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Hamdi v. Rumsfeld, 542 U.S. 507 (2004) was a U.S.marker Supreme Courtmarker decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant". The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.

Background of the case

Hamdi was captured in Afghanistanmarker by the Afghan Northern Alliance in 2001 and then turned over to U.S. military authorities during the U.S. invasion. The U.S. government alleged that Hamdi was there fighting for the Taliban, while Hamdi, through his father, has claimed that he was merely there as a relief worker and was mistakenly captured.

Hamdi was initially held at Guantanamo Baymarker, but then transferred to a naval brig in Norfolkmarker, Virginiamarker when it was discovered that he held U.S. (as well as Saudimarker) citizenship, and then finally to a brig in Charleston, South Carolinamarker. The Bush administration claimed that because Hamdi was caught in arms against the U.S., he could be properly detained as an enemy combatant, without any oversight of presidential decision making, or without access to an attorney or the court system. The administration argued that this power was constitutional and necessary to effectively fight the War on Terror, declared by the congress of the United Statesmarker in the Authorization for Use of Military Force Act passed after the September 11th terrorist attacks. The government used its detention authority to ensure that terrorists were no longer a threat while active combat operations continued and to ensure suspects could be fully interrogated.

In June 2002, Hamdi's father, Esam Fouad Hamdi, filed a habeas petition in the United States District Court for the Eastern District of Virginia. The Honorable Robert G. Doumar ruled that Hamdi's father was a proper "next friend" having standing to sue on behalf of his son, and ordered that a federal public defender be given access to Hamdi. On appeal, however, the Fourth Circuitmarker reversed the District Court's order, ruling that the District Court had failed to give proper deference to the government's "intelligence and security interests," and that it should proceed with a properly deferential investigation.

The case was then sent back to the District Court, which denied the government's motion to dismiss Hamdi's petition. Judge Doumar found the government's evidence supporting Hamdi's detention woefully inadequate, and based predominantly on hearsay and bare assertions. The District Court ordered the government to produce numerous documents for in camera review by the court that would enable it to perform a "meaningful judicial review," such as the statements by the Northern Alliance regarding Hamdi's capture, the dates and circumstances of his capture and interrogations, and a list of all the officials involved in the determination of his "unlawful combatant" status.

The government appealed Judge Doumar's order to produce the evidence, and the Fourth Circuit again reversed the District Court. Because it was "undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict," the Fourth Circuit stated that it was not proper for any court to hear a challenge of his status. It ruled that the broad warmaking powers delegated to the President under Article Two of the United States Constitution and the principle of separation of powers prohibited courts from interfering in this vital area of national security. After the Fourth Circuit denied a petition for rehearing en banc, Hamdi's father appealed to the Supreme Court, which granted review and reversed the Fourth Circuit's ruling.

Hamdi was represented before the Court by the late Federal Public Defender Frank W. Dunham, Jr. and the Government's side was argued by the Principal Deputy Solicitor General, Paul Clement.

The Court's opinions

Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review.

Justice O'Connor wrote a plurality opinion representing the Court's judgment, which was joined by Chief Justice Rehnquist and Justices Breyer and Kennedy. O'Connor wrote that although Congress had expressly authorized the detention of unlawful combatants in its Authorization for Use of Military Force (AUMF) passed after 9/11, due process required that Hamdi have a meaningful opportunity to challenge his detention. However, Justice O'Connor used the three-prong test of Mathews v. Eldridge to limit the due process to be received. This required notice of the charges and an opportunity to be heard, though because of the burden upon the Executive of ongoing military conflict, normal procedural protections such as placing the burden of proof on the government or the ban on hearsay need not apply. O'Connor suggested the Department of Defense create fact-finding tribunals similar to the AR 190-8 to determine whether a detainee merited continued detention as an enemy combatant. The United States Department of Defensemarker created Combatant Status Review Tribunals in response, modeling them after the AR 190-8. O'Connor did not write at length on Hamdi's right to an attorney, because by the time the Court rendered its decision, Hamdi had already been granted access to one. However, O'Connor did write that Hamdi "unquestionably has the right to access to counsel in connection with the proceedings on remand."The plurality held that judges need not be involved in reviewing these cases, rather only an impartial decision maker was required.

Justice David Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality's judgment that due process protections must be available for Hamdi to challenge his status and detention, providing a majority for that part of the ruling. However, they dissented from the plurality's ruling that AUMF established Congressional authorization for the detention of unlawful combatants.

Justice Antonin Scalia's dissent, joined by Justice John Paul Stevens, went the furthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus (a power provided for under the Constitution only in times of "invasion" or "rebellion", which had not happened); or Hamdi must be tried under normal criminal law. Scalia wrote that the plurality, though well meaning, had no basis in law for trying to establish new procedures that would be applicable in a challenge to Hamdi's detention—it was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention.

Justice Clarence Thomas was the only justice who sided entirely with the executive branch and the Fourth Circuit's ruling, based on his view of the security interests at stake and the President's broad war-making powers. Thomas wrote that the Court's rationale would also require due process rights for bombing targets: "Because a decision to bomb a particular target might extinguish life interests, the plurality’s analysis seems to require notice to potential targets." Thomas also wrote that Congress intended that the AUMF authorized such detentions.

Effect on non-citizen detainees

Although by the terms used in the Court's holdings they were apparently limited to "citizen-detainees," the last paragraph of section III, D of the O'Connor plurality (four justices: O'Connor, Rehnquist, Kennedy, and Breyer) relies on the Geneva Convention and states that Habeas Corpus should be available to an "alleged enemy combatant." Based on that language and Court's holding in the case of Rasul v. Bush (issued on the same day as Hamdi, but limited solely to the holding that U.S. courts have jurisdiction to hear habeas corpus petitions filed by the Guantanamo detainees), the government conceded that some very limited due process rights allowing for hearings to determine the detainees' status as enemy combatants and the right to legal counsel would be extended to all of the Guantanamo detainees, citizen and non-citizen alike. The application of the Court's decisions in these cases is not inconsistent with the fact that the other two justices in the Hamdi majority, as well as two of the dissenting justices (Scalia and Stevens) were even more restrictive in their willingness to concede any of the detention powers requested by the government for Guantanamo detainees in the Hamdi case.

In regard to the detention of detainees without charge, in section I of the O'Connor plurality opinion the plurality relied on the time-honored traditions of war, the Geneva Convention, and a long list of other international treaties, to hold that the government had authority under the Authorization for Use of Military Force enacted by Congress in 2001 shortly after the 9/11 terrorist attacks to hold any enemy combatants until the cessation of hostilities (not indefinitely). The plurality held that such protective detention could be applied to both citizen and non-citizen enemy combatants. Of the four justices outside the plurality, Justices Ginsberg and Souter limited their opinions to their position that Section 4001(a) of Title 18 of the United States Code (the Non-Detention Act; enacted to prevent the sort of detention that occurred when the United States placed Japanese-American citizens in concentration camps during World War II) prevented the detention of U.S. citizens. Justice Scalia (whose opinion was joined by Justice Stevens), restricted his holding to citizen-detainees and implied that anyone held outside of United States' territory might be beyond the reach of the Court altogether. Again, the Rasul case did not directly address the detention issue, and any hearings would be limited to the determination of enemy combatant status.

In the subsequent case of Hamdan v. Rumsfeld, the Court decided that the "military commissions" created to try enemy combatants for war crimes suffered from certain fatal procedural defects under the Uniform Code of Military Justice and the Geneva Convention and were without other legal authority to proceed, despite Congress' attempt to deprive the Court of jurisdiction to decide that issue by passing the Detainee Treatment Act. Justices in the majority (particularly Justices Kennedy and Breyer) disagreed with Justice Stevens as to whether the "charge" of conspiracy could be maintained to justify the determination of enemy combatant status. Although the Court struck down the military commissions as created by the Executive Branch, they did not provide the detainees with direct access to the federal courts, but only with access to a fair and impartial hearing to a tribunal constitutionally authorized by Congress and proceeding with certain due process guarantees (such as one operated under terms similar to those provided by Article I courts under the UCMJ or according to the terms of the Third Geneva Convention of 1949).

See also


  1. Kathleen M. Sullivan and Gerald Gunther "Constitutional Law: Sixteenth Edition" (Foundation Press: New York, 2007) 273.

Further reading

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