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A Small Problem of Precedent: 18 U.S.C. 4001(a) and the Detention of U.S. Citizen "Enemy Combatants" |
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Stephen I. Vladeck [View as PDF]
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112 Yale L.J. 961 (2003)
In 1971, Congress repealed the Emergency Detention Act, part of the Internal Security Act of 1950, by writing into 18 U.S.C. § 4001(a) the provision that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Enacted amid mounting public pressure during the Vietnam War, § 4001(a) sought to "restrict the . . . detention of citizens of the United States to situations in which statutory authority for their incarceration exists." At the time, it represented a legislative response to the outrage over the executive internment of Japanese Americans during World War II, detentions carried out pursuant only to a presidential order. Today, § 4001(a) represents a bar to the Bush Administration's current policy of detaining U.S. citizens as "enemy combatants," absent congressional authorization, without charges and without access to counsel or the courts.
This Comment analyzes that policy in light of the current force of § 4001(a) and Howe v. Smith, the 1981 Supreme Court decision that embraced an expansive reading of the antidetention statute. Since, under Howe, § 4001(a) applies to all U.S. citizens regardless of "enemy combatant" status, the only remaining issue is whether Congress authorized the detentions in question. After tracing the history of § 4001(a), this Comment evaluates, and finds inadequate, the Administration's various justifications for the detention of U.S. citizens as "enemy combatants." The analysis concludes that, in the absence of clear congressional authorization, the detention policy not only violates § 4001(a) but also shows complete disregard for the deeper purpose behind this provision's enactment and the fundamental separation of powers principles manifested therein.
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