U.S. Citizen Terrorists
In the aftermath of the Boston Marathon bombings, Senator Feinstein said on Fox News Sunday it would be “unconstitutional” to hold the U.S. citizen bomber as an enemy combatant.1 Commentator Juan Williams later said “the U.S. Supreme Court has never said that someone who’s an American who’s captured here can be treated as an enemy combatant.” In fact, the Supreme Court has specifically held it is constitutionally permissible to hold in military custody a U.S. citizen captured on U.S. soil and prosecute him in a military commission. Without prejudging the proper outcome at this point, it is worth reviewing what the law says about U.S. citizen terrorists, as opposed to what policy choices have been made on the subject.
The Authority to Detain a U.S. Citizen as an Enemy Combatant
The U.S. Constitution does not require the government to hold a U.S. citizen al Qaeda terrorist in civilian custody, as opposed to military custody. Courts have consistently held U.S. citizen enemy belligerents, including those captured on U.S. soil, can lawfully be held in military custody. Therefore, it is simply a policy question whether to immunize U.S. citizens from certain consequences of joining the enemy, namely excepting them from military detention.
- In the case of Jose Padilla, the Fourth Circuit Court of Appeals held the President can lawfully detain in military custody a U.S. citizen enemy combatant taken into custody inside the United States.2 Opponents of this course of action—including Attorney General Holder—like to cite the Second Circuit’s opinion on the matter, holding the President was without authority to detain Padilla in military custody. But that opinion is without legal effect, having been vacated by the Supreme Court in 2004.3
- As Justice O’Connor said in the Hamdi case, testing the military detention at Guantanamo of a U.S. citizen captured abroad, “there is no bar to this Nation’s holding one of its own citizens as an enemy combatant.”4
- During World War II, the FBI took into custody on U.S. soil certain Nazi saboteurs who had infiltrated the United States. When the government prosecuted them in a military commission, the Supreme Court found the U.S. citizenship of one of the saboteurs and the fact he was captured on U.S. soil to be irrelevant, holding, “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency.”5 Those consequences include potential military detention.
A Connection to Enemy Forces
The Constitutional authority to hold a U.S. citizen enemy belligerent in military custody is well-established. But for the Boston Marathon bomber to be held in military custody properly, it would have to be established he is a part of enemy forces eligible for military custody. Congress most recently defined this authority in the 2012 Defense Authorization Act, providing that military detention authority covers “a person who was a part of or substantially supported al-Qaeda, the Taliban, 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 such hostilities in aid of such enemy forces.”6
This question becomes more complex in the cases where the U.S. citizen is connected to an international terrorist group with lesser affiliation with al Qaeda, or as the citizen’s connection to such a terrorist group becomes more attenuated.
Filed Charges Does Not Preclude Subsequent Transfer to Military Custody
When U.S. residents have been detained as enemy combatants, they were first taken into custody by civilian law enforcement, charged with a crime, and later transferred to military custody. For example, Ali Saleh al Marri lawfully entered the United States on September 10, 2001 at the direction of al Qaeda leaders to plan and execute war-like acts against the United States. He was arrested by the FBI on December 2001, and indicted on charges of credit card and identity fraud in early 2002. He was transferred to military custody more than a year later in June 2003. He was eventually transferred back to civilian custody and pleaded guilty to terrorism charges.
President Bush’s Military Order of November 2001, the 2006 Military Commissions Act, and the 2009 Act all reflected the policy choice not to prosecute U.S. citizens in a military tribunal.
The state of the law regarding U.S. citizen terrorists, however, provides ample space for policymakers to make choices about how best to protect this country from domestic extremists, especially those shown to have connections to foreign terrorist enemies.
1 Fox News Sunday, April 21, 2013, transcript available at http://www.foxnews.com/on-air/fox-news-sunday-chris-wallace/2013/04/21/boston-police-commissioner-marathon-investigation-feinstein-and-king-talk-war-terror-big#p//v/2316829988001.
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