Detainee Cases
Argued 28 April 2004, decided 28 June 2004. Hamdi etal. v. Rumsfeld (2004), 124 S.Ct. 2633 (2004), decided by vote of 6 to 3, O'Connor for plurality, Souter and Ginsburg concurring in part and dissenting in part, Scalia, Stevens, and Thomas in dissent; Rasul etal. v. Bush (2004), decided by vote of 6 to 3, Stevens for the Court, Kennedy concurring, Scalia, Rehnquist, and Thomas in dissent; Rumsfeld v. Padilla (2004), decided by vote of 5 to 4, Rehnquist for the Court, Kennedy and O'Connor concurring, Stevens, Souter, Ginsburg, and Breyer in dissent.
In three separate cases brought by individuals held in custody by the U.S. government, the Supreme Court provided the most definitive statement yet of what powers are afforded to the president to hold so‐called enemy combatants. On 11 September 2001, the al Qaeda terrorist network hijacked four commercial airliners with the goal of steering them into prominent American targets, including the World Trade Center towers in New York City and the Pentagon in Washington, D.C. Nearly three thousand people were killed in those attacks. One week later, Congress passed a resolution entitled “Authorization for Use of Military Force” (AUMF). The AUMF vested the president with the authority 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.” In one of the more controversial applications of this policy, U.S. government officials indefinitely detained many individuals captured during military operations waged in Afghanistan and Iraq. Numerous others were seized within the United States itself as part of the Bush administration's ongoing “war on terrorism.”
The government refused to label many of these detainees as either “Prisoners of War” (which would entitle them to various protections granted under the Geneva Convention, including the right to be returned to their home countries at the conclusion of hostilities) or as ordinary criminal defendants (which would entitle them to the full panoply of procedural protections listed in the Bill of Rights). Instead, the government identified the detainees as “enemy combatants,” a classification accorded to those alleged to be “part of or supporting forces hostile to the United States or coalition partners.” Two U.S. citizens (Yaser Esam Hamdi and Jose Padilla), two Australians, and twelve Kuwaitis filed three separate lawsuits against the U.S. government challenging their detentions as violations of due process. Specifically, they complained that as “enemy combatants” they had never been formally charged with wrongdoing, permitted to consult counsel, or been provided with access to courts and other tribunals.
The most significant of the three cases, Hamdi v. Rumsfeld, considered whether the U.S. military could indefinitely detain an American citizen who had been arrested while allegedly fighting for the Taliban in Afghanistan in 2001. Because Hamdi was captured in an enemy combat zone, the military offered no factual inquiry or evidentiary hearing allowing him to rebut the government's assertions about his activities. In Hamdi, executive authority was upheld in one respect: A majority of Supreme Court justices conceded that Congress, through passage of the AUMF, had indeed authorized the president as commander‐in‐chief to detain U.S. citizens as “enemy combatants.” Such action taken by the federal government was not unprecedented: the justices specifically referenced the Nazi saboteurs case, Ex Parte Quirin (1942), where the purpose of such detentions had been to prevent the captured individuals (including at least one U.S. citizen) from returning to the field of battle and taking up arms once again. Any such detention of enemy combatants could be considered an “important incident of war.”
Still, six of the nine justices voted to vacate the lower court judgment that Hamdi could be held without a more “searching review” of the facts underlying his detention. Writing for a plurality of four justices, Sandra Day O'Connor argued that neither the AUMF nor the Constitution authorizes indefinite or perpetual detention for purposes of interrogation without some form of judicial review. According to O'Connor: “[A] state of war is not a blank check when it comes to the rights of the Nation's citizens.” Hamdi was thus entitled to receive notice of the factual basis for his classification, as well as a fair opportunity to rebut the government's factual assertions before a neutral decision maker.
The other two detainee cases raised more technical legal issues concerning enemy combatant lawsuits. In Rasul, fourteen foreign nationals held at the United States military base at Guantanamo Bay, Cuba, similarly challenged their detentions as unconstitutional. The U.S. government had argued that U.S. courts lacked jurisdiction to consider such challenges because the foreign nationals had been captured abroad and were being maintained in military custody outside the United States. In his opinion for the Court, Justice John Paul Stevens ruled that because the United States exercises complete jurisdiction and control over the Guantanamo Base, aliens held at the base were, just like American citizens, entitled to invoke federal court jurisdiction over their claims. In Padilla, an American citizen held as an “enemy combatant” at a navy brig in Charleston, South Carolina, challenged his detention by filing suit in New York City, where he had originally been brought as a material witness concerning the 11 September attacks. Declining to reach the merits of Padilla's claim, the Court held that Padilla would have to resubmit his petition for relief in the federal district court of South Carolina, where he was being detained.
Only the first post–11 September terrorism cases to reach the Supreme Court, the first three detainee cases left many questions unanswered. In particular, no five justices could agree as to precisely what sort of legal process Hamdi and the other enemy combatants should receive. Unable to secure a majority in Hamdi for her suggestions that the presumption of innocence and normal hearsay rules be suspended, Justice O'Connor's opinion necessarily left it up to the district court to fashion “a fact‐finding process that is both prudent and incremental.” Even more significantly, while revelations about the harsh treatment and abuse of some prisoners at the Abu Ghraib prison in Iraq had already reached the Court at the time the detainee cases were decided, challenges to the legality of such measures would await judgment at a future time.
— David A. Yalof
