Enemy Combatant vs Legal Citizen Rights

Enemy Combatant vs Legal Citizen Rights

With this latest incident comes a very important question. Should anyone who is involved either with aiding or abetting as well as the perpetrator(s) be treated legally as enemy combatants or as legal citizens with full rights?


Akayed Ullah, a 27-year-old Bangladeshi man, reportedly inspired by ISIS
set off a pipe bomb inside New York’s Port Authority bus terminal during
rush hour Monday morning. He had legal status from chain migration
since 2011.


Each case is unique unto itself is apparently the best guess.

Born in the USA but detained overseas:

According to Constitutional Rights Foundation in 2004 – “Detaining U.S. Citizens as Enemy Combatants”

In 2004, the Supreme Court dealt with the case of a U.S. citizen named by the president as an “enemy combatant” and locked in prison. The man had been held incommunicado with no charges filed against him. He was born in Louisiana but caught overseas and became a prisoner.

Yaser Esam Hamdi v. Donald Rumsfeld

Hamdi’s father filed a petition for writ of habeas corpus in June 2002 as. He alleged that his son was being held incommunicado. The government had not filed charges against Hamdi and had denied him access to legal counsel. Hamdi’s father argued that the government was violating his son’s rights guaranteed by the Fifth and 14th amendments.

 Writ of Habeas Corpus – The Fifth Amendment to the U.S. Constitution provides that no person shall be deprived of life, liberty, or property without “due process of law.” For hundreds of years, the instrument for obtaining due-process rights has been the writ of habeas corpus. Congress may suspend habeas corpus, but only in times of emergency: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the Public Safety may require it.” (Article, I, Section 9, clause 2.)

After District and Appeals Courts, the case went to the Supreme Court who was faced two issues:

1. Did the president have the authority to name U.S. citizens as enemy combatants and hold them in prison without filing criminal charges?

2. If the president has this authority, what manner of habeas corpus review is due to citizens who contest their status as enemy combatants?

  • The court was fragmented on the issues and published four separate opinions.
  • The first issue, five justices concluded that the president had the authority to hold U.S. citizens in prison as enemy combatants.
  • The second issue, eight justices concluded that Hamdi’s due process rights had been wrongfully denied and that he should be accorded a greater habeas corpus review.
  • The justices could not agree on the underlying legal principles for either issue. The result was what is called a “plurality decision”. With the greatest number (4)  becoming the controlling opinion. Justice Sandra Day O’Connor wrote the controlling opinion in the case. She was joined by three other justices: Anthony Kennedy, Stephen Breyer, and Chief Justice William Rehnquist.

O’Connor’s Opinion—The Opinion of the Court

A. The issue of whether the president had authority to detain citizens as “enemy combatants.”

Her opinion held that Congress had authorized such detention through a resolution called the Authorization for Use of Military Force (AUMF). Congress passed AUMF a week after the 9/11 attacks. AUMF authorized the president to use force against those who committed or aided the terrorist attacks or harbored the terrorists.

O’Connor found that detaining combatants was basic to waging war. The military needed to prevent those captured from returning to the battlefield. By authorizing the use of force, Congress had “authorized detention in the narrow circumstances considered here.” O’Connor noted that unlike most wars, a “war on terror” would not end with a formal cease-fire.

B. What manner of habeas corpus review is due to a citizen who contests his status as an enemy combatant?

O’Connor’s opinion pointed out that the government had a strong interest in keeping someone captured on the battlefield from returning to wage war against the United States.

O’Connor’s opinion rejected the “some evidence” standard. Instead it held that a citizen challenging his classification as an enemy combatant must be given a chance to contest the classification before “a neutral decision maker.” It further held that Hamdi “has the right to access to counsel.” In rejecting the argument that courts should not examine individual cases, O’Connor said that barring such review would only “condense power into a single branch” (the executive). O’Connor wrote, “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

O’Connor then discussed the type of hearing that might meet the court’s standards. She indicated that detainees might not be entitled to appeal to an ordinary court. She said that a military tribunal might be a proper forum. O’Connor also said that enemy combatant hearings might be specially “tailored” to reduce the burden on the executive. For example, hearsay might be admissible. And the normal burden of proof might be reversed, so that a citizen would have to prove that he was not an enemy combatant. “Due process” in this situation would be far different from what would be required if a citizen were accused of treason (or some other crime) and tried in a criminal court.

Result of the opinion:

The Supreme Court vacated the Fourth Circuit Court’s judgment and sent the case back to the District Court. It held that the president did have authority to detain citizen “enemy combatants” without charging them with a crime. But it also held that due process required that Hamdi be given a fair chance to contest the factual basis for his detention.

One dissent opinion from Souter referred back to the 1971—the Non-Detention Act. It states: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Souter noted that Congress had passed the Non-Detention Act to prevent the government from violating citizens’ rights as it had done during World War II with the Japanese internment.

Scalia did not agree that the president was authorized to detain citizens as enemy combatants without charges. Nor did he agree with the “tailored” process outlined by O’Connor. The government, he argued, has only two options if a citizen is accused of waging war against it. One is to prosecute him in federal court for treason or some other crime. The other—in times of emergency—is for Congress to suspend the writ of habeas corpus. Scalia contended that the court’s decision undermined the power of Congress. Moreover, he wrote, under the “guise” of the due process clause, the court had begun to rewrite the Constitution by coming up with an “unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than by live witnesses, and the presiding officer may well be a ‘neutral’ military officer rather than judge and jury.”

The American Constitution Society analysis written August 2004 states an opposing position as well. Their basic worry was that the unfettered allowance of “enemy combatant” by the President (or his agents) on US soil without cause or due process was a danger to all citizens.

Since military detentions of civilians arrested in the U.S. are not authorized by statute or by the law of war, they are, in the most literal sense, lawless. They thus constitute a violation of the Fifth Amendment’s protection against deprivation of liberty without due process of law.

Then we look at the facts of the current case – we have been told the man came on a chain visa program in 2011. Did he become a naturalized citizen?

If he did then Immigration could revoke his naturalized status.

Membership or Affiliation with Certain Organizations
A person is subject to revocation of naturalization if the person becomes a member of, or affiliated with, the Communist party, other totalitarian party, or terrorist organization within five years of his or her naturalization. [6] In general, a person who is involved with such organizations cannot establish the naturalization requirements of having an attachment to the Constitution and of being well-disposed to the good order and happiness of the United States. [7]

The fact that a person becomes involved with such an organization within five years after the date of naturalization is prima facie evidence that he or she concealed or willfully misrepresented material evidence that would have prevented the person’s naturalization.


Unless we qualify specific Terror organizations such as Radical Islamic groups (Hamas, Muslim Brotherhood, ISIS) or others by name under this then I don’t see this as possible. This might also run afoul of the First Amendment religion section if these are legally naturalized or citizens born in the US.  Besides that, how do we place “radicalized” in this category?

Whatever the answer, we have to begin addressing this issue and solve the dilemma in order to prosecute for treason or for whatever purpose in order to make this legally acceptable. This is not the Soviet Union or some other country, we as citizens have laws that protect our rights so that we are not held without reason for extended times without legal counsel. Some of those rights have to be extended to those who are not citizens at a basic level. But where do those rights end for non-citizens?

In an aside, all those currently espousing communism who are here legally or naturalized should be in the process of being removed according to the Immigration information–shouldn’t they?


About Uriel

Retired educator and constitutionalist
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17 Responses to Enemy Combatant vs Legal Citizen Rights

  1. In my view, if you’re not a “citizen” you’re not entitled to any “rights”. You’re foreigner and are to be treated as such.
    Only “Citizens” are afforded rights, not outsiders. The Bill of Rights were written for citizens of THIS nation, not for all planetary humanoids.
    Read the the documents!
    The ACLU needs to re-allocate it’s purposes. Either it’s the “American” Civil Liberties Union” or it’ the “American Center for Licentious Undermining”. Make the choice!

  2. Pingback: HN&F | Enemy Combatant vs Legal Citizen Rights | Brittius

  3. I.R. Wayright says:

    What bothers me is we are paying to patch the guy up again just so he can be imprisoned at great expense. They should have fed him to the subway rats.

  4. Shar says:

    I say put him in Gitmo and deport his chain migration family. Of course that won’t happen. We will pay for the best lawyers to get him off.

  5. Wise Owl says:

    Is there any hope of ever stopping this bullshit? Electing more Trumps is the only way I see.

    • Uriel says:

      it does make you wonder Wise Owl. In fact last night in a conversation, I lamented that as hard as we are pushing right now, it remains a fact in less than 3 years many socialist propagandized high schoolers and college students will be the voting majority. I wondered at the time just why I am pouring my efforts into this. But as our motto says — never given in, never give up.

      • Wise Owl says:

        Indeed! I find your blog the #1 choice in the morning and one of the hardest-hitting and most interesting of all. You guys really do it! You report and disseminate news, from fascinating angles and sources, and you inspire people like me. I sure hope your following grows and your readership increases…including the youngsters. I do what I can to spread your words and feel inspired. Keep up the good work! Oh– and Merry Christmas to you and your readers, and I mean that more in the goodness/happiness/seasonal sense than the religious sense, so it is meant for all religions.

        • Uriel says:

          What a nice compliment WiseOwl. Thank you! It truly helps when readers like you read And comment because it gives us hope we are touching on interests and bringing out thoughtful ideas.

          Merry Christmas, safe and joyful holidays to you and all our readers.

        • A kind comment.Thank You! We DO have a good crew, a good “family”, here. We may bicker and banter but it’s always in fun.