Hamdi
v. Rumsfeld
___
http://laws.findlaw.com/US/000/03-6696.html
Oral arguments may be found at: www.oyez.org/oyez/frontpage
On the question of the validity of Hamdi’s detention:
Vote: 5 (Breyer, Kennedy, O’Connor, Rehnquist,
Thomas)
4 (Ginsburg, Scalia, Souter, Stevens)
On the question of the Hamdis’ access to courts and lawyers:
Vote: 8 (Breyer, Ginsburg, Kennedy, O’Connor,
Rehnquist, Scalia, Souter, Stevens)
1 (Thomas)
Opinion announcing the judgment of the Court: O’Connor
Opinion concurring in part, dissenting in part, and
concurring in judgment: Souter
Dissenting opinions: Scalia, Thomas
One week after the
During this military effort, Afghan
elements supporting the
In June 2002 Hamdi’s father, Esam
Fouad Hamdi, filed a petition for habeas corpus on behalf of his son against
Defense Secretary Donald Rumsfeld, claiming the continued detention without
formal charges or access to lawyers or the courts violated the younger Hamdi’s
constitutional right to due process of law. Hamdi’s father argued that his son
was not engaged in military activity but had gone to
After a series of hearings at the
district and circuit court levels, the Court of Appeals for the Fourth Circuit
ruled in favor of the government’s position, holding that Hamdi could be
detained and was only entitled to the limited judicial determination of whether
the government had acted properly under its war powers.
justice o’connor announced the judgment of the Court
and delivered an opinion, in which the
chief justice, justice kennedy, and justice
breyer join.
At this difficult time in
our Nation’s history, we are called upon to consider the legality of the
Government’s detention of a
The threshold question
before us is whether the Executive has the authority to detain citizens who
qualify as “enemy combatants.” There is some debate as to the proper scope of
this term, and the Government has never provided any court with the full
criteria that it uses in classifying individuals as such. It has made clear, however,
that, for purposes of this case, the “enemy combatant” that it is seeking to
detain is an individual who, it alleges, was “‘part of or supporting forces
hostile to the United States or coalition partners’” in Afghanistan and who
“‘engaged in an armed conflict against the United States’” there. We therefore
answer only the narrow question before us: whether the detention of citizens
falling within that definition is authorized.
The Government maintains
that no explicit congressional authorization is required, because the Executive
possesses plenary authority to detain pursuant to Article II of the
Constitution. We do not reach the question whether Article II provides such
authority, however, because we agree with the Government’s alternative position,
that Congress has in fact authorized Hamdi’s detention, through the AUMF [the
Authorization for Use of Military Force resolution]….
The AUMF authorizes the
President to use “all necessary and appropriate force” against “nations, organizations,
or persons” associated with the
The capture and detention of lawful
combatants and the capture, detention, and trial of unlawful combatants, by
“universal agreement and practice,” are “important incident[s] of war.” Ex parte Quirin [1942]. The purpose of detention is
to prevent captured individuals from returning to the field of battle and
taking up arms once again….
There is no bar to this Nation’s
holding one of its own citizens as an enemy combatant. In Quirin, one of
the detainees, Haupt, alleged that he was a naturalized
In light of these
principles, it is of no moment that the AUMF does not use specific language of
detention. Because detention to prevent a combatant’s return to the battlefield
is a fundamental incident of waging war, in permitting the use of “necessary
and appropriate force,” Congress has clearly and unmistakably authorized
detention in the narrow circumstances considered here.
Hamdi objects, nevertheless, that
Congress has not authorized the indefinite detention to which he is now
subject.… As the Government concedes, “given its unconventional nature, the
current conflict is unlikely to end with a formal cease-fire agreement.” The
prospect Hamdi raises is therefore not far-fetched. If the Government does not
consider this unconventional war won for two generations, and if it maintains
during that time that Hamdi might, if released, rejoin forces fighting against
the
It is a clearly
established principle of the law of war that detention may last no longer than
active hostilities.
Hamdi contends that the AUMF does not
authorize indefinite or perpetual detention. Certainly, we agree that
indefinite detention for the purpose of interrogation is not authorized.
Further, we understand Congress’ grant of authority for the use of “necessary
and appropriate force” to include the authority to detain for the duration of
the relevant conflict, and our understanding is based on longstanding
law-of-war principles. If the practical circumstances of a given conflict are
entirely unlike those of the conflicts that informed the development of the law
of war, that understanding may unravel. But that is not the situation we face
as of this date. Active combat operations against Taliban fighters apparently
are ongoing in
Ex parte Milligan (1866), does
not undermine our holding about the Government’s authority to seize enemy
combatants, as we define that term today. In that case, the Court made repeated
reference to the fact that its inquiry into whether the military tribunal had
jurisdiction to try and punish Milligan turned in large part on the fact that
Milligan was not a prisoner of war, but a resident of Indiana arrested while at
home there. That fact was central to its conclusion. Had Milligan been captured
while he was assisting Confederate soldiers by carrying a rifle against Union
troops on a Confederate battlefield, the holding of the Court might well have
been different. The Court’s repeated explanations that Milligan was not a
prisoner of war suggest that had these different circumstances been present he
could have been detained under military authority for the duration of the
conflict, whether or not he was a citizen….
Even in cases in which
the detention of enemy combatants is legally authorized, there remains the
question of what process is constitutionally due to a citizen who disputes his
enemy-combatant status….
Though they reach
radically different conclusions on the process that ought to attend the present
proceeding, the parties begin on common ground. All agree that, absent suspension,
the writ of habeas corpus remains available to every individual detained within
the
… [A]s critical as the Government’s
interest may be in detaining those who actually pose an immediate threat to the
national security of the United States during ongoing international conflict,
history and common sense teach us that an unchecked system of detention carries
the potential to become a means for oppression and abuse of others who do not
present that sort of threat. See Ex parte Milligan.… We reaffirm today the
fundamental nature of a citizen’s right to be free from involuntary confinement
by his own government without due process of law, and we weigh the opposing
governmental interests against the curtailment of liberty that such confinement
entails.
On the other side of the scale are
the weighty and sensitive governmental interests in ensuring that those who
have in fact fought with the enemy during a war do not return to battle against
the United States.… [T]he law of war and the realities of combat may render
such detentions both necessary and appropriate, and our due process analysis
need not blink at those realities. Without doubt, our Constitution recognizes
that core strategic matters of warmaking belong in the hands of those who are
best positioned and most politically accountable for making them.
The Government also
argues at some length that its interests in reducing the process available to
alleged enemy combatants are heightened by the practical difficulties that
would accompany a system of trial-like process. In its view, military officers
who are engaged in the serious work of waging battle would be unnecessarily and
dangerously distracted by litigation half a world away,
and discovery into military operations would both intrude on the sensitive
secrets of national defense and result in a futile search for evidence buried
under the rubble of war. To the extent that these burdens are triggered by
heightened procedures, they are properly taken into account in our due process
analysis.
Striking the proper constitutional
balance here is of great importance to the Nation during this period of ongoing
combat. But it is equally vital that our calculus not give short shrift to the
values that this country holds dear or to the privilege that is American
citizenship. It is during our most challenging and uncertain moments that our
Nation’s commitment to due process is most severely tested; and it is in those
times that we must preserve our commitment at home to the principles for which
we fight abroad….
We therefore hold that a
citizen-detainee seeking to challenge his classification as an enemy combatant
must receive notice of the factual basis for his classification, and a fair
opportunity to rebut the Government’s factual assertions before a neutral
decisionmaker. These essential constitutional promises may not be eroded.
At the same time, the
exigencies of the circumstances may demand that, aside from these core
elements, enemy combatant proceedings may be tailored to alleviate their
uncommon potential to burden the Executive at a time of ongoing military
conflict. Hearsay, for example, may need to be accepted as the most reliable
available evidence from the Government in such a proceeding. Likewise, the
Constitution would not be offended by a presumption in favor of the
Government’s evidence, so long as that presumption remained a rebuttable one
and fair opportunity for rebuttal were provided. Thus,
once the Government puts forth credible evidence that the habeas petitioner
meets the enemy-combatant criteria, the onus could shift to the petitioner to
rebut that evidence with more persuasive evidence that he falls outside the
criteria. A burden-shifting scheme of this sort would meet the goal of ensuring
that the errant tourist, embedded journalist, or local aid worker has a chance
to prove military error while giving due regard to the Executive once it has
put forth meaningful support for its conclusion that the detainee is in fact an
enemy combatant….
We think it unlikely that this basic
process will have the dire impact on the central functions of warmaking that
the Government forecasts. The parties agree that initial captures on the
battlefield need not receive the process we have discussed here; that process
is due only when the determination is made to continue to hold those who
have been seized…. While we accord the greatest respect and consideration to
the judgments of military authorities in matters relating to the actual
prosecution of a war, and recognize that the scope of that discretion
necessarily is wide, it does not infringe on the core role of the military for
the courts to exercise their own time-honored and constitutionally mandated
roles of reviewing and resolving claims like those presented here….
In so holding, we necessarily reject
the Government’s assertion that separation of powers
principles mandate a heavily circumscribed role for the courts in such
circumstances. Indeed, the position that the courts must forgo any examination
of the individual case and focus exclusively on the legality of the broader
detention scheme cannot be mandated by any reasonable view of separation of
powers, as this approach serves only to condense power into a single
branch of government. We have long since made clear that a state of war is not
a blank check for the President when it comes to the rights of the Nation’s
citizens…. Likewise, we have made clear that, unless Congress acts to suspend
it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary
role in maintaining this delicate balance of governance, serving as an
important judicial check on the Executive’s discretion in the realm of
detentions….
… Plainly, the “process” Hamdi has
received is not that to which he is entitled under the Due Process Clause.
There remains the
possibility that the standards we have articulated could be met by an
appropriately authorized and properly constituted military tribunal….
Hamdi asks us to hold that
the Fourth Circuit also erred by denying him immediate access to counsel upon
his detention and by disposing of the case without permitting him to meet with
an attorney. Since our grant of certiorari in this case, Hamdi has been
appointed counsel, with whom he has met for consultation purposes on several
occasions, and with whom he is now being granted unmonitored meetings. He
unquestionably has the right to access to counsel in connection with the
proceedings on remand. No further consideration of this issue is necessary at
this stage of the case.
The judgment of the United States
Court of Appeals for the Fourth Circuit is vacated, and the case is remanded
for further proceedings.
It is so
ordered.
justice souter, with whom justice ginsburg joins, concurring in part, dissenting in
part, and concurring in the judgment.
… The plurality [accepts]
the Government’s position that if Hamdi’s designation as an enemy combatant is
correct, his detention (at least as to some period) is authorized by an Act of
Congress as required by … the Authorization for Use of Military Force. Here, I
disagree and respectfully dissent. The Government has failed to demonstrate
that the Force Resolution authorizes the detention complained of here even on
the facts the Government claims. If the Government raises nothing further than
the record now shows, the Non-Detention Act [prohibiting the detention of
citizens except pursuant to an Act of Congress] entitles Hamdi to be released….
… Since the Force
Resolution was adopted one week after the attacks of
Because I find Hamdi’s
detention … unauthorized by the Force Resolution, I would not reach any
questions of what process he may be due in litigating disputed issues in a
proceeding under the habeas statute or prior to the habeas enquiry itself. For
me, it suffices that the Government has failed to justify holding him in the
absence of a further Act of Congress, criminal charges, [or] a showing that the
detention conforms to the laws of war….
Since this disposition
does not command a majority of the Court, however, the need to give practical
effect to the conclusions of eight members of the Court rejecting the
Government’s position calls for me to join with the plurality in ordering
remand on terms closest to those I would impose. Although I think litigation of
Hamdi’s status as an enemy combatant is unnecessary, the terms of the
plurality’s remand will allow Hamdi to offer evidence that he is not an enemy
combatant, and he should at the least have the benefit of that opportunity.
It should go without
saying that in joining with the plurality to produce a judgment, I do not adopt
the plurality’s resolution of constitutional issues that I would not reach. It
is not that I could disagree with the plurality’s determinations (given the
plurality’s view of the Force Resolution) that someone in Hamdi’s position is
entitled at a minimum to notice of the Government’s claimed factual basis for
holding him, and to a fair chance to rebut it before a neutral decision maker;
nor, of course, could I disagree with the plurality’s affirmation of Hamdi’s
right to counsel. On the other hand, I do not mean to imply agreement that the
Government could claim an evidentiary presumption casting the burden of
rebuttal on Hamdi or that an opportunity to litigate before a military tribunal
might obviate or truncate enquiry by a court on habeas.
Subject to these
qualifications, I join with the plurality in a judgment of the Court vacating
the Fourth Circuit’s judgment and remanding the case.
justice
scalia, with whom justice stevens joins, dissenting.
… This case brings into
conflict the competing demands of national security and our citizens’ constitutional
right to personal liberty. Although I share the Court’s evident unease as it
seeks to reconcile the two, I do not agree with its resolution.
Where the Government
accuses a citizen of waging war against it, our constitutional tradition has
been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s
Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the
usual protections temporarily. Absent suspension, however, the Executive’s
assertion of military exigency has not been thought sufficient to permit
detention without charge. No one contends that the congressional Authorization
for Use of Military Force, on which the Government relies to justify its
actions here, is an implementation of the Suspension Clause. Accordingly, I
would reverse the decision below.…
justice
o’connor, writing for a
plurality of this Court, asserts that captured enemy combatants (other than
those suspected of war crimes) have traditionally been detained until the
cessation of hostilities and then released. That is probably an accurate
description of wartime practice with respect to enemy aliens. The
tradition with respect to American citizens, however, has been quite different.
Citizens aiding the enemy have been treated as traitors subject to the criminal
process....
There are times when
military exigency renders resort to the traditional criminal process
impracticable. English law accommodated such exigencies by allowing legislative
suspension of the writ of habeas corpus for brief periods….
Where the Executive has not pursued
the usual course of charge, committal, and conviction, it has historically
secured the Legislature’s explicit approval of a suspension. In
Our Federal Constitution
contains a provision explicitly permitting suspension, but limiting the
situations in which it may be invoked: “The privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.” Art. I, §9, cl. 2.
Although this provision does not state that suspension must be effected by, or
authorized by, a legislative act, it has been so understood, consistent with
English practice and the Clause’s placement in Article I….
Writings from the
founding generation also suggest that, without exception, the only
constitutional alternatives are to charge the crime or suspend the writ….
… [T]he reasoning and conclusion of [Ex
parte] Milligan logically cover the present case. The Government
justifies imprisonment of Hamdi on principles of the law of war and admits
that, absent the war, it would have no such authority. But if the law of war
cannot be applied to citizens where courts are open, then Hamdi’s imprisonment
without criminal trial is no less unlawful than Milligan’s trial by military
tribunal….
The proposition that the
Executive lacks indefinite wartime detention authority over citizens is
consistent with the Founders’ general mistrust of military power permanently at
the Executive’s disposal….
… Hamdi is entitled to a habeas
decree requiring his release unless (1) criminal proceedings are promptly
brought, or (2) Congress has suspended the writ of habeas corpus. A suspension
of the writ could, of course, lay down conditions for continued detention,
similar to those that today’s opinion prescribes under the Due Process Clause.
But there is a world of difference between the people’s representatives’
determining the need for that suspension (and prescribing the conditions for
it), and this Court’s doing so.
The plurality finds
justification for Hamdi’s imprisonment in the Authorization for Use of Military
Force….
This is not remotely a congressional
suspension of the writ, and no one claims that it is…. The Suspension Clause of
the Constitution, which carefully circumscribes the conditions under which the
writ can be withheld, would be a sham if it could be evaded by congressional
prescription of requirements other than the common-law requirement of
committal for criminal prosecution that render the writ, though available,
unavailing. If the Suspension Clause does not guarantee the citizen that he
will either be tried or released, unless the conditions for suspending the writ
exist and the grave action of suspending the writ has been taken; if it merely
guarantees the citizen that he will not be detained unless Congress by ordinary
legislation says he can be detained; it guarantees him very little indeed….
There is a certain
harmony of approach in the plurality’s making up for Congress’s failure to
invoke the Suspension Clause and its making up for the Executive’s failure to
apply what it says are needed procedures--an approach that reflects what might
be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission
to Make Everything Come Out Right, rather than merely
to decree the consequences, as far as individual rights are concerned, of the
other two branches’ actions and omissions. Has the Legislature failed to
suspend the writ in the current dire emergency? Well, we will remedy that
failure by prescribing the reasonable conditions that a suspension should have
included. And has the Executive failed to live up to those reasonable
conditions? Well, we will ourselves make that failure good, so that this
dangerous fellow (if he is dangerous) need not be set free. The problem with
this approach is not only that it steps out of the courts’ modest and limited
role in a democratic society; but that by repeatedly doing what it thinks the
political branches ought to do it encourages their lassitude and saps the
vitality of government by the people.
Several limitations
give my views in this matter a relatively narrow compass. They apply only to
citizens, accused of being enemy combatants, who are detained within the
territorial jurisdiction of a federal court. This is not likely to be a numerous group…. Where the citizen is captured outside and
held outside the
I frankly do not
know whether these tools are sufficient to meet the Government’s security
needs, including the need to obtain intelligence through interrogation. It is
far beyond my competence, or the Court’s competence, to determine that. But it
is not beyond Congress’s. If the situation demands it, the Executive can ask
Congress to authorize suspension of the writ--which can be made subject to
whatever conditions Congress deems appropriate, including even the procedural
novelties invented by the plurality today. To be sure, suspension is limited by
the Constitution to cases of rebellion or invasion. But whether the attacks of
Many think it not only inevitable but
entirely proper that liberty give way to security in times of national
crisis--that, at the extremes of military exigency, inter arma silent leges.
Whatever the general merits of the view that war silences law or modulates its
voice, that view has no place in the interpretation and application of a Constitution
designed precisely to confront war and, in a manner that accords with
democratic principles, to accommodate it. Because the Court has proceeded to
meet the current emergency in a manner the Constitution does not envision, I
respectfully dissent.
justice
thomas, dissenting.
The Executive Branch,
acting pursuant to the powers vested in the President by the Constitution and
with explicit congressional approval, has determined that Yaser Hamdi is an enemy
combatant and should be detained. This detention falls squarely within the
Federal Government’s war powers, and we lack the expertise and capacity to
second-guess that decision. As such, petitioners’ habeas challenge should fail,
and there is no reason to remand the case. The plurality reaches a contrary
conclusion by failing adequately to consider basic principles of the
constitutional structure as it relates to national security and foreign
affairs…. I do not think that the Federal Government’s war powers can be
balanced away by this Court. Arguably, Congress could provide for additional
procedural protections, but until it does, we have no right to insist upon
them. But even if I were to agree with the general approach the plurality
takes, I could not accept the particulars. The plurality utterly fails to
account for the Government’s compelling interests and for our own institutional
inability to weigh competing concerns correctly. I respectfully dissent.