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ENEMY COMBATANTS AND THE JURISDICTIONAL
FACT DOCTRINE
David L. Franklin*
INTRODUCTION
The Bush Administration’s assertion of authority to designate and
detain individuals as “enemy combatants” as part of its global war
against terrorism has generated an enormous amount of debate and
litigation. But it has also exposed a fundamental fault line in ways of
thinking about constitutional law, between those who conceptualize
constitutional issues primarily from the perspective of individual rights
and those who view them primarily from the perspective of the
allocation and structuring of government power. Of course, the two
perspectives are not mutually exclusive; the treatment of enemy
combatants, like many other actions by the federal government, raises
important issues both of individual rights and separation of powers. Yet
I will argue that the difference in emphasis matters—and, further, that
the structural approach can usefully complement the individual rights
approach in dealing with central aspects of the enemy combatant
problem.1
Two examples may help to illuminate the conceptual divide. The
first is the Supreme Court’s decision in Hamdi v. Rumsfeld. 2 After
concluding that Congress had authorized the President to detain a
United States citizen captured on the battlefield in Afghanistan as an
enemy combatant, Justice O’Connor’s plurality opinion turned to the
issue of the detainee’s right to challenge his designation. The plurality
addressed this issue from the perspective of the Due Process Clause, a
perspective which led Justice O’Connor to apply the multi-factor,
* Assistant Professor, DePaul University College of Law. I thank Steve Siegel, Kevin Stack,
and the participants in the Chicago Junior Faculty Workshop for their helpful comments, and
Gerrit Wieringa for his able research assistance. Errors are mine.
1 This is not to say that the individual rights view is never appropriate. For example, the use
of torture, discussion of which lies beyond the scope of this article, plainly raises an issue of
fundamental human rights and ought to be treated as such. And, as the discussion below will
demonstrate, the structural approach must be attentive to, and informed by, its impact on
individual rights.
2 542 U.S. 507 (2004).
1001
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functionalist balancing analysis of Mathews v. Eldridge.3 Speaking on
this point for a six-Justice majority, Justice O’Connor concluded that
Yaser Hamdi was entitled to a meaningful opportunity to contest his
designation as an enemy combatant before a neutral decisionmaker. 4
The Court added, however, that these fact-finding proceedings could be
“tailored to alleviate their uncommon potential to burden the Executive
at a time of ongoing military conflict.” 5 Accordingly, the Court
concluded, hearsay “may need to be accepted as the most reliable
available evidence from the Government in such a proceeding,”6 and the
factfinder may entertain a rebuttable presumption in favor of the
government’s evidence. 7 Finally, the Court hinted at “the possibility
that the standards we have articulated could be met by an appropriately
authorized and properly constituted military tribunal,” rather than an
Article III court.8
By contrast, Justice Scalia, joined in dissent by Justice Stevens,
approached the case primarily from a structural perspective. In his
view, the Executive Branch lacks the power to detain a U.S. citizen
without criminal charges unless Congress has suspended the writ of
habeas corpus.9 For Justice Scalia, then, a U.S. citizen’s due process
entitlement in cases involving loss of liberty is synonymous (absent
suspension) with the right to trial by jury.10 In his usual pugnacious
style, Justice Scalia accused the plurality of using a “Mr. Fix-it
Mentality” to cobble together a novel factfinding procedure for
challenges to enemy combatant designations rather than relying on
procedural mechanisms already well-established in our constitutional
tradition.11
The second example comes from the D.C. Circuit’s recent decision
in Boumediene v. Bush, on which the Supreme Court has since granted
certiorari. 12 In a 2-1 decision, the appeals court panel held that the
3
4
5
6
7
8
9
424 U.S. 319 (1976).
Hamdi, 542 U.S. at 533.
Id.
Id. at 533-34.
Id. at 534.
Id. at 538.
Id. at 554-72 (Scalia, J., dissenting). Justice Scalia noted that, historically, exceptions exist
for noncriminal detention such as civil commitment of the mentally ill and temporary quarantine
of those with contagious or infectious illnesses. Id. at 556.
10 Id. There is room to debate Justice Scalia’s assumption that a congressional suspension of
habeas corpus would simultaneously act as an authorization of unilateral executive detention. See
Trevor W. Morrison, Hamdi’s Habeas Puzzle: Suspension as Authorization?, 91 CORNELL L.
REV. 411 (2006) (questioning Justice Scalia’s assumption); David L. Shapiro, Habeas Corpus,
Suspension, and Detention: Another View, 82 NOTRE DAME L. REV. 59 (2006) (supporting
Justice Scalia’s assumption); Trevor W. Morrison, Suspension and the Extrajudicial Constitution,
107 COLUM. L. REV. 1533 (2007) (responding to Shapiro’s critique).
11 Hamdi, 542 U.S. at 576 (Scalia, J., dissenting).
12 476 F.3d 981 (D.C. Cir. 2007), cert. granted, 127 S. Ct. 3078 (2007).
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Military Commissions Act of 2006 (MCA) deprived the federal courts
of habeas jurisdiction over petitions filed by detainees at Guantánamo
Bay Naval Base, and that, so construed, the MCA was constitutional.13
Judge Randolph, writing for the panel majority, concluded that
Congress could deny the Guantánamo detainees access to habeas
without offending the Suspension Clause because, as aliens held outside
the territory of the United States, the detainees lay beyond the class of
people to whom the writ would have been available in 1789.14 Judge
Rogers, writing in dissent, maintained that the petitioners would have
been eligible for the writ at common law, and that because the MCA did
not provide them with an adequate substitute for habeas, the Suspension
Clause prohibited enforcement of that statute’s jurisdiction-stripping
provisions.15
Judges Randolph and Rogers disagreed on many points, but on one
point in particular they simply seemed to talk past one another. The
dissent characterized the Suspension Clause as providing a “limit on
Congress’s powers” rather than an “individual right.”16 In response, the
majority demurred, noting simply that all individual rights are
limitations on the government,17 and caricaturing the dissent’s argument
as based on the absurd notion that “aliens outside the United States are
entitled to the protection of the Separation of Powers because they have
no individual rights under the Separation of Powers.”18
In both Hamdi and Boumediene, then, the majority took an
individual rights approach that proved less protective of individual
rights than the structural approach articulated by the dissent. 19
Structural analysis also holds the promise of greater clarity.20 In Hamdi,
for instance, the Court’s holding—like the Mathews framework out of
13
14
Id.
Id. at 990-91. As Judge Rogers noted in dissent, the majority’s reasoning is open to
question, given that the Supreme Court has stated that the Suspension Clause protects the writ as
of 1789 “at the absolute minimum.” Id. at 1000 & n.5. Perhaps recognizing this potential
weakness, the panel majority added that the petitioners, as aliens without property or presence in
the United States, have no constitutional rights to vindicate through habeas anyway. Id. at 99092. On this question, see the authorities cited infra, note 21.
15 Id. at 994-1007.
16 Id. at 996-98 (Rogers, J., dissenting).
17 Id. at 993.
18 Id. at 994.
19 I do not want to overgeneralize this observation. After all, the structural approach adopted
by Justice Scalia in Hamdi would withhold all constitutional protection from non-citizen
detainees, and possibly also from citizens captured and held outside the United States. 542 U.S.
507, 577 (2004) (Scalia, J., dissenting). And it is worth remembering that Justice Thomas, who
also took a structural approach in his Hamdi dissent, emphasizing the separation of powers and
the need for judicial deference to executive decision-making during wartime, would have denied
all relief even to Hamdi. Id. at 579-99.
20 Cf. Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. REV. 989
(2006) (arguing for formalism over functionalism with respect to separation of powers issues in
criminal cases).
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which it grew—has imprecise contours. Many crucial questions remain
unanswered: Could there be cases in which fewer procedures are
required than in Hamdi’s? Conversely, might there be cases in which
hearsay evidence and burden-shifting would offend Due Process? Can
non-citizens claim the protections of the Due Process Clause?21
This article approaches the issue of enemy combatant designation
from a structural perspective—that of the jurisdictional fact doctrine.
That doctrine calls for independent judicial review of any fact
determined by an executive branch tribunal that is essential to the
jurisdiction of that tribunal. The application of the doctrine to enemy
combatant designations is, in its basic outlines, straightforward: Military
tribunals have no jurisdiction to try non-combatants, and military
authorities have no jurisdiction to detain them indefinitely. A detainee’s
status as a combatant on the one hand or a civilian on the other is
therefore a jurisdictional fact which must be subjected to searching
inquiry by an Article III court. Such judicial inquiry into jurisdictional
facts typically occurs via the mechanism of habeas corpus. Indeed, this
sort of inquiry vindicates the core historical function of the habeas
writ—to inquire into the jurisdiction of the executive officer in whose
custody a person is being held, and to require release if that jurisdiction
is lacking.
Of course, the proper dividing line between combatant and civilian
status is not self-evident, and difficult questions remain with respect to
procedures and presumptions in various categories of cases. The
political branches must enjoy some latitude in answering these
questions. Yet, as I will argue by focusing on the case of Ali Saleh
Kahlah al-Marri—a resident alien captured at his home in the United
States and detained as an enemy combatant—the jurisdictional fact
doctrine insists that courts have an important role to play in ensuring
that the Executive Branch does not exercise power beyond its
jurisdictional limits.22
Part I of this article describes the Executive Branch’s policy of
designating and detaining enemy combatants, as well as subsequent
21 On this last question, see Rasul v. Bush, 542 U.S. 466, 483 n.15 (2004) (suggesting an
affirmative answer), and the thoughtful colloquy between Kermit Roosevelt III, Guantánamo and
the Conflict of Laws: Rasul and Beyond, 153 U. PA. L. REV. 2017 (2005), and Gerald L. Neuman,
Extraterritorial Rights and Constitutional Methodology after Rasul v. Bush, 153 U. PA. L. REV.
2073 (2005). The government does not appear seriously to contest that a resident alien captured
and detained on United States territory, such as al-Marri, can assert due process rights.
22 For other scholarship advocating a structural approach to the enemy combatant problem,
see Jared A. Goldstein, Habeas Without Rights, WISC. L. REV. (forthcoming 2007), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1016749; Emily Calhoun, The Accounting:
Habeas Corpus and Enemy Combatants, 79 U. COLO. L. REV. (forthcoming 2007), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=962180; and Samuel Issacharoff & Richard
Pildes, Between Libertarianism and Executive Unilateralism: An Institutional Process Approach
to Rights During Wartime, 5 THEORETICAL INQUIRIES L. 1 (2004).
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legislative and judicial responses to that policy, such as the Detainee
Treatment Act of 2004, the Military Commissions Act of 2006, and the
Supreme Court’s decisions in Hamdi, Rasul, and Hamdan. It concludes
with a discussion of the al-Marri decision recently handed down by a
panel of the Fourth Circuit. Part II describes the jurisdictional fact
doctrine and its articulation in the landmark case of Crowell v. Benson.
As Part II explains, although the doctrine no longer retains its saliency
within the field of administrative law, it continues to shed valuable light
on the structural function of judicial review in checking the excesses of
the coordinate branches, particularly through the mechanism of habeas
corpus. Part III argues that facts concerning a detainee’s status as a
combatant or civilian qualify as jurisdictional within the meaning of the
doctrine, and therefore ought to be subjected to independent judicial
review. This Part demonstrates that combatancy has long been
recognized as a jurisdictional fact within American constitutional law,
as well as under international humanitarian law. It concludes by
applying the jurisdictional fact doctrine to the case of al-Marri and other
individuals detained as enemy combatants.
I. EXECUTIVE BRANCH ENEMY COMBATANT DESIGNATION
AND LEGISLATIVE AND JUDICIAL RESPONSES
One week after the terrorist attacks of September 11, 2001,
Congress enacted a joint resolution authorizing the President to “use all
necessary and appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or aided [those
attacks], 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.” 23 Military operations in
Afghanistan against Taliban and al-Qaeda forces began soon afterward,
during which thousands of people were captured by United States and
allied forces. 24 Hundreds of these detainees were transferred to
Guantánamo Bay Naval Base in Cuba. The Executive Branch has
consistently maintained that these detainees are “unlawful enemy
combatants” rather than prisoners of war protected by the Third Geneva
Convention.25 In Rasul v. Bush,26 the Supreme Court held that district
23
24
Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
Many individuals were apprehended overseas but far from any theater of traditional
military operations, in places like Gambia, Zambia, Bosnia, and Thailand. See In re Guantánamo
Detainee Cases, 355 F. Supp. 2d 443, 446 (D.D.C. 2005), rev’d sub nom., Boumediene v. Bush,
476 F.3d 981 (D.C. Cir. 2007).
25 See, e.g., Press Release, Office of the Press Secretary, The White House, Fact Sheet, Status
of
Detainees
at
Guantánamo
(Feb.
7,
2002),
http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html.
On the distinction
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courts had jurisdiction under the federal habeas statute, 28 U.S.C.
§ 2241, to entertain habeas corpus applications by detainees challenging
the legality of their detentions. In its Hamdi decision handed down the
same day, the Court held that the President could detain as an enemy
combatant a United States citizen captured on the battlefield in
Afghanistan, but that the detainee was entitled to challenge his enemy
combatant designation before a neutral decisionmaker.27
In response to the Supreme Court’s decisions in Hamdi and Rasul,
the Department of Defense established a system of Combatant Status
Review Tribunals (CSRT) to determine whether detainees merited
classification as combatants.28 While the Court in Hamdi operated on
the assumption that an enemy combatant was a person who had actively
taken up arms against the United States or its allies, the order
establishing the CSRT process adopted a broader definition. It defined
“enemy combatant” as “an individual who was part of or supporting
Taliban or al Qaeda 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 enemy armed forces.” 29 CSRTs are
“composed of three neutral commissioned officers of the U.S. Armed
Forces, each of whom possesses the appropriate security clearance and
none of whom was involved in the apprehension” of the detainee. 30
Detainees are not permitted access to counsel; instead, they are assigned
an officer of the United States military as a “personal representative” to
assist them in presenting their case to the tribunal. 31 This officer is
allowed to view any relevant information that is in the possession of the
Department of Defense, but is not permitted to share classified
information with the detainee. 32 Notice is given to the detainee in
advance of proceedings of the unclassified basis for his designation as
an enemy combatant.33 He is provided with an interpreter and permitted
to call witnesses if the tribunal deems them reasonably available.34 A
“Recorder” gathers information on the detainee that is “reasonably
between lawful and unlawful combatants, see infra text accompanying notes 208-212.
26 542 U.S. 466 (2004).
27 542 U.S. 507 (2004). Hamdi is discussed in greater detail supra, text accompanying notes
2-11.
28 Memorandum from Paul Wolfowitz, Deputy Sec’y of Def., to the Sec’y of the Navy (July
7, 2004), http://www.defenselink.mil/news/Jul2004/d20040707review.pdf [hereinafter Wolfowitz
Memorandum]. See also Memorandum from Gordon England, Sec’y of the Navy (July 29, 2004),
http://www.defenselink.mil/news/Jul2004/d20040730comb.pdf.
29 Wolfowitz Memorandum, supra note 28 at 1.
30 Id.
31 Id.
32 Id.
33 Id. at 2.
34 Id. at 2-3.
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available” to the government and provides it to the CSRT members.35
CSRTs are not bound by the ordinary rules of evidence, and may, for
example, consider hearsay evidence. 36 Appeal is to the “Convening
Authority,” a military official designated by the Secretary of the Navy.37
The Executive Branch has also instituted an annual review process
whereby an Annual Review Board (ARB) consisting of three military
officers recommends whether a detainee continues to pose a risk to the
security of the United States or its allies and should therefore remain in
detention. 38 In the first round of ARB proceedings, completed in
February 2006, the Department of Defense reviewed the status of 463
detainees, as a result of which 14 detainees were released, 120 were
transferred to the custody of authorities in their countries of origin, and
329 continued to be detained.39
A recent comprehensive study of 393 CSRT transcripts reveals that
in practice the procedural guarantees associated with these proceedings
have been so minimal as to be effectively meaningless.40 According to
the study, the government did not produce a single witness during any
proceeding; all requests by detainees to present witnesses other than
those already detained at Guantánamo were denied; the only
documentary evidence that detainees were allowed to introduce were
letters from family and friends, even when other evidence—such as
passports, hospital records, and records of official proceedings—was
already in the government’s possession; detainees were presented only
with a “summary” of the government’s classified evidence, which in
every instance was so conclusory as to preclude any rebuttal; the
tribunal found in every case that the government’s classified evidence
was reliable and valid; and in most cases, the detainee’s “personal
representative” met with the detainee only once, for no more than ninety
35
36
37
Id. at 2.
Id. at 3.
Id. at 2-3. See also Memorandum from Gordon England, Deputy Sec’y of Def., to the
Secretaries of the Military Dep’ts, Chairman of the Joint Chiefs of Staff, and Under Sec’y of Def.
for
Policy
(July
14,
2006),
http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf.
38 Paul Wolfowitz, Deputy Sec’y of Def., Order on Administrative Review Procedures for
Enemy Combatants in the Control of the Department of Defense at Guantánamo Bay, Cuba (May
11, 2004), http://www.defenselink.mil/news/May2004/d20040518gtmoreview.pdf. The Geneva
Conventions call for review twice a year for civilian internments, Geneva Convention Relative to
the Protection of Civilian Persons In Time of War, art. 43, Aug. 12, 1949, 6 U.S.T. 3516, 75
U.N.T.S. 287 [hereinafter Geneva Convention IV], and administrative detention, id. art. 78.
39 Press Release, U.S. Dep’t of Def., Guantánamo Bay Detainee Administrative Review
Board
Decisions
Completed
(Feb.
9,
2006),
http://www.defenselink.mil/releases/2006/nr20060209-12464.html.
40 Mark Denbeaux & Joshua W. Denbeaux, No-Hearing Hearings—CSRT: The Modern
Habeas Corpus? (Seton Hall Pub. Law Res. Paper Series, Paper No. 951245) (2006), available at
http://ssrn.com/abstract=951245.
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minutes including time for translation, only a week before the hearing.41
It should come as no surprise that the study did not find a single case in
which the CSRT process resulted in a determination that a detainee was
not an enemy combatant. There were three proceedings in which the
initial tribunal made such a finding, but in each of these cases the initial
finding was eventually reversed by a new tribunal.42 In one instance,
after a tribunal unanimously determined that the detainee was not
properly designated as an enemy combatant, intelligence personnel
conducted another search for “relevant” information. That information
was presented to a second tribunal with different members who then
unanimously determined that the detainee was properly classified as an
enemy combatant.43 In another case, two Tribunals concluded that the
detainee was improperly classified as an enemy combatant; after new
information was “‘sought, found, and presented to yet a third tribunal,’”
that Tribunal considered all of the information and unanimously
“‘determined that the detainee was properly classified as an enemy
combatant.’”44
Transcripts of CSRT proceedings reveal their almost farcical
nature. In one hearing, a detainee joked that he had seen bin Laden five
times—“[t]hree times on Al Jazeera and twice on Yemeni news.” His
CSRT file dutifully recorded that “[d]etainee admitted to knowing
Osama bin Laden.” 45 Another detainee sarcastically “slammed his
hands on the table during an especially long interrogation and yelled,
‘Fine, you got me; I’m a terrorist.’” His CSRT concluded that the
detainee “admitted he is a terrorist.”46 In another hearing, the detainee
stated, “I am prepared now to tell you, if you have anything or any
evidence, even if it is just very little . . . , then I am ready to be
punished. . . . If I was in your place—and I apologize in advance for
these words—but if a supervisor came to me and showed me
accusations like these, I would take these accusations and I would hit
him in the face with them. Sorry about that.” This detainee was also
deemed an enemy combatant.47 Joseph Margulies aptly summarizes the
CSRT system: “[A]ny proceeding that forces an alien prisoner
unfamiliar with our justice system and held incommunicado to disprove
allegations he cannot see, and whose reliability he cannot test, before a
military panel whose superiors have repeatedly prejudged the result, all
41
42
43
44
45
Id. at 2-6.
Id. at 3.
Id. at 3.
Id. at 39 (quoting CSRT transcript).
JOSEPH MARGULIES, GUANTÁNAMO AND THE ABUSE OF PRESIDENTIAL POWER 165
(2006) (quoting Corine Hegland, Empty Evidence, NAT’L J., Feb. 3, 2006, available at
http://nationaljournal.com/scripts/printpage.cgi?/about/njweekly/stories/2006/0203nj4.htm).
46 Id.
47 In re Guantánamo Detainee Cases, 355 F. Supp. 2d 443, 468-70 (D.D.C. 2005).
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without counsel, does not deserve to be called a hearing.”48
More recently, the procedural adequacy of the CSRT system has
come under fire from the inside. Stephen Abraham, an attorney and
army reserve colonel who served as a liaison officer for the Pentagon’s
Office for the Administrative Review of the Detention of Enemy
Combatants (OARDEC) and as a member of a CSRT, filed an affidavit
with the Supreme Court criticizing the entire CSRT process. 49
According to Abraham, the information on detainees was assembled by
CSRT Reporters and “case writers,” who had limited intelligence
experience and who compiled their reports on the basis of generalized
intelligence that was “often outdated [and] ‘generic’” or based on
incomplete databases of detainee-related information. 50 As a result,
case writers and reporters “often rejected some information arbitrarily
while accepting other information without any articulable rationale.”51
Abraham’s particular assignment within OARDEC was to provide a
statement to be relied on by CSRT panel members that the government
did not possess exculpatory information related to the detainee in
question. 52 He concluded that he was unable to carry out this
assignment because the relevant intelligence agencies refused to provide
him with all relevant information.53
On the one occasion in which Abraham served on a CSRT, he and
the two other officers serving on the panel unanimously concluded that
the information presented to them concerning the enemy combatant
status of the detainee “lacked even the most fundamental earmarks of
objectively credible evidence.” 54 Follow-up questioning of the
Recorder by the panel yielded only the response, “We’ll have to get
back to you.”55 The panel concluded that there was no factual basis for
labeling the detainee an enemy combatant. The leadership within the
Department of Defense responded by questioning the validity of this
finding and insisting that the hearing be reopened. Ultimately, the panel
did not change its ruling; the response by OARDEC was to initiate an
inquiry into “what went wrong.”56
48
49
MARGULIES, supra note 45, at 170.
Reply to Opposition to Petition for Rehearing, Declaration of Stephen Abraham,
Lieutenant Colonel, United States Army Reserve, Al Odah v. United States, No. 06-1196, 2007
U.S.
LEXIS
10486
(Oct.
1,
2007),
http://www.scotusblog.com/movabletype/archives/Al%20Odah%20reply%206-22-07.pdf.
50 Id. ¶¶ 8, 9.
51 Id. ¶ 17.
52 Id. ¶ 10.
53 Id. ¶ 15.
54 Id. ¶ 22.
55 Id.
56 Id. ¶ 23. In a subsequent declaration, Abraham elaborated on his critique of the CSRT
process, asserting in particular that the Department of Defense failed to obtain exculpatory
evidence concerning alleged enemy combatants even when such evidence was readily available.
Petition for Reinstatement, Declaration of Stephen Abraham, Lieutenant Colonel, United States
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Not surprisingly, the evidence indicates that many of the
individuals being detained as enemy combatants probably do not qualify
as combatants under any sensible understanding of the term. One study
indicates that, according to the Department of Defense’s own reports, as
of 2005, 55% of the detainees at Guantánamo were not determined to
have committed any hostile acts against the United States or its allies.
Only eight percent were alleged to be al-Qaeda fighters, and of the
remaining detainees, 40% had no definitive connection to al Qaeda and
18% had no definitive affiliation with al Qaeda or the Taliban.57
Notwithstanding these serious shortcomings, Congress has placed
its stamp of approval on the CSRT mechanism. The Detainee
Treatment Act of 2005 (DTA), enacted by Congress in response to the
Supreme Court’s Rasul decision,58 requires the Secretary of Defense to
report to the House and Senate Armed Services Committees concerning
the procedures of CSRTs and ARBs. 59 The DTA mandates that the
official who exercises final review authority over detainee status review
must be a civilian appointed by the President and confirmed by the
Senate.60 The DTA also amended 28 U.S.C. § 2241 in an effort to strip
the federal courts of jurisdiction over habeas corpus petitions or other
claims challenging any aspect of detention at Guantánamo.61 Instead,
the statute vested exclusive jurisdiction on the Court of Appeals for the
District of Columbia Circuit to review final determinations of CSRT
proceedings.62 The scope of review by the D.C. Circuit is limited: the
court may only inquire into whether the determination of the CSRT was
“consistent with the standards and procedures specified by the Secretary
of Defense,” including whether the determination of enemy combatant
status was supported by a preponderance of the evidence, taking into
account the rebuttable presumption in favor of the government’s
evidence. 63 In addition, the court is permitted to assess the
constitutionality and legality of those standards and procedures.64
Army Reserve, Hamad v. Gates, No. 07-1098, 2007 U.S. App. LEXIS 26305 (Nov. 9, 2007),
http://www.scotusblog.com/wp/wp-content/uploads/2007/11/exh10.pdf, at ¶ 51.
57 MARK DENBEAUX & JOSEPH DENBEAUX, REPORT ON GUANTÁNAMO DETAINEES: A
PROFILE OF 517 DETAINEES THROUGH ANALYSIS OF DEPARTMENT OF DEFENSE DATA 2 (2006),
http://law.shu.edu/aaafinal.pdf.
58 542 U.S. 466 (2004).
59 Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005, 119 Stat. 2680 (2005).
60 Id. § 1005(a)(2).
61 Id. § 1005(e)(1).
62 Id. § 1005(e)(2).
63 Id. § 1005(e)(2)(C)(i).
64 Id. § 1005(e)(2)(C)(ii). The D.C. Circuit has required the government to include in the
record on review of CSRT proceedings all of the information the CSRTs were authorized to
obtain and consider, and has entered a protective order presumptively entitling counsel for
detainees to access to classified information relating to their clients. Bismullah v. Gates, 501
F.3d 178, 180 (D.C. Cir. 2007).
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In its 2006 decision in Hamdan v. Rumsfeld,65 the Supreme Court
held that the DTA did not eliminate federal court jurisdiction over
pending habeas claims by detainees held at Guantánamo, 66 and
proceeded to invalidate the Executive Branch’s system of military
commissions for trying those detainees. 67 In the wake of Hamdan,
Congress enacted the MCA in order to place its legislative imprimatur
on the military commission system, as the Court had demanded.68 The
MCA therefore primarily deals with standards, procedures, and limited
judicial review for military commission proceedings used to try enemy
combatants, rather than the antecedent issue of determining enemy
combatant status, but it does contain some provisions relevant to the
current discussion.
The MCA responds to the Court’s threshold ruling in Hamdan by
making clear that courts are stripped of jurisdiction over all detentionrelated claims, including pending habeas claims, brought by any “alien
detained by the United States who has been determined by the United
States to have been properly detained as an enemy combatant or is
awaiting such determination.”69 More importantly for present purposes,
the MCA provides the first congressional definition of “unlawful enemy
combatant”:
A person who has engaged in hostilities or who has
purposefully and materially supported hostilities against the
United States or its co-belligerents who is not a lawful
enemy combatant (including a person who is part of the
Taliban, al Qaeda, or associated forces); or
a person who, before, on, or after the date of the enactment
of the Military Commissions Act of 2006, has been
determined to be an unlawful enemy combatant by a
Combatant Status Review Tribunal or another competent
tribunal established under the authority of the President or
the Secretary of Defense.70
The MCA defines “lawful enemy combatant” as a member of the
regular forces of a State party engaged in hostilities against the United
States; a member of a militia or other armed group belonging to a State
party engaged in such hostilities and abiding by rules of war such as the
wearing of distinctive insignia; or a member of a regular armed force of
a hostile state not recognized by the United States.71
65
66
67
68
69
70
71
126 S. Ct. 2749 (2006).
Id. at 2764-69.
Id. at 2772-98. See also id. at 2799-2808 (Kennedy, J., concurring).
Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006).
Id. § 7(a), (b).
Id. § 948a(1).
Id. § 948a(2). Cf. Geneva Convention Relative to the Treatment of Prisoners of War art.
4A(2), Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III].
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As noted above, the D.C. Circuit in Boumediene upheld the MCA’s
elimination of habeas jurisdiction for Guantánamo detainees. 72 The
Supreme Court initially denied review of that decision, but in an
unusual move, later made an about-face and granted certiorari.73 The
Boumediene litigation presents difficult constitutional issues because it
involves aliens captured abroad and held outside the (putative) borders
of the United States. The Hamdi case,74 which dealt with an American
citizen captured on the battlefield in Afghanistan, represented an even
more aggressive assertion of executive authority than Boumediene. But
perhaps the most sweeping assertion of Executive Branch authority to
designate and detain enemy combatants is the case of Ali Saleh Kahlah
al-Marri, because although al-Marri is not a U.S. citizen, he is a resident
alien who was arrested at his home in the United States. Indeed, his is
the only known pending case involving an alleged enemy combatant
who was detained within United States territory.75
Al-Marri is a citizen of Qatar who entered the United States on a
student visa on September 10, 2001, to pursue a master’s degree at
Bradley University in Peoria, Illinois.76 The government contends that
al-Marri is an al Qaeda operative whose superiors urged that he enter
the United States before the attacks of September 11, which could be
expected to trigger tighter border controls. On December 12, 2001, FBI
agents arrested al-Marri at the home he shared with his wife and
children in Peoria. The government transferred him to New York City,
where he was initially held as a material witness in connection with the
September 11 attacks. Al-Marri was eventually indicted on criminal
charges involving credit card fraud and false statements, and a jury trial
was scheduled for July 2003. Less than a month before the trial was to
begin, however, President Bush designated al-Marri as an enemy
combatant and ordered that he be transferred to the custody of the
Department of Defense. At the same time, the U.S. Attorney’s Office
formally dropped all criminal charges against him. Al-Marri was then
72 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007). For discussion, see supra text
accompanying notes 12-18.
73 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), cert. denied, 127 S. Ct. 1478 (2007),
reh’g granted, vacated, and cert. granted, 127 S. Ct. 3078 (2007).
74
For discussion, see supra text accompanying notes 2-11.
75 Jose Padilla is a U.S. citizen who was detained at O’Hare Airport in Chicago and
designated an enemy combatant. See Rumsfeld v. Padilla, 542 U.S. 426 (2004) (dismissing
Padilla’s application for habeas writ on grounds that district court lacked jurisdiction over his
immediate custodian). Padilla was later transferred to the civilian justice system for trial. His
lawyers argued, unsuccessfully, that he was incompetent to stand trial after years of mistreatment
in military custody. See Deborah Sontag, U.S. Judge Finds Padilla Competent to Face Trial,
N.Y. TIMES, Mar. 1, 2007, at A14. He was eventually convicted of conspiracy to commit acts of
terrorism after a federal jury trial. See Abby Goodnough, Jose Padilla Convicted on All Counts
in Terror Trial, N.Y. TIMES, Aug. 16, 2007, at A1.
76 Al-Marri v. Bush, 274 F. Supp. 2d 1003 (C.D. Ill. 2003), aff’d sub. nom., Al-Marri v.
Rumsfeld, 360 F.3d 707 (7th Cir. 2004).
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transferred to a military brig in Charleston, South Carolina, where he
remains today.
Al-Marri sought a writ of habeas corpus, alleging among other
things unlawful detention and denial of due process. The district court
denied al-Marri’s habeas petition. It concluded, first, that the President
has the legal authority under the Supreme Court’s decision in Hamdi77
to detain resident aliens on U.S. soil as enemy combatants, 78 and,
second, that the government had satisfied its burden under Hamdi of
showing that al-Marri was an enemy combatant. 79 In particular, the
court held that the government’s sole evidentiary exhibit, a hearsay
declaration by a counterterrorism official named Jeffrey Rapp, formed
an adequate basis for al-Marri’s detention as an enemy combatant. 80
The Rapp Declaration alleges that al-Marri trained at an al Qaeda
training camp in Afghanistan, met with Osama bin Laden, Khalid
Shaykh Muhammed, and other terrorist leaders, offered to serve as a
sleeper agent in the United States, and had used his laptop computer to
research weapons of mass destruction and to store fraudulent credit card
account information.81
Al-Marri appealed the denial of habeas to the Fourth Circuit.
During the pendency of the appeal, Congress enacted the MCA.82 The
government soon moved to dismiss al-Marri’s appeal for lack of
jurisdiction, arguing that the MCA stripped the federal courts of
jurisdiction over all pending habeas actions. 83 The Department of
Defense ordered that al-Marri be given a CSRT proceeding, and argued
that al-Marri’s sole avenue of relief under the MCA was to file a claim
in the Court of Appeals for the District of Columbia Circuit seeking
limited judicial review of the CSRT’s findings.84
In June 2007, a three-judge panel of the Fourth Circuit reversed the
judgment of the District Court and granted al-Marri’s petition for
habeas relief. 85 The full Fourth Circuit later granted rehearing en
banc,86 but the panel’s decision remains instructive, not least because its
reasoning is likely to inform the Supreme Court’s ultimate resolution of
77
78
79
80
81
82
83
542 U.S. 507 (2004).
Al-Marri v. Hanft, 378 F. Supp. 2d 673, 682 (D.S.C. 2005).
Al-Marri v. Wright, 443 F. Supp. 2d 774 (D.S.C. 2006).
Id. at 780-84.
Id. at 782-84.
Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006).
Respondent-Appellee’s Motion to Dismiss for Lack of Jurisdiction and Proposed Briefing
Schedule, Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007) (No. 06-7427).
84 As of June 2007, however, al-Marri had not yet received a CSRT, and the Department of
Defense has stated that he will not receive one until his pending litigation is resolved. See AlMarri v. Wright, 487 F.3d 160, 172–73 (4th Cir. 2007), reh’g en banc granted (Aug. 22, 2007).
85 Id.
86 Order Granting Petition for Rehearing En Banc, Al-Marri v. Wright, 487 F.3d 160 (4th Cir.
2007)
(No.
06-7427),
http://www.scotusblog.com/movabletype/archives/
Al%20Marri%20rehearing%20order%208-22-07.pdf.
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the case. The primary thrust of the panel majority’s lengthy opinion
was to situate al-Marri’s case within the precedential landscape formed
by three well-known cases—a contemporary case, a World War II case,
and a Civil War case.
The first of these is Hamdi.87 The panel in al-Marri concluded that
Hamdi’s recognition of executive authority to detain enemy combatants
applies only to the “narrow category” of those individuals who were
part of or supporting forces hostile to the United States or coalition
partners in Afghanistan and who engaged in an armed conflict against
the US there. 88 Al-Marri, the panel concluded, does not fit into this
category.89
The second is the rather notorious case of Ex parte Quirin, in
which the Supreme Court upheld the use of military commissions to try
a group of individuals, including one American citizen, accused of
acting as non-uniformed saboteurs on behalf of Germany on United
States territory. 90 Again, the Fourth Circuit panel in al-Marri
distinguished this precedent as limiting the definition of “enemy
belligerents [combatants] within the meaning of the law of war” to a
narrow category of persons, namely, “citizens who associate themselves
with the military arm of the enemy government, and with its aid,
guidance and direction enter this country bent on hostile acts.”91 Again,
said the panel majority, al-Marri does not fit.
The third and final case is Ex parte Milligan, in which the Supreme
Court struck down the military’s attempt to assert jurisdiction over an
Indiana citizen alleged to have communicated with the Confederacy and
conspired to seize weapons and overthrow the Union government.92 So
long as the ordinary civilian courts are functioning and habeas has not
been suspended, the Court held, Milligan must be tried in those courts,
not by a military tribunal.93 Here, the panel found that al-Marri does
fit—like Milligan, the court concluded, he is a civilian and a lawful
resident, and must be tried if at all in civilian courts.94
According to the Fourth Circuit panel, what these three milestone
87
542 U.S. 507 (2004). Hamdi is discussed in greater detail supra, text accompanying notes
2-11.
88
89
Al-Marri v. Wright, 487 F.3d at 180 (quoting Hamdi, 542 U.S. at 516-17).
Id. at 183. Similarly, the court distinguished its own prior decision in Padilla v. Hanft, 423
F.3d 386 (4th Cir. 2005), as limited to individuals who were “‘armed and present in a combat
zone’ in Afghanistan as part of Taliban forces during the conflict there with the United States.”
Al-Marri, 487 F.3d at 180 (quoting Padilla, 423 F.3d at 390-91).
90 317 U.S. 1 (1942). As Justice Scalia pointed out in his Hamdi dissent, Quirin was “not
[the] Court’s finest hour”—the Court rushed to uphold the death sentences and wrote an opinion
to accompany its order only months later. Hamdi, 542 U.S. at 569. See generally LOUIS FISHER,
NAZI SABOTEURS ON TRIAL: A MILITARY TRIBUNAL AND AMERICAN LAW (2003).
91 Al-Marri, 487 F.3d at 181 (quoting Quirin, 317 U.S. at 37-38).
92 71 U.S. (4 Wall.) 2 (1866).
93 Id. at 121-22, 130.
94 Al-Marri, 487 F.3d at 187.
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precedents have in common is that all of them look to principles from
the law of war to determine the boundaries of the legal category of
enemy combatant. Those principles, the panel concluded, predicate
enemy combatant status upon affiliation with the military arm of an
enemy nation.95 Al-Marri may very well have committed or planned to
commit violent or even catastrophic acts, but on the facts as alleged by
the government he is not a combatant, even if the President says so.96
Indeed, the opinion strongly suggests, al-Marri does not count as a
combatant even if Congress says so, unless it suspends habeas.97
In the final section of the opinion, the panel rejects the President’s
assertion of inherent presidential power to detain al-Marri. 98 The
President has wartime authority over enemy combatants, the court
concludes, but absent suspension of habeas corpus or declaration of
martial law, he lacks the power to exercise military authority over
civilians: “The Constitution does not allow the President to order the
military to seize civilians residing within the United States and detain
them indefinitely without criminal process, and this is so even if he calls
them enemy combatants.”99
Two related features of the Fourth Circuit panel’s al-Marri
decision are worth noting. First, there is no “due process balancing” at
all in the court’s opinion. Although formally its holding is predicated
on the Due Process Clause, the panel (unlike the Supreme Court in
Hamdi) nowhere engages in a Mathews v. Eldridge calculus in which it
weighs—or pretends to weigh—the individual’s interest in liberty
against the government’s interest in procedural efficiency, discounted
by the probability of an erroneous decision.100 Instead, the panel takes it
as a given that, for resident alien civilians like al-Marri, a criminal trial
is required to justify prolonged detention. Nor does the court find any
need for a further factual hearing: even if everything in the Rapp
Declaration is true, al-Marri’s detention is still unlawful.101
Second, it is noteworthy that the panel majority’s rhetorical selfassuredness reaches its peak in the section of the opinion that deals with
questions of executive power as opposed to individual rights. Thus, in
the final section of the opinion, where the court directly confronts the
President’s claim of inherent constitutional authority to detain al-Marri,
it calls this a “breathtaking” assertion of power that “far exceeds” the
power granted to the President by the Constitution.102 It stresses the
95
96
97
98
99
100
101
102
Id. at 182.
Id. at 184.
Id. at 186-87.
Id. at 189-95.
Id.
See Mathews v. Eldridge, 424 U.S. 319 (1976).
Al-Marri, 487 F.3d at 187, 189.
Id. at 190, 193.
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centrality of the combatant-civilian distinction, emphasizing in
particular the “deeply rooted and ancient opposition . . . to the extension
of military control over civilians.”103 It concludes that detention for the
duration of a generations-long struggle could “shred” our traditional
understandings of the law of war, and refuses to approve such
presidential power, stating it would have “disastrous consequences for
the Constitution—and the country”:
For a court to uphold a claim to such extraordinary power would
do more than render lifeless the Suspension Clause, the Due
Process Clause, and the rights to criminal process in the Fourth,
Fifth, Sixth, and Eighth Amendments; it would effectively
undermine all of the freedoms guaranteed by the Constitution. . . .
We refuse to recognize a claim to power that would so alter the
constitutional foundations of our Republic.”104
The Fourth Circuit panel had good reason to be so categorical.
This case tests the outer limits of the Executive Branch’s claims of
authority to detain enemy combatants during wartime. Al-Marri was a
lawfully admitted alien residing in the United States. He was arrested in
the home he shared with his family, far from the battlefield of any
shooting war. His alleged crimes, though quite serious, are of a type
that ordinary criminal processes appear equipped to handle. 105
Moreover, the President has asserted the authority to hold al-Marri, and
others he deems enemy combatants, for the duration of the current
conflict.106 Given the global reach of the conflict and the nebulous and
stateless nature of the enemy, this amounts to an assertion of the power
to detain individuals indefinitely without charge. 107 Under such
conditions, at the very least, the courts have an obligation to inquire into
the basic factual predicates underlying the Executive Branch’s assertion
103
104
105
Id. at 194 (quoting Reid v. Covert, 354 U.S. 1, 33 (1957)).
Id.
See Brief Amicus Curiae of Former Senior Justice Department Officials in Support of
Petitioners-Appellants and Supporting Reversal at 10-15, Al-Marri v. Wright, 487 F.3d 160 (4th
Cir. 2007) (No. 06-7427), 2006 WL 3670673 (cataloguing successful criminal prosecutions of
terrorists in the United States and elsewhere).
106 See, e.g., Alberto R. Gonzales, Counsel to the President, Remarks to the American Bar
Association Standing Committee on Law and National Security (Feb. 24, 2004), reprinted in 150
Cong. Rec. S2701, S2702 (daily ed. Mar. 11, 2004) (“The law applicable in this context [i.e. the
conflict with al-Qaeda] is the law of war—those conventions and customs that govern armed
conflicts. Under these rules, captured enemy combatants, whether soldiers or saboteurs, may be
detained for the duration of hostilities.”); Memorandum from William Haynes, General Counsel
to the Department of Defense, to the Council on Foreign Relations (Dec. 12, 2002), available at
http://www.cfr.org/publication/5312/enemy_combatants.html (“War implicates legal powers and
rules that are not available during peacetime. Among other things, the war context gives the
President the authority to detain enemy combatants at least until hostilities cease.”).
107 Thus, while the Court in Hamdi held that established law-of-war principles limited
detention of enemy combatants to the duration of active hostilities, it added that “[i]f the practical
circumstances of a given conflict are entirely unlike those of the conflicts that informed the
development of the law of war, that understanding may unravel.” 542 U.S. 507, 521 (2004).
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of authority. The next section describes a structural principle that can
provide courts with the doctrinal means to do so.
II. THE JURISDICTIONAL FACT DOCTRINE
The jurisdictional fact doctrine holds that when a fact forms the
constitutional or statutory basis for the exercise of power by an
Executive Branch adjudicatory tribunal, an Article III court must make
an independent finding of the fact and may in its discretion take
evidence as to the fact. 108 Although it has a long history in AngloAmerican jurisprudence,109 for modern students of administrative law
the doctrine is most closely associated with the case of Crowell v.
Benson.110 Crowell arose out of a claim for compensation under the
Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), a
federal statute providing a system of compensation for maritime
employees injured on the navigable waters of the United States. 111
Claims under the LHWCA were referred to a federal agency, the United
States Employees’ Compensation Commission, which was authorized to
hold hearings and determine facts in order to adjudicate disputed
claims.112 The Commission’s orders required a court order to become
effective.113 In Crowell, the petitioner—who had been the losing party
in a Commission proceeding—sought judicial review in order to
maintain that the injured party was not his employee, and therefore that
the claim lay outside the scope of the LHWCA and beyond the
jurisdiction of the Commission. The Supreme Court, in an opinion by
Chief Justice Hughes, upheld the constitutionality of the LHWCA.
Today Crowell is remembered (if it is remembered at all) for three
points. First, the Court paved the way for the creation of much of the
modern administrative state by holding that Congress’s delegation of
adjudicative authority to an administrative agency violated neither
Article III nor the Due Process Clause. 114 Second and relatedly, the
108 This definition is adapted from the classic work by LOUIS L. JAFFE, JUDICIAL CONTROL OF
ADMINISTRATIVE ACTION 625 (1965).
109 For citations to cases from the 17th, 18th, and 19th centuries, see JAFFE, supra note 108, at
624-33; John Dickinson, Crowell v. Benson: Judicial Review of Administrative Determinations of
Questions of “Constitutional Fact,” 80 U. PA. L. REV. 1055, 1059-60 (1932).
110 285 U.S. 22 (1932). For an earlier case resting on similar reasoning, though framed in due
process terms, see Ohio Water Co. v. Ben Avon Borough, 253 U.S. 287 (1920).
111 Crowell, 285 U.S. at 36-37. The act is now known as the “Longshore and Harbor
Workers’ Compensation Act” and is codified at 33 U.S.C. §§ 901-950.
112 Crowell, 285 U.S. at 42-44.
113 Id. at 44.
114 Id. at 45-49. See, e.g., Clinton v. City of New York, 524 U.S. 417, 471-72 (1998) (Breyer,
J., dissenting) (noting Crowell’s importance in permitting Congress to create flexible adjudicative
arrangements).
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Court sharply retreated from its previous understanding that cases
involving “private rights,” such as contract and property disputes
between individuals, must be litigated in a judicial forum. 115 Even
though disputes under the LHWCA involved matters of “private right,”
the Court held, they could be adjudicated in the first instance by an
administrative tribunal, so long as judicial review was available “to
maintain the essential attributes of the judicial power.”116
It is the third aspect of Crowell that is of central importance here.
After generally upholding the LHWCA’s adjudicative framework, the
Court insisted that there were limits to the fact-finding powers of a
federal administrative agency:
A different question is presented where the determinations of
fact are fundamental or “jurisdictional,” in the sense that their
existence is a condition precedent to the operation of the
statutory scheme. These fundamental requirements are that the
injury occurs upon the navigable waters of the United States,
and that the relation of master and servant exists. These
conditions are indispensable to the application of the statute,
not only because the Congress has so provided explicitly . . .
but also because the power of Congress to enact the legislation
turns upon the existence of these conditions.117
By the same token, the Court held, an administrative agency could
not be permitted to make “the final determination of the existence of the
facts upon which the enforcement of the constitutional rights of the
With respect to such jurisdictional and
citizen depend.” 118
constitutional facts, the petitioner was entitled to de novo review in an
Article III court. 119 Indeed, when it came to such facts the federal
court’s review was not restricted to the record compiled during the
administrative hearing. 120 Accordingly, the Court construed the
LHWCA to provide for de novo judicial review of constitutional and
jurisdictional facts.
Justice Brandeis dissented. He began by arguing that any
115 Crowell, 285 U.S. at 50-53. On the origins of the distinction between “public rights” and
“private rights,” see Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1855);
N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 67-72 (1982) (plurality opinion);
Caleb Nelson, Adjudication in the Political Branches, 107 COLUM. L. REV. 559 (2007).
116 Crowell, 285 U.S. at 50, 51.
117 Id. at 54-55.
118 Id. at 56. See also id. at 60 (“In cases brought to enforce constitutional rights, the judicial
power of the United States necessarily extends to the independent determination of all questions,
both of fact and law, necessary to the performance of that supreme function.”). As Justice
Brandeis pointed out in his dissent, it is not clear why the existence of the employment
relationship was essential to Congress’s power to enact the LHWCA. 285 U.S. at 81-82. But this
does not detract from the broader point—that independent judicial review is necessary for the
determination of facts on which constitutional rights depend.
119 Id. at 54-64.
120 Id. at 63-64.
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construction of the LHWCA as providing for de novo trial as to some
factual issues was so implausible that it should not be resorted to even
in order to avoid constitutional doubts. 121 Turning directly to the
constitutional issues, Brandeis argued that the Due Process Clause did
not entitle the petitioner to trial de novo, citing a wide range of cases in
which administrative tribunals had been permitted to act as finders of
fact, even as to issues of constitutional dimension. 122 Next, he
maintained that Congress’s constitutional authority to provide
compensation for injuries on navigable waters was not limited to cases
in which the employer-employee relation existed.123 Finally, Brandeis
disputed the relevance of Article III to the case:
If there be any controversy to which the judicial power extends
that may not be subjected to the conclusive determination of
administrative bodies or federal legislative courts, it is not
because of any prohibition against the diminution of the
jurisdiction of the federal District Courts as such, but because,
under certain circumstances, the constitutional requirement of
due process is a requirement of judicial process.124
Crowell’s jurisdictional fact doctrine did not fare especially well
within administrative law jurisprudence in the ensuing years. Indeed,
just four years later, Chief Justice Hughes appeared to cut back severely
on his own reasoning in Crowell, in an opinion upholding Congress’s
delegation to the Secretary of Agriculture of the authority to set
maximum rates for stockyards.125 “When the Legislature appoints an
agent to act within [the] sphere of legislative authority,” Hughes wrote,
“it may endow the agent with power to make findings of fact which are
conclusive, provided the requirements of due process . . . are met.”126
Moreover, the Court made clear that the requirements of due process, at
least in the ratemaking context, were minimal: some kind of evidentiary
hearing and the avoidance of an arbitrary or confiscatory result. 127
Perhaps most notably, the Court held—though without expressly
distinguishing or overruling Crowell—that judicial review of the
Secretary’s ratemaking decisions could take place on the administrative
record and under a deferential standard of review.128
By 1946 Justice Frankfurter was able to complain in a concurrence
121
122
123
124
125
126
127
128
Id. at 66-77.
Id. at 77-80.
Id. at 81-84.
Id. at 87.
St. Joseph Stock Yards Co. v. United States, 298 U.S. 38 (1936).
Id. at 51.
Id.
Id. at 53. The precise holding of Crowell, that judicial review of jurisdictional facts found
by an administrative tribunal must take place on an entirely fresh record, is almost certainly no
longer good law. See Henry Monaghan, Constitutional Fact Review, 85 COLUM L. REV. 229, 256
& n.147 (1985).
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that the jurisdictional fact doctrine had spawned “casuistic difficulties”
and “had earned a deserved repose.” 129 It has, however, never been
formally repudiated. For example, in a 1980 case involving a
constitutional challenge to the federal statute authorizing the use of
magistrate judges as finders of fact in criminal cases, the Court read
Crowell narrowly, upholding magistrates as “adjunct” to the judicial
function, but did not overrule it.130 The closest the Court has come to
rejecting the doctrine came in its 1982 Northern Pipeline decision
striking down the federal bankruptcy court system on Article III
grounds. In his plurality opinion, Justice Brennan stated that “Crowell’s
precise holding, with respect to the review of ‘jurisdictional’ and
‘constitutional’ facts that arise within ordinary administrative
proceedings, has been undermined by later cases.” 131 As part of a
plurality opinion, however, Brennan’s remarks in Northern Pipeline
lack precedential effect; in addition, they were carefully limited to
“ordinary administrative proceedings.” Subsequent decisions of the
Court have not followed Brennan’s lead. Thus, in her opinions for the
Court in Thomas v. Union Carbide Agricultural Products Co. 132 and
Commodity Futures Trading Commission v. Schor,133 Justice O’Connor
did not call Crowell’s precedential status into question. Instead, and not
surprisingly for O’Connor, she emphasized the passages in Chief Justice
Hughes’s decision that called for pragmatic rather than formalistic
analysis in separation of powers cases.134
The Court’s most recent discussion of Crowell occurred in the
2005 case of Clark v. Martinez, which concerned the government’s
authority to detain aliens it has deemed inadmissible to the United
States.135 The Court had decided, a few years earlier in Zadvydas v.
129
130
131
Estep v. United States, 327 U.S. 114, 142 (1946) (Frankfurter, J., concurring).
United States v. Raddatz, 447 U.S. 667, 682-83 & n.10 (1980).
Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (citing St.
Joseph Stock Yards, 298 U.S. 38, and 4 K. DAVIS, ADMINISTRATIVE LAW TREATISE §§ 29.08-09
(1st ed. 1958)). On the other hand, Brennan cited with approval what he called Crowell’s “general
principle”: that Congress could provide for non-Article III adjudication of congressionally created
“public rights” but not of constitutionally protected “private rights.” Id.
132 473 U.S. 568 (1985).
133 478 U.S. 833 (1986).
134 See, e.g., Thomas, 473 U.S. at 586 (“In deciding whether the Congress, in enacting the
statute under review, has exceeded the limits of its authority to prescribe procedure . . . , regard
must be had, as in other cases where constitutional limits are invoked, not to mere matters of
form but to the substance of what is required.”) (quoting Crowell, 285 U.S. at 53) (emphasis
added); id. at 587 (“The enduring lesson of Crowell is that practical attention to substance rather
than doctrinaire reliance on formal categories should inform application of Article III.”); Schor,
478 U.S. at 856 (“[T]he obvious purpose of the legislation [is] to furnish a prompt, continuous,
expert and inexpensive method for dealing with a class of questions of fact which are peculiarly
suited to examination and determination by an administrative agency specially assigned to that
task.”) (quoting Crowell, 285 U.S. at 46).
135 543 U.S. 371 (2005).
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Davis,136 that the Immigration and Nationality Act (INA), construed in
light of constitutional concerns, requires such detentions to be limited in
time. The government argued in Clark that the Court should give the
INA a different interpretation when the alien in question has not been
admitted to the country. In essence, the government argued that the
question whether the INA raised constitutional doubts should be
addressed on an as-applied, case-by-case basis, and it cited Crowell for
this proposition. The Court, in an opinion by Justice Scalia, rejected
this reading, construing Crowell instead as having required judicial
review of the fact of employment in all LHWCA cases, in order to
avoid constitutional concerns associated with a total preclusion of
judicial review on questions of constitutional fact.137 Notably, the Court
in Clark did not cast any doubt on Crowell’s continued vitality—
although, to be sure, that question was not directly posed in Clark. And
in its recent decision upholding the federal “partial-birth” abortion ban,
the Court approvingly cited a passage from Crowell insisting upon de
novo review of constitutional facts.138
In sum, although Crowell’s jurisdictional fact doctrine has not been
formally overruled, it currently plays no active role in the Court’s cases
concerning the restrictions imposed by Article III on administrative
adjudicatory bodies. 139 Why did the doctrine lose its vitality in this
area? Critics of the jurisdictional fact doctrine, including Justices
Brandeis and Frankfurter, have emphasized two objections. First, the
critics contend, the doctrine cannot overcome the malleability of its
central concept. It is exceptionally difficult to articulate a strict logical
dividing line between jurisdictional and ordinary facts.140 Virtually any
fact determined and acted upon by an executive tribunal could be said to
be essential to the tribunal’s exercise of jurisdiction. An analogy can be
drawn here to the debate within administrative law over whether
deference under Chevron U.S.A. v. Natural Resources Defense Council,
136
137
138
139
533 U.S. 678 (2001).
Clark, 543 U.S. at 382-83.
Gonzales v. Carhart, 127 S. Ct. 1610, 1637 (2007) (quoting Crowell, 285 U.S. at 60).
For instance, in the Court’s latest extended discussion of this area of constitutional law,
Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986), there is no mention of the
jurisdictional fact doctrine. A version of the doctrine survives in a separate area of constitutional
law, involving appellate review of factual findings in cases involving claims under the Free
Speech Clause of the First Amendment. See Bose Corp. v. Consumers Union of United States,
466 U.S. 485 (1984) (requiring de novo appellate review of facts supporting finding of “actual
malice” in defamation case involving First Amendment protections); see generally Monaghan,
supra note 128.
140 See, e.g., JAFFE, supra note 108, at 629; Gerald L. Neuman, Habeas Corpus, Executive
Detention, and the Removal of Aliens, 98 COLUM. L. REV. 961, 987 (1998) (“Identifying which
facts are ‘jurisdictional’ is a notoriously loose enterprise, allowing the courts to define the
boundaries of authority within which inferior [including executive] tribunals should be
confined.”).
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Inc.141 is owed to agencies’ legal conclusions about the scope of their
own regulatory jurisdiction. 142 Those who maintain that the usual
quantum of deference is owed argue that any disputed exercise of
agency authority can be characterized as resting on a legal conclusion
classified as “jurisdictional,” and that an exception to Chevron for
jurisdictional determinations would therefore swallow the rule. As
Justice Scalia has put it, “there is no discernible line between an
agency’s exceeding its authority and an agency’s exceeding authorized
application of its authority. To exceed authorized application is to
exceed authority.”143
The second critique, related although more legalistic, rests on a
claim of circularity. In order to adjudicate a dispute, an executive
tribunal must make certain findings of fact, including those relating to
its own jurisdiction. Yet precisely because “the tribunal is required to
make a finding, its jurisdiction cannot depend on the correctness of its
findings.” 144 Judicial review of the accuracy of administrative
determinations of fact cannot be logically justified by a need to ensure
that the tribunal had jurisdiction to act in the first instance. As Justice
Brandeis wrote in his Crowell dissent, “[t]he power of Congress to
provide by legislation for liability under certain circumstances
subsumes the power to provide for the determination of the existence of
those circumstances. It does not depend on the absolute existence in
reality of any fact.”145 This critique is strengthened by the elementary
legal realist insight that judicial review is itself fallible and cannot
provide assurance of the actual existence of any fact.146
Critiques of the doctrine along these two lines have appeared from
its earliest days. Indeed, even before Crowell, the preexisting English
doctrine of jurisdictional fact had been attacked as logically incoherent
for essentially these reasons.147 Its demise in the context of Article III
limitations on administrative tribunals can be explained in large part by
the strength of these critiques, combined with the simple potential of the
141
142
467 U.S. 837 (1984).
The Supreme Court has not definitively resolved this question. Compare, e.g., United
States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (according Chevron deference to an
agency interpretation that had the effect of expanding its jurisdiction), with FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120 (2000) (declining to defer to agency interpretation due
in part to the breadth of the asserted jurisdiction). See also Oklahoma Natural Gas Co. v. FERC,
28 F.3d 1281, 1283–84 (D.C. Cir. 1994) (“Although not directly ruling upon the matter of
deference on such issues, the Supreme Court has in practice deferred even on jurisdictional
issues. So have we.”) (citations omitted).
143 Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 381 (1988)
(Scalia, J., concurring).
144 JAFFE, supra note 108, at 630.
145 Crowell v. Benson, 285 U.S. 22, 85 (1932) (Brandeis, J., dissenting).
146 See Dickinson, supra note 109, at 1074.
147 See generally D. M. Gordon, The Relation of Facts to Jurisdiction, 45 L.Q. REV. 459
(1929).
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doctrine to lengthen and complicate the process of regulatory
factfinding.148
Yet, as Louis Jaffe explained in his celebrated work on Judicial
Control of Administrative Action, the concept of jurisdictional fact
should not be discarded simply because it is not logically airtight.149
Difficult cases will arise at the margins, but it will usually be clear
which exercises of authority lie at the core of an executive tribunal’s
constitutional or statutory authority and which lie beyond the outer
bounds of that authority. 150 Moreover, the more important the
entitlement at stake—protection from incarceration, for instance, as
opposed to the protection of property or contract rights—the more
crucial it is to ensure that an executive tribunal not unilaterally
determine the facts that determine its own authority to act in a particular
case.151 As one prominent commentator on habeas has put it:
[T]here can be little doubt that it is difficult to distinguish a
jurisdictional fact from a non-jurisdictional one. It is clear,
however, that without this means of review, inferior tribunals
would often be left free to decide the limits of their powers for
themselves, and courts have long considered that such unfettered
powers would be intolerable.152
In the end, a doctrine of jurisdictional fact, like other seemingly
formalistic legal principles, can be justified in functional terms. As
Jaffe put it, “[a] tribunal of limited jurisdiction should not be the final
judge of its exercise of power; it should be subject to the control of
courts of more general jurisdiction.” 153 The role of “courts of more
general jurisdiction” is particularly crucial where the life or liberty of
individuals is at stake. This is illustrated by a series of habeas cases on
which the Court relied in Crowell and whose precedential vitality
remains unquestioned.
Perhaps most instructive for current purposes is Ng Fung Ho v.
White.154 In Ng Fung Ho, two Chinese-born persons were taken into
custody by the Commissioner of Immigration for the Port of San
Francisco to be deported. The warrants of deportation alleged that the
petitioners had entered the United States by fraud and had remained in
148 See Monaghan, supra note 128, at 254-59; Richard H. Fallon, Jr., Of Legislative Courts,
Administrative Agencies, and Article III, 101 HARV. L. REV. 915, 990 (1988) (“A requirement
that every conclusion of constitutional or jurisdictional fact must be relitigable de novo in a
constitutional court would too severely undermine the utility of non-article III tribunals.”).
149 JAFFE, supra note 108, at 631 (“Though the category of jurisdictional fact does not have
that strict logic which the phrase seems to imply, it is not a completely arbitrary concept.”).
150 Id. at 631-32.
151 For a version of this argument that focuses on the distinction, blurred in Crowell, between
public and private rights, see Nelson, supra note 115.
152 R. J. SHARPE, THE LAW OF HABEAS CORPUS 69-70 (1st ed. 1976).
153 JAFFE, supra note 108, at 632.
154 259 U.S. 276 (1922).
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the country in violation of the Chinese Exclusion Act of 1892.155 The
petitioners, however, claimed that they were foreign-born sons of
native-born citizens, and therefore were themselves citizens according
to federal law.156 The Court, in an opinion by Justice Brandeis, held
that they were entitled to habeas review. “Jurisdiction in the executive
to order deportation,” the Court observed, “exists only if the person
arrested is an alien. The claim of citizenship is thus a denial of an
essential jurisdictional fact.”157
The Court’s holding was grounded in the Due Process Clause and
not, as in the later Crowell case, in Article III.158 Nonetheless, structural
concerns were at the forefront of Justice Brandeis’s reasoning. Without
the ability to contest this jurisdictional fact in an Article III proceeding,
the Court held, a resident could be deported on the unilateral say-so of
the Executive Branch. 159 Ordinary judicial review—to ensure
procedural regularity, the presence of substantial evidence, and the
absence of any errors of law—was not enough.160 The Court’s holding
in Ng Fung Ho depended in large part on the seriousness of deportation,
which “may result also in loss of both property and life, or of all that
makes life worth living.”161
The case might have been different, Justice Brandeis reasoned, had
the petitioners made only a bare allegation of citizenship. “But these
petitioners,” he noted, “did not merely assert a claim of citizenship.
They supported the claim by evidence sufficient, if believed, to entitle
them to a finding of citizenship.” 162 Many decades later, the Court
reaffirmed that a prima facie showing of citizenship by a resident
subject to deportation was sufficient to trigger a de novo proceeding in
habeas.163
Another case relied on in Crowell that is relevant to the current
debate is United States v. Grimley. 164 Grimley, a serviceman, was
found guilty of desertion by a court-martial and sentenced to six
months’ imprisonment.165 He petitioned for habeas on the grounds that
he had been 40 years old at the time of his enlistment, although he
155
156
157
158
159
160
161
162
163
Id. at 278.
Id. at 281-82.
Id. at 284.
Id. at 284-85.
Id.
Id.
Id. at 284.
Id. at 282.
Agosto v. INS, 436 U.S. 748 (1978) (interpreting the Immigration and Naturalization Act
to require de novo fact-finding before an Article III Court whenever there is a genuine issue of
material fact as to citizenship). But see United States v. Ju Toy, 198 U.S. 253 (1905) (no habeas
relief for individual claiming citizenship who is detained while seeking reentry to the United
States).
164 137 U.S. 147 (1890).
165 Id. at 149.
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represented himself to be 28.166 Since a federal statute established 35 as
the maximum age for newly enlisted men, Grimley claimed that his
enlistment had been void ab initio and that the court-martial therefore
lacked jurisdiction over him. 167 Although the Court ultimately ruled
against Grimley on the ground that he had freely entered into the
contract of enlistment, it made clear that habeas review entails an
independent inquiry of jurisdictional facts found by a court-martial: “It
cannot be doubted that the civil courts may in any case inquire into the
jurisdiction of a court-martial, and, if it appears that the party
condemned was not amenable to its jurisdiction, may discharge him
from the sentence. . . . The single inquiry, the test, is jurisdiction.”168
Similarly, Chief Justice Marshall held in 1830 that a court-martial
lacked jurisdiction to punish a federal justice of the peace for failing to
serve in the state militia when federal law exempted such officers from
militia duty.169 Other authorities in the field of military justice are to the
same effect.170
Two decisions by military judges in June 2007 confirm the
continued vitality of the jurisdictional approach. Although these
decisions occurred in the context of pretrial proceedings before a
military commission rather than judicial review of enemy combatant
status, they reaffirmed the seriousness with which military authorities
treat (or ought to treat) the jurisdictional boundaries of their own power.
In one case, a military judge dismissed the charges against Omar
Ahmed Khadr sua sponte on the grounds that the MCA, which created
the military commissions, granted them limited jurisdiction over “alien
unlawful enemy combatants.”171 Since the CSRT proceeding in Khadr’s
case had not determined that he was an unlawful enemy combatant, the
166
167
168
169
170
Id. at 150.
Id.
Id.
Wise v. Withers, 7 U.S. (3 Cranch) 331 (1806).
See, e.g., In re Yamashita, 327 U.S. 1, 8 (1946) (“Congress conferred on the courts no
power to review [the] determinations [of military tribunals] save only as it has granted judicial
power to grant writs of habeas corpus for the purpose of an inquiry into the cause of the restraint
of liberty. The courts may inquire whether the detention complained of is within the authority of
those detaining the petitioner.”) (citations omitted); Lee v. Madigan, 358 U.S. 228 (1959) (court
martial lacked jurisdiction to try defendant for crime committed “in time of peace,” even though
crime occurred in 1949 and Second World War was not formally terminated by Congress until
1951 or 1952); Neuman, supra note 140, at 1039 (observing that “civilian courts have been
careful to prevent military courts from extending their power over persons not subject to military
law”); James E. Pfander, The Limits of Habeas Jurisdiction and the Global War on Terror, 91
CORNELL L. REV. 497, 520 (2006) (“[T]he federal courts police the boundaries of military justice,
preventing the application of military law to those not properly subject to its terms.”). But see
Ludecke v. Watkins, 335 U.S. 160, 172 (1948) (upholding deportation of alleged enemy aliens
under Alien Enemies Act without opportunity for judicial review).
171 Order on Jurisdiction at 1, United States v. Khadr, No.07-1405 (D.C. Cir. June 4, 2007),
2007
U.S.
App.
LEXIS
26155,
available
at
http://www.nimj.com/documents/Khadr%20Order%20on%20Jurisdiction.pdf (emphasis added).
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commission lacked jurisdiction and charges had to be dismissed. The
judge conceded that in court-martial proceedings, jurisdiction is
assumed and can be challenged by the defendant by motion. The judge
distinguished courts-martial, however, noting that in that context the
charged soldier is typically in the courtroom, in uniform, accompanied
by a company commander who typically preferred the charges against
the accused. By contrast, he continued, there was no prima facie
evidence to support jurisdiction over Khadr as an unlawful enemy
combatant “except for a bare allegation in the wording of the
specification of the charges.”172 He also concluded that Congress did
not intend for a military judge to make the “unlawful enemy combatant”
designation in the first instance.173 The United States Court of Military
Commission Review reversed the military judge on this last point,
holding that he did have inherent authority to make such a
designation—but it pointedly affirmed the notion that unlawful
combatancy was an indispensable fact on which the jurisdiction of the
military authorities depended.174
Similarly, in the case of Salim Ahmed Hamdan, the military judge
dismissed the charges on the grounds that the CSRT had not determined
that Hamdan was an unlawful enemy combatant.175 In support of this
dismissal, the judge noted that the definition of “enemy combatant”
used by the CSRT was less demanding than the MCA’s definition of
“unlawful enemy combatant,” because the former included civilians
who were “part of” or “supporting” Taliban or Al Qaeda forces engaged
in hostilities, while the latter was limited to those who “engaged in
hostilities or who . . . purposefully and materially supported
hostilities.”176 Moreover, the judge noted that the CSRT proceeding in
Hamdan’s case preceded the passage of the MCA by two years,
reasoning that “[t]he accused’s participation in the CSRT may well have
been much different had he realized its finding would be used to impose
criminal jurisdiction upon him before a Military Commission.”177
Cases like Ng Fung Ho and Grimley are consistent with the most
fundamental and longest-standing function of the writ of habeas corpus,
172
173
Id. at 2.
Id.
174
United States v. Khadr, United States Court of Military Commission Review, CMCR 07001 (Sep. 24, 2007), available at
http://www.defenselink.mil/news/Sep2007/KHADR%20Decision%20(24%20Sep%2007)(25%20
pages).pdf.
175 Decision and Order—Motion to Dismiss for Lack of Jurisdiction, United States v. Hamdan,
(June 4, 2007), available at http://www.nimj.com/documents/Hamdan%20Order.pdf.
176 Id. at 3.
177 Id. Hamdan’s military trial was later reinstated on the basis of the United States Court of
Military Commission Review’s intervening decision in the Khadr case, supra note 1741. See
Posting of Lyle Denniston to Scotusblog, http://www.scotusblog.com/wp/uncategorized/hamdantrial-to-go-forward/ (Oct. 18, 2007, 11:09 EST).
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which is to examine the lawfulness of detention by the Executive
Branch. Although we have become accustomed since the 1960s to
viewing habeas as a vehicle for post-conviction review, that is not the
writ’s primary or traditional office. As the Court has explained, “[a]t its
historical core, the writ of habeas corpus has served as a means of
reviewing the legality of Executive detention, and it is in that context
that its protections have been strongest.”178 Historically, the scope of
judicial review on habeas was limited to the question whether the
executive officer or inferior tribunal to which the writ was directed was
acting within its jurisdiction.179 Even before their general factfinding
authority was expanded in 1867,180 habeas courts regularly conducted
searching inquiries into the jurisdictional facts on which the legality of
detention rested. 181 For example, in an 1813 case, a habeas court
independently inquired into the truth of the Executive’s claim that the
petitioner was an enemy alien not entitled to judicial process.182 By the
second half of the twentieth century, as the Supreme Court began to
authorize the use of habeas review as a means of collaterally attacking
final criminal judgments, the language of jurisdiction became less
prominent in the Court’s decisions. 183 Nevertheless, the concept of
jurisdiction remains at the heart of the habeas corpus inquiry, and ought
to continue to guide courts and legislators as they come to grips with the
issues raised by the Executive Branch’s assertion of authority to detain
individuals as enemy combatants. In short, although Crowell’s
jurisdictional fact doctrine has been overtaken by subsequent
developments in the area of administrative procedure, it ought to remain
central to the way habeas courts deal with the enemy combatant
problem.184
178 INS v. St. Cyr, 533 U.S. 289, 301 (2001). See also, e.g., Preiser v. Rodriguez, 411 U.S.
475, 484 (1973) (“[T]he essence of habeas corpus is an attack by a person in custody upon the
legality of that custody, and . . . the traditional function of the writ is to secure release from illegal
custody.”); Ex parte Watkins, 28 U.S. (3 Pet.) 193, 202 (1830) (Marshall, J.) (“The writ of habeas
corpus is a high prerogative writ, known to the common law, the great object of which is the
liberation of those who may be imprisoned without sufficient cause.”).
179 Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807); Watkins, 28 U.S. (3 Pet.) at 203; see
generally Neuman, supra note 140 at 981-87.
180 See Act of Feb. 5, 1867, ch. 28 § 1, 14 Stat. 385.
181 See, e.g., In re Kaine, 14 F. Cas. 84, 88, 90 (C.C.S.D.N.Y. 1852).
182 Lockington’s Case, 1 Brightly’s (N.P.) 269 (Pa. 1813).
183 See, e.g., Waley v. Johnston, 316 U.S. 101, 104-05 (1942) (finding habeas relief
appropriate not only in “cases where the judgment of conviction is void for want of jurisdiction”
but also in “those exceptional cases where the conviction has been in disregard of the
constitutional rights of the accused, and where the writ is the only effective means of preserving
his rights”); see also Neuman, supra note 140, at 984 (noting that “jurisdiction,” in the sense of
lawful authority to detain, has proven a malleable concept in habeas jurisprudence).
184 Cf. Richard H. Fallon & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive
Rights, and the War on Terror, 120 HARV. L. REV. 2029, 2069 (2007) (“Modern notions of
deference to administrative decisionmakers, developed primarily in other contexts, are in
considerable tension with the historic office of the Great Writ.”).
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III. APPLICATION OF THE DOCTRINE TO ENEMY COMBATANT
DESIGNATIONS
With respect to executive tribunals acting upon a person in military
custody, the status of the detainee as a combatant or a civilian qualifies
as a jurisdictional and constitutional fact in the core sense of those terms
described in Part II. In other words, military authorities within the
Executive Branch have no jurisdiction to detain noncombatants beyond
the limited time necessary to meet military exigencies and ascertain
detainees’ status, and a fortiori military tribunals have no jurisdiction to
try noncombatants for violations of the laws of war. This principle of
distinction is deeply inscribed in American constitutional law, as well as
in the traditional law of war and modern international humanitarian law.
Because the fact of combatancy is jurisdictional in this sense, it may not
be determined unilaterally by the Executive Branch, free from searching
and independent judicial review.
Within domestic constitutional law, Milligan stands as the most
basic expression of the fundamental jurisdictional principle that
distinguishes combatants from civilians. As noted by the Fourth Circuit
in al-Marri, the Court held in Milligan that as long as the ordinary court
system remained open, civilians could not be tried by military
commission.185 As the Court explained, although as a civilian Lambdin
Milligan could not claim the prisoner-of-war privileges enjoyed by
combatants, by the same token he could not be subjected to military
jurisdiction in the manner reserved for combatants.186 Consistent with
this understanding, the Court has generally taken pains to construe
statutes against the background assumption that Congress “did not wish
to exceed the boundaries between military and civilian power, in which
our people have always believed.”187
The Court’s decision in Hamdi did nothing to upset this
fundamental distinction. Although Hamdi upheld executive power to
detain a citizen as an enemy combatant, it confirmed Milligan’s basic
mandate that civilians not be subjected to military justice.188 And as
185 See Ex parte Milligan, 71 U.S. 2, 120-21 (1866) (“The Constitution of the United States is
a law for rulers and people, equally in war and in peace, and covers with the shield of its
protection all classes of men, at all times, and under all circumstances.”).
186 Id. at 131 (“If [Milligan] cannot enjoy the immunities attaching to the character of a
prisoner of war, how can he be subject to their pains and penalties?”).
187 Duncan v. Kahanamoku, 327 U.S. 304, 324 (1946); cf. Little v. Barreme, 6 U.S. 170 (1804)
(narrowly construing wartime authorization to seize ships); Zadvydas v. Davis, 533 U.S. 678
(2001) (narrowly construing executive power to detain aliens for lengthy periods of time).
188 See Hamdi v. Rumsfeld, 542 U.S. 507, 522 (2004) (“The Court’s repeated explanations
that Milligan was not a prisoner of war suggest that had these different circumstances been
present he could have been detained under military authority for the duration of the conflict,
whether or not he was a citizen.”). As suggested above, however, supra text accompanying notes
2-11, the Court erred in Hamdi by purporting to vindicate the Milligan principle through ad hoc
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Justice Scalia explained in his Hamdi dissent, Quirin did not supersede
this central aspect of the Milligan holding. The petitioners in Quirin
conceded that they were soldiers who had shed their uniforms upon
entry into the United States, and thus were belligerents within the
accepted boundaries of military jurisdiction. Hence, Quirin left in place
the entitlement to judicial process in cases where, as Justice Scalia put
it, “those jurisdictional facts are not conceded.”189
It is true that the Supreme Court has often emphasized the need for
judicial deference to executive decisionmaking in the military arena.190
Indeed, the Court has held that Congress has the authority to delegate
adjudicatory power to courts-martial and other military tribunals
completely outside the strictures of Article III. 191 But, as cases like
Grimley illustrate, the judiciary retains the power to determine, as a
threshold matter, whether military authorities are acting within their
jurisdiction in the first instance. To this end, the Court has insisted on
its obligation “to ensure that Congress does not exceed the
constitutional bounds and bring within the jurisdiction of the military
courts matters beyond that jurisdiction, and properly within the realm of
‘judicial power.’”192
During the current conflict, neither the Executive Branch nor
Congress has made any serious effort to delineate the boundary
separating combatants from civilians as such, nor to limit the combatant
category to traditional battlefield participants as a matter of positive
law. Instead, as noted in Part I, the MCA defines the category of enemy
combatants quite broadly to encompass those who have “purposefully
and materially supported” hostile actions against the United States as
well as those who have been determined to be enemy combatants
through the CSRT process. The Department of Defense order
establishing the CSRT system, in turn, defines the combatant category
to include any person who was “part of or supporting Taliban or al
Qaeda forces.” 193 In the absence of more fully specified definitions
from Congress or the Executive Branch, it will fall to the courts to
articulate legal norms to ensure that the enemy combatant category is
not unconstitutionally broad.194 And, as this article has argued, once
those norms are articulated, courts must independently review the
Due Process balancing.
189 Hamdi, 542 U.S. at 571-72 (Scalia, J., dissenting).
190 See generally id. at 579-99 (Thomas, J., dissenting), and authorities cited there.
191 See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 66 (1982)
(plurality opinion) (citing Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857), and Burns v. Wilson,
346 U.S. 137 (1953)).
192 Id. at 66 n.17 (citing Reid v. Covert, 354 U.S. 1 (1957), and United States ex rel. Toth v.
Quarles, 350 U.S. 11 (1955)).
193 Wolfowitz, supra note 28 at 1.
194 See, e.g., In re Guantánamo Detainees, 355 F. Supp. 2d 443, 474-78 (D.D.C. 2005), rev’d
sub nom., Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).
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factual determinations that underlie any finding of combatant status.
This conclusion is strengthened by the longstanding principle that
statutes ought be construed consistently with international law,
including the laws of war, whenever reasonably possible. 195 The
requirement that warring states distinguish between combatants and
civilians is one of the two fundamental pillars of international
humanitarian law.196 Scholars have traced this “principle of distinction”
as far back as the Aztecs and the ancient Chinese. 197 Early modern
thinkers such as Grotius and Vattel, as well as Enlightenment theorists
like Rousseau, placed the distinction between combatants and noncombatants at the heart of their accounts of the just conduct of war.198
In modern times, the principle of distinction was codified in the 1907
Hague Conventions, 199 and embodied in the structure of the 1949
Geneva Conventions, with its Third Convention addressing the
privileges of combatant prisoners of war and its Fourth Convention
addressing the treatment of civilians in wartime.200
Indeed, it is not an overstatement to say that modern international
humanitarian law is built upon a relatively well-defined distinction
between combatants and civilians. Article 4 of the Third Geneva
Convention defines prisoners of war—and, by logical inference, lawful
combatants—according to several criteria, such as being under
responsible command, wearing a fixed distinctive sign, carrying
weapons openly, and complying with the customs and laws of war.201
For its part, Article 4 of the Fourth Geneva Convention defines
195 See Murray v. The Schooner Charming Betsy, 6 U.S. 64, 118 (1804) (Marshall, C.J.);
Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2786 (2006).
196 The second foundational principle holds that belligerents do not have the right to adopt
unlimited means of injuring the enemy. See Kenneth Watkin, Warriors Without Rights?
Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy 8 (Occasional Paper,
Harvard Program on Humanitarian Policy and Conflict Research) (Winter 2005), available at
http://www.hpcr.org/pdfs/OccasionalPaper2.pdf; Nicholas Rengger, On the Just War Tradition in
the 21st Century, 78 INT’L AFF. 358 (2002); JAMES TURNER JOHNSON, MORALITY AND
CONTEMPORARY WARFARE 36 (Yale University Press, 1999); GEOFFREY BEST, WAR AND LAW
SINCE 1945 253 (1994). See also Carlton F. W. Larson, The Forgotten Constitutional Law of
Treason and the Enemy Combatant Problem, 154 U. PA. L. REV. 863, 878 (emphasizing the
“fundamental distinction, rooted in allegiance, between those persons subject to civilian authority
and those persons subject to military authority with respect to crimes against the state”).
197 Watkin, supra note 196, at 9 n.22, and authorities cited therein.
198 Best, supra note 196, at 26-34. Traditionally, the law of war addresses two concerns: jus
ad bellum (when is it just to engage in war?) and jus in bello (what constitutes just conduct during
war?). Id. at 19. The principle of distinction between combatants and civilians is central to the
latter concern. See also Nathaniel Berman, Privileging Combat? Contemporary Conflict and the
Legal Construction of War, 43 COLUM. J. TRANSNAT’L L. 1, 3, 9 (2004); Robert Kolb, Origin of
the Twin Terms Jus Ad Bellum/Jus In Bello, 320 INT’L REV. RED CROSS 553 (1997), available at
http://www.icrc.org/web/eng/siteeng0.nsf/html/57JNUU.
199 Watkin, supra note 196, at 9; Ex parte Quirin, 317 U.S. 1, 12 n.7 (1942).
200 See generally Geneva Convention III, supra note 71; Geneva Convention IV, supra note
38.
201 Geneva Convention III, supra note 71, art. 4A(2).
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protected civilians as “those who, at a given moment and in any manner
whatsoever, find themselves, in case of a conflict or occupation, in the
hands of a Party to the conflict or Occupying Power of which they are
not nationals.” 202 And the official commentary to the Fourth
Convention makes clear that each detainee “must have some status
under international law: he is either a prisoner of war and, as such,
covered by the Third Convention, [or] a civilian covered by the Fourth
Convention. . . . There is no intermediate status; nobody in enemy hands
can be outside the law.”203
International law also recognizes that detainees are entitled to a
speedy determination that they qualify, as lawful combatants, for
prisoner of war status. 204 Thus, Article 5 of the Third Geneva
Convention provides that, “should any doubt arise” as to whether a
captured person qualifies as a prisoner of war, he must be treated as
such until his status “has been determined by a competent tribunal.”205
Since the Vietnam War, and continuing through the current war in Iraq,
the United States military has implemented Article 5 through a set of
regulations that provide for status hearings, which are usually held
quickly and at or close to the theater of active military operations.206
The CSRT proceedings approved by Congress in the MCA fail to
provide procedural protections equivalent to those provided by Article 5
hearings, in several respects. In Article 5 hearings, the detainee is
presumed to be a prisoner of war until proven otherwise; in CSRT
proceedings, the government’s prior conclusion that the detainee is an
enemy combatant is entitled to, and receives, presumptive weight. In
Article 5 hearings, evidence must be obtained in accordance with the
Geneva Conventions, which prohibit torture and other forms of
202 Geneva Convention IV, supra note 38, art. 4. The Fourth Convention expressly excludes
from its definition of “protected persons” nationals of non-signatory states, nationals of neutral
states, and nationals of co-belligerent states that have diplomatic relations with the capturing
state. Id. In addition, Article 5 of the Fourth Convention singles out for special treatment spies,
saboteurs, and others whose activities threaten the security of the capturing state. For a
discussion of the extent to which the Fourth Convention applies to alleged Taliban and al-Qaeda
soldiers captured by the United States, see Jason Callen, Unlawful Combatants and the Geneva
Conventions, 44 VA. J. INT’L. L. 1025 (2004). The difficulty of this question does nothing to
undermine the basic argument of this article that the distinction between combatants and civilians
is fundamental to international humanitarian law.
203 See ICRC Commentary to the Geneva Convention IV, art. 51 (Jean S. Pictet ed., 1958),
available at http://www.icrc.org/ihl.nsf/COM/380-600058?OpenDocument.
204 See
Geneva
Additional
Protocol
I,
art.
45(2),
available
at
http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e00
52b079 (detainee “shall have the right to assert his entitlement to prisoner-of-war status before a
judicial tribunal and to have that question adjudicated”). The United States signed, but has not
ratified, the 1977 Additional Protocols to the Geneva Conventions.
205 Geneva Convention III, supra note 71, art. 5.
206 See Dep’t of the Army, Enemy Prisoners of War, Retained Personnel, Civilian Internees,
and Other Detainees, Army Reg. 190-8 (Oct. 1, 1997), available at
http://www.au.af.mil/au/awc/awcgate/law/ar190-8.pdf.
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inhumane treatment; in CSRT proceedings, no such evidentiary
restrictions apply—and the MCA forbids detainees from invoking the
Geneva Conventions.207
To be sure, the distinction between combatants and civilians,
though fundamental to the law of war, has been blurred by modern
developments in warmaking. Traditional warfare, with its uniformed
armies squaring off in rank-and-file formation, gave way long ago to
more amorphous and wide-ranging methods of warfare in which
individuals can act as guerrillas, partisans, spies, or saboteurs. Today’s
terrorists, with potential access to weapons of mass destruction and a
proven willingness to target civilians indiscriminately, have placed even
greater strain on the classic combatant-civilian dichotomy. 208 In
response to these developments, an intermediate category arose—one
that lacks a precise definition, a clear status as a matter of international
law, or even a consistent label: the category of the “unlawful
combatant” or the “unprivileged belligerent.”209 Unlawful combatants
are typically defined as belligerents who fail to observe the laws of
war. 210 In Quirin, the Supreme Court observed that “[b]y universal
agreement and practice the law of war draws a distinction between the
armed forces and the peaceful populations of belligerent nations and
also between those who are lawful and unlawful combatants.”211 The
Quirin Court listed spies and saboteurs without uniform as familiar
examples of combatants “who are generally deemed not to be entitled to
the status of prisoners of war, but to be offenders against the law of war
subject to trial and punishment by military tribunals.”212
Justice O’Connor’s plurality opinion in Hamdi observed that there
is disagreement about the appropriate scope of the term “enemy
combatant,” and noted that “the government has never provided any
court with the full criteria that it uses in classifying individuals as
207
208
See generally MARGULIES, supra note 45, at 160-69.
See generally Watkin, supra note 196; see also Eric Talbot Jensen, Combatant Status: It Is
Time for Intermediate Levels of Recognition for Partial Compliance, 46 VA. J. INT’L L. 209, 21011 (2005); Rosa Ehrenreich Brooks, War Everywhere: Rights, National Security Law, and the
Law of Armed Conflict in the Age of Terror, 153 U. PA. L. REV. 675, 730-31 (2004).
209 Scholarly attention was first drawn to this intermediate category by Richard R. Baxter, Socalled ‘Unprivileged Belligerency’: Spies, Guerrillas, and Saboteurs, 28 BRIT. Y.B. INT’L L. 323
(1951). Baxter defines unprivileged belligerents as “persons who are not entitled to treatment
either as peaceful civilians or as prisoners of war by reason of the fact that they have engaged in
hostile conduct without meeting the qualifications established by [Article 4 of the Third Geneva
Convention].” Id. at 328. For an interesting recent treatment, see Sean D. Murphy, Evolving
Geneva Convention Paradigms in the “War on Terrorism”: Applying the Core Rules to the
Release of Persons Deemed “Unprivileged Combatants,” 75 GEO. WASH. L. REV. (forthcoming
2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=958380.
210 See, e.g., Jason Callen, Unlawful Combatants and the Geneva Conventions, 44 VA. J. INT’L
L. 1025, 1026 (2004); Ex parte Quirin, 317 U.S. 1, 35 (1942).
211 Quirin, 317 U.S. at 12.
212 Id.
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such.”213 The Court, however, accepted for the purposes of Hamdi’s
case a definition of “enemy combatant” as an individual who “was part
of or supporting forces hostile to the United States or coalition partners
in Afghanistan and who engaged in an armed conflict against the United
States there.”214 As noted above, Congress’s definition in the MCA is
broader, encompassing any “person who has engaged in hostilities or
who has purposefully and materially supported hostilities against the
United States,” or has been designated as an enemy combatant by a
CSRT.215
In sum, it has never been easy to draw a precise boundary between
combatants and civilians, and the task has only become more difficult in
the present context of terrorism and asymmetrical warfare. As a result,
the political branches—Congress, in particular—ought to have some
leeway to define that boundary in light of changing circumstances,
consistent with their obligations under constitutional and international
law. This article does not undertake to offer such a definition. Instead,
it makes a more modest assertion: even the most minimal understanding
of the jurisdictional fact doctrine insists that a resident of the United
States apprehended within its territory, away from any theater of active
combat operations, ought to be presumed a civilian. To overcome that
presumption and detain such an individual as an enemy combatant, the
government must offer competent and credible evidence of combatancy
in an Article III court.216 By codifying the opposite presumption and
permitting the introduction of hearsay evidence—and, potentially,
evidence procured using torture—the current CSRT system as applied
to a resident alien like Ali Saleh Kahlah al-Marri not only runs counter
to Ex parte Milligan and basic tenets of international law, but threatens
the separation of powers and the fundamental principle that lawful
residents of the United States are innocent until proven guilty.217
Yet an examination of the jurisdictional fact doctrine points toward
another, more ambitious, conclusion as well. If the facts alleged to
prove combatancy are jurisdictional, those facts ought to be subject to
213
214
215
216
Hamdi v. Rumsfeld, 542 U.S. 507, 516 (2004).
Id. (internal quotation marks omitted).
Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006), § 948a(1).
This article does not take a position on the precise the standard of proof to which the
government’s evidence should be held in such a proceeding. On this topic, compare Benjamin J.
Priester, Return of the Great Writ: Judicial Review, Due Process, and the Detention of Alleged
Terrorists as Enemy Combatants, 37 RUTGERS L. J. 39, 94-102 (2005) (arguing for a “clear and
convincing evidence” standard) with Calhoun, supra note 22 (insisting on a “heavy” burden of
proof).
217 Indeed, as al-Marri’s counsel has pointed out, if a person can be unilaterally labeled a
combatant while living as a resident alien in the United States, then under the laws of war he
could lawfully be shot to death in broad daylight on the streets of the United States. Brief of
Appellants at 22, Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007) (No. 06-7427), 2006 WL
3670673.
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independent judicial review in any case in which the Executive Branch
has detained an individual as an alleged enemy combatant, regardless of
the individual’s location, citizenship, or entitlement to Due Process
Clause protections. To be sure, temporary battlefield detentions are
inevitable and the Executive should not be encumbered with judicial
process during the time period reasonably necessary to sort combatants
from civilians. And in light of the exigencies of military operations and
the traditional flexibility of habeas procedures, courts in cases involving
detainees captured abroad may be entitled to require the petitioner to
present prima facie evidence of civilian status before shifting the burden
to the executive to come forward with facts of its own.218 Yet however
the proceedings are structured, the foregoing analysis indicates that the
federal courts are guaranteed an active role in reviewing the Executive
Branch’s jurisdictional determination of combatancy. This conclusion
is particularly powerful when prolonged or indefinite detention is at
issue. 219 To the extent Hamdi contemplates that the process of
determining enemy combatant status could be performed by a military
tribunal without judicial involvement, 220 it runs afoul of the basic
insight embodied in the doctrine of jurisdictional fact.221
CONCLUSION
This article has characterized the jurisdictional fact doctrine as a
structural approach to the problem of enemy combatant designation. It
is an approach that is meant to complement, rather than supplant, Due
Process Clause analysis. It could be said (echoing Justice Brandeis’s
Crowell dissent) that in the designation of individuals as enemy
combatants, as in Ng Fung Ho and Grimley, “the constitutional
requirement of due process is a requirement of judicial process.”222 One
does not need to call for a revival of Crowell’s jurisdictional fact
218 Cf. Ng Fung Ho v. White, 259 U.S. 276, 282 (1922) (calling for independent judicial
review of citizenship after petitioner had presented evidence that was prima facie sufficient on
that factual issue); Hamdi, 543 U.S. at 534 (suggesting a burden-shifting scheme to test enemy
combatant designation of U.S. citizens captured abroad).
219 Cf. Rasul v. Bush, 542 U.S. 466, 488 (2004) (Kennedy, J., concurring) (“Perhaps, where
detainees are taken from a zone of hostilities, detention without proceedings or trial would be
justified by military necessity for a matter of weeks; but as the period of detention stretches from
months to years, the case for continued detention to meet military exigencies becomes weaker.”).
220 543 U.S. at 538.
221 This article does not address the difficult question, at issue in Boumediene, of how far
Congress may eliminate the habeas remedy without running afoul of the Suspension Clause—
except to suggest that insofar as habeas has historically served to preserve the essential
jurisdictional boundaries of the executive’s power to detain, the writ or some adequate substitute
must be made available absent a valid suspension. See Swain v. Pressley, 430 U.S. 372 (1977).
222 Crowell v. Benson, 285 U.S. 22, 87 (1932).
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doctrine in ordinary administrative process to recognize the insights that
doctrine can bring to bear on the enemy combatant problem. Primary
among those insights is the idea that judicial review of enemy
combatant designations is called for not just by an ad hoc balancing of
individual liberty interests against national security interests, but more
deeply, by the structural imperative to ensure that the executive not
exercise power beyond its jurisdiction.
In the final analysis, though, the institutional mandates of Article
III and the separation of powers are designed to protect individual
liberty. As the Court has stated, Article III’s vesting of the judicial
power in judges who enjoy tenure and salary protections “serves both to
protect the role of the independent judiciary within the constitutional
scheme of tripartite government and to safeguard litigants’ right to have
claims decided before judges who are free from potential domination by
other branches of government.”223 In the end, then, “the designation of
an individual as an enemy combatant presents the classic issue of
jurisdictional boundaries on which constitutional rights of the first
magnitude depend.” 224 Those rights are too important to be left to
unilateral Executive Branch determination.
223
224
Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 848 (1986).
James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the
United States, 118 HARV. L. REV. 643, 759 (2004).