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We know from the Jose Padilla case that US citizens can be detained in the US and held without charge for several years if the POTUS labels them as enemy combatants. From the same case, we know that the government can change the enemy combatant status and formally charge the person, several years after initial arrest, (~3.5 yrs here), in order to avoid review by US Supreme Court.

More recently, there have been violent protests, apparently politically motivated, during the 2017 POTUS inauguration, and at UC Berkeley. In both cases, groups of individuals attacked police officers, broke windows, set fires, etc... in a manner suggestive of an organized effort.

Q: Could the POTUS label such protest group members as "enemy combatants" and then proceed to detain the suspected members/anyone near a violent protest without charge indefinitely? Has the law changed since the Padilla case that could prevent such maneuver?

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    Important to note that the phrase "terrorist organization" isn't actually a thing legally speaking (which is the only thing that matters here). There are various types of terrorist organizations depending on the circumstances (ie here and here). – David Grinberg Feb 3 '17 at 1:54
  • Presumably, there's legal technicalities involved in designating someone as "enemy combatant". As such, please explain which details in en.wikipedia.org/wiki/Enemy_combatant make it seem like UCB would apply. – user4012 Feb 3 '17 at 12:21
  • They have to be affiliated with an enemy state or non-state actor (like ISIS or a drug cartel) so probably not. – K Dog Feb 3 '17 at 15:30
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    I'm voting to close this question as off-topic because it's way too complex to be answered here. It would require much speculation as well as the knowledge and expertise of several federal security and legal agencies. – user1530 Feb 3 '17 at 20:41
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    FWIW, this question is much less complex than many of the questions in Politics, and really doesn't require much speculation at all. It does require knowledge of a body of law that is highly political and implicitly some judgments about how likely the relevant officials are to lie in a statement to a court. But, honestly, its really pretty straightforward as questions go. – ohwilleke Feb 3 '17 at 22:59
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The short answer is no.

An "enemy" in the context of the phrase "enemy combatant" is a term of art that refers to a group defined by Congress with whom the United States is at war or against whom it is authorized to use military force. In recent U.S. history, the Authorization for Use of Military Force (AUMF) (Public Law 107-40) passed by Congress following 9-11 has defined who qualifies as an "enemy" as it is the only "live" declaration of war in force at this time.

For example, the Declaration that supported the Padilla detention as an enemy combatant was as follows:

In accordance with the Constitution and consistent with the laws of the United States, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40);

I, GEORGE W. BUSH, as President of the United States and Commander in Chief of the U.S. armed forces, hereby DETERMINE for the United States of America that:

(1) Jose Padilla, who is under the control of the Department of Justice and who is a U.S. citizen, is, and at the time he entered the United States in May 2002 was, an enemy combatant;

(2) Mr. Padilla is closely associated with al Qaeda, an international terrorist organization with which the United States is at war;

(3) Mr. Padilla engaged in conduct that constituted hostile and warlike acts, including conduct in preparation for acts of international terrorism that had the aim to cause injury to or adverse effects on the United States;

(4) Mr. Padilla possesses intelligence, including intelligence about personnel and activities of al Qaeda, that, if communicated to the U.S., would aid U.S. efforts to prevent attacks by al Qaeda on the United States or its armed forces, other governmental personnel, or citizens;

(5) Mr. Padilla represents a continuing, present and grave danger to the national security of the United States, and detention of Mr. Padilla is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens;

(6) it is in the interest of the United States that the Secretary of Defense detain Mr. Padilla as an enemy combatant; and

(7) it is REDACTED consistent with U.S. law and the laws of war for the Secretary of Defense to detain Mr. Padilla as enemy combatant. Accordingly, you are directed to receive Mr. Padilla from the Department of Justice and to detain him as an enemy combatant.

DATE: June 9, 2002 Signature

/George Bush/

In the context of prior cases about "enemy combatants", the precedents used the declarations of war from World War II, and in the Civil War, respectively to determine who was an "enemy". The two pre-9-11 cases that were used to support the enemy combatant doctrine were Ex Parte Quirin, 317 U.S. 1 (1942) (World War II), and Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866) (U.S. Civil War).

A U.S. official would have to establish in a Declaration under penalty of perjury that an individual was associated with one of the terrorist organizations covered by the AUMF to declare someone an enemy combatant. The AUMF does not apply to "terrorist organizations" in general.

For example, a self-proclaimed terrorist from the Animal Liberation Front could not be detained as an enemy combatant, but that is not among the terrorist organizations that Congress has declared war on in the AUMF.

It is also established from a variety of post-9-11 cases that anyone so detained would have, at a minimum, a right to seek their freedom via a petition for habeas corpus from which they or someone on their behalf, could petition to a U.S. District Court to seek their release.

The issue is not citizenship, it is affiliation with an enemy designated in the AUMF.

A U.S. citizen whom a U.S. official could declare under penalty of perjury was affiliated with the AUMF probably could be detained in this fashion, although neither the Padilla case nor the sister Al-Marri and Hamdan cases involving non-U.S. citizens, ever finally reached the U.S. Supreme Court on the merits of the question of whether the enemy combatant doctrine can be applied within a U.S. State (the U.S. Supreme Court case of Rumsfield v. Padilla, 542 U.S. 426 limited itself to the question of the proper venue for a habeas corpus suit), which was one of the key issues before the courts in those cases.

It is not at all clear how the courts would resolve that issue outside the 4th Circuit. The Padilla case in 2005 did give rise to a precedent in the United States Court of Appeals for the 4th Circuit that supports the practice, although a subsequent ruling in the Al-Marri case arguably muddied the waters.

The subsequent developments in the enemy combatant cases (some of which arose collaterally in the criminal trial of Padilla), haven't really change the relevant law. There have also been military commission cases since Padilla, but they go to the question of the proper scope and process to apply in military commissions of enemy combatants imposing some punishment beyond indefinite detention as a quasi-prisoner of war for the duration of the war on terrorism authorized by the AUMF.

  • Would there also have to be some violation of federal law involved? My initial impression to the question was that it might be invalid due to the lack of jurisdiction; otherwise we'd just as easily have the feds coming down on Penn State fans for rioting after their team won the Big Ten championship: phillyvoice.com/… – jeffronicus Feb 4 '17 at 16:37
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    Not really. The "enemy combatant" doctrine is part of the law of war and relies upon the notion that during a war you can use all necessary force against enemy soldiers and spies. You simply have to show someone is an enemy soldier or spy, not that they violated a particular federal law. Unless Congress declares war on Penn State fans, they wouldn't be "enemies". – ohwilleke Feb 4 '17 at 16:54

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