CONSTITUTIONAL RIGHTS FOUNDATION
Bill of Rights in Action
Winter 2004 (21:1)
Detaining U.S. Citizens as Enemy Combatants
The war on terror has brought forward many questions of due process. In 2004, the Supreme Court dealt with the case of a U.S. citizen who the president had named as an “enemy combatant” and locked in prison. The man had been held incommunicado with no charges filed against him.
What Is a Writ of Habeas Corpus?
The Fifth Amendment to the U.S. Constitution provides that no person shall be deprived of life, liberty, or property without “due process of law.” For hundreds of years, the instrument for obtaining due-process rights has been the writ of habeas corpus (also known as the “Great Writ”).
The word “writ” comes from English common law. It means a court order. “Habeas corpus” in Latin literally means, “you have the body.” A writ of habeas corpus is a court order to an official (a jailer, prison warden, or a military commander) holding someone in custody. It orders the official to deliver the person to the court. The writ allows the court to decide whether the person is being held illegally, and if so, to order the executive branch to release the prisoner.
The Great Writ was developed in England, adopted by the colonies, and preserved in the U.S. Constitution. It is mentioned in what is known as the “suspension clause.” Under the suspension clause, Congress may suspend habeas corpus, but only in times of emergency: “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.” (Article, I, Section 9, clause 2.)
Yaser Esam Hamdi v. Donald Rumsfeld
Hamdi’s father filed a petition for a writ of habeas corpus in federal court in Virginia. (The government had imprisoned Hamdi there before transferring him to South Carolina.) The government was holding Hamdi in solitary confinement and barred him from communicating with his father—or with anyone else. The District Court appointed a public defender as counsel and ordered that the lawyer be given access to Hamdi. The U.S. government immediately appealed. The Court of Appeals for the Fourth Circuit reversed this order and sent the case back to the District Court. It ordered the court to use “cautious procedures” to determine whether Hamdi was an “enemy combatant.”
Back in the District Court, the government submitted a declaration by Michael Mobbs, a special advisor to the Defense Department. He had reviewed government records and reports on Hamdi. Mobbs’ declaration was nine paragraphs long. It stated that during July and August of 2001, Hamdi was living in Afghanistan and was connected with a Taliban military unit. The Taliban was a hostile force in conflict with U.S. armed forces. The declaration stated that because Hamdi was connected with the Taliban and was carrying a rifle when he was captured, he met the criteria for an “enemy combatant.” The District Court found the declaration to be inadequate and ordered the government to turn over other materials for its review.
Once again, the government appealed. The Court of Appeals ordered the habeas petition dismissed. It ruled that the facts stated in the Mobbs declaration were sufficient to support Hamdi’s detention. Hamdi appealed to the U.S. Supreme Court.
The Supreme Court faced two issues:
1. Did the president have the authority to name U.S. citizens as enemy combatants and hold them in prison without filing criminal charges?
2. If the president has this authority, what manner of habeas corpus review is due to citizens who contest their status as enemy combatants?
The court was fragmented on the issues and published four separate opinions. On the first issue, five justices concluded that the president had the authority to hold U.S. citizens in prison as enemy combatants. On the second issue, eight justices concluded that Hamdi’s due process rights had been wrongfully denied and that he should be accorded a greater habeas corpus review. But the justices could not agree on the underlying legal principles for either issue. The result was what is called a “plurality decision” with four justices joining the controlling opinion. Two other justices dissented in part, but concurred with the judgment of the controlling opinion so that Hamdi would get another hearing. Three other justices dissented.
O’Connor’s Opinion—The Opinion of the Court
Justice Sandra Day O’Connor wrote the controlling opinion in the case. She was joined by three other justices: Anthony Kennedy, Stephen Breyer, and Chief Justice William Rehnquist.
O’Connor first addressed the issue of whether the president had authority to detain citizens as “enemy combatants.” Her opinion held that Congress had authorized such detention through a resolution called the Authorization for Use of Military Force (AUMF). Congress passed AUMF a week after the 9/11 attacks. AUMF authorized the president to use force against those who committed or aided the terrorist attacks or harbored the terrorists.
O’Connor found that detaining combatants was basic to waging war. The military needed to prevent those captured from returning to the battlefield. By authorizing the use of force, Congress had “authorized detention in the narrow circumstances considered here.” O’Connor noted that unlike most wars, a “war on terror” would not end with a formal cease-fire. She voiced concern that if the war on terror dragged on, Hamdi could be detained for his lifetime. But she put aside that concern because combat was still going on in Afghanistan. As long as U.S. troops are engaged in combat in Afghanistan, O’Connor stated, detaining someone captured there is part of the proper use of force. It is “therefore authorized by the AUMF.” O’Connor’s opinion also ruled that indefinite detention “for the purpose of interrogation” is not authorized.
Having ruled in favor of the government on detention, O’Connor’s opinion then addressed the second issue: What manner of habeas corpus review is due to a citizen who contests his status as an enemy combatant? The government argued that at most the courts should review the question of determining enemy combatants under a “some evidence” standard of proof. Under this standard, the court hearing a habeas corpus petition would assume that the facts the government presented were true. Based on the facts presented, the court would then simply decide whether the petitioner had been correctly classified as an “enemy combatant.” The government also argued that requiring courts to review the facts concerning an individual detainee would intrude upon the president’s authority as commander in chief. Hamdi argued, to the contrary, that due process requires that he receive a hearing in which he could challenge the Mobbs declaration and present his own counter evidence.
O’Connor’s opinion pointed out that the government had a strong interest in keeping someone captured on the battlefield from returning to wage war against the United States. It also noted that going to court placed a burden on the military. But on the other side of the scale was Hamdi’s private interest in being free. This “is the most elemental of liberty interests.” O’Connor said it is of “great importance” to strike the proper balance between these competing interests—especially during war when it is tempting to ignore them.
O’Connor’s opinion rejected the “some evidence” standard. Instead it held that a citizen challenging his classification as an enemy combatant must be given a chance to contest the classification before “a neutral decision maker.” It further held that Hamdi “has the right to access to counsel.” In rejecting the argument that courts should not examine individual cases, O’Connor said that barring such review would only “condense power into a single branch” (the executive). O’Connor wrote, “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.”
O’Connor then discussed the type of hearing that might meet the court’s standards. She indicated that detainees might not be entitled to appeal to an ordinary court. She said that a military tribunal might be a proper forum. O’Connor also said that enemy combatant hearings might be specially “tailored” to reduce the burden on the executive. For example, hearsay might be admissible. And the normal burden of proof might be reversed, so that a citizen would have to prove that he was not an enemy combatant. “Due process” in this situation would be far different from what would be required if a citizen were accused of treason (or some other crime) and tried in a criminal court.
The Supreme Court vacated the Fourth Circuit Court’s judgment and sent the case back to the District Court. It held that the president did have authority to detain citizen “enemy combatants” without charging them with a crime. But it also held that due process required that Hamdi be given a fair chance to contest the factual basis for his detention.
Souter’s Opinion—Dissenting in Part and Concurring in Part
Justice David Souter issued a separate opinion. Justice Ruth Bader Ginsberg joined his opinion. Souter strongly disagreed with the court’s holding that AUMF authorized detaining citizens. He based his argument on a law passed by Congress in 1971—the Non-Detention Act. It states: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Souter noted that Congress had passed the Non-Detention Act to prevent the government from violating citizens’ rights as it had done during World War II. The government had put citizens of Japanese ancestry in detention camps during the war without any evidence of wrongdoing.
Congress, he argued, intended to require clear congressional authorization “before any citizen can be placed in a cell.” Congress had passed the AUMF resolution. But Souter pointed out that the AUMF concerns only the use of force and says nothing about detention. It did not, in Souter’s opinion, authorize detaining citizens as enemy combatants.
Although Souter argued that AUMF did not give the president authority to detain citizens without charges, the opinion of the court ruled otherwise. Souter believed that Hamdi should be given the chance to challenge his classification as an enemy combatant. Souter therefore concurred with O’Connor on the second issue and in the judgment. He explained that he concurred so that Hamdi would get another hearing to prove that he is not an enemy combatant. Souter wrote that Hamdi “should at least have the benefit of that opportunity.”
Justice Antonin Scalia (joined by Justice John Paul Stevens) dissented. Scalia did not agree that the president was authorized to detain citizens as enemy combatants without charges. Nor did he agree with the “tailored” process outlined by O’Connor. The government, he argued, has only two options if a citizen is accused of waging war against it. One is to prosecute him in federal court for treason or some other crime. The other—in times of emergency—is for Congress to suspend the writ of habeas corpus. Scalia contended that the court’s decision undermined the power of Congress. Moreover, he wrote, under the “guise” of the due process clause, the court had begun to rewrite the Constitution by coming up with an “unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than by live witnesses, and the presiding officer may well be a ‘neutral’ military officer rather than judge and jury.”
Justice Clarence Thomas offered a far different dissent. He wrote that the president, as commander in chief and through AUMF, had clear authority to detain Hamdi. He believed that O’Connor’s opinion placed too many limits on this authority. He disagreed with O’Connor on whether a citizen could be detained for interrogation. He argued that gathering intelligence about the enemy was an important and valid purpose of detention. He also disagreed on how long detention should last. He stated that the power to detain does not end when formal hostilities cease.
Thomas also dissented on the second issue. He believed that the judicial branch should only resolve the first issue of whether the president could detain enemy combatants. He did not think that the courts should determine whether a specific citizen was actually an enemy combatant. That question, he said, is for the executive alone. It should not be second-guessed by the courts. He wrote that Hamdi’s habeas corpus petition should fail because Hamdi had received “all the process to which he was due under the circumstances.”
The same day it ruled on Hamdi, the Supreme Court decided two related cases. Rasul v. Bush involved 12 Kuwaitis and two Australians captured in Afghanistan and held at Guantanamo Bay. They alleged they were not combatants and challenged their detention by filing writs of habeas corpus. The lower courts ruled that as foreign nationals outside of U.S. territory they had no right to file a writ. The Supreme Court in a 6–3 vote reversed and held they had such a right. The court did not, however, address the right to counsel, the rules of evidence, or the how the petitioners’ claims would be heard.
In Padilla v. Rumsfeld, Jose Padilla, a U.S. citizen arriving from Pakistan, was arrested in Chicago as a material witness to the September 11 attacks. The federal government moved him to New York and held him in criminal custody. When his lawyer challenged Padilla’s detention, the president ordered Secretary of Defense Donald Rumsfeld to hold Padilla as an enemy combatant. Padilla was sent to a naval brig in South Carolina. His lawyer filed a writ of habeas corpus in New York challenging the president’s right to hold a U.S. citizen arrested on American soil as an enemy combatant. The Supreme Court did not decide this question. Instead, it dismissed his writ because it was filed in the wrong court. Padilla has filed a new petition for writ of habeas corpus in South Carolina. His case may reach the Supreme Court again in the future.
The Supreme Court’s ruling in Hamdi also left many questions undecided. It is uncertain whether courts or military tribunals will decide cases involving U.S. citizens. Nor is it even clear who qualifies as an enemy combatant. (Justice O’Connor noted that the government had never provided the criteria that it uses to classify individuals as enemy combatants.) These questions will likely be decided in future cases that come before the court.
Hamdi’s case will not be one of these cases. Soon after the court’s ruling, the Department of Defense began negotiations with Hamdi’s lawyers. Three months later, it announced an agreement. The United States agreed to release Hamdi and return him to Saudi Arabia. In exchange, Hamdi agreed, among other things, to give up his U.S. citizenship, to waive his right to sue the U.S. government for detaining him, and not to travel outside Saudi Arabia for five years.
For Discussion and Writing
1. What were the facts in the Hamdi case? What two issues did the Supreme Court have to decide? What were the four opinions on each issue? Which opinion do you agree with? Why?
2. What is a writ of habeas corpus? Do you think non-citizens held in custody should be allowed to use a writ of habeas corpus? Why or why not?
3. How would you define an “enemy combatant”?
4. Do you think the deal to release Hamdi was fair? Explain.
The U.S. Supreme Court was deeply divided on the two issues in the Hamdi case. Only four justices could agree on the reasons for the court’s decision. This makes it a plurality decision instead of a majority decision. In this activity, students will get an opportunity to role play the court and see whether they can get a majority decision on the two issues in the case.
1. Divide the class in small groups of 3, 5, 7, or 9 students.
2. Each group should:
A. Examine the first issue: Did the president have the authority to name U.S. citizens as enemy combatants and hold them in prison without filing criminal charges?
(1) Discuss the issue fully.
(2) Vote on it.
(3) Decide the reasons for the decision.
B. Do the same for the second issue: If the president has this authority, what manner of habeas corpus review is due to citizens who contest their status as enemy combatants?
C. Be prepared to announce the decisions and explain the reasons to the rest of the class.
LectLaw: Habeas Corpus Definition and precedent.
Oyez: Hamdi v. Rumsfeld A brief summary of the case with links to the oral argument, briefs, and written opinion.
U.S. Supreme Court Brief Resource Center: Hamdi v. Rumsfeld Briefs (written arguments) submitted to the court in this case.
New York Times Topics: Hamdi News articles on this subject.
Jurist: Hamdi Legal news archive.
Text of the case:
Google Directory: Hamdi v. Rumsfeld Links.Rumsfeld v. Padilla (2004)
New York Times Topics: Jose Padilla Archive of news articles on this subject.
Jurist: Jose Padilla Legal news archive.
Oyez: Rumsfeld v. Padilla A brief summary of the case with links to the oral argument, briefs, and written opinion.
Text of the case:
Oyez: Rasul v. Bush A brief summary of the case with links to the oral argument, briefs, and written opinion.
Text of the case:
Authorization for Use of Military Force (September 18, 2001) Text of the document.
Wikipedia: Non-Detention Act Encyclopedia article.
Non-Detention Act of 1971, 18 U.S.C. §4001(a) Text of the act.
New York Review of Books: What the Court Really Said An analysis of Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush by legal scholar Ronald Dworkin.
Prisoners’ Rights A commentary on the three decisions by Yale law professor Oona Hathaway.
Cornell Law Review: Hamdi’s Habeas Puzzle: Suspension as Authorization? Article on the Hamdi decision.
Stanford Law Review: Is suspension a political question? Article on the suspension of habeas corpus.
Duke Law Review: Hamdi v. Rumsfeld A commentary on the case.
Scalia the Civil Libertarian? New York Times Magazine article by Scott Turow argues that Scalia is a leader on civil liberties.
Slate Magazine: The Formally Great Writ A critical view of the Bush administration’s weakening of habeas corpus claims.
Slate Magazine: You Have My Body An article on the difficulty for Guantanamo detainees to file habeas corpus claims.
Nation Magazine: Jose Padilla’s Ordeal A look at how Jose Padilla was treated as an enemy combatant.
Daily Standard: Specter v. Gonzales An argument in favor of Attorney General Alberto Gonzales’ interpretation of the right to habeas corpus.
The Body and the State: Habeas Corpus and American Jurisprudence By Cary Federman
By Peter Berkowitz.