Citizens of an Enemy Land: Enemy Combatants, Aliens, and the Constitutional Rights of the Pseudo-Citizen
62 Pages Posted: 18 Jan 2006
Does citizenship as we know it still exist in the post-September 11 world? Do the exigencies of war require an inquiry into who among the citizenry is legitimately a citizen? Two cases in which the government detained U.S. citizens as enemy combatants resolve these questions in conflicting ways. Hamdi v. Rumsfeld and Rumsfeld v. Padilla each raised constitutional challenges to the military detention of a U.S. citizen accused of taking action against the U.S. government in a time of war. In Hamdi, the Supreme Court fractured around the question whether citizenship matters when measuring the constitutional protections of an individual detained as an enemy combatant. In Padilla, the majority shelved the relevance of citizenship and disposed of the case on procedural grounds, while citizenship was central to the dissent's protest that the Court should reach the substantive questions in the case.
This Article exposes the radical redefining of citizenship augured in the recent case law addressing citizens suspected of disloyalty. Cases in which the military detained U.S. citizens on the suspicion that they are "enemy combatants" have blurred the distinctions between citizens and non-citizens. Rules that grew out of jurisprudence about non-citizens have crept into decisions in which the government has questioned the legitimacy and loyalty of citizens. The appearance of these rules and their implications for citizenship have gone virtually unnoticed by both advocates and critics of the enemy combatant cases. Yet the presence of these rules accompanies the courts' sub rosa evaluation of whether the citizen is legitimately a member of the citizenry. Together, they create a hybrid category of citizenship - what I call "pseudo-citizenship" - to which constitutional protections against federal power apply with diminished force.
This approach reframes the current heated debate about these cases. That debate has polarized as a conflict between the power of the federal government in wartime and the scope of constitutional protections for citizens. Recast as a debate about the very substance of citizenship, radically different issues arise. These cases reconstruct the constitutional framework to include a new category of citizenship that draws from extra-constitutional norms governing noncitizens. They suggest a jurisprudence of pseudo-citizenship in a world in which traditional notions of war and conflict no longer seem to apply.
Keywords: immigration, citizenship, civil rights, national security, enemy combatant, criminal, Hamdi, Padilla, constitutional
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