Unprecedented Expansion of Executive Detention Powers
Threatens to Undermine Rule of Law,
Warns a New Report Released by The NYC Bar Association

The President does not have the authority to detain indefinitely, without access to counsel, persons he designates as “enemy combatants,” according to a report released today by the Association of the Bar of the City of New York. With the U.S. Supreme Court soon to weigh in on the legality of such detentions, the 150-page report offers a comprehensive examination of public policy and precedent interpreting the war powers of the President. The report, by the Association’s Committee on Federal Courts, includes an analysis of the potential damage to civil liberties if the detentions are upheld. Members of the media may obtain a copy of the report by visiting our homepage.

Currently, the President has claimed the authority in the exercise of his war power as Commander in Chief to detain persons he classifies as “enemy combatants,” including citizens seized in the United States:

• indefinitely, through the duration of the “war on terror”;
• without any charges being filed, and thus not triggering any rights attaching to criminal proceedings;
• incommunicado from the outside world;
• with no right of access to an attorney;
• with limited access to the federal courts and with no right to rebut the government’s showing that the detainee is an enemy combatant.

The report argues that these detentions initiated unilaterally by the Executive, without congressional authority and not subject to meaningful judicial review, violate core due process rights that are essential to the rule of law, including:

• the right not to be detained except pursuant to a statute authorizing detention;
• the right not to be detained without specific criminal charges;
• the right to test the legality of the detention in the federal courts with a meaningful evidentiary hearing;
• the right to consult with and be represented by counsel.

“These detentions are alien to America’s respect for the rule of law. Until now, no court has ever sustained the assertion of such unilateral detention powers by a President, even in times of war,” says the report, which then goes on to detail the potential consequences of such unlawful detentions:

• There is a significant risk that persons will be detained erroneously, since they would be permitted no access to counsel or opportunity to rebut their classification as enemy combatants. The risk of error is all the graver because of the obvious potential for ethnic-based actions against men of Middle Eastern descent.
• Lawless executive detentions undermine the promotion of the rule of law abroad. The report explains that if the United States feels justified in departing from the rule of law at home, repressive regimes in other countries may see such conduct as justifying crackdowns against political dissidents.
• The detentions open the door to the intimidation of non-detainees. Defendants facing charges in criminal proceedings can be threatened, should they not plead, with indefinite detention as enemy combatants, thus terminating their due process rights.
• Perhaps the gravest risk discussed in the report is that these detentions leave the door wide open to an almost unlimited expansion of executive power. “Why should the First Amendment right of free speech, or the Fourth Amendment Right to be free of unreasonable searches, be any less subordinate to the President’s war power than the core due process right to remain free of unilateral detention,” asks the report.

According to Thomas H. Moreland, Chair of the Association’s Federal Courts Committee which drafted the report, “Pick your favorite constitutional amendment or right: its survival during the war on terror cannot be assumed if the legitimacy of these indefinite detentions is sustained.”

The Association understands that there is a need for heightened security in the age of terrorism, and does not argue that due process is unyielding in the face of dire circumstances. To the contrary, the report recognizes that “due process can be flexible and accommodate a short-term departure from its usual strictures in an imminent emergency created by terrorism.” Yet the report explains that such a departure must be closely scrutinized by the courts when it would suspend core due process rights.

The report also explains how presidential war authority varies with the type of war and is weaker when dealing with aspects of the homeland instead of military operations abroad. These factors, combined with the lack of Congressional authorization for the detentions, further undermine their legitimacy. The report points out that the President’s actions go far beyond the scope of the Patriot Act, which imposes a seven-day limitation on the detention of aliens suspected of terrorism, and provides no authority for the detention of citizens.

Another of the report’s conclusions is that military commissions should be used sparingly as the federal courts offer the procedural protections lacking in military commissions, including the right to trial by jury and the right to a public trial. The report explains how these protections will more likely ensure verdicts that are just and are seen as such by those at home and abroad.

Ultimately, the report urges that the indefinite detentions are not only unlawful but un-American. According to Moreland, “It should take far more than the monstrous brutality of a handful of terrorists to drive us to abandon our constitutional values. Insistence on the rule of law will not undermine our national security. Abandoning the rule of law will threaten our national identity.”
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