Under the lens of the constitution: the NDAA’s detainee provisions and the Fifth Amendment’s guarantee of equal protection.
Just as the
in the darkness of the body, / So I,
despite this cage, continue to beat with life. / Those who have no
courage or honor / Consider themselves free, / I am flying on the wings
of thought, / And so, even in this cage, / I know a greater freedom.
–Abdul Rahim (1)
There is an age-old principle “that the authority of war must
be tempered by limitations that mitigate the suffering inevitably caused
by war.” (2) In the wake of more than ten years in the armed
conflict in Afghanistan, much debate exists surrounding the inception
and passage of the National Defense Authorization Act For Fiscal Year
2012 (“NDAA”) (3) and its
A person held in custody or confinement:
Noun 1. detainee – some held in custody
provisions. (4) This
article focuses specifically on the NDAA’s detainee provisions and
its implications regarding the equal protection guarantees under the
Fifth Amendment to the
officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world’s third largest country in population and the fourth largest country in area.
Constitution. To better understand
the breadth of the NDAA’s detainee provisions, consider the
1. The characters in a play or story.
2. A list of the characters in a play or story.
It is the year 2013, and political unrest in Afghanistan and the
Middle East has reached a critical
. The United States is
greatly accelerating its 2014 timetables for ending the armed conflict
in Afghanistan, and it is drawing down its combat forces at an
accelerated pace and fast-forwarding the transition of its military and
government advisors into a supervisory role for the Afghan government.
(6) The political winds shifted in a tumultuous direction after American
Bagram air base
burned copies of the Koran–desecrating the
Muslim Holy Book sparked a snowball effect of instability and violence
in the region. (7) American troops faced increased opposition from the
Taliban in previously liberated provincial outposts in Afghanistan;
there were civilian uprisings castigating the Koran burnings; some
Afghan soldiers undergoing military training retaliated against their
U.S. Army instructors; and there were killings of innocent Afghan
civilians at the hands of American forces.
Violence and unrest in the region touched Omaid Parsa’s life
in remarkable and horrifying ways. Omaid is a twenty-nine-year-old
Afghan journalist; he works for the al-Jazeera news network and lives in
his native Kandahar province with his wife and three children. Omaid was
on assignment in Kabul to cover the recent Koran burnings at the U.S.
controlled Bagram air base. The Koran burnings sparked intense violence
against American service members in the region. Local news outlets
reported a recent incident in which an American soldier killed sixteen
Afghan civilians in Omaid’s native Kandahar. (8) Tragically, Omaid
learned that his family was among the dead and mourned their loss. The
United States apologized to the victims’ families and the Afghan
people and assured them that the U.S. military would prosecute the
soldier for his crimes. (9)
The people of Afghanistan demanded that the United States
Government hand over the soldier for prosecution in an Afghan tribunal.
(10) In the end, the Afghan central government relented to the American
promise of justice. Omaid openly criticized his government’s
actions as placating U.S. interests while ignoring the Afghan
people’s call for justice. He wrote critical pieces that lambasted
Hamid Karzai’s government for failing to prosecute the U.S.
soldier’s killing of sixteen innocent Afghan civilians in an Afghan
tribunal. The Afghan government’s decision excited further unrest
and tension in the region.
Soon after, unknown government operatives broke into Omaid’s
home, captured him in the night, and tortured him for writing critical
news pieces against the Afghan government. Omaid’s captors
transferred him to U.S. controlled Bagram air base where they falsely
claimed that he was part of al-Qaeda, that he substantially supported
the Taliban regime and its associated forces with monetary aid, and that
he gained access to terrorist training-manuals for distribution to the
people in Kandahar province. (11) All of the accusations were lies.
Omaid faced further beatings, torture, and degrading treatment by his
American captors at Bagram air base. Thereafter, the U.S. military
transferred Omaid to the
To this day, Omaid remains
adv. & adj.
Without the means or right of communicating with others:
at Guantanamo Bay without
knowledge of his charges, access to counsel, or a meaningful and factual
inquiry into the allegations supporting his detention. He is awaiting a
Combatant Status Review Tribunal to determine his disposition as an
; a saboteur.
laws of war
. If the tribunal declares Omaid an
enemy combatant, he faces the continued threat of mandatory military
detention under the NDAA’s new detainee provisions–all because of
his nationality as an Afghan citizen. Were it not for his foreign
citizenship, Omaid would be exempt from such mandatory detention under
the NDAA’s detainee provisions. (12) On the face of the law, the
NDAA differentiates the degree of confinement one receives on account of
his or her nationality or
status: foreign detainees are readily
subject to mandatory military detention, whereas U.S. citizens or lawful
resident aliens are patently exempt. (13) This facially discriminatory
detention policy implicates the Fifth Amendment’s guarantee of
equal protection. (14)
The crux of this article discusses Congress’s passage of the
unequal detainee provisions under the NDAA and its equal protection
issues under the Fifth Amendment to the Constitution. (15) Part II
begins with a discussion on the impetus for congressional passage of the
Authorization for Use of Military Force (”
“) (16) and its
development under the laws of war. (17) Next, Part III analyzes
States Supreme Court
see Supreme Court, United States.
precedent that previously interpreted the scope of
presidential power under the AUMF and explores its implications for
purposes of understanding the NDAA’s detainee provisions. (18) Part
IV follows with a discussion on the NDAA’s detainee provisions,
(19) while Part V addresses the Fifth Amendment equal protection issues
surrounding the detainee provisions. (20) Part VI concludes the
discussion and proposes heightened judicial scrutiny to assess the
enacted detainee provisions within the NDAA. (21)
II. THE AUMF AND THE LAWS OF WAR POST-SEPTEMBER 11, 2001
On September 11, 2001, al-Qaeda forces hijacked passenger jetliners
and crashed them into strategic targets within the United States,
killing over 3,000 people. (22) Congress responded swiftly to the
terrorist attacks and, consistent with the
War Powers Resolution
enacted the AUMF on September 18, 2011, (23) which allowed the President
to use military force against those who perpetrated the terrorist
attacks. (24) Pursuant to the AUMF, the President exercised his military
authority and deployed U.S. forces to Afghanistan for the purposes of
combating al-Qaeda and the Taliban–those suspected of perpetrating the
September 11 terrorist attacks. (25) Despite not being a formal
declaration of war against al-Qaeda and the Taliban, the AUMF was the
functional equivalent of one. (26) The AUMF invoked notions of
international law concepts such as armed conflicts and the laws of war.
(27) Nevertheless, determining whether the
war on terror
was defined as
a “war” under international law was important because a switch
from peacetime to wartime triggered law of war principles and
protections afforded to enemy belligerents under international human
rights laws. (28)
Under section 2(a) of the AUMF, Congress conferred powers to the
President “to use all necessary and appropriate force” against
any and all countries, persons, or entities that “he
determines” were involved with, or aided in, the September 11
terrorist attacks. (29) But what defines the scope of the
President’s authority under the AUMF concerning those persons or
entities involved with the September 11 terrorist attacks? (30) At
first, President George W. Bush proposed broad authority under the AUMF
“to deter and
v. pre·empt·ed, pre·empt·ing, pre·empts
1. To appropriate, seize, or take for oneself before others. See Synonyms at appropriate.
” attacks against or any threat upon the
United States, regardless of the persons involved, whereas Congress
chose to limit the President’s authorized use of force to only
include those persons or entities connected with the September 11
terrorist attacks. (31) Despite congressional narrowing of the scope of
covered persons under the AUMF, the span of the President’s force
remained broad. (32) In fact, though not specifically referenced in the
AUMF, the scope of the President’s authorized powers included the
tr.v. de·tained, de·tain·ing, de·tains
1. To keep from proceeding; delay or retard.
2. To keep in custody or temporary confinement:
enemy forces incident to the war in Afghanistan. (33)
Focusing on Congress’s specified targets, the AUMF expressly
authorizes the President “to use all necessary and appropriate
force against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001….” (34) Still, difficulty arose
after Congress authorized the use of military force not against nations
or internal threats, but against international terrorist
organizations–blurring the traditional classifications under
established law of war principles. (35) Before September 11, U.S.
military advisors traditionally categorized armed conflicts into one of
two distinct law of war categories that trigger protections under Common
Articles 2 or 3 of the Geneva Conventions: Article 2 involves
international combat between nations, while Article 3 involves
non-international conflicts with a recognized internal military threat.
(36) Nonetheless, what is the interest or purpose in classifying an
armed conflict one particular way over another? Classifying a particular
armed conflict as either international or non-international brings with
it the benefit of the laws of war safeguards for prisoners of war. (37)
Not all conflicts fit into neatly drawn classifications for
purposes of construing
and detaining enemy
belligerents in wartime. (38) The U.S. Department of Defense recognized
the difficulty in categorizing such military operations following the
conflict in Southeast Asia, primarily fought in South Vietnam between government forces aided by the United States and guerrilla forces aided by North Vietnam.
and subsequent conflicts, and it defaulted to using law of
Without consideration of; regardless of.
any official classification. (39) Yet,
Congress’s authorized targets in the armed conflict in Afghanistan
were not properly
under Common Articles 2 or 3 because, under
the AUMF, the U.S. military was neither against a nation with an army
nor in conflict with an intra-state
force, blurring the
distinction under traditional law of war principles. (40)
Once U.S. forces entered Afghanistan to carry out combat operations
pursuant to the AUMF, top legal advisers for the military communicated
the traditional law of war classifications to their commanding officers
on the assumption that these default rules applied to al-Qaeda and
Taliban forces in matters such as the treatment of captured enemies of
war. (41) Immediately thereafter, top military officials ordered
commanders to stop treating detained enemy forces as though they were
prisoners of war under the restrictive law of war framework and,
instead, treat those detained as “unlawful enemy combatants”
to preclude any claimed protections normally afforded to prisoners of
war under established law of war principles. (42) Essentially, the
reason for the changed status from prisoners of war to unlawful enemy
combatants was to allow the U.S. military greater ease in transferring
claimed al-Qaeda operatives to the detention center at Guantanamo Bay,
Al-Qaeda forces were without classification under Common Articles 2
and 3 of the Geneva Conventions, rendering such forces open to hostile
military engagements and barring them from claiming protections under
the laws of war. (44) The Bush Administration took advantage of this
loophole, justifying military action against al-Qaeda under the AUMF and
exploiting suspected al-Qaeda detainees from any guarantees of treatment
under the laws of war. (45) “By strictly limiting [law of war]
applicability to this paradigm, the underlying purpose of the
law–ensuring regulation of hostilities–was undermined.” (46) In
, (47) the Supreme Court declared that Common Articles
2 and 3 operate in ”
Distinction by contrasting or opposing qualities.
,” and the Bush
Administration’s exploitation of a loophole within Common Articles
2 and 3 was incompatible with established law of war principles. (48)
The Court effectively closed this interpretive loophole and afforded
detainees humane treatment regardless of the operation’s
characterization. (49) Further scrutiny and discussion on the treatment
and rights of detainees in wartime would come to pass in subsequent
III. DETAINEE LITIGATION AND SUPREME COURT PRECEDENT REVISITED
Well into the War on Terror, the Supreme Court decided a number of
important cases in a span of four years
relate prep →
relate prep → ,
the fights of men
detained in wartime. (51) There is an often quoted maxim by the Roman
philosopher Marcus Tullius Cicero stating, “In time[s] of war,
[the] law is silent” (inter arma silent
Plural of lex.
). (52) But during
this wartime era, the Supreme Court declared that the law indeed has a
voice, protecting citizens and non-citizens alike. (53) Despite the
Government’s prevailing wartime interests, the Supreme Court upheld
not only the constitutional rights of citizen detainees suffering
Executive confinement, but it also preserved the great
writ of habeas
for non-citizen detainees. (54) The discussion that follows
examines this precedent in light of the Government’s further
attempt to constrain the liberty interests of non-citizen detainees.
In Hamdi v. Rumsfeld, (56) Justice
Sandra Day O’Connor
that first considered whether the
Government had the power during wartime to detain enemy combatants later
determined to be U.S. citizens. (57) The backdrop of the case involved
, a U.S. citizen who was captured, detained, and
interrogated during active combat operations in Afghanistan pursuant to
the AUMF. (58) The U.S. military transferred Hamdi to U.S. soil once it
determined his citizenship status. (59)
1. As stated or indicated by; on the authority of:
2. In keeping with:
declaring Hamdi an enemy combatant justified his indefinite detention
without providing notification of his charges, due process, or right of
access to counsel. (60) Hamdi’s father filed a petition for a writ
of habeas corpus on behalf of his son (61) and challenged his son’s
indefinite detention as violating 18 U.S.C. [section] 4001(a)’s
proscription against detaining U.S. citizens. (62)
Nevertheless, the Government maintained that Hamdi’s detention
complied with 18 U.S.C. [section] 4001(a) because it was a proper
exercise of the President’s authority under the AUMF. (63) Though
the threat of indefinite detention was present in an unconventional
conflict, the Court agreed with the Government’s claim and declared
Hamdi’s detention as lawful under the AUMF. (64)
The Court recognized and declared the following:
The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." ... The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that the United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF. (65)
Notwithstanding the plurality’s conclusion that the AUMF
included the presidential power to detain enemy combatants for the
war’s duration, it then begs the question: may Hamdi ever challenge
After addressing the threshold issue, the plurality opinion then
considered whether the Government owed any procedural due process to a
citizen-detainee who challenged his or her enemy combatant status under
the Constitution. (66) Hamdi argued there was insufficient procedural
due process, (67) while the Government contended that any extra-afforded
process would be impracticable. (68) In order to resolve this question,
Justice O’Connor examined the writ of habeas corpus, the Due
Process Clauses of the Fifth and Fourteenth Amendments, and the
, is a case in which the United States Supreme Court held that individuals have a statutorily granted property right in social security benefits, that the termination of those benefits
. (69) In essence, Mathews first weighs the
effect of the Government’s actions on an individual’s rights
against the Government’s functional interests and the burdens of
affording an individual with greater due process. (70) Then, Mathews
balances these competing interests by analyzing the risk of depriving a
person’s rights with ill-afforded process versus any potential
benefit of extra or alternate due process protections. (71)
In applying the test set forth in Mathews, the Supreme Court
recognized that the Government’s act of detaining Hamdi and
depriving him of his physical liberty was one of the most fundamental
and substantial rights that the Court has taken care not to minimize.
reaffirmed its commitment to “the fundamental
nature of a citizen’s right to be free from involuntary confinement
by his own government without due process of law….” (73) On the
one hand, the Court acknowledged the Government’s sensitive wartime
interests and the burdens facing the Government if Hamdi was afforded
with greater process. (74) On the other hand, allowing the
Government’s factual averments to go unchallenged-or merely being
presumed as true–would not afford Hamdi the degree of procedural due
process he was owed under the Constitution. (75) Ultimately, Justice
O’Connor’s principle opinion held 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
factual assertions before a neutral decision-maker.” (76)
In Rasul v. Bush, (77) Justice John P. Stevens delivered the
majority opinion for the Court and considered a narrow issue that
determined whether non-U.S, citizens
tr.v. im·pris·oned, im·pris·on·ing, im·pris·ons
To put in or as if in prison; confine.
[Middle English emprisonen, from Old French emprisoner : en-
in Guantanamo Bay, Cuba
controlled U.S. territory) (78) could invoke federal
jurisdiction to challenge their confinement at the hands of the
Government. (79) The U.S. military captured foreign nationals during
hostilities in Afghanistan pursuant to the AUMF (80) and held them
incommunicado at the detention center in Guantanamo Bay. (81)
Faced with the threat of indefinite detention, the foreign
nationals, through relatives acting as their next friends, or natural
guardians, filed statutory habeas corpus claims (among other invocations
of federal-court jurisdiction and federal claims). (82) The petitioners
challenged the detentions and asserted that none of the detainees were
enemy combatants as the United States had claimed; that none had ever
engaged in terrorist activities; and that neither of the detainees were
ever formally charged, allowed access to counsel, nor afforded a formal
hearing in a court of law or any other tribunal. (83) The district court
construed all the causes of action as habeas claims and dismissed them
all for lack of jurisdiction, believing that
Johnson v. Eisentrager
, was a major decision of the U.S. Supreme Court, where it decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison.
precluded the detained foreign nationals from invoking habeas relief
outside of U.S. territory, and the appellate court affirmed. (85)
In times of war and peace, the Supreme Court has recognized the
power of the federal courts to review a petitioner’s claim for
habeas relief against unchallenged executive detention. (86) Just as
important, the majority found that the petitioners in Rasul differed
from the detainees in Eisentrager: the detainees were not citizens of a
country at war with the United States; they had patently denied ever
engaging in hostilities against U.S. forces; they were never charged or
afforded any due process; and the detainees were imprisoned for more
than two years in a de facto controlled U.S. territory. (87) The
reasoning in Eisentrager is, nevertheless, only relevant to the
constitutional guarantee of habeas corpus and not a statutory claim to
the writ. (88)
For purposes of seeking statutory habeas relief, detainees need not
rely on Eisentrager because the case deals with the constitutional basis
for habeas. (89) Following the decision in Eisentrager, the Supreme
Court decided that the writ of habeas corpus acts neither on the
petitioner seeking relief nor on geographical location, but instead on
the person allegedly holding the petitioner unlawfully; thus, federal
courts act within their jurisdiction when hearing statutory habeas writs
so long as service of process reaches the jailor. (90) Moreover, since
Congress made no distinction of citizenship for detainees to invoke the
federal habeas statute, it follows that citizens and non-citizens alike
have a right to invoke federal court jurisdiction under the statute for
purposes of seeking federal habeas relief. (91) Accordingly, Justice
Stevens wrote that the foreign nationals facing executive detention at
Guantanamo Bay could challenge their confinement by invoking federal
court jurisdiction under the federal habeas statue. (92)
In Boumediene v. Bush, (93) Justice Anthony M. Kennedy delivered
the majority opinion and determined an issue of first impression: absent
withdrawal in conformance with the
Constitution, are alien detainees in Guantanamo Bay, Cuba entitled to
the constitutional privilege of habeas corpus? (94) In order to comply
with the due process mandates as decided in Hamdi v. Rumsfeld, (95) the
Defense Department created Combatant Status Review Tribunals
(“CSRTs”) to determine which of the Guantanamo Bay detainees
were enemy combatants. (96) Based on its interpretation of the AUMF, the
Defense Department captured Lakhdar Boumediene and the other petitioners
(all foreign nationals taken either from the battlefield or from
1. Very distant; remote.
2. Abstracted; dreamy:
1. very distant
lands) and detained them in Guantanamo. (97) The Defense Department
brought each of the petitioners before separate CSRTs and determined
them all to be enemy combatants with ties to al-Qaeda or the Taliban;
yet, each of the petitioners refuted the Government’s allegations
and applied for writs of habeas corpus, challenging their confinement.
While the petitioners’ cases were pending, Congress sought to
strip the federal courts of jurisdiction to hear habeas corpus petitions
brought by those detained at Guantanamo Bay. (99) After a failed
attempt, Congress enacted section 7 of the Military Commissions Act
(“MCA”) of 2006. (100) Initially, Congress succeeded in its
pursuit, and the Court of Appeals for the
District of Columbia
federal district (2000 pop. 572,059, a 5.7% decrease in population since the 1990 census), 69 sq mi (179 sq km), on the east bank of the Potomac River, coextensive with the city of Washington, D.C. (the capital of the United States).
Congress’s favor: section 7 of the MCA stripped the federal courts
of jurisdiction from hearing the petitioners’ habeas corpus claims
and the petitioners were not entitled to the constitutional writ of
habeas corpus or the protections under the Suspension Clause. (101)
Reformulating the issue, the Supreme Court determined “whether
[the] petitioners [we]re barred from seeking the writ or invoking the
protections of the Suspension Clause either because of their status,
i.e., petitioners’ designation by the Executive Branch as enemy
combatants, or their physical location, i.e., their presence at
Guantanamo Bay.” (102) The Government claimed that non-citizen
detainees designated as enemy combatants and held outside the
borders of the United States
were not entitled to any
constitutional rights, let alone the privilege of habeas corpus or the
Suspension Clause’s protections; whereas, the petitioners contended
that their rights were cognizable under the Constitution, and
of the privilege of habeas corpus violated
the Suspension Clause. (103)
Wading through the history of the writ of habeas corpus, (104) the
majority honed in on the Government’s position that the common law
writ only ran to territories the Crown had legal sovereignty over,
thereby precluding the writ’s extension to Guantanamo Bay. (105)
, the Government claimed that, since the United States
contracted out its full, legal claim over Guantanamo Bay, the
Constitution and its terms was a
n. something which may be treated as nothing, as if it did not exist or never happened. This can occur by court ruling or enactment of a statute. The most common example is a nullity of a marriage by a court judgment.
, at least to non-citizens.
(106) When the Court considered the issue of territorial sovereignty, it
did so narrowly: sovereignty “mean[s] a claim of right.” (107)
Though the Supreme Court accepted the Government’s position that
Cuba retained legal title to Guantanamo Bay, it reasoned that the United
and control over the territory. (108)
Contrary to the fundamental principle of
separation of powers
see Constitution of the United States.
separation of powers
Division of the legislative, executive, and judicial functions of government among separate and independent bodies.
Supreme Court could not accept the Government’s untenable premise
sovereignty [was] the touchstone of habeas corpus
jurisdiction.” (109) Reminding the Government, the Supreme Court
The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited" and subject "to such restrictions as are expressed in the Constitution." (110)
In the past, the Court has interpreted the Constitution to have
force and application in
1. Located outside territorial boundaries:
jurisdictions of the United
States. (111) Though the Court held in the
“that the Constitution ha[d] independent force in [U.S.]
territories,” it developed a principle “that allowed it to use
1. Given to or marked by prudence and restraint in the use of material resources.
2. Deficient or limited in quantity, fullness, or extent.
3. Forbearing; lenient.
and where it would be most needed.” (113) This
doctrine of territorial incorporation, along with some of
Eisentrager’s factors, formed the Court’s analysis in
determining the reach of the Suspension Clause and the writ of habeas
corpus at Guantanamo Bay. (114) The Court looked to the following three
factors in determining the reach of relevant provisions of the
Constitution: (1) the status determination of the detainee and the
adequacy of those proceedings; (2) where the detainee was captured and
later detained; and (3) roadblocks in deciding the detainee’s claim
to the writ. (115)
CSRT Canadian Society of Respiratory Therapists
CSRT Combat Status Review Tribunal
CSRT Connecticut Society of Radiologic Technologists
proceedings against the petitioners were one-sided,
“fall[ing] … short of the procedures and adversarial mechanisms
that would eliminate the need for habeas corpus review.” (116)
Second, though the petitioners’ detention and
See also Isolation.
former federal maximum security penitentiary, near San Francisco; “escapeproof.” [Am. Hist.: Flexner, 218]
German prison ship in World War II. [Br. Hist.
outside of U.S. borders, the Government keeps them in a de facto
territory over which it exercises plenary control. (117) Last, there
were little to no roadblocks in extending the writ to the petitioners.
(118) With these factors running in the petitioners’ favor, the
Court recognized a truism never before considered in our Republic:
It is true that before today, the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the [petitioners'] cases before ... [the Court] lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American History. The detainees ... are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. (119)
Without barrier or
on point, the Supreme Court
declared that the non-citizen petitioners were entitled to the
constitutional privilege of the writ of habeas corpus, and that the
Suspension Clause had full effect at Guantanamo Bay. (120) Accordingly,
the Supreme Court found that section 7 of the MCA, Congress’s
statute, was an unconstitutional suspension of
the great writ. (121)
IV. THE NDAA AND ITS DETAINEE PROVISIONS
Following congressional passage of the NDAA, it seems that all the
branches of government have spoken on detainee issues: from the Supreme
Court finding implicit detention powers in Hamdi v. Rumsfeld; (122) to
the executive branch’s continuing war efforts, and its own
interpretation on the scope of its authorized force; (123) and ending
with Congress enacting the NDAA’s detainee provisions, which
reaffirmed the President’s detention powers under the AUMF. (124)
Therein lies a constitutional problem, however, once Congress passed the
NDAA’s detainee provisions, which directed the President to detain
certain enemies pursuant to the AUMF. (125)
Congress enacted the NDAA as a general appropriations and
defense-spending bill for the Defense Department (126) and declared its
congressional authority for doing so under varying provisions under
Article 1, Section 8 of the Constitution. (127) Congress passed
wide-ranging provisions under Title X
1. A secondary, usually explanatory title, as of a literary work.
2. A printed translation of the dialogue of a foreign-language film shown at the bottom of the screen.
D-Counterterrorism of the
NDAA, but of particular concern are the provisions under sections 1021
and 1022, which involve matters relating to the continuing conflict in
Afghanistan, detaining enemy combatants, and the AUMF. (128) The House
of Representatives passed what is now section 1021, (129) adopting,
almost verbatim, the Obama administration’s interpretation as to
the scope of the President’s detention authority under the AUMF.
(130) Though President Barack Obama expressed strong reservations about
some of the NDAA’s detainee provisions in an attached
, he championed the Act’s defense-spending provisions for
critical national interests and signed the NDAA into law on December 31,
As enacted, section 1021 of the NDAA reaffirms the President’s
adj. 1) referring to any act which is allowed by court order, legal procedure, or agreement. 2) tolerant or allowing of others’ behavior, suggesting contrary to others’ standards.
authority under the AUMF to detain indefinitely those covered
persons who were part of the September 11 terrorist attacks or those who
substantially supported forces against the United States. (132) Awaiting
their disposition under the laws of war, these classified persons may be
subject to detention without trial through the course of authorized
engagements, trial by Military Commission, trial by courts with lawful
jurisdiction, and custodial transfers to foreign countries. (133) It is
clear though, that section 1021 does not seek to “limit or
expand” the President’s authority or the AUMF’s reach,
nor does it purport to change existing law or precedent relating to U.S.
citizens and lawful resident aliens detained within the United States.
(134) Moreover, President Obama clarified in his signing statement that
his administration’s stance on section 1021 would exempt American
citizens from any authorized indefinite military detention since it runs
counter to our nation’s values. (135) Further, President Obama
declared that his administration would ensure that any detentions
arising under section 1021 would comply with “the Constitution, the
laws of war, and all other applicable law.” (136)
Continuing with section 1022 of the NDAA, Congress subjects foreign
persons to mandatory military detention if they are captured during
hostilities and are suspected of having ties with al-Qaeda; yet,
Congress exempts U.S. citizens or lawful resident aliens from this
mandatory military detention provision. (137) Regarding the military
detention mandate over non-U.S, citizens, the President may apply and
seek a waiver from Congress if it is in the interest of national
security. (138) Still, the President remains obligated to submit certain
protocols and procedures to Congress for purposes of implementing the
provisions in section 1022 of the NDAA. (139) Despite signing the NDAA
into law, President Obama disagreed with some of section 1022’s
provisions and stated that he would
v. to determine the meaning of the words of a written document, statute or legal decision, based upon rules of legal interpretation as well as normal meanings.
section 1022 broadly in
allowing the executive branch great flexibility in waiving any rigid
detention mandate that could hinder a response to threats of terrorism.
As the legislative branch instructed, President Obama submitted his
Policy Directive (“Directive”) to Congress regarding the
implementation of section 1022’s detainee provisions on February
28, 2012. (141) The President asserted in his Directive that the
rigidity of section 1022’s indefinite military detention mandate
could jeopardize the executive branch’s “ability to collect
intelligence and to
tr.v. in·ca·pac·i·tat·ed, in·ca·pac·i·tat·ing, in·ca·pac·i·tates
1. To deprive of strength or ability; disable.
2. To make legally ineligible; disqualify.
dangerous individuals.” (142)
Thus, citing the need for flexibility in confronting the evolving
threats posed by al-Qaeda and its associated forces, President
Obama’s Directive specifies which procedures
verb , concern, refer to, regard, be part of, belong to, apply to, bear on, befit, be relevant to, be appropriate to, appertain to
citizen detainees, when the military custody mandate in section 1022
applies, how the executive branch implements those requirements, and at
what time the Executive may waive those requirements. (143)
Despite any determination as to whether individuals are covered
persons, (144) section I(D) of the Directive declares that individuals
held by the Department of Defense–excluding U.S.
citizens–automatically fulfills the mandatory military provisions under
section 1022(a)(1) of the NDAA, and any further procedures outlined in
the Directive are wholly
to these individuals. (145) As
outlined in section VII of the Directive, even subsequent determinations
that an individual is a
n an individual who is eligible for benefits under a dental benefits program.
Health insurance An insured person who is eligible for medical benefits or other services covered by a health policy
by anything less than clear and
convincing evidence will not bear on the Executive’s ability to
detain that individual pursuant to the AUMF. (146) Essentially, reading
sections I(D) and VII of the Directive show that detained foreign
individuals suspected of being part of al-Qaeda or its associated forces
are subject to mandatory military detention under section 1022 of the
NDAA without further inquiry as to the individual’s true status as
an enemy combatant. (147)
In turn, sections 1021 and 1022 of the NDAA make it clear that
there is a congressional demarcation between two classifications of
persons with the potential for varying degrees of treatment and
confinement for citizen and non-citizen detainees alike. (148)
Buttressed with President Obama’s Directive, the applicability of
Congress’s military detention mandate are clear: if you are not a
citizen of the United States then you are readily subject to the mandate
and the threat of indefinite military detention. (149) This alienage
classification has serious implications under the Constitution, as will
be discussed in the following section. (150)
V. THE FIFTH AMENDMENT’S GUARANTEE OF EQUAL PROTECTION
Together, the Fifth and Fourteenth Amendments declare that
“[n]o person shall be … deprived of life, liberty or property,
without due process of law; (151) nor shall any State … deny to any
person within its jurisdiction the
equal protection of the laws
(152) By its very terms, the words expressed under the Fourteenth
Equal Protection Clause
extend to “persons,”
connoting its equal application to all. (153) As stated in
Yick Wo v.
of the Fourteenth Amendment to the U.S.
The Fourteenth Amendment to the Constitution is not confined to the protection of citizens.... [Its] provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, color, or nationality; and the equal protection of the laws is a pledge of the protection of equal laws. (155)
Though the Fifth Amendment lacks an express equal protection
clause, the same principles on which the drafters of the
addition to the U.S. Constitution, adopted 1868. The amendment comprises five sections.
Section 1 of the amendment declares that all persons born or naturalized in the United States are American citizens and citizens
built upon carry over to the Fifth Amendment’s Due
Process Clause. (156) These principles carry over in such a way that the
“equal protection obligations imposed by the Fifth and Fourteenth
Amendments a[re] indistinguishable.” (157)
Following from this premise, “an alien is surely a
‘person’ in any ordinary sense of that term,” which
entitles them to equal protection of the laws. (158)
Though aliens surely have rights under the Constitution, (159) the
tougher question then becomes whether those guarantees should extend to
alien detainees facing Executive detention in extraterritorial
jurisdictions. In Hamdi, the plurality opinion declared that citizen
detainees held on U.S. soil are entitled to Fifth Amendment Due Process
protections. (160) In light of the Court’s decision in Boumediene,
which held that non-citizen detainees at Guantanamo Bay were entitled to
the constitutional writ of habeas corpus, such persons should have
access to the same rights as those detained on U.S. soil–anything less
puts the liberty interests of citizens before those of aliens. (161)
“[W]hen the contours of personal liberty are not clear,
insistence upon equality in treatment will often be a way to achieve an
optimal result.” (162) Such is the case in the context of the NDAA:
reading sections 1021 and 1022 of the NDAA make clear that Congress
created an explicit classification of individuals for purposes of
varying treatment on the face of the law, impinging on the guarantees of
equal protection under the Constitution. (163) Qualifying the degree of
the Constitution’s reach on account of citizenship status or the
location of one’s confinement, either within the United States or
in extraterritorial jurisdictions under de facto U.S. control, is a
distinction without a purpose. (164) As Justice
Robert H. Jackson
The framers of the Constitution knew ... that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if large numbers were affected. Courts can take no better measure that laws will be just than to require that laws be equal in operation. (165)
If it is recognized that alien detainees like Omaid have access to
greater constitutional rights then they may have the ability to
challenge a federal law like the NDAA based on equal protection grounds.
When challenging a federal law on the basis of equal protection, it is
helpful to break down the analysis and ask three distinct questions
* What type of classification stems from the challenged law?
* What level of judicial scrutiny should the court apply?
* Does the particular government action meet the level of scrutiny?
Incorporating Omaid’s experience into this analytical
framework for equal protection scrutiny will help illustrate the
deficiencies within the NDAA’s detainee provisions. (167)
A. WHAT TYPE OF CLASSIFICATION STEMS FROM THE CHALLENGED LAW?
Under our hypothetical, Omaid is an Afghan citizen, readily subject
to Congress’s mandatory detention provisions and within the scope
of President Obama’s Directive. (168) From the onset of equal
protection analysis, it is essential to establish what type of
classification is at stake. (169) There are two ways in which to define
the classification stemming from the challenged law: either the law is
discriminatory on its face–that is, the law by its very terms
prejudices a class of individuals; or the law is facially neutral with a
discriminatory purpose and impact–that is, the discriminatory
classification is not apparent on the face of the law but has an
underlying discriminatory intent that results in discrimination upon the
affected class. (170)
Within the NDAA’s detainee provisions, Congress drew a
distinction amongst individuals and classified the degree of a
person’s confinement based on his or her citizenship. (171) The
status at issue affects an alienage classification: non-citizen
detainees are readily subject to mandatory detention, while U.S.
citizens and lawful resident aliens are patently exempt from such
detention mandates. (172) And Congress drew this alienage classification
in explicit terms by enacting a facially discriminatory law under
sections 1021 and 1022 of the NDAA. (173) After identifying the alienage
classification, we move to the critical step of determining the level of
judicial scrutiny. (174)
B. WHAT LEVEL OF JUDICIAL SCRUTINY SHOULD THE COURT APPLY?
As enacted, the NDAA’s detainee provisions are clear: by its
very terms, there is a discriminatory classification between citizens
and noncitizens for varying and unequal degrees of confinement on the
face of the law. (175) After establishing what classification is at
stake, it is necessary to consider what level of judicial scrutiny a
court should apply. (176) Generally speaking, alienage classifications
are suspect and warrant strict judicial scrutiny. (177) One of the
motivating factors for alienage discrimination has been “a bare
desire to harm a politically unpopular group.” (178) Furthermore,
“aliens as a class are a prime example of a ‘discrete and
/in·su·lar/ () pertaining to the insula or to an island, as the islands of Langerhans.
Of or being an isolated tissue or island of tissue.
minority’ … for whom such heightened judicial
1. The state of being solicitous; care or concern, as for the well-being of another. See Synonyms at anxiety.
2. A cause of anxiety or concern. Often used in the plural.
is appropriate.” (179) At times though, principles of
n. pl. con·gru·i·ties
1. The quality or fact of being congruous.
2. The quality or fact of being congruent.
3. A point of agreement.
between the Fifth and Fourteenth Amendments erode in the context of
federal alienage classifications, which ushers in rational basis review.
(180) Given the NDAA’s alienage classification and the national
security interests involved in wartime, the level of scrutiny courts
would impose remains unclear. (181)
Contextually, the NDAA’s detainee provisions
tr.v. im·pli·cat·ed, im·pli·cat·ing, im·pli·cates
1. To involve or connect intimately or incriminatingly:
rights of non-citizens during wartime. (182) Alienage classifications
that discriminate against non-citizens are “inherently
suspect,” which is similar to discriminatory classifications based
on national origin or race. (183) From this premise, it follows that an
exacting standard of review should follow. In
Korematsu v. United
, (184) the Supreme Court pronounced a rigorous standard of review
for purposes of equal protection scrutiny when it considered the forced
in international law, detention of the nationals or property of an enemy or a belligerent. A belligerent will intern enemy merchant ships or take them as prize, and a neutral should intern both belligerent ships that fail to leave its ports within a
of Japanese-American citizens. (185)
The Supreme Court began with a premise and declared classifications
based on race as subject to
[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. (186)
The fact that alienage classifications are strikingly similar to
those of race and national origin necessitate a heightened level of
scrutiny to protect the fundamental interests of equality and liberty
for citizens and noncitizens alike. (187) Korematsu is instructive for
providing the standard of review that should guide the courts in
analyzing the NDAA’s unequal detainee provisions–anything lower
than strict judicial scrutiny would compromise Omaid’s liberty
interest and right to equal treatment in the drawn-out conflict in
C. DOES THE PARTICULAR GOVERNMENT ACTION MEET THE LEVEL OF
Assessing the constitutionality of the NDAA’s detainee
provisions under strict judicial scrutiny requires analyzing the
law’s means and ends; and for a court to uphold the law, it must
deem the ends as compelling. (189) Concerning the ends, it is necessary
to look at the underinclusiveness of the NDAA’s detention
provisions to see if it applies equally to those who are
adj. with the same problems and circumstances, referring to the people represented by a plaintiff in a “class action,” brought for the benefit of the party filing the suit as well as all those “similarly situated.
under the law. (190) In the context of strict scrutiny, the
ends must be compelling, and the means to achieve that end must be a
close fit; so much so that “the means are necessary–the least
restrictive alternative–to achieve the goal.” (191)
Under section 1022 of the NDAA, the unequal detainee provisions are
convincingly underinclusive: only aliens are readily subject to
mandatory military detention, whereas U.S. citizens and lawful resident
aliens are clearly exempt from the mandate. (192) Even President
Obama’s Directive, which animates section 1022 of the NDAA, is
underinclusive. (193) These findings alone do not end the inquiry. We
must look to see whether the means are necessary to achieve the
Government’s goals. (194)
In the context of the AUMF and the armed conflict in Afghanistan,
never before has Congress or the President qualified the ability to
detain an enemy combatant because of his or her citizenship status.
(195) For even law of war principles–tenets
a. So intricate or entangled as to make escape impossible:
the AUMF reflect fundamental precepts of equality. (196) Even in the
face of war, there is still a need to curb military discretion for both
Congress and the President because the threat of force must be
proportionate to the dangers at hand. (197) The armed conflict in
Afghanistan has been ongoing for over ten years and now is the point in
time in which Congress seeks to
tr.v. rel·e·gat·ed, rel·e·gat·ing, rel·e·gates
1. To assign to an obscure place, position, or condition.
2. To assign to a particular class or category; classify. See Synonyms at commit.
a suspect class to unequal
detention on the face of the law? (198)
“[W]hen under conditions of
our shores are
threatened by hostile forces, the power to protect must be commensurate
with the threatened danger.” (199) The United States has in place
timetables for drawing down combat troops in Afghanistan by 2014. (200)
In light of these timetables, the judiciary must reassess the degree of
danger and the power to protect an individual’s liberty interests.
(201) Since active combat operations are winding down, should it follow
then that military discretion be less compelling? (202) While the
“[i]nvocation of … equal protection … does not
governmental body from dealing with the subject at hand[,] [i]t merely
means that the prohibition or regulation must have a broader
impact.” (203) This principle is lacking in the context of the
NDAA’s detainee provisions for the military’s present
interests are not as compelling as they once were when the plurality in
Hamdi declared that enemy combatants may be held through the course of
active combat operations. (204) As stated in Boumediene, “The laws
and Constitution are designed to survive, and remain in force, in
extraordinary times. Liberty and security can be reconciled … within
the framework of the law.” (205) Decidedly so, the NDAA’s
detainee provisions adversely affect Omaid’s interests for equal
protection of the laws under the Fifth Amendment’s Due Process
Clause, and his liberty interests must be reconciled in these most
troubling of times. (206)
On its face, the NDAA’s detainee provisions artificially draw
1. Roving, especially in search of adventure:
2. Straying from the proper course or standards:
alienage classification for unequal treatment and disparate
confinement. (207) “The U.S. prison camp at Guantanamo Bay stands
as a challenge to our nation. It challenges our readiness to do the
right thing in times of crisis, the times when it’s most important,
and most difficult, to
verb 1. , keep, maintain, respect, observe, be true, fulfil, obey, heed, keep to, abide by, be loyal, mind, be constant, be faithful
our founding principles and to follow
the rule of law.” (208) Now is the time to uphold equal liberty
interests for all in the face of executive detention and declare strict
judicial scrutiny for citizens and non-citizens alike. (209)
Under the Constitution, there are guarantees of equal protection of
the laws and safeguards for our most fundamental of rights. (210) These
principles apply equally amongst us, regardless of creed, color, or
country. (211) As Justice
“[C]onstitutional principles of equality … evolve over time; what
once was a ‘natural’ and ‘self-evident’ ordering
later comes to be seen as an artificial and
1. Tending to rouse ill will, animosity, or resentment:
human potential and freedom.” (212) Since Congress enacted the
NDAA’s invidious detainee provisions, (213) the very men and women
sworn to protect our most dear and
of rights threaten to
erode them in due time–life and liberty among them. (214) As the
Supreme Court recognized, “Security subsists … in fidelity to
freedom’s first principles. Chief among these are freedom from
arbitrary and unlawful restraint and the personal liberty that is
secured by adherence to the separation of powers.” (215)
We must recognize now–and not later–that this alienage
classification is anything but natural and stifles freedom for us all.
(216) For the drafters of the Declaration of Independence recognized
certain “truths to be self-evident, that
all men are created
….” (217) This
v. re·sound·ed, re·sound·ing, re·sounds
1. To be filled with sound; reverberate:
principle is on the precipice of
erosion. Recalling the words of Thomas Paine, “He that would make
his own liberty secure[,] must guard even his enemy from oppression; for
if he violates this duty[,] he establishes a precedent that will reach
to himself.” (218) Standing upon the shoulders of giants, I believe
that the NDAA’s detainee provisions are contrary to the guarantees
of equal protection and fundamental liberty interests for all persons
under the United States Constitution.
(1.) MAHVISH RUKHSANA KHAN, MY GUANTANAMO DIARY: THE DETAINEES AND
THE STORIES THEY TOLD ME 252 (2008).
(2.) GEOFFREY S. CORN ET AL., THE WAR ON TERROR AND THE LAWS OF
WAR: A MILITARY PERSPECTIVE xiii (2009).
(3.) National Defense Authorization Act for Fiscal Year 2012, Pub.
L. No. 112-81, 125 Stat. 1298 (2011).
& Steve Vladeck, The NDAA: The Good, the
Bad, and the Laws of War-Part I, OPINIO JURIS (Dec. 31, 2011, 5:19 PM),
In a following part of this document, statement, or book.
Formal or law from this point on in this document, matter, or case
Lederman & Vladeck, Part I]
(discussing the NDAA’s disputed detainee provisions); Benjamin
Wittes & Robert Chesney, NDAA
: A Guide for the Perplexed,
LAWFARE (Dec. 19, 2011, 3:31 PM),
(breaking down the NDAA’s detainee provisions in context with other
constitutional principles); see Marty Lederman & Steve Vladeck, The
NDAA: The Good, the Bad, and the Laws of War-Part II, OPINIO JURIS (Dec.
31, 2011, 5:20 PM), http://opiniojuris.org/2011/12/31/the-ndaa-the-good-the-bad-and-the-laws-of-war-part-ii (continuing the discussion of the
NDAA’s detainee provisions, focusing
heavily on section 1021 of the NDAA). See generally Jonathan
Hafetz, The NDAA and Military Detention, BALKINIZATION (Jan. 3, 2012,
9:49 AM), http://balkin.blogspot.com/2012/01/ndaaand-military-detention.html (
v. o·pined, o·pin·ing, o·pines
To state as an opinion.
To express an opinion:
on the controversial detainee provisions within the NDAA).
(5.) See hypothetical
Part I. The following hypothetical
centers on a fictional protagonist in a setting influenced by news
articles and current events; it is an amalgamation of both fact and
, Obama Will Speed
1. A withdrawal, especially of troops.
2. Change from a dive to level flight. Used of an aircraft.
3. An object designed to be pulled out.
From War in Afghanistan, N.Y. TIMES (June 22, 2011),
n. pl. prex·ies Slang
A president, especially of a college or university.
[Shortening and alteration ofpresident.]
.html?pagewanted=all (reporting that President Barack Obama
American Troops and transfer control over security
matters to the Afghan government); Ahmad Nadem & Ahmad Haroon,
Afghans Urge U.S. Exit After Killings; US Says Timetable Unchanged,
REUTERS Mar. 12, 2012,
http://www.reuters.com/article/2012/03/12/us-afghanistan-civilians-idUSBRE82A02V20120312 (accounting the Afghan peoples’ cry for an
expedited withdrawal of American combat forces in Afghanistan). But see
James Kirkup, Afghanistan: Casualties Will Not Affect Plans for Pull-Out
by 2014, Says
, THE TELEGRAPH (Mar. 08, 2012),
Afghanistan-casualties-will-notaffect-plans-for-pull-out-by-2014-says-David-Cameron.html (relaying news that President Obama and Prime Minister
David Cameron are committed to the 2014 timetables for pulling out of
Afghanistan in light of recent Afghan civilian causalities).
Alissa J. Rubin
, Afghan Protests Over the Burning of
Korans at a U.S. Base Escalate, N.Y. TIMES, Feb. 22, 2012,
(reporting on the increased violence and protest attributable to
American soldiers burning the Koran); Kevin Sieff, U.S. Probe of Koran
Burnings Finds 5 Troops Responsible, Officials say; Afghans Demand
Trial, THE WASH. POST, Mar. 2, 2012,
us-probe-of-koran-burning-finds-5-soldiers-responsible-afghan-clerics-demand-public -trial/2012/03/02/gIQAwJqYmR_story.html (reporting on an
investigative probe into the Koran burnings at Bagram air base by
American soldiers, which led to unrest, protest, attacks, and killings
(8.) See Taimoor Shah & Graham Bowley, U.S. Sergeant is Said to
Kill 16 Civilians in Afghanistan, N.Y. TIMES, Mar. 11, 2012,
on the aftermath of an American soldier who killed sixteen Afghan
civilians in Kandahar province and then surrendered to U.S. military
authorities there); Melisa Goh & Dana Farrington, U.S. Soldier in
Custody for Allegedly Shooting Afghan Villagers,
(Mar. 11, 2012,
01:48 AM), http://www.npr.org/blogs/thetwo-way/2012/03/11/148388254/u-s-service-member-detained-forallegedly-shooting-afghans (providing updates
about the U.S. soldier who shot and killed sixteen Afghan civilians in
Kandahar province as events unfolded).
(9.) See Shah & Bowley,
note 8 (reporting on President
Obama and Defense Secretary Leon Panetta’s condolences and promises
for investigations into the Afghan civilian killings); Gob &
Farrington, supra note 8 (reporting on President Obama’s
phone-apology to Afghan President Hamid
Karzai and the people of Afghanistan, which expressed deep regret and
sympathy and a vow to bring those responsible for the killings to
(10.) See Shah & Bowley, supra note 8 (documenting Afghan
President Hamid Karzai’s demand for justice for the killing of
innocent Afghan civilians).
(11.) See National Defense Authorization Act for Fiscal Year 2012,
Pub. L. No. 112-81, [section][section] 1021-1022, 125 Star. 1298 (2011),
for a comparison of the allegations brought against Omaid Parsa in this
fictional hypothetical to the language within the detainee provisions
under the NDAA.
(12.) See discussion infra Part III.
(13.) See infra text accompanying notes 148-49.
(14.) See discussion infra Part V.
(15.) See discussion infra Parts IV-V.
(16.) Authorization for Use of Military Force, Pub. L. No. 107-40,
115 Stat. 224 (2001).
(17.) See discussion infra Part II.
(18.) See discussion infra Part III.
(19.) See discussion infra Part IV.
(20.) See discussion infra Part V.
(21.) See discussion infra Part VI.
(22.) Hamdi v. Rumsfeld, 542 U.S. 507, 510 (2004) (plurality
opinion); Rasul v. Bush, 542 U.S. 466, 470 (2004).
(23.) See Hamdi, 542 U.S. at 510 (stating that Congress passed the
AUMF one week after September 11, 2001); Rasul, 542 U.S. at 470
(indicating that Congress’s enactment of the AUMF was in response
September 11 attacks
); Curtis A. Bradley & Jack L. Goldsmith,
War on Terrorism
: International Law, Clear Statement
Requirements, and Constitutional Design, 118
HARV High Altitude Research Vehicle
HARV High Altitude Reconnaissance Vehicle
. L. REV. 2683, 2683
(2005) (suggesting the AUMF, enacted on September 18, 2001, was the
central statutory enactment related to the war on terrorism).
(24.) Authorization for Use of Military Force, Pub. L. No. 107-40,
[section] 2(b), 115 Stat. 224 (2001) (citing War Powers Resolution, Pub.
L. No. 93-148, [section][section] 5(b), 8(a)(l), 87 Stat. 555 (1973))
(declaring that the AUMF is in line with War Powers Resolution and
constitutes “specific statutory authorization” to introduce
the U.S. Armed Forces into hostilities); see MARY L. DUDZIAK, WAR TIME:
AN IDEA, ITS HISTORY, ITS CONSEQUENCES 104 (2012) (observing that
lawmakers acted quickly in a post-September 11 environment by enacting
the AUMF); Geoffrey S. Corn, What Law Applies to the War on Terror?, in
GEOFFREY S. CORN ET AL., THE WAR ON TERROR AND THE LAWS OF WAR: A
MILITARY PERSPECTIVE 1, 6 (2009) [hereinafter Corn, What Law Applies to
the War on Terror?] (identifying President Bush’s belief that the
September 11 terrorist attacks were an “armed attack” against
the United States, and noting that he and Congress almost immediately
invoked the War Powers Resolution to combat al-Qaeda–an international
terrorist network without a sovereign nation). See generally Curtis A.
Bradley & Jack L. Goldsmith, Congressional Authorization and the War
on Terrorism, 118 HARV. L. REV. 2047, 2072-78 (2005), for a discussion,
survey, and comparison on the historical perspectives of past
congressional authorizations of military force.
(25.) Authorization for Use of Military Force pmbl. (declaring that
the AUMF formally and explicitly recognized the following declarations:
that violent terrorist attacks were launched against the United States
on September 11, 2001; that this Nation has a right to self-defense and
to protect its citizens; that the attacks not only threatened our
welfare, but pose a continuing threat to our national security and
foreign policy interests; and that the President has the constitutional
authority to thwart acts of terrorism against this Country); see
DUDZIAK, supra note 24, at 104 (viewing the purpose of the AUMF as
preventing future terrorist attacks against the United States).
(26.) DUDZIAK, supra note 24, at 104 (noticing that, while Congress
did not make a formal declaration of war, the AUMF was the functional
equivalent of one).
(27.) See Authorization for Use of Military Force pmbl.; Bradley
& Goldsmith, supra note 24, at 2056-57 (
tr.v. de·bunked, de·bunk·ing, de·bunks
To expose or ridicule the falseness, sham, or exaggerated claims of:
regarding the scope of the President’s authority under the AUMF to
include the following: (1) that the President’s congressionally
prescribed use of force by resolution does not limit presidential war
powers for want of a formal declaration of war; and (2) that
categorizing skirmishes as something other than a “war” (i.e.,
an armed conflict) does not limit Congress’s authorization of force
that the President may exercise); see also BLACK’S
967 (9th ed. 2009) (defining the laws of war as “[t]he rules and
principles agreed on by most nations for regulating matters inherent in
or incident to the conduct of a public war, such as the relations of
neutrals and belligerents, blockades, captures, prizes, truces and
armistices, capitulations, prisoners, and declarations of war and
peace”); Corn, What Law Applies to the War on Terror?, supra note
24, at 1 n.2 (defining the law of war as “governing the conduct of
belligerents engaged in armed conflict”).
(28.) See DUDZIAK, supra note 24, at 113 (noting that it is one
thing to suspend laws in temporally defined moments of war and entirely
another in this wartime era–where the conflict is akin to an ideology);
Bradley & Goldsmith, supra note 24, at 2068 (“[T]he AUMF was
enacted against an international law backdrop that focuses not on
‘war,’ but rather on ‘armed attacks’ and ‘armed
conflicts’–concepts that are not limited to state actors.”).
The United Nations Charter recognizes the fight of states to use force in self-defense in response to an "armed attack." The Charter does not specify that the attack must come from another state, and the Security Council appears to have recognized that the September 11 attacks were armed attacks triggering the right of self-defense under the Charter. Similarly, both the North Atlantic Treaty Organization and the Organization of American States treated the attacks as "armed attacks" for purposes of their collective self-defense provisions.
Bradley & Goldsmith, supra note 24, at 2068-69.
(29.) Authorization for Use of Military Force [section] 2(a); see
Bradley & Goldsmith, supra note 24, at 2082 (surveying the history
and contexts with which Congress previously authorized the presidential
use of military force leads to the conclusion that the AUMF confers
broad–or even broader–presidential authority to conduct military
operations as compared with traditional declarations of war). Under the
AUMF, Congress sanctioned broad military powers to the President:
[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Authorization for Use of Military Force [section] 2(a).
(30.) See Bradley & Goldsmith, supra note 24, at 2077 (finding
that, overall, the scope of congressional resolutions tend to restrict
the President’s authorized use of force to an express and/or
implied enemy or purpose).
1. Open to argument:
2. That can be argued plausibly; defensible in argument:
, the enemies subject to force under
the September 18, 2001, AUMF is broader than formal declarations of war.
Id. at 2082. The president declares who is involved with the September
11 attacks, and who is subject to his authorized use of force. Id.
Contrasting with formal declarations of war, the AUMF only describes,
instead of names, the enemies subject to the President’s authorized
force; and, the AUMF clearly authorizes the President to determine which
persons or entities qualify as enemy combatants. Id.
(31.) Id. at 2079.
(32.) See id. at 2080-81 (asserting that the President’s
“necessary and appropriate force” pursuant to the AUMF is a
broad conferral of power paralleling the congressional powers found in
the Necessary and Proper Clause under Article I, Section 8, Clause 18 of
the Constitution). Even though the AUMF does not confer unchecked and
unfettered power into the hands of the President, his powers are still
broad enough to wage and conduct war with almost unlimited resources or
employable methods. Id. at 2081-83.
(33.) See DUDZIAK, supra note 24, at 105 (opining that the concept
of “wartime” in a post-September 11 era supported U.S.
military action and treatment against detained enemy combatants).
(34.) Authorization for Use of Military Force [section] 2(a); see
Bradley & Goldsmith, supra note 24, at 2072, 2078 (categorizing all
congressional authorizations of military force that allow the President
to use such force into the following components: “(1) the
; (2) the authorized methods of force; (3)
the authorized targets; (4) the purpose of the use of force; and (5) the
timing and procedural restrictions on the use of force”).
(35.) CORN ET AL., supra note 2, at xiv (recognizing that after the
United States declared war against a transnational terrorist
organization, it was difficult to pinpoint which category these forces
belonged to under the Geneva Conventions for purposes of triggering the
laws of war).
(36.) Id. at xiii (observing that, prior to the September 11
attacks, the U.S. military legal profession understood there to be two
triggers for the laws of war under varying articles within the 1949
Geneva Conventions: the first trigger is Common Article 2, which covers
international warfare between nations for furthering respective national
purposes–in other words, it was interstate armed conflict between two
states to accomplish some sovereign purpose; and the second trigger is
Common Article 3, which covers non-international warfare involving
internal conflicts–in other words, Common Article 3 covered intra-state
armed conflict where state armed forces battled against an internal
threat with military capabilities).
(37.) See Corn, What Law Applies to the War on Terror?, supra note
24, at 3 (stating that prisoners of war are afforded the benefit of
claiming law of war protections).
(38.) See CORN ET AL., supra note 2, at xiv (explaining that the
operations of the United States when it invoked the power of war against
non-state transnational terrorists did not fit into the two situations
in which the laws of war could apply).
(39.) See id. at xiii-xiv (noting that, after the confusion after
the Vietnam War, the Department of Defense’s official stance was to
adopt and comply with law of war concepts, regardless of the formal
categorization of the conflict or military operation, for purposes of
efficient operational planning for its military forces and personnel).
There were numerous military operations between the Vietnam War and
September 11 that would not have triggered traditional law of war
concepts, but the conflicts were treated as such for operational and
decision making needs in areas such as military detentions, medical
treatment, and detainee interrogations. Id. After such conflicts, the
default rule for commanding officers was to use traditional law of war
(40.) See Corn, What Law Applies to the War on Terror?, supra note
24, at 1-2; supra text accompanying note 35.
[A]n "either/or" law-triggering paradigm ... dictated when the [laws of war] ... applied to U.S. operations: either those operations [that] involved hostilities against the armed forces of another State so as to qualify as international armed conflicts; or they involved hostilities against insurgent forces within a State on whose behalf the United States had intervened, thereby falling into the alternative category of internal armed conflict.
Corn, What Law Applies to the War on Terror?, supra note 24, at
(41.) See Corn, What Law Applies to the War on Terror?, supra note
24, at 3.
(42.) Id.; see Bradley & Goldsmith, supra note 24, at 2070
(asserting that both the Executive and Legislative Branches construed
the military operations in Afghanistan as a war; and, for purposes of
law of war concepts, persons defined under the AUMF are treated as enemy
combatants). In the eyes of the U.S. military, the limited rule-based
application of law of war principles became apparent when American
forces began detaining opposition fighters. Corn, What Law Applies to
the War on Terror?, supra note 24, at 1-2. Top military brass advised
commanders on the battlefield to stop treating detainees as if they were
protected belligerents under the laws of war, and the officials directed
commanders to treat the detainees as unlawful enemy combatants. Id. The
new enemy combatant status would preclude these detainees from
safeguards normally afforded to them under the laws of war. Id.
(43.) See Corn, What Law Applies to the War on Terror?, supra note
24, at 3-4.
(44.) See id. at 4 (“A new [U.S.] legal position began to
emerge: the authority of the [laws of war] would be asserted to provide
the legal basis for the execution of military operations against
al-Qaeda–an entity considered to be engaged in an armed conflict with
the United States; however, … al-Qaeda captives were afforded no such
claim to [law of war] protections because the conflict they engaged in
defied classification under either Common Article 2 or 3.”).
(45.) See id. at 5 (describing the Bush Administration’s use
of tenets under the laws of war for claimed military action over
al-Qaeda forces while, at the same time, illustrating the ambiguity of
classifying al-Qaeda under the laws of war, precluding them from any
claimed law of war protections). The Bush Administration believed there
were two clear-cut triggering mechanisms for law of war principles under
Common Article 2 or 3 of the
, Fr. Genève, canton (1990 pop. 373,019), 109 sq mi (282 sq km), SW Switzerland, surrounding the southwest tip of the Lake of Geneva.
Convention–principles that applied
distinctly independent from one another–namely: (1) armed conflict
between the armies of two or more States or Nations; and (2)
non-international armed conflicts contained within a State or Nation.
Id. This state of limbo allowed the United States to assert its military
prowess against these authorized targets pursuant to the AUMF and the
laws of war, but precluded al-Qaeda detainees from triggering any legal
claim to protections afforded to prisoners of war. Id. at 4-5.
(46.) Id. at 9. “Accordingly, this ‘transnational armed
conflict’ fell into a regulatory gap produced ironically by [law of
war] provisions developed for the specific purpose of eliminating such
definitional law-avoidance.” Id. at 10.
(47.) Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
(48.) See Hamdan, 548 U.S. at 562; Corn, What Law Applies to the
War on Terror?, supra note 24, at 12.
(49.) See Corn, What Law Applies to the War on Terror?, supra note
24, at 12.
(50.) See discussion infra Parts III.A-C.
(51.) See id.
(52.) See DUDZIAK, supra note 24, at 3.
(53.) See discussion infra Parts III.A-C.
(54.) See infra note 75 and text accompanying note 76; infra text
accompanying notes 92, 120, 121.
(55.) See discussion infra Parts III.A-C.
(56.) Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (plurality opinion).
(57.) Id. at 516.
(58.) Id. at 510; see discussion supra Part II. Hamdi was born a
U.S. citizen in Louisiana in 1980, but later moved abroad with his
, officially Kingdom of Saudi Arabia, kingdom (2005 est. pop.
. Hamdi, 542 U.S. at 510. Around 2001, Hamdi
resided in Afghanistan when the Northern Alliance, a militia opposed to
the Taliban, captured and turned him over to the U.S. military. Id.
(59.) Hamdi, 542 U.S. at 510. Initially, the U.S. military detained
and interrogated Hamdi in Afghanistan, subsequently transferred him to
Guantanamo Bay, Cuba, and ultimately relocated him to a naval brig in
state of the SE United States. It is bordered by North Carolina (N), the Atlantic Ocean (SE), and Georgia (SW).
Facts and Figures
Area, 31,055 sq mi (80,432 sq km). Pop. (2000) 4,012,012, a 15.
upon learning of Hamdi’s U.S.
(60.) Id. at 510-11. The Government defined an enemy combatant it
seeks to detain as “an individual who, it alleges, was part of or
support[ed] forces hostile to the United States or coalition partners in
Afghanistan and who engaged in armed conflict against the United States
there.” Id. at 516 (internal
the punctuation marks used to begin and end a quotation, either “ and ” or ` and ‘
(61.) Id. at 511; see BLACK’S LAW DICTIONARY 778 (9th ed.
2009) (defining the writ of habeas corpus as a means “employed to
bring a person before a court, most frequently to ensure that the
person’s imprisonment or detention is not illegal”). Once the
lower court determined that Hamdi’s father, Esam Fouad Hamdi, had
standing to petition for a writ of habeas corpus as next of friend on
behalf of his son, Hamdi’s father challenged the basis of his
son’s detention. Hamdi, 542 U.S. at 511-12. Hamdi’s detention
revolved around a Special Agent’s declaration (the “Mobbs
Declaration”), which indicated the agent’s familiarity with
the facts and circumstances related to Hamdi’s detention, the
agent’s knowledge of Department of Defense policies pertaining to
the detention of al-Qaeda and Taliban forces, and the agent’s close
ties and involvement with military detentions of such forces. Id. at
512. Through preliminary and subsequent U.S. military screenings and
interviews with Hamdi, the Agent claimed that Hamdi was associated with
Taliban forces when Hamdi traveled to Afghanistan in the summer of 2001,
that Hamdi’s Taliban unit surrendered to coalition forces there,
and that Hamdi was deemed an enemy combatant based on his association
with the Taliban. Id. at 512-13. On instructions from the Fourth Circuit
Court of Appeals, the District Court considered the sufficiency of the
Mobbs Declaration to detain Hamdi, but the lower court criticized the
Declaration as mere
and ordered the Government to produce
anything or anyone (i.e., essentially all documents, statements, lists
of interrogators, etcetera) who made Hamdi’s enemy combatant status
determination. Id. at 513-14. The Government appealed the production
order, to which the Fourth Circuit Court of Appeals concluded the
following: (1) since Hamdi was captured in an active combat area, there
was no basis for a factual or
1. Of evidence; evidential.
2. For the presentation or determination of evidence:
hearing to dispute the
Government’s assertions; and (2) if deemed accurate, the Mobbs
Declaration standing alone was ample authority for the President to
detain Hamdi pursuant to the President’s war powers. Id. at 514.
(62.) See 18 U.S.C. [section] 4001(a) (2006) (“No citizen
shall be imprisoned or otherwise detained by the United States except
pursuant to an Act of Congress.”); Hamdi, 542 U.S. at 517
(“Congress passed [section] 4001(a) in 1971 as part of a bill to
repeal the Emergency Detention Act of 1950, 50 U.S.C. [section] 811
(et seek) n. abbreviation for the Latin phrase et sequentes meaning “and the following.” It is commonly used by lawyers to include numbered lists, pages or sections after the first number is stated, as in “the rules of the road are found in Vehicle Code
., which provided procedures for executive detention, during times of
emergency, of individuals deemed likely to engage in espionage or
sabotage. Congress was particularly concerned about the possibility that
the Act could be used to
a. A repetition of a phrase or verse.
b. A return to an original theme.
2. A recurrence or resumption of an action.
the Japanese-American internment camps
of World War II.”) (citation omitted).
(63.) Hamdi, 542 U.S. at 516-17; see discussion supra Part II.
Under section 4001(a), detaining U.S. citizens is proper so long as the
Government’s detention is pursuant to an Act of Congress. Hamdi,
542 U.S. at 517 (citing [section] 4001(a)). The Government argued it had
complied with [section] 4001(a) since the AUMF was an Act of Congress,
which justified Hamdi’s detention. Id. at 517.
(64.) Id. at 517-20 (recognizing the high degree of risk in
detaining individuals perpetually in an unconventional war with no clear
end); see DUDZIAK, supra note 24, at 121 (observing Justice
O’Connor’s concern with the real prospect of Hamdi’s
perpetual detention); Bradley & Goldsmith, supra note 24 at 2083-84
(recognizing that the plurality in Hamdi did not insist that the
AUMF’s language be narrowly tailored to any specific incident of
war; i.e., that there be a close fit between the force authorization and
detaining enemy combatants). The Supreme Court agreed with the
Government’s position and declared that the AUMF was a
congressional act, which satisfied 18 U.S.C. [section] 4001(a)’s
requirement that U.S. citizens be detained “pursuant to an Act of
Congress,” and allowed for the detention of individuals within the
Court’s narrowly fashioned category of enemy combatants. Hamdi, 542
U.S. at 516-17. All the while, the Government maintained throughout the
litigation that it could not release Hamdi for fear he could rejoin
enemy forces; this fear justified his indefinite and prolonged
detention. Id. at 520. Even if this unconventional war could not be won
within two generations, Hamdi could very well languish in prison
(65.) Hamdi, 542 U.S. at 518, 521 (alteration in original)
(citation omitted); see Bradley & Goldsmith, supra note 24, at 2053
(discussing the plurality opinion’s conclusion that the President
could detain citizen and non-citizen enemy combatants through the course
of active combat operations pursuant to implicit authority under the
AUMF). Expanding further upon its findings, the Court established that
detaining enemy combatants pursuant to the AUMF was a “fundamental
and accepted incident of war” within the scope of Congress’s
delegation of presidential authority to use “necessary and
appropriate force” against those countries, groups, or individuals
associated with the September 11 terrorist attacks. Hamdi, 542 U.S. at
517-18. The Court further recognized that the ability to restrain
enemies from returning to combat was of no consequence despite the fact
that the AUMF lacked specific statutory language pertaining to detaining
the enemy since Congress clearly authorized the President to use all
“necessary and appropriate force.” Id. at 519.
(66.) Hamdi, 542 U.S. at 524.
(67.) See id. at 524-25 (arguing that out-of-court government
detentions founded solely on third-party hearsay along with the denial
of a meaningful and timely hearing run counter to what is owed under the
Fifth and Fourteenth Amendments). See generally Carey v. Piphus, 435
U.S. 247, 259 (1983) (recognizing the distinction between substantive
and procedural due process: the former is a deprivation of life,
liberty, property, or some fundamental right; while the latter is a
means of challenging an accidental or purposeful deprivation of fights);
, 407 U.S. 67, 80 (1972) (“For more than a century
the central meaning of procedural due process has been clear: Parties
whose rights are to be affected are entitled to be heard; and in order
that they may enjoy that right they must first be notified. It is
equally fundamental that the right to notice and an opportunity to be
heard must be granted at a meaningful time and in a meaningful
manner.”) (citations omitted) (internal quotation marks omitted).
(68.) Hamdi, 542 U.S. at 525 (asserting that affording Hamdi with
extra process would be both unfeasible and contrary to the
Constitution). But cf. id. at 530 (notwithstanding the Government’s
vital interest in national security to detain those persons deemed an
immediate threat in armed conflicts, a system of free-reign carries the
risk of oppressing or abusing those detainees who do not pose such a
CONST Under Construction
CONST Commission for Constitutional Affairs and European Governance
. art. I, [section] 9, cl. 2 (“The Privilege
of the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it.”);
U.S. CONST. amend. V (“No person shall be … deprived of life,
liberty, or property, without due process of law….”); U.S. CONST.
amend. XIV, [section] 1 (“No State shall.., deprive any person of
life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.”);
Hamdi, 542 U.S. at 525 (declaring that, notwithstanding
n a prayer requesting and inviting the presence of God.
the Suspension Clause, every person detained in the United States has
access to the writ of habeas corpus; and the nature of the writ of
habeas corpus is vital to the Judiciary in ensuring that the Executive
detains individuals according to the law); see also Hamdi, 542 U.S. at
528-29 (citing Mathews v. Eldridge, 424 U.S. 319 (1976)) (explaining
that the methodology under the Mathews test was “for balancing such
serious competing interests” and for establishing necessary
procedures to guard against Fifth and Fourteenth Amendment due process
(70.) Mathews, 424 U.S. at 335; see Hamdi, 542 U.S. at 529
(considering the Mathews
branch of mathematics that studies continuously changing quantities. The calculus is characterized by the use of infinite processes, involving passage to a limit—the notion of tending toward, or approaching, an ultimate value.
, the Supreme Court found that the
asserted interests on either side remained in near
Medical ethics A state of uncertainty regarding the pros or cons of either therapeutic arm in a clinical trial
were “substantial interests” relegated to both Hamdi’s
private interest and the Government’s asserted interest;
ultimately, the scales tipped in favor of Hamdi, and the plurality
afforded him the constitutional process he had not yet received. Hamdi,
542 U.S. at 529.
, The Assault on the Constitution:
Executive Power and the War on Terrorism, 40 U.C.
city (1990 pop. 46,209), Yolo co., central Calif.; settled in the 1850s, inc. 1917. It is an education center with light industry; machinery, processed foods, and computer equipment are produced. The extensive Univ.
L. REV. 1, 10-11
(2006) [hereinafter Chemerinsky, The Assault on the Constitution]
(breaking down the balancing test in Mathews, which “instructs
courts to weigh the importance of the interest to the individual, the
ability of additional procedures to reduce the risk of an erroneous
deprivation, and the government’s interests”).
(72.) Hamdi, 542 U.S. at 528-29; see Foucha v. Louisiana, 504 U.S.
71, 80 (1992) (recognizing that freedom from bodily restraint is the
bedrock of liberty protected under the Due Process Clause); Parham v.
J.R., 442 U.S. 584, 600 (1979) (observing involuntary confinement as
being a “substantial liberty interest”);
Meyer v. Nebraska
262 U.S. 390, 399 (1923) (finding that liberty itself remains
unmistakably ill-defined, but the underpinnings of liberty clearly
include freedom from bodily restraint); see also Chemerinsky, The
Assault on the Constitution, supra note 71, at 10.
(73.) Hamdi, 542 U.S. at 531. Not even the complexities of war
could tip the scales in the Government’s favor while Hamdi’s
freedom from bodily restraint remained at stake. Id. at 530.
(74.) Id. at 531. The Court observed that the necessary realities
of military operations and the laws of war clearly render detention of
enemy combatants a necessary incident of the Executive’s powers
under the AUMF. Id. What is more, the Government asserted that any
extra-afforded process to Hamdi would greatly hamper the
Executive’s ability to wage war, and required compliance with
judicial discovery proceedings would obtrusively invade on sensitive
national security interests. Id. at 531-32. The Supreme Court
acknowledged these important Government interests and burdens when it
attempted to “[s]trik[e] the proper constitutional balance”
with the asserted interests involved. Id. at 532.
(75.) Id. at 532-33. While the Plurality gave proper regard to the
Government and Hamdi’s competing interests under the Mathews
calculus, it recognized that “the risk of … erroneous
deprivation” towards Hamdi was unconstitutionally high given the
lack of process that the Government afforded him. Id. (quoting Mathews,
424 U.S. at 335) (internal quotation marks omitted). Taking into
consideration the Executive’s necessary duties in the arena of war,
Government hearsay, which formed the sole basis for Hamdi’s
detention, might be “the most reliable evidence” the
Government relies upon in such proceedings; but at the very least, the
fundamental principles of due process afford enemy-combatants, like
Hamdi, an opportunity to rebut the evidence presented against him. Id.
(76.) Id. at 533; see Chemerinsky, The Assault on the Constitution,
supra note 71, at 10-11 (recognizing that, even though the Supreme Court
failed to specify the exact due process procedures the Government needed
to afford Hamdi, the majority opinion ruled eight-to-one explicitly in
favor of affording Hamdi a meaningful and factual hearing).
(77.) Rasul v. Bush, 542 U.S. 466 (2004).
(78.) Id. at 470. A relic of the
1898, brief conflict between Spain and the United States arising out of Spanish policies in Cuba. It was, to a large degree, brought about by the efforts of U.S. expansionists.
, the United
States entered into a lease agreement in 1903 with newly liberated Cuba,
the terms of which allowed the United States to control the military
installation at Guantanamo Bay. Id. at 471. Under the 1903 lease
agreement, the United States exercised complete control over the
territory. Id. In 1934, Cuba and the United States executed a treaty
that would continue the lease (notwithstanding an amendment by the
nations to modify the treaty) as long as the United States did not
abandon the naval station in Guantanamo Bay. Id.
(79.) Id. at 470. Specifically, the Court addressed whether these
foreign nationals captured during hostilities in Afghanistan, and faced
with the potential of indefinite detention at the hands of the
Executive, could seek federal habeas corpus relief by invoking federal
court jurisdiction. See id. at 470, 475, 485.
(80.) See discussion supra Part 11.
(81.) Rasul, 542 U.S. at 470-71.
(82.) Id. at 471-72. The petitioners included two Australians,
Mamdouh Habib and
, and thirteen Kuwaitis, among them Fawzi
and Fahad Al Odah. Id. Petitioners invoked federal court
jurisdiction under 28 U.S.C. [section][section] 1331 and 1350–federal
subject matter jurisdiction and the
alien tort statute
title 28, respectively–to compel a hearing on various claims
Administrative Procedure Act
n. the Federal Act which established the rules and regulations for applications, claims, hearings and appeals involving governmental agencies.
, 5 U.S.C.
[section][section] 555, 702, 706; the Alien Tort Statute, 28 U.S.C.
[section]1350; and the general federal habeas corpus statute, [section]
[section] 2241-2243.” Id. at 472.
(83.) Id. at 471-72. The Australians filed their habeas petitions
and sought relief from their custodial confinement; specifically, they
asked for the fight to consult an attorney and to be free from
interrogations. Id. The Kuwaitis petitioned the court to hear their
charges; they requested to see friends, legal counsel, and for lawful
access to the courts. Id.
(84.) Johnson v. Eisentrager, 339 U.S. 763, 768, 771,776 (1950).
(85.) See Rasul, 542 U.S. at 472-73. In Eisentrager, the Supreme
Court declared “that a Federal District Court lacked authority to
issue a writ of habeas corpus to 21 Germans citizens who had been
captured by U.S. forces in China, tried and convicted of war crimes by
an American military commission headquartered in Nanking, and
/in·car·cer·at·ed/ () imprisoned; constricted; subjected to incarceration.
Confined or trapped, as a hernia.
in occupied Germany.” Id. at 475.
Relying on Eisentrager, the district court held that “aliens
detained outside the sovereign territory of the United States [may not]
invok[e] a petition for a writ of habeas corpus.” Id. at 472-73
(alteration in original) (citation omitted). The appellate court
affirmed, believing that Eisentrager held that “the privilege of
litigation does not extend to aliens in military custody who have no
presence in any territory over which the United States is
sovereign.” Id. at 473 (citations omitted). Additionally, the
appellate court dismissed the remaining federal claims that did not
sound in habeas. Id.
(86.) See id. at 474. The following cases are instances in which
the Supreme Court has entertained habeas corpus petitions:
, was an important United States Supreme Court case involving civilians and military tribunals. Background of the case
, where an American citizen during the Civil War planned attacks
against military compounds;
Quirin, where wartime enemy
belligerents held in the United States were charged and convicted of war
crimes; and In re Yamashita, where enemy belligerents were held at U.S.
controlled island installations. Id. at 47475 (citations omitted).
(87.) Id. at 476.
(88.) See id. at 475 (declaring that Eisentrager’s six factors
only pertain to a petitioner’s entitlement to habeas relief under
the Constitution, and its decision made little mention as to its
applicability to statutory habeas relief); Eisentrager, 339 U.S. at 777
(confronting the decision before the Supreme Court on the premise that
prisoners are constitutionally entitled to bring suit in U.S. courts for
a writ of habeas corpus). To support the premise that a military
prisoner is entitled to bring habeas actions in U.S. courts, the Supreme
Court in Eisentrager declared that such a prisoner is:
Constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.
Eisentrager, 339 U.S. at 777.
(89.) See Rasul, 542 U.S. at 478.
(90.) Id. at 478-79 (citing Braden v. 30th Judicial Circuit Court
of Ky., 410 U.S. 484, 494-95 (1973)).
(91.) Id. at 481.
(92.) See id. at 484. Concerning the petitioners’ other
invocations of federal court jurisdiction (federal question under
section 1331 and section 1350 of the Alien Tort Statute found within
title twenty-eight), the appellate court erroneously affirmed the
dismissal of petitioners’ claims for want of jurisdiction when it
relied on Eisentrager to hold that aliens lacked the privilege of
bringing suit in the United States. See id. Just because the
petitioners’ other actions just so happen to involve laws similar
to the federal habeas corpus statute does not mean that federal courts
are barred from hearing those actions. See id. The Eisentrager decision
“erect[ed] no bar to the exercise of federal-court jurisdiction
over the petitioners’ habeas claims.” See id. Additionally,
neither Eisentrager nor any other case “categorically excludes
aliens detained in military custody outside the United States from the
‘privilege of litigation’ in U.S. courts.” See id.
(93.) Boumediene v. Bush, 553 U.S. 723 (2008).
(94.) Id. at 732. Said another way, the Supreme Court considered
“whether foreign nationals, apprehended and detained in distant
countries during a time of serious threats to our Nation’s
security, may assert the privilege of the writ [of habeas corpus] and
seek its protection.” Id. at 746.
(95.) See discussion supra Part III.A.
(96.) Boumediene, 553 U.S. at 733-34.
(97.) Id. at 734; see Lakhdar Boumediene, My Guantanamo Nightmare,
N.Y. TIMES, Jan. 07, 2012,
http://www.nytimes.com/2012/01/08/opinion/sunday/my-guantanamo-nightmare.html [hereinafter My Guantamamo Nightmare]. Lakhdar Boumediene lived in
Algeria prior to moving with his family to Bosnia in 1997. My Guantanamo
Nightmare, supra. In Bosnia, Boumediene worked as a director for a
organization and became a citizen in 1998. Id. On
October 19, 2001, Boumediene arrived for work in the morning when an
intelligence officer questioned him about news reports that Boumediene
planned to blow up the U.S. embassy in Sarajevo, but he had never
undertaken to plot such an atrocity. Id. The U.S. demanded that local
authorities arrest Boumediene and five others in connection with the
alleged terrorist plot. Id. Bosnia’s highest court investigated the
matter, found no evidence of any planned terrorist attack, and ordered
their release. Id. Upon his release from custody with local authorities,
U.S. agents seized Boumediene and the others, and flew them to
Guantanamo Bay, Cuba on January 20, 2002. Id. Boumediene was held
incommunicado in the detention center at Guantanamo Bay where he was
beaten, interrogated, and tortured at the hands of his American captors.
Id. In protest of his unlawful confinement, Boumediene went on a
refusal to eat as a protest against existing conditions. Although most often used by prisoners, others have also employed it. For example, Mohandas Gandhi in India and Cesar Chavez in California fasted as religious penance during otherwise political or
and maintained his innocence throughout the ordeal; then, in
2008, the Supreme Court granted review of his case. Id.
(98.) Boumediene, 553 U.S. at 734. The petitioners’ cases
began around February 2002, and the lower courts dismissed the cases for
lack of jurisdiction because the naval station at Guantanamo Bay was
outside of U.S. territory. Id. The Supreme Court reversed in light of
its ruling in Rasul v. Bush, which held that detainees had statutory
access to the writ of habeas corpus under 28 U.S.C. [section] 2241. Id.
Following Rasul, the petitioners’ cases reached opposite
conclusions at the district court level: in one proceeding, Judge
Richard J. Leon held that the detainees had no rights to assert in their
habeas corpus petitions; in a different proceeding, Judge
held that the detainees had rights under Fifth Amendment’s
Due Process Clause. Id. at 734-35.
(99.) Id. at 735. In its attempt to amend 28 U.S.C. [section] 2241,
Congress enacted the Detainee Treatment Act (DTA) of 2005. Id. Section
1005(e) of the DTA stripped the federal courts of jurisdiction to hear
applications for writs of habeas corpus on brought by alien detainees at
Guantanamo Bay, Cuba and gave the District Court for the District of
Columbia exclusive jurisdiction to hear CSRT decisions. Id. Following
its decision in Hamdan v. Rumsfeld, the Supreme Court held that section
1005(e) of the DTA did not apply to matters that were already pending in
the federal courts at the time of its passage. Id. (citing Hamdan v.
Rumsfeld, 548 U.S. 557, 576-77 (2006)).
(100.) Id. In its response to Hamdan, Congress enacted section
seven of the MCA, which amended 28 U.S.C. 2241 in several ways: first,
it prohibited federal courts and judges from hearing applications for
writs of habeas corpus brought by (or on behalf of) those detainees at
Guantanamo Bay deemed enemy combatants (or those awaiting such status
determinations); second, it limited the ability of federal courts and
judges from entertaining actions brought against the United States
concerning any matters relating to the confinement or treatment of alien
detainees at Guantanamo Bay; and last, the effective date of this
provision would apply to all cases (both future and pending) relating to
Guantanamo detainees as far back as September 11, 2001. Id. at 735-37.
(101.) Id. at 735-36.
(102.) Id. at 739.
(104.) See generally Boumediene, 553 U.S. at 739-46 (discussing the
history and tradition of the writ of habeas corpus).
(105.) Id. at 753.
(106.) Id. at 765.
(107.) Id. at 754 (citation omitted). This claim of right can be
broken down into two distinct formulations: de jure sovereignty, (i.e.,
sovereignty in a legal and technical sense), and de facto sovereignty,
(i.e., a high degree of objective control). Id. at 754-55.
(108.) Id. at 755. Ever since the Cuban Republic and the United
States entered into a prolonged lease agreement in 1903, the terms of
which recognized Cuba’s ultimate sovereignty, the United States has
exercised dominion and control over the naval station at Guantanamo Bay
for over a century. Id. at 764-65. Simply stated, the Court had “no
reason to believe an order from a federal court would be disobeyed at
Guantanamo. No Cuban court has jurisdiction to hear these
petitioners’ claims, and no law other than the laws of the United
States applies at the naval station.” Id. at 751.
(109.) Id. at 755.
(110.) Boumediene, 553 U.S. at 765 (quoting Murphy v. Ramsey, 114
U.S. 15, 44 (1885)). On this contentious point, the Court went further:
Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court's recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is."
Marbury v. Madison
case decided in 1803 by the U.S. Supreme Court. William Marbury had been commissioned justice of the peace in the District of Columbia by President John Adams in the “midnight appointments” at the very end of his administration.
, 5 U.S. 137, 177 (1803)).
(111.) Id.; see BLACK’S LAW DICTIONARY, supra note 27, at 929
as “[a] court’s
ability to exercise power beyond its territorial limits”).
(112.) See generally Boumediene, 553 U.S. at 756-62 for a
discussion on the history and the Supreme Court’s prior
interpretations of the Insular Cases, cases exploring the
Constitution’s reach in extraterritorial jurisdictions.
(113.) Id. at 757, 759. Through the development of the Insular
Cases, the Supreme Court constructed a doctrinal framework for applying
the Constitution and its provisions in U.S. controlled extraterritorial
jurisdictions. Id. at 757. Known as territorial incorporation, the
doctrine stands for the proposition that “the Constitution applies
in full in incorporated Territories surely
tr.v. des·tined, des·tin·ing, des·tines
1. To determine beforehand; preordain:
Territories.” Id. (citing Dorr v.
United States, 195 U.S. 138, 143 (1904)).
(114.) Id. at 766; see supra note 88 and accompanying text.
(115.) Boumediene, 553 U.S. at 766.
(116.) Id. at 767. Though representatives assisted the detainees
during a CSRT hearing, that person was not the detainee’s own
personal attorney. Id. Detainees could bring forward “reasonably
available evidence,” but the detainee would have trouble rebutting
the Government’s evidence against him without an attorney. Id.
(117.) Id. at 768. This is a far cry from the detainees in
Eisentrager. Id. There, the United States exercised neither total nor
unlimited control over Landsberg Prison in Germany. Id. “In every
practical sense, Guantanamo is not abroad; it is within the constant
jurisdiction of the United States.” Boumediene, 553 U.S. at 767
(citing Rasul v. Bush, 542 U.S. 466, 480 (2004)) (Kennedy, J.,
concurring in the judgment).
(118.) Id. at 769-70. Notably, the Government could not present any
credible arguments that its military mission would be compromised if
detainees were allowed access to the writ of habeas corpus. Id. at 769.
(119.) Id. at770-71.
(120.) Id. at 771.
(121.) Boumediene, 553 U.S. at 771, 792, 795.
(122.) See supra text accompanying note 65.
(123.) See Resp’t’s Mem. Regarding the Gov’t’s
Det. Authority Relative to Detainees Held at Guantanamo Bay at 2 In re:
Guantanamo Bay Detainee Litigation (2009), No. 08-442 (
TFH 24 Hours
TFH Thread from Hell
TFH Tinfoil Hat
TFH Thanks For Helping
[hereinafter Executive Memorandum].
(124.) See infra notes 127, 132 and accompanying text.
(125.) Compare U.S. CONST art. I, [section] 8 (authorizing Congress
to provide for the defense of the nation), with Executive Memorandum,
supra note 123 (purportedly giving the President the power of defense in
the detention of individuals).
(126.) See 157 CONG. REC. H3388-02 (daily ed. May. 24, 2011)
(Proceedings and Debates Statement of Rep. McKeon, Member, H. Armed.
Serv. Comm.). Rep. McKeon lauded the NDAA’s passage as protecting
our Nation’s interests:
The legislation will advance our national security aims, provide the proper care and logistical support for our fighting forces and help us meet the defense challenges of the 21st century. The bill authorizes $553 billion for the Department of Defense base budget, consistent with the President's budget request and the allocation provided by the House Budget Committee. It also authorizes $18 billion for the development of the Department of Energy's defense programs and $118.9 billion for overseas contingency operations.
(127.) U.S. CONST. art. 1, [section] 8, cl. 1 (“The Congress
shall have Power To … provide for the common Defence …. “);
U.S. CONST. art. 1, [section] 8, cl. 12 (“The Congress shall have
Power … To raise and support Armies ….”); U.S. CONST. art. 1,
[section] 8, cl. 13 (“The Congress shall have Power … To provide
and maintain a Navy”); 157 CONG. REG. H2855-02, H2856 (daily ed.
Apr. 14, 2011) (Constitutional Authority Statement of Rep. McKeon)
(declaring Congress’s power to enact H.R. 1540 pursuant to the
aforementioned constitutional provisions within Article 1, Section 8 of
(128.) National Defense Authorization Act for Fiscal Year 2012,
Pub. L. No. 112-81, [section][section] 1021- 1022, 154 Stat. 852 (2011);
see H.R. REP. NO. 112-78, at 209 (2011) (acknowledging in House Report
78 that under the AUMF and what is now deemed section 1021 of the NDAA,
this Nation is in “an armed conflict with al Qaeda, the Taliban,
and associated forces”); see supra text accompanying notes 22-28;
see also supra discussion Part II. The House Report noted that the
evolution of a terrorist threat, in relation to coordinated military
attacks with allied forces, poses a continuing national security risk
against the United States; and as a matter of course, the AUMF provides
authority to address the ever-changing threats by al-Qaeda, the Taliban,
or associated forces. H.R. REP. NO. 112-78, at 209.
(129.) 157 CONG. REC. D565, at 569 (daily ed. May 26, 2011) (vote
on Amash amendment) (declaring that Representative Amash’s
amendment, which called for striking the reaffirmation of the AUMF in
what is now section 1021 of the NDAA, failed to pass with a
of 187 ayes to 234 noes).
(130.) See H.R. REP. NO. 112-78, at 209 (supporting the Executive
Branch’s interpretation regarding its authorized powers under the
AUMF as set out in a filing before the
United States District Court for
the District of Columbia
on March 13, 2009; while affirming the
Executive’s interpretation remains consistent with the scope of
authority provided by Congress, it also is not limiting or altering the
President’s existing authority under the AUMF); see also Executive
Memorandum, supra note 123 (“The President has the authority to
detain persons that the President determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September 11,
2001, and persons who harbored those responsible for those attacks. The
President also has the authority to detain persons who were part of, or
substantially supported, Taliban or al-Qaida forces or associated forces
that are engaged in hostilities against the United States or its
coalition partners, including any person who has committed a belligerent
act, or has directly supported hostilities, in aid of such enemy armed
(131.) Presidential Statement on Signing the National Defense
Authorization Act for Fiscal Year 2012, 2011 DALEY COMP.
PRES Atmospheric Pressure
. DOC. 978,
para. 1-3 (Dec. 31, 2011) [hereinafter Presidential Signing Statement].
(132.) National Defense Authorization Act for Fiscal Year 2012,
[section] 1021(a)-(b) (ordering [section] 1021 (b) covered persons under
the AUMF–inherently any person including U.S. citizens, lawful resident
aliens, or foreigners–to be subject to permissive and potentially
indefinite military detention if such persons aid or substantially
(133.) Id. [section] 1021(c)(1)-(4); see Hamdi v. Rumsfeld, 542
U.S. 507, 520 (2004) (plurality opinion) (acknowledging the limited
duration of detentions through the course of hostilities is a
fundamental incident of the laws of war); see also Lederman &
Vladeck, Part I, supra note 4 (recognizing that our past and present
laws allow for detaining the enemy throughout the course of military
conflicts and permit military trials of such enemy forces).
“Prisoners of war shall be released and repatriated without delay
after the cessation of hostilities.” Hamdi, 542 U.S. at 520
Declaration of Geneva Global village A standard established in 1864 regarding the conduct of the military towards medical personnel, and obligations of medical personnel during acts of war.
Relative to the Treatment of Prisoners of
War, art. 118, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135).
(134.) National Defense Authorization Act for Fiscal Year 2012,
[section] 1021(d)-(e); see Presidential Signing Statement, supra note
131, at para. 4, for the President’s assertion that section
1021’s affirmation of the AUMF remains unchanged with the
inclusion, at his recommendation, of section 1021(d) and (e)’s
limiting principles. But see National Defense Authorization Act for
Fiscal Year 2012, [section] 1021(e) (refuting the implicit and contrary
notion as to section 1021’s effect on existing law or precedent
pertaining to U.S. citizens, lawful resident aliens, or foreign persons
detained outside of the United States).
(135.) Presidential Signing Statement, supra note 131, at para. 4.
(137.) See National Defense Authorization Act for Fiscal Year 2012,
[section] 1022(a)-(b) (asserting that section 1022 foreign-persons
classified as being part of or substantially supporting al-Qaeda or its
associated forces while also participating in attacks directed against
the United States or its coalition partners shall be subject to
mandatory military detention; while proclaiming that similarly situated
persons who are U.S. citizens or lawful resident aliens are exempt from
such mandatory military detention). Regardless of the covered
person’s disposition or custodial status under the law of war,
nothing in section 1022 of the NDAA changes anything with respect to
existing U.S. agencies and criminal enforcement. Id. [section]
1022(c)(2). One cause for concern under section 1022 is Congress’s
silence as to its affect, if any, on the AUMF when comparing section
1021(d), which expressly declares that nothing under section 1021 aims
to “limit or expand” the President’s scope of authority
under the AUMF, with section 1022 generally, which is wanting of express
statutory language regarding the scope of authority for the President or
the AUMF. Id. [section] 1021(d).
(138.) See id. [section] 1022(a)(4) (allowing the President to
submit to Congress an application for waiving the mandatory military
detention provision of foreign persons who are part of or substantially
supporting al-Qaeda if national security interests are at stake).
(139.) Id. [section] 1022(c) (directing the President to submit to
policies and procedures
for implementing section 1022
up to, and including, the following: (A) authorizing personnel charged
with making status determinations of section 1022(a)(2) persons; (B) not
necessarily disrupting “surveillance or intelligence
gathering” of persons not in U.S. custody, notwithstanding the
requirement for military custody of section 1022(a)(2) persons; (C) not
requiring status determinations for section 1022(a)(2) persons until
ongoing interrogations cease; (D) limiting the application of mandatory
military custody when U.S. officials are granted access to persons
detained by another country; and (E) providing the United States, where
it could not do so otherwise and in the interests of national security,
to transfer covered persons detained by another country).
(140.) Presidential Signing Statement, supra note 131, at para.
(141.) Presidential Directive on Procedures Implementing Section
1022 of the National Defense Authorization Act for Fiscal Year 2012,
2012 DAILY COMP. PRES. DOC. 136 (Feb. 28, 2012) [hereinafter
(142.) Id. at para. 3.
(143.) Id. at para, 1 and 3.
(144.) Id. [section] I(B)-(C) (asserting that, for purposes of the
Directive and section 1022 of the NDAA, a covered person is anyone who
is: (1) not a U.S. citizen; (2) subject to detention under section
1021’s reaffirmation of the AUMF; (3) part of al-Qaeda and acted on
its behalf; and (4) involved in or planned an attack or attempted attack
against the United States or its allies).
(145.) Id. [section] I(D). Looking at sections I(D) and (E) of the
Directive respectively, if the Department of Defense captures or detains
individuals, then section 1022 of the NDAA and the procedures within the
Directive apply when necessary; but, if a foreign government captures or
detains an individual then section 1022 and the procedures within the
Directive do not apply. Id. [section] I(D)-(E).
(146.) Id. [section]VII para. 2 (“Any determination that there
is not clear and convincing evidence that an individual is a Covered
Person shall be
to the question of whether the
individual may be subject to detention under the 2001 AUMF, as informed
by the laws of war, and affirmed by section 1021 of the NDAA.”).
(147.) See supra notes 144-45 and accompanying text.
(148.) See supra notes 132-37 and accompanying text.
(149.) See supra text accompanying notes 144-47.
(150.) See discussion infra Part V.
(151.) U.S. CONST. amend. V.
(152.) U.S. CONST. amend. XIV, [section] 1.
, Equality in the War on Terror, 59 STAN. L.
REV. 1365, 1367 (2007) (“The insistence on basic equality is the
spirit animating the Fourteenth Amendment….”). Representative
, the Fourteenth Amendment’s main author, championed
equal rights for all:
“Is it not essential to the unity of the people that the
citizens of each State shall be entitled to all the
of citizens in the several States? Is it not essential …
that all persons, whether citizens or strangers, within this land, shall
have equal protection …?”
Katyal, supra at 1372 (quoting CONG. GLOBE, 39TH CONG., 1ST SESS.
(154.) Yick Wo v. Hopkins, 118 U.S. 356 (1886).
(155.) Id. at 369 (establishing that the Fourteenth
Amendment’s Equal Protection Clause applies to citizens and
non-citizens alike); see
, city (1990 pop. 935,933), seat of Bexar co., S central Tex., at the source of the San Antonio River; inc. 1837.
Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1, 59 (1973) (Stewart, J., concurring) (“Unlike other
provisions of the Constitution, the Equal Protection Clause confers no
substantive rights and creates no substantive liberties. The function of
the Equal Protection Clause, rather, is simply to measure the validity
of classifications created by state laws.”); see also ERWIN
CHEMERINSKY, CONSTITUTIONAL LAW 917-18 (Aspen Publishers, 3d ed. 2009)
[hereinafter CHEMERINSKY, CONSTITUTIONAL LAW] (discussing the
distinction between the
Privileges and Immunities Clause
and the Equal
Protection Clause of the Fourteenth Amendment). Compare U.S. CONST.
amend. XIV, [section] 1 (limiting the application of the Privileges and
Immunities Clause to citizens), with U.S. CONST. amend. XIV, [section] 1
(applying the Equal Protection Clause expressly to all persons,
regardless of citizenship).
(156.) See United States v. Paradise, 480 U.S. 149, 166 n.16 (1987)
(plurality opinion) (“[T]he reach of the equal protection guarantee
of the Fifth Amendment is
Having the same limits, boundaries, or scope.
with that of the
Buckley v. Valeo
, 424 U.S. 1, 93 (1976) (“Equal
protection analysis in the Fifth Amendment area is the same as that
under the Fourteenth Amendment.”); Weinberger v. Wiesenfeld, 420
U.S. 636, 638 n.2 (1975) (“This Court’s approach to Fifth
Amendment equal protection claims has always been precisely the same as
to equal protection claims under the Fourteenth Amendment.”);
Schneider v. Rusk, 377 U.S. 163, 168 (1964) (“[W]hile the Fifth
Amendment contains no equal protection clause, it does forbid
discrimination that is ‘so unjustifiable as to be violative of due
Bolling v. Sharpe
, 347 U.S. 497, 499
(157.) Adarand Constructors, Inc. v. Pena, Sec’y of Transp.,
515 U.S. 200, 217 (1995); Hampton v. Mow Sun Wong, 426 U.S. 88, 100
(1976) (finding that, in the context of federal alienage discrimination,
“when there is no special national interest involved, the Due
Process Clause has been construed as having the same significance as the
Equal Protection Clause,” in that “both Amendments require the
same type of analysis”).
Plyler v. Doe
, was a case in which the Supreme Court of the United States struck down a state statute denying funding for education to children who were illegal immigrants.
, 457 U.S. 202, 210 (1982); Mathew v. Diaz, 426
U.S. 67, 77 (1976) (“The Fifth Amendment, as well as the Fourteenth
Amendment, protects every one of these persons from deprivation of life,
liberty, or property without due process of law.”) (citations
omitted); Fong Yue Ting v. United States, 149 U.S. 698, 754 (1893)
(Field, J., dissenting) (“Arbitrary and despotic power can no more
be exercised over [aliens], with reference to their persons and
property, than over the persons and property of native-born
citizens.”). “Aliens … have long been recognized as
“persons” guaranteed due process of law by the Fifth and
Fourteenth Amendments.” Plyler, 457 U.S. at 210.
(159.) See supra notes 155-58 and accompanying text.
(160.) See supra text accompanying note 76.
(161.) See supra text accompanying note 120; see also Tamra M.
Boyd, Keeping the Constitution’s Promise: An Argument for Greater
Judicial Scrutiny of Federal Alienage Classifications, 54 STAN. L. REV.
319, 324 (2001) (arguing that the Framers of the Constitution
“opposed the idea of a hierarchy in which citizens occupied a
significantly superior status to aliens”).
(162.) See Katyal, supra note 153, at 1368.
(163.) Compare National Defense Authorization Act for Fiscal Year
2012, Pub. L. No. 112-81, [section] 1021(b), 154 Stat. 852 (2011)
(allowing the U.S. military to permissively detain anyone (e.g., U.S.
citizens, lawful resident aliens, and foreign persons) associated with
the September 11 attacks or those who substantially support al-Qaeda,
the Taliban, or other associated forces), with National Defense
Authorization Act for Fiscal Year 2012, [section] 1022(a)-(b)
(subjecting foreign persons captured during hostilities authorized by
the AUMF to mandatory military detention but expressly exempting U.S.
citizens and lawful resident aliens from such mandatory military
(164.) See Katyal, supra note 153, at 1390. Allowing rank
discrimination to influence policy diverts attention from national
security and results in misguided notions of “us” versus
“them.” See id.
(165.) See id. at 1370 (quoting Ry. Express Agency v.
Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of
U.S. 106, 112-13 (1949) (Jackson, J., concurring)).
(166.) See generally CHEMERINSKY, CONSTITUTIONAL LAW, supra note
155, at 718-23 (contributing an analytical framework by separating equal
protection analysis and scrutiny into three distinct parts).
(167.) See discussion supra Part IV.
(168.) See discussion supra Parts I, IV.
(169.) CHEMERINSKY, CONSTITUTIONAL LAW, supra note 155, at 718.
(170.) Id. at 718-19. Distinguishing between laws that are
discriminatory on their face and laws that are facially neutral with a
discriminatory purpose and effect is an important threshold issue. Id.
The former exhibits a classification that, by its very terms, classifies
a group of individuals, while the latter exhibits a classification
nature that requires a showing that the Government purposely
intended to discriminate against a class of persons, followed by a
discriminatory impact on the affected class. Id.
(171.) See supra note 137 and accompanying text; supra text
accompanying note 147.
(172.) See supra note 137 and accompanying text; supra text
accompanying notes 148-49.
(173.) See supra note 137 and accompanying text; supra text
accompanying notes 148-49.
(174.) See discussion infra Parts V.B.
(175.) See supra note 137 and accompanying text; supra text
accompanying notes 148-49.
(176.) CHEMERINSKY, CONSTITUTIONAL LAW, supra note 155, at 719-20.
(177.) See, e.g., In re Griffiths, 413 U.S. 717, 721 (1973)
(affirming strict judicial scrutiny for alien classifications); Graham
v. Richardson, 403 U.S. 365, 372 (1971) (“Aliens as a class are a
prime example of a ‘discrete and insular’ minority … for
whom such heightened judicial solicitude is appropriate.”)
(citation omitted); see also BLACK’S LAW DICTIONARY, supra note 27,
at 1558 (defining strict scrutiny as “[t]he standard applied to
suspect classifications … in equal protection analysis and to
fundamental rights in due-process analysis,” and stating strict
scrutiny calls upon “the state [to] establish that it has a
compelling interest that justifies and necessitates the law in
Romer v. Evans
, 517 U.S. 620, 634 (1996) (quoting Dep’t
of Agric, v. Moreno, 43 U.S. 528, 534 (1973)); see Fong Yue Ting v.
United States, 149 U.S. 698, 754 (1893) (Field, J., dissenting)
(“[Aliens] differ only from citizens in that they cannot vote, or
hold any public office.”).
(179.) Graham, 403 U.S. at 372 (citation omitted) (internal
quotation marks omitted).
(180.) See, e.g., Hampton v. Mow Sun Wong, 426 U.S. 88, 103 (1976)
(inferring that, in the context of congressional or presidential
alienage discrimination, the Supreme Court might “presume that any
interest which might rationally be served by the rule did in fact give
rise to its adoption”); Mathews v. Diaz, 426 U.S. 67, 83 (1976)
(upholding a federal law that restricted a resident alien’s
eligibility claim for Medicaid benefits on the basis that the law was
not “wholly irrational”); see also BLACK’S LAW
DICTIONARY, supra note 27, at 1376 (defining rational basis test as
“[t]he criterion for judicial analysis of a statute that does not
implicate a fundamental right or a suspect or quasi-suspect
classification under the Due Process or Equal Protection Clause”).
(181.) See Katyal, supra note 153, at 1365 (recognizing that court
rooms and the general public have difficulties with questions of
balancing national security interests against personal civil liberties).
Professor Neal Katyal advocates for the courts to utilize equal
protection scrutiny over
substantive due process
analysis when dealing
with alien discrimination in wartime–the former only requires
evenhandedness while the latter might unduly restrain Executive Branch
policies in armed conflicts. Id. at 1366-68. “[Discrimination] is
not appropriate when it determines whether someone can be put before a
tribunal whose jurisdiction includes dispensing the most awesome powers
of government, such as life imprisonment and the death penalty.”
Id. at 1367.
(182.) See discussion supra Part IV.
(183.) See Graham, 403 U.S. at 372 (“[C]lassifications based
on alienage, like those based on nationality or race, are inherently
suspect.”); CHEMERINSKY, CONSTITUTIONAL LAW, supra note 155, at 917
(“Alienage classifications refer to discrimination against
(184.) Korematsu v. United States, 323 U.S. 214 (1944).
(186.) Id. at 216; see BLACK’S LAW DICTIONARY, supra note 27,
at 1558 (indicating that strict scrutiny calls upon “the state [to]
establish that it has a compelling interest that justifies and
necessitates the law in question”).
(187.) See Fong Yue Ting v. United States, 149 U.S. 698, 754 (1893)
(Filed, J., dissenting) (“As men having our common humanity, they
are protected by all the guaranties of the constitution. To hold that
they are subject to any different law, or are less protected … than
other persons … ignore[s] the teachings of our history, the practice
of our government, and the language of our constitution.”); see
also Romer v. Evans, 517 U.S. 620, 631 (1996) (finding that
classifications, “neither [of which] burden a fundamental right
nor target a suspect class,” are upheld “so long as it bears
a rational relation to a legitimate end”) (emphasis added).
(188.) See CHEMERINSKY, CONSTITUTIONAL LAW, supra note 155, at 719
(“[A] law is upheld if it is proven necessary to achieve a
compelling government purpose.”); cf. BLACK’S LAW DICTIONARY,
supra note 27, at 1376 (specifying that, under rational basis review,
“the court will uphold a law if it bears a reasonable relationship
to the attainment of a legitimate government objective”). As
Professor Chemerinsky details, strict judicial scrutiny is a rigorous
standard of review:
The government must have a truly significant reason for discriminating, and it must show that it cannot achieve its object through any less discriminatory alternative. The government has the burden of proof under strict scrutiny and the law will be upheld only if the government persuades the court that it is necessary to achieve a compelling purpose.
CHEMERINSKY, CONSTITUTIONAL LAW, supra note 155, at 719.
(189.) CHEMERINSKY, CONSTITUTIONAL LAW, supra note 155, at 719; see
BLACK’S LAW DICTIONARY, supra note 27, at 321 (defining
compelling-state-interest test as the means “for determining the
constitutional validity of a law, whereby the government’s interest
in the law and its purpose is balanced against an individual’s
constitutional right that is affected by the law; only if the
government’s interest is strong enough will the law be
(190.) CHEMERINSKY, CONSTITUTIONAL LAW, supra note 155, at 721
(“A law is underinclusive if it does not apply to individuals who
are similar to those whom the law applies.”).
(191.) Id. at 722.
(192.) See supra text accompanying notes 137, 148-49.
(193.) See supra text accompanying notes 144-45, 147.
(194.) See supra text accompanying notes 189-91.
(195.) See discussion supra Part II.
(196.) See Katyal, supra note 153, at 1370; discussion supra Part
II. “The Geneva Conventions, for example, require a
Bound by signed agreement:
n. pl. sig·na·to·ries
One that has signed a treaty or other document.
treat prisoners of war the same way as it treats its own soldiers.”
Katyal, supra note 153, at 1391 (citing Geneva Conventions Relative to
the Treatment of Prisoners of War art. 102, Aug. 12, 1949, 6 U.S.T.
3316, 75 U.N.T.S. 135).
(197.) See Korematsu v. United States, 323 U.S. 214, 219 (1944)
(“[H]ardships are part of war, and war is an aggregation of
hardships.”). But see Boumediene v. Bush, 553 U.S. 723, 796-97
(2008) (“In considering both the procedural and substantive
standards used to impose detention to prevent acts of terrorism, proper
deference must be accorded to the political branches…. The law must
accord the Executive substantial authority to apprehend and detain those
who pose a real danger to our security.”) (citation omitted).
(198.) See Korematsu, 323 U.S. at 234 (Murphy, J., dissenting)
(“[T]he military claim [of discretion] must subject itself to the
judicial process of having its reasonableness determined and its
conflicts with other [individual] interests reconciled.”).
(199.) Id. at 220.
(200.) See supra note 6 and accompanying text.
(201.) See Boumediene, 553 U.S. at 797-98 (“Because our
Nation’s past military conflicts have been of limited duration, it
has been possible to leave the outer boundaries of war powers undefined.
If, as some fear, terrorism continues to pose dangerous threats to us
for years to come, the Court might not have this luxury.”).
(202.) See supra note 65 and accompanying text.
(203.) Ry. Express Agency, Inc. v. New York, 336 U.S. 106, 112
(1949) (Jackson, J., concurring).
(204.) See supra note 65 and accompanying text.
(205.) Boumediene, 553 U.S. at 798.
(206.) See Katyal, supra note 153, at 1370 (“In an era where
the boundaries of national security and personal liberty are being
shaped in all sorts of unforeseen ways …, the insistence on
evenhandedness can at times be more appropriate than the attempts to
freeze substantive standards into the Constitution.”).
(207.) See supra note 137 and accompanying text; supra text
accompanying notes 148-49.
(208.) KHAN, supra note 1, at xi.
(209.) See discussion supra Part V.B.
(210.) See supra text accompanying notes 151-58.
(211.) See supra text accompanying notes 151-58.
(212.) City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 466
(1985) (Marshall, J., concurring in part and dissenting in part).
(213.) See discussion supra Part IV.
(214.) See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
(215.) Boumediene v. Bush, 553 U.S. 723, 797 (2008).
(216.) See supra text accompanying note 163; discussion supra Part
(217.) THE DECLARATION OF INDEPENDENCE para. 2.
(218.) See Katyal, supra note 153, at 1394 (quoting THOMAS PAINE,
DISSERTATION ON FIRST PRINCIPLES OF GOVERNMENT (July 1795), in 2 THE
COMPLETE WRITINGS OF THOMAS PAINE 570, 588 (Philip S. Foner ed., The
Citadel Press 1945)) (internal quotation marks omitted).
STEPHEN CONSUEGRA, J.D. Candidate,
St. Thomas University
Law, 2013; B.B.A.,
Florida International University
primarily at University Park, Miami; coeducational; chartered 1965, opened 1972. A research university, it has 18 colleges and schools and many specialized centers and institutes, including those in biomedical engineering, database
, 2008. There are not
enough words or footnotes to express my gratitude to those who deserve
recognition: thank you Professors John M. Kang, Amy D. Ronner, Stephen
A. Plass, and Jessica Fonseca-Nader for all of your guidance, counsel,
and insight in helping me author this piece; many thanks to the members
of the St. Thomas Law Review for all of their hard work in making this
article great; and
, I thank my family and friends for
all of their love, support, and encouragement–without you all, I would
not be here today.