Extrajudicial detention, U.S.

See also: User: Howard C. Berkowitz/EJUSGWB

Extrajudicial detention by the United States has taken place under a number of Administrations, sometimes during overt war, and, perhaps better known at present, directed against non-national threats. There has also been extraordinary rendition to third countries. Certain of these detentions have been considered generally consistent with customary international and U.S. law of the time, while others were much more controversial. Detention and rendition programs have been most extensive under the George W. Bush Administration; some have been repudiated by the successor Obama Administration.

Some actions, such as the execution, as a spy, of a British Army major, John Andre, during the American Revolution were consistent with international treatment of spies. Military law, which, until recently, was the main basis of extrajudicial actions, was first promulgated as the Lieber Code during the American Civil War.

American Civil War

Abraham Lincoln suspended habeas corpus and detained many he considered threats to the Union.

Ex parte Milligan was a detention case considered by the Supreme Court of the United States, in which the Court held that a citizen, in an area where the civilian courts were operating, could not be tried by a military commission.

Second World War

International law historically has given protection to lawful combatants in direct conflict, allowing them prisoner of war status. Far fewer protections have been granted to enemy agents, both in combatant and in intelligence-gathering roles, who operated in civilian or other disguise. Many of these precedents were argued in detention cases of the George W. Bush Administration.

Date	Citizenship	Place of capture	Captured by	Detained by	Person(s) and cases	Comments
1942	U.S. citizens and aliens of Japanese ancestry	U.S.	U.S. civil and military	U.S.	Executive Order 9066; 56 Stat. 173, March 21, 1942; Korematsu v. United States (1944)	SCOTUS upheld detention in Korematsu case
1942	German (military), in civilian clothes and with sabotage materials	U.S.	U.S. military	U.S. military in U.S.	ex parte Quirin‎	SCOTUS approved military jurisdiction
1950	German (military)	China	U.S. military	U.S. military in China and Germany	Johnson v. Eisentrager‎	SCOTUS denied habeas