Constitution Check: Can citizens suspected of terrorism be held indefinitely without a trial?

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: indefinite detention, without trial, of Americans seized inside the U.S. on suspicion of terrorism.

The statement at issue:

“The bill before us would allow the government to detain U.S. citizens without charge until the end of hostilities….The sponsors of the bill believe that current law authorizes U.S. citizens, arrested within the United States, without trial, until the end of hostilities, which, in my view, is indefinitely. Others of us believe that current law…does not authorize such indefinite detention of U.S. citizens arrested domestically….My amendment is to declare a truce, to provide that…this bill does not change existing law, whichever side’s view is the correct one.”

Sen. Dianne Feinstein, California Democrat, on the floor of the U.S. Senate, December 1. Her amendment was adopted, 99 to 1.

We checked the Constitution, and…

Jose Padilla at the Navy Brig, Charleston, SC (via Wikimedia Commons)

Sen. Feinstein’s side in this debate probably had the better of the constitutional argument.   However, since the Senate concluded that it could not make up its mind, it very likely will be up to the federal courts to decide who was right.  It depends upon how, in a future case, the Supreme Court interprets the first decision on terrorism law to be issued following the September 11, 2001, attacks — Hamdi v. Rumsfeld.

That decision, announced by the Court in June 2004, is the ruling that members of the Senate interpreted in opposite ways as Congress worked on broad new legislation to provide (over the Obama Administration’s objection) that the U.S. military is to be given the lead role in dealing with individuals suspected of taking part in global terrorism, sharply reducing the role of civilian courts.   The Senate spent a day debating the powers it would confer on the Pentagon for the indefinite detention of U.S. citizens captured on U.S. soil on suspicion of terrorist acts.

The Hamdi decision is not an easy one to sort out, even for experienced lawyers.  It was decided by four opinions, none of which drew the support of a majority of five members of the Court.   What probably passes for a meaningful result, however, in the sometimes confusing process of judicial arithmetic, appeared to have some support from five Justices.

It may well make a difference, in a future case, that four of the nine Justices on the Court in 2004 have since departed, and no one could be sure how the newly constituted Court would react.   One reason is that there has not been a new ruling on terrorism law in the past three years.

But, for the sake of the argument in the Senate, the key opinion among those issued in the Hamdi case in 2004 was written by then-Justice Sandra Day O’Connor.   The case involved a U.S. citizen, Yaser Esam Hamdi, captured on a battlefield in Afghanistan and later transferred for indefinite detention to a U.S. Navy brig in Charleston, S.C.

There has not been a new ruling on terrorism law in the past three years.

O’Connor’s opinion said that, under the Authorization for Use of Military Force, passed by Congress in the wake of the 2001 attacks, the U.S. military could designate Hamdi as an “enemy combatant,” and could detain him.  She noted that the government had said that the “war on terrorism” might be unending, and said that might indicate that Hamdi would stay confined “for the rest of his life.”

Indefinite detention, O’Connor went on, is not authorized if the reason for it is to hold the suspect for questioning about terrorism.   And, more importantly for the point the Senate was debating, her opinion also said that, if this peculiar war actually would have no end, then the government’s claim to indefinite detention power “may unravel.”   She also said: “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

Further, O’Connor stressed that this case involved a capture “in a foreign combat zone” (with the word foreign printed in italics), and she said pointedly that the Court was only ruling on “the narrow circumstances considered here.”

Along the way, though, she wrote an unqualified sentence on which some members of the Senate relied heavily in arguing that existing law permits indefinite detention of citizens captured inside the U.S.  “There is no bar,” the sentence said, “to this Nation’s holding one of its citizens as an enemy combatant.”

The courts, though, seem sure to have the last word on what the Hamdi ruling meant, if the current bill being developed in Congress emerges, and survives a presidential threat of a veto.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.