HAMDI- COMBATANT CASE

Brief Fact Summary. American citizen captured in Afghanistan was held as an enemy combatant.

Synopsis of Rule of Law. “Because it is undisputed that Hamdi was capture in a zone of active combat in a foreign theater of conflict, the submitted declaration is a sufficient basis upon which to conclude that the Commander in Chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the United States Constitution.”

Facts. Petitioner Hamdi was captured in Afghanistan shortly after 9/11. Hamdi is an American citizen, and was classified as an “enemy combatant.” After a period of petitions, motions, and counter-motions, Hamdi filed for a writ of habeas corpus. The Special Advisor to the Under Secretary of Defense for Policy, Michael Mobbs, issued a response, outlining the Government’s position. The district court found the “Mobbs declaration” insufficient in supporting the Government’s case.

Issue. “[W]hether a declaration by a Special Advisor to the Under Secretary of Defense for Policy setting forth what the government contends were the circumstances of Hamdi’s capture was sufficient by itself to justify his detention.”Held. Yes. First, the Court of Appeals for the Fourth Circuit acknowledged that the Constitution creates “war powers” that invest “the President, as Commander in Chief, with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conducts of war…” The Court also noted that since Article III of the Constitution does not have any sort of war powers analog, “the Supreme Court has shown great deference to the political branches” in war matters. However, the Court noted that this deference is “not unlimited,” and that habeas corpus is still valid. The Court found that is must approach this case by balancing the tension of individual rights and national security interests.• The Court rejected Hamdi’s assertion that 18 U.S.C. § 4001 prohibited his incarceration, in light of the broad authorization Congress granted the President post 9/11.• The Court rejected Hamdi’s assertion of the Geneva Convention because it is not self-executing and does not “create private rights of action in the domestic courts of the signatory countries.”• The Court rejected Hamdi’s petition as a matter of law because the order required substantial factual information from the government. The Court found that impossible because of security concerns, and the impracticality of demanding factual analysis during battle.• As to whether Hamdi’s petition needed to be remanded, the Court identified two issues First, Hamdi argued while his seizure was valid, his “continued detention in this country without the full panoply of constitutional protections is unlawful.” The Court held that the data in the Mobbs affidavit was sufficient under Article II. Second, whether, “because he is an American citizen currently detained on American soil by the military, Hamdi can be heard in an Article III court to rebut the factual assertions that were submitted to support the ‘enemy combatant’ designation.’” The Court held that “no evidentiary hearing or factual inquiry on [its] part is necessary or proper, because it is undisputed that Hamdi was capture in a zone of active combat.” Hamdi finally contended that “even if his detention was at one time lawful, it is no longer so because the relevant hostilities have reached an end.” Because troops were still on the ground, the Court did not see reason to address the concern.Discussion. “Cases such as Hamdi’s raise serious questions which the courts will continue to treat as such. The nation has fought since its founding for the liberty without which security rings hollow and for security without which liberty cannot thrive. The judiciary was meant to respect the delicacy of the balance.”

Hamdi v. RumsfeldSCOTUS- 2004

Facts

Congress passed a resolution authorizing the President to "use all necessary and appropriate force" against terrorists or those who harbored terrorists.

Government detained D for allegedly fighting with the Taliban during the Afghanistan war.

D was born an American citizen, moved to Saudi Arabia as a child, and eventually to Afghanistan.

D was transported to Guantanamo Bay, then, upon learning of his American citizenship, transferred him to the U.S.

Gov't claims that he is an enemy combatant, and therefore the gov't can hold him indefinitely.

Procedural History

Fourth Circuit held that Hamdi's detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label.

SCOTUS vacates and remands.

Issues

Does the executive have the authority to detain citizens who qualify as "enemy combatants"?

What process is constitutionally due to a citizen who disputes his enemy-combatant status?

Holding/Rule

Although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the U.S. as an enemy combatant be given a meaningful opportunity to contest the factual basis for his detention.

Reasoning

Court only addresses the constitutionality of the detention of an enemy combatant who falls under the narrow definition provided by the gov't: "part of or supporting forces hostile to the United States or coalition partners" in Afghanistan who "engaged in an armed conflict against the United States." Full definition of enemy combatant not addressed/understood by Court.

Gov't argues that no congressional authorization is required and that detention powers fall under Article II.o However, Court agrees with gov't's alternative position that Congress authorized D's detention.o Section 4001(a) of 18 U.S.C. says that no one can be detained except by act of Congress.

Gov't argues that this does not apply to military prisons. Also argues, alternatively, that D is detained pursuant to the Authorization for Use of Military

Force.  Court agrees with this.o There is no doubt that Congress intended those who fought against the U.S. in Afghanistan to be

detained under this act under the "necessary and appropriate force."

Purpose is to stop combatant from going back into battle. Doesn't matter that AUMF doesn't use the word "detain" because this is incident to waging

war.o Indefinite detention for the purpose of interrogation is not authorized, but detention for the duration of

the relevant conflict is allowedo This is not overruling Milligan, because Milligan was not a prisoner of war and was arrested at his

home.

Part III: Addresses due processo It is undisputed that D is correctly before the Court under Article III (habeas)

Gov't alleges, however, that since D's seizure took place in a combat zone, habeas can be denied as a matter of law.

However, D's seizure is not "undisputed," because the circumstances were not conceded in fact nor could they be in law, because Hamdi had not been permitted to speak for himself or through counsel. Also, the facts are insufficient to support his detention.

D only said he resided in Afghanistan, not that he was part of the fighting against the U.S.o Gov't also alleges that further factual exploration is inappropriate because of the extraordinary

constitutional interests at stake, namely separation of powers and the ability for the executive branch to make decisions in military conflicts.

Gov't says court should review under a very deferential "some evidence" standard. D argues that the Court has recognized that an individual challenging his detention may not be

held at the will of the Executive without recourse.o In order to balance such competing interests, the Court generally uses Matthews, which dictates that the

process due in any given instance is determined by weighing the private interest against the gov't's interests and burdens.

o Matthews balance: risk of an erroneous deprivation of private interests in process were reduced and the probably value of additional or substitute safeguards.

Matthews has interest in being free from detention by his own government. This is not offset by circumstances of war or the accusations, because the risk of

erroneous detention is high and must be considered since it could be used abusively. However, there is also the gov't interest in ensuring that enemy combatants do not return to

combat. It is also impractical to expect that military officers engage in litigation to prove enemy combatant status.

o Held that a citizen detainee seeking to challenge enemy combatant status must receive notice o the factual basis for his classification and a fair opportunity to rebut the gov't's factual assertions before a neutral decision maker.

However, the proceedings may be tailored to alleviate burden on Executive. For example, hearsay could be allowed and there could be a (rebuttable) presumption in favor

of the government.

Court rejects assertion that separation of powers mandates a heavily circumscribed role for the courts in such circumstances. Gov't's approach would condense power into a single branch, because the courts would have to forego examination of the individual case and focus only on the legality of the broader detention scheme.

o State of war is not a blank check when it comes to the right of citizens.o When individual liberties are at stake, the Constitution plays a role,o Absent suspension of the writ of habeas, a citizen detained as an enemy combatant is entitled to this

process.

Dissent

Souter/O'Connor (concurring in judgment)o The gov't has failed to show that the Force Resolution authorizes the detention complained of here even

on the facts the government claims. If the gov't raises nothing further, the Non-Detention Act entitles D to be released.

o Section 4001(a) prohibition must be read broadly to impose a burden of justification on the government for several reasons:

First, Congress enacted 4001 out of fear that the Detention Act of 1950 could authorize repetition of the Japanese-American internments during WWII. This means that Congress wanted clear authorization before a citizen could be detained.

Second, manifest authority should be read into 4001(a) because the executive branch might infringe on liberty in an attempt to fill its role in ensuring security, as liberty and security always need to be balanced in government. Therefore, we should not rely on the executive branch to ensure liberty, and a reasonable balance is more likely to be reached by allocating this power to a different branch. There should thus be a clearly expressed congressional resolution of citizen detention

o Also notes that gov't's argument regarding Article II is weak (looks to Jackson's opinion in Youngstown to say that where the President acts contrary to congressional will, presidential authority is at its lowest ebb.

o He shouldn't have to make a judgment on what process D is required because of his opinion, but he joins with the Court in ordering remand based on the terms closest to those he would impose. D should have the benefit of the opportunity to refute the factual claims on remand.

Scalia/Stevens (dissenting)o Decision below should be reversed because a citizen waging war against his own country should be

tried for treason or some other crime in federal court.o Congress can relax these protections where the exigencies of war prevent that, but it must do so under

the Constitution's Suspension Clause: Article 1 Sect 9 Clause 2. It did not do so here.o If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the

Constitution requires, rather than by silent erosion through an opinion of this Court.

Thomas (dissenting)o There is no reason to remand the case and the habeas claim should fail because the executive branch

has acted through the President's constitutional powers to declare that D is an enemy combatant and should be detained.

o The Federal gov't's power should not be balanced by the Court, and the plurality fails to address the gov't's compelling interests.

HAMDAN CASE- 9/11 Conspiracy Case

Brief Fact Summary.  Hamdan was charged with conspiracy to commit offences triable by a military commission and was granted Habeas Corpus to dispute this charge.

Synopsis of Rule of Law. Prisoners of war may not be tried in military commissions that do not afford the rights prescribed in the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions

Facts. It is alleged that between the years of 1996 and 2001 Hamdan was engaged in actions in preparation of the September 11, 2001 attacks against the United States. Militia forces in Afghanistan that were fighting the Taliban captured Hamdan and turned him over to the U.S. Military in 2002. He was transferred to Guantanamo Bay. A United States occupied Military base. After a year of being detained without any charges being brought against him, President Bush declared that he had committed acts triable by a military commission. He was charged with one count of conspiracy to commit offenses triable by the commission. This commission is created by military necessity, not by statute or constitutional power. This commission has a presiding officer and at least three other members. The accused is afforded military counsel, and a copy of the charges against him. This hearing may be conducted outside the presence of the accused for the accused does not have a right to see all evidence or hear all witness statement against him for purposes of national security. After being tried

and convicted of conspiracy, Hamdan apply for a writ of Habeas Corpus stating he deserved all the constitutional rights afforded to him at trial, the writ was granted.

Issue. Whether Hamdan committed a crime triable by military commissions and whether that commission is constitutional.Held. No. The President at a time of war has the power to try and punish crimes against the laws of nations. This is the constitutional provision used to show that military commission tribunals are legal. However, this court feels that only certain circumstances allow for offense to be triable in a military commission. Those offenses are; 1 in place of civilian courts when marital law has been declared, 2 temporary military government in occupied territory or in lands where there is no government to try cases, and 3 when the crime is  an incident to the conduct of war which violate the laws of war. The court states that only the 3rd type applies, however the charge of conspiracy is not an incident to the conduct of war. Incidents of war are accusations of actual conduct, not the attempt or planning of such conduct. Inchoate criminal charges belong in a federal court or court martial proceeding. Secondly this commission violates not only constitutional rights afforded an individual, but also rules established by the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. A military commission tribunal must have rules and regulations that do not fall short of at least a military court marshal proceeding. The lack of presence and ability to see the evidence and witness before you is not constitutional. Therefore Hamdan should not be tried in front of this commission. This court reversed the commission’s charges of conspiracy.Concurrence. The President does not have a blank check to try prisoners of war as he pleases. While there is a large separation of powers issue here, Congress has specifically legislate the UCMJ to prescribe the rules for such commissions to avoid these violations and we will not disagree with it. 

CLASS NOTES ON HAMDI

They go with AUMF, not that there is an inherent executive power No bail, hearsay is admissible, no presumption of innocence Hamdi has been denied due process O’Connor says your get notice of the basis of the detention as an enemy combatant, opportunity

to rebut before neutral decision maker Scalia says criminal trial is due (all the protections afforded to a crim def) Souter, Ginsburg-they just remand, issue is not reach Thomas says you get a good faith interrogation (determination) by the executive that you're an

enemy combatant

Hamdan v. Rumsfeld

Procedural History:

Appeal from circuit court holding that a military commission violated a detainee's rights under the

Geneva Convention. A u.s.  military commission began proceedings against Hamdan (P), who was

captured in Afghanistan. Hamdan (P) challenged the authority of the commission.

Overview:

-Salim Ahmed Hamdan (P) was captured by Mghani forces and imprisoned by the U.S. military in

Guantanamo Bay. He filed a petition for a writ of habeas corpus in federal district court to challenge

his detention. Before the district court ruled on the petition, a U.S. military commission began

proceedings against Hamdan (P), which designated him an enemy combatant. Hamdan (P) challenged

the authority of the commission, arguing that the commission trial would violate his rights under

Article 102 of the Geneva Convention, which provides that a "prisoner of war can be validly sentenced

only if the sentence has been pronounced by the same courts according to the same procedure as in

the case of members of the armed forces of the Detaining Power." 

-The district court granted Hamdan's (P) habeas petition, ruling that a hearing to determine whether

he was a prisoner of war under the Geneva Convention must have taken place before he could be tried

by a military commission. 

-The D.C. Circuit Court of Appeals reversed the decision, finding that the Geneva Convention could not

be enforced in federal court and that the establishment of military tribunals had been authorized by

Congress and was therefore not unconstitutional.

Issue:

(1) Was the military commission established to try those deemed "enemy combatants" for alleged war

crimes in the War on Terror authorized by the Congress or the inherent powers of the President? (2)

May the rights protected by the Geneva Convention be enforced in federal court through habeas

corpus petitions?'

Rule:

1. the military commission established to try those deemed “enemy combatants” for alleged war

crimes in the GWOT was not authorized by congress or the inherent powers of the president

2. the rights protected by the Geneva convention may be enforced in federal court through habeas

corpus petitions.

Analysis: 

Many U.S. and international human rights organizations have determined that violations might occur

through the non-application of the Geneva Convention to detainees in the U.S. war on terrorism.

Outcome:

(1) No. The military commission established to try those deemed "enemy combatants" for alleged war

crimes in the War on Terror was not authorized by the Congress or the inherent powers of the

President. Neither an act of Congress nor the inherent powers of the Executive Branch laid out in the

Constitution expressly authorized the sort of military commission at issue in this case. Absent that

express authorization, the commission had to comply with the ordinary laws of the United States (D)

and the laws of war. 

(2) Yes. The rights protected by the Geneva Convention may be enforced in federal court through

habeas corpus petitions. The Geneva Convention, as a part of the ordinary laws of war, could be

enforced by the U.S. Supreme Court, along with the statutory Uniform Code of Military Justice (UCMJ),

since the military commission was not authorized. Hamdan's (P) exclusion from certain parts of his trial

deemed classified by the military commission violated both of these, and the trial was therefore illegal.

Article 3, or «common Article 3" as it is sometimes known, does apply to Hamdan (P), despite a holding

to the contrary by the court of appeals, and arguments to the contrary by the government. Common

Article 3 provides minimal protection to individuals associated with neither a signatory nor a non-

signatory "Power" who are involved in a conflict in the territory of a signatory. Common Article 3 is

applicable here and requires that Hamdan (P) be tried by a "regularly constituted court affording all

the judicial guarantees which are recognized as indispensable by civilized peoples."

CLASS NOTES Oct 3rd

Lincoln suspension of the writ of habeas corpus was unauthorized, only congress Ex parte Milligan

o 1864 Milligan detain for participation in rebellion Article of war

o Congress power to regulate military International Law Categories

o Treaty law- conventionalo Customary international law (unwritten/common law)

Jus ad bellum- going to work/resort to war (when is it permissible to resort to war) [UN Charter]

Self defense Authorized by UN Aggressive war is illegal

Jus in bello- rules governing the conduct of war, once you're in a war [Geneva Conventions, Hague Law]

International humanitarian law Hague

o Permissible means of waging war Not permissible to use horrible chemical weapons to cause max bodily harm Protect civilian population from harm

Genevao Protection of prisoners and civilians especiallyo Conventions:

4 kinds First two- sick and wounded at 1. land and 2. sea Third- POW Fourth- Civilians

Authorized military commission to try case about the laws of war Art 1 Courto Pursuant to congress’ legislative powero Lawful and unlawful combatants are subject to captureo Ordinary POW can be detained but not subject to punishmento Unlawful combatant = not wearing uniform, not fighting openlyo US citizens war criminal doesn’t get a right to trial against the laws of war

Because our own military doesn’t get a trial by jury