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The first “Citizen Enemy Combatants” and the war on terror today

The United States Department of Defense has acknowledged that it is holding a natural-born United States citizen in its custody in Iraq as an enemy combatant. The prisoner, who the government states were fighting for ISIS and turned himself over to United States allies in Syria, has now been in military custody for over four months. Meanwhile, the government has declined to reveal the prisoner’s identity and also denied his request to consult with a lawyer.  Early in the fall, the American Civil Liberties Union filed a habeas petition on his behalf in federal court seeking to represent him. In late December, the court finally ruled that the government must permit the ACLU to speak with the detainee.  Once the ACLU finally did, it reports that the detainee has requested that it represent him in habeas proceedings going forward.

Against this backdrop, the Supreme Court’s fractured decision in the 2004 War on Terror case of Hamdi v. Rumsfeld has taken on renewed importance. Writing for a plurality of four Justices in Hamdi, Justice O’Connor concluded that “[t]here is no bar to this Nation’s holding one of its own citizens as an enemy combatant,” even in the absence of a suspension of habeas corpus. Many legal commentators point to this proposition as having settled the legality of the practice. Far from it.

To begin, the two concurring Justices who joined Justice O’Connor to make a Court in Hamdi, Souter, and Ginsburg, made clear that they did so without joining the full breadth of her conclusions. This kind of fractured opinion is a poster-child for precedent likely to be revisited by the Court in a future case.

There are also serious problems with the conclusions reached in Justice O’Connor’s opinion. To understand them, one must look back to study the first Americans who arguably could have been categorized as citizen enemy combatants — the American Rebels who waged war for their country’s very independence.

The story begins in 1775 when Ethan Allen and his Green Mountain Boys stormed Montreal in a poorly-planned attempt to capture the city. The British quickly apprehended the group and put them on a ship bound for England. Then, after less than two weeks in England, Allen and the others were sent back to the American colonies. Why? Because, as the government surely knew, prominent attorneys with habeas expertise and ties to the American cause were preparing to file habeas petitions on their behalf.

Constitution of the United States (page 1) by Constitutional Convention. CC0 public domain via Wikimedia.

The British legal elite knew well that this posed a serious legal threat. This is because the English Habeas Corpus Act of 1679 promised to those who could claim its protections — citizens being at the top of the list — that the crown could not detain them outside the criminal process in the absence of a suspension of the Act. Notably, the Act applied to those suspected of treason and it contained no exceptions for wartime. Concerned that the Americans would claim to be British subjects and invoke the Act’s protections, the government turned to its longstanding practice of moving prisoners to avoid the reach of habeas courts. In Allen’s case, this meant dispatch back to the colonies, where the crown had long claimed that the Habeas Corpus Act did not apply.

As increasing numbers of American prisoners came to English shores, the government needed legal imprimatur for detaining them on English soil outside the criminal process. To this end, Parliament enacted a suspension. The government deemed such legislation necessary to detain Americans on English soil “like other prisoners of war.” Of the approximately 3,000 Americans subsequently detained in England during the war, no one was ever tried for treason or other crime. (Those imprisoned included the former president of the Continental Congress, Henry Laurens, and the cousin of Gouverneur Morris, who some six years later authored the United States Constitution’s habeas provision, known as the Suspension Clause.)

Accordingly, during the American Revolutionary War, where the Habeas Corpus Act applied and had not been properly suspended, it dictated that there could be no such thing as a “citizen enemy combatant.”

All too aware of how the suspension framework operated during this pivotal episode in American history and educated in William Blackstone’s glorification of the English Habeas Corpus Act as a “second Magna Carta,” those who wrote the United States Constitution imported that framework into the Suspension Clause, providing that the habeas privilege could only be suspended “when in Cases of Rebellion or Invasion the public Safety may require it.” Indeed, in promoting the draft Constitution, Alexander Hamilton lauded the fact that the Constitution provides for “trial by jury in criminal cases, aided by the habeas corpus act.” And a few decades later, Chief Justice John Marshall declared that in interpreting the Suspension Clause, we must look to “that law which is in a considerable degree incorporated into our own” — specifically, “the celebrated habeas corpus act” of 1679. Even the “great Suspender,” President Abraham Lincoln, did not believe that he could detain Confederate soldiers and sympathizers outside the criminal process without a suspension.

To the extent that the English suspension framework proved the foundation for the Constitution’s Suspension Clause — and there is every reason to believe that it did — it is difficult to see how the law distinguishes between the situation posed in Hamdi and the plight of Ethan Allen in 1775. Accordingly, as things unfold, should the government continue to lay claim to the power to hold a United States citizen as an enemy combatant in the present case (and particularly if the government transfers the prisoner to American soil), it will need to confront the backdrop against which the Founding generation wrote the Constitution. Indeed, this history suggests that it is time to reconsider Hamdi v. Rumsfeld and with it, the very notion of a “citizen enemy combatant.”

Featured image credit: “US-supreme-court-building-2225766” by Mark Thomas. CC0 Creative Commons via Pixabay.

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