Padilla decision: U.S. citizen can be held without charge as "enemy combatant"

[BrainGlutton]

@Gfactor

Likewise, the Constitution would not be offended by a presumption in favor of the Government’s evidence . . .

The Constitution no longer includes the Fifth Amendment?

[Gfactor]

The presumption of innocence only applies in criminal cases. Habeas Corpus is a civil remedy. http://profs.lp.findlaw.com/habeas/habeas_2.html (The Supreme Court has described the writ as a “prisoner-initiated civil remedy informed by equitable principles, and as a statutory procedure over which the courts, or at least the Court, exercises broad regulatory power.”)

[Gfactor]

This page has an excellent collection of Padilla-related documents, including most of the relevant opinions.

[Gfactor]

On the relationship between battlefield capture and enemy combatant status.

Persons who are not members of the armed forces of a Party to a conflict and who are not on the actual field of battle wielding weapons have not traditionally been treated as combatants, lawful or unlawful. Instead, to the extent they have conspired to engage in violent acts, they have been treated as criminals under the domestic law of the captor.

Brief of Amici Curiae Experts on the Law of War in Padilla filed in Padilla 2d Circuit appeal

The Government contends that Padilla should be deemed a combatant in the Afghanistan conflict based on his alleged association with al Qaeda. If the court accepts that view, however, then it is implicitly ratifying the position that any person ever “associated” with al Qaeda, at any place in the world, and presumably at any time, is also automatically a combatant in the armed conflict in Afghanistan.

*Id. *

A careful examination of United States practice dating from the time of the Civil War reveals that only those individuals who are members of conventionally organized armed forces or who are found actively engaging in combat on the battlefield have been considered combatants who need not be tried in civilian courts.

Id.

Accordingly, to the extent the interaction between the U.S. and al Qaeda is an armed conflict at all, it must be described as a non-international armed conflict, subject to the much less elaborate legal regime regulating such conflicts. Even in the framework of non-international armed conflicts, there is no precedent for treating an individual who is not a member of an organized military force and who has not directly engaged in combat as a “combatant.”

*Id. *

[BrainGlutton]

Having said all that, Gfactor, what do you think it means? In terms of the issues for debate proposed in the OP. Also, do you think the latest Padilla decision will be upheld or reversed by the full 4th Circuit? By the SC?

[Gfactor]

I’ve been intending to answer that, just haven’t had the time. Here’s what I get:

1. How does this ruling square with the right of habeas corpus under the U.S. Constitution?

We need to separate two issues here.

a. Does an enemy combatant have a right to habeas corpus?

Yes. All of the Justices, except possibly Thomas agreed with this proposition in Hamdi. The District Court of South Carolina granted Padilla a hearing, and ruled in his favor, but the fourth circuit decided that the government had met its evidentiary burden and the detention was permissible based on the facts established at the hearing.

b. What does it mean to have a right to habeas corpus?

The right to habeas corpus is the right to challenge the legality of one’s detention.

A writ of habeas corpus is available on the basis that the petitioner’s conviction or sentence violated the Constitution, laws, or treaties of the United States.

FindLaw for Legal Professionals | Law & Legal Information

It is a procedural right.

Relying on this cardinal principle, the federal courts have often noted that innocence is not a pre-requisite for relief in a habeas corpus case. In Justice Holmes’ words, “what we have to deal with is not the petitioner’s innocence or guilt but solely the question whether their constitutional rights have been preserved.” Moore v. Dempsey , 261 U.S. 86, 87-88, 43 S.Ct. 265, 67 L.Ed. 543 (1923). Accord Walberg v. Israel , 766 F.2d 1071, 1078 (7 th Cir.) (Posner, J.), cert. denied , 474 U.S. 1031, 106 S.Ct. 546, 88 L.Ed.2d 975 (1985) (“Guilty as [petitioner] undoubtedly is – unworthy member of the community as he undoubtedly is – he was entitled to a better procedure.”).

Customarily, summary procedings have been acceptable in habeas cases:

Habeas Corpus Rule 4 provides as follows:

The original petition shall be presented promptly to a judge of the district court in accordance with the procedure of the court for assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified. Otherwise the judge shall order the respondent to file an answer or other pleadings within the period of time fixed by the court or to take such other action as the judge deems appropriate.

*Id. *

So the right of hbeas corpus does not guarantee a trial.

Scalia’s dissent in *Hamdi * suggests that the plurality uses habeas to fix the denial of due process that would otherwise result from an indefinite detention without trial. He calls this the

Mr. Fix-it Mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches’ actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free.

Hamdi (Scalia, J., dissenting).

His point, it seems to me, is that habeas is designed to evaluate the legality of the detention–not justify it.

The sole ground of inquiry is whether the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.”

Therefore, if the government required an evidentiary hearing in order to justify the detention, and it did not hold one, the habeas court should order the prisoner tried or released–not hold an evidentiary hearing to solve the problem.

There is some logic to this idea. But only two Justices openly supported it. (Although two more, thought the detention was illegal no matter what record was developed; because of this, we don’t know how they would have voted.)

2. How does this ruling square with the “due process of law” requirement of the Fifth Amendment?

Due process is a flexible concept.

The phrase ‘‘due process of law’’ does not necessarily imply a proceeding in a court or a plenary suit and trial by jury in every case where personal or property rights are involved. ‘‘In all cases, that kind of procedure is due process of law which is suitable and proper to the nature of the case, and sanctioned by the established customs and usages of the courts.’’ What is unfair in one situation may be fair in another. ‘‘The precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is challenged, the balance of hurt complained of and good accomplished–these are some of the considerations that must enter into the judicial judgment.’’

(Footnotes omitted.)

The Fifth Amendment's "Takings" Clause - FindLaw

’

The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be ‘condemned to suffer grievous loss,’ . . . and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication.’’ ‘‘The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.’’ Due process application, as has been noted, depends upon the nature of the interest; the form of the due process to be applied is determined by the weight of that interest balanced against the opposing interests. The currently prevailing standard is that formulated in Mathews v. Eldridge. ‘’*dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.’’

U.S. Constitution - FindLaw

The minimum procedural requirements vary with the circumstances.

U.S. Constitution - FindLaw

3. Should a person’s status as a U.S. citizen or non-citizen make any difference WRT to the above?

To the procedural right of habeas corpus and due process, the answer was unclear until the Supreme Court recently clarified that it does not in Rasul v. Bush (2004).

Aliens have due process rights, too. E.g., http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9871452

Of course, different substantive rules might apply to aliens, which could mean that similar cases are decided differently.

4. WRT to the above, should it make a difference whether a person is arrested and/or held on U.S. soil or elsewhere?

This is a tricky question.

As far as the right to habeas corpus relief, clearly not. They have a right to file a habeas petition and to have a judge review it. But does that mean they get to walk away? The right to habeas means the right to a review of the detention–that’s all. So no, it shouldn’t make a difference.

Location of capture apparently can make a difference in the substantive law of war. This is a key point. The court decided in Quirin that

By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

The Court relied on this doctrine in *Hamdi *to approve indefinite detention of US citizens as long as they were permitted to notice of the reasons for the detention and a hearing after they requested habeas corpus relief.

Therefore, status as a combatant has signifcant substantive consequences: if the detainee is not a combatant, then they cannot be held without criminal charges and a trial.

The *Quirin *court didn’t really tell us how to tell if a detainee is a combatant, although it referred to materials that contain definitions and discussions of the subject. The issue in that case was whether the detainees were subject to trial for war crimes by a military tribunal. To make that decision, the Court had to decide whether they were lawful combatants or unlawful combatants. Only unlawful combatants can be tried for war crimes.

OTOH, the detainees in *Quirin *were all arrested not on the battlefield, but in Chicago or New York. So one could argue that the Court implicitly approved the inclusion of citizens (Haupt was a citizen) who are captured domestically, instead of on battlefields, in the combatant category.

*Hamdi * similarly left this possibility open. *Hamdi * was captured in Afghanistan. As I noted above, the plurality seemed to make a pretty big deal about battlefield capture. Why?

Padilla is a civilian. As a general rule, civilians are not legitimate military targets for capture. But

When a civilian, however, is actually found wielding arms in the zone of combat, he may be treated as a lawful target of attack—but only insofar and as long as he takes a “direct part in hostilities.” A civilian does not become a combatant because the opposing commander suspects he might, at some point in the future, plot to engage in violent acts. If the rule were otherwise, large parts of the civilian population of a country at war would become lawful targets for attack. Shooting a gun on a battlefield constitutes taking a “direct part in hostilities.”Carrying a gun towards the battlefield with the imminent intent to engage in combat might also amount to taking a direct part in hostilities. By contrast, supporting the enemy cause off the battlefield, conspiring with the enemy, contemplating taking part in battle in the future, or sympathizing with the enemydoes not constitute taking a direct part in hostilities under the law of war, although those acts may be punishable under domestic criminal law.

Brief of Amici Curiae Experts on the Law of War in Padilla filed in Padilla 2d Circuit appeal

So there it is, a civilian cannot be detained unless he gets involved in the actual fight. Otherwise, the civilian’s legal rights require a criminal prosecution.

The fourth circuit found, contrary to the Experts on the Law of War, that locus of capture is irrelevant.

The Experts’ brief was filed in the case before Second Circuit. The Second Circuit did not address the enemy combatant issue because it found that the government lacked the statutory authority to hold Padilla without trial. The Supreme Court decided that the case had been filed in the wrong place, and dismissed it.

5. What does this ruling mean WRT civil liberties, generally, in the U.S.? Does the government now have the authority to classify and detain anyone as an “enemy combatant” without judicial review?

Not without judicial review. But apparently with only the cursory review required by the plurality opinion in Hamdi. You don’t get the rights usually associated with a criminal trial.

Also, do you think the latest Padilla decision will be upheld or reversed by the full 4th Circuit? By the SC?

I’ll answer this a little later.

[Gfactor]

@BrainGlutton

Having said all that, Gfactor, what do you think it means? In terms of the issues for debate proposed in the OP. Also, do you think the latest Padilla decision will be upheld or reversed by the full 4th Circuit?

Doubtful. In *Hamdi *, the Fourth Circuit held that the detainee could not challenge the government’s evidence at all. The full court refused rehearing. http://pacer.ca4.uscourts.gov/opinion.pdf/027338R1.P.pdf

Therefore, a majority of the Judges on the Fourth Circuit supported an easier standard for the government than the Supreme Court eventually adopted. It was Judge Luttig who disagreed with the original panel’s conclusion that it was “undisputed that Hamdi was captured in a foreign zone of combat.” He has now decided that locus of capture is irrelevant.

Hope this helps.

By the SC?

Now this *is *a complicated question.

A plurality of the Court in *Hamdi * held that indefinite detentions of citizens captured on foreign soil was permissible as long as the detainee was given some basic procedural safeguards, and that those safeguards could be supplied through habeas procedure.

Two things are different now:

1. Two of the Justices who formed the plurality will not be on the court to consider Padilla’s case this time.

2. Padilla was captured on US soil, which some of the Justices mentioned as significant.

What is the binding effect of the *Hamdi *case then?

Scalia doesn’t believe in “rigid adherence to stare decisis in constitutional cases[.]”

FindLaw's United States Supreme Court case and opinions.

And the Court only gives limited binding effect to plurality opinions anyway. http://law.wustl.edu/journal/4/Hochschild.pdf

The *Hamdi *case will have extremely limited application because two Justices joined the plurality only to produce a majority:

Since this disposition does not command a majority of the Court, however, the need to give practical effect to the conclusions of eight members of the Court rejecting the Government’s position calls for me to join with the plurality in ordering remand on terms closest to those I would impose. See Screws v. United States, 325 U. S. 91, 134 (1945) (Rutledge, J., concurring in result). Although I think litigation of Hamdi’s status as an enemy combatant is unnecessary, the terms of the plurality’s remand will allow Hamdi to offer evidence that he is not an enemy combatant, and he should at the least have the benefit of that opportunity.

 It should go without saying that in joining with the plurality to produce a judgment, I do not adopt the plurality's resolution of constitutional issues that I would not reach. It is not that I could disagree with the plurality's determinations (given the plurality's view of the Force Resolution) that someone in Hamdi's position is entitled at a minimum to notice of the Government's claimed factual basis for holding him, and to a fair chance to rebut it before a neutral decision maker, see ante, at 26; nor, of course, could I disagree with the plurality's affirmation of Hamdi's right to counsel, see ante, at 32-33. On the other hand, I do not mean to imply agreement that the Government could claim an evidentiary presumption casting the burden of rebuttal on Hamdi, see ante, at 27, or that an opportunity to litigate before a military tribunal might obviate or truncate enquiry by a court on habeas, see ante, at 31-32.

FindLaw's United States Supreme Court case and opinions.

So it really comes down to vote counting. Here is my count right now:

Kennedy and Breyer: Voted for plurality opinion, which mentions locus of capture as significant. They might distinguish *Padilla *on this basis. If they do, then that’s two votes for reversal; if not, then not.

Scalia, Stevens, Souter, and Ginsburg all joined opinions that held that the government lacks authority to detain without a criminal charge and a trial. So that’s four for reversal.

Thomas thought that the governments detention of *Hamdi * with only a cursory review of an affidavit, which he was not permitted to contest, was fine. He’s pretty clearly a vote for affirmance.

There are two wildcards out there.

Roberts recently joined an opinion that suggests he would vote for affirmance here, though the case involved different issues. http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/04-5393a.pdf. OTOH, he has said he will follow precedents. OTOOH, the *Hamdi * decision is of questionable precedential value.

The other replacement Justice has not yet been nominated. Bush has said that he likes Scalia and Thomas as Justices. Unfortunately, in this case, they disagree on the outcome, so Bush’s statements about future appointments aren’t helpful.

If he appoints a Justice that agrees with Scalia on this issue, the case will probably be reverses; if he appoints one that agrees with Thomas, odds are good that it will be affirmed.

[John_Mace]

Wow. Thanks loads, Gfactor. That helped termendously!!

[Gfactor]

@John Mace

Wow. Thanks loads, Gfactor. That helped termendously!!

You’re welcome. I needed to do the analysis for myself anyway. I hadn’t read any of this stuff before this decision came down. :o

[Gfactor]

do you think the latest Padilla decision will be upheld or reversed by the full 4th Circuit?

Doubtful.

Ok. This is an editorial comment. While the answer appears to be non-responsive, and as intended, it sort of was, it is a good answer to the question. The first decision the majority of active judges of the Fourth Circuit must decide is whether to rehear the case en banc. I predict that they will decide not to do so.

If they did rehear the case en banc, and disagreed with the result, it’s decision would replace the decision of the three-judge panel, not reverse it. Fourth Circuit Local Rule 35© http://www.ca4.uscourts.gov/pdf/rules.pdf; and see, http://fedcir.gov/opinions/03-1269.pdf (example of a case where an en banc court reviewed and partially reversed the district court opinion.)

if he appoints a Justice that agrees with Scalia on this issue, the case will probably be reverses;

should read: reversed. :smack:

[BrainGlutton]

Let me pose you another one, Gfactor: Supposing the latest Padilla ruling stands – what does that mean for us ordinary Americans who support terrorism (e.g., through going to antiwar protests, moveon.org fundraising, joining the ACLU, voting Democrat, etc.) slightly less enthusiastically than Padilla is accused of doing? Do we have to worry about being arrested and held without charge indefinitely because the Admin decides we’re dangerous? Not at present, I’m sure. But are there any conceivable circumstances in the near future where that could happen? If the government tried it, would it be on good legal ground?

[Gfactor]

@BrainGlutton

Let me pose you another one, Gfactor: Supposing the latest Padilla ruling stands – what does that mean for us ordinary Americans who support terrorism (e.g., through going to antiwar protests, moveon.org fundraising, joining the ACLU, voting Democrat, etc.) slightly less enthusiastically than Padilla is accused of doing? Do we have to worry about being arrested and held without charge indefinitely because the Admin decides we’re dangerous? Not at present, I’m sure. But are there any conceivable circumstances in the near future where that could happen? If the government tried it, would it be on good legal ground?

Now here is where law school gives me an advantage. What was the holding of the most recent *Padilla *case?

The exceedingly important question before us is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war; who took up arms on behalf of that enemy and against our country in a foreign combat zone of that war; and who thereafter traveled to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets.
We conclude that the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001. Accordingly, the judgment of the district court is reversed.

(Emphasis added.)

Padilla had his day in court. The District Court opinion was not available for free last time I checked, but I got it from the Pacer system for a couple of bucks (it is 23 pages long). Here’s what you aren’t seeing. Padilla filed his habeas petition and then moved for Summary Judgment. Memorandum Opinion and Order in Civil Action No 2:04-221-26AJ (D.S.C. 2/28/2005). In other words, Padilla asked the court to decide that there were no factual issues that required a trial, and to grant him judgment as a matter of law. Fed. R. Civ. P. 56 (The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.) Padilla didn’t want a trial because he claimed that the President lacked authority to order him detained in the first place. Both sides made legal–not factual–arguments about the President’s power to detain Padilla.

The Court agreed with Padilla and granted his motion. The Court ordered Commander C.T. Hanft to release Padilla within 45 days. The decision was based on the following reasoning:

1. While *Hamdi * holds that under some circumstances the President can detain a US citizen as an enemy combatant, those circumstances are not present in this case. The Court cited Wilkinson’s concurrence in the 4th Circuit opinion in *Hamdi * and the language from the Supreme Court opinion in *Hamdi * distinguishing that case because Hamdi was seized on a foreign battlefield.

The District Court reasoned that once Padilla was captured, “his alleged terrorist plans were thwarted.” “There were no impediments whatsoever to the Government bringing charges against him for any one or all of the array of heinous crimes that he has been effectively accused of committing.” The Court concluded that the detention was not necessary or appropriate, and therefore, not justified by the joint resolution.

I note that this basis for the distinction is weaker than the one given by the Experts on the Law of War. Their theory was based on how the law of war defines as an enemy combatant: One who is not a member of an enemy army is a civilian unless they are captured on the battlefield (this is an oversimplification). It isn’t about necessities of war and ease of prosecution. Otherwise, locus of detention would probably be more significant than locus of capture, especially because under Hamdi, the government can rely on hearsay, and need not produced live testimony.

2. *Quirin * is distinguishable from this case because the issue in *Quirin *was whether the petitioners could be tried by a statutorily-created military tribunal. "It is clear from *Quirin * that the Court found that Congress had “explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. . . .Therefore, since no such Congressional authorization is present here, Respondent’s argument as to the application of Quirin must fail.” (Footnote omitted.) The Court also noted that Quirin:

a. involved a petitioner who was charged and tried by a military tribunal;
b. involved a petitioner whose detention was punitive instead of preventative;
c. was concerned with whether the petitioner was tried by a military tribunal or a civilian court; this case was about whether Padilla would be tried at all;
d. preceded the Non-Detention Act;
e. involved a war with a definite ending date.

3. Ex Parte Milligan stands for the proposition that the detention of a US citizen by the military is disallowed without explicit Congressional authorization.

4. The Non-Detention Act bars detention without explicit Congressional authorization. The Joint Resolution is not sufficient authorization.

5. The Non-Detention Act applies to wartime detention.

6. The President lacks inherent authority to detain civilians.

It is in this context that the 4th Circuit reviewed the case. The issue was not whether Padilla was entitled to notice and a hearing. That issue was decided affirmatively in Hamdi. Although he is not entitled to a full on criminal trial, Padilla could challenge the factual basis for his detention. The Fourth Circuit simply decided that the fact that Padilla was captured on US soil did not invalidate his detention.

What is an enemy combatant? This remains the crucial inquiry. Assuming that the *Padilla * case is not reversed, at least part of the traditional definition has been eroded: United States citizens who are not members of an army may be captured on US soiland detained as enemy combatants.

But which ones? The Court in Hamdi limited its ruling this way:

The threshold question before us is whether the Executive has the authority to detain citizens who qualify as “enemy combatants.” There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the “enemy combatant” that it is seeking to detain is an individual who, it alleges, was " 'part of or supporting forces hostile to the United States or coalition partners’ " in Afghanistan and who " ‘engaged in an armed conflict against the United States’ " there. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

(Citation omitted; Emphasis added.)

The Fourth Circuit looked a the same factors in *Padilla *:

Padilla associated with the military arm of the enemy, and with its aid, guidance, and direction entered this country bent on committing hostile acts on American soil. J.A. 22-23. Padilla thus falls within Quirin’s definition of enemy belligerent, as well as within the definition of the equivalent term accepted by the plurality in Hamdi. Compare Quirin, 317 U.S. at 37-38 (holding that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of . . . the law of war”), with Hamdi, 124 S. Ct. at 2639 (accepting for purposes of the case the government’s definition of “enemy combatants” as those who were “‘“part of or supporting forces hostile to the United States or coalition partners”’ in Afghanistan and who ‘“engaged in an armed conflict against the United States”’ there”).

http://pacer.ca4.uscourts.gov/opinion.pdf/056396.P.pdf

The Court noted:

For purposes of Padilla’s summary judgment motion, the parties havestipulated to the facts as set forth by the government. It is only on these facts that we consider whether the President has the authority to detain Padilla.

(Citation omitted.)

Therefore, current law seems to require that one engage in armed conflict. Both Courts also considered the following factors relevant to the question of whether a detainee has engaged in armed combat:

Like Hamdi, Padilla associated with forces hostile to the United States in Afghanistan. Compare J.A. 19-23 (detailing Padilla’s association with al Qaeda in Afghanistan and Pakistan), with Hamdi, 124 S. Ct. at 2637 (describing Hamdi’s affiliation with the Taliban in Afghanistan). And, like Hamdi, Padilla took up arms against United States forces in that country in the same way and to the same extent as did Hamdi. Compare J.A. 21 (averring that Padilla was “armed and present in a combat zone during armed conflict between al Qaeda/Taliban forces and the armed forces of the United States”), and id. at 20-21 (alleging that Padilla was “armed with an assault rifle” as he escaped to Pakistan), with Hamdi, 124 S. Ct. at 2642 n.1 (noting that the asserted basis for detaining Hamdi was that he “carr[ied] a weapon against American troops on a foreign battlefield”), and id. at 2637 (quoting Mobbs Affidavit that Hamdi had “‘surrender[ed] his Kalishnikov assault rifle’” to Northern Alliance forces (alteration inoriginal)).

In other words, as far as the courts have taken it so far, you have to go to the battlefield, hang out with enemy forces, and be armed on the battlefield, although these conditions are not required to be occurring at the time of capture.

I don’t think we’ve seen the last expansion of the doctrine, but so far you are safe on the law; I doubt an allegation of ACLU membership will satsify the requirments. OTOH, given the mimimal procedural rights afforded a detainee under Hamdi, there is the possibility that the government could establish military tribunals, and produce perjured affidavits to support the detention of political opponents. The detainees would then have to disprove the allegations before an arbiter whose impartiality might be subject to question. Their ability to challenge adverse determinations would probably be very limited. So the procedure certainly could be abused.