Argument: Enhanced interrogations do not violate US due process laws

Issue Report: Enhanced interrogation techniques


US Department of Justice Memo, March 14, 2003, justifying enhanced interrogation techniques – “We conclude below that the Fifth Amendment Due Process Clause is inapplicable to the conduct of interrogations of alien enemy combatants held outside the United States for two independem reasons. First, the. Fifth Amendment Due Process Clause does not apply to the President’s conduct of a war. Second, even if the Fifth Amendment applied to the conduct of war, the Fifth Amendment does not apply extraterritorially to aliens who have no connection to the United States. We address each of these reasons in turn.

First, the Fifth· Amendment was not designed to restrict the unique war powers of the President as Commander in Chief. As long ago as 1865, Attorney General Speed explained the unquestioned rule that,. as Commander in Chief, the President waging a war may authorize soldiers to engage in combat that could not be authorized as a part of the President’s role in enforcing the laws. The strictures that bind the Executive in its role as a magistrate enforcing the civil laws have no place in constraining the President in waging war:

Soldiers regularly in the service have the license of the government to deprive men,the active enemies of the government, of their liberty and lives; their commission so to act is as perfect and legal as that of a judge to adjudicate ….Wars never have been and never can be conducted upon the principle that an army is but a posse comitatis ofa civil magistrate..

The Supreme Court has repeatedly refused to apply the Due Process Clause or even the Just Compensation Clause to executive and congressional actions taken in the direct prosecution of a war effort against enemies of the Nation. It has long been settled that nothing in the Fifth Amendment governs wartime actions to detain ordeport alien enemies and to confiscate enemy property. As the Court has broadly stated in United States v. Salerno; 481 U.S. 739, 748 (1987), “in times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the government believes to be dangerous” without violating the Due Process Clause.’ See also Ludecke v. Watkins, 335 U.S. 160, 171 (1948). Similarly, as the Supreme Court has explained with respect to enemy property, “[b]y exertion of the war power, and untrammeled by the due process or just compensation clause,” Congress may “enact[] laws directing seizure, use, and· disposition of property in this country belonging to subjects of the enemy.” Cummings v. Deutsche BankUnd Discontogese/lschajt, 300 U.S. 115, 120 (1937). These authorities of the federal government during armed conflict were recognized early in the Nation’s history. Chief Justice Marshall concluded for the Court in 1814 that “war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found.” Brown v. United States, 12 U.S. (8 Cranch) 110, 122 (1814). See also Eisentrager, 339 U.S. at 775 (“The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a ‘declared war’ exists.”); Harisiades v. Shaughnessy, 342 U.S. 580, 587 (1952). As the Court explained in United States v. Chemical Found” Inc., 272 U.S. 1, 11 (1926), Congress is “untrammeled and .free to authorize the seizure,’ use or appropriation of [enemy] properties without any compensation…. There is no constitutional prohibition against confiscation of enemy properties.” See also White v. Mechs. Sec. Corp., 269 U.S. 283, 301 (l925)(Holmes,J.)(whenU.S. seizesproperty ,froman enemyitmay”do withitwhatitliked”)..

The Supreme Court has also stated a general rule that, notwithstanding the compensation requirement for government takings of property under the Fifth Amendment, the government cannot be charged for injuries to, or destruction of, private property caused by military operations of armies in the field.” United States v. Pacific R.R., 120 U.S. 227,239 (1887). For
.”[t]he terse language of the Fifth Amendment is no comprehensive promise that the United States will make whole all who suffer from every ravage and burden of war. This Court has long recognized that in wartime many losses must be attributed solely to the fortunes of war, and not to the sovereign.” .United States v. ‘Caltex, Inc. (Philippines), 344 U.S. 149, 155-56 (1952). See also Herrera v. United States, 222 U.S. 558 (1912); Juragua Iron Co. v. United States, 212 U:S. 297 (1909); Ford v. Surget, 97 U.S. 594 (1878). These cases and the untenable consequences for the President’s condUct of awar that would result from the application of the Due Process Clause demonstrate its inapplicability during wartime-whether to the conduct of interrogations or the detention of enemy aliens.

Second, even if the Fifth Amendment applied to enemy combatants in wartime, it is clear that that the Fifth Amendment .does not operate outside the United States to regulate the Executive’s conduct toward ,aliens. The Supreme Court has squarely held that the Fifth Amendment provides no rights to non-citizens who have no established connection to the country and who are held outside sovereign United States territory. See Verdugo-Urquidez, 494 U.S; at 269 (“[W]e have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.”). See also Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“It is well established that certain constitutional protections[, such as the Fifth Amendment,] available to persons inside the United States are unavailable to aliens outside of our geographic borders.”) (citing Verdugo-Urquidez, 494 U.S. at 269; and Eisentrager, 339 U.S. at 784). As the Supreme Court explained in Eisentrager, construing the Fifth Amendment to apply to aliens who are outside the United States and have no connection to the United States:

would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and ‘werewolves’ could require the American JUdiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against ‘unreasonable’ searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments. Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one woidcan be cited. No decision of this Court supports such a view.”