| Chapter 1: | Introduction |
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José Padilla (U.S. citizen arrested in Chicago), Yaser Hamdi (U.S. citizen arrested in Afghanistan), and Ali Saleh Kahlah al-Marri (legal resident arrested in Peoria, Illinois) have all been designated at one point as enemy combatants and have all been subjected to this administration’s preventive-detention regime. While it appears there have only been three U.S. persons subjected to such treatment, the government threatened to designate others such as John Walker Lindh (American Taliban), Iyman Faris (who was planning to destroy the Brooklyn Bridge), and the Lackawanna Six (Buffalo terrorist cell) as enemy combatants if they did not plead guilty to a variety of criminal charges and cooperate with authorities.16 Not surprisingly, they all pled guilty.
Problems with Status Quo
Designating U.S. persons as enemy combatants and holding them incommunicado and indefinitely for a war on terror that may never end raises serious legal and policy concerns.
Legal Concerns
As is addressed in depth in chapter 4, it is presently unclear whether President Bush’s broad application of his enemy-combatant policy as applied to U.S. persons captured in peaceful civilian areas will prove to be lawful. A plurality of the Supreme Court held in Hamdi v. Rumsfeld that the president can designate citizens caught in an active zone of combat as enemy combatants for the duration of the particular hostilities as long as the individual can challenge that designation in a neutral forum.17 After the decision, the administration released Hamdi to Saudi Arabia without any kind of adversarial hearing. Significantly, the Supreme Court has not squarely addressed whether a U.S. citizen, such as Padilla, or legal resident, such as al-Marri, can be arrested in the United States (as opposed to a battlefield), labeled an enemy combatant, and held indefinitely without charges.