The detention of a citizen of the United States as an "enemy combatant" in the war against terrorism has raised new questions about the Bush administration’s treatment of suspected members of al-Qaeda, and may open the way for US federal courts to rule on the legal status of the conflict for the first time.

Abdullah al-Muhajir, formerly named Jose Padilla, was arrested in Chicago on May 8 on a material witness warrant, and moved to a federal prison in New York City. His case came to light on June 10, when the government said that it had captured an al-Qaeda associate who was plotting to explode a radioactive bomb in the United States. The administration also announced that al-Muhajir had been transferred to military custody; he is currently being held in a high-security Navy prison in Charleston, South Carolina.

The previous high-profile suspect to be arrested in the territory of the United States, Zacarias Moussaoui, was indicted on criminal charges in a US federal court. But the authorities have apparently decided, at least for the moment, not to pursue this path with al-Muhajir. If they had continued holding him as a material witness, they might have faced pressure either to file charges against him, or to release him. By designating al-Muhajir as an enemy combatant, the administration can continue to detain him without charge, and interrogate him without giving him access to legal counsel.

As things now stand, however, al-Muhajir cannot be tried before the military commissions that the Defense Department has created to prosecute those detained in connection with their campaign against terrorism. The tribunals are not authorized to try US citizens, although it is possible that the regulations that govern them could be altered by Presidential order to give them jurisdiction over US nationals.

In any case, the administration does not appear to have any intention of charging al-Muhajir in the immediate future. Speaking to journalists in Qatar on June 11, Defense Secretary Donald Rumsfeld said: "We are not interested in trying him at the moment; we are not interested in punishing him at the moment. We are interested in finding out what he knows." A Congressional official quoted in a report by the Associated Press on June 13 said, on the basis of a briefing by Justice Department officials, that al-Muhajir "is going to stay in the can until we’re through with al-Qaeda."

According to Kenneth Roth, Executive Director of Human Rights Watch, the administration’s move "threatens to open a loophole that endangers the most basic criminal justice guarantees, such as the right to counsel and the right not to be detained without charge." Because al-Muhajir was detained in the United States, far from any battlefield, Roth said the administration was not justified in declaring unilaterally that he was an enemy combatant, without offering any proof of this charge before an independent tribunal.

However, there is a significant difference between al-Muhajir’s situation and that of the detainees currently being held in Guantanamo Bay, Cuba (some of whom were detained on the battlefield, and others in third countries). Because he is being held on United States territory, and because he is a US citizen, al-Muhajir would appear eligible to petition the US federal courts for a writ of habeas corpus – a demand that the authorities holding him defend his detention before an independent court.

Moreover, because he was previously being held in the criminal justice system, al-Muhajir has a lawyer who can file the petition on his behalf. Indeed his attorney, Donna Newman, has already filed a habeas petition before Judge Michael J. Mukasey of Federal District Court in Manhattan. If Judge Mukasey rules that he no longer has jurisdiction over the case, as seems likely, Newman will be able to file a similar petition with a federal judge in South Carolina.

According to Michael Schmitt, a former US military prosecutor who now teaches at the George C. Marshall European Center for Security Studies, "it is quite possible" that al-Muhajir’s case could reach the Supreme Court, becoming a significant test of the so-far unchallenged framework that the administration has put in place in its campaign against al-Qaeda.

The issues that might come up in a jurisdictional hearing include: whether al-Muhajir can be properly described as an enemy combatant; whether his actions are sufficiently closely linked to an armed conflict to fall under the framework of the laws of war; and whether he can be detained once armed combat is no longer continuing in Afghanistan.

Schmitt argued that al-Muhajir could properly be described as an enemy combatant, because he was associated with al-Qaeda, who are participants in an armed conflict with the United States, and because he was "clearly, volitionally engaged in a hostile act after the armed conflict had started." However he agreed that al-Muhajir’s case would present considerably more complex legal questions than the 1942 ex parte Quirin case that has been widely cited as a precedent for the administration’s handling of suspected Taliban and al-Qaeda fighters.

"There are lots of issues here that weren’t presented in a classic state-on-state international armed conflict," Schmitt said. "What is the nature of the conflict? What is the nature of the conflict with regard to its date – when did it start, when will it end? What is the nature of the relationship between al-Qaeda and the Taliban, and how far can we associate the actions of one with the other?"

Kenneth Roth of Human Rights Watch agreed that "an American citizen can in principle be an enemy combatant, and if in fact the combatants in Afghanistan sent a person to the United States to continue the conflict on US soil, theoretically that person would be a combatant." But Roth argued that under these circumstances, the determination should not be made by the administration alone.

"Whenever someone is arrested in a country where there is a functioning legal system," he said, "the strong presumption should be that any detention should be tested before that legal system. It’s still conceivable that the legal system can say that humanitarian law kicks in, and that the extraordinary detention powers of humanitarian law should apply, but that would at least be a ruling based on facts that were independently assessed."

Another United States citizen, Yasser Esam Hamdi, is also being detained as an enemy combatant. He was initially held in Guantanamo after being captured in Afghanistan, but transferred to Norfolk, Virginia after he asserted US citizenship. Because he was never held in the US criminal justice system, Hamdi is not currently represented by a lawyer. However, a federal district court in Norfolk recently upheld a motion from the Virginia federal public defender’s office that Hamdi is entitled to legal representation. The administration has appealed that ruling before the 4th US Circuit Court of Appeals, and the case is pending.

Related chapters from Crimes of War: What the Public Should Know

Combatant Status
Prisoners of War, Non-Repatriation of
Soldiers, Rights of
Terrorism
Terrorism against Civilians

Related Links

Citizens, Combatants and the Constitution
Laurence H. Tribe
The New York Times, June 16, 2002

Lawyer Plans Challenge to Detention of Suspect
Benjamin Weiser with Dana Canedy
The New York Times, June 12, 2002

Legal Questions on US Action in Bomb Case
Adam Liptak
The New York Times, June 11, 2002

Secretary Rumsfeld Media Availability in Qatar
US Department of Defense, June 11, 2002

US Circumvents Court with Enemy Combatant Tag
Human Rights Watch, June 12, 2002

Back to Top