Extrajudicial detention, U.S.

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For more information, see: Extrajudicial detention.
See also: Extrajudicial detention, U.S., Abraham Lincoln Administration
See also: Extrajudicial detention, U.S., Woodrow Wilson Administration
See also: Extrajudicial detention, U.S., Franklin D. Roosevelt Administration
See also: Extrajudicial detention, U.S., George W. Bush Administration
See also: Extrajudicial detention, U.S., Barack Obama Administration
See also: Intelligence interrogation, U.S.

Extrajudicial detention by the United States involves those cases where the Executive Branch of the United States government has detained individuals without the authority of the judicial branch of government. It 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 although it has continued others.

While the United States had been enshrined process of due process in the United States Constitution, 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.[1] Health models have played a role in American detention. Especially around the turn of the 20th century, there was much concern about disease spread by immigrants — and deporting or barring persons suspected of being bearers of disease. [2]

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.

There are various legal interpretations that argue that an individual, especially a noncitizen, may have certain rights under international law without having U.S. rights under constitutional law, a point made by U.S. Court of Appeal judge Richard Posner. [3] When the Article II authority of the President, as Commander-in-Chief, is involved, there are complex issues of jurisdiction, and exceptions of rights to habeas corpus, which interact with citizenship and place of captivity. Normally, U.S. citizens, in the U.S., are assumed to have the right of habeas corpus. In ex parte Quirin, however, the Supreme Court held that a citizen, captured in the U.S. while acting in the interest of a declared enemy, had no such right. At the other extreme, it held, in Johnson v. Eisentrager, that noncitizens, held outside the U.S. by U.S. troops, had no recourse.

In Rasul v. Bush, the Court did hold, however, that noncitizens, in U.S. custody at Guantanamo Bay detention camp, did have habeas corpus rights because Guantanamo, while not in the U.S., is a U.S. leased facility where the U.S. has the sole authority. Posner observed that this decision, as opposed to Hamdi v. Rumsfeld, was based on the federal habeas corpus law, while the latter, with a thinner majority, was based on constitutional principles.

While Posner argues that the U.S. is in a state of war with al-Qaeda, he rejects the more extreme position of John Yoo, Deputy Assistant Attorney General and later White House counsel for George W. Bush.[4] Yoo interpreted the Authorization for the Use of Military Force to give the President "plenary constitution power", under Article II, to "to take such military actions as he deems necessary ". [5] According to Posner, Yoo's position gives the President the sole right to determine the status of prisoners; since the President is Commander-in-Chief in peacetime, the right to military arrest would be applicable at all times.

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. [6]

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. [7]

Working with President Woodrow Wilson, the U.S. Attorney General, Thomas Gregory, carried out activities under the Espionage Act of 1917 and the Sedition Act of 1918. 2,300 aliens were detained and over 2,000 war critics prosecuted.

Security made use of unofficial but government-funded groups, such as, according to the Attorney General, the "American Protective League has proven to be invaluable and constitutes a most important auxiliary and reserve force for the Bureau of Investigation. Its membership, which is carefully guarded, included leading men in various localities who have volunteered their services for the purpose of being on the lookout for and reporting to this department information of value to the Government, and for the further purpose of endeavoring to secure information regarding any matters about which it may be requested to make inquiry." [8]

Period of "Red Scares"

Starting late in the First World War, especially after the Russian Revolution of 1917, attention changed from the Germans and other major military opponents, to preventive action against perceived threats by non-national radicals, or potential subversives affiliated with the new Soviet Union.

During the war, J. Edgar Hoover, working at the Library of Congress, had led the compilation of information on enemy aliens, both major power and potential subversives. He amassed an estimated 150,000 records of individuals and publications. [8]

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.[9] 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. [10] 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:[9]

Flynn depended on the deportation law of October 16, 1918, so put priority on "should be particularly directed to persons not citizens of the United States." Nevertheless, he also directed Bureau agents to "make full investigations of similar activities of citizens of the United States with a view to securing evidence which may be of use in prosecutions under the present existing state or federal laws or under legislation of that nature which may hereinafter be enacted." The instructions discussed the provisions of the recent amendments to the Immigration Act, which expanded the grounds for deportation to include membership in revolutionary organizations as well as individual advocacy of violent overthrow of the government.[9]

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. He 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..."[11] Hoover continued to build the index to 450,000 items, and then began to compile dossiers on identified radicals, by February 1920 numbered 70,000 with short biographies and their publications. [8]

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

When Palmer announced that the communist revolution in the U.S. was likely to take place on 1st May, mass panic broke out. 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 additional funding. 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

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


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.


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. [12]

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

George W. Bush Administration

For more information, see: Extrajudicial detention, U.S., George W. Bush Administration.

Especially after the 9/11 Attacks, the George W. Bush Administration made perhaps the greatest use of individual cases of detention, although affecting as large a population as the Japanese internment.

Obama Administration

While Obama had promised to close Guantanamo Bay detention camp and secret Central Intelligence Agency, there is little progress on the former. The Administration has supported the approach of maximizing civilian trials, and either using indefinite military detention or very limited military tribunals. Jack Goldsmith, head of the Office of Legal Counsel in the previous administration who resigned in protest, yet is a noted constitutional scholar, commented recently that military detention is well precedented.[13]


  1. An Act Respecting Alien Enemies, Avalon Project, Yale University, July 6, 1789
  2. Harriet Moore (2008), Contagion from Abroad: U.S. Press Framing of Immigrants and Epidemics, 1891 to 1893, Georgia State University
  3. Richard A. Posner (2006), Not a Suicide Pact: the Constitution in a Time of National Emergency, Oxford University Press, p. 57
  4. Posner, pp. 67-68
  5. John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel (September 25, 2001), Memorandum to the Deputy Counsel to the President, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them
  6. Daniel J. Tichenor, The Forgotten Virtues of Executive Restraint: Liberal Democracy, Prerogative Power, and Unfettered Presidentialism, Department of Political Science, Rutgers University-New Brunswick, p. 10
  7. Anne Cipriano Venzon (1995), The United States in the First World War: An Encyclopedia, Taylor & Francis, ISBN 0824070550, p. 164
  8. 8.0 8.1 8.2 Sylvia E. Bartley (30 May - 1 June 1996), Intellect Surveilled: Thorstein Veblen and the Organs of State Security, Second Conference of the International Thorstein Veblen Association Cite error: Invalid <ref> tag; name "Bartley" defined multiple times with different content
  9. 9.0 9.1 9.2 Francis J. Rafalko, ed., Chapter 3, Post Civil War to World War I, A Counterintelligence Reader: American Revolution to World War II, National Counterintelligence Executive, Office of the Director of National Intelligence
  10. The Palmer Raids, Federal Bureau of Investigation, 28 December 2007
  11. Attorney General A. Mitchell Palmer Makes “The Case against the Reds”, History Matters, George Mason University
  12. Eighth Public Hearing, National Commission on Terrorist Attacks upon the United States
  13. Jack Goldsmith (8 October 2010), "Don’t Try Terrorists, Lock Them Up", New York Times