Hamdi v. Rumsfeld
Encyclopedia
Hamdi v. Rumsfeld, 542 U.S. 507
(2004) was a U.S. Supreme Court 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 enemy combatant
s, but ruled that detainees who are U.S. citizens must have the ability to challenge their enemy combatant status before an impartial judge.
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 Bay
, but then transferred to a naval brig
in Norfolk
, Virginia
when it was discovered that he held U.S. (as well as Saudi) citizenship, and then finally to a brig in Charleston, South Carolina
. 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 States
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 Circuit
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 "enemy 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
.
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 enemy 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 enemy combatant status. 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 Defense
created Combatant Status Review Tribunal
s 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 enemy 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, 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. Thomas would later make use of this dissent in Turner v. Rogers
in 2011.
(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 unlawful 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 unlawful 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).
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(2004) was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
petition brought on behalf of Yaser Esam Hamdi
Yaser Esam Hamdi
Yaser Esam Hamdi is a now-former American citizen who was captured in Afghanistan in 2001. It is claimed by the U.S. government that he was fighting against U.S. and Afghan Northern Alliance forces with the Taliban...
, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
to detain enemy combatant
Enemy combatant
Enemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war. Prior to 2008, the definition was: "Any person in an armed conflict who could be properly detained under the laws and customs of war." In the case of a civil war or an...
s, but ruled that detainees who are U.S. citizens must have the ability to challenge their enemy combatant status before an impartial judge.
Background of the case
Hamdi was captured in AfghanistanAfghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
by the Afghan Northern Alliance in 2001 and then turned over to U.S. military
Military
A military is an organization authorized by its greater society to use lethal force, usually including use of weapons, in defending its country by combating actual or perceived threats. The military may have additional functions of use to its greater society, such as advancing a political agenda e.g...
authorities during the U.S. invasion
War in Afghanistan (2001–present)
The War in Afghanistan began on October 7, 2001, as the armed forces of the United States of America, the United Kingdom, Australia, and the Afghan United Front launched Operation Enduring Freedom...
. 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 Bay
Guantanamo Bay detainment camp
The Guantanamo Bay detention camp is a detainment and interrogation facility of the United States located within Guantanamo Bay Naval Base, Cuba. The facility was established in 2002 by the Bush Administration to hold detainees from the war in Afghanistan and later Iraq...
, but then transferred to a naval brig
Military prison
A military prison is a prison operated by the military. Military prisons are used variously to house prisoners of war, enemy combatants, those whose freedom is deemed a national security risk by the military or national authorities, and members of the military found guilty of a serious crime...
in Norfolk
Norfolk, Virginia
Norfolk is an independent city in the Commonwealth of Virginia in the United States. With a population of 242,803 as of the 2010 Census, it is Virginia's second-largest city behind neighboring Virginia Beach....
, Virginia
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
when it was discovered that he held U.S. (as well as Saudi) citizenship, and then finally to a brig in Charleston, South Carolina
Charleston, South Carolina
Charleston is the second largest city in the U.S. state of South Carolina. It was made the county seat of Charleston County in 1901 when Charleston County was founded. The city's original name was Charles Towne in 1670, and it moved to its present location from a location on the west bank of the...
. The Bush administration
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
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
War on Terror
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
, declared by the Congress of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
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
Robert G. Doumar
-Early life, education, and career:Doumar's father, George Doumar, was from Syria and immigrated to America in 1901. His mother came from Lebanon later in an arranged marriage. Both were Arabic-speaking Christians and both became U.S. citizens. The family-owned eatery, Doumar's, in Norfolk,...
ruled that Hamdi's father was a proper "next friend"
Next friend
In common law, next friend is a phrase used to refer to a person who represents another person who is under disability or otherwise unable to maintain a suit on their own behalf and who does not have a legal guardian....
having standing to sue on behalf of his son, and ordered that a federal public defender
Public defender
The term public defender is primarily used to refer to a criminal defense lawyer appointed to represent people charged with a crime but who cannot afford to hire an attorney in the United States and Brazil. The term is also applied to some ombudsman offices, for example in Jamaica, and is one way...
be given access to Hamdi. On appeal, however, the Fourth Circuit
United States Court of Appeals for the Fourth Circuit
The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:*District of Maryland*Eastern District of North Carolina...
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
Hearsay in United States law
Hearsay is the legal term for testimony in a court proceeding where the witness does not have direct knowledge of the fact asserted, but knows it only from being told by someone. In general the witness will make a statement such as, "Sally told me Tom was in town," as opposed to "I saw Tom in...
and bare assertions. The District Court ordered the government to produce numerous documents for in camera
In camera
In camera is a legal term meaning "in private". It is also sometimes termed in chambers or in curia.In camera describes court cases that the public and press are not admitted to...
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 "enemy 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
Article Two of the United States Constitution
Article Two of the United States Constitution creates the executive branch of the government, consisting of the President and other executive officers.-Clause 1: Executive power:...
and the principle of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
prohibited courts from interfering in this vital area of national security
National security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
. 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
Paul Clement
Paul Drew Clement is a former United States Solicitor General and current Georgetown University legal professor. He is also an adjunct professor at New York University School of Law. He was nominated by President George W...
.
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 processDue process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
protections enforceable through judicial review.
Justice O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
wrote a plurality opinion representing the Court's judgment, which was joined by Chief Justice Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
and Justices Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
and Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
. O'Connor wrote that although Congress had expressly authorized the detention of enemy combatants in its Authorization for Use of Military Force
Authorization for Use of Military Force Against Terrorists
The Authorization for Use of Military Force Against Terrorists , one of two resolutions commonly known as "AUMF" , was a joint resolution passed by the United States Congress on September 14, 2001, authorizing the use of United States Armed Forces against those responsible for the attacks on...
(AUMF) passed after 9/11
September 11, 2001 attacks
The September 11 attacks The September 11 attacks The September 11 attacks (also referred to as September 11, September 11th or 9/119/11 is pronounced "nine eleven". The slash is not part of the pronunciation...
, due process required that Hamdi have a meaningful opportunity to challenge his enemy combatant status. However, Justice O'Connor used the three-prong test of Mathews v. Eldridge
Mathews v. Eldridge
Mathews v. Eldridge, , is a case in which the United States Supreme Court held that individuals have a statutorily granted property right in social security benefits, that the termination of those benefits implicates due process, but that the termination of Social Security benefits does not require...
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
Hearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
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 Defense
United States Department of Defense
The United States Department of Defense is the U.S...
created Combatant Status Review Tribunal
Combatant Status Review Tribunal
The Combatant Status Review Tribunals were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense...
s 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
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
, joined by Justice Ruth Bader Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
, 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 enemy combatants.
Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
's dissent, joined by Justice John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
, 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, 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
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
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. Thomas would later make use of this dissent in Turner v. Rogers
Turner v. Rogers
Turner v. Rogers, is a case decided by the United States Supreme Court on June 20, 2011, that held that a state must provide safeguards to reduce the risk of erroneous deprivation of liberty in civil contempt cases such as child support cases...
in 2011.
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. BushRasul v. Bush
Rasul v. Bush, 542 U.S. 466 , is a landmark United States Supreme Court decision establishing that the U.S. court system has the authority to decide whether foreign nationals held in Guantanamo Bay were wrongfully imprisoned...
(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
Authorization for Use of Military Force
Authorization for Use of Military Force may refer to:*Authorization for Use of Military Force Against Iraq Resolution of 1991 authorizing the Persian Gulf War, also known as Operation Desert Storm: H.R.J. Res...
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
Non-Detention Act
The Non-Detention Act of 1971 was passed to repeal portions of McCarran Internal Security Act of 1950, , specifically Title II, the "Emergency Detention Act". It had allowed for detention of suspected subversives without the normal Constitutional checks required for imprisonment. The Non-Detention...
; 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
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
, the Court decided that the "military commissions" created to try unlawful combatants for war crimes suffered from certain fatal procedural defects under the Uniform Code of Military Justice
Uniform Code of Military Justice
The Uniform Code of Military Justice , is the foundation of military law in the United States. It is was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power . ....
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
Detainee Treatment Act
The Detainee Treatment Act of 2005 is an Act of the United States Congress that prohibits inhumane treatment of prisoners, including prisoners at Guantanamo Bay; requires military interrogations to be performed according to the U.S...
. 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 unlawful 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
Third Geneva Convention
The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. It was first adopted in 1929, but was significantly updated in 1949...
of 1949).
See also
- List of United States Supreme Court cases, volume 542
- List of United States Supreme Court cases
- Donald RumsfeldDonald RumsfeldDonald Henry Rumsfeld is an American politician and businessman. Rumsfeld served as the 13th Secretary of Defense from 1975 to 1977 under President Gerald Ford, and as the 21st Secretary of Defense from 2001 to 2006 under President George W. Bush. He is both the youngest and the oldest person to...
- Center for Constitutional RightsCenter for Constitutional RightsAl Odah v. United States:Al Odah is the latest in a series of habeas corpus petitions on behalf of people imprisoned at the Guantanamo Bay detention center. The case challenges the Military Commissions system’s suitability as a habeas corpus substitute and the legality, in general, of detention at...
, a New York City–based legal nonprofit organization that legally represents over 150 of the Guantanamo Bay detainees - TerrorismTerrorismTerrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
- Donald VanceDonald VanceDonald Vance is an American Navy veteran who was held in detention at Camp Cropper, the United States military's maximum-security detention site in Baghdad for 97 days beginning in April 2006. On December 18, 2006, Vance filed suit against the US government and the former US Secretary of Defense,...
Further reading
External links
- Full text of the Court's opinions in Hamdi v. Rumsfeld at FindLawFindLawFindLaw is a business of Thomson Reuters that provides online legal information and online marketing services for law firms. FindLaw was created by Stacy Stern, Martin Roscheisen and Tim Stanley in 1995, and was acquired by Thomson West in 2001....
- NPR audio on the decision
- The Center for Constitutional Rights section on Hamdi v. Rumsfeld with detailed documents and insight
- FindLaw "war on terror" section
- The Supreme Court, the Detainees, and the "War on Terrorism" (FindLawFindLawFindLaw is a business of Thomson Reuters that provides online legal information and online marketing services for law firms. FindLaw was created by Stacy Stern, Martin Roscheisen and Tim Stanley in 1995, and was acquired by Thomson West in 2001....
) - Hamdi v. Rumsfeld: U.S. Supreme Court Brief Resource Center, U.S. Supreme Court Amici Curiæ Briefs (Jenner and Block Law Firm)
- Yaser Esam Hamdi v. Donald Rumsfeld Settlement Agreement (FindLaw)