President Has Clear Authority To Designate Detainees As “Enemy Combatants”

Since September 11, 2001, the United States has pursued a war against terrorism. Our Nation’s superior military forces have successfully captured and detained many members or associates of the al Qaeda terrorist organization. Many of those captured persons are held outside the borders of the United States in a U.S. Navy prison in Guantanamo Bay, Cuba. Yet, because the al Qaeda terrorist network is a global organization with domestic cells operating iri the United States, certain suspected members have also been captured and detained within our national borders. In order to secure America from both internal and external threats, the President has made decisions — such as authorizing the use of military tribunals, designating captured terrorists or their associates as “enemy combatants,” and limiting their access to counsel and domestic courts — that have received harsh criticism from both the media and activist groups.

In response, lawsuits have been filed against the President challenging his authority asserted in this area, including his power to designate and detain certain “enemy combatants‘ See, e.g., Padilla v. Bush, 233 F. supp. 2d 564 (S.D.N.Y. 2002), 2002 U.S. Dist. LEXIS 23086 (Dec. 4, 2002); Hamdi v. Bush, 316 F.3d 450 (4th Cir. 2003), U.S. App. LEXIS 198 (Jan. 8, 2003). Among other things, the lawsuits claim that the term “enemy combatant” is irrelevant to assessing the due process rights of the detainee.  This article will discuss the legal and historical basis supporting the President’s authority to designate certain individuals as “enemy combatants” as part of the President’s powers under Article Il.

During the Constitutional Convention, the delegates debated the respective roles of the Legislative and Executive Branches in matters of foreign policy and war-making. Notably, the delegates chose to insert the phrase “declare war” rather than “make war” when delineating the powers of Congress in Article I, Section 8. The substitution of the term, “declare war” in lieu of the more active term, “make war” underscores the Founders recognition that all emergency war-making powers belonged independently to the President, and that the prerogative of declaring war belonged to Congress. As Alexander Hamilton aptly explained it:[The Constitution provides that] “the Congress shall have the power to declare War;” the plain meaning of which is that, it is the peculiar and the exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received: in other words, it belongs to Congress only, to go to War, But when a foreign nation declares, or openly or avowedly makes war upon the United States, they are then by the very fact already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary. The Papers of Alexander Hamilton 455-56 (Harold C. Syrett & Jacob E. Cooke eds., 1977). Hamilton wrote this in December 1801 in response to Thomas Jefferson’s claim that U.S. naval ships were prohibited from pursuing the Barbary pirates that had attacked U.S. ships.

The al Qaeda terrorists of today can be viewed as the modern-day version of the Barbary pirates of old. Since the war has already been declared by the enemy terrorists on the United States, we are already at war as President Bush has declared on many occasions. Consequently, it is unnecessary for Congress to formally make a “declaration” of war, an act that itself has a host of legal implications, both domestic and foreign. As the district court noted recently in the Padilla v. Bush case: The conclusion that the President may exercise his powers as Commander in Chief without a declaration of war is borne out not only by legal precedent but also by even the briefest contemplation of our history. When one considers the sheer number of military campaigns undertaken during this country’s history, declarations of war are the exception rather than the rule, beginning with the undeclared but Congressionally authorized naval war against France in the 1790s.2002 U.S. Dist. LEXIS 23086 at *121.The nature of Executive power and the Commander-in-Chief provision of Article Il together provide strong support to justify Executive unilateral action in protecting our national security. The Founders desired a “fortified Executive” with “energy, dispatch, and responsibility.” See Federalist Papers, No. 70. The President makes foreign policy, enters into treaties, and is the sole representative of the Nation in foreign affairs. While Congress has been given certain powers relating to foreign affairs, such as regulating foreign commerce, or the Senate’s role in ratifying treaties, its authority to fetter the powers of the President in conducting military actions are limited, such as exercising its power of the purse, and in the case of the War Powers Act of 1973, of doubtful constitutionality.  Presidential powers are phrased in the constitution in far-reaching, broad, and general terms, while legislative powers are strictly limited to enumerated objects defined specifically in the IAS early as September 15, 2001, President Bush announced to the military and the public: “The message is for everybody who wears the uniform: get ready. The United States will do what it takes to win this war. * * * We’re at war. There  has been an act of war declared upon America by terrorists, and we will respond accordingly.” President George W. Bush, Remarks at Camp David (Sept. 15, 2001). As noted by Hamilton, who was one of the most ardent advocates for a robust national Executive:The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government. The general doctrine of our Constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualification, which are expressed in the instrument.See 7 Works of Alexander Hamilton, J. C. Hamilton ed. (New York: 1851), 76, 80-81.Decisive and swift action is a hallmark of Executive power, especially where our Nation’s security is at stake. Following the terrorist attack on our soil, the Bush Doctrine declares that “any nation harboring, engaging, or supporting terrorist groups or activities is an enemy of the United States.” This doctrine is not only constitutionally permissible but also provides the context for labeling certain warring forces as “enemy combatants.”The recent legal challenges to the detention and classification of certain “enemy combatants” claim that term is newly fabricated by the Bush Administration as a pretext to restrict detainees from access to the federal courts and counsel. In Padilla v. Bush, the district court ruled that Padilla — otherwise known as the “dirty bomber” who was arrested on May 8, 2002, at Chicago O’Hare airport —- was allowed to meet with his attorney. That ruling, however, did not undermine the President’s authority to detain and designate individuals as “enemy combatants.” Indeed, the court noted that “The President has both constitutional and statutory authority to exercise the powers of commander in chief, including the power to detain unlawful combatants, and it matters not that Padilla is a United States citizen captured on United States soil.” 2002 U.S. Dist. LEXIS 23086 at *121 (emphasis added). There is also a sound historical basis to support the President’s use of the term “enemy combatants.” Military tribunals, which are designed to try those classified as “enemy combatants” or in terms that are synonymous with “enemy combatants,” have been utilized in every single American war since the Revolutionary War. Thus, if a warring individual does not conform to the customary laws of war, then the President, as Commander-in-Chief, can classify a warrior as an “enemy combatant,” “irregular,” “guerrilla,” “brigand,” or “bandit.” See William Winthrop, Military Law, and Precedent, Washington D.C., Government Printing Office (1920). President Bush could have chosen to use any one of these terms to classifying members of al Qaeda, the Taliban, and all others associated with terrorism. Each of these terms has the same legal effect: it precludes such a warring individual or force, if captured, from enjoying the protections of Prisoner of War (POW) status under the law, such as the Geneva Conventions.The domestic laws of the United States and the legal customs of international law specify certain criteria for distinguishing a legitimate military force from an unlawful one. The following characteristics must be satisfied in order classify an enemy as a lawful combatant: The enemy must have a distinctive uniform, recognizable insignia, ranking identification, and order, fixed and distinctive emblems, carry arms openly and belong to a government. In sharp contrast, al Qaeda does not belong to a foreign government; rather, it is simply an outlaw terrorist organization composed of bands or groups which carry out sporadic terrorist attacks. Clearly, al Qaeda and its members are not regular military forces. Furthermore, they do not carry their arms openly but conceal their weapons. More importantly, they do not recognize, let alone confirm, their conduct to the laws of war. Accordingly, the terrorists are properly classified as unlawful combatants undeserving of the status and the protections afforded by (he laws of war. As Hugo Grotius succinctly stated in Land Warfare—The Rights of War Between Enemies: In general, it may be stated that the rights of war, in respect to the enemy, are to be measured by the objects of war. Until that object is attained, the beJ1igerent has, strictly speaking, a right to use every means necessary to accomplish the end (Or which he has taken up arms, so long as the means adopted is not contrary to existing law or repugnant to the general sense of mankind.Undeniably, the means adopted by the terrorists on September 1 1, 2001, by hijacking fully loaded commercial aircraft5 and flying them into the World Trade Center and Pentagon, were repugnant to the universal attitudes of mankind and violated every known principle or rule of war. Lawful belligerents are required to operate in the confines of the rules and customs of war, and are authorized to engage in warfare and combat by a nation-state Because members of al Qaeda or those who associate themselves with this lawless organization engage in murderous acts on civilian populations, they fall into the category of “enemy combatants“.How a nation chooses to label fighters such as al Qaeda, whether as “enemy combatants,” “bandits,” or “miscreants,” makes a legal difference; it is the action of the fighter who engages in unlawful combat activities that are determinative of the category in which he falls. As Vattel points outs: Lawful belligerents “are the regularly commissioned naval and military forces of the nation, and all others called out in its defense, or spontaneously defending themselves in cases of urgent. necessity, without any express authority for that purpose. The horrors of warfare would indeed be greatly aggravated if every individual of the belligerent states was allowed to plunder and slay indiscriminately the enemy’s subjects without being in any manner accountable for his conduct. Hence, it is that in land wars, irregular bands of marauders are liable 10 be treated as lawless banditti, not entitled to the protection of the mitigated usages of war as practiced by civilized nations.”Vattel, Droit des Gens, Liv. Iii. Ch. 15, §§ 223-228, Kluber, Droit des Gens Moderne de ‘ Europe, § 267.

As the Fourth Circuit made clear in Hamdi: “One who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such. . . The Constitution Goes not entitle him to a searching review of the factual determinations underlying his seizure there.” 2003 U.S. App. LEXIS 198 at *53. It is vital that the President continues to act assert his Constitutional authority under Article Il to protect the nation’s security. He must continue to fight the war declared upon the United States, and in so doing, designate captured terrorists or similar groups of fighters as “enemy combatants,” whether aliens or United States citizens, as authorized by domestic and international law.