In re Territo

In re Territo, legal case in which the U.S. Court of Appeals for the Ninth Circuit ruled on June 8, 1946, that American citizens captured as prisoners of war by U.S. armed forces may be detained without formal criminal charges. In the early 21st century the case was cited by the U.S. government to justify its claimed authority to hold American citizens declared to be “enemy combatants” in indefinite military custody without charge.

Gaetano Territo, an American-born private in the Italian army during World War II, was captured and taken prisoner by the U.S. Army in 1943. He was subsequently transferred from a prison facility in Italy to a prisoner-of-war camp in California. At some point after his arrival in the United States, Territo filed a petition in which he claimed that because he had been born in the United States, his imprisonment on American soil without having been formally charged was contrary to law. He sought a writ of habeas corpus, charging that he was being held illegally as a prisoner of war.

After a U.S. district court rejected Territo’s argument, he appealed to the Ninth Circuit, which upheld the lower court’s ruling, holding that “all persons who are active in opposing an army in war may be captured and except for spies and other non-uniformed plotters and actors for the enemy are prisoners of war.” Territo’s classification as a prisoner of war therefore took precedence over his American citizenship, and he could not seek legal redress in the manner of an American citizen. Territo was refused release and later was deported.

In re Territo gained legal prominence following the September 11, 2001, attacks in the United States by terrorists associated with al-Qaeda. Soon after the attacks, the George W. Bush administration declared its authority to place American citizens as well as foreign nationals in indefinite military custody without charge by declaring them to be enemy combatants in the “war on terrorism.” The Department of Justice subsequently defended the lengthy military confinement of Jose Padilla, an American citizen designated an enemy combatant in 2002, on the basis of In re Territo and Ex Parte Quirin (1942), in which the Supreme Court had upheld the trial by military tribunal of eight German saboteurs, one of whom was an American citizen. (Padilla was eventually transferred to civilian custody and convicted on charges of terrorism-related conspiracy.) Some critics of the administration’s position charged that the precedents were not apposite because, unlike Padilla, the American citizens in those cases were members of the armed forces of a country with which the United States was in a declared state of war.