'Enemy Combatants' and 18 U.S.C. 4001(a)
W A S H I N G T O N, July 20, 2002 -- So much has been written since Sept. 11 on the individuals who have been detained by the federal government that surely whole forests have been consumed by the effort.
And yet a provision of federal criminal law that at first blush seems to be directly applicable has been only recently brought to my attention.
18 U.S.C. 4001(a) reads: "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."
The question raised is, why does this not forbid the continued detentions of U.S. citizens Yaser Esam Hamdi and Jose Padilla, who have been locked up in military brigs and held incommunicado, with no charges being filed, and no access to legal counsel? It seems particularly apt because the statute specifically mentions emergency detention camps.
Some civil liberties groups are particularly upset about such treatment of Padilla. Hamdi, at least, was captured on the battlefield in Afghanistan, and thus might implicate the president's powers to prosecute a war. But Padilla was seized as he departed a plane in Chicago. Nevertheless, both have been declared "enemy combatants."
Criminal Division Spokesman Bryan Sierra declared that section 4001(a), "Constitutionally could not interfere with the president's power as commander-in-chief."
He cited section 4001(b)(1): "The control and management of Federal penal and correctional institutions, except military or naval institutions, shall be vested in the attorney general ..."
Sierra added, "While the language in the statute is broad, the section clearly addresses the attorney general's authority concerning the federal civilian prison system, not the president's constitutional power as commander-in-chief to detain enemy combatants. It is our position that Congress drafted the law not to restrict the president's power, and according to the record, that point was even noted by then-Rep. Abner Mikva during the debate. We also feel that the president's authority to order the capture and detention of enemy combatants is supported by the Supreme Court's decision in ex parte Quirin. Also, no court has ever construed section 4001 to apply outside the context of civil detention."
In other words, even though the legislative history of the statute seems to make clear that Congress wanted to ensure that no citizens would ever be detained except in conformity with laws passed by Congress, Justice believes that the Supreme Court has upheld the president's right to declare even citizens to be enemy combatants.
Ironically, in passing section 4001, Congress also repealed the 1950 Emergency Detention Act, which "established procedures for the apprehension and detention, during internal security emergencies, of individuals deemed likely to engage in espionage or sabotage."
Then-Attorney General Richard Kleindienst testified in December 1969 that the continuation of that act was "extremely offensive to many Americans. In the judgment of this Department, the repeal of this legislation will allay the fears and suspicions — unfounded as they may be — of many of our citizens. This benefit outweighs any potential advantage which the Act may provide in a time of internal security emergency."
The legislative history concluded: "The Committee believes that imprisonment or other detention of citizens should be limited to situations in which a statutory authorization, an Act of Congress, exists. This will assure that no detention camps can be established without at least the acquiescence of the Congress."
One Democratic staffer on the Senate Judiciary Committee said section 4001 was one of the reasons they had believed legislation authorizing military tribunals was warranted. But lacking sufficient support in the Congress as well as the White House — now they're just hoping the courts will weigh in.
A Look at Detainee Treatment
Last fall when Congress passed the Patriot Act that in so many ways increased the powers and authority of Justice employees, concern was expressed about possible abuse.
So section 1001 of the Act specifically provided that the inspector general of the Justice Department would examine any "complaints alleging abuses of civil rights and civil liberties by employees and officials" of Justice.
The first report on such complaints, covering the period from Oct. 26 through June 15, was submitted this past week. Here's the breakdown:
Complaints suggesting Patriot Act-related civil rights or civil liberties connections: 458
Complaints within jurisdiction of IG: 87
Complaints outside inspector general's jurisdiction: 196
"Unrelated" complaints: 175
Types of Complaints:
Excessive force
Illegal detention
Detainee held without access to attorney
Detention under adverse conditions (such as: lights on constantly; no reading material; only permitted out of cell for brief periods once a day; toilet doesn't work properly, etc.)
From October through June, the inspector general opened just nine investigations. For example:
An alien originally arrested at a Jacksonville, Fla., airport on Sept. 14 complained he was physically assaulted at an INS facility. Inspector general's investigation still ongoing.
An individual detained post-9/11 alleged he was repeatedly slammed against a wall by federal corrections officers; he alleged the same officers also injured three other detainees. The inspector general's ongoing investigation has identified the officers, interviewed the victims, and examined their medical records.
On Sept. 26 an FBI agent and a New Jersey sheriff's deputy "were pursuing a lead in an attempt to question a suspected terrorist." They were accused of using unnecessary force and illegally entering a residence. There was no evidence developed about the agent, however, and the U.S. attorney's office in New Jersey declined to prosecute the deputy sheriff.
A complaint out of El Paso, Texas, alleged an alien was severely beaten, placed in solitary, and denied medical treatment when he refused to eat pork. But the inspector general determined the alien had been violent and uncooperative and the INS officers acted appropriately.
The inspector general is also conducting an in-depth assessment of Justice's treatment of detainees at two facilities — the Metropolitan Detention Center in Brooklyn, N.Y., and the Passaic County Jail in New Jersey.
The two facilities were specifically selected because they locked up a large percentage of the post-9/11 detainees — and also produced a large number of complaints.
In the ongoing evaluation, three main issues are being examined: ability to obtain legal counsel; government's timing for issuing charges; and general conditions of detention, including any abuse, restrictions, medical care, etc. A public report of the inspector general's findings will be issued by October of this year.
Another FBI Departure
On Tuesday, in an e-mail to all FBI employees, FBI Director Robert Mueller revealed that yet another longtime senior official was moving on.
"I regret to announce," he wrote, "that General Counsel Larry Parkinson is leaving the FBI to assume the newly-created position of deputy assistant secretary for Law Enforcement and Security at the Department of the Interior."
Mueller declared that, "in almost seven years with the Bureau Larry has made extraordinary contributions to the Office of General Counsel and to the entire FBI. Since my arrival in September of last year, I have found his advice and guidance to be invaluable. His shoes will be tough to fill."
However, he immediately announced a replacement: Kenneth Wainstein, who is currently head of Justice's executive office of U.S. attorneys, but more important served as deputy chief when Mueller was chief of the homicide section of the Washington, D.C. U.S. attorney's office — and even more importantly, as one longtime Justice attorney pointed out, as a hard-charging, dynamic personality, is much more cast in the director's image. And we do know by now that Mueller wants his own people.
Parkinson had been in that extremely demanding job for a long time; as more than one observer noted, he'd probably "had enough." Parkinson told me that he'd started thinking about going, but hadn't actually started looking, when he was flying out to San Diego for a speech this past April.
The pilot of the plane started performing like a tour guide, pointing out the sites, even dipping low over the Grand Canyon, and Parkinson got to thinking. He's from South Dakota and has had "a lifelong interest in parks." When he got back to D.C., he checked the Web site for the Office of Personnel Management. Coincidentally, they had just posted this newly-created job. Before he knew it, he was sitting down with Secretary of the Interior Gale Norton.
Parkinson had been brought to the FBI by former Director Louis Freeh from the D.C. U.S. attorney's office, where he had overseen the prosecution of formerly powerful Rep. Dan Rostenkowski, D-Ill. Now he'll be overseeing the third largest contingent of law enforcement agents in the U.S. government, including the Park Police, Park Rangers, Fish & Wildlife and the Bureau of Land Management.
And because of Sept. 11 there's a lot more concern about security at the various dams, National Parks and monuments that come under the Interior Department.
Wainstein is highly regarded. He held various positions in the U.S. attorney's office before coming to Main Justice. In his internal e-mail, Mueller noted that Office of General Counsel ensures the smooth functioning of every other bureau office.
He wrote, "I am grateful to Larry for helping us get this far and confident that Ken will keep us on the right track."
Beverley Lumpkin has covered the Justice Department for 16 years for ABCNEWS. Halls of Justice appears every Saturday.