviews with

him; a list of every person who had interrogated Hamdi; copies of any

statements made by Northern Alliance members regarding Hamdi’s

surrender; “the name and title of the individual within the United

States Government who made the determination that Hamdi was an

illegal enemy combatant”; and the screening criteria that the

government used to determine Hamdi’s status.

The government again appealed to the Fourth Circuit, which

reversed the district court’s order and remanded the case with

directions to dismiss Hamdi’s petition. In its opinion, the Fourth

Circuit rejected Hamdi’s argument that he was entitled to an Article 5

status hearing. It reasoned that the Geneva Convention is not a

“self-executing  document that evinces an intent to provide a

private right of action to individual petitioners. Moreover, the court

wrote, even though unlawful combatants are entitled to a status

hearing, “they are also subject to mere detention in precisely the same

way that lawful prisoners of war are. The Fourth Circuit’s

rationale for rejecting the district court’s order, meanwhile, focused

on the practical problems that the order posed to the government in

the context of an ongoing military campaign.

The court based its decision to dismiss Hamdi’s petition on the level

of extreme deference due to the President’s exercise of his powers

as Commander-in-Chief in time of war.  The court described a two

pronged inquiry: First, the government must have the legal authority

to detain Hamdi; and second, the government must have supplied

basic facts necessary to support a legitimate use of that authority.

The Fourth Circuit found both prongs satisfied, the legal authority

stemming from Article II, Section 2 of the Constitution, the source of

the President’s war powers,  and the necessary factual support

supplied by the Mobbs Declaration. Of the district court’s close

scrutinizing of the declaration, the court wrote:

To be sure, a capable attorney could challenge the hearsay nature

of the Mobbs declaration and probe each and every paragraph for

incompleteness and inconsistency [B ut] [w]e are not here dealing

with a defendant who has been indicted on criminal charges in the

exercise of the executive’s law enforcement powers. We are dealing

with the executive’s assertion of its power to detain under the war

powers of Article II.

The Fourth Circuit’s application of Quirin, then, leaves Hamdi

stuck within the circular trap created by the enemy combatants

doctrine: The determination that he is an enemy combatant denies

him the means-a capable attorney-of challenging that very


B. Padilla v. Bush: No Guidance from Quirin

On December 4, 2002, Judge Michael Mukasey of the U.S. District

Court for the Southern District of New York ruled that Jose Padilla

must be allowed to meet with an attorney-a right the government

had denied him for some six months after transferring him to a naval

brig in South Carolina.147 The Court also ruled that it had the

authority to determine whether the government’s classification of

Padilla as an enemy combatant was proper.

However, because the district court narrowly tailored its ruling to the

circumstances of Padilla’s habeas petition, it left open some of the most

fundamental questions about the rights of enemy combatants, such as whether

all detainees should have such procedural protections as the right to a

fair hearing and access to counsel.

In its brief in the Padilla case, the government responded to each of

Padilla’s constitutional challenges under the Fourth, Fifth, and Sixth

Amendments in the same manner: by pointing to his status as an

enemy combatant.’ For example, Padilla’s invocation of the Fourth

Amendment’s probable cause requirement, the government argued,

presupposes that the warrant requirement applies in the first place.””

But the warrant requirement does not apply “in the context of the

capture and detention of an enemy combatant in the field of war.” ‘

This reasoning has an obvious appeal to the government. An

executive determination that a citizen is an enemy combatant is

immune to all constitutional challenges because that determination

places that citizen outside the purview of the Constitution itself.

The district court decided to allow Padilla to present facts through

counsel, but based that decision narrowly on the facts of Padilla’s

case. 52 Rather than looking to the Sixth Amendment rights of enemy

combatant detainees in general, Judge Mukasey based his decision on

the rights of a petitioner in a habeas proceeding.’53 These rights, the

court noted, sprang from the statute granting federal district courts

the authority to issue habeas writs, and two related statutes outlining

procedural guidelines for habeas proceedings.’54 The court rejected

Padilla’s Sixth Amendment argument on the grounds that the

President’s executive determination that Padilla is an enemy

combatant placed him outside the protections of the Sixth

Amendment. 5′ However, it took care to note that Padilla’s right to

counsel hinged largely on the peculiar facts of his case, which it

distinguished from those in Harndi, where the Fourth Circuit had

reversed a district court’s grant of unmonitored access to counsel.156

In Padilla, the district court stressed that the government could

monitor Padilla’s conversations with his lawyers. 57 Additionally, the

court noted that unlike Hamdi, Padilla had been granted access to

counsel during his initial detention on a material witness warrant

before the government designated him an enemy combatant.

Therefore, the court reasoned, “no potentia! prophylactic effect of an

order barring access by counsel could have been lost” by granting

access to counsel.

Perhaps most importantly, the district court accepted the very

deferential standard of review for enemy combatant determinations

sought by the government.'” In its brief, the government had argued

for a standard of review barely more rigorous than no review at all:

“[Rieview is limited to confirming based on some evidence the

existence of a factual basis supporting the determination.

Accepting the government’s separation-of-powers argument that a

court’s ability to review executive decisions is limited,’63 the district court wrote

that it would apply the deferential “some evidence” test once Padilla had presented

facts in his favor.”6 It is likely, however, that any facts Padilla might present will

have little effect, because the standard of review does not seem to allow for any sort of weighing of evidence.

Rather, it would seem there either is or is not “some evidence” to support a

determination-contrary evidence notwithstanding. Significantly, the district court did not attempt to specify what an enemy combatant is. On the contrary, it plainly noted the lack of case law on the subject. “It would be a mistake,” the court wrote, “to create the impression that there is a lush and vibrant jurisprudence governing these matters. There isn’t. Quirin offers no guidance regarding the standard to be applied in making the threshold determination that a habeas corpus petitioner is an unlawful combatant. Given this lack of guidance, it is safe to say that courts will continue to have difficulty analyzing enemy combatants determinations made by the government. The vagueness of the term “enemy combatants” and the extremely deferential standard of review sought by the government and accepted by the district court in Padilla may well transform judicial review of enemy combatant determinations into rubber-stampings of detentions.

Moreover, whatever analysis courts attempt will likely be

hamstrung by the difficult task of construing Quirin in a post-

September 11 context. Quirin’s discussion of enemy combatants

was rooted in the context of a conventional war very unlike the

United States‘ current anti-terrorism program. Unlike a conventional

war, a “war on terror” does not engage hostile governments with

defined borders. This conflict, as the Bush Administration has

repeatedly noted over the last year, may extend indefinitely as an

ongoing national security effort. In this context, an uncritical

importing of Quirin might support the government’s authority to

detain citizens as enemy combatants for years on end with very little

scrutiny by courts. Without a set of procedural safeguards-including

a detainee’s right to present facts through counsel and a probablecause

standard which the government must satisfy to justify

detentions-the category of “enemy combatants” may become a

juggernaut for the government.


Flawed Alternatives

This is not to say that the government does not have very real

concerns. A war on terror is unlike a conventional war. But terrorism

is also unlike conventional crime, and it poses very different

challenges to both law enforcement and the military. These

challenges complicate the viability of the clear alternative to the

government’s use of military tribunals and the enemy combatants

doctrine: civilian courts applying the normal rules of criminal procedure.

The Problem of Secrecy

The most common objection to giving suspected terrorists the full

constitutional protection of civilian courts Hinges on the issue of

secrecy. Granting suspect’s unfettered access to counsel may allow

them to pass coded information to other operatives on the outside.

According to the government, access to counsel also may “interfere

with-and likely thwart-the efforts of the United States military to

gather and evaluate intelligence about the enemy, its assets, its plans,

and its supporters.” This logic relies on the notion that one of the

main functions of counsel is to clamp down on the government’s

aggressive questioning of criminal suspects, and it is likely correct that

is, a competent attorney will thwart the sort of unconstitutional

interrogation techniques that the government might be tempted to use

against a suspect it believes has information that could save lives.


Proponents of military tribunals also point to the problem of

classified or sensitive information, which, for security reasons,

prosecutors may be reluctant to present as evidence in a civilian trial.

In the embassy bombing trial, for example, prosecutors entered into

evidence a 180-page translated document entitled “Military Studies in

the Jihad Against the Tyrants. This document instructed readers

on the use of rifles and pistols for assassinations, on the endurance of

torture, and on encryption methods; and gave guidelines for renting

safe houses and storing illegal weapons. Supporters of military

tribunals have blasted the publicizing of this “terror manual” in open

court. As one Wall Street Journal editorial put it: “By entering the

manual into evidence, the U.S. was telling al Qaeda that it knew its

operating procedures and inviting it to change course. This was bad

enough during peacetime, but in the middle of a war against terrorism

it’s akin to disclosing troop movements.


The trial of Zacarias Moussaouialso illustrates the difficulties prosecutors face in this setting. During his trial in federal district court, Moussaoui demanded and received access to an al Jazeera television interview with Ramzi bin al Shibh, a Yemeni who prosecutors believe helped organize the September 11 attacks.

This development has put prosecutors in a serious bind. Moussaoui’s right

to access witnesses who could help prove his innocence, guaranteed

under the Sixth Amendment,1 79 has led his lawyers to demand that

four senior al Qaeda leaders in American custody, including bin al

Shibh and alleged September 11 mastermind Khalid Shaikh

Mohammed, be called to testify at his trial.” Judge Leonie M.

Brinkema of the Eastern District of Virginia has ordered the

government to provide Moussaoui with access to bin al Shibh, but

indefinitely postponed the trial while the government appeals the

order to the Fourth Circuit.” The government has indicated that if it

loses this appeal, it will likely scuttle the trial altogether and try

Moussaoui in military court.


The question of fairness with regard to defendants goes hand in

hand with concerns about secrecy. Leaks plagued the trial of the 1993

World Trade Center bombers” 3 from the onset, possibly prejudicing

potential jurors against the defendants, according to defense

attorneys.  Gag orders may ameliorate this problem somewhat.

However, relying on gag orders in matters of national security may

carry serious risks, especially because such orders are often ineffective

or overturned. In the World Trade Center case, for example, Judge

Kevin Thomas Duffy issued a sweeping gag order barring attorneys

from making statements to the press that might prejudice potential

jurors.’ Despite that order, prejudicial documents were leaked to

reporters before introduction as evidence, including hundreds of

pages of transcripts from telephone surveillance conducted by an FBI

informant.  The Second Circuit eventually overturned Judge Duffy’s

gag order as unconstitutionally broad.


Proponents of military tribunals may also argue that the problem of

leaks undermines the argument that defendants would necessarily

receive fairer treatment in civilian courts than in military tribunals.

Empirical evidence suggests, however, that the notion that military

tribunals serve as little more than rubber stamps for prosecutors may

be vastly overstated. While military commissions convicted around

85% of the more than 3000 people tried before them since World War

I,188 the conviction rate for civilians tried on criminal charges in the

Southern District of New York in 2001 was 97.2%, including guilty

pleas and dispositions at trial.


The question of how the government and courts should approach

the issue of enemy combatants requires a delicate balancing act, then.

At the extremes sit two sets of unsatisfactory alternatives. On the one

jeopardize continuing intelligence gathering efforts. On the other

hand, the harsh application of the enemy combatants doctrine by

executive power may create a perverse system in which individuals

lose basic constitutional rights if the government’s case against them is

too weak to yield charges. Clearly, the government needs a set of

procedural safeguards that provide a framework to guard against

executive abuse but still allow broad counter-terrorism authority.




To find an example of such a framework, one need only look to the

requirements set out in FISA governing electronic eavesdropping on U.S. citizens. FISA is itself regarded by critics as a draconian measure carried out in such extreme secrecy as to raise serious Fourth Amendment concerns. Yet FISA contains precisely the sort of procedural guidelines and safeguards that are necessary to curb executive abuse-safeguards that, although minimal, the government has sought to avoid in the Hamdi and Padilla cases.

FISA’s Baseline Protections

In cases involving electronic surveillance of “United States

persons,” the government’s application for wiretapping authority

under FISA must include a statement of the facts and circumstances

that justify the government’s belief that the surveillance target is “a

foreign power or an agent of a foreign power.” The application

must certify that the purpose of the wiretap is the gathering of foreign

intelligence information and that normal investigative techniques

will not be sufficient to obtain this information. The government’s

application must also include its factual basis for these certifications.’

The question of duration is of particular relevance to enemy

combatants detentions. In FISA applications, the government must.

If the evidence were stronger, we can assume the government would, in many

cases at least, simply prosecute such suspects.


 ENEMY COMBATANTS estimate the time it will need to maintain a wiretap. If it wants tocontinue a wiretap indefinitely, it must produce specific facts that

support its belief that an open-ended time frame is necessary.

The standard the government must meet is whether an indefinite time

frame will produce additional information of the same type as the

information it presently seeks.

The Probable Cause Standard and the Ticking Bomb Scenario


FISA’s probable cause standard creates an important safeguard

against abuse that does not unreasonably interfere with the

government’s intelligence gathering activity. Recall that the Act

provides that the FISA court, which is in charge of reviewing

surveillance applications, cannot approve the government’s request

for a wiretap unless it finds probable cause exists to believe that the

surveillance target “is a foreign power or an agent of a foreign

power.”  The statute generally does not require the government to

show any criminal activity by the wiretap target, except for wiretaps of

American citizens suspected of spying for a foreign power, in which

case the government must show that the activities of the target “may

involve” a violation of U.S. criminal law.


This standard has hardly hampered the government’s ability to

conduct surveillance. Because the FISA court operates in extreme

secrecy, having issued just one opinion in its twenty-five years of

operation, complying with the statute’s requirements has never

compromised any classified foreign intelligence information.?”

Moreover, the FISA Court approved all 932 of the Justice

Department’s requests for intelligence warrants in 2001 alone, and

has only denied one request since its inception over twenty years ago.


Perhaps the most compelling objection to a probable cause

requirement is the hypothetical “ticking bomb” scenario. The phrase

“ticking bomb” refers to a scenario in which investigators have

credible intelligence about the existence of an imminent threat usually,

as the phrase implies an explosive device-that will take the

lives of many civilians unless defused by government authorities.

The conventional application of this hypothetical involves the situation

where government agents have in custody a suspected terrorist but do

not know the bomb’s location. Some commentators have concluded

that the use of torture is justified in such situations.? A more general

use of the ticking bomb hypothetical, however, has achieved

prominence in public discourse about the government’s anti-terrorism

activities. Its application to the issue of enemy combatant

detentions contemplates a situation where investigators have

information that a given suspect will soon cause civilian deaths, but

lack sufficient cause or time to detain the suspect through the normal

rules of the criminal justice system. Should these investigators be

powerless to take the necessary action to prevent civilian deaths? To

many Americans, after the World Trade Center attacks of 2001, such

a result seems anathema.


However, the ticking bomb scenario presents a false dilemma.

Courts have developed the exigent circumstances doctrine to deal

with precisely such a situation in the Fourth Amendment setting.

Although the Supreme Court has held that searches made without a warrant are presumptively unreasonable under the FourthAmendment, this principle softens in exceptional situations whereexigent circumstances justify the warrantless entry of governmentagents. Similarly, in the national security context, FISA specificallyoutlines procedures for exigent circumstances. FISA allows theAttorney General to approve surveillance for twenty-four hourswithout a FISA court order if he or she reasonably finds that someemergency exists that prevents the government from obtaining a FISA court order, and that the factual basis that would have been needed to procure an order is present.

Certainly government agents should have similar emergency powers

to take a U.S. citizen into custody when they have good reason to

believe that citizen poses an imminent and grave threat to national

security. But they should not be allowed to do so without fear of

scrutiny. In recognition of the importance of the need for some

constraints on governmental discretion, FISA provides for criminal

sanctions against persons either engaging in unauthorized surveillance

or knowingly disclosing or using information obtained through such

surveillance. FISA also creates a private right of action against

violators, including both actual and punitive damages.

Similar constraints should be placed on government warrant are presumptively unreasonable under the Fourth Amendment, this principle softens in exceptional situations where exigent circumstances justify the warrantless entry of government agents. Similarly, in the national security context, FISA specifically outlines procedures for exigent circumstances. FISA allows the

Attorney General to approve surveillance for twenty-four hours

without a FISA court order if he or she reasonably finds that some

emergency exists that prevents the government from obtaining a FISA

court order, and that the factual basis that would have been needed to procure an order is present.

 Probable Cause and Enemy Combatants

Probable cause is most likely not too high a standard for enemy

combatant detentions. This is the standard of grand jury trials, where

prosecutors enjoy a phenomenally high success rate of indictments.

Statistics published annually by the Department of Justice routinely

show grand jury dismissal rates below 1%. Prosecutors have

compiled these records while seeking indictments in cases where

national security is not at risk. One would think that this success rate

would not be diminished when the government possesses an interest

as compelling as national security.

In cases such as Padilla’s, the government should be forced to show

probable cause to continue detentions indefinitely.


Assuming a good deal of FISA  surveillance is never detected by the targets of the surveillance, it seems reasonable to expect a great deal more litigation over the issue of unlawful detention of citizens as enemy combatants, where the detainee can hardly be expected to be unaware of his wrongful detention.


Michael H. Mobbs, however, attached to the government’s brief in

the Padilla case to support the determination that Padilla is an enemy combatant, suggests Padilla’s extended detention may be unwarranted. The declaration explained that Padilla’s connection to al Qaeda was based largely on reports of interviews with several confidential sources, two of whom the government believes have direct connections to the al Qaeda network. It also acknowledged that “[s]ome information provided by the sources remains uncorroborated and may be part of an effort to mislead or confuse U.S. officials.


Upon his release from prison in 1991, Padilla took the name

Ibrahim Padilla, according to the Mobbs Declaration.1 5 Padilla

moved to Egypt in 1998, and afterwards traveled to Pakistan, Saudi

Arabia, and Afghanistan. ‘ In Afghanistan in 2001 he met with al

Qaeda lieutenant Abu Zubaydah, with whom he developed a plan to

build and detonate a radiological bomb in the United States. The

Declaration alleges that Padilla also met with other senior al Qaeda

members in Pakistan in 2000. It does not claim that the threat to the

United States posed by Padilla was in any way imminent.

The declaration noted, “The Dirty Bombplan of Padilla  and [Abu Zubaydah] allegedly was still in the initial planning stages, and there was no specific time set for the operation to occur.”

The plan allegedly included stealing radioactive material from within the

United States once Padilla had returned, but federal agents arrested

Padilla immediately upon his arrival in Chicago.221 Moreover, one

intelligence official described the research that Padilla conducted

regarding the building of a dirty bomb as consisting of “basically

surfing the Internet. ‘Furthermore, Deputy Defense Secretary Paul

Wolfowitz told reporters that “there was not an actual plan.

We stopped this man in the initial planning stages.”


Even if the government could satisfy a probable cause standard to support Padilla’s detention, as long as Padilla remains confined without benefit of something approximating an Article 5 status hearing, doubts will linger. The Mobbs Declaration raises as manyAppointed by President Bush, Mobbs heads the Detainee Policy Group for the Under Secretary of Defense for Policy. Government Brief questions as it answers, and the questions it raises suggest that Padilla’s status crosses the low threshold that a detainee need pass in order to secure a hearing under the law of war: the existence of “any doubt” about the detainee’s status.


The government often curtails individual rights during armed conflicts, and courts have often been unwilling to curb the government as long as those conflicts persist. Milligan was safely decided more than a year after the Civil War had ended. The Court validated the internment of Japanese Americans in 1944, but two years later, the hysteria of wartime having passed, it invalidated the imposition of a martial law regime in Hawaii. Quirin, too, was very much a product of its time.

Richard Quirin was a German executed as an enemy agent for the Germans in World War II. He was one of eight agents involved in Operation Pastorius, and gave his name to the Supreme Court decision on the trial, Ex parte Quirin.


In the words of Chief Justice William Rehnquist:

It is worth noting that this decision was made in the dark days of the summer of 1942, when the fortunes of war of the United States were just beginning to recover from their lowest ebb.

The United States Navy had suffered serious damage to its fleet at Pearl Harbor, and Japanese troops invading the Philippines had pushed the United States troops back onto the Bataan Peninsula, resulting in the grisly Bataan death march. In North Africa, German forces had recaptured Tobruck and were within striking distance of Cairo, threatening the entire Mid East. Civil liberties were not high on anyone’s agenda, including that of judges.

One could say the same for the post-September 11 climate in America.

The dismal history of civil liberties in wartime underscores the importance of guaranteeing basic rights. Citizens detained as enemy combatants should have the right to a hearing that approximates an Article 5 status hearing. They should have the right to competent counsel, to present evidence, and to cross-examine key witnesses.


These hearings should use a probable cause standard. As under FISA, lengthy or indeterminate detentions should be subject to a renewal procedure wherein the government must show the continued existence of cause to hold the suspect. Lastly, detainees should have recourse to civil liability in cases of unlawful detention.

 Such safeguards would not render this process entirely safe from government overreaching. Indeed, turning enemy combatant detentions into a routine administrative procedure similar to obtaining FISA warrants would be a truly harrowing scenario for civil libertarians. But the use of the enemy combatants doctrine to hold U.S. citizens indefinitely in military custody while civilian “courts are open and their process unobstructed threatens to effect a more drastic departure from the rule in Milligan than the Quirin Court ever imagined.

A workable set of procedural safeguards can soften this departure, allowing the government to combat domestic terrorism without the cloud of constitutional illegitimacy.







Fisa stories

Traitors and Spies in the Time of War: How the Supreme Court

The Story of Ex parte Milligan

David Rudge, Targeted killing – effective anti-terror or counterproductive?,

William H. Rehnquist, Remarks at the 100th Anniversary Celebration of the

Norfolk and Portsmouth Bar Association, Norfolk, Virginia (May 3, 2000), available

at http://www.supremecourtus.gov/publicinfo/speeches/sp-05-03-00.html;

see also

William H. Rehnquist, All the Laws but One: Civil Liberties in Wartime

Most famously, in his 2002 State of the Union address, President Bush used

the ticking-bomb metaphor to justify the United States’ response to the attacks of

September 11. Bush told Americans that “[thousands of dangerous killers, schooled

in the methods of murder, often supported by outlaw regimes, are now spread

throughout the world like ticking time bombs, set to go off without warning.” George

W. Bush, Address Before a Joint Session of the Congress on the State of the Union

(Jan. 29, 2002) available at

http://www.whitehouse.gov/news/releases/2002/0l/20020129-1 1.html

(192. See, e.g.,foreign intelligence surveillance act hearings before the Subcomm

 theon Courts, Civil Liberties, and the Admin. Of Justice of the Comm. on the Judiciary, H.R., 98th Cong. 27 (1983) (statement of’ Mark Lynch, Attorney, ACLU) (“Our principal problem with FISA is that we simply do not know whether it is working well or badly because of the extraordinary secrecy which cloaks the operations of the relevant Executive Branch agencies and the Foreign Intelligence Surveillance Court.”)

Suspect Stirs New Fears About al Qaeda

.” Id.

185. “‘The next time I pick up a paper and see a quotation from any of you, you

had better be prepared to pay some money,’ Duffy said. The first fine would be $200,

the second $4,000, the third $160,000, the fourth $25.6 million, and so on.” Laurie C.

Merrill, SEPTEMBER TRIAL SET IN BLAST; U.S. Judge Imposes Gag Order, Threatens Fines,

Bergen Record, Apr. 2, 1993, at A3.

186. See, e.g., Peter Pringle, Tapes reveal role of FBI in bombing,

The Independent (London), Nov. 9, 1993, at 15.

187. UNITED STATES v. SALAMEH, 992 F.2d 445, 447 (2d Cir. 1993) (vacating order prohibiting attorneys from making statements that “have anything to do with [the] case” or that even “may have something to do with the case” as overbroad (emphasis omitted)).

188. John P. Elwood, Prosecuting the War on Terrorism: The government’s position on attorneyclient monitoring, detainees

, 17 Crim.

Just. 30, 51 (2002).

Safeguarding the Enemy Within:


The Fordham Law Archive of Scholarship and History.

For more information, please contact tmelnick@law.fordham.edu.


Recommended Citation Thomas J. Lepri, Safeguarding the Enemy Within: The Need for Procedural Protections for U.S. Citizens Detained as Enemy Combatants

Under Ex Parte Quirin, 71 Fordham L. Rev. 2565 (2003).

Available at: http://ir.lawnet.fordham.edu/flr/vol71/iss6/5


See Ric Simmons, Reexamining the grand jury: is there room for Democracy in the Criminal Justice System?

(citing figures showing dismissal rate of less than 1% for each year between 1990 and 1998, and statistics showing an indictment rate greater than 99.8% in 1993).

Philip Shenon, Court Papers Show Moussaoui Seeks Access to Captured Al Qaeda

 N.Y. Times, Nov. 1, 2002, at 20.

179. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy

the right to have compulsory process for obtaining witnesses in his favor…”).

180. Philip Shenon, A Nation at War: the Terror Suspect; Man Charged in Sept. /1

Attacks Demands That Qaeda Leaders Testify, N.Y. Times, Mar. 22, 2003, at B12.

181. United States v. Moussaoui, No. 01-455-A (E.D. Va. Feb. 12, 2003) (granting

in part and denying in part government’s motion for stay). See also Philip Shenon,

Threats and Responses: The Terror Suspect; Judge Grants the Government a Delay of

Moussaoui’s Trial, N.Y. Times, Feb. 12, 2003

25 Harv. J.L. & Pub. Pol’y 591, 607-08; James Orenstein, Rooting Out Terrorists Just Became Harder, N.Y. Times, Dec. 6, 2001, at A35. However, the burdens that civilian courts place on prosecutors may render the government unable to pursue what it claims is the main thrust of its anti-terrorism activities: preventing terrorism before it happens. This fear seems to be supported by the Clinton administration’s refusal in 1996 to take Osama bin Laden into custody from Sudan because U.S. prosecutors lacked sufficient evidence to indict bin Laden in an American court. See Barton

Gellman, U.S. Was Foiled Multiple Times in Efforts to Capture Bin Laden or Have

Him Killed; Sudan’s Offer to Arrest Militant Fell Through after Saudis Said No, Wash.

Post, Oct. 3, 2001, at Al.