Hamdi v. Rumsfeld: judicious balancing at the intersection of the executive's power to detain and the citizen-detainee's right to due process.

AuthorAnderson, James B.

Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004).

  1. INTRODUCTION

    In Hamdi v. Rumsfeld, (1) the United States Supreme Court held that a citizen detained by the Government as an enemy combatant is entitled under due process to a meaningful opportunity to contest the facts underlying his detention before a neutral decision-maker. (2) The Supreme Court examined whether the Executive possessed the power to indefinitely detain United States citizens captured abroad in the midst of the War on Terror and labeled "enemy combatants" without a hearing. (3) In finding that such a citizen-detainee was entitled to some form of impartial hearing pursuant to the Due Process Clause, the Court vacated and remanded the Fourth Circuit's decision allowing detention based on an extremely limited showing of evidence. (4)

    This Note examines the four opinions in Hamdi and concludes that while the outcome of the case was correct, the plurality opinion authored by Justice O'Connor was inadequate, because the outlook for citizens detained in conjunction with the War on Terror in the future remains extremely murky and ambiguous. The Court failed to address several difficult issues raised by its holding. First, the Court declined to precisely define the term "enemy combatant." While the plurality opinion successfully established that the President was authorized to detain a citizen if it was sufficiently clear that he was in fact an enemy combatant, the opinion failed to precisely define the term. Second, the plurality opinion erroneously employed the Mathews balancing test to weigh the citizen's right to a due process hearing against the Government's interest in prosecuting a war unfettered by extraneous litigation. (5) This approach failed to recognize that a citizen's baseline right to a hearing may not be balanced away. Third, the Court declined to establish a clear set of procedures that must be followed prior to and during the hearing before the neutral decision-maker. Finally, it remains unclear whether a military tribunal will suffice for the required neutral decision-maker, a possibility that the plurality opinion mentioned but did not discuss. (6) Alternatively, the concept of a new federal terrorism court with built-in intelligence protections emerges as the better option for the role of the neutral decision-maker.

  2. BACKGROUND

    1. WARTIME DETENTION AND MILITARY TRIBUNALS PRIOR TO HAMDI--FROM THE CIVIL WAR TO WORLD WAR II

      In the Civil War case Ex parte Milligan, a United States citizen was detained in a military prison and put on trial before a military tribunal on charges that he aided a Confederate military organization and conspired to obtain weapons and free Confederate prisoners. (7) Milligan was sentenced to death by the military tribunal for violating the laws of war. (8) He then filed a habeas corpus petition, alleging that the military tribunal was without jurisdiction to try him. (9) The Court, in establishing the open courts rule, held that Congress did not have the power to create military tribunals when state courts were open and available. (10) Thus, Milligan had been denied his right to a jury trial guaranteed by the Sixth Amendment. (11)

      The Court reached a very different result when it next addressed wartime detention and the use of military tribunals more than seventy-five years later during World War II in Ex parte Quirin. (12) In Quirin, eight Nazi saboteurs, one of whom, Hans Haupt, was a United States citizen, were detained after they were captured in 1942 by the Federal Bureau of Investigation upon entering the United States from Germany with explosives and orders to sabotage United States military facilities. (13) The eight were tried before a military commission, which had been appointed by the President roughly three weeks after the Nazi saboteurs had been captured. (14) The Nazis, including Haupt, attempted to stop the trial before the military commission by filing habeas corpus petitions in federal district court. (15) They contended that because the federal courts were open and functioning normally, the President may not deny them the due process of a jury trial by ordering that they be tried by a military tribunal. (16)

      The Supreme Court unanimously ruled against the detainees, finding that the President was constitutionally and statutorily authorized to subject the eight men to a trial before a military commission rather than a domestic federal court. (17) The Court stressed the distinction between lawful and unlawful combatants: "Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful." (18) For example, unlawful combatants include the spy and the "enemy combatant," who wages war without a uniform contrary to the laws of war. (19) Furthermore, the fact that the enemy combatant was a United States citizen, as in Haupt's case, does not excuse him from punishment at the hands of a military tribunal. (20)

      While not explicitly overruling Ex parte Milligan, the Quirin Court declined to follow the open courts rule. (21) The Court found that the rule was inapplicable to the Quirin case because Milligan was not an enemy belligerent since he was not "a part of or associated with the armed forces of the enemy," whereas Haupt was an unlawful combatant, subject to penalties imposed by a military tribunal. (22)

      The Ninth Circuit addressed the habeas corpus petition of a United States citizen captured on the battlefield in Sicily and detained as a prisoner of war during World War II in In re Territo. (23) Gaetano Territo was a United States citizen by birth who moved to Italy at the age of five. (24) In 1943, he served with the Italian Army while Italy and the United States were at war. (25) Territo was captured by United States forces and detained as a prisoner of war in the United States. (26) In his habeas action, Territo claimed that his detention was illegal because he was an American citizen. (27) The district court concluded that neither Territo's United States citizenship nor his contention that he was a non-combat member of the Italian army diminished the legality of his detention by the United States military as a prisoner of war. (28) In affirming the district court's dismissal of the habeas petition, the Ninth Circuit broadly construed the term "prisoner of war" and found that "all persons who are active in opposing an army in war may be captured and except for spies and other non-uniformed plotters and actors for the enemy are prisoners of war." (29) The court stated that the ultimate goal of capture and detention of enemies in wartime is "to prevent the captured individual from serving the enemy." (30)

    2. STATUTORY AUTHORIZATION FOR THE DETENTION OF UNITED STATES CITIZENS IN WARTIME

      1. The Non-Detention Act, 18 U.S.C. [section] 4001(a)

        18 U.S.C. [section] 4001(a) provides that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." (31) The legislative history of this statute (32) reveals that its purpose was to repeal the Emergency Detention Act of 1950, (33) which "established procedures for the apprehension and detention, during internal security emergencies, of individuals deemed likely to engage in espionage or sabotage." (34) In 1971, Congress was concerned that the Emergency Detention Act would allow a recurrence of the round up and internment of American citizens of Japanese ancestry that occurred during World War II. (35)

      2. Authorization for Use of Military Force

        One week after the attacks of September 11, 2001 by the al Qaeda terrorist network, Congress passed the Authorization for Use of Military Force ("AUMF"). (36) The AUMF authorized 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 ... 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. (37) C. THE CITIZEN'S CONSTITUTIONAL RIGHT TO DUE PROCESS

      3. The Due Process Clause

        The Due Process Clause of the Fifth Amendment states: "No person shall ... be deprived of life, liberty, or property, without due process of law...." (38) The Clause originated in the English Magna Carta and, at its core, was "intended to secure the individual from the arbitrary exercise of the powers of Government, unrestrained by the established principles of private right and distributive justice." (39) Simply stated, the Due Process Clause "gives all Americans, whoever they are and wherever they happen to be, the right to be tried by independent and unprejudiced courts using established procedures and applying valid pre-existing laws." (40)

      4. The Mathews Balancing Test

        The Supreme Court established a new analytical framework for recognizing an individual's constitutionally guaranteed right to procedural due process in Mathews v. Eldridge. (41) In Mathews, the plaintiff's social security disability benefits were terminated by the Secretary of Health, Education, and Welfare without a pre-termination hearing. (42) The plaintiff sued the agency, alleging that the Due Process Clause required an evidentiary hearing prior to the termination of benefits. (43) The Court quoted the "truism" that "due process is flexible and calls for such procedural protections as the particular situation demands." (44) The Court then set forth three factors that must be balanced in order to determine the level of process due in any given case:

        First, the private interest that will be affected by the official action: second, the risk of an erroneous deprivation of such interest through the procedures used. and the probable value, if...

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