A Brief Aside on Detention: Alien Enemies and the EDA

I suspect that, thanks to Roger’s framing and Marty’s and Deborah’s thoughtful opening salvos, we’re not too far from getting to the two big questions with regard to Ben’s proposed detention statute. I have some thoughts as well, especially as to whether we need a new hybrid judicial system to handle these cases, but wanted to wait for Ben to go first.

In the interim, I wanted to just flag a pair of curious historical footnotes, both of which tend to get overlooked in these conversations (perhaps for good reasons). We actually have two pretty interesting exemplars of preventive detention legislation, and I wonder if either provides a useful lens through which to view Ben’s proposal.

First, of course, is the Alien Enemy Act of 1798, which remains on the books today at 50 U.S.C. 21-24. The operative provision provides that, during a declared war, “all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.” And a 5-4 Supreme Court upheld the statute from constitutional challenge in 1948 in Ludecke v. Watkins, even though it is difficult to see why it was necessary to continue to hold German alien enemies over three years after V-E day.[I’ve previously written about Ludecke here, and the surprisingly rich case law under the AEA here.]

Less well known, though, is the Emergency Detention Act of 1950, title II of the McCarran Internal Security Act. Section 103(a) of the Act provides as follows:

Whenever there shall be in existence [an internal security emergency, as defined in section 102], the President, acting through the Attorney General, is hereby authorized to apprehend and by order detain, pursuant to the provisions of this title, each person as to whom there is reasonable ground to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or sabotage.

Interestingly, the statute was explicit that habeas corpus would remain available to detainees, and that detainees were entitled to a hearing within 48 hours of their confinement, “or as soon thereafter as provision for it may be made.” The Act also created a “Detention Review Board” to review cases on a regular and rotating basis, and provided that the detainees were entitled to access to counsel, among numerous other procedural safeguards.

No one was ever detained under the EDA, and it was repealed in 1971 in the same statute in which Congress enacted the so-called “Non-Detention Act,” 18 U.S.C. § 4001(a), the statute at the heart of the Hamdi and Padilla cases. Subsequent commentators decried the Act as a massive and fundamental betrayal of Fifth Amendment due process values, leading Attorney General Kleindienst to remark in 1969 that “the continuation of the Emergency Detention Act is extremely offensive to many Americans. In the judgment of this Department, the repeal of this legislation will allay the fears and suspicions — unfounded, as they may be — of many of our citizens. This benefit outweighs any potential advantage which the Act may provide in a time of internal security emergency.”

My point is not to suggest that either the Alien Enemy Act or the Emergency Detention Act are good exemplars for us to follow. But in the spirit of those who fail to study history being doomed to repeat it, I thought I’d throw them out there to further illuminate our conversation…