U.S. Department of Justice Seal
U.S. Department of Justice
Office of Legal Counsel
Office of the Deputy Assistant Attorney General
June 27, 2002
Memorandum for Daniel J. Bryant
Assistant Attorney General, Office of Legislative Affairs
Re: Applicability of 18 U.S.C. § 4001(a) to Military Detention of United States Citizens
You have asked us whether the detention of United States citizens as enemy belligerents
by the U.S. Armed Forces violates 18 U.S.C. § 4001(a) (2000). We understand that the question
has arisen in briefings before the Senate Judiciary Committee and the Senate Select Committee
on Intelligence concerning the recent transfer of Jose Padilla, aka Abdullah al Mujahir, from the
custody of the Department of Justice to the control of the Department of Defense.
Section 4001 of Title 18 states:
No citizen shall be imprisoned or otherwise detained by the United States
except pursuant to an Act of Congress.
The control and management of Federal penal and correctional
institutions, except military and naval institutions, shall be vested in the
Attorney General, who shall promulgate rules for the government thereof,
and appoint all necessary officers and employees in accordance with the
civil-service laws, the Classification Act, as amended and the applicable
The Attorney General may establish and conduct industries, farms,
and other activities and classify the inmates; and provide for their proper
government, discipline, treatment, care, rehabilitation, and reformation.
18 U.S.C. §4001.
As we explain below, the President's authority to detain enemy combatants, including
U.S. citizens, is based on his constitutional authority as Commander in Chief. We conclude that
section 4001(a) does not, and constitutionally could not, interfere with that authority.
In order to understand the scope of section 4001(a), we first set out the proper context
established by the President's authority to detain enemy combatants during war. Tha