DO HAMDI AND PADILLA NEED COMPANY?
Why Attorney General Ashcroft's Plan To Create Internment Camps For Supposed Citizen Combatants Is Shocking And Wrong

By ANITA RAMASASTRY
Wednesday, Aug. 21, 2002

As recent news reports have related, Jose Padilla and Yaser Hamdi are two American citizens and "war on terrorism" suspects. Padilla is the alleged "dirty bomb" conspirator; Hamdi is an alleged Taliban member captured in Afghanistan.

If Padilla and Hamdi are feeling lonely, they may soon have company. Attorney General Ashcroft and the White House are considering creating a military detention camps for all U.S. citizens deemed by the administration to be enemy combatants.

Internees in this special camp will be treated just as Padilla and Hamdi have been so far - as if they did not possess the basic, traditional rights that can be invoked by U.S. citizens suspected of crimes. Even persons accused of treason have the right to these protections. (The Rosenbergs, to take one example). But according to the government, Padilla, Hamdi, and other American citizens interned in the camps do not.

Why not? Because the internees will be deemed enemy combatants. By whom? By the military alone - without any right to judicial review in a federal court or otherwise. The government's position is that its own decision as to who is an enemy combatant is binding on federal courts, and that it need not even offer the courts individualized facts to support particular detention decisions. (The government made this position crystal clear recently in the Hamdi case; today's column by Michael Dorf explores the problems with it in depth.)

We now are faced with a scary prospect - indefinite detention of multiple citizens because the government decides they are dangerous. The mere suggestion of camps or group detention facilities implies that the Executive is, in fact, considering using its newfound citizen-combatant detention program on a broader scale.

If this sounds frightening, that's because it is. As a country, we still remember the government's shameful internment of Japanese Americans during World War II - a measure the U.S. Supreme Court, in a blot on the Court's record, approved in Korematsu v. United States.

Ashcroft and the Administration will doubtless attempt to distinguish this historical precedent based on the fact that Japanese Americans were innocent civilians presumed to be disloyal, whereas there will supposedly be some evidence of disloyalty on the part of those modern day American citizens interned in Bush Administration camps. But in both cases, the government arrogated itself the right to detain - and detain indefinitely - without court review of its decisions as to who should be detained.

The main distinction is that Ashcroft's camps are smaller in scale. The difference in magnitude should not make the internment of U.S. citizens any more just or palatable.

Americans don't seem to care, but they should care - and care deeply. These are potential detentions of American citizens that can go on forever, according to the government, without judicial review, and without any charges being brought or trial conducted. The war on terrorism is a war without boundaries, belligerent nations and time limits.

The Plan: A Compound for Citizens Deemed Combatants

And Goose Creek may not be the only location. An LA Times editorial recently suggested that the proposal for detention camps is broader.

Under one proposal, citizens could be interned and subjected to military detention if a committee - of the Attorney General, the Secretary of Defense and the Director of the Central Intelligence Agency - so decided. Again, no court would be involved at any stage of the process.

There is already another possible U.S. citizen candidate for Goose Creek. James Ujaama, who is from Seattle, was arrested last month as part of an investigation into alleged plans to set up an al Qaeda-linked training camp in rural Oregon. (Ujaama is currently jailed in Alexandria, Virginia.)

Aren't Military Detention Camps for U.S. Citizens Prohibited by U.S. Law?

Critics of the White house plan point to a 1971 law they say should prohibit it. The law was inspired in part by the internment of Japanese-Americans. It says quite clearly that "no citizen shall be imprisoned or otherwise detained by the United Sates except pursuant to an Act of Congress." No such Act has yet been passed to authorize the use of the detention camps. Congress has previously articulated a clear public policy against detainment of U.S. citizens.

That might seem to be the end of the story: without legislation, American citizens cannot be detained. There will be no camps, because the Bush Administration cannot act alone - all citizens, through their representatives, will vote on the internment camps that might someday hold them, too.

The administration asserts, however, that the law doesn't apply to enemy combatants. Its position is that the executive - and the executive alone - can set up and populate citizen-combatant internment camps, without any involvement by either the legislature or the judiciary.

Why the American Bar Association Strongly Disagrees with the Administration

The American Bar Association - probably the country's most prominent lawyers' group - disagrees. On August 9, the ABA's "Task Force on Treatment of Enemy Combatants" released a preliminary report on this issue. It inquires "whether the government can--or should--be able to detain American citizens indefinitely without charges and hold them incommunicado without a hearing and without access to counsel." The ABA's answer is a clear no.

The Task Force faults the Administration for breaking not only domestic, but also international law. Specifically, its report finds that the Executive has violated the Universal Declaration of Human Rights, adopted in 1948.

The Declaration provides that "everyone has the right to an effective remedy by the competent national tribunals for acts violating ... fundamental rights" and that no one "shall be subjected to arbitrary arrest, detention or exile." If detention is neither subject to any judicial review, nor authorized by an act of Congress, it surely must run a high risk of being "arbitrary."

Will the Supreme Court Step in To Stop the Executive-Only Detention Camps?

Will the U.S Supreme Court step in to curtail this expansive assertion of unilateral Executive power at the expense of the both the other two branches of our government, of checks and balances, and of American citizens' fundamental individual rights?

Sadly, no observer can be certain. The Court has a mixed record in weighing in on the issues of the legality of U.S. citizens' detention, and of the legitimacy of their subsequent trial before military tribunals as opposed to civilian courts.

Following the Civil War, the Court, in Ex Parte Milligan, barred the indefinite military detention of noncombatant Americans - that is, persons who are not affiliated with the army of a belligerent nation. It is also barred the trial of noncombatant Americans before military tribunals while federal civilian courts are functioning. (Defendant Milligan had been accused of trying to overthrow the government during the Civil War, but since the War was over, was no longer a combatant).

During the Second World War, however, the Court upheld the roundup and detention of 120,000 Japanese-Americans in Korematsu v. the United States, as discussed above. Of course, Korematsu ranks with Dred Scott, which asserted that slaves were merely property, and Plessy v. Ferguson, which insisted racial segregation, was constitutional, as one of the great, regretted blots on the Court's history.

Milligan and Korematsu, however, deal with civilians who have been identified as non-combatants. In contrast, the Executive has decided that Hamdi and Padilla are enemy combatants. Hamdi is claimed to have been a Taliban member. Padilla is claimed to have been researching a "dirty bomb" for al Qaeda. And that may make a crucial difference.

When defending its use of military tribunals earlier, the White House relied on another U.S. Supreme Court decision, Ex Parte Quirin. Now it is relying on that decision once again.

As Michael Dorf explains in his column, this label may be different from the label "enemy combatant" - for there is a difference between lawful and unlawful enemy combatants under the Geneva Convention. Moreover, Taliban members (as Hamdi is alleged to be) may be lawful combatants, while al Qaeda members (or conspirators, as Padilla is alleged to be) may be unlawful combatants under international law, as early columns by Dorf and by FindLaw columnist Joanne Mariner explain.

Nevertheless, the government claims Quirin provides grounds for it to indefinitely detain and interrogate both Hamdi and Padilla without affording them traditional constitutional protections or any judicial review of the facts pertaining to their cases.

The Bottom Line on Mixed Supreme Court Detention Precedents

At a minimum, Supreme Court precedent shows us that not all military detentions of U.S. citizens that are connected with wartime offenses are lawful; Milligan, which invalidated some such detentions, establishes that. The Court may also interpret the 1971 act - which did not exist when Quirin was decided - to prohibit such detentions.

Thus, there is still reason to hope for a Court decision holding that the proposed internment camps are illegal. We need not repeat Korematsu if our Court is strong enough to set clear rules to protect American citizens - as it so shamefully failed to do for Japanese-Americans in World War II.

Moreover, as suggested above, Hamdi and Padilla's cases may be quite different, and the difference may suggest at least some limitation on who may be put in the detention camps if their creation is upheld in court. The U.S. captured Hamdi in a theater of war and claims he is a Taliban member. But it seized Padilla, a native of New York City, after he disembarked from an airplane in Chicago's O'Hare International Airport, thousands of miles from any war zone.

Some commentators argue that Padilla, at least, should be entitled to the full application of constitutional rights. He is an American citizen arrested in the United States. As for Hamdi, he has a harder, but not an impossible, case. John Walker Lindh was also captured in Afghanistan; he was afforded access to legal counsel and the right to a criminal trial.

Before leaving Hamdi to be interrogated by the military without a lawyer, we should consider the cautionary tale, noted by Joanne Mariner in a recent column, of how one such interrogation on a terrorism-related charge led to a false confession by the frightened - and later cleared - suspect.

Interning Fellow Citizens is Wrong and Illegal, and the Courts Should So Hold

· Who Decides Whether Yaser Hamdi, Or Any Other Citizen, Is An Enemy Combatant?
· Fear Of Lawyers

Why aren't Americans yet alarmed? Perhaps because they find it hard to believe that the Attorney General would propose such an idea. But he has.

And this is not the only sign that the government has trespassed over important constitutional limits. In addition to eliciting an apparently false confession from a terrorism suspect, as noted above, the government also recently sought to recruit mail carriers and others as citizen spies, irregardless of the rights violations that will inevitably result - as I discussed in a prior column.

We need to stop and think before we allow the government to go this far, and before we have our own Gulag, right here in the U.S.


Anita Ramasastry is an Assistant Professor of Law at the University of Washington School of Law in Seattle and the Associate Director of the Shidler Center for Law, Commerce & Technology.

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