Hamdi, a U.S. citizen being detained as an unlawful enemy combatant, challenged the legality of his detention. The Court rejected his argument that the President lacked authority to detain citizen enemy combatants, holding that Congress’s enactment of the 2001 AUMF authorized the President to do so. But the Court agreed with Hamdi that due process entitled a U.S. citizen who was detained in the United States as an enemy combatant to a meaningful opportunity to challenge his designation as an enemy combatant before a neutral decision maker. Hamdi was decided the same day as Rasul, which held that federal courts have jurisdiction to consider enemy aliens’ challenges to the legality of their detention at Guantanamo as unlawful enemy combatants.
After the U.S. District Court for the Eastern District of Virginia appointed a federal public defender to represent Hamdi, the Government moved to dismiss his habeas petition. In support of that motion, the Government submitted a declaration from Special Advisor to the Under Secretary of Defense for Policy Michael Mobbs. The Mobbs Declaration “set forth . . . the sole evidentiary support” for Hamdi’s status as an unlawful enemy combatant. Relying on his involvement in the detention of enemy combatants and familiarity with the “facts and circumstances” of Hamdi’s capture, Mobbs said that Hamdi “traveled to Afghanistan” in July or August 2001, “affiliated with a Taliban military unit and received weapons training,” and was with his unit when it “surrendered” to the coalition forces. The District Court found that this declaration fell “far short” of supporting Hamdi’s detention and criticized the “generic and hearsay nature of the affidavit” as “little more than the [G]overnment’s say-so.’” As a result, the District Court ordered the Government to produce numerous materials for in camera review to determine whether Hamdi’s detention was legally authorized and whether he had received due process.
Because the Government wanted to appeal this interlocutory production order, the District Court certified the question of whether the Mobbs Declaration, by itself, was enough to provide Hamdi with meaningful judicial review of his detention. The Fourth Circuit reversed and directed the District Court to deny Hamdi’s habeas petition. Because it was “undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict,” the Mobbs Declaration, if accurate, was enough to support Hamdi’s detention, and federal courts could not “delve further into Hamdi’s status and capture.” The Fourth Circuit also rejected Hamdi’s argument that the President lacked statutory authority to detain citizen enemy combatants and rejected Hamdi’s argument that his U.S. citizenship entitled him to “more searching” judicial review of his detention than an enemy alien would receive. Hamdi petitioned the Supreme Court for a writ of certiorari, which it granted.
Following al Qaeda’s September 11, 2001 terrorist attacks on the World Trade Center in New York City and the Pentagon in Virginia, Congress authorized the President to “use all necessary and appropriate force” against those responsible to prevent them from committing “any future acts of international terrorism against the United States.” [LINK TO 2001 AUMF] The President determined that the Taliban regime in Afghanistan had supported al Qaeda and ordered the Armed Forces to invade Afghanistan. During this invasion, hundreds of individuals, including Yaser Esam Hamdi, were captured.
The Government initially detained and interrogated Hamdi in Afghanistan before transferring him to the U.S. naval base at Guantanamo Bay, Cuba, for detention. In April 2002, the Government learned that Hamdi was a U.S. citizen originally born in Louisiana, so it transferred him to a naval brig within the United States (first in Norfolk, Virginia, and then in Charleston, South Carolina). Believing Hamdi to be an “enemy combatant” who had received military training from and joined forces with the Taliban, the Government detained him without charging him with a crime or giving him any opportunity to contest his designation as an unlawful enemy combatant.
In June 2002, Hamdi’s father challenged the legality of his son’s detention by filing a petition for writ of habeas corpus on his son’s behalf. According to Hamdi’s father, his son traveled to Afghanistan less than two months before September 11, 2001, to do “relief work.” Once there, he was “trapped in Afghanistan once [the U.S.] military campaign began.”
After the Supreme Court’s decision, the Government released Hamdi without charges and deported him to Saudi Arabia, where his family still lived and he had grown up, in exchange for renouncing his U.S. citizenship.
Although a fractured opinion, six justices (the plurality joined by Justices Souter and Ginsburg) agreed to remand the case for Hamdi to receive the procedural protections required by due process. Justices Scalia and Stevens would have granted Hamdi’s habeas petition, while Justice Thomas would have denied Hamdi’s habeas petition.
Plurality (O’Connor, joined by Rehnquist, Kennedy, and Breyer)
A plurality of the Supreme Court—Justice O’Connor, joined by Chief Justice Rehnquist and Justices Kennedy and Breyer—ultimately held that (1) the 2001 Authorization for Use of Military Force [LINK] explicitly authorized the President to detain both citizen and non-citizen enemy combatants, but (2) due process requires that “a citizen held in the United States as an enemy combatant”—such as Hamdi—“be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.”
The plurality rejected Hamdi’s argument that the Non-Detention Act [LINK] prohibited his detention. The Non-Detention Act states that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Although the Government argued that the President had inherent constitutional authority under Article II to detain enemy combatants and that the Non-Detention Act does not apply to military detentions, the plurality did not address either argument. Rather, the plurality held that Hamdi was being detained “pursuant to an Act of Congress”—the 2001 AUMF. The 2001 AUMF authorized the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001 terrorist attacks. As the plurality explained, because the “purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again,” detention is “so fundamental and accepted [as] an incident to war” that it is part of “all necessary and appropriate force.”
Hamdi claimed that such authority would authorize “indefinite” detention, but the plurality did not share that concern. As the plurality explained, because the purpose of detaining enemy combatants under the 2001 AUMF is limited to preventing them from returning to battle, the President may lawfully detain enemy combatants for the duration of the conflict in which they were captured (although the plurality acknowledged that indefinite hostilities may call for different treatment). As a result, the 2001 AUMF did not authorize indefinite detention for the purpose of interrogation.
But even though the President was authorized to detain citizen and non-citizen enemy combatants, the plurality agreed with Hamdi that after capture, due process required a meaningful opportunity for the detainee to challenge his designation as an enemy combatant. The Government argued that a habeas court could decide whether the President had legal authority to detain a citizen enemy combatant, but not the correctness of the President’s designation of an individual as an enemy combatant. According to the Government, court had to deny habeas relief so long as the President’s designation was supported by “some evidence.”
The plurality rejected the Government’s “heavily circumscribed role” for the courts because due process did not permit a “state of war” to be a “blank check for the President when it comes to the rights of the Nation’s citizens.” Applying the Mathews v. Eldridge [LINK] balancing test, the plurality held that “substantial interest lie on both sides of the scale.” On one hand, Hamdi’s interest in “being free from physical detention by one’s own government” is the “most elemental of liberty interests” and carries the “very real” risk of an erroneous designation as enemy combatant. On the other hand, the Government had a “weighty and sensitive . . . interest in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.” And the general federal habeas statute (28 U.S.C. § 2241 et seq.) [LINK] confirmed that habeas courts had a role to play—that “habeas petitioners would have some opportunity to present and rebut facts and that courts . . . retain some ability to vary the ways in which they do so as mandated by due process.”
Just what procedures are required? The plurality said that, at a minimum, the detainee must have a fair opportunity to rebut the Government’s evidence of his enemy combatant status before a neutral decisionmaker (though not necessarily a judge). Justice O’Connor suggested that the Government establish fact-finding tribunals. But the plurality did not require all the trappings of a standard federal criminal trial: for example, it said that hearsay could be admitted, and courts could start with a presumption in favor of the Government’s evidence, leaving the detainee with the burden of proof. Because Hamdi had been provided counsel by the time the Supreme Court issued its decision, the plurality did not discuss Hamdi’s right to an attorney except to note that Hamdi “unquestionably has the right to access to counsel in connection with the proceedings on remand.” The plurality stressed that it was deciding only the narrow case of a citizen falling within the Government’s definition of enemy combatant as “part of or supporting forces hostile to the United States or coalition partners” who is “engaged in armed conflict against the United States.” The plurality (with Justices Souter’s and Ginsburg’s concurrence in the judgment) thus remanded Hamdi’s case to apply these procedural protections.
Dissent (Scalia, joined by Stevens)
In dissent, Justice Scalia (joined by Justice Stevens) would have provided Hamdi with the greatest procedural protections. Justice Scalia would have granted Hamdi’s petition for habeas corpus and released him. Justice Scalia concluded that “[a]bsent suspension of the writ [of habeas corpus], a citizen held where the courts are open is entitled either to a criminal trial or to a judicial decree requiring his release.” Thus, due process gives the Government three choices in detaining citizens: (1) detain Hamdi and charge him using standard criminal process, (2) suspend the writ of habeas corpus, or (3) release him.
The Government had not charged Hamdi with any crime or tried him using standard criminal process. And as everyone agrees, the 2001 AUMF does not suspend habeas corpus. As a result, Justice Scalia concluded that due process requires Hamdi’s release.
As Justice Scalia explained, the original meaning of the Due Process Clause “was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property.” For deprivations of liberty due to criminal allegations, those procedures usually required hearing by magistrate plus indictment and trial. And historically, citizens have used the writ of habeas corpus to challenge their executive detention without judicial process. Of course, “[t]here are times when military exigency renders resort to the traditional criminal process impracticable,” which the Constitution accommodates by permitting Congress to temporarily suspend the writ of habeas corpus “in Cases of Rebellion or Invasion” when “the public Safety may require it.” But when Congress had not done so, due process required the Government to provide standard criminal procedural protections to a detained citizen, and if the Government did not do so, then a court would issue a writ of habeas corpus and release the citizen.
Given that background, Justice Scalia asked whether “there is a different, special procedure for imprisonment of a citizen accused of wrongdoing by aiding the enemy in wartime” as opposed to “ordinary accusations of criminal activity.” Not according to Justice Scalia. Although he agreed with the plurality that “captured enemy combatants (other than those suspected of war crimes) have traditionally been detained until cessation of hostilities and then released,” Justice Scalia said that tradition was involved only enemy aliens—not citizens. “Citizens aiding the enemy have been treated as traitors subject to the criminal process.” To be sure, Ex parte Quirin [LINK] upheld the military-commission trial of eight German saboteurs, one of whom was an American citizen [LINK TO Haupt v. United States]. Calling Ex parte Quirin “not this Court’s finest hour,” Justice Scalia distinguished the case, saying that it misinterpreted earlier precedent and that the American citizen there (unlike Hamdi) had conceded he was part of the enemy forces. For Justice Scalia, due process thus distinguished between citizens and non-citizens.
He acknowledged that it was theoretically possible that this choice between criminal process and release may not be mandatory. But he rejected any possibility that would give the President indefinite wartime detention authority over citizens based on the “Founders’ general mistrust of military power permanently at the Executive’s disposal.” And he rejected the plurality’s attempt to make illegal detention legal by supplying a process that the Government could have provided, but chose not to. For Justice Scalia, “[t]he role of habeas corpus is to determine the legality of executive detention, not to supply the omitted process necessary to make it legal.” In short, he faulted the plurality for “making up for Congress’s failure to invoke the Suspension Clause” and “for the Executive’s failure to apply what it says are needed procedures.”
Justice Thomas dissented and would have sided entirely with the President. In his view, courts could determine whether the executive has constitutional and/or statutory authority to detain enemy combatants, but were impotent to review the President’s designation of a particular citizen as an enemy combatant. The judiciary simply lacks the institutional expertise and information to “second-guess” the President’s determination.
As to the question of the President’s authority to detain citizen enemy combatants, Justice Thomas agreed with the plurality that Congress authorized the President to do so in the 2001 AUMF. Like the plurality, he did not need to decide whether the President also had inherent constitutional authority to detain citizen enemy combatants.
Justice Thomas concluded that Hamdi was not constitutionally entitled to any process, “at least while hostilities continue.” The President’s authority to detain enemy combatants “includes making virtually conclusive factual findings,” and “[i]n this context, due process requires nothing more than a good-faith executive determination” of a detainee’s enemy combatant status. He based this conclusion partially on precedent permitting the President to “unilaterally decide to detain an individual if the executive deems this necessary for the public safety even if he is mistaken.” Judicial second-guessing would undermine the Founder’s decision to imbue the President with “unity, secrecy, and dispatch.”
In any event, Justice Thomas disagreed with the plurality’s balancing on its own terms because the plurality gave short shrift to the Government’s interest in ensuring “the security of the Nation”—the most compelling interest possible. Justice Thomas accepted the Government’s arguments that giving citizen detainees additional process would undermine intelligence collection by diverting military resources to litigate these cases and by requiring the Government to divulge “highly classified information to the purported enemy combatant, who might then upon release return to the fight armed with our most closely held secrets.” According to Justice Thomas, there is no difference between detention and other “central functions of warmaking,” such as the CIA’s then-recent use of a Predator drone to kill a U.S. citizen, al Qaeda leader, and four others in Yemen. Even the plurality, Justice Thomas surmised, would agree that the U.S. citizen was not entitled to any process before being bombed, and the same should be true for detention. Consequently, Justice Thomas would have denied Hamdi’s petition for habeas corpus.
Partial concurrence, partial dissent, and concurrence in judgment (Souter, joined by Ginsburg)
Justice Souter, joined by Justice Ginsburg, would have granted Hamdi’s habeas petition and released him. Like the plurality and unlike Justice Thomas, Justice Souter agreed that federal courts may hear Hamdi’s habeas challenge and review the President’s designation of Hamdi as an enemy combatant. But unlike the plurality, Justice Souter concluded that even if Hamdi were correctly designated an enemy combatant, the President lacked statutory authority to detain enemy combatants.
According to Justice Souter, the Non-Detention Act required Hamdi’s release because he was not detained, as the statute required, “pursuant to an Act of Congress.” Justice Souter rejected the Government’s threshold argument the Non-Detention Act applied only to criminal detentions and not to military wartime detentions. Neither the text nor the legislative history of the Non-Detention Act limited it in any way, much less to the criminal sphere.
Applying the Non-Detention Act here, Justice Souter concluded that the Act required an explicit statement by Congress authorizing detention. After all, Congress had enacted the Non-Detention Act against the backdrop of a judicial “interpretative regime that subjected enactments limiting liberty in wartime to the requirement of a clear statement.” For Justice Souter, the 2001 AUMF failed that test: Its focus was “on the use of military power” and was “fairly read to authorize the use of armies and weapons.” But the 2001 AUMF “never so much as uses the word detention, and there is no reason to think Congress might have perceived any need to augment Executive power to deal with dangerous citizens within the United States, given the well-stocked statutory arsenal of” the federal criminal law. In response, the Government argued that the 2001 AUMF’s authorization of military force in acts of war granted the President, as Commander in Chief, the power to “deal with enemy belligerents according to . . . the [international] laws of war,” including the “customary detention of a captive taken on the field of battle.” But Justice Souter rejected that argument because the Government “obviously has not been treating him as a prisoner of war, and in fact . . . claims that no Taliban detainee is entitled to prisoner of war status.” As a result, the 2001 AUMF did not authorize the President to detain enemy combatants.
Justice Souter did not address the Government’s “hints of a constitutional challenge” to the Non-Detention Act and therefore did not decide whether the President had “inherent, extrastatutory authority under . . . Article II of the Constitution and the usages of war” to detain enemy combatants. Justice Souter did, however, suggest that the President lacked such inherent authority under the Youngstown [LINK] framework in Justice Jackson’s concurrence because the President was acting contrary to Congress’s pronouncement in the Non-Detention Act and his authority was thus “at its lowest ebb.”
Consequently, Justice Souter concluded that Hamdi should be released because the President lacked statutory authority to detain citizen enemy combatants, and he would not reach any questions of due process. But because his conclusion did “not command a majority of the Court,” Justice Souter joined the plurality in result to “give practical effect to the conclusions of eight” Justices rejecting the Government’s position. He thus concurred in the plurality’s decision to remand the case.