Hamdi v. Rumsfeld
Americans Captured on the Battlefield Can Be Detained Without Criminal Charges — But They Are Entitled to a Hearing
Yaser Edam Hamdi, a Saudi national born in the United States, and hence an American citizen, was captured in Afghanistan during American combat operations in late 2001. U.S. forces detained him as an “enemy combatant” and soon transferred him to the Naval Station at Guantanamo Bay. When the military learned he was an American citizen, it transferred him once again to a naval brig in Columbia, South Carolina. He has been held there since that time, under the government’s claim that his status as an “enemy combatant” entitles the United States to hold him indefinitely without charge.
Hamdi’s father filed a petition for a writ of habeas corpus seeking counsel to be appointed for Hamdi, a hearing to enable Hamdi to contest the allegations against him, and release from United States custody.
The habeas litigation raised two issues: (1) can the United States detain its citizens as enemy combatants without charging them with a crime and, if so, for how long; and (2) if a detainee contests his enemy combatant status, what manner of habeas corpus review, if any, is he entitled to receive? On the first question, the Fourth Circuit Court of Appeals ruled that enemy combatants could lawfully be detained without criminal charges being brought. Regarding the second question, the government had produced a declaration of the Special Advisor to the Under Secretary for Policy, Michael Mobbs (the Mobbs declaration) that recited the circumstances and conditions under which Hamdi had been seized, based on Mobbs’ review of military records and files. The government argued that deference to the President’s commander-in-chief responsibilities limited judicial review to determining whether the Mobbs declaration recited sufficient facts to justify the enemy combatant classification. The District Court, however, found that the Mobbs declaration fell “far short” of supporting Hamdi’s detention, and ordered the government to produce other documents and information. The United States appealed and the circuit court reversed, holding that the district court’s ruling “went far beyond the acceptable scope of review.” Hamdi petitioned the Supreme Court, which granted the writ of certiorari.
The Court vacated the judgment of the Fourth Circuit and remanded the case for further proceedings in the lower court. In a plurality decision authored by Justice O’Conner with the Chief Justice and Justices Kennedy and Breyer and concurring, the Court sustained the government’s right to hold United States citizens as enemy combatants without criminal charges when they had been seized on the battlefield participating in active hostilities. It also held, however, that the Fourth Circuit’s approach to the question of judicial review afforded Hamdi too little protection, and it outlined in general terms the elements of due process to which Hamdi is entitled.
Regarding the authority to detain enemy combatants, Justice O’Connor was careful to limit the reach of the Court’s conclusion: “For purposes of this case, the enemy combatant that [the government] 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.”
Resolving the dispute over the legality of detaining a United States citizen as an enemy combatant depended on fitting Hamdi’s case into one of Justice Jackson’s famous three Youngstown categories. In Youngstown (the Steel Seizures Cases) Jackson argued that issues involving the executive branch’s authority to act could be meaningfully distinguished depending upon whether Congress had expressly or impliedly authorized the act, whether it was silent on the matter, or whether its expressed or implied will was incompatible with the act. Cases in the first category reduce to the question of whether the federal government as a whole has the constitutional power to act, because Congress and the President are acting in concert. Cases falling into the second and third categories present issues of so-called inherent presidential powers. Of these, the third category presents the most vexing questions, because a President who asserts his authority to act even in the face of congressional opposition will always be in some conflict with the otherwise pervasive constitutional system of checks and balances.
In Hamdi, as in the Padilla decision that the Court announced on the same day, the government asserted exclusive presidential authority to detain United States citizens, even in the face of congressional opposition. In both cases, it also argued that the Court need not reach the issue of exclusive executive authority because Congress had in fact authorized such detentions in the Authorization on the Use of Military Force (AUMF), enacted shortly after September 11, 2001, which authorizes the President to use all “necessary and appropriate force” to prevent those who planned or aided in the September 11th attacks from attacking in the future. Hamdi’s father argued that, to the contrary, Congress had acted to prevent such detentions when it enacted the Non-Detention Act, 18 USC § 4001(a), some 50 years ago. That Act provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” In terms of Justice Jackson’s three categories, then, the government in effect asserted that Hamdi and Padilla ought to be analyzed by the Court as category one cases, in which the President’s power is at its “apogee” because the President and Congress are acting in concert. The government also argued that if the Court found this to be a category two or three situation–either because Congress has been silent on the action, or even because Congress has opposed the action–the President has the authority to detain United States citizens anyway.
Ultimately, Hamdi did not reach questions of inherent presidential authority, because the plurality found in the AUMF sufficient statutory authority to authorize Hamdi’s detention. (The Padilla decision avoided Youngstown issues entirely because it concluded that Padilla had filed his habeas petition in the wrong district court.) The key element of the Court’s statutory reasoning was that the AUMF was a sufficient authorization of battlefield detentions to satisfy § 4001(a), because the detention of enemies seized on the battlefield was sufficiently related to the conduct of the military action contemplated by the authorization that it was an “exercise of ‘necessary and appropriate force.’”
In a partial concurrence, Justices Souter and Ginsburg disagreed with this analysis, reasoning that § 4001(a) required a more specific congressional authorization than could be found in the AUMF. Justices Souter and Ginsburg also specifically rejected the government’s assertion of the “inherent, extrastatutory authority under a combination of Article II of the Constitution and the usages of war,” recalling Justice Jackson’s observation that “the President is not Commander in Chief of the country, only of the military.” They conceded that there may be room for the executive to take the power to act against an imminent threat, but dismissed the possibility that this was such a case, as Hamdi had been detained for more than two years.
On the other hand, Justice Thomas in dissent found ample grounds to sustain the detention of Hamdi. In addition to agreeing with the plurality’s assessment that the AUMF constituted Congressional authorization for the president to detain, Justice Thomas also concluded that the President’s commander-in-chief powers vested him with sufficient authority to sustain the detention. The combination of the plurality and Justice Thomas produced five votes to uphold Hamdi’s detention, and thus explains the concurrence by Justice Souter and Ginsburg. Once they realized that Hamdi’s detention would be upheld, they concurred in the part of the plurality opinion holding that Hamdi was entitled to a hearing to contest his enemy combatant status. Justice Thomas, in contrast, wrote that the President’s authority to detain “includes making virtually uncharacteristic findings,” and that the proceedings to date have provided “all the process to which [Hamdi] was due under the circumstances.”
Justice Scalia, joined by Justice Stevens, took the strongest position against the legality of the indefinite detention of Hamdi. In a forceful dissent, Justice Scalia agreed with Justices Souter and Ginsburg that the AUMF was not sufficient authorization for a detention without a habeas proceeding, but went further to conclude that no combination of congressional and presidential authority was sufficient absent a congressional suspension of the writ of habeas corpus. Because Congress has not suspended the writ, the government’s only two options were to charge Hamdi with a crime or to release him.
In determining that the AUMF was an Act of Congress sufficient to satisfy § 4001(a), the plurality limited the holding to the facts before it, and limited the justification for such detention to the sole objective of preventing an enemy combatant from returning to the battlefield, and then only so long as there continued to be “active hostilities.” While the government argued that by its nature, it is difficult to predict the end of hostilities, the Court stated that the possibility of perpetual detention was troubling. In a “war on terror” the beginnings and endings of conflicts can have blurry definitions and may run the risk of having no clear way to determine the cessation of the conflict. However, the Court accepted the government’s view that “[i]f the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of ‘necessary and appropriate force’ and therefore are authorized by the AUMF.” The plurality did not squarely face what Hamdi’s rights might be in the event that hostilities in Afghanistan end and yet the war on terror continues.
Having held that the detention of enemy combatants was legally authorized, the Court turned to an evaluation of the process due to a detainee who disputes his status as an enemy combatant. The Court acknowledged the government’s interest in the effective functioning of the military, and its legitimate concern about having to conduct a full hearing to determine the status of enemy combatants. To accommodate those interests and concerns, the government had proposed a “some evidence” standard of proof, pursuant to which the court hearing the habeas petition would simply determine whether the hearsay evidence offered in the Mobbs Declaration stated some evidence which, if true, would justify Hamdi’s classification. The Court rejected that proposal because it created too great a risk of erroneous deprivation of individual liberty interests to meet the requirements of due process. The Court stated that “[a]ny process in which the Executive’s factual assertions . . . are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short.”
The Court pointed out that when the “some evidence” standard has been deployed in other situations, it was always as a standard of review, not of proof. In such situations, the government’s assertions would have been contested by the accused at some point in the proceedings. The some evidence standard may be acceptable then, but it is “ill suited to the situation in which a habeas petitioner has received no prior proceedings before any tribunal and had no prior opportunity to rebut the Executive’s factual assertions.”
While rebuffing the government’s approach, the Court also refused to grant Hamdi the full array of procedures that he sought. Instead, it held that he “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.” The Court rejected the government’s assertion that a chance to contest these assertions in Hamdi’s case occurred during his interrogation. It did, however, make it clear that “there remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal.”
Beyond this basic holding, the Court stated some general guidelines. “Hearsay, for example, may need to be accepted as the most reliable available evidence.” “Likewise, the Constitution would not be offended by a presumption in favor of Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided.” Such process was not due on the battlefield, but only upon a determination “to continue to hold those who have been seized.” Finally, the Court affirmed Hamdi’s right to counsel “in connection with the proceedings on remand.” But it declined to decide whether enemy combatants enjoy such a right at the earlier stages of the required review of their status.
The government had also argued that it had the right to detain enemy combatants indefinitely for two purposes: interrogation and to prevent a return to the battlefield. On this point, Justice O’Connor definitively stated that “indefinite detention for the purpose of interrogation is not authorized.” “Necessary and appropriate force” amounted to authorization to detain “for the duration of the relevant conflict,” in order to prevent enemy combatants from rejoining the fight.
As it had in Cheney, Padilla, and Rasul, the government presented briefs in Hamdi that advanced an aggressive theory of exclusive executive authority. The government claimed that no explicit congressional authorization for the President (acting as Commander in Chief) to detain was necessary, as Article II of the Constitution gave him the authority to act as Commander in Chief. It claimed that the decision to detain is a “quintessentially military judgment representing a core exercise of the Commander-in-Chief authority,” because the President is also the person best equipped to make that decision and is politically accountable for those decisions.
The Court avoided directly confronting the issue of whether the President has unilateral authority to seize and detain enemy combatants even in the face of congressional opposition because it found that the AUMF amounted to the Act of Congress required by the Non-Detention Act. In further ruling that Hamdi was entitled to habeas review under the standards set by the Court, however, the Court necessarily rejected the aggressive theory offered by the government. The Court acknowledged the importance of deference to the authority of the President, but it also stated “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”
Amy Kalman, L ‘06, and Chris Schroeder, director of the Program in Public Law, wrote this commentary.