<< Back SUPREME
COURT DECISION HAMDI et al. v. RUMSFELD, SECRETARY OF certiorari to the No. 03-6696. Argued April 28, 2004--Decided June 28, 2004 After Congress passed
a resolution--the Authorization for Use of Military Force (AUMF)--empowering
the President to "use all necessary and appropriate force" against
"nations, organizations, or persons" that he determines "planned,
authorized, committed, or aided" in the September 11, 2001, al Qaeda
terrorist attacks, the President ordered the Armed Forces to Afghanistan
to subdue al Qaeda and quell the supporting Taliban regime. Petitioner
Hamdi, an American citizen whom the Government has classified as an "enemy
combatant" for allegedly taking up arms with the Taliban during the
conflict, was captured in Afghanistan and presently is detained at a naval
brig in Charleston, S. C. Hamdi's father filed this habeas petition
on his behalf under 28 U. S. C. §2241, alleging, among other
things, that the Government holds his son in violation of the Fifth and
Fourteenth Amendments. Although the petition did not elaborate on the
factual circumstances of Hamdi's capture and detention, his father has
asserted in other documents in the record that Hamdi went to Held: The judgment is vacated, and the case
is remanded. Justice O'Connor, joined by The Chief Justice, Justice Kennedy, and
Justice Breyer, concluded that although
Congress authorized the detention of combatants in the narrow circumstances
alleged in this case, due process demands that a citizen held in the United
States as an enemy combatant be given a meaningful opportunity to contest
the factual basis for that detention before a neutral decisionmaker. Pp. 14-15. Justice Souter, joined by Justice Ginsburg, concluded that Hamdi's
detention is unauthorized, but joined with the plurality to conclude that
on remand Hamdi should have a meaningful opportunity to offer evidence
that he is not an enemy combatant. Pp. 2-3, 15. O'Connor, J., announced the judgment of
the Court and delivered an opinion, in which Rehnquist,
C. J., and Kennedy
and Breyer, JJ.,
joined. Souter, J., filed an opinion concurring
in part, dissenting in part, and concurring in the judgment, in which
Ginsburg, J., joined. Scalia, J., filed a dissenting opinion,
in which Stevens, J.,
joined. Thomas, J., filed a dissenting opinion. YASER ESAM HAMDI
and ESAM FOUAD HAMDI,
as on writ of certiorari to the [June 28, 2004] Justice O'Connor announced the judgment
of the Court and delivered an opinion, in which The Chief Justice, Justice Kennedy, and Justice Breyer join. At
this difficult time in our Nation's history, we are called upon to consider
the legality of the Government's detention of a I On
This
case arises out of the detention of a man whom the Government alleges
took up arms with the Taliban during this conflict. His name is Yaser
Esam Hamdi. Born an American citizen in In
June 2002, Hamdi's father, Esam Fouad Hamdi, filed the present petition
for a writ of habeas corpus under 28 U. S. C. §2241 in the Eastern
District of Virginia, naming as petitioners his son and himself as next
friend. The elder Hamdi alleges in the petition that he has had no contact
with his son since the Government took custody of him in 2001, and that
the Government has held his son "without access to legal counsel
or notice of any charges pending against him." App. 103, 104. The
petition contends that Hamdi's detention was not legally authorized. The
District Court found that Hamdi's father was a proper next friend, appointed
the federal public defender as counsel for the petitioners, and ordered
that counsel be given access to Hamdi. On
remand, the Government filed a response and a motion to dismiss the petition.
It attached to its response a declaration from one Michael Mobbs (hereinafter
"Mobbs Declaration"), who identified himself as Special Advisor
to the Under Secretary of Defense for Policy. Mobbs indicated that in
this position, he has been "substantially involved with matters related
to the detention of enemy combatants in the current war against the al
Qaeda terrorists and those who support and harbor them (including the
Taliban)." App. 148. He expressed his "familiar[ity]" with
Department of Defense and United States military policies and procedures
applicable to the detention, control, and transfer of al Qaeda and Taliban
personnel, and declared that "[b]ased upon my review of relevant
records and reports, I am also familiar with the facts and circumstances
related to the capture of ... Hamdi and his detention by U. S. military
forces." Ibid. Mobbs
then set forth what remains the sole evidentiary support that the Government
has provided to the courts for Hamdi's detention. The declaration states
that Hamdi "traveled to After
the Government submitted this declaration, the Fourth Circuit directed
the District Court to proceed in accordance with its earlier ruling and,
specifically, to " 'consider the sufficiency of the Mobbs Declaration
as an independent matter before proceeding further.' " 316 F. 3d
at 450, 462 (2003). The
District Court found that the Mobbs Declaration fell "far short"
of supporting Hamdi's detention. App. 292. It criticized the generic and
hearsay nature of the affidavit, calling it "little more than the
government's 'say-so.' " Id.,
at 298. It ordered the Government to turn over numerous materials for
in camera review, including copies of all
of Hamdi's statements and the notes taken from interviews with him that
related to his reasons for going to Afghanistan and his activities therein;
a list of all interrogators who had questioned Hamdi and their names and
addresses; statements by members of the Northern Alliance regarding Hamdi's
surrender and capture; a list of the dates and locations of his capture
and subsequent detentions; and the names and titles of the United States
Government officials who made the determinations that Hamdi was an enemy
combatant and that he should be moved to a naval brig. Id.,
at 185-186. The court indicated that all of these materials were necessary
for "meaningful judicial review" of whether Hamdi's detention
was legally authorized and whether Hamdi had received sufficient process
to satisfy the Due Process Clause of the Constitution and relevant treaties
or military regulations. Id.,
at 291-292. The
Government sought to appeal the production order, and the District Court
certified the question of whether the Mobbs Declaration, " 'standing
alone, is sufficient as a matter of law to allow meaningful judicial review
of [Hamdi's] classification as an enemy combatant.' " 316 F. 3d,
at 462. The Fourth Circuit reversed, but did not squarely answer the certified
question. It instead stressed that, because it was "undisputed that
Hamdi was captured in a zone of active combat in a foreign theater of
conflict," no factual inquiry or evidentiary hearing allowing Hamdi
to be heard or to rebut the Government's assertions was necessary or proper.
Id., at 459. Concluding that the factual
averments in the Mobbs Declaration, "if accurate," provided
a sufficient basis upon which to conclude that the President had constitutionally
detained Hamdi pursuant to the President's war powers, it ordered the
habeas petition dismissed. Id.,
at 473. The Fourth Circuit emphasized that the "vital purposes"
of the detention of uncharged enemy combatants--preventing those combatants
from rejoining the enemy while relieving the military of the burden of
litigating the circumstances of wartime captures halfway around the globe--were
interests "directly derived from the war powers of Articles I and
II." Id., at 465-466. In that court's view, because
"Article III contains nothing analogous to the specific powers of
war so carefully enumerated in Articles I and II," id., at 463, separation of powers principles
prohibited a federal court from "delv[ing] further into Hamdi's status
and capture," id.,
at 473. Accordingly, the District Court's more vigorous inquiry "went
far beyond the acceptable scope of review." Ibid. On
the more global question of whether legal authorization exists for the
detention of citizen enemy combatants at all, the Fourth Circuit rejected
Hamdi's arguments that 18 U. S. C. §4001(a) and Article 5 of
the Geneva Convention rendered any such detentions unlawful. The court
expressed doubt as to Hamdi's argument that §4001(a), which provides that
"[n]o citizen shall be imprisoned or otherwise detained by the United
States except pursuant to an Act of Congress," required express congressional
authorization of detentions of this sort. But it held that, in any event,
such authorization was found in the post-September 11 Authorization for
Use of Military Force. 316 F. 3d, at 467. Because "capturing
and detaining enemy combatants is an inherent part of warfare," the
court held, "the 'necessary and appropriate force' referenced in
the congressional resolution necessarily includes the capture and detention
of any and all hostile forces arrayed against our troops." Ibid.; see also id., at 467-468 (noting that Congress, in 10 U. S. C.
§956(5), had specifically authorized the expenditure of funds for keeping
prisoners of war and persons whose status was determined "to be similar
to prisoners of war," and concluding that this appropriation measure
also demonstrated that Congress had "authorized [these individuals']
detention in the first instance"). The court likewise rejected Hamdi's
Geneva Convention claim, concluding that the convention is not self-executing
and that, even if it were, it would not preclude the Executive from detaining
Hamdi until the cessation of hostilities. 316 F. 3d, at 468-469. Finally,
the Fourth Circuit rejected Hamdi's contention that its legal analyses
with regard to the authorization for the detention scheme and the process
to which he was constitutionally entitled should be altered by the fact
that he is an American citizen detained on American soil. Relying on Ex parte Quirin, 317
U. S. 1 (1942), the court emphasized 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." 316 F.3d, at 475. "The privilege of citizenship,"
the court held, "entitles Hamdi to a limited judicial inquiry into
his detention, but only to determine its legality under the war powers
of the political branches. At least where it is undisputed that he was
present in a zone of active combat operations, we are satisfied that the
Constitution does not entitle him to a searching review of the factual
determinations underlying his seizure there." Ibid. The
Fourth Circuit denied rehearing en banc, 337 F. 3d 335 (2003), and
we granted certiorari. 540 U. S. __ (2004). We now vacate the judgment
below and remand. II The
threshold question before us is whether the Executive has the authority
to detain citizens who qualify as "enemy combatants." There
is some debate as to the proper scope of this term, and the Government
has never provided any court with the full criteria that it uses in classifying
individuals as such. It has made clear, however, that, for purposes of
this case, the "enemy combatant" that it is seeking to detain
is an individual who, it alleges, was " 'part of or supporting
forces hostile to the United States or coalition partners' "
in Afghanistan and who " 'engaged in an armed conflict against
the United States' " there. Brief for Respondents 3. We therefore
answer only the narrow question before us: whether the detention of citizens
falling within that definition is authorized. The
Government maintains that no explicit congressional authorization is required,
because the Executive possesses plenary authority to detain pursuant to
Article II of the Constitution. We do not reach the question whether Article
II provides such authority, however, because we agree with the Government's
alternative position, that Congress has in fact authorized Hamdi's detention,
through the AUMF. Our
analysis on that point, set forth below, substantially overlaps with our
analysis of Hamdi's principal argument for the illegality of his detention.
He posits that his detention is forbidden by 18 U. S. C. §4001(a).
Section 4001(a) states that "[n]o citizen shall be imprisoned or
otherwise detained by the United States except pursuant to an Act of Congress."
Congress passed §4001(a) in 1971 as part of a bill to repeal the Emergency
Detention Act of 1950, 50 U. S. C. §811 et
seq., which provided procedures for executive detention, during
times of emergency, of individuals deemed likely to engage in espionage
or sabotage. Congress was particularly concerned about the possibility
that the Act could be used to reprise the Japanese internment camps of
World War II. H. R. Rep. No. 92-116 (1971); id.,
at 4 ("The concentration camp implications of the legislation render
it abhorrent"). The Government again
presses two alternative positions. First, it argues that §4001(a), in
light of its legislative history and its location in Title 18, applies
only to "the control of civilian prisons and related detentions,"
not to military detentions. Brief for Respondents 21. Second, it maintains
that §4001(a) is satisfied, because Hamdi is being detained "pursuant
to an Act of Congress"--the AUMF. Id.,
at 21-22. Again, because we conclude that the Government's second assertion
is correct, we do not address the first. In other words, for the reasons
that follow, we conclude that the AUMF is explicit congressional authorization
for the detention of individuals in the narrow category we describe (assuming,
without deciding, that such authorization is required), and that the AUMF
satisfied §4001(a)'s requirement that a detention be "pursuant to
an Act of Congress" (assuming, without deciding, that §4001(a) applies
to military detentions). 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. The
capture and detention of lawful combatants and the capture, detention,
and trial of unlawful combatants, by "universal agreement and practice,"
are "important incident[s] of war." Ex parte Quirin, 317
U. S., at 28. The purpose of detention is to prevent captured
individuals from returning to the field of battle and taking up arms once
again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross
571, 572 (2002) ("[C]aptivity in war is 'neither revenge, nor punishment,
but solely protective custody, the only purpose of which is to prevent
the prisoners of war from further participation in the war' "
(quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am.
J. Int'l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents
788 (rev. 2d ed. 1920) ("The time has long passed when 'no quarter'
was the rule on the battlefield ... . It is now recognized that
'Captivity is neither a punishment nor an act of vengeance,' but 'merely
a temporary detention which is devoid of all penal character.' ... 'A
prisoner of war is no convict; his imprisonment is a simple war measure.' "
(citations omitted); cf. In re Territo, 156 F. 2d 142, 145 (CA9 1946)
("The object of capture is to prevent the captured individual from
serving the enemy. He is disarmed and from then on must be removed as
completely as practicable from the front, treated humanely, and in time
exchanged, repatriated, or otherwise released" (footnotes omitted)). There
is no bar to this Nation's holding one of its own citizens as an enemy
combatant. In Quirin,
one of the detainees, Haupt, alleged that he was a naturalized United
States citizen. 317
U. S., at 20. We held that "[c]itizens who associate themselves
with the military arm of the enemy government, and with its aid, guidance
and direction enter this country bent on hostile acts, are enemy belligerents
within the meaning of ... the law of war." Id., at 37-38.
While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would
have precluded his mere detention for the duration of the relevant hostilities.
See id., at 30-31. See also Lieber Code, ¶ ;153,
Instructions for the Government of Armies of the United States in the
Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber, Miscellaneous
Writings, p. 273 (contemplating, in code binding the Union Army during
the Civil War, that "captured rebels" would be treated "as
prisoners of war"). Nor can we see any reason for drawing such a
line here. A citizen, no less than an alien, can be "part of or supporting
forces hostile to the United States or coalition partners" and "engaged
in an armed conflict against the United States," Brief for Respondents
3; such a citizen, if released, would pose the same threat of returning
to the front during the ongoing conflict. In
light of these principles, it is of no moment that the AUMF does not use
specific language of detention. Because detention to prevent a combatant's
return to the battlefield is a fundamental incident of waging war, in
permitting the use of "necessary and appropriate force," Congress
has clearly and unmistakably authorized detention in the narrow circumstances
considered here. Hamdi
objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now
subject. The Government responds that "the detention of enemy combatants
during World War II was just as 'indefinite' while that war was being
fought." Id., at
16. We take Hamdi's objection to be not to the lack of certainty regarding
the date on which the conflict will end, but to the substantial prospect
of perpetual detention. We recognize that the national security underpinnings
of the "war on terror," although crucially important, are broad
and malleable. As the Government concedes, "given its unconventional
nature, the current conflict is unlikely to end with a formal cease-fire
agreement." Ibid.
The prospect Hamdi raises is therefore not far-fetched. If the Government
does not consider this unconventional war won for two generations, and
if it maintains during that time that Hamdi might, if released, rejoin
forces fighting against the United States, then the position it has taken
throughout the litigation of this case suggests that Hamdi's detention
could last for the rest of his life. It
is a clearly established principle of the law of war that detention may
last no longer than active hostilities. See Article 118 of the Geneva
Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12,
1949, [1955] 6 U. S. T. 3316, 3406, T. I. A. S. No. 3364 ("Prisoners
of war shall be released and repatriated without delay after the cessation
of active hostilities"). See also Article 20 of the Hague Convention
(II) on Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1817
(as soon as possible after "conclusion of peace"); Hague Convention
(IV), supra, Oct. 18, 1907, 36 Stat. 2301("conclusion
of peace" (Art. 20)); Geneva Convention, supra, July 27, 1929, 47 Stat. 2055 (repatriation
should be accomplished with the least possible delay after conclusion
of peace (Art. 75)); Praust, Judicial Power to Determine the Status and
Rights of Persons Detained without Trial, 44 Harv. Int'l L. J. 503, 510-511
(2003) (prisoners of war "can be detained during an armed conflict,
but the detaining country must release and repatriate them 'without delay
after the cessation of active hostilities,' unless they are being lawfully
prosecuted or have been lawfully convicted of crimes and are serving sentences"
(citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 T. I .A.
S., at 3384, 3392, 3406, 3418)). Hamdi
contends that the AUMF does not authorize indefinite or perpetual detention.
Certainly, we agree that indefinite detention for the purpose of interrogation
is not authorized. 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. See, e.g., Constable, U. S. Launches New
Operation in Afghanistan, Washington Post, Mar. 14, 2004, p. A22 (reporting
that 13,500 United States troops remain in Afghanistan, including several
thousand new arrivals); J. Abizaid, Dept. of Defense, Gen. Abizaid Central
Command Operations Update Briefing, Apr. 30, 2004, http://www.defenselink.mil/transcripts/2004/tr20040430-1402.html
(as visited June 8, 2004, and available in the Clerk of Court's case file)
(media briefing describing ongoing operations in Afghanistan involving
20,000 United States troops). 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. Ex parte Milligan, 4 Wall. 2, 125 (1866),
does not undermine our holding about the Government's authority to seize
enemy combatants, as we define that term today. In that case, the Court
made repeated reference to the fact that its inquiry into whether the
military tribunal had jurisdiction to try and punish Milligan turned in
large part on the fact that Milligan was not a prisoner of war, but a
resident of Indiana arrested while at home there. Id.,
at 118, 131. That fact was central to its conclusion. Had Milligan been
captured while he was assisting Confederate soldiers by carrying a rifle
against Union troops on a Confederate battlefield, the holding of the
Court might well have been different. The Court's repeated explanations
that Milligan was not a prisoner of war suggest that had these different
circumstances been present he could have been detained under military
authority for the duration of the conflict, whether or not he was a citizen.1 Moreover,
as Justice Scalia acknowledges,
the Court in Ex parte Quirin,
317
U. S. 1 (1942), dismissed the language of Milligan that the petitioners had suggested prevented them
from being subject to military process. Post, at 17-18 (dissenting opinion). Clear in
this rejection was a disavowal of the New York State cases cited in Milligan, 4 Wall., at 128-129, on which
Justice Scalia relies. See id., at 128-129. Both Smith v. Shaw, 12 Johns. *257 (N. Y. 1815), and M'Connell v. Hampton, 12 Johns. *234 (N. Y. 1815), were civil suits
for false imprisonment. Even accepting that these cases once could have
been viewed as standing for the sweeping proposition for which Justice Scalia cites them--that the military
does not have authority to try an American citizen accused of spying against
his country during wartime--Quirin
makes undeniably clear that this is not the law today. Haupt, like the
citizens in Smith and
M'Connell, was accused of being a spy. The
Court in Quirin found
him "subject to trial and punishment by [a] military tribunal[ ]"
for those acts, and held that his citizenship did not change this result.
317
U. S., at 31, 37-38. Quirin was a unanimous opinion. It both
postdates and clarifies Milligan,
providing us with the most apposite precedent that we have on the question
of whether citizens may be detained in such circumstances. Brushing aside
such precedent--particularly when doing so gives rise to a host of new
questions never dealt with by this Court--is unjustified and unwise. To
the extent that Justice Scalia
accepts the precedential value of Quirin,
he argues that it cannot guide our inquiry here because "[i]n Quirin it was uncontested that the petitioners
were members of enemy forces," while Hamdi challenges his classification
as an enemy combatant. Post,
at 19. But it is unclear why, in the paradigm outlined by Justice Scalia, such a concession should
have any relevance. Justice Scalia
envisions a system in which the only options are congressional suspension
of the writ of habeas corpus or prosecution for treason or some other
crime. Post, at 1. He does not explain how his
historical analysis supports the addition of a third option--detention
under some other process after concession of enemy-combatant status--or
why a concession should carry any different effect than proof of enemy-combatant
status in a proceeding that comports with due process. To be clear, our
opinion only finds legislative authority to detain under the AUMF once
it is sufficiently clear that the individual is, in fact, an enemy combatant;
whether that is established by concession or by some other process that
verifies this fact with sufficient certainty seems beside the point. Further,
Justice Scalia largely
ignores the context of this case: a United States citizen captured in
a foreign combat zone. Justice Scalia refers to only one case involving
this factual scenario--a case in which a United States citizen-POW (a
member of the Italian army) from World War II was seized on the battlefield
in Sicily and then held in the United States. The court in that case held
that the military detention of that United States citizen was lawful.
See In re Territo, 156 F. 2d, at 148. Justice Scalia's treatment of that case--in a footnote--suffers
from the same defect as does his treatment of Quirin: Because Justice Scalia finds the fact of battlefield
capture irrelevant, his distinction based on the fact that the petitioner
"conceded" enemy combatant status is beside the point. See supra,
at 15-16. Justice Scalia can point to no case or other
authority for the proposition that those captured on a foreign battlefield
(whether detained there or in U. S. territory) cannot be detained
outside the criminal process. Moreover,
Justice Scalia presumably
would come to a different result if Hamdi had been kept in Afghanistan
or even Guantanamo Bay. See post,
at 25 (Scalia, J., dissenting). This creates a
perverse incentive. Military authorities faced with the stark choice of
submitting to the full-blown criminal process or releasing a suspected
enemy combatant captured on the battlefield will simply keep citizen-detainees
abroad. Indeed, the Government transferred Hamdi from Guantanamo Bay to
the United States naval brig only after it learned that he might be an
American citizen. It is not at all clear why that should make a determinative
constitutional difference. III Even
in cases in which the detention of enemy combatants is legally authorized,
there remains the question of what process is constitutionally due to
a citizen who disputes his enemy-combatant status. Hamdi argues that he
is owed a meaningful and timely hearing and that "extra-judicial
detention [that] begins and ends with the submission of an affidavit based
on third-hand hearsay" does not comport with the Fifth and Fourteenth
Amendments. Brief for Petitioners 16. The Government counters that any
more process than was provided below would be both unworkable and "constitutionally
intolerable." Brief for Respondents 46. Our resolution of this dispute
requires a careful examination both of the writ of habeas corpus, which
Hamdi now seeks to employ as a mechanism of judicial review, and of the
Due Process Clause, which informs the procedural contours of that mechanism
in this instance. A Though
they reach radically different conclusions on the process that ought to
attend the present proceeding, the parties begin on common ground. All
agree that, absent suspension, the writ of habeas corpus remains available
to every individual detained within the United States. U. S. Const.,
Art. I, §9, cl. 2 ("The Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it"). Only in the rarest of circumstances
has Congress seen fit to suspend the writ. See, e.g.,
Act of Mar. 3, 1863, ch. 81, §1, 12 Stat. 755; Act of April 20, 1871,
ch. 22, §4, 17 Stat. 14. At all other times, it has remained a critical
check on the Executive, ensuring that it does not detain individuals except
in accordance with law. See INS
v. St. Cyr, 533
U. S. 289, 301 (2001). All agree suspension of the writ has not
occurred here. Thus, it is undisputed that Hamdi was properly before an
Article III court to challenge his detention under 28 U. S. C.
§2241. Brief for Respondents 12. Further, all agree that §2241 and its
companion provisions provide at least a skeletal outline of the procedures
to be afforded a petitioner in federal habeas review. Most notably, §2243
provides that "the person detained may, under oath, deny any of the
facts set forth in the return or allege any other material facts,"
and §2246 allows the taking of evidence in habeas proceedings by deposition,
affidavit, or interrogatories. The
simple outline of §2241 makes clear both that Congress envisioned that
habeas petitioners would have some opportunity to present and rebut facts
and that courts in cases like this retain some ability to vary the ways
in which they do so as mandated by due process. The Government recognizes
the basic procedural protections required by the habeas statute, Id.,
at 37-38, but asks us to hold that, given both the flexibility of the
habeas mechanism and the circumstances presented in this case, the presentation
of the Mobbs Declaration to the habeas court completed the required factual
development. It suggests two separate reasons for its position that no
further process is due. B First,
the Government urges the adoption of the Fourth Circuit's holding below--that
because it is "undisputed" that Hamdi's seizure took place in
a combat zone, the habeas determination can be made purely as a matter
of law, with no further hearing or factfinding necessary. This argument
is easily rejected. As the dissenters from the denial of rehearing en
banc noted, the circumstances surrounding Hamdi's seizure cannot in any
way be characterized as "undisputed," as "those circumstances
are neither conceded in fact, nor susceptible to concession in law, because
Hamdi has not been permitted to speak for himself or even through counsel
as to those circumstances." 337 F. 3d 335, 357 (CA4 2003) (Luttig,
J., dissenting from denial of rehearing en banc); see also
id., at 371-372 (Motz, J., dissenting from denial of rehearing
en banc). Further, the "facts" that constitute the alleged concession
are insufficient to support Hamdi's detention. Under the definition of
enemy combatant that we accept today as falling within the scope of Congress'
authorization, Hamdi would need to be "part of or supporting forces
hostile to the United States or coalition partners" and "engaged
in an armed conflict against the United States" to justify his detention
in the United States for the duration of the relevant conflict. Brief
for Respondents 3. The habeas petition states only that "[w]hen seized
by the United States Government, Mr. Hamdi resided in Afghanistan."
App. 104. An assertion that one resided
in a country in which combat operations are taking place is not a concession
that one was "captured
in a zone of active combat operations in a foreign theater of war,"
316 F. 3d, at 459 (emphasis added), and certainly is not a concession
that one was "part of or supporting forces hostile to the United
States or coalition partners" and "engaged in an armed conflict
against the United States." Accordingly, we reject any argument that
Hamdi has made concessions that eliminate any right to further process. C The
Government's second argument requires closer consideration. This is the
argument that further factual exploration is unwarranted and inappropriate
in light of the extraordinary constitutional interests at stake. Under
the Government's most extreme rendition of this argument, "[r]espect
for separation of powers and the limited institutional capabilities of
courts in matters of military decision-making in connection with an ongoing
conflict" ought to eliminate entirely any individual process, restricting
the courts to investigating only whether legal authorization exists for
the broader detention scheme. Brief for Respondents 26. At most, the Government
argues, courts should review its determination that a citizen is an enemy
combatant under a very deferential "some evidence" standard.
Id., at 34 ("Under the some evidence standard, the focus
is exclusively on the factual basis supplied by the Executive to support
its own determination" (citing Superintendent,
Mass. Correctional Institution at Walpole v. Hill, 472
U. S. 445, 455-457 (1985)
(explaining that the some evidence standard "does not
require" a "weighing of the evidence," but rather calls
for assessing "whether there is any evidence in the record that could
support the conclusion")). Under this review, a court would assume
the accuracy of the Government's articulated basis for Hamdi's detention,
as set forth in the Mobbs Declaration, and assess only whether that articulated
basis was a legitimate one. Brief for Respondents 36; see also
316 F. 3d, at 473-474 (declining to address whether the
"some evidence" standard should govern the adjudication of such
claims, but noting that "[t]he factual averments in the [Mobbs] affidavit,
if accurate, are sufficient to confirm" the legality of Hamdi's detention). In
response, Hamdi emphasizes that this Court consistently has recognized
that an individual challenging his detention may not be held at the will
of the Executive without recourse to some proceeding before a neutral
tribunal to determine whether the Executive's asserted justifications
for that detention have basis in fact and warrant in law. See, e.g.,
Zadvydas v. Davis, 533
U. S. 678, 690 (2001); Addington
v. Texas, 441
U. S. 418, 425-427 (1979). He argues that the Fourth Circuit
inappropriately "ceded power to the Executive during wartime to define
the conduct for which a citizen may be detained, judge whether that citizen
has engaged in the proscribed conduct, and imprison that citizen indefinitely,"
Brief for Petitioners 21, and that due process demands that he receive
a hearing in which he may challenge the Mobbs Declaration and adduce his
own counter evidence. The District Court, agreeing with Hamdi, apparently
believed that the appropriate process would approach the process that
accompanies a criminal trial. It therefore disapproved of the hearsay
nature of the Mobbs Declaration and anticipated quite extensive discovery
of various military affairs. Anything less, it concluded, would not be
"meaningful judicial review." App. 291. Both
of these positions highlight legitimate concerns. And both emphasize the
tension that often exists between the autonomy that the Government asserts
is necessary in order to pursue effectively a particular goal and the
process that a citizen contends he is due before he is deprived of a constitutional
right. The ordinary mechanism that we use for balancing such serious competing
interests, and for determining the procedures that are necessary to ensure
that a citizen is not "deprived of life, liberty, or property, without
due process of law," U. S. Const., Amdt. 5, is the test that
we articulated in Mathews
v. Eldridge, 424
U. S. 319 (1976). See, e.g.,
Heller v. Doe, 509
U. S. 312, 330-331 (1993); Zinermon
v. Burch, 494
U. S. 113, 127-128 (1990); United
States v. Salerno,
481
U. S. 739, 746 (1987); Schall
v. Martin, 467
U. S. 253, 274-275 (1984); Addington
v. Texas, supra, at 425. Mathews dictates that the process due in
any given instance is determined by weighing "the private interest
that will be affected by the official action" against the Government's
asserted interest, "including the function involved" and the
burdens the Government would face in providing greater process. 424
U. S., at 335. The Mathews
calculus then contemplates a judicious balancing of these concerns, through
an analysis of "the risk of an erroneous deprivation" of the
private interest if the process were reduced and the "probable value,
if any, of additional or substitute safeguards." Ibid.
We take each of these steps in turn. 1 It
is beyond question that substantial interests lie on both sides of the
scale in this case. Hamdi's "private interest ... affected by the
official action," ibid.,
is the most elemental of liberty interests--the interest in being free
from physical detention by one's own government. Foucha
v. Louisiana, 504
U. S. 71, 80 (1992) ("Freedom from bodily restraint has
always been at the core of the liberty protected by the Due Process Clause
from arbitrary governmental action"); see also Parham v. J. R.,
442
U. S. 584, 600 (1979) (noting
the "substantial liberty interest in not being confined unnecessarily").
"In our society liberty is the norm," and detention without
trial "is the carefully limited exception." Salerno, supra, at 755. "We have always been careful not to 'minimize
the importance and fundamental nature' of the individual's right to liberty,"
Foucha, supra, at 80 (quoting Salerno, supra, at 750), and we will not do so today. Nor
is the weight on this side of the Mathews
scale offset by the circumstances of war or the accusation of treasonous
behavior, for "[i]t is clear that commitment for any purpose constitutes a significant deprivation
of liberty that requires due process protection," Jones v. United States, 463
U. S. 354, 361 (1983) (emphasis added; internal quotation marks
omitted), and at this stage in the Mathews
calculus, we consider the interest of the erroneously
detained individual. Carey
v. Piphus, 435
U. S. 247, 259 (1978) ("Procedural due process rules are
meant to protect persons not from the deprivation, but from the mistaken
or unjustified deprivation of life, liberty, or property"); see also id., at 266 (noting "the importance
to organized society that procedural due process be observed," and
emphasizing that "the right to procedural due process is 'absolute'
in the sense that it does not depend upon the merits of a claimant's substantive
assertions"). Indeed, as amicus
briefs from media and relief organizations emphasize, the risk of erroneous
deprivation of a citizen's liberty in the absence of sufficient process
here is very real. See Brief for AmeriCares et al. as Amici Curiae 13-22 (noting ways in which "[t]he nature
of humanitarian relief work and journalism present a significant risk
of mistaken military detentions"). 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. See
Ex parte Milligan, 4 Wall., at 125 ("[The Founders] knew--the
history of the world told them--the nation they were founding, be its
existence short or long, would be involved in war; how often or how long
continued, human foresight could not tell; and that unlimited power, wherever
lodged at such a time, was especially hazardous to freemen"). Because
we live in a society in which "[m]ere public intolerance or animosity
cannot constitutionally justify the deprivation of a person's physical
liberty," O'Connor v. Donaldson, 422
U. S. 563, 575 (1975), our starting point for the Mathews v. Eldridge analysis is unaltered by the allegations surrounding
the particular detainee or the organizations with which he is alleged
to have associated. 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. 2 On
the other side of the scale are the weighty and sensitive governmental
interests in ensuring that those who have in fact fought with the enemy
during a war do not return to battle against the United States. As discussed
above, supra,
at 10, the law of war and the realities of combat may render
such detentions both necessary and appropriate, and our due process analysis
need not blink at those realities. Without doubt, our Constitution recognizes
that core strategic matters of warmaking belong in the hands of those
who are best positioned and most politically accountable for making them.
Department of Navy v. Egan, 484
U. S. 518, 530 (1988) (noting the reluctance of the courts "to
intrude upon the authority of the Executive in military and national security
affairs"); Youngstown Sheet &
Tube Co. v. Sawyer,
343
U. S. 579, 587 (1952) (acknowledging "broad powers in military
commanders engaged in day-to-day fighting in a theater of war"). The
Government also argues at some length that its interests in reducing the
process available to alleged enemy combatants are heightened by the practical
difficulties that would accompany a system of trial-like process. In its
view, military officers who are engaged in the serious work of waging
battle would be unnecessarily and dangerously distracted by litigation
half a world away, and discovery into military operations would both intrude
on the sensitive secrets of national defense and result in a futile search
for evidence buried under the rubble of war. Brief for Respondents 46-49.
To the extent that these burdens are triggered by heightened procedures,
they are properly taken into account in our due process analysis. 3 Striking
the proper constitutional balance here is of great importance to the Nation
during this period of ongoing combat. But it is equally vital that our
calculus not give short shrift to the values that this country holds dear
or to the privilege that is American citizenship. It is during our most
challenging and uncertain moments that our Nation's commitment to due
process is most severely tested; and it is in those times that we must
preserve our commitment at home to the principles for which we fight abroad.
See Kennedy v. Mendoza-Martinez,
372
U. S. 144, 164-165 (1963) ("The imperative necessity for
safeguarding these rights to procedural due process under the gravest
of emergencies has existed throughout our constitutional history, for
it is then, under the pressing exigencies of crisis, that there is the
greatest temptation to dispense with guarantees which, it is feared, will
inhibit government action"); see also United
States v. Robel,
389
U. S. 258, 264 (1967) ("It would indeed be ironic if, in
the name of national defense, we would sanction the subversion of one
of those liberties ... which makes the defense of the Nation worthwhile"). With
due recognition of these competing concerns, we believe that neither the
process proposed by the Government nor the process apparently envisioned
by the District Court below strikes the proper constitutional balance
when a United States citizen is detained in the United States as an enemy
combatant. That is, "the risk of erroneous deprivation" of a
detainee's liberty interest is unacceptably high under the Government's
proposed rule, while some of the "additional or substitute procedural
safeguards" suggested by the District Court are unwarranted in light
of their limited "probable value" and the burdens they may impose
on the military in such cases. Mathews, 424
U. S., at 335. We
therefore hold that a citizen-detainee seeking to challenge his classification
as an enemy combatant must receive notice of the factual basis for his
classification, and a fair opportunity to rebut the Government's factual
assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill,
470
U. S. 532, 542 (1985) ("An essential principle of due process
is that a deprivation of life, liberty, or property 'be preceded by notice
and opportunity for hearing appropriate to the nature of the case' "
(quoting Mullane v. Central Hanover Bank & Trust Co., 339
U. S. 306, 313 (1950)); Concrete
Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508
U. S. 602, 617 (1993) ("due process requires a 'neutral
and detached judge in the first instance' " (quoting Ward v. Monroeville, 409
U. S. 57, 61-62 (1972)). "For more than a century the central
meaning of procedural due process has been clear: 'Parties whose rights
are to be affected are entitled to be heard; and in order that they may
enjoy that right they must first be notified.' It is equally fundamental
that the right to notice and an opportunity to be heard 'must be granted
at a meaningful time and in a meaningful manner.' " Fuentes
v. Shevin, 407
U. S. 67, 80 (1972) (quoting Baldwin
v. Hale, 1 Wall. 223,
233 (1864); Armstrong
v. Manzo, 380
U. S. 545, 552 (1965) (other citations omitted)). These essential
constitutional promises may not be eroded. At
the same time, the exigencies of the circumstances may demand that, aside
from these core elements, enemy combatant proceedings may be tailored
to alleviate their uncommon potential to burden the Executive at a time
of ongoing military conflict. Hearsay, for example, may need to be accepted
as the most reliable available evidence from the Government in such a
proceeding. Likewise, the Constitution would not be offended by a presumption
in favor of the Government's evidence, so long as that presumption remained
a rebuttable one and fair opportunity for rebuttal were provided. Thus,
once the Government puts forth credible evidence that the habeas petitioner
meets the enemy-combatant criteria, the onus could shift to the petitioner
to rebut that evidence with more persuasive evidence that he falls outside
the criteria. A burden-shifting scheme of this sort would meet the goal
of ensuring that the errant tourist, embedded journalist, or local aid
worker has a chance to prove military error while giving due regard to
the Executive once it has put forth meaningful support for its conclusion
that the detainee is in fact an enemy combatant. In the words of Mathews,
process of this sort would sufficiently address the "risk of erroneous
deprivation" of a detainee's liberty interest while eliminating certain
procedures that have questionable additional value in light of the burden
on the Government. 424
U. S., at 335.2
We
think it unlikely that this basic process will have the dire impact on
the central functions of warmaking that the Government forecasts. The
parties agree that initial captures on the battlefield need not receive
the process we have discussed here; that process is due only when the
determination is made to continue to hold those who have been seized.
The Government has made clear in its briefing that documentation regarding
battlefield detainees already is kept in the ordinary course of military
affairs. Brief for Respondents 3-4. Any factfinding imposition created
by requiring a knowledgeable affiant to summarize these records to an
independent tribunal is a minimal one. Likewise, arguments that military
officers ought not have to wage war under the threat of litigation lose
much of their steam when factual disputes at enemy-combatant hearings
are limited to the alleged combatant's acts. This focus meddles little,
if at all, in the strategy or conduct of war, inquiring only into the
appropriateness of continuing to detain an individual claimed to have
taken up arms against the United States. While we accord the greatest
respect and consideration to the judgments of military authorities in
matters relating to the actual prosecution of a war, and recognize that
the scope of that discretion necessarily is wide, it does not infringe
on the core role of the military for the courts to exercise their own
time-honored and constitutionally mandated roles of reviewing and resolving
claims like those presented here. Cf. Korematsu v. United States, 323
U. S. 214, 233-234 (1944) (Murphy, J., dissenting) ("[L]ike
other claims conflicting with the asserted constitutional rights of the
individual, the military claim must subject itself to the judicial process
of having its reasonableness determined and its conflicts with other interests
reconciled"); Sterling
v. Constantin, 287
U. S. 378, 401 (1932) ("What are the allowable limits of
military discretion, and whether or not they have been overstepped in
a particular case, are judicial In
sum, while the full protections that accompany challenges to detentions
in other settings may prove unworkable and inappropriate in the enemy-combatant
setting, the threats to military operations posed by a basic system of
independent review are not so weighty as to trump a citizen's core rights
to challenge meaningfully the D In
so holding, we necessarily reject the Government's assertion that separation
of powers principles mandate a heavily circumscribed role for the courts
in such circumstances. Indeed, the position that the courts must forgo
any examination of the individual case and focus exclusively on the legality
of the broader detention scheme cannot be mandated by any reasonable view
of separation of powers, as this approach serves only to condense
power into a single branch of government. 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, 343
U. S., at 587. Whatever power the United States Constitution
envisions for the Executive in its exchanges with other nations or with
enemy organizations in times of conflict, it most assuredly envisions
a role for all three branches when individual liberties are at stake.
Mistretta v. United States, 488
U. S. 361, 380 (1989) (it was "the central judgment of the
Framers of the Constitution that, within our political scheme, the separation
of governmental powers into three coordinate Branches is essential to
the preservation of liberty"); Home
Building & Loan Assn. v. Blaisdell,
290
U. S. 398, 426 (1934) (The war power "is a power to wage
war successfully, and thus it permits the harnessing of the entire energies
of the people in a supreme cooperative effort to preserve the nation.
But even the war power does not remove constitutional limitations safeguarding
essential liberties"). Likewise, we have made clear that, unless
Congress acts to suspend it, the Great Writ of habeas corpus allows the
Judicial Branch to play a necessary role in maintaining this delicate
balance of governance, serving as an important judicial check on the Executive's
discretion in the realm of detentions. See
St. Cyr, 533
U. S., at 301 ("At its historical core, the writ of habeas
corpus has served as a means of reviewing the legality of Executive detention,
and it is in that context that its protections have been strongest").
Thus, while we do not question that our due process assessment must pay
keen attention to the particular burdens faced by the Executive in the
context of military action, it would turn our system of checks and balances
on its head to suggest that a citizen could not make his way to court
with a challenge to the factual basis for his detention by his government,
simply because the Executive opposes making available such a challenge.
Absent suspension of the writ by Congress, a citizen detained as an enemy
combatant is entitled to this process. Because
we conclude that due process demands some system for a citizen detainee
to refute his classification, the proposed "some evidence" standard
is inadequate. Any process in which the Executive's factual assertions
go wholly unchallenged or are simply presumed correct without any opportunity
for the alleged combatant to demonstrate otherwise falls constitutionally
short. As the Government itself has recognized, we have utilized the "some
evidence" standard in the past as a standard of review, not as a
standard of proof. Brief for Respondents 35. That is, it primarily has
been employed by courts in examining an administrative record developed
after an adversarial proceeding--one with process at least of the sort
that we today hold is constitutionally mandated in the citizen enemy-combatant
setting. See, e.g., St.
Cyr, supra;
Hill, 472
U. S., at 455-457. This standard therefore is ill suited to the
situation in which a habeas petitioner has received no prior proceedings
before any tribunal and had no prior opportunity to rebut the Executive's
factual assertions before a neutral decisionmaker. Today
we are faced only with such a case. Aside from unspecified "screening"
processes, Brief for Respondents 3-4, and military interrogations in which
the Government suggests Hamdi could have contested his classification,
Tr. of Oral Arg. 40, 42, Hamdi has received no process. An interrogation
by one's captor, however effective an intelligence-gathering tool, hardly
constitutes a constitutionally adequate factfinding before a neutral decisionmaker.
Compare Brief for Respondents 42-43 (discussing the "secure interrogation
environment," and noting that military interrogations require a controlled
"interrogation dynamic" and "a relationship of trust and
dependency" and are "a critical source" of "timely
and effective intelligence") with Concrete Pipe, 508
U. S., at 617-618 ("one is entitled as a matter of due process
of law to an adjudicator who is not in a situation which would offer a
possible temptation to the average man as a judge . . . which might lead
him not to hold the balance nice, clear and true" (internal quotation
marks omitted). That even purportedly fair adjudicators "are disqualified
by their interest in the controversy to be decided is, of course, the
general rule." Tumey v. Ohio, 273
U. S. 510, 522 (1927). Plainly, the "process" Hamdi
has received is not that to which he is entitled under the Due Process
Clause. There
remains the possibility that the standards we have articulated could be
met by an appropriately authorized and properly constituted military tribunal.
Indeed, it is notable that military regulations already provide for such
process in related instances, dictating that tribunals be made available
to determine the status of enemy detainees who assert prisoner-of-war
status under the Geneva Convention. See Enemy Prisoners of War, Retained
Personnel, Civilian Internees and Other Detainees, Army Regulation 190-8,
§1-6 (1997). In the absence of such process, however, a court that receives
a petition for a writ of habeas corpus from an alleged enemy combatant
must itself ensure that the minimum requirements of due process are achieved.
Both courts below recognized as much, focusing their energies on the question
of whether Hamdi was due an opportunity to rebut the Government's case
against him. The Government, too, proceeded on this assumption, presenting
its affidavit and then seeking that it be evaluated under a deferential
standard of review based on burdens that it alleged would accompany any
greater process. As we have discussed, a habeas court in a case such as
this may accept affidavit evidence like that contained in the Mobbs Declaration,
so long as it also permits the alleged combatant to present his own factual
case to rebut the Government's return. We anticipate that a District Court
would proceed with the caution that we have indicated is necessary in
this setting, engaging in a factfinding process that is both prudent and
incremental. We have no reason to doubt that courts faced with these sensitive
matters will pay proper heed both to the matters of national security
that might arise in an individual case and to the constitutional limitations
safeguarding essential liberties that remain vibrant even in times of
security concerns. IV Hamdi
asks us to hold that the Fourth Circuit also erred by denying him immediate
access to counsel upon his detention and by disposing of the case without
permitting him to meet with an attorney. Brief for Petitioners 19. Since
our grant of certiorari in this case, Hamdi has been appointed counsel,
with whom he has met for consultation purposes on several occasions, and
with whom he is now being granted unmonitored meetings. He unquestionably
has the right to access to counsel in connection with the proceedings
on remand. No further consideration of this issue is necessary at this
stage of the case. * * * The
judgment of the United States Court of Appeals for the Fourth Circuit
is vacated, and the case is remanded for further proceedings. It is so ordered. YASER ESAM HAMDI
and ESAM FOUAD HAMDI,
as on writ of certiorari to the united
states court of appeals for the fourth circuit [June 28, 2004] Justice Scalia, with whom Justice Stevens joins, dissenting. Petitioner,
a presumed American citizen, has been imprisoned without charge or hearing
in the Norfolk and Charleston Naval Brigs for more than two years, on
the allegation that he is an enemy combatant who bore arms against his
country for the Taliban. His father claims to the contrary, that he is
an inexperienced aid worker caught in the wrong place at the wrong time.
This case brings into conflict the competing demands of national security
and our citizens' constitutional right to personal liberty. Although I
share the Court's evident unease as Where
the Government accuses a citizen of waging war against it, our constitutional
tradition has been to prosecute him in federal court for treason or some
other crime. Where the exigencies of war prevent that, the Constitution's
Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the
usual protections temporarily. Absent suspension, however, the Executive's
assertion of military exigency has not been thought sufficient to permit
detention without charge. No one contends that the congressional Authorization
for Use of Military Force, on which the Government relies to justify its
actions here, is an implementation of the Suspension Clause. Accordingly,
I would reverse the decision below. I The
very core of liberty secured by our Anglo-Saxon system of separated powers
has been freedom from indefinite imprisonment at the will of the Executive.
Blackstone stated this principle clearly: "Of
great importance to the public is the preservation of this personal liberty:
for if once it were left in the power of any, the highest, magistrate
to imprison arbitrarily whomever he or his officers thought proper ...
there would soon be an end of all other rights and immunities. ... To
bereave a man of life, or by violence to confiscate his estate, without
accusation or trial, would be so gross and notorious an act of despotism,
as must at once convey the alarm of tyranny throughout the whole kingdom.
But confinement of the person, by secretly hurrying him to gaol, where
his sufferings are unknown or forgotten; is a less public, a less striking,
and therefore a more dangerous engine of arbitrary government. ... "To
make imprisonment lawful, it must either be, by process from the courts
of judicature, or by warrant from some legal officer, having authority
to commit to prison; which warrant must be in writing, under the hand
and seal of the magistrate, and express the causes of the commitment,
in order to be examined into (if necessary) upon a habeas
corpus. If there be no cause expressed, the gaoler is not
bound to detain the prisoner. For the law judges in this respect, ...
that it is unreasonable to send a prisoner, and not to signify withal
the crimes alleged against him." 1 W. Blackstone, Commentaries on
the Laws of England 132-133 (1765) (hereinafter Blackstone). These words were well
known to the Founders. Hamilton quoted from this very passage in The Federalist
No. 84, p. 444 (G. Carey & J. McClellan eds. 2001). The two ideas
central to Blackstone's understanding--due process as the right secured,
and habeas corpus as the instrument by which due process could be insisted
upon by a citizen illegally imprisoned--found expression in the Constitution's
Due Process and Suspension Clauses. See Amdt. 5; Art. I, §9, cl. 2. The
gist of the Due Process Clause, as understood at the founding and since,
was to force the Government to follow those common-law procedures traditionally
deemed necessary before depriving a person of life, liberty, or property.
When a citizen was deprived of liberty because of alleged criminal conduct,
those procedures typically required committal by a magistrate followed
by indictment and trial. See, e.g.,
2 & 3 Phil. & M., c. 10 (1555); 3 J. Story, Commentaries on the
Constitution of the United States §1783, p. 661 (1833) (hereinafter Story)
(equating "due process of law" with "due presentment or
indictment, and being brought in to answer thereto by due process of the
common law"). The Due Process Clause "in effect affirms the
right of trial according to the process and proceedings of the common
law." Ibid. See also
T. Cooley, General Principles of Constitutional Law 224 (1880) ("When
life and liberty are in question, there must in every instance be judicial
proceedings; and that requirement implies an accusation, a hearing before
an impartial tribunal, with proper jurisdiction, and a conviction and
judgment before the To
be sure, certain types of permissible noncriminal
detention--that is, those not dependent upon the contention that the citizen
had committed a criminal act--did not require the protections of criminal
procedure. However, these fell into a limited number of well-recognized
exceptions--civil commitment of the mentally ill, for example, and temporary
detention in quarantine of the infectious. See Opinion on the Writ of Habeas Corpus, 97 Eng. Rep. 29, 36-37
(H. L. 1758) (Wilmot, J.). It is unthinkable that the Executive could
render otherwise criminal grounds for detention noncriminal merely by
disclaiming an intent to prosecute, or by asserting that it was incapacitating
dangerous offenders rather than punishing wrongdoing. Cf. Kansas v. Hendricks,
521
U. S. 346, 358 (1997) ("A finding of dangerousness, standing
alone, is ordinarily not a sufficient ground upon which to justify indefinite
involuntary commitment"). These
due process rights have historically been vindicated by the writ of habeas
corpus. In England before the founding, the writ developed into a tool
for challenging executive confinement. It was not always effective. For
example, in Darnel's Case,
3 How. St. Tr. 1 (K. B. 1627), King Charles I detained without charge
several individuals for failing to assist England's war against France
and Spain. The prisoners sought writs of habeas corpus, arguing that without
specific charges, "imprisonment shall not continue on for a time,
but for ever; and the subjects of this kingdom may be restrained of their
liberties perpetually." Id., at 8. The Attorney General replied
that the Crown's interest in protecting the realm justified imprisonment
in "a matter of state ... not ripe nor timely" for the ordinary
process of accusation and trial. Id.,
at 37. The court denied relief, producing widespread outrage, and Parliament
responded with the Petition of Right, accepted by the King in 1628, which
expressly prohibited imprisonment without formal charges, see 3 Car. 1,
c. 1, §§5, 10. The
struggle between subject and Crown continued, and culminated in the Habeas
Corpus Act of 1679, 31 Car. 2, c. 2, described by Blackstone as a "second
magna charta, and stable bulwark of our
liberties." 1 Blackstone 133. The Act governed all persons "committed
or detained ... for any crime." §3. In cases other than felony or
treason plainly expressed in the warrant of commitment, the Act required
release upon appropriate sureties (unless the commitment was for a nonbailable
offense). Ibid. Where the commitment was for felony
or high treason, the Act did not require immediate release, but instead
required the Crown to commence criminal proceedings within a specified
time. §7. If the prisoner was not "indicted some Time in the next
Term," the judge was "required ... to set at Liberty the Prisoner
upon Bail" unless the King was unable to produce his witnesses. Ibid. Able or no, if the prisoner was not
brought to trial by the next
succeeding term, the Act provided that "he shall be discharged from
his Imprisonment." Ibid.
English courts sat four terms per year, see 3 Blackstone 275-277, so the
practical effect of this provision was that imprisonment without indictment
or trial for felony or high treason under §7 would not exceed approximately
three to six months. The
writ of habeas corpus was preserved in the Constitution--the only common-law
writ to be explicitly mentioned. See Art. I, §9, cl. 2. Hamilton
lauded "the establishment of the writ of habeas
corpus" in
his Federalist defense as a means to protect against "the practice
of arbitrary imprisonments ... in all ages, [one of] the favourite and
most formidable instruments of tyranny." The Federalist No. 84, supra, at 444. Indeed, availability of the
writ under the new Constitution (along with the requirement of trial by
jury in criminal cases, see Art. III, §2, cl. 3) was his basis for
arguing that additional, explicit procedural protections were unnecessary.
See The Federalist No. 83, at 433. II The
allegations here, of course, are no ordinary accusations of criminal activity.
Yaser Esam Hamdi has been imprisoned because the Government believes he
participated in the waging of war against the United States. The relevant
question, then, is whether there is a different, special procedure for
imprisonment of a citizen accused of wrongdoing by
aiding the enemy in wartime. A Justice O'Connor, writing for a plurality
of this Court, asserts that captured enemy combatants (other than those
suspected of war crimes) have traditionally been detained until the cessation
of hostilities and then released. Ante,
at 10-11. That is probably an accurate description of wartime practice
with respect to enemy aliens.
The tradition with respect to American citizens, however, has been quite
different. Citizens aiding the enemy have been treated as traitors subject
to the criminal process. As
early as 1350, England's Statute of Treasons made it a crime to "levy
War against our Lord the King in his Realm, or be adherent to the King's
Enemies in his Realm, giving to them Aid and Comfort, in the Realm, or
elsewhere." 25 Edw. 3, Stat. 5, c. 2. In his 1762 Discourse on High
Treason, Sir Michael Foster explained: "With
regard to Natural-born Subjects there can be no Doubt. They owe Allegiance
to the Crown at all Times and in all Places. . . . . . "The
joining with Rebels in an Act of Rebellion, or with Enemies in Acts of
Hostility, will make a Man a Traitor: in the one Case within the Clause
of Levying War, in the other within that of Adhering to the King's enemies. . . . . . "States
in Actual Hostility with Us, though no War be solemnly Declared, are Enemies
within the meaning of the Act. And therefore in an Indictment on the Clause
of Adhering to the King's Enemies, it is sufficient to Aver that the Prince
or State Adhered to is an Enemy,
without shewing any War Proclaimed... . And if the Subject of a Foreign
Prince in Amity with Us, invadeth the Kingdom without Commission from
his Sovereign, He is an Enemy. And a Subject of England
adhering to Him is a Traitor within this Clause of the Act."
A Report of Some Proceedings on the Commission ... for the Trial of the
Rebels in the Year 1746 in the County of Surry, and of Other Crown Cases,
Introduction, §1, p. 183; Ch. 2, §8, p. 216; §12, p. 219. Subjects accused of levying
war against the King were routinely prosecuted for treason. E.g., Harding's
Case, 2 Ventris 315, 86 Eng. Rep. 461 (K. B. 1690); Trial of Parkyns, 13 How. St. Tr. 63 (K.
B. 1696); Trial of Vaughan,
13 How. St. Tr. 485 (K. B. 1696); Trial
of Downie, 24 How. St. Tr. 1 (1794). The Founders inherited
the understanding that a citizen's levying war against the Government
was to be punished criminally. The Constitution provides: "Treason
against the United States, shall consist only in levying War against them,
or in adhering to their Enemies, giving them Aid and Comfort"; and
establishes a heightened proof requirement (two witnesses) in order to
"convic[t]" of that offense. Art. III, §3, cl. 1. In
more recent times, too, citizens have been charged and tried in Article
III courts for acts of war against the United States, even when their
noncitizen co-conspirators were not. For example, two American citizens
alleged to have participated during World War I in a spying conspiracy
on behalf of Germany were tried in federal court. See United
States v. Fricke,
259 F. 673 (SDNY 1919); United States
v. Robinson,
259 F. 685 (SDNY 1919). A German member of the same conspiracy was subjected
to military process. See United States
ex rel. Wessels v. McDonald,
265 F. 754 (EDNY 1920). During World War II, the famous German saboteurs
of Ex parte Quirin, 317
U. S. 1 (1942), received military process, but the citizens who
associated with them (with the exception of one citizen-saboteur, discussed
below) were punished under the criminal process. See Haupt v. United States, 330
U. S. 631 (1947); L. Fisher, Nazi Saboteurs on Trial 80-84 (2003);
see also Cramer v. United States, 325
U. S. 1 (1945). The modern treason statute is 18 U. S. C.
§2381; it basically tracks the language of the constitutional provision.
Other provisions of Title 18 criminalize various acts of warmaking and
adherence to the enemy. See, e.g., §32 (destruction of aircraft or aircraft facilities),
§2332a (use of weapons of mass destruction), §2332b (acts of terrorism
transcending national boundaries), §2339A (providing material support
to terrorists), §2339B (providing material support to certain terrorist
organizations), §2382 (misprision of treason), §2383 (rebellion or insurrection),
§2384 (seditious conspiracy), §2390 (enlistment to serve in armed hostility
against the United States). See also 31 CFR §595.204 (2003) (prohibiting
the "making or receiving of any contribution of funds, goods, or
services" to terrorists); 50 U. S. C. §1705(b) (criminalizing
violations of 31 CFR §595.204). The only citizen other than Hamdi known
to be imprisoned in connection with military hostilities in Afghanistan
against the United States was subjected
to criminal process and convicted upon a guilty plea. See United States v. Lindh, 212 F. Supp. 2d 541 (ED
Va. 2002) (denying motions for dismissal); Seelye, N. Y. Times, Oct.
5, 2002, p. A1, col. 5. B There
are times when military exigency renders resort to the traditional criminal
process impracticable. English law accommodated such exigencies by allowing
legislative suspension of the writ of habeas corpus for brief periods.
Blackstone explained: "And yet sometimes,
when the state is in real danger, even this [i.e.,
executive detention] may be a necessary measure. But the happiness of
our constitution is, that it is not left to the executive power to determine
when the danger of the state is so great, as to render this measure expedient.
For the parliament only, or legislative power, whenever it sees proper,
can authorize the crown, by suspending the habeas
corpus act for a short and limited time, to imprison suspected
persons without giving any reason for so doing... . In like manner
this experiment ought only to be tried in case of extreme emergency; and
in these the nation parts with it[s] liberty for a while, in order to
preserve it for ever." 1 Blackstone 132. Where the Executive has
not pursued the usual course of charge, committal, and conviction, it
has historically secured the Legislature's explicit approval of a suspension.
In England, Parliament on numerous occasions passed temporary suspensions
in times of threatened invasion or rebellion. E.g.,
1 W. & M., c. 7 (1688) (threatened return of James II); 7 & 8
Will. 3, c. 11 (1696) (same); 17 Geo. 2, c. 6 (1744) (threatened French
invasion); 19 Geo. 2, c. 1 (1746) (threatened rebellion in Scotland);
17 Geo. 3, c. 9 (1777) (the American Revolution). Not long after Massachusetts
had adopted a clause in its constitution explicitly providing for habeas
corpus, see Mass. Const. pt. 2, ch. 6, art. VII (1780), reprinted in 3
Federal and State Constitutions, Colonial Charters and Other Organic Laws
1888, 1910 (F. Thorpe ed. 1909), it suspended the writ in order to deal
with Shay's Rebellion, see Act for Suspending the Privilege of the Writ
of Habeas Corpus, ch. 10, 1786 Mass. Acts 510. Our
Federal Constitution contains a provision explicitly permitting suspension,
but limiting the situations in which it may be invoked: "The privilege
of the Writ of Habeas Corpus shall not be suspended, unless when in Cases
of Rebellion or Invasion the public Safety may require it." Art.
I, §9, cl. 2. Although this provision does not state that suspension
must be effected by, or authorized by, a legislative act, it has been
so understood, consistent with English practice and the Clause's placement
in Article I. See Ex parte Bollman, 4 Cranch 75, 101 (1807);
Ex parte Merryman, 17
F. Cas. 144, 151-152 (CD Md. 1861) (Taney, C. J., rejecting Lincoln's
unauthorized suspension); 3 Story §1336, at 208-209. The
Suspension Clause was by design a safety valve, the Constitution's only
"express provision for exercise of extraordinary authority because
of a crisis," Youngstown Sheet
& Tube Co. v. Sawyer,
343
U. S. 579, 650 (1952) (Jackson, J., concurring). Very early in
the Nation's history, President Jefferson unsuccessfully sought a suspension
of habeas corpus to deal with Aaron Burr's conspiracy to overthrow the
Government. See 16 Annals of Congress 402-425 (1807). During the Civil
War, Congress passed its first Act authorizing Executive suspension of
the writ of habeas corpus, see Act of Mar. 3, 1863, 12 Stat. 755, to the
relief of those many who thought President Lincoln's unauthorized proclamations
of suspension (e.g., Proclamation No. 1, 13 Stat. 730 (1862))
unconstitutional. Later Presidential proclamations of suspension relied
upon the congressional authorization, e.g.,
Proclamation No. 7, 13 Stat. 734 (1863). During Reconstruction, Congress
passed the Ku Klux Klan Act, which included a provision authorizing suspension
of the writ, invoked by President Grant in quelling a rebellion in nine
South Carolina counties. See Act of Apr. 20, 1871, ch. 22, §4, 17 Stat.
14; A Proclamation [of Oct. 17, 1871], 7 Compilation of the Messages and
Papers of the Presidents 136-138 (J. Richardson ed. 1899) (hereinafter
Messages and Papers); id., at 138-139. Two
later Acts of Congress provided broad suspension authority to governors
of U. S. possessions. The Philippine Civil Government Act of 1902
provided that the Governor of the Philippines could suspend the writ in
case of rebellion, insurrection, or invasion. Act of July 1, 1902, ch.
1369, §5, 32 Stat. 691. In 1905 the writ was suspended for nine months
by proclamation of the Governor. See Fisher
v. Baker, 203
U. S. 174, 179-181 (1906). The Hawaiian Organic Act of 1900 likewise
provided that the Governor of Hawaii could suspend the writ in case of
rebellion or invasion (or threat thereof). Ch. 339, §67, 31 Stat. 153. III Of
course the extensive historical evidence of criminal convictions and habeas
suspensions does not necessarily refute
the Government's position in this case. When the writ is suspended, the
Government is entirely free from judicial oversight. It does not claim
such total liberation here, but argues that it need only produce what
it calls "some evidence" to satisfy a habeas court that a detained
individual is an enemy combatant. See Brief for Respondents 34. Even if
suspension of the writ on the one hand, and committal for criminal charges
on the other hand, have been the only traditional
means of dealing with citizens who levied war against their own country,
it is theoretically possible that the Constitution does not require a choice between these alternatives. I
believe, however, that substantial evidence does refute that possibility.
First, the text of the 1679 Habeas Corpus Act makes clear that indefinite
imprisonment on reasonable suspicion is not an available option of treatment
for those accused of aiding the enemy, absent a suspension of the writ.
In the United States, this Act was read as "enforc[ing] the common
law," Ex parte Watkins, 3 Pet. 193, 202 (1830),
and shaped the early understanding of the scope of the writ. As noted
above, see supra, at 5,
§7 of the Act specifically addressed those committed for high treason,
and provided a remedy if they were not indicted
and tried by the second succeeding court term. That remedy
was not a bobtailed judicial inquiry into whether there were reasonable
grounds to believe the prisoner had taken up arms against the King. Rather,
if the prisoner was not indicted and tried within the prescribed time,
"he shall be discharged from his Imprisonment." 31 Car. 2, c.
2, §7. The Act does not contain any exception for wartime. That omission
is conspicuous, since §7 explicitly addresses the offense of "High
Treason," which often involved offenses of a military nature. See
cases cited supra, at 7. Writings
from the founding generation also suggest that, without exception, the
only constitutional alternatives are to charge the crime or suspend the
writ. In 1788, Thomas Jefferson wrote to James Madison questioning the
need for a Suspension Clause in cases of rebellion in the proposed Constitution.
His letter illustrates the constraints under which the Founders understood
themselves to operate: "Why suspend the
Hab. corp. in insurrections and rebellions? The parties who may be arrested
may be charged instantly with a well defined crime. Of course the judge
will remand them. If the publick safety requires that the government should
have a man imprisoned on less probable testimony in those than in other
emergencies; let him be taken and tried, retaken and retried, while the
necessity continues, only giving him redress against the government for
damages." 13 Papers of Thomas Jefferson 442 (July 31, 1788) (J. Boyd
ed. 1956). A similar view was reflected
in the 1807 House debates over suspension during the armed uprising that
came to be known as Burr's conspiracy: "With regard to
those persons who may be implicated in the conspiracy, if the writ of
habeas corpus be not suspended, what will be the consequence? When apprehended,
they will be brought before a court of justice, who will decide whether
there is any evidence that will justify their commitment for farther prosecution.
From the communication of the Executive, it appeared there was sufficient
evidence to authorize their commitment. Several months would elapse before
their final trial, which would give time to collect evidence, and if this
shall be sufficient, they will not fail to receive the punishment merited
by their crimes, and inflicted by the laws of their country." 16
Annals of Congress, at 405 (remarks of Rep. Burwell). The
absence of military authority to imprison citizens indefinitely in wartime--whether
or not a probability of treason had been established by means less than
jury trial--was confirmed by three cases decided during and immediately
after the War of 1812. In the first, In re Stacy, 10 Johns. *328 (N. Y. 1813), a citizen was taken
into military custody on suspicion that he was "carrying provisions
and giving information to the enemy." Id.,
at *330 (emphasis deleted). Stacy petitioned for a writ of habeas corpus,
and, after the defendant custodian attempted to avoid complying, Chief
Justice Kent ordered attachment against him. Kent noted that the military
was "without any color of authority in any military tribunal to try
a citizen for that crime" and that it was "holding him in the
closest confinement, and contemning the civil authority of the state."
Id., at *333-*334. Two
other cases, later cited with approval by this Court in Ex parte Milligan, 4 Wall. 2, 128-129 (1866),
upheld verdicts for false imprisonment against military officers. In Smith v. Shaw, 12 Johns. *257 (N. Y. 1815), the court affirmed an award
of damages for detention of a citizen on suspicion that he was, among
other things, "an enemy's spy in time of war." Id., at *265. The court held that "[n]one
of the offences charged against Shaw
were cognizable by a court-martial, except that which related to his being
a spy; and if he was an American
citizen, he could not be charged with such an offence. He might be amenable
to the civil authority for treason; but could not be punished, under martial
law, as a spy." Ibid.
"If the defendant was justifiable in doing what he did, every citizen
of the United States would, in time of war, be
equally exposed to a like exercise of military power and authority."
Id., at *266. Finally, in M'Connell v. Hampton, 12 Johns. *234 (N. Y. 1815), a jury awarded $9,000
for false imprisonment after a military officer confined a citizen on
charges of treason; the judges on appeal did not question the verdict
but found the damages excessive, in part because "it does not appear
that [the defendant] ... knew [the plaintiff] was a citizen." Id., at *238 (Spencer, J.). See generally
Wuerth, The President's Power to Detain "Enemy Combatants":
Modern Lessons from Mr. Madison's Forgotten War, 98 Nw. U. L. Rev. (forthcoming
2004) (available in Clerk of Court's case file). President
Lincoln, when he purported to suspend habeas corpus without congressional
authorization during the Civil War, apparently did not doubt that suspension
was required if the prisoner was to be held without criminal trial. In
his famous message to Congress on July 4, 1861, he argued only that he
could suspend the writ, not that even without suspension, his imprisonment
of citizens without criminal trial was permitted. See Special Session
Message, 6 Messages and Papers 20-31. Further
evidence comes from this Court's decision in Ex
parte Milligan, supra.
There, the Court issued the writ to an American citizen who had been tried
by military commission for offenses that included conspiring to overthrow
the Government, seize munitions, and liberate prisoners of war. Id., at 6-7. The Court rejected in no uncertain
terms the Government's assertion that military jurisdiction was proper
"under the 'laws and usages of war,' " id., at 121: "It
can serve no useful purpose to inquire what those laws and usages are,
whence they originated, where found, and on whom they operate; they can
never be applied to citizens in states which have upheld the authority
of the government, and where the courts are open and their process unobstructed."
Ibid.1 Milligan is not exactly this case, of course,
since the petitioner was threatened with death, not merely imprisonment.
But the reasoning and conclusion of Milligan
logically cover the present case. The Government justifies
imprisonment of Hamdi on principles of the law of war and admits that,
absent the war, it would have no such authority. But if the law of war
cannot be applied to citizens where courts are open, then Hamdi's imprisonment
without criminal trial is no less unlawful than Milligan's trial by military
tribunal. Milligan responded to the argument, repeated
by the Government in this case, that it is dangerous to leave suspected
traitors at large in time of war: "If it was dangerous,
in the distracted condition of affairs, to leave Milligan unrestrained
of his liberty, because he 'conspired against the government, afforded
aid and comfort to rebels, and incited the people to insurrection,' the
law said arrest him, confine him closely,
render him powerless to do further mischief; and then present his case
to the grand jury of the district, with proofs of his guilt, and, if indicted,
try him according to the course of the common law. If this had been done,
the Constitution would have been vindicated, the law of 1863 enforced,
and the securities for personal liberty preserved and defended."
Id., at 122. Thus, criminal process
was viewed as the primary means--and the only means absent congressional
action suspending the writ--not only to punish traitors, but to incapacitate
them. The
proposition that the Executive lacks indefinite wartime detention authority
over citizens is consistent with the Founders' general mistrust of military
power permanently at the Executive's disposal. In the Founders' view,
the "blessings of liberty" were threatened by "those military
establishments which must gradually poison its very fountain." The
Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the
Federalist were devoted in whole or part to allaying fears of oppression
from the proposed Constitution's authorization of standing armies in peacetime.
Many safeguards in the Constitution reflect these concerns. Congress's
authority "[t]o raise and support Armies" was hedged with the
proviso that "no Appropriation of Money to that Use shall be for
a longer Term than two Years." U. S. Const., Art. 1, §8, cl.
12. Except for the actual command of military forces, all authorization
for their maintenance and all explicit authorization for their use is
placed in the control of Congress under Article I, rather than the President
under Article II. As Hamilton explained, the President's military authority
would be "much inferior" to that of the British King: "It would amount
to nothing more than the supreme command and direction of the military
and naval forces, as first general and admiral of the confederacy: while
that of the British king extends to the declaring
of war, and to the raising and regulating of fleets and armies; all which,
by the constitution under consideration, would appertain to the legislature."
The Federalist No. 69, p. 357. 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. IV The
Government argues that our more recent jurisprudence ratifies its indefinite
imprisonment of a citizen within the territorial jurisdiction of federal
courts. It places primary reliance upon Ex
parte Quirin, 317
U. S. 1 (1942), a World War II case upholding the trial by military
commission of eight German saboteurs, one of whom, Hans Haupt, was a U. S.
citizen. The case was not this Court's finest hour. The Court upheld the
commission and denied relief in a brief per
curiam issued the day after oral argument concluded, see id., at 18-19, unnumbered note; a week later
the Government carried out the commission's death sentence upon six saboteurs,
including Haupt. The Court eventually explained its reasoning in a written
opinion issued several months later. Only
three paragraphs of the Court's lengthy opinion dealt with the particular
circumstances of Haupt's case. See id.,
at 37-38, 45-46. The Government argued that Haupt, like the other petitioners,
could be tried by military commission under the laws of war. In agreeing
with that contention, Quirin
purported to interpret the language of Milligan
quoted above (the law of war "can never be applied to citizens in
states which have upheld the authority of the government, and where the
courts are open and their process unobstructed") in the following
manner: "Elsewhere in its
opinion ... the Court was at pains to point out that Milligan, a citizen
twenty years resident in Indiana, who had never been a resident of any
of the states in rebellion, was not an enemy belligerent either entitled
to the status of a prisoner of war or subject to the penalties imposed
upon unlawful belligerents. We construe the Court's statement as to the
inapplicability of the law of war to Milligan's case as having particular
reference to the facts before it. From them the Court concluded that Milligan,
not being a part of or associated with the armed forces of the enemy,
was a non-belligerent, not subject to the law of war ... ."
317
U. S., at 45. In my view this seeks
to revise Milligan rather
than describe it. Milligan
had involved (among other issues) two separate questions: (1) whether
the military trial of Milligan was justified by the laws of war, and if
not (2) whether the President's suspension of the writ, pursuant to congressional
authorization, prevented the issuance of habeas corpus. The Court's categorical
language about the law of war's inapplicability to citizens where the
courts are open (with no exception mentioned for citizens who were prisoners
of war) was contained in its discussion of the first point. See 4 Wall.,
at 121. The factors pertaining to whether Milligan could reasonably be
considered a belligerent and prisoner of war, while mentioned earlier
in the opinion, see id., at 118, were made relevant and brought to bear in the
Court's later discussion, see id.,
at 131, of whether Milligan came within the statutory provision that effectively
made an exception to Congress's authorized suspension of the writ for
(as the Court described it) "all parties, not prisoners of war, resident
in their respective jurisdictions, ... who were citizens of states in
which the administration of the laws in the Federal tribunals was unimpaired,"
id., at 116. Milligan thus understood was in accord with
the traditional law of habeas corpus I have described: Though treason
often occurred in wartime, there was, absent provision for special treatment
in a congressional suspension of the writ, no exception to the right to
trial by jury for citizens who could be called "belligerents"
or "prisoners of war."2 But
even if Quirin gave a
correct description of Milligan,
or made an irrevocable revision of it, Quirin
would still not justify denial of the writ here. In Quirin it was uncontested that the petitioners were members
of enemy forces. They were "admitted
enemy invaders," 317
U. S., at 47 (emphasis added), and it was "undisputed" that
they had landed in the United States in service of German forces, id., at 20. The specific holding of the
Court was only that, "upon the conceded
facts," the petitioners were "plainly within [the]
boundaries" of military jurisdiction, id.,
at 46 (emphasis added).3
But where those jurisdictional facts are not
conceded--where the petitioner insists that he is not a belligerent--Quirin
left the pre-existing law in place: Absent suspension of the writ, a citizen
held where the courts are open is entitled either to criminal trial or
to a judicial decree requiring his release.4 V It
follows from what I have said that Hamdi is entitled to a habeas decree
requiring his release unless (1) criminal proceedings are promptly brought,
or (2) Congress has suspended the writ of habeas corpus. A suspension
of the writ could, of course, lay down conditions for continued detention,
similar to those that today's opinion prescribes under the Due Process
Clause. Cf. Act of Mar. 3, 1863, 12 Stat. 755. But there is a world of
difference between the people's representatives' determining the need
for that suspension (and prescribing the conditions for it), and this
Court's doing so. The
plurality finds justification for Hamdi's imprisonment in the Authorization
for Use of Military Force, 115 Stat. 224, which provides: "That the President
is authorized to use all necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September 11,
2001, 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." §2(a). This is not remotely
a congressional suspension of the writ, and no one claims that it is.
Contrary to the plurality's view, I do not think this statute even authorizes
detention of a citizen with the clarity necessary to satisfy the interpretive
canon that statutes should be construed so as to avoid grave constitutional
concerns, see Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council,
485
U. S. 568, 575 (1988); with the clarity necessary to comport
with cases such as Ex parte Endo,
323
U. S. 283, 300 (1944), and Duncan
v. Kahanamoku, 327
U. S. 304, 314-316, 324 (1946); or with the clarity necessary
to overcome the statutory prescription that "[n]o citizen shall be
imprisoned or otherwise detained by the United States except pursuant
to an Act of Congress." 18 U. S. C. §4001(a).5
But even if it did, I would not permit it to overcome Hamdi's entitlement
to habeas corpus relief. The Suspension Clause of the Constitution, which
carefully circumscribes the conditions under which the writ can be withheld,
would be a sham if it could be evaded by congressional prescription of
requirements other than the common-law
requirement of committal for criminal prosecution that render
the writ, though available, unavailing. If the Suspension Clause does
not guarantee the citizen that he will either be tried or released, unless
the conditions for suspending the writ exist and the grave action of suspending
the writ has been taken; if it merely guarantees the citizen that he will
not be detained unless Congress by ordinary legislation says he can be
detained; it guarantees him very little indeed. It
should not be thought, however, that the plurality's evisceration of the
Suspension Clause augments, principally, the power of Congress. As usual,
the major effect of its constitutional improvisation is to increase the
power of the Court. Having found a congressional authorization for detention
of citizens where none clearly exists; and having discarded the categorical
procedural protection of the Suspension Clause; the plurality then proceeds,
under the guise of the Due Process Clause, to prescribe what procedural
protections it thinks appropriate. It "weigh[s]
the private interest ... against the Government's asserted interest,"
ante, at 22 (internal quotation marks omitted),
and--just as though writing a new Constitution--comes up with an unheard-of
system in which the citizen rather than the Government bears the burden
of proof, testimony is by hearsay rather than live witnesses, and the
presiding officer may well be a "neutral" military officer rather
than judge and jury. See ante,
at 26-27. It claims authority to engage in this sort of "judicious
balancing" from Mathews
v. Eldridge, 424
U. S. 319 (1976), a case involving ... the withdrawal of disability benefits! Whatever the merits
of this technique when newly recognized property rights are at issue (and
even there they are questionable), it has no place where the Constitution
and the common law already supply an answer. Having
distorted the Suspension Clause, the plurality finishes up by transmogrifying
the Great Writ--disposing of the present habeas petition by remanding
for the District Court to "engag[e] in a factfinding process that
is both prudent and incremental," ante,
at 32. "In the absence of [the Executive's prior provision of procedures
that satisfy due process], ... a court that receives a petition for a
writ of habeas corpus from an alleged enemy combatant must itself ensure
that the minimum requirements of due process are achieved." Ante, at 31-32. This judicial remediation of executive default
is unheard of. The role of habeas corpus is to determine the legality
of executive detention, not to supply the omitted process necessary to
make it legal. See Preiser
v. Rodriguez, 411
U. S. 475, 484 (1973) ("[T]he essence of habeas corpus is
an attack by a person in custody upon the legality of that custody, and
... the traditional function of the writ is to secure release from illegal
custody"); 1 Blackstone 132-133. It is not the habeas court's function
to make illegal detention legal by supplying a process that the Government
could have provided, but chose not to. If Hamdi is being imprisoned in
violation of the Constitution (because without due process of law), then
his habeas petition should be granted; the Executive may then hand him
over to the criminal authorities, whose detention for the purpose of prosecution
will be lawful, or else must release him. There
is a certain harmony of approach in the plurality's making up for Congress's
failure to invoke the Suspension Clause and its making up for the Executive's
failure to apply what it says are needed procedures--an approach that
reflects what might be called a Mr. Fix-it Mentality. The plurality seems
to view it as its mission to Make Everything Come Out Right, rather than
merely to decree the consequences, as far as individual rights are concerned,
of the other two branches' actions and omissions. Has the Legislature
failed to suspend the writ in the current dire emergency? Well, we will
remedy that failure by prescribing the reasonable conditions that a suspension
should have included. And has the Executive failed to live up to those
reasonable conditions? Well, we will ourselves make that failure good,
so that this dangerous fellow (if he is dangerous) need not be set free.
The problem with this approach is not only that it steps out of the courts'
modest and limited role in a democratic society; but that by repeatedly
doing what it thinks the political branches ought to do it encourages
their lassitude and saps the vitality of government by the people. VI Several
limitations give my views in this matter a relatively narrow compass.
They apply only to citizens, accused of being enemy combatants, who are
detained within the territorial jurisdiction of a federal court. This
is not likely to be a numerous group; currently we know of only two, Hamdi
and Jose Padilla. Where the citizen is captured outside and held outside
the United States, the constitutional requirements may be different. Cf.
Johnson v. Eisentrager,
339
U. S. 763, 769-771 (1950); Reid
v. Covert, 354
U. S. 1, 74-75 (1957) (Harlan, J., concurring in result); Rasul v. Bush, ante,
at 15-17 (Scalia, J.,
dissenting). Moreover, even within the United States, the accused citizen-enemy
combatant may lawfully be detained once prosecution is in progress or
in contemplation. See, e.g.,
County of Riverside v. McLaughlin, 500
U. S. 44 (1991) (brief detention pending judicial determination
after warrantless arrest); United
States v. Salerno, 481
U. S. 739 (1987) (pretrial detention under the Bail Reform Act).
The Government has been notably successful in securing conviction, and
hence long-term custody or execution, of those who have waged war against
the state. I
frankly do not know whether these tools are sufficient to meet the Government's
security needs, including the need to obtain intelligence through interrogation.
It is far beyond my competence, or the Court's competence, to determine
that. But it is not beyond Congress's. If the situation demands it, the
Executive can ask Congress to authorize suspension of the writ--which
can be made subject to whatever conditions Congress deems appropriate,
including even the procedural novelties invented by the plurality today.
To be sure, suspension is limited by the Constitution to cases of rebellion
or invasion. But whether the attacks of September 11, 2001, constitute
an "invasion," and whether those attacks still justify suspension
several years later, are questions for Congress rather than this Court.
See 3 Story §1336, at 208-209.6
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. * * * The
Founders well understood the difficult tradeoff between safety and freedom.
"Safety from external danger," Hamilton declared, "is the most powerful
director of national conduct. Even the ardent love of liberty will, after
a time, give way to its dictates. The violent destruction of life and
property incident to war; the continual effort and alarm attendant on
a state of continual danger, will compel nations the most attached to
liberty, to resort for repose and security to institutions which have
a tendency to destroy their civil and political rights. To be more safe,
they, at length, become willing to run the risk of being less free."
The Federalist No. 8, p. 33. The Founders warned us
about the risk, and equipped us with a Constitution designed to deal with
it. 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. YASER ESAM HAMDI
and ESAM FOUAD HAMDI,
as on writ of certiorari to the united
states court of appeals for the fourth circuit [June 28, 2004] Justice Thomas, dissenting. The
Executive Branch, acting pursuant to the powers vested in the President
by the Constitution and with explicit congressional approval, has determined
that Yaser Hamdi is an enemy combatant and should be detained. This detention
falls squarely within the Federal Government's war powers, and we lack
the expertise and capacity to second-guess that decision. As such, petitioners'
habeas challenge should fail, and there is no reason to remand the case.
The plurality reaches a contrary conclusion by failing adequately to consider
basic principles of the constitutional structure as it relates to national
security and foreign affairs and by using the balancing scheme of Mathews v. Eldridge, 424
U. S. 319 (1976). I do not think that the Federal Government's
war powers can be balanced away by this Court. Arguably, Congress could
provide for additional procedural protections, but until it does, we have
no right to insist upon them. But even if I were to agree with the general
approach the plurality takes, I could not accept the particulars. The
plurality utterly fails to account for the Government's compelling interests
and for our own institutional inability to weigh competing concerns correctly.
I respectfully dissent. I "It
is 'obvious and unarguable' that no governmental interest is more compelling
than the security of the Nation." Haig
v. Agee, 453
U. S. 280, 307 (1981) (quoting Aptheker
v. Secretary of State,
378
U. S. 500, 509 (1964)). The national security, after all, is
the primary responsibility and purpose of the Federal Government. See,
e.g., Youngstown
Sheet & Tube Co. v. Sawyer,
343
U. S. 579, 662 (1952) (Clark, J., concurring in judgment); The
Federalist No. 23, pp. 146-147 (J. Cooke ed. 1961) (A. Hamilton)
("The principle purposes to be answered by Union are these--The common
defence of the members--the preservation of the public peace as well against
internal convulsions as external attacks"). But because the Founders
understood that they could not foresee the myriad potential threats to
national security that might later arise, they chose to create a Federal
Government that necessarily possesses sufficient power to handle any threat
to the security of the Nation. The power to protect the Nation "ought to exist
without limitation ... [b]ecause it
is impossible to foresee or define the extent and variety
of national exigencies, or the correspondent extent &
variety of the means which may be
necessary to satisfy them. The circumstances that endanger
the safety of nations are infinite; and for this reason no constitutional
shackles can wisely be imposed on the power to which the care of it is
committed." Id., at
147. See also The Federalist
Nos. 34 and 41. The
Founders intended that the President have primary responsibility--along
with the necessary power--to protect the national security and to conduct
the Nation's foreign relations. They did so principally because the structural
advantages of a unitary Executive are essential in these domains. "Energy
in the executive is a leading character in the definition of good government.
It is essential to the protection of the community against foreign attacks."
The Federalist No. 70, p. 471 (A. Hamilton). The principle "ingredien[t]"
for "energy in the executive" is "unity." Id., at 472. This is because "[d]ecision,
activity, secrecy, and dispatch will generally characterise the proceedings
of one man, in a much more eminent degree, than the proceedings of any
greater number." Ibid. These
structural advantages are most important in the national-security and
foreign-affairs contexts. "Of all the cares or concerns of government,
the direction of war most peculiarly demands those qualities which distinguish
the exercise of power by a single hand." The Federalist No. 74, p. 500
(A. Hamilton). Also for these reasons, John Marshall explained that "[t]he
President is the sole organ of the nation in its external relations, and
its sole representative with foreign nations." 10 Annals of Cong.
613 (1800); see id., at
613-614. To this end, the Constitution vests in the President "[t]he
executive Power," Art. II, §1, provides that he "shall
be Commander in Chief of the" armed forces, §2, and places in him
the power to recognize foreign governments, §3. This
Court has long recognized these features and has accordingly held that
the President has constitutional
authority to protect the national security and that this authority carries
with it broad discretion. "If a war be made
by invasion of a foreign nation, the President is not only authorized
but bound to resist force by force. He does not initiate the war, but
is bound to accept the challenge without waiting for any special legislative
authority... . Whether the President in fulfilling his duties, as
Commander in-chief, in suppressing an insurrection, has met with such
armed hostile resistance ... is a question to be decided by
him." Prize Cases,
2 Black 635, 668, 670 (1863). The Court has acknowledged
that the President has the authority to "employ [the Nation's Armed
Forces] in the manner he may deem most effectual to harass and conquer
and subdue the enemy." Fleming
v. Page, 9
How. 603, 615 (1850). With respect to foreign affairs as well, the Court
has recognized the President's independent authority and need to be free
from interference. See, e.g., United
States v. Curtiss-Wright
Export Corp., 299
U. S. 304, 320 (1936) (explaining that the President "has
his confidential sources of information. He has his agents in the form
of diplomatic, consular and other officials. Secrecy in respect of information
gathered by them may be highly necessary, and the premature disclosure
of it productive of harmful results"); Chicago
& Southern Air Lines, Inc. v. Waterman
S. S. Corp., 333
U. S. 103, 111 (1948). Congress,
to be sure, has a substantial and essential role in both foreign affairs
and national security. But it is crucial to recognize that judicial interference in these domains destroys
the purpose of vesting primary responsibility in a unitary Executive.
I cannot improve on Justice Jackson's words, speaking for the Court: "The President,
both as Commander-in-Chief and as the Nation's organ for foreign affairs,
has available intelligence services whose reports are not and ought not
to be published to the world. It would be intolerable that courts, without
the relevant information, should review and perhaps nullify actions of
the Executive taken on information properly held secret. Nor can courts
sit in camera in order to be taken into executive
confidences. But even if courts could require full disclosure, the very
nature of executive decisions as to foreign policy is political, not judicial.
Such decisions are wholly confided by our Constitution to the political
departments of the government, Executive and Legislative. They are delicate,
complex, and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare
they advance or imperil. They are decisions of a kind for which the Judiciary
has neither aptitude, facilities nor responsibility and which has long
been held to belong in the domain of political power not subject to judicial
intrusion or inquiry." Ibid. Several points, made
forcefully by Justice Jackson, are worth emphasizing. First, with respect
to certain decisions relating to national security and foreign affairs,
the courts simply lack the relevant information and expertise to second-guess
determinations made by the President based on information properly withheld.
Second, even if the courts could compel the Executive to produce the necessary
information, such decisions are simply not amenable to judicial determination
because "[t]hey are delicate, complex, and involve large elements
of prophecy." Ibid.
Third, the Court in Chicago &
Southern Air Lines and elsewhere has correctly recognized
the primacy of the political branches in the foreign-affairs and national-security
contexts. For
these institutional reasons and because "Congress cannot anticipate
and legislate with regard to every possible action the President may find
it necessary to take or every possible situation in which he might act,"
it should come as no surprise that "[s]uch failure of Congress ...
does not, 'especially ... in the areas of foreign policy and national
security,' imply 'congressional disapproval' of action taken by the Executive."
Dames & Moore v. Regan, 453
U. S. 654, 678 (1981) (quoting Agee,
453
U. S., at 291). Rather, in these domains, the fact that Congress
has provided the President with broad authorities does not imply--and
the Judicial Branch should not infer--that Congress intended to deprive
him of particular powers not specifically enumerated. See Dames
& Moore, 453
U. S., at 678. As far as the courts are concerned, "the
enactment of legislation closely related to the question of the President's
authority in a particular case which evinces legislative intent to accord
the President broad discretion may be considered to 'invite' 'measures
on independent presidential responsibility.' " Ibid.
(quoting Youngstown, 343
U. S., at 637 (Jackson, J., concurring)). Finally,
and again for the same reasons, where "the President acts pursuant
to an express or implied authorization from Congress, he exercises not
only his powers but also those delegated by Congress[, and i]n such a
case the executive action 'would be supported by the strongest of presumptions
and the widest latitude of judicial interpretation, and the burden of
persuasion would rest heavily upon any who might attack it.' "
Dames & Moore, supra,
at 668 (quoting Youngstown,
supra, at 637 (Jackson, J., concurring)).
That is why the Court has explained, in a case analogous to this one,
that "the detention[,] ordered by the President in the declared exercise
of his powers as Commander in Chief of the Army in time of war and of
grave public danger[, is] not to be set aside by the courts without the
clear conviction that [it is] in conflict with the Constitution or laws
of Congress constitutionally enacted." Ex
parte Quirin, 317
U. S. 1, 25 (1942). See also Ex
parte Milligan, 4 Wall. 2, 133 (1866) (Chase, C. J.,
concurring in judgment) (stating that a sentence imposed by a military
commission "must not be set aside except upon the clearest conviction
that it cannot be reconciled with the Constitution and the constitutional
legislation of Congress"). This deference extends to the President's
determination of all the factual predicates necessary to conclude that
a given action is appropriate. See Quirin,
supra, at 25 ("We
are not here concerned with any question of the guilt or innocence of
petitioners"). See also Hirabayashi
v. United States, 320
U. S. 81, 93 (1943); Prize
Cases, 2 Black, at 670; Martin
v. Mott, 12 Wheat. 19, 29-30 (1827). To
be sure, the Court has at times held, in specific circumstances, that
the military acted beyond its warmaking authority. But these cases are
distinguishable in important ways. In Ex
parte Endo, 323
U. S. 283 (1944), the Court held unlawful the detention of an
admittedly law-abiding and loyal American of Japanese ancestry. It did
so because the Government's asserted reason for the detention had nothing
to do with the congressional and executive authorities upon which the
Government relied. Those authorities permitted detention for the purpose
of preventing espionage and sabotage and thus could not be pressed into
service for detaining a loyal citizen. See id.,
at 301-302. Further, the Court "stress[ed] the silence ... of the
[relevant] Act and the Executive Orders."
Id., at 301 (emphasis
added); see also id.,
at 301-304. The Court sensibly held that the Government could not detain
a loyal citizen pursuant to executive and congressional authorities that
could not conceivably be implicated given the Government's factual allegations.
And in Youngstown, Justice Jackson emphasized that
"Congress ha[d] not left seizure of private property an open field
but ha[d] covered it by three statutory policies inconsistent with th[e]
seizure." 343
U. S., at 639 (concurring opinion). See also Milligan, supra, at 134 (Chase, C. J., concurring in judgment) (noting
that the Government failed to comply with statute directly on point). I
acknowledge that the question whether Hamdi's executive detention is lawful
is a question properly resolved by the Judicial Branch, though the question
comes to the Court with the strongest presumptions in favor of the Government.
The plurality agrees that Hamdi's detention is lawful if he is an enemy
combatant. But the question whether Hamdi is actually an enemy combatant
is "of a kind for which the Judiciary has neither aptitude, facilities
nor responsibility and which has long been held to belong in the domain
of political power not subject to judicial intrusion or inquiry."
Chicago & Southern Air Lines, 333
U. S., at 111. That is, although it is appropriate for the Court
to determine the judicial question whether the President has the asserted
authority, see, e.g.,
Ex parte Endo, supra, we lack the information and expertise
to question whether Hamdi is actually an enemy combatant, a question the
resolution of which is committed to other branches.1
In the words of then-Judge Scalia: "In Old Testament
days, when judges ruled the people of Israel and led them into battle,
a court professing the belief that it could order a halt to a military
operation in foreign lands might not have been a startling phenomenon.
But in modern times, and in a country where such governmental functions
have been committed to elected delegates of the people, such an assertion
of jurisdiction is extraordinary. The [C]ourt's decision today reflects
a willingness to extend judicial power into areas where we do not know,
and have no way of finding out, what serious harm we may be doing."
Ramirez de Arellano v.
Weinberger, 745 F. 2d
1500, 1550-1551 (CADC 1984) (en banc) (dissenting opinion) (footnote omitted). See also id., at 1551, n. 1 (noting that "[e]ven
the ancient Israelites eventually realized the shortcomings of judicial
commanders-in-chief"). The decision whether someone is an enemy combatant
is, no doubt, "delicate, complex, and involv[es] large elements of
prophecy," Chicago & Southern
Air Lines, supra,
at 111, which, incidentally might in part explain why "the Government
has never provided any court with the full criteria that it uses in classifying
individuals as such," ante,
at 8. See also infra,
at 18-20 (discussing other military decisions). II "The
war power of the national government is 'the power to wage war successfully.' "
Lichter v. United
States, 334
U. S. 742, 767, n. 9 (1948) (quoting Hughes, War Powers
Under the Constitution, 42 A. B. A. Rep. 232, 238). It follows
that this power "is not limited to victories in the field, but carries
with it the inherent power to guard against the immediate renewal of the
conflict," In re Yamashita, 327
U. S. 1, 12 (1946); see also Stewart
v. Kahn, 11 Wall. 493,
507 (1871), and quite obviously includes the ability to detain those (even
United States citizens) who fight against our troops or those of our allies,
see, e.g., Quirin,
317
U. S., at 28-29, 30-31; id.,
at 37-39; Duncan v. Kahanamoku, 327
U. S. 304, 313-314 (1946); W. Winthrop, Military Law and Precedents
788 (2d ed. 1920); W. Whiting, War Powers Under the Constitution of the
United States 167 (43d ed. 1871); id.,
at 44-46 (noting that Civil War "rebels" may be treated as foreign
belligerents); see also ante,
at 10-12. Although
the President very well may have inherent authority to detain those arrayed
against our troops, I agree with the plurality that we need not decide
that question because Congress has authorized the President to do so.
See ante, at 9. The Authorization for Use of
Military Force (AUMF), 115 Stat. 224, authorizes the President to "use
all necessary and appropriate force against those nations, organizations,
or persons he determines planned, authorized, committed, or aided the
terrorist attacks" of September 11, 2001. Indeed, the Court has previously
concluded that language materially identical to the AUMF authorizes the
Executive to "make the ordinary use of the soldiers ... ; that
he may kill persons who resist and, of course, that he may use the milder
measure of seizing [and detaining] the bodies of those whom he considers
to stand in the way of restoring peace." Moyer
v. Peabody, 212
U. S. 78, 84 (1909). The
plurality, however, qualifies its recognition of the President's authority
to detain enemy combatants in the war on terrorism in ways that are at
odds with our precedent. Thus, the plurality relies primarily on Article
118 of the Geneva Convention (III) Relative to the Treatment of Prisoners
of War, Aug. 12, 1949, [1955] 6 U. S. T. 3406, T. I. A. S.
No. 3364, for the proposition that "[i]t is a clearly established
principle of the law of war that detention may last no longer than active
hostilities." Ante, at 12-13. It then appears to limit
the President's authority to detain by requiring that the record establis[h]
that United States troops are still involved in active combat in Afghanistan
because, in that case, detention would be "part of the exercise of
'necessary and appropriate force.' " Ante, at 14. But I do not believe that we may diminish the
Federal Government's war powers by reference to a treaty and certainly
not to a treaty that does not apply. See n. 6, infra.
Further, we are bound by the political branches' determination that the
United States is at war. See, e.g.,
Ludecke v. Watkins, 335
U. S. 160, 167-170 (1948); Prize
Cases, 2 Black, at 670; Mott,
12 Wheat., at 30. And, in any case, the power to detain does not end with
the cessation of formal hostilities. See, e.g.,
Madsen v. Kinsella, 343
U. S. 341, 360 (1952); Johnson
v. Eisentrager, 339
U. S. 763, 786 (1950); cf. Moyer,
supra, at 85. Accordingly,
the President's action here is "supported by the strongest of presumptions
and the widest latitude of judicial interpretation." Dames & Moore, 453
U. S., at 668 (internal quotation marks omitted).2
The question becomes whether the Federal Government (rather than the President
acting alone) has power to detain Hamdi as an enemy combatant. More precisely,
we must determine whether the Government may detain Hamdi given the procedures
that were used. III I
agree with the plurality that the Federal Government has power to detain
those that the Executive Branch determines to be enemy combatants. See
ante, at 10. But I do not think that the
plurality has adequately explained the breadth of the President's authority
to detain enemy combatants, an authority that includes making virtually
conclusive factual findings. In my view, the structural considerations
discussed above, as recognized in our precedent, demonstrate that we lack
the capacity and responsibility to second-guess this determination. This
makes complete sense once the process that is due Hamdi is made clear.
As an initial matter, it is possible that the Due Process Clause requires
only "that our Government must proceed according to the 'law of the
land'--that is, according to written constitutional and statutory provisions."
In re Winship, 397
U. S. 358, 382 (1970) (Black, J., dissenting). I need not go
this far today because the Court has already explained the nature of due
process in this context. In
a case strikingly similar to this one, the Court addressed a Governor's
authority to detain for an extended period a person the executive believed
to be responsible, in part, for a local insurrection. Justice Holmes wrote
for a unanimous Court: "When it comes to
a decision by the head of the State upon a matter involving its life,
the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants
the substitution of executive process for judicial process. This was admitted
with regard to killing men in the actual clash of arms, and we think it
obvious, although it was disputed, that the same is true of temporary
detention to prevent apprehended harm." Moyer,
212
U. S., at 85 (citation omitted; emphasis added). The Court answered Moyer's
claim that he had been denied due process by emphasizing that "it is familiar
that what is due process of law depends on circumstances. It varies with
the subject-matter and the necessities of the situation. Thus summary
proceedings suffice for taxes, and executive decisions for exclusion from
the country... . Such arrests are not necessarily for punishment,
but are by way of precaution to prevent the exercise of hostile power."
Id., at 84-85 (citations omitted). In this context, due
process requires nothing more than a good-faith executive determination.3
To be clear: The Court has held that an executive, acting pursuant to
statutory and constitutional authority may, consistent with the Due Process
Clause, unilaterally decide to detain an individual if the executive deems
this necessary for the public safety even
if he is mistaken. Moyer is not an exceptional case. In Luther v. Borden, 7 How. 1 (1849), the Court discussed the President's
constitutional and statutory authority, in response to a request from
a state legislature or executive, " 'to call forth such number
of the militia of any other State or States, as may be applied for, as
he may judge sufficient to suppress [an] insurrection.' " Id.,
at 43 (quoting Act of Feb. 28, 1795). The Court explained that courts
could not review the President's decision to recognize one of the competing
legislatures or executives. See 7 How., at 43.
If a court could second-guess this determination, "it would become
the duty of the court (provided it came to the conclusion that the President
had decided incorrectly) to discharge those who were arrested or detained
by the troops in the service of the United States." Ibid. "If the judicial power extends so far," the
Court concluded, "the guarantee contained in the Constitution of
the United States [referring to Art. IV, §4] is a guarantee of anarchy,
and not of order." Ibid.
The Court clearly contemplated that the President had authority to detain
as he deemed necessary, and such detentions evidently comported with the
Due Process Clause as long as the President correctly decided to call
forth the militia, a question the Court said it could not review. The
Court also addressed the natural concern that placing "this power
in the President is dangerous to liberty, and may be abused." Id., at 44. The Court noted that "[a]ll
power may be abused if placed in unworthy hands," and explained that
"it would be difficult ... to point out any other hands in which
this power would be more safe, and at the same time equally effectual."
Ibid. Putting that aside,
the Court emphasized that this power "is conferred upon him by the
Constitution and laws of the United States, and must therefore be respected
and enforced in its judicial tribunals." Ibid. Finally, the Court explained that if the President abused
this power "it would be in the power of Congress to apply the proper
remedy. But the courts must administer the law as they find it."
Id., at 45. Almost
140 years later, in United States
v. Salerno, 481
U. S. 739, 748 (1987), the Court explained that the Due Process Clause
"lays down [no] categorical imperative." The Court continued: "We have repeatedly
held that the Government's regulatory interest in community safety can,
in appropriate circumstances, outweigh an individual's liberty interest.
For example, in times of war or insurrection, when society's interest
is at its peak, the Government may detain individuals whom the Government
believes to be dangerous." Ibid. The Court cited Ludecke v. Watkins, 335
U. S. 160 (1948), for this latter proposition even though Ludecke actually involved detention of enemy
aliens. See also Selective Draft Law
Cases, 245
U. S. 366 (1918); Jacobson
v. Massachusetts, 197
U. S. 11, 27-29 (1905) (upholding legislated mass vaccinations
and approving of forced quarantines of Americans even if they show no
signs of illness); cf. Kansas
v. Hendricks, 521
U. S. 346 (1997); Juragua
Iron Co. v. United States,
212
U. S. 297 (1909). The
Government's asserted authority to detain an individual that the President
has determined to be an enemy combatant, at least while hostilities continue,
comports with the Due Process Clause. As these cases also show, the Executive's
decision that a detention is necessary to protect the public need not
and should not be subjected to judicial second-guessing. Indeed, at least
in the context of enemy-combatant determinations, this would defeat the
unity, secrecy, and dispatch that the Founders believed to be so important
to the warmaking function. See Part I, supra. I
therefore cannot agree with Justice
Scalia's conclusion that the Government must choose between
using standard criminal processes and suspending the writ. See ante,
at 26 (dissenting opinion). Justice
Scalia relies heavily upon Ex
parte Milligan, 4 Wall. 2 (1866), see ante,
at 14-16, 17-20, and three cases decided by New York state courts in the
wake of the War of 1812, see ante,
at 13-14. I admit that Milligan
supports his position. But because the Executive Branch there, unlike
here, did not follow a specific statutory mechanism provided by Congress,
the Court did not need to reach the broader question of Congress' power,
and its discussion on this point was arguably dicta, see 4 Wall., at 122,
as four Justices believed, see id.,
at 132, 134-136 (Chase, C. J., joined by Wayne, Swayne, and Miller,
JJ., concurring in judgment). More
importantly, the Court referred frequently and pervasively to the criminal
nature of the proceedings instituted against Milligan. In fact, this feature
serves to distinguish the state cases as well. See In re Stacy, 10 Johns. *328, *334 (N. Y. 1813) ("A
military commander is here assuming criminal
jurisdiction over a private citizen" (emphasis added));
Smith v. Shaw, 12 Johns. *257, *265 (N. Y. 1815) (Shaw "might
be amenable to the civil authority for treason; but could not be punished, under martial law, as a spy"
(emphasis added)); M'Connell
v. Hampton, 12 Johns.
*234 (N. Y. 1815) (same for treason). Although
I do acknowledge that the reasoning of these cases might apply beyond
criminal punishment, the punishment-nonpunishment distinction harmonizes
all of the precedent. And, subsequent cases have at least implicitly distinguished
Milligan in just this way. See, e.g., Moyer,
212
U. S., at 84-85 ("Such arrests are not necessarily for punishment,
but are by way of precaution"). Finally, Quirin overruled Milligan to the extent that those cases
are inconsistent. See Quirin,
317
U. S., at 45 (limiting Milligan
to its facts). Because the Government does not detain Hamdi in order to
punish him, as the plurality acknowledges, see ante,
at 10-11, Milligan and
the New York cases do not control. Justice
Scalia also
finds support in a letter Thomas Jefferson wrote to James Madison. See
ante, at 12. I agree that this provides
some evidence for his position. But I think this plainly insufficient
to rebut the authorities upon which I have relied. In any event, I do
not believe that Justice Scalia's evidence leads to the necessary
"clear conviction that [the detention is] in conflict with the Constitution
or laws of Congress constitutionally enacted," Quirin, supra, at 25, to justify nullifying the President's wartime
action. Finally,
Justice Scalia's position
raises an additional concern. Justice
Scalia apparently does not disagree that the Federal Government
has all power necessary to protect the Nation. If criminal processes do
not suffice, however, Justice Scalia
would require Congress to suspend the writ. See ante, at 26. But the fact that the writ may not be suspended
"unless when in Cases of Rebellion or Invasion the public Safety
may require it," Art. I, §9, cl. 2, poses two related problems.
First, this condition might not obtain here or during many other emergencies
during which this detention authority might be necessary. Congress would
then have to choose between acting unconstitutionally4
and depriving the President of the tools he needs to protect the Nation.
Second, I do not see how suspension would make constitutional otherwise
unconstitutional detentions ordered by the President. It simply removes
a remedy. Justice Scalia's position might therefore
require one or both of the political branches to act unconstitutionally
in order to protect the Nation. But the power to protect the Nation must
be the power to do so lawfully. Accordingly,
I conclude that the Government's detention of Hamdi as an enemy combatant
does not violate the Constitution. By detaining Hamdi, the President,
in the prosecution of a war and authorized by Congress, has acted well
within his authority. Hamdi thereby received all the process to which
he was due under the circumstances. I therefore believe that this is no
occasion to balance the competing interests, as the plurality unconvincingly
attempts to do. IV Although
I do not agree with the plurality that the balancing approach of Mathews v. Eldridge, 424
U. S. 319 (1976), is the appropriate analytical tool with which
to analyze this case,5
I cannot help but explain that the plurality misapplies its chosen framework,
one that if applied correctly would probably lead to the result I have
reached. The plurality devotes two paragraphs to its discussion of the
Government's interest, though much of those two paragraphs explain why
the Government's concerns are misplaced. See ante,
at 24-25. But: "It is 'obvious and unarguable' that no governmental
interest is more compelling than the security of the Nation." Agee, 453
U. S., at 307 (quoting Aptheker,
378
U. S., at 509). In Moyer,
the Court recognized the paramount importance of the Governor's interest
in the tranquility of a Colorado town. At issue here is the far more significant
interest of the security of the Nation. The Government seeks to further
that interest by detaining an enemy soldier not only to prevent him from
rejoining the ongoing fight. Rather, as the Government explains, detention
can serve to gather critical intelligence regarding the intentions and
capabilities of our adversaries, a function that the Government avers
has become all the more important in the war on terrorism. See Brief for
Respondents 15; App. 347-351. Additional
process, the Government explains, will destroy the intelligence gathering
function. Brief for Respondents 43-45. It also does seem quite likely
that, under the process envisioned by the plurality, various military
officials will have to take time to litigate this matter. And though the
plurality does not say so, a meaningful ability to challenge the Government's
factual allegations will probably require the Government to divulge highly
classified information to the purported enemy combatant, who might then
upon release return to the fight armed with our most closely held secrets. The
plurality manages to avoid these problems by discounting or entirely ignoring
them. After spending a few sentences putatively describing the Government's
interests, the plurality simply assures the Government that the alleged
burdens "are properly taken into account in our due process analysis."
Ante, at 25. The plurality also announces
that "the risk of erroneous deprivation of a detainee's liberty interest
is unacceptably high under the Government's proposed rule." Ante, at 26 (internal quotation marks omitted).
But there is no particular reason to believe that the federal courts have
the relevant information and expertise to make this judgment. And for
the reasons discussed in Part I, supra,
there is every reason to think that courts cannot and should
not make these The
plurality next opines that "[w]e think it unlikely that this basic
process will have the dire impact on the central functions of warmaking
that the Government forecasts." Ante,
at 27. Apparently by limiting hearings "to the alleged
combatant's acts," such hearings "meddl[e] little, if at all,
in the strategy or conduct of war." Ante,
at 28. Of course, the meaning of the combatant's acts may become clear
only after quite invasive and extensive inquiry. And again, the federal
courts are simply not situated to make these judgments. Ultimately,
the plurality's dismissive treatment of the Government's asserted interests
arises from its apparent belief that enemy-combatant determinations are
not part of "the actual prosecution of a war," ibid., or one of the "central functions
of warmaking," ante, at
27. This seems wrong: Taking and holding
enemy combatants is a quintessential aspect of the prosecution of war.
See, e.g., ante,
at 10-11; Quirin, 317
U. S., at 28.
Moreover, this highlights serious difficulties in applying the plurality's
balancing approach here. First, in the war context, we know neither the
strength of the Government's interests nor the costs of imposing additional
process. Second,
it is at least difficult to explain why the result should be different
for other military operations that the plurality would ostensibly recognize
as "central functions of warmaking." As the plurality recounts: "Parties whose rights
are to be affected are entitled to be heard; and in order that they may
enjoy that right they must first be notified. It is equally fundamental
that the right to notice and an opportunity to be heard must be granted
at a meaningful time and in a meaningful manner." Ante,
at 26 (internal quotation marks omitted). See also ibid. ("notice" of the Government's
factual assertions and "a fair opportunity to rebut [those] assertions
before a neutral decisionmaker" are essential elements of due process).
Because a decision to bomb a particular target might extinguish life interests, the plurality's analysis
seems to require notice to potential targets. To take one more example,
in November 2002, a Central Intelligence Agency (CIA) Predator drone fired
a Hellfire missile at a vehicle in Yemen carrying an al Qaeda leader,
a citizen of the United States, and four others. See Priest, CIA Killed
U. S. Citizen In Yemen Missile Strike, Washington Post, Nov. 8, 2002,
p. A1. It is not clear whether the CIA knew that an American was
in the vehicle. But the plurality's due process would seem to require
notice and opportunity to respond here as well. Cf. Tennessee
v. Garner, 471
U. S. 1 (1985). I offer these examples not because I think the
plurality would demand additional process in these situations but because
it clearly would not. The result here should be the same. I
realize that many military operations are, in some sense, necessary. But
many, if not most, are merely expedient, and I see no principled distinction
between the military operation the plurality condemns today (the holding
of an enemy combatant based on the process given Hamdi) from a variety
of other military operations. In truth, I doubt that there is any sensible,
bright-line distinction. It could be argued that bombings and missile
strikes are an inherent part of war, and as long as our forces do not
violate the laws of war, it is of no constitutional moment that civilians
might be killed. But this does not serve to distinguish this case because
it is also consistent with the laws of war to detain enemy combatants
exactly as the Government has detained Hamdi.6
This, in fact, bolsters my argument in Part III to the extent that the
laws of war show that the power to detain is part of a sovereign's war
powers. Undeniably,
Hamdi has been deprived of a serious interest, one actually protected
by the Due Process Clause. Against this, however, is the Government's
overriding interest in protecting the Nation. If a deprivation of liberty
can be justified by the need to protect a town, the protection of the
Nation, a fortiori, justifies it. I
acknowledge that under the plurality's approach, it might, at times, be
appropriate to give detainees access to counsel and notice of the factual
basis for the Government's determination. See ante,
at 25-27. But properly accounting for the Government's interests also
requires concluding that access to counsel and to the factual basis would
not always be warranted. Though common sense suffices, the Government
thoroughly explains that counsel would often destroy the intelligence
gathering function. See Brief for Respondents 42-43. See also App. 347-351
(affidavit of Col. D. Woolfolk). Equally obvious is the Government's interest
in not fighting the war in its own courts, see, e.g.,
Johnson v. Eisentrager, 339
U. S., at 779, and protecting classified information, see, e.g., Department
of Navy v. Egan,
484
U. S. 518, 527 (1988) (President's "authority to classify
and control access to information bearing on national security and to
determine" who gets access "flows primarily from [the Commander-in-Chief
Clause] and exists quite apart from any explicit congressional grant");
Agee, 453
U. S., at 307 (upholding revocation of former CIA employee's
passport in large part by reference to the Government's need "to
protect the secrecy of [its] foreign intelligence operations").7 * * * For
these reasons, I would affirm the judgment of the Court of Appeals. YASER ESAM HAMDI
and ESAM FOUAD HAMDI,
as on writ of certiorari to the united
states court of appeals for the fourth circuit [June 28, 2004] Justice Souter, with whom Justice Ginsburg joins, concurring in part,
dissenting in part, and concurring in the judgment. According
to Yaser Hamdi's petition for writ of habeas corpus, brought on his behalf
by his father, the Government of the United States is detaining him, an
American citizen on American soil, with the explanation that he was seized
on the field of battle in Afghanistan, having been on the enemy side.
It is undisputed that the Government has not charged him with espionage,
treason, or any other crime under domestic law. It is likewise undisputed
that for one year and nine months, on the basis of an Executive designation
of Hamdi as an "enemy combatant," the Government denied him
the right to send or receive any communication beyond the prison where
he was held and, in particular, denied him access to counsel to represent
him.1 The
Government asserts a right to hold Hamdi under these conditions indefinitely,
that is, until the Government determines that the United States is no
longer threatened by the terrorism exemplified in the attacks of September
11, 2001. In
these proceedings on Hamdi's petition, he seeks to challenge the facts
claimed by the Government as the basis for holding him as an enemy combatant.
And in this Court he presses the distinct argument that the Government's
claim, even if true, would not implicate any authority for holding him
that would satisfy 18 U. S. C. §4001(a) (Non-Detention Act),
which bars imprisonment The
Government responds that Hamdi's incommunicado imprisonment as an enemy
combatant seized on the field of battle falls within the President's power
as Commander in Chief under the laws and usages of war, and is in any
event authorized by two statutes. Accordingly, the Government contends
that Hamdi has no basis for any challenge by petition for habeas except
to his own status as an enemy combatant; and even that challenge may go
no further than to enquire whether "some evidence" supports
Hamdi's designation, see Brief for Respondents 34-36; if there is "some
evidence," Hamdi should remain locked up at the discretion of the
Executive. At the argument of this case, in fact, the Government went
further and suggested that as long as a prisoner could challenge his enemy
combatant designation when responding to interrogation during incommunicado
detention he was accorded sufficient process to support his designation
as an enemy combatant. See Tr. of Oral Arg. 40; id., at 42 ("[H]e has an opportunity
to explain it in his own words" "[d]uring interrogation").
Since on either view judicial enquiry so limited would be virtually worthless
as a way to contest detention, the Government's concession of jurisdiction
to hear Hamdi's habeas claim is more theoretical than practical, leaving
the assertion of Executive authority close to unconditional. The
plurality rejects any such limit on the exercise of habeas jurisdiction
and so far I agree with its opinion. The plurality does, however, accept
the Government's position that if Hamdi's designation as an enemy combatant
is correct, his detention (at least as to some period) is authorized by
an Act of Congress as required by §4001(a), that is, by the Authorization
for Use of Military Force, 115 Stat. 224 (hereinafter Force Resolution).
Ante, at 9-14. Here, I disagree and respectfully
dissent. The Government has failed to demonstrate that the Force Resolution
authorizes the detention complained of here even on the facts the Government
claims. If the Government raises nothing further than the record now shows,
the Non-Detention Act entitles Hamdi to be released. I The
Government's first response to Hamdi's claim that holding him violates
§4001(a), prohibiting detention of citizens "except pursuant to an
Act of Congress," is that the statute does not even apply to military
wartime detentions, being beyond the sphere of domestic criminal law.
Next, the Government says that even if that statute does apply, two Acts
of Congress provide the authority §4001(a) demands: a general authorization
to the Department of Defense to pay for detaining "prisoners of war"
and "similar" persons, 10 U. S. C. §956(5), and the
Force Resolution, passed after the attacks of 2001. At the same time,
the Government argues that in detaining Hamdi in the manner described,
the President is in any event acting as Commander in Chief under Article
II of the Constitution, which brings with it the right to invoke authority
under the accepted customary rules for waging war. On the record in front
of us, the Government has not made out a case on any theory. II The
threshold issue is how broadly or narrowly to read the Non-Detention Act,
the tone of which is severe: "No citizen shall be imprisoned or otherwise
detained by the United States except pursuant to an Act of Congress."
Should the severity of the Act be relieved when the Government's stated
factual justification for incommunicado detention is a war on terrorism,
so that the Government may be said to act "pursuant" to congressional
terms that fall short of explicit authority to imprison individuals? With
one possible though important qualification, see infra,
at 10-11, the answer has to be no. For a number of reasons, the prohibition
within §4001(a) has to be read broadly to accord the statute a long reach
and to impose a burden of justification on the Government. First,
the circumstances in which the Act was adopted point the way to this interpretation.
The provision superseded a cold-war statute, the Emergency Detention Act
of 1950 (formerly 50 U. S. C. §811 et
seq. (1970 ed.)), which had authorized the Attorney General,
in time of emergency, to detain anyone reasonably thought likely to engage
in espionage or sabotage. That statute was repealed in 1971 out of fear
that it could authorize a repetition of the World War II internment of
citizens of Japanese ancestry; Congress meant to preclude another episode
like the one described in Korematsu
v. United States, 323
U. S. 214 (1944). See H. R. Rep. No. 92-116, pp. 2, 4-5
(1971). While Congress might simply have struck the 1950 statute, in considering
the repealer the point was made that the existing statute provided some
express procedural protection, without which the Executive would seem
to be subject to no statutory limits protecting individual liberty. See
id., at 5 (mere repeal "might leave
citizens subject to arbitrary executive action, with no clear demarcation
of the limits of executive authority"); 117 Cong. Rec. 31544 (1971)
(Emergency Detention Act "remains as the only existing barrier against
the future exercise of executive power which resulted in" the Japanese
internment); cf. id.,
at 31548 (in the absence of further procedural provisions, even §4001(a)
"will virtually leave us stripped naked against the great power ...
which the President has"). It was in these circumstances that a proposed
limit on Executive action was expanded to the inclusive scope of §4001(a)
as enacted. The
fact that Congress intended to guard against a repetition of the World
War II internments when it repealed the 1950 statute and gave us §4001(a)
provides a powerful reason to think that §4001(a) was meant to require
clear congressional authorization before any citizen can be placed in
a cell. It is not merely that the legislative history shows that §4001(a)
was thought necessary in anticipation of times just like the present,
in which the safety of the country is threatened. To appreciate what is
most significant, one must only recall that the internments of the 1940's
were accomplished by Executive action. Although an Act of Congress ratified
and confirmed an Executive order authorizing the military to exclude individuals
from defined areas and to accommodate those it might remove, see Ex
parte Endo, 323
U. S. 283, 285-288 (1944), the statute said nothing whatever
about the detention of those who might be removed, id.,
at 300-301; internment camps were creatures of the Executive, and confinement
in them rested on assertion of Executive authority, see id., at 287-293. 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. Second,
when Congress passed §4001(a) it was acting in light of an interpretive
regime that subjected enactments limiting liberty in wartime to the requirement
of a clear statement and it presumably intended §4001(a) to be read accordingly.
This need for clarity was unmistakably expressed in Ex parte Endo,
supra, decided the same
day as Korematsu. Endo began with a petition for habeas corpus by an interned
citizen claiming to be loyal and law-abiding and thus "unlawfully
detained." 323
U. S., at 294. The petitioner was held entitled to habeas relief
in an opinion that set out this principle for scrutinizing wartime statutes
in derogation of customary liberty: "In interpreting
a wartime measure we must assume that [its] purpose was to allow for the
greatest possible accommodation between ... liberties and the exigencies
of war. We must assume, when asked to find implied powers in a grant of
legislative or executive authority, that the law makers intended to place
no greater restraint on the citizen than was clearly and unmistakably
indicated by the language they used." Id.,
at 300. Congress's understanding
of the need for clear authority before citizens are kept detained is itself
therefore clear, and §4001(a) must be read to have teeth in its demand
for congressional authorization. Finally,
even if history had spared us the cautionary example of the internments
in World War II, even if there had been no Korematsu,
and Endo had set out no
principle of statutory interpretation, there would be a compelling reason
to read §4001(a) to demand manifest authority to detain before detention
is authorized. The defining character of American constitutional government
is its constant tension between security and liberty, serving both by
partial helpings of each. In a government of separated powers, deciding
finally on what is a reasonable degree of guaranteed liberty whether in
peace or war (or some condition in between) is not well entrusted to the
Executive Branch of Government, whose particular responsibility is to
maintain security. For reasons of inescapable human nature, the branch
of the Government asked to counter a serious threat is not the branch
on which to rest the Nation's entire reliance in striking the balance
between the will to win and the cost in liberty on the way to victory;
the responsibility for security will naturally amplify the claim that
security legitimately raises. A reasonable balance is more likely to be
reached on the judgment of a different branch, just as Madison said in
remarking that "the constant aim is to divide and arrange the several
offices in such a manner as that each may be a check on the other--that
the private interest of every individual may be a sentinel over the public
rights." The Federalist No. 51, p. 349 (J. Cooke ed. 1961). Hence
the need for an assessment by Congress before citizens are subject to
lockup, and likewise the need for a clearly expressed congressional resolution
of the competing claims. III Under
this principle of reading §4001(a) robustly to require a clear statement
of authorization to detain, none of the Government's arguments suffices
to justify Hamdi's detention. A First,
there is the argument that §4001(a) does not even apply to wartime military
detentions, a position resting on the placement of §4001(a) in Title 18
of the United States Code, the gathering of federal criminal law. The
text of the statute does not, however, so limit its reach, and the legislative
history of the provision shows its placement in Title 18 was not meant
to render the statute more restricted than its terms. The draft of what
is now §4001(a) as contained in the original bill prohibited only imprisonment
unauthorized by Title 18. See H. R. Rep. No. 92- B Next,
there is the Government's claim, accepted by the Court, that the terms
of the Force Resolution are adequate to authorize detention of an enemy
combatant under the circumstances described,3 a claim
the Government fails to support sufficiently to satisfy §4001(a) as read
to require a clear statement of authority to detain. Since the Force Resolution
was adopted one week after the attacks of September 11, 2001, it naturally
speaks with some generality, but its focus is clear, and that is on the
use of military power. It is fairly read to authorize the use of armies
and weapons, whether against other armies or individual terrorists. But,
like the statute discussed in Endo,
it never so much as uses the word detention, and there is no reason to
think Congress might have perceived any need to augment Executive power
to deal with dangerous citizens within the United States, given the well-stocked
statutory arsenal of defined criminal offenses covering the gamut of actions
that a citizen sympathetic to terrorists might commit. See, e.g.,
18 U. S. C. §2339A (material support for various terrorist acts);
§2339B (material support to a foreign terrorist organization); §2332a
(use of a weapon of mass destruction, including conspiracy and attempt);
§2332b(a)(1) (acts of terrorism "transcending national boundaries,"
including threats, conspiracy, and attempt); 18 U. S. C. A.
§2339C (Supp. 2004) (financing of certain terrorist acts); see also 18
U. S. C. §3142(e) (pretrial detention). See generally Brief
for Janet Reno et al. as Amici
Curiae in Rumsfeld v. Padilla, O. T. 2003, No. 03-1027, pp. 14-19, and
n. 17 (listing the tools available to the Executive to fight terrorism
even without the power the Government claims here); Brief for Louis Henkin
et al. as Amici Curiae
in Rumsfeld v. Padilla, O. T. 2003, No. 03-1027, p. 23, n. 27.4 C Even
so, there is one argument for treating the Force Resolution as sufficiently
clear to authorize detention of a citizen consistently with §4001(a).
Assuming the argument to be sound, however, the Government is in no position
to claim its advantage. Because
the Force Resolution authorizes the use of military force in acts of war
by the United States, the argument goes, it is reasonably clear that the
military and its Commander in Chief are authorized to deal with enemy
belligerents according to the treaties and customs known collectively
as the laws of war. Brief for Respondents 20- There
is no need, however, to address the merits of such an argument in all
possible circumstances. For now it is enough to recognize that the Government's
stated legal position in its campaign against the Taliban (among whom
Hamdi was allegedly captured) is apparently at odds with By
holding him incommunicado, however, the Government obviously has not been
treating him as a prisoner of war, and in fact the Government claims that
no Taliban detainee is entitled to prisoner of war status. See Brief for
Respondents 24; White House Press Release. This treatment appears to be
a violation of the Geneva Convention provision that even in cases of doubt,
captives are entitled to be treated as prisoners of war "until such
time as their status has been determined by a competent tribunal."
Art. 5, 6 U. S. T., at 3324. The Government answers that the
President's determination that Taliban detainees do not qualify as prisoners
of war is conclusive as to Hamdi's status and removes any doubt that would
trigger application of the Convention's tribunal requirement. See Brief
for Respondents 24. But reliance on this categorical pronouncement to
settle doubt is apparently at odds with the military regulation, Enemy
Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees,
Army Reg. 190-8, §§1-5, 1-6 (1997), adopted to implement the Geneva Convention,
and setting out a detailed procedure for a military tribunal to determine
an individual's status. See, e.g., id., §1-6 ("A competent tribunal shall be composed of three
commissioned officers"; a "written record shall be made of proceedings";
"[p]roceedings shall be open" with certain exceptions; "[p]ersons
whose status is to be determined shall be advised of their rights at the
beginning of their hearings," "allowed to attend all open sessions,"
"allowed to call witnesses if reasonably available, and to question
those witnesses called by the Tribunal," and to "have a right
to testify"; and a tribunal shall determine status by a "[p]reponderance
of evidence"). One of the types of doubt these tribunals are meant
to settle is whether a given individual may be, as Hamdi says he is, an
"[i]nnocent civilian who should be immediately returned to his home
or released." Id.,
1-6e(10)(c). The regulation, jointly promulgated
by the Headquarters of the Departments of the Army, Navy, Air Force, and
Marine Corps, provides that "[p]ersons who have been determined by
a competent tribunal not to be entitled to prisoner of war status may
not be executed, imprisoned, or otherwise penalized without further proceedings
to determine what acts they have committed and what penalty should be
imposed." Id., §1-6g. The regulation also incorporates the Geneva Convention's
presumption that in cases of doubt, "persons shall enjoy the protection
of the ... Convention until such time as their status has been determined
by a competent tribunal." Id.,
§1-6a. Thus, there is
reason to question whether the United States is acting in accordance with
the laws of war it claims as authority. Whether,
or to what degree, the Government is in fact violating the Geneva Convention
and is thus acting outside the customary usages of war are not matters
I can resolve at this point. What I can say, though, is that the Government
has not made out its claim that in detaining Hamdi in the manner described,
it is acting in accord with the laws of war authorized to be applied against
citizens by the Force Resolution. I conclude accordingly that the Government
has failed to support the position that the Force Resolution authorizes
the described detention of Hamdi for purposes of §4001(a). It
is worth adding a further reason for requiring the Government to bear
the burden of clearly justifying its claim to be exercising recognized
war powers before declaring §4001(a) satisfied. Thirty-eight days after
adopting the Force Resolution, Congress passed the statute entitled Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT), 115 Stat. 272; that
Act authorized the detention of alien terrorists for no more than seven
days in the absence of criminal charges or deportation proceedings, 8
U. S. C. §1226a(a)(5) (2000 ed., Supp. I). It is very difficult
to believe that the same Congress that carefully circumscribed Executive
power over alien terrorists on home soil would not have meant to require
the Government to justify clearly D Since
the Government has given no reason either to deflect the application of
§4001(a) or to hold it to be satisfied, I need to go no further; the Government
hints of a constitutional challenge to the statute, but it presents none
here. I will, however, stray across the line between statutory and constitutional
territory just far enough to note the weakness of the Government's mixed
claim of inherent, extrastatutory authority under a combination of Article
II of the Constitution and the usages of war. It is in fact in this connection
that the Government developed its argument that the exercise of war powers
justifies the detention, and what I have just said about its inadequacy
applies here as well. Beyond that, it is instructive to recall Justice
Jackson's observation that the President is not Commander in Chief of
the country, only of the military. Youngstown Sheet & Tube Co. v. Sawyer, 343
U. S. 579, 643-644 (1952) (concurring opinion); see also id., at 637-638 (Presidential authority
is "at its lowest ebb" where the President acts contrary to
congressional will). There
may be room for one qualification to Justice Jackson's statement, however:
in a moment of genuine emergency, when the Government must act with no
time for deliberation, the Executive may be able to detain a citizen if
there is reason to fear he is an imminent threat to the safety of the
Nation and its people (though I doubt there is any want of statutory authority,
see supra, at 9-10). This case, however, does
not present that question, because an emergency power of necessity must
at least be limited by the emergency; Hamdi has been locked up for over
two years. Cf. Ex parte Milligan,
4 Wall. 2, 127 (1866) (martial law justified only by "actual and
present" necessity as in a genuine invasion that closes civilian
courts). Whether
insisting on the careful scrutiny of emergency claims or on a vigorous
reading of §4001(a), we are heirs to a tradition given voice 800 years
ago by Magna Carta, which, on the barons' insistence, confined executive
power by "the law of the land." IV Because
I find Hamdi's detention forbidden by §4001(a) and unauthorized by the
Force Resolution, I would not reach any questions of what process he may
be due in litigating disputed issues in a proceeding under the habeas
statute or prior to the habeas enquiry itself. For me, it suffices that
the Government has failed to justify holding him in the absence of a further
Act of Congress, criminal charges, a showing that the detention conforms
to the laws of war, or a demonstration that §4001(a) is unconstitutional.
I would therefore vacate the judgment of the Court of Appeals and remand
for proceedings consistent with this view. Since
this disposition does not command a majority of the Court, however, the
need to give practical effect to the conclusions of eight members of the
Court rejecting the Government's position calls for me to join with the
plurality in ordering remand on terms closest to those I would impose.
See Screws v. United States, 325
U. S. 91, 134 (1945) (Rutledge, J., concurring in result). Although
I think litigation of Hamdi's status as an enemy combatant is unnecessary,
the terms of the plurality's remand will allow Hamdi to offer evidence
that he is not an enemy combatant, and he should at the least have the
benefit of that opportunity. It
should go without saying that in joining with the plurality to produce
a judgment, I do not adopt the plurality's resolution of constitutional
issues that I would not reach. It is not that I could disagree with the
plurality's determinations (given the plurality's view of the Force Resolution)
that someone in Hamdi's position is entitled at a minimum to notice of
the Government's claimed factual basis for holding him, and to a fair
chance to rebut it before a neutral decision maker, see ante, at 26; nor, of course, could I disagree with the plurality's
affirmation of Hamdi's right to counsel, see ante, at 32-33. On the other hand, I do
not mean to imply agreement that the Government could claim an evidentiary
presumption casting the burden of rebuttal on Hamdi, see ante, at 27, or that an opportunity to litigate
before a military tribunal might obviate or truncate enquiry by a court
on habeas, see ante, at
31-32. Subject
to these qualifications, I join with the plurality in a judgment of the
Court vacating the Fourth Circuit's judgment and remanding the case. FOOTNOTES
Here the basis
asserted for detention by the military is that Hamdi was carrying a weapon
against American troops on a foreign battlefield; that is, that he was
an enemy combatant. The legal category of enemy combatant has not been
elaborated upon in great detail. The permissible bounds of the category
will be defined by the lower courts as subsequent cases are presented
to them.
Because we hold
that Hamdi is constitutionally entitled to the process described above,
we need not address at this time whether any treaty guarantees him similar
access to a tribunal for a determination of his status. FOOTNOTES
As I shall discuss
presently, see infra,
at 17-19, the Court purported to limit this language in Ex parte Quirin, 317
U. S. 1, 45 (1942). Whatever Quirin's
effect on Milligan's precedential
value, however, it cannot undermine its value as an indicator of original
meaning. Cf. Reid v. Covert, 354
U. S. 1, 30 (1957) (plurality opinion) (Milligan remains "one of the great landmarks in this Court's
history").
Without bothering
to respond to this analysis, the plurality states that Milligan "turned in large part" upon the defendant's
lack of prisoner-of-war status, and that the Milligan Court explicitly and repeatedly
said so. See ante, at 14. Neither is true. To the extent, however, that
prisoner-of-war status was relevant in Milligan,
it was only because prisoners of war received
different statutory treatment under the conditional suspension
then in effect.
The only two Court
of Appeals cases from World War II cited by the Government in which citizens
were detained without trial likewise involved petitioners who were conceded
to have been members of enemy forces. See In re
Territo, 156 F. 2d 142, 143-145 (CA9 1946); Colepaugh v. Looney, 235 F. 2d 429, 432 (CA10 1956). The plurality
complains that Territo is
the only case I have identified in which "a United States citizen
[was] captured in a foreign
combat zone," ante,
at 16. Indeed it is; such cases must surely be rare. But given the constitutional
tradition I have described, the burden is not upon me to find cases in
which the writ was granted to citizens in this country who had been captured on foreign battlefields;
it is upon those who would carve out an exception for such citizens (as
the plurality's complaint suggests it would) to find a single case (other
than one where enemy status was admitted) in which habeas was denied.
The plurality's
assertion that Quirin
somehow "clarifies" Milligan,
ante, at 15, is simply
false. As I discuss supra,
at 17-19, the Quirin
Court propounded a mistaken understanding of Milligan;
but nonetheless its holding was limited to "the case presented by
the present record," and to "the
conceded facts," and thus avoided conflict with the earlier
case. See 317
U. S., at 45-46 (emphasis added). The plurality, ignoring this
expressed limitation, thinks it "beside the point" whether belligerency
is conceded or found "by some other process" (not necessarily
a jury trial) "that verifies this fact with sufficient certainty."
Ante, at 16. But the whole
point of the procedural guarantees in the Bill of Rights is to limit the
methods by which the Government can determine facts that the citizen disputes
and on which the citizen's liberty depends. The plurality's claim that
Quirin's one-paragraph
discussion of Milligan
provides a "[c]lear . . . disavowal" of two false imprisonment
cases from the War of 1812, ante,
at 15, thus defies logic; unlike the plaintiffs in those cases, Haupt
was concededly a member of an enemy force. The
Government also cites Moyer
v. Peabody, 212
U. S. 78 (1909), a suit for damages against the Governor of Colorado,
for violation of due process in detaining the alleged ringleader of a
rebellion quelled by the state militia after the Governor's declaration
of a state of insurrection and (he contended) suspension of the writ "as
incident thereto." Ex parte Moyer,
35 Colo. 154, 157, 91 P. 738, 740 (1905). But the holding of Moyer v. Peabody (even assuming it is transferable from state-militia
detention after state suspension to federal standing-army detention without
suspension) is simply that "[s]o long as such arrests [were] made
in good faith and in the honest belief that they [were] needed in order
to head the insurrection off," 212 U. S.,
at 85, an action in damages could not lie. This "good-faith"
analysis is a forebear of our modern doctrine of qualified immunity. Cf.
Scheuer v. Rhodes, 416
U. S. 232, 247-248 (1974) (understanding Moyer in this way). Moreover, the detention at issue in Moyer lasted about two and a half months,
see 212
U. S., at 85, roughly the length of time permissible under the
1679 Habeas Corpus Act, see supra,
at 4-5. In
addition to Moyer v. Peabody, Justice Thomas relies upon Luther v. Borden,
7 How. 1 (1849), a case in which the state legislature had imposed martial
law--a step even more drastic than suspension of the writ. See post, at 13-14 (dissenting opinion). But
martial law has not been imposed here, and in any case is limited to "the
theatre of active military operations, where war really prevails,"
and where therefore the courts are closed. Ex
parte Milligan, 4 Wall. 2, 127 (1866); see also id., at 129-130 (distinguishing Luther).
The plurality rejects
any need for "specific language of detention" on the ground
that detention of alleged combatants is a "fundamental incident of
waging war." Ante,
at 12. Its authorities do not support that holding in the context of the
present case. Some are irrelevant because they do not address the detention
of American citizens. E.g., Naqvi, Doubtful Prisoner-of-War Status,
84 Int'l Rev. Red Cross 571, 572 (2002). The plurality's assertion that
detentions of citizen and alien combatants are equally authorized has
no basis in law or common sense. Citizens and noncitizens, even if equally
dangerous, are not similarly situated. See, e.g.,
Milligan, supra; Johnson
v. Eisentrager, 339
U. S. 763 (1950); Rev. Stat. 4067, 50 U. S. C. §21
(Alien Enemy Act). That captivity may be consistent with the principles
of international law does not prove that it also complies with the restrictions
that the Constitution places on the American Government's treatment of
its own citizens. Of the authorities cited by the plurality that do deal
with detention of citizens, Quirin
and Territo have already been discussed and
rejected. See supra, at
19-20, and n. 3. The remaining authorities pertain to U. S. detention
of citizens during the Civil War, and are irrelevant for two reasons:
(1) the Lieber Code was issued following a congressional authorization
of suspension of the writ, see Instructions for the Government of Armies
of the United States in the Field, Gen. Order No. 100 (1863), reprinted
in 2 Lieber, Miscellaneous Writings, p. 246; Act of Mar. 3, 1863, 12 Stat.
755, §§1, 2; and (2) citizens of the Confederacy, while citizens of the
United States, were also regarded as citizens of a hostile power.
Justice Thomas worries that the constitutional
conditions for suspension of the writ will not exist "during many
... emergencies during which ... detention authority might be necessary,"
post, at 16. It is difficult
to imagine situations in which security is so seriously threatened as
to justify indefinite imprisonment without trial, and yet the constitutional
conditions of rebellion or invasion are not met. FOOTNOTES
Although I have
emphasized national-security concerns, the President's foreign-affairs
responsibilities are also squarely implicated by this case. The Government
avers that Northern Alliance forces captured Hamdi, and the District Court
demanded that the Government turn over information relating to statements
made by members of the Northern Alliance. See 316 F. 3d 450, 462
(CA4 2003).
It could be argued
that the habeas statutes are evidence of congressional intent that enemy
combatants are entitled to challenge the factual basis for the Government's
determination. See, e.g.,
28 U. S. C. §§2243, 2246. But factual development is needed
only to the extent necessary to resolve the legal challenge to the detention.
See, e.g., Walker
v. Johnston, 312
U. S. 275, 284 (1941).
Indeed, it is not
even clear that the Court required good faith. See Moyer, 212
U. S., at 85 ("It is not alleged that [the Governor's] judgment
was not honest, if that be material, or that [Moyer] was detained after
fears of the insurrection were at an end").
I agree with Justice Scalia that this Court could not
review Congress' decision to suspend the writ. See ante, at 26.
Evidently, neither
do the parties, who do not cite Mathews
even once.
Hamdi's detention
comports with the laws of war, including the Geneva Convention (III) Relative
to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T.
3406, T. I. A. S. No. 3364. See Brief for Respondents 22-24.
These observations
cast still more doubt on the appropriateness and usefulness of Mathews v. Eldridge, 424
U. S. 319 (1976), in this context. It is, for example, difficult
to see how the plurality can insist that Hamdi unquestionably has the
right to access to counsel in connection with the proceedings on remand,
when new information could become available to the Government showing
that such access would pose a grave risk to national security. In that
event, would the Government need to hold a hearing before depriving Hamdi
of his newly acquired right to counsel even if that hearing would itself
pose a grave threat? FOOTNOTES
The Government
has since February 2004 permitted Hamdi to consult with counsel as a matter
of policy, but does not concede that it has an obligation to allow this.
Brief for Respondents 9, 39-46.
Nor is it possible
to distinguish between civilian and military authority to detain based
on the congressional object of avoiding another Korematsu
v. United States, 323
U. S. 214 (1944). See Brief for Respondents 21 (arguing that
military detentions are exempt). Although a civilian agency authorized
by Executive order ran the detention camps, the relocation and detention
of American citizens was ordered by the military under authority of the
President as Commander in Chief. See Ex
parte Endo, 323
U. S. 283, 285-288 (1944). The World War II internment was thus
ordered under the same Presidential power invoked here and the intent
to bar a repetition goes to the action taken and authority claimed here.
As noted, supra, at 3, the Government argues that
a required Act of Congress is to be found in a statutory authorization
to spend money appropriated for the care of prisoners of war and of other,
similar prisoners, 10 U. S. C. §956(5). It is enough to say
that this statute is an authorization to spend money if there are prisoners,
not an authorization to imprison anyone to provide the occasion for spending
money.
Even a brief examination
of the reported cases in which the Government has chosen to proceed criminally
against those who aided the Taliban shows the Government has found no
shortage of offenses to allege. See United
States v. Lindh, 212 F. Supp. 2d 541, 547 (ED
Va. 2002); United States v.
Khan, 309 F. Supp. 2d 789, 796 (ED
Va. 2004). |