Chapter 26 - Military Detention
Alien Enemy Act
50 U.S.C. §21 (2000)

Whenever there is a declared war between the United
States and any foreign nation or government, or any
invasion or predatory incursion is perpetrated, attempted,
or threatened against the territory of the United States by
any foreign nation or government, and the President
makes public proclamation of the event, all natives,
citizens, denizens, or subjects of the hostile nation or
government, being of the age of fourteen years and
upward, who shall be within the United States and not
actually naturalized, shall be liable to be apprehended,
restrained, secured, and removed as alien enemies.
2
Korematsu v. United States, 323 U.S. 214
(1944)
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What was ordered?
 What was the role of detention?
What if they were on the East Coast?
What was the rationale for why they posed a
danger to the US?
What happened to the detainee's property?
3
Justice Black


Our task would be simple, our duty clear, were this a case
involving the imprisonment of a loyal citizen in a concentration
camp because of racial prejudice. Regardless of the true nature of
the assembly and relocation centers— and we deem it unjustifiable
to call them concentration camps with all the ugly connotations
that term implies—we are dealing specifically with nothing but an
exclusion order.
We uphold the exclusion order as of the time it was made and
when the petitioner violated it. In doing so, we are not unmindful of
the hardships imposed by it upon a large group of American
citizens. But hardships are part of war, and war is an aggregation
of hardships.
4
Justice Frankfurter

Therefore, the validity of action under the war power must be
judged wholly in the context of war. That action is not to be
stigmatized as lawless because like action in times of peace would
be lawless. To talk about a military order that expresses an
allowable judgment of war needs by those entrusted with the duty
of conducting war as ‘‘an unconstitutional order’’ is to suffuse a
part of the Constitution with an atmosphere of unconstitutionality.
The respective spheres of action of military authorities and of
judges are of course very different. But within their sphere, military
authorities are no more outside the bounds of obedience to the
Constitution than are judges within theirs.
5
Justice Murphy - Dissenting

The judicial test of whether the Government, on a plea of
military necessity, can validly deprive an individual of any
of his constitutional rights is whether the deprivation is
reasonably related to a public danger that is so
‘‘immediate, imminent, and impending’’ as not to admit of
delay and not to permit the intervention of ordinary
constitutional processes to alleviate the danger. Civilian
Exclusion Order No. 34, banishing from a prescribed area
of the Pacific Coast ‘‘all persons of Japanese ancestry,
both alien and non-alien,’’ clearly does not meet that test.
6
Justice Jackson - Dissenting

[T]he ‘‘law’’ which this prisoner is convicted of
disregarding is not found in an act of Congress, but in a
military order. Neither the Act of Congress nor the
Executive Order of the President, nor both together,
would afford a basis for this conviction. It rests on the
orders of General DeWitt. And it is said that if the military
commander had reasonable military grounds for
promulgating the orders, they are constitutional and
become law, and the Court is required to enforce them.
There are several reasons why I cannot subscribe to this
doctrine.
7
Implications of the Ruling


Has it subsequently been overruled by the United
States Supreme Court?
Do you think it could happen again?
8
Ex parte Mitsuye Endo, 323 U.S. 283 (1944)

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Endo is a fascinating case that explains the basis
for the use of internment camps and the system
for granting leave to detained persons.
The court found in Endo that once the
government had decided that a detained
individual was a loyal citizen and eligible for
release, their statutory authority to detain was
ended and the person must be released.
9
Ex parte Mitsuye Endo, 323 U.S. 283
(1944): Explaining the Camps

"When compulsory evacuation from the West Coast was decided upon, plans for
taking care of the evacuees after their detention in the Assembly Centers, to
which they were initially removed, remained to be determined. On April 7, 1942,
the Director of the Authority held a conference in Salt Lake City with various
state and federal officials including the Governors of the inter-mountain states.
'Strong opposition was expressed to any type of unsupervised relocation and
some of the Governors refused to be responsible for maintenance of law and
order unless evacuees brought into their States were kept under constant
military surveillance.' As stated by General De Witt in his report to the Chief of
Staff: 'Essentially, military necessity required only that the Japanese population
be removed from the coastal area and dispersed in the interior, where the danger
of action in concert during any attempted enemy raids along the coast, or in
advance thereof as preparation for a full scale attack, would be eliminated. That
the evacuation program necessarily and ultimately developed into one of
complete Federal supervision, was due primarily to the fact that the interior
states would not accept an uncontrolled Japanese migration.'"
10
Ex parte Quirin, 317 U.S. 1 (1942)
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Who are the defendants?
What are they accused of and where were
they apprehended?
Are any US citizens?
How are they being tried?
What are they appealing in this case?
11
Why are Military Tribunals Being
Used?
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By the Articles of War, 10 U.S.C. §§1471-1593, Congress
has provided rules for the government of the Army. . . .
But the Articles also recognize the ‘‘military commission’’
appointed by military command as an appropriate
tribunal for the trial and punishment of offenses against
the law of war not ordinarily tried by court martial.
By the Articles of War, and especially Article 15,
Congress has explicitly provided, so far as it may
constitutionally do so, that military tribunals shall have
jurisdiction to try offenders or offenses against the law of
war in appropriate cases.
12
What Makes an Offense Against the
Law Of War?

We may assume that there are acts regarded in other
countries, or by some writers on international law, as
offenses against the law of war which would not be
triable by military tribunal here, either because they are
not recognized by our courts as violations of the law of
war or because they are of that class of offenses
constitutionally triable only by a jury. It was upon such
grounds that the Court denied the right to proceed by
military tribunal in Ex parte Milligan, supra. But as we
shall show, these petitioners were charged with an
offense against the law of war which the Constitution
does not require to be tried by jury.
13
Lawful and Unlawful Combatants

Lawful combatants are subject to capture and
detention as prisoners of war by opposing military
forces. Unlawful combatants are likewise subject
to capture and detention, but in addition they are
subject to trial and punishment by military
tribunals for acts which render their belligerency
unlawful.
14
Examples of Unlawful Combatants

The spy who secretly and without uniform passes the
military lines of a belligerent in time of war, seeking to
gather military information and communicate it to the
enemy, or an enemy combatant who without uniform
comes 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.
15
The Charges

Specification 1 states that petitioners ‘‘being enemies of
the United States and acting for . . . the German Reich, a
belligerent enemy nation, secretly and covertly passed, in
civilian dress, contrary to the law of war, through the
military and naval lines and defenses of the United States
. . . and went behind such lines, contrary to the law of
war, in civilian dress . . . for the purpose of committing . .
. hostile acts, and, in particular, to destroy certain war
industries, war utilities and war materials within the
United States.’’
16
5th and 6th Amendment Claims
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Presentment by a grand jury and trial by a jury... But they
were procedures unknown to military tribunals, which are
not courts in the sense of the Judiciary Article...
...[W]e must conclude that §2 of Article III and the Fifth
and Sixth Amendments cannot be taken to have extended
the right to demand a jury to trials by military
commission, or to have required that offenses against the
law of war not triable by jury at common law be tried only
in the civil courts.
17
What about Milligan?

...the Court concluded that Milligan, not being a
part of or associated with the armed forces of the
enemy, was a non-belligerent, not subject to the
law of war save as—in circumstances found not
there to be present and not involved here—martial
law might be constitutionally established.
18
The Holding

We have no occasion now to define with meticulous care
the ultimate boundaries of the jurisdiction of military
tribunals to try persons according to the law of war. It is
enough that petitioners here, upon the conceded facts,
were plainly within those boundaries, and were held in
good faith for trial by military commission, charged with
being enemies who, with the purpose of destroying war
materials and utilities, entered or after entry remained in
our territory without uniform—an offense against the law
of war.
19
Subsequent History?
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What happened to defendants BEFORE the final
court opinion was handed down?
Was the court anticipating this?
Might it have changed their views?
20
Is Quirin Useful Precedent in a War on
Terror?
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Think about our discussions about the problems
of deciding when an imperfect war ends and who
is a combatant.
What problems does this pose in figuring out
what Quirin means in the war on terror?
Why was it easy to decide they were enemy
combatants?
21
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
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Where was Hamdi arrested?
Where was Hamdi born?
When can the government detain a citizen under
the military order?
NB - one of the Quirin spies was a US citizen
22
The Governments' Factual Case
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The legal authority is the AUMF
The first factual basis is that he was in
Afghanistan, and that is enough.
 Did the court think that fit the AUMF?
Second, that the court should defer to the
president's decision to detain.
23
The Mathews Test: Mathews v. Eldridge,
424 U.S. 319 (1976)


Mathews dictates that the process due in any given
instance is determined by weighing ‘‘the private interest
that will be affected by the official action’’ against the
Government’s asserted interest, ‘‘including the function
involved’’ and the burdens the Government would face in
providing greater process.
The Mathews calculus then contemplates a judicious
balancing of these concerns, through an analysis of ‘‘the
risk of an erroneous deprivation’’ of the private interest if
the process were reduced and the ‘‘probable value, if any,
of additional or substitute safeguards.’
24
Applying Mathews v. Eldridge, 424 U.S.
319 (1976)
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‘‘In our society liberty is the norm,’’ and detention
without trial ‘‘is the carefully limited exception.’’
[United States v. Salerno, 481 U.S. 739 (1987)]
On the other side of the scale are the weighty and
sensitive governmental interests in ensuring that
those who have in fact fought with the enemy
during a war do not return to battle against the
United States.
25
The Holding
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We therefore hold that a citizen-detainee seeking to challenge his
classification as an enemy combatant must receive notice of the
factual basis for his classification, and a fair opportunity to rebut
the Government’s factual assertions before a neutral
decisionmaker.
At the same time, the exigencies of the circumstances may
demand that, aside from these core elements, enemy combatant
proceedings may be tailored to alleviate their uncommon potential
to burden the Executive at a time of ongoing military conflict. ...
Thus, once the Government puts forth credible evidence that the
habeas petitioner meets the enemy combatant criteria, the onus
could shift to the petitioner to rebut that evidence with more
persuasive evidence that he falls outside the criteria.
26
Limits to the Holding to Protect the
Government's Interests

The parties agree that initial captures on the battlefield need not
receive the process we have discussed here; that process is due
only when the determination is made to continue to hold those
who have been seized. The Government has made clear in its
briefing that documentation regarding battlefield detainees already
is kept in the ordinary course of military affairs. Any factfinding
imposition created by requiring a knowledgeable affiant to
summarize these records to an independent tribunal is a minimal
one. Likewise, arguments that military officers ought not have to
wage war under the threat of litigation lose much of their steam
when factual disputes at enemy-combatant hearings are limited to
the alleged combatant’s acts.
27
The Invitation to Congress

Likewise, we have made clear that, unless
Congress acts to suspend it, the Great Writ of
habeas corpus allows the Judicial Branch to play
a necessary role in maintaining this delicate
balance of governance, serving as an important
judicial check on the Executive’s discretion in the
realm of detentions.
28
When does Right to Counsel Vest?

Hamdi asks us to hold that the Fourth Circuit also erred
by denying him immediate access to counsel upon his
detention and by disposing of the case without permitting
him to meet with an attorney. Since our grant of certiorari
in this case, Hamdi has been appointed counsel, with
whom he has met for consultation purposes on several
occasions, and with whom he is now being granted
unmonitored meetings. He unquestionably has the right
to access to counsel in connection with the proceedings
on remand. No further consideration of this issue is
necessary at this stage of the case.
29
Souter and Ginsberg
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Why do they say the government cannot use the AUMF to
hold Hamdi?
By holding him incommunicado, however, the
Government obviously has not been treating him as a
prisoner of war, and in fact the Government claims that
no Taliban detainee is entitled to prisoner of war status.
This treatment appears to be a violation of the Geneva
Convention provision that even in cases of doubt,
captives are entitled to be treated as prisoners of war
‘‘until such time as their status has been determined by a
competent tribunal.’’
30
Scalia
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How did Scalia distinguish Quirin from Hamdi?
What does Scalia think of the claims by the
President that he has the authority to try citizens
held on US soil, with a military tribunal?
What is only basis for denying habeas corpus to a
citizen on US soil that Scalia would accept?
Given this, why was Scalia so skeptical about
Rasul?
31
Johnson v. Eisentrager, 339 U.S. 763
(1950)

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Why were defendant's just treated as prisoners of war?
 U.S. armed forces captured 21 German nationals in
service of German armed forces in China. A U.S.
military commission sitting in China tried and
convicted them of violating laws of war, namely,
engaging in, permitting, or ordering continued military
activity against the United States after the surrender of
Germany and before the surrender of Japan.
This is an important case to read, but we have already
seen it in other cases.
32