Extrajudicial detention, U.S.

See also: User: Howard C. Berkowitz/EJUSGWB

Extrajudicial detention by the United States has taken place under a number of Administrations, sometimes during overt war, and, perhaps better known at present, directed against non-national threats. There has also been extraordinary rendition to third countries. Certain of these detentions have been considered generally consistent with customary international and U.S. law of the time, while others were much more controversial. Detention and rendition programs have been most extensive under the George W. Bush Administration; some have been repudiated by the successor Obama Administration.

While the United States had been enshrined process of due process in the Constitution of the United States, due process was principally focused on citizens, or at least those that were not women and not slaves. Interestingly for a "nation of immigrants", strong distinctions were made for aliens, as with the Alien and Sedition Act of 1789. Health models have played a role in American detention. For a nation founded by immigrants, the country has used health detention and rstrictions to a strong extent.

Some actions, such as the execution, as a spy, of a British Army major, John Andre, during the American Revolution were consistent with international treatment of spies. Military law, which, until recently, was the main basis of extrajudicial actions, was first promulgated as the Lieber Code during the American Civil War.

Post-revolutionary period

The Alien and Sedition Acts, upon the declaration of war, that aliens resident within the United States, not "chargeable with actual hostility, or other crime against the public safety" will be given time to collect their goods and depart. Once such a state exists, there would be apprehension and judicial review leading to deportation, bond for good behavior, or indefinite detention by the then-applicable regulations. They addressed "subversive" acts, but not in a strictly nonjudicial context.

Aspects of these Acts remained in force into the early twentieth century, and were used for prosecutions at least until 1920.

American Civil War

Abraham Lincoln suspended habeas corpus and detained many he considered threats to the Union. Ex parte Milligan was a detention case considered by the Supreme Court of the United States, in which the Court held that a citizen, in an area where the civilian courts were operating, could not be tried by a military commission.

First World War and interwar

Discussions of extrajudicial detention in the First World War period sometimes blur the true detention cases with judicial processes that criminalized dissent. Nevertheless, the key legislative authorities for actions hostile to civil liberties included the Espionage Act of 1917, Sedition Law of 1918, and provisions of the Selective Service Act and Trading with the Enemy Act.

Wartime

The quasigovernmental Commission on Training Camp Activities enforced discipline around military training facilities, including the overnight extrajudicial detention of women arrested for suspicion of prostitution. , p. 164</ref>

Working with President Woodrow Wilson, the U.S. Attorney General, Thomas Gregory, carried out activities under the Alien and Sedition Acts. 2,300 aliens were detained and over 2,000 war critics prosecuted.

During the war, J. Edgar Hoover, working at the Library of Congress, had led the compilation of information on enemy aliens. He amassed an estimated 150,000 records of individuals and publications.

Postwar

While the Espionage Act had expired at the end of the war, state statutes and the deportation provisions of the Immigration Act continued to provide a legal, if extrajudicial, framework. A new Attorney General, A. Mitchell Palmer, had come from the progressive wing of the Democratic Party, but, when appointed in 1919, became extremely concerned with radical and alien politics, regarding the preservation of civil rights as much less of a concern. . Palmer saw a widespread Communist conspiracy, not only from the Russian Revolution alone. Some of this might be explained the discovery of thirty-eight bombs sent to leading politicians and the Italian anarchist who blew himself up outside Palmer's Washington home. In May and June, there had been actual domestic bombings.

Palmer reorganized the security functions of the Justice Department, placing two new offices under Assistant Attorney General Francis P. Garvan:

• General Intelligence Division, under J. Edgar Hoover
• Director of the Bureau of Investigation (not yet the FBI) under William J. Flynn, former head of the United States Secret Service

Palmer ordered raids on November 17, 1919, which was the second anniversary of the Russian Revolution. More than 10,000 suspected communists and anarchists were detained. Emma Goldman and 247 other people, were deported to Russia, while others were imprisoned for substantial periods.

Although they were smaller than the November action, what became known as the "Palmer Raids" took place in January 1920. 6,000 people were arrested without trial, largely members of the International Workers of the World.

When Palmer announced that the communist revolution was likely to take place on 1st May, mass panic took place. In New York, five elected Socialists were expelled from the legislature.

In June 1920, Garvan warned that a new wave of bombings would start on July 4th. In the rest of the year, the General Intelligence Division would receive a large amount of Congress authorized an additional half million dollars for the "Radical Division" above and beyond its initial appropriation of 1.5 million dollars. In December of that same year Congress authorized yet another million dollars for "running down reds" and prosecuting them. 3

Garvan brought in J. Edgar Hoover, then 24, to head the GID. At the GID he expanded the index to 450,000 names, thereby increasing the prestige of his new Division. Next he added short bios of identi_fied radicals, which by February 1920 numbered 70,000. He appended press clippings and reports of their speeches and publications for ready ref erence.

Government-funded groups, such as the American Patriotic League, that harassed citizens of German ancestry but did not detain.

From the Russian Revolution of 1917, there were "Red Scare" in the U.S. and the West "Palmer Raids" in the U.S., named for Attorney General A. Mitchell Palmer, whose deputy was J. Edgar Hoover, apprehended and deported 249 suspected "Bolsheviks", such as Emma Goldman, in 1919-1920. Palmer wrote "How the Department of Justice discovered upwards of 60,000 of these organized agitators of the Trotzky [sic] doctrine in the United States is the confidential information upon which the Government is now sweeping the nation clean of such alien filth..."

Second World War

International law historically has given protection to lawful combatants in direct conflict, allowing them prisoner of war status. Far fewer protections have been granted to enemy agents, both in combatant and in intelligence-gathering roles, who operated in civilian or other disguise. Many of these precedents were argued in detention cases of the George W. Bush Administration.

Date	Citizenship	Place of capture	Captured by	Detainment and place	Person(s) and cases	Comments
1942	U.S. citizens and aliens of Japanese ancestry	U.S.	U.S. civil and military	U.S. in U.S.	Executive Order 9066; 56 Stat. 173, March 21, 1942; Korematsu v. United States (1944)	SCOTUS upheld detention in Korematsu case
1942	German (military), in civilian clothes and with sabotage materials	U.S.	U.S. military	U.S. military in U.S.	ex parte Quirin‎	SCOTUS approved military jurisdiction
1950	German (military)	China	U.S. military	U.S. military in China and Germany	Johnson v. Eisentrager‎	SCOTUS denied habeas

Later cases

Medical

There are a number of laws that provide for the indefinite detention, or other restrictions outside prison, on persons judged to be sexual predators. Kansas v. Crane, the Supreme Court of the United States made it necessary that the prosecution prove uncontrollable impulses.

Security-related

George Tenet, Director of Central Intelligence, testified that over 80 terrorists were rendered before 9/11. He described this as a part of broader counterterrorist activity, which included active penetration of groups as well as assisting third country actions.

Date	Citizenship	Place of capture	Captured by	Detainment and place	Person(s) and cases	Comments
1995	Danish resident	Croatia	CIA	Egypt	Tal`at Fu'ad Qassim	Clinton Administration Presidential Decision Directive (PDD) 39