Hamdi v. Rumsfield, 542 U.S. 507 (2004)

Hamdi v. Rumsfeld presented the Supreme Court with the question of whether an American citizen captured in a war zone and designated an enemy combatant by the executive branch could be detained indefinitely in the United States without constitutional protection. The Court, in a plurality opinion by Justice O’Connor, held that while Congress authorized the detention of enemy combatants in limited circumstances, the Fifth Amendment due process clause of the Constitution permitted American citizens detained on American soil to challenge their putative enemy combatant status before a neutral arbiter.

The case emerged from the September 11, 2001, terrorist attacks on the United States. One week after those attacks, the Congress enacted the Authorization for Use of Military Force (AUMF), a law allowing the executive branch to apply all ‘‘necessary and appropriate force’’ against the al-Qaeda terrorist network, the Taliban, or any nation harboring such terrorists. In November 2001, President George W. Bush issued an order under the AUMF directing the military to identify and detain ‘‘enemy combatants.’’

One of the several hundred persons detained pursuant to the president’s order was Yaser Esam Hamdi, an American citizen born in Louisiana and raised in Saudi Arabia. Hamdi was captured by American forces in a war zone, Afghanistan, designated an ‘‘enemy combatant’’ member of the Taliban by the executive, and eventually imprisoned in South Carolina. The United States denied Hamdi access to counsel, kept him incommunicado from family and friends, and detained him without formal charges. Hamdi’s father challenged his son’s incarceration by filing a habeas corpus petition on his son’s behalf.

Justice O’Connor utilized the traditional procedural due process Balancing Test of Mathews v. Eldridge (1976), to determine the scope of the due process protection afforded citizen detainees. While not providing alleged enemy combatants with the full panoply of due process rights accorded to citizens who are charged with crimes, she held that citizen detainees are entitled to notice of the factual grounds for the detention and a ‘‘meaningful opportunity’’ to challenge those grounds before a neutral tribunal.

Justice O’Connor decided that petitioner Hamdi did not concede enemy combatant status and that he was entitled to challenge his detention. She added, ‘‘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’’ (Youngstown Sheet & Tube Co. v. Sawyer [1952]).

Justice Souter, joined by Justice Ginsburg, agreed with Justice O’Connor that Hamdi had a constitutional due process right to challenge his alleged enemy combatant status before a neutral arbiter, but he reached that conclusion from a vastly different perspective. Justice Souter found that Congress had not authorized Hamdi’s detention, either in the AUMF or in laws enacted prior to September 11th, and that without congressional approval Hamdi ought to be released. Because the Court did not align with him in decreeing that Hamdi ought to be released, Justice Souter agreed that Hamdi at least was entitled to contest his detention through a habeas corpus claim.

Justice Scalia dissented, asserting his belief that American citizens held by the United States must either be prosecuted in federal court for a crime, such as treason, or have the writ of habeas corpus suspended pursuant to the suspension clause, Article I, section 9, clause 2. Since the federal government did not take either permissible avenue, he asserted that any continued detention of Hamdi, without being treated like other citizens accused of a crime, was unlawful.

Justice Thomas also dissented. He wrote that Hamdi’s detention fell squarely within the government’s war powers and thus the courts lacked the competence to second-guess those powers. Therefore, he found the detention permissible without any overlay of due process.

Less than two months after the fractured Supreme Court decision, the government and the petitioner’s lawyers worked out a plan to release Hamdi. The government agreed to release Hamdi and deport him to Saudi Arabia on October 9, 2004, subject to a variety of conditions, including Hamdi renouncing his U.S. Citizenship, agreeing to restrict his travel, and promising not to sue the U.S. government for a violation of his rights.

STEVEN I. FRIEDLAND

References and Further Reading

• Moeckli, D., The U.S. Supreme Court’s ‘‘Enemy Combatant’’ Decisions: A ‘‘Major Victory for the Rule of Law’’? Journal of Conflict and Security Law 10 (2005): 75.
• Savage, D. ‘‘‘Enemy Combatant’ May Soon Be Freed.’’ Los Angeles Times, August 14, 2004.
• Stumpf, J., Citizens of an Enemy Land: Enemy Combatants, Aliens, and the Constitutional Rights of the Pseudo-Citizen, University of California-Davis Law Review 79 (2004).
• Wuerth, I., The President’s Power to Detain ‘‘Enemy Combatants’’: Modern Lessons from Mr. Madison’s Forgotten War, Northwestern University Law Review 98 (2004): 1567.
• Iraola, R., Enemy Combatants, the Courts, and the Constitution, Oklahoma Law Review 56 (2003): 565.
• Lepri, T., Note: Safeguarding the Enemy Within: The Need for Procedural Protections for U.S. Citizens Detained as Enemy Combatants Under Ex Parte Quirin, Fordham Law Review 71 (2003): 2565.

Cases and Statutes Cited

• Mathews v. Eldridge, 424 U.S. 319 (1976)
• Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)