Supreme Court Rules Hamdi Has Right to Challenge Designation as Enemy Combatant
On June 28, 2004, the Supreme Court ruled (5-4) in Hamdi v. Rumsfeld, 542 U.S. ___, that the government’s detention of Yaser Esam Hamdi was proper, but ruled (8-1) that Hamdi now has the right to challenge the Government’s designation that he is an “enemy combatant.”
I. Hamdi’s Capture and Detention
One week after the terrorist attacks in the United States on September 11, 2001, Congress passed a resolution, Authorization for Use of Military Force (AUMF), which authorized the President to use military force in Afghanistan to subdue al Qaeda and to topple the Taliban regime there. Later that year, Yaser Esam Hamdi (age 21) was seized by military groups with whom the United States was allied. It was reported that Hamdi belonged to troops that were fighting the United States and our allied forces. Hamdi was transferred to the control of U. S. troops, and in January 2002, he was transferred to the U. S. Naval Base in Guantanamo Bay. In April, 2002, after it was learned that Hamdi was an American citizen, he was transferred to a brig in Norfolk, Virginia. Later he was transferred to a brig in Charleston, South Carolina.
The Government contended that Hamdi is an “enemy combatant,” and that accordingly the United States could hold him indefinitely, without formal charges or proceedings.
II. The Habeas Corpus Proceedings
In June, 2002, Hamdi’s father, Esam Fouad Hamdi, filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. That proceeding invoked the jurisdiction of the federal courts to determine whether or not Hamdi’s detention was proper. The District Court ordered that counsel be provided for Hamdi. The government appealed, and the Fourth Circuit reversed the District Court. On remand, the habeas corpus proceeding continued, and the Government produced an affidavit from Michael Mobbs, which asserted that Hamdi had been fighting with Taliban forces against the U.S., that Hamdi’s unit surrendered, and that Hamdi himself surrendered an assault rifle to Northern Alliance forces. (Slip Opinion, pp. 4-5.) The District Court then ruled that based upon the generic and hearsay nature of the affidavit there was insufficient evidence to detain Hamdi. (Slip Opinion, p. 5.) The Government again appealed, and the Fourth Circuit again reversed, upholding the Government’s position—that Hamdi was captured in a zone of active combat in a foreign theater of conflict, and that “[o]ne who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such.” (Slip Opinion, p. 8, and 316 F.3d at 475.) Hamdi then filed a petition for certiorari, and the Supreme Court agreed to review the case, and has now upheld the Government’s right to detain Hamdi (by a 5-4 vote), but held (8-1) that Hamdi now has the right to challenge his detention as an “enemy combatant.”
This ruling defeat’s the Bush administration’s assertion of unassailable authority to detain individuals captured abroad who are found with forces fighting against the United States.1 However, the ruling nevertheless establishes broad powers favorable to the Government in handling “enemy combatants.” Specifically, when an individual is afforded the chance to challenge his designation as an “enemy combatant,” the Court stated that the government can use hearsay to establish its claim and that there is a presumption that the government’s designation is correct. This puts on the individual detained the burden to prove that the designation was in error.
The Court’s ruling does not address the issue of how long and under what circumstances the government can postpone giving a detainee the oppor-tunity to challenge his designation. In Hamdi’s case, the wait of approximately 2 ½ years was not held to be unlawful; there was no government argument that security exigencies made it imprudent for the government to have to deal with the issue at this time.
III. Hamdi’s Right to Challenge His Designation as an “Enemy Combatant”
Only Justice Thomas sided with the Government in its position that Hamdi had no right to challenge his detention as an enemy combatant. Justice Thomas argued that the detention is authorized by the Executive’s war powers in Article I of the Constitution. The other eight justices all agreed that Hamdi has the right to challenge his enemy combatant status, but they differed sharply as to whether his detention should be continued.
A. Justice O’Connor’s Opinion. The Court’s judgment was announced by Justice Sandra O’Connor (joined by Chief Justice Rehnquist, Justice Kennedy and Justice Breyer).3 The Court ruled that Hamdi had the right to challenge his detention as an “enemy combatant” through the habeas corpus petition; that the Government can use hearsay evidence as a basis for detention, and that there is a presumption that the Government’s evidence is correct.
B. The Scalia-Stevens Dissent. It is not very often that Justices Scalia and Stevens find themselves on the same side of difficult issues. But Justice joined in Justice Scalia’s dissent here. Basically, Justice Scalia argued that unless Congress suspends the writ of habeas corpus, then Hamdi must be freed. Article I, Section 9, clause 2 of the Constitution gives Congress the power to determine when the writ of habeas corpus should be suspended because of national emergency. Since Congress did not suspend the writ, Hamdi should go free.
C. The Souter-Ginsberg Dissent. Justices Souter and Ginsberg contend that Congress’ Authorization for the Use of Military Force, passed in September, 2001, did not empower the military to detain Hamdi.
IV. Postscript
In late September, 2004, the Government released Hamdi, allowing him to fly to Saudi Arabia, where he will then renounce his U. S. citizenship and never again be allowed to enter the United States.
1. After his capture in Afghanistan, and after learning that Hamdi was an American citizen, he was eventually brought to the United States. This case does not address what Hamdi’s rights would be if he were being detained overseas.
3. Justice O’Connor’s ruling represents a majority of the Justices (5) because Justice Thomas concurred in the legality of Hamdi’s detention.
© 2006 C. Paul Smith
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Contact the Web Master, Jimmy Smith, at jrs76@hotmail.com
or visit his website at www.jimmyandheather.com