(15) The Second Circuit held that the President does not have theinherent authority, nor has Congress authorized him to declare U.S. citizens captured on U.S.territory in non-combat circumstances to be enemy combatants and place them under militaryjurisdiction. (35) 

	U.S. Precedent for Detention of Citizens as Enemy Combatants

The Department of Justice reads the Hamdi decision as supporting its reliance primarily ontwo cases to support its contention that the Constitution permits the detention without criminalcharge of American citizens under certain circumstances. (53) The Supreme Courtrejected a similar contention in the Civil War case of Ex parte Milligan , discussed infra , whereCongress had limited the authority to detain persons in military custody. Inasmuch as the President has determined that Al Qaedais not a state but a criminal organization to which the Geneva Convention does not apply, (54) and inasmuch as the HagueConvention would seem to apply to neither Al Qaeda nor the Taliban for the same reasons that havebeen given to preclude their treatment as prisoners of war, (55) it may be argued that AlQaeda is not directly subject to the law of war and therefore its members may not be detained as"enemy combatants" pursuant to it solely on the basis of their association with Al Qaeda. After the Quirin decision, the Attorney General asked Congress to pass legislation tostrengthen criminal law relating to internal security during wartime. The sole question before the court waswhether a U.S. citizen could lawfully be treated as a prisoner of war under U.S. law and the law ofwar. (183) On remand, the district court ordered the government toprovide additional information to support its conclusion that Hamdi is an enemy combatant. The Authorization to Use Force

The government argues, and the Supreme Court has agreed, that the identification anddetention of enemy combatants is encompassed within Congress' express authorization to thePresident "to use force against those 'nations, organizations, or persons he determines' wereresponsible for the September 11, 2001 terrorist attacks." The scope of that authority, however,remains open to debate. (233) It has not been decidedwhether the phrase "in time of war" or reference to "the enemy" in the these articles of the UCMJalso require a declaration of war by Congress; however, the same reasoning applied in Averette (234) and followed in Robb could be found to apply here, at least with respect to persons who may not claim combatant status:
A recognition [that the conflict in Vietnam qualifies asa war in the ordinary sense of the word] should not serve as a shortcut for a formal declaration ofwar, at least in the sensitive area of subjecting civilians to militaryjurisdiction
On the other hand, the Manual for Courts Martial (MCM) defines "time of war" to include declaredwar as well as "a factual determination by the President that the existence of hostilities warrants afinding that a 'time of war'" exists for the punitive portions of the MCM. Â§ 4001(a)

The petitioners in both Hamdi and Padilla asserted that Congress expressly has forbiddenthe detention of U.S. citizens without statutory authority, and that no statutory support for thedetention of U.S. citizens as "enemy combatants" can be found. While it appears thatexpress statutory authorization to detain persons arrested away from any battlefield would clarifyconstitutional separation of powers issues, some constitutional questions may remain. 1076 would authorize the President to detainU.S. citizens and residents who are determined to be "enemy combatants" in accordance withprocedures established by the Secretary of Defense in consultation with the Secretary of State andthe Attorney General. Possible Legal Issues

Petitioners on behalf of U.S. citizens held in military custody argue that 18 U.S.C. Â§ 4001(a),which prohibits the detention of U.S. citizens except as authorized by an act of Congress, prohibitsthe military's detention of U.S. citizens as enemy combatants. H.R. Due Process for Non-Resident Aliens. The Supreme Court validated such a program during World War II. (289) 
History shows that even during declared wars, additional statutory authority has been seenas necessary to validate the detention of citizens not members of any armed forces.
The Supreme Court in 2004 issued three decisions related to the detention of "enemycombatants," including two that deal with U.S. citizens in military custody on American soil. In Hamdi v. Rumsfeld , a plurality held that a U.S. citizen allegedly captured during combat inAfghanistan and incarcerated at a Navy brig in South Carolina is entitled to notice and anopportunity to be heard by a neutral decision-maker regarding the government's reasons for detaininghim. The Court in Rumsfeld v. Padilla overturned a lower court's grant of habeas corpus to anotherU.S. citizen in military custody in South Carolina on jurisdictional grounds. The decisions affirmthe President's powers to detain "enemy combatants,"including those who are U.S. citizens, as partof the necessary force authorized by Congress after the terrorist attacks of September 11, 2001. However the Court appears to have limited the scope of individuals who may be treated as enemycombatants pursuant to that authority, and clarified that such detainees have some due process rightsunder the U.S. Constitution. This report, which will be updated as necessary, analyzes the authorityto detain American citizens who are suspected of being members, agents, or associates of Al Qaeda,the Taliban and possibly other terrorist organizations as "enemy combatants."
The Department of Justice argues that the recent decisions, coupled with two World War IIera cases, Ex parte Quirin and In re Territo , support its contention that the President may order thatcertain U.S. citizens as well as non-citizens be held as enemy combatants pursuant to the law of warand Article II of the Constitution. Critics, however, question whether the decisions permit thedetention of U.S. citizens captured away from any actual battlefield, in order to prevent terrorist actsor gather intelligence; and some argue that Congress has prohibited such detention of U.S. citizenswhen it enacted 18 U.S.C. Â§ 4001(a).
This report provides background information regarding the cases of two U.S. citizens deemed "enemy combatants," Yaser Esam Hamdi, who has been returned to Saudi Arabia, and JosePadilla, who remains in military custody while the government appeals a district court order tocharge him with a crime or release him. A brief introduction to the law of war pertinent to thedetention of different categories of individuals is offered, followed by brief analyses of the mainlegal precedents invoked to support the President's actions, as well as Ex parte Milligan , which someargue supports the opposite conclusion. A discussion of U.S. practice during wartime to detainpersons deemed dangerous to the national security follows, including legislative history that mayhelp to shed light on Congress' intent in authorizing the use of force to fight terrorism. Finally, thereport briefly analyzes the proposed Detention of Enemy Combatants Act, H.R. 1076 ,which would authorize the President to detain U.S. citizens and residents who are determined to be"enemy combatants" in certain circumstances. The report concludes that historically, even duringdeclared wars, additional statutory authority has been seen as necessary to validate the detention ofcitizens not members of any armed forces, casting in some doubt the argument that the power todetain persons arrested in a context other than actual hostilities is necessarily implied by anauthorization to use force.