Wednesday Writs: Hamdi v. Rumsfeld

[WW1] In the years following the terrorist attacks of September 11, 2001, Congress passed the Authorization of Use of Military Force (AUMF) resolution, giving their blessing to President Bush to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” or “harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Following the resolution, the US Military entered Afghanistan, with a mission to defeat al Qaeda and the Taliban. Their efforts led to the capture and detention of suspected enemy combatants, many of whom were shipped to Guantanamo Bay for holding. Among them was Yaser Esam Hamdi, a then-21 year old suspected Taliban fighter captured by a group of anti-Taliban forces, who then delivered him into the hands of the United States military. Hamdi arrived at Gitmo in January 2002.

Suspected enemy combatants such as those at Gitmo were not permitted access to counsel, nor did they receive any due process such as formal charges or proceedings or other rights afforded to US citizens. But with Hamdi, the government ran into a wrinkle: He was, in fact, a US citizen, born in the state of Louisiana in 1980.

Upon this revelation, he was moved to a stateside naval brig. In July 2002, Hamdi’s father filed a petition for writ of habeas corpus in the US District Court for the Eastern District of Virginia as Yaser Hamdi’s next friend, alleging his son had been illegally detained and deprived of his constitutional rights of due process. The petition asked for Hamdi to appointed counsel, that interrogations of Hamdi cease, that the court declare his detention was illegal and that his 5th and 14th amendment rights as an American citizen were violated, that Hamdi be granted an evidentiary hearing, and that he be released from custody.  The petition asserted that Hamdi had been in Afghanistan for only two months at the time of the attacks on America, and that he was there doing “relief work” and became trapped when conflict broke out.

The court granted Hamdi’s father standing as next friend and appointed the federal public defender to represent his interests. The US government appealed to the Fourth Circuit, who reversed the District Court’s order on grounds that the government’s security and defense interests were not granted due deference. The appeals court further ordered the lower court to conduct an inquiry into the government’s contention that Hamdi was an enemy combatant, which if true, according to the Fourth Circuit, would render his detention lawful.

The government then filed a motion to dismiss in District Court, submitting a sworn declaration from Michael Mobbs, Special Advisor to the Under Secretary for Defense, which claimed Hamdi was affiliated with and received training from a Taliban military unit; that he was armed with a Kalishnakov rifle at the time of his capture; and that US military screening teams had deemed him an enemy combatant based on his affiliation with al Qaed and the Taliban. The District Court found that the Mobbs Declaration fell short of a substantive basis for the government’s claims, and ordered the disclosure of several documents, included Hamdi’s statements and lists of interrogators and other witnesses. While the government appealed the order to the Fourth Circuit, the District Court also submitted to the Appeals Court a certified question as to whether the Mobbs Declaration alone was sufficient for a judicial determination of enemy combatant status. The Fourth Circuit did not answer directly, but reversed the lower court’s order again, finding the Declaration’s facts surrounding Hamdi’s capture in a “zone of active combat in a foreign theatre of conflict” sufficient, “if accurate”, and dismissed the habeas petition. The Appeals Court further rejected Hamdi’s claims that his detention violated both federal law and the Geneva Convention, and that his citizenship changed the relevant legal analysis and entitled him to more strenuous protections that a foreign detainee. The Court disagreed, citing the 1942 case of Ex Parte Quirin: ““[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.”

Hamdi appealed to the Supreme Court, in our case of the week, Hamdi v. Rumsfeld.

Writing for the plurality, joined by Chief Justice Rehnquist and Justices Breyer, and Kennedy, Justice O’Connor sought to answer whether the detention of a citizen who is considered an “enemy combatant” is authorized. Hamdi, of course, took the position that the answer was no. He relied on 18 USC 4001(a), a 1961 law prohibiting the detention of citizens except pursuant to an act of Congress. The law was passed as part of an effort to repeal the Emergency Detention Act before it shamefully resulted in another situation like the internment of Japanese Americans during World War II.

The government argued that 4001 did not apply to military detention, and that even if it did apply, the AUMF was an act of Congress which permitted Hamdi’s detainment.

The Court agreed that AUMF was applicable, even though it never mentions detention:

The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.

O’Connor wrote about the traditional view of enemy captives, dating back to the Nuremberg trials: their captivity was not punitive but preventative. The intent was to remove them from the theatre of war and deny the enemy of the service of the captured. Nothing in this analysis differentiated a foreign national from a US citizen taking up with the enemy, as far as the intent of the detention.

The Court conceded that the AUMF did not authorize indefinite detention, and that a “clearly established principle of the law of war” is that those detained for no reason other than their status as an enemy combatant, not as a war criminal, must be released and repatriated promptly following a ceasefire. But Hamdi argued, and the government recognized, that the indefinite nature of his detention was at issue given the nebulous nature or “malleable” of a “war on terror”. The government admitted the hostilities  were unlikely to lend themselves to formal ceasefire. O’Connor did not view Hamdi’s situation as such:

Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. …The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.

The Court next analyzed Hamdi’s claim to the right of due process and there, he found a more sympathetic court. Hamdi averred that holding him based on the Mobbs Declaration, which he described as “third-hand hearsay”, was a violation of his constitutional rights. He demanded a “meaningful and timely hearing”, a process the government claimed was unworkable for detainees like Hamdi. (As an aside, the government disagreed that Hamdi had been granted no right to be heard; after all, he had been thoroughly interrogated.)

Both parties agreed that a writ of habeas was available under federal law for any citizen on American soil, including the right to contest the facts underlying the detention. However, the government argued that ample due process was afforded Hamdi based on the presentation of the Mobbs Declaration, in part because the “uncontested” fact that Hamdi was seized in a combat zone was sufficient, as a matter of law, to meet the government’s burden of presenting “some evidence”. The Court rejected the contention, because his mere residency in Afghanistan was all that was alleged by the affidavit. The Court reasoned that the government need also show that Hamdi was an active participant in hostilities against the United States, which was neither set out in the Declaration nor conceded by Hamdi.

The government further argued that the judicial system lacked the competency to make decisions in military matters, which should be left to the Executive. They advocated a legal standard of “some evidence”, meaning that any evidence by the government would be presumed true, and any such evidence which would support the allegation is sufficient without any weighing of its strength. Hamdi countered that this gave undue deference to the will of the Executive, and that he was entitled to give evidence in his own favor before a neutral tribunal. The Court acknowledged the substantial concerns of the government on national security and Hamdi’s equally important concern of his right to liberty as an American citizen. But the Court also noted that it had been careful through the years not to minimize the latter, and declared it “will not do so today.”

Moreover, as critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. … We reaffirm today the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails.

The plurality opinion concluded that, as a citizen detainee, Hamdi was entitled to notice of the facts supporting his classification as an enemy combatant and an opportunity to offer rebuttal before a neutral tribunal. The Court suggested that the government’s facts could be considered a rebuttable presumption, and that evidentiary rules may be more relaxed that in civilian courts, allowing for hearsay evidence. Finally, the Court affirmed Hamdi’s right to counsel.

Justice Souter, joined by Justice Ginsberg, agreed with the latter half of the plurality decision which granted procedural due process rights to detained citizens such as Hamdi. However, he disagreed with the Court’s conclusion that the AUMF permitted the detention at all.  Souter, pointing out that the AUMF does not contain any provision for the detention of American citizens, believed the plurality’s interpretation that it did a stretch, and one too tenuous to support the government’s actions:

When, therefore, Congress repealed the 1950 Act and adopted §4001(a) for the purpose of avoiding another Korematsu, it intended to preclude reliance on vague congressional authority (for example, providing “accommodations” for those subject to removal) as authority for detention or imprisonment at the discretion of the Executive (maintaining detention camps of American citizens, for example). In requiring that any Executive detention be “pursuant to an Act of Congress,” then, Congress necessarily meant to require a congressional enactment that clearly authorized detention or imprisonment.

Souter does concede that the AUMF authorizes actions consistent with the laws of war, including the Geneva Convention. If Hamdi was treated as a prisoner of war -for whom there are procedural rights- then his treatment would be lawful. But the government denied he had such status.

Justice Thomas, finding the government’s compelling interests overriding, wrote a dissent in which he would defer completely to the executive branch and the military’s decision making, believing the judicial branch unsuitable for such matters.

Justice Scalia, joined by Justice Stevens, dissented. He believed the government had only two options: detention under suspension of habeas corpus, or traditional criminal process -and suspension of habeas had not occurred. Citing the founders, as is the Scalia way:

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.

Hamdi, Scalia said, should be handed over for criminal prosecution or released. His dissent advocated most strongly against the authority of the executive branch in favor of individual liberty.

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis—that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.

The Hamdi decision was released in June 2004. In October of 2004, he agreed to renounce his citizenship and was deported to Saudi Arabia. He agreed not to sue the US over his detention, and not to leave Saudi Arabia without notifying the Saudi officials.

[WW2] In other terrorism-related SCOTUS news, the Court will decide whether surviving Boston Marahon bomber Dzhokhar Tsarnaev received a fair trial.

[WW3] SCOTUS won’t, however, aid President Trump in his efforts to speed up some federal executions. Not yet, anyway.

[WW4] Elon Musk’s court victory over the man he baselessly called a pedophile may mark new territory in online defamation cases.

[WW5] The Supremes will take up the case of a convicted double murderer who was sentenced to death but argues that the jury did not give enough consideration to his terrible childhood.

[WW6] Breaking news: Elizabeth Warren earned a modest $63,000 a year over 30 years in the private practice of corporate law.

[WW7] In a twist on the usual story, a newspaper threatens to sue for defamation. The Atlanta Journal Constitution says the new movie “Richard Jewell” falsely depicts the newspaper as reckless in its publication of stories surrounding Jewell, the original suspect of the Atlanta Olympic bombing.

[WW8] In keeping with this week’s unintentional theme of defamation, perennial headline George Zimmerman is suing the family of Trayvon Martin, the teenager he killed.

[WW9] The World Anti-Doping Agency found that Russia tampered with its testing results and banned the country from competing in the Olympics for four years, though the athletes may compete as “neutral athletes”. Vlad vows an appeal.