ENEMY COMBATANTS

There are 3 Supreme Court decisions that heavily influenced a trio of subsequent cases:

1. Ex parte Milligan (post-Civil War), where the military arrested a civilian and tried him in a court martial, which
sentenced him to death penalty. He filed a writ of habeas corpus, alleging that as a civilian he was not under the
jurisdiction of a Court Martial. The court held that Court Martial didn’t have jurisdiction over civilians.
2. Ex parte Quirin (World War II), the Nazi Saboteurs case, where US President created military tribunals to try
Germans captured on the U.S., for violating war laws. The prisoners filed for habeas corpus and the Court
denied their petition right of Habeas Corpus (interpreting Milligan narrowly). The military tribunal sentenced the to
death and execute six of them, including Haupt who was a U.S. Citizen. Quirin held that rules protecting civilians
(U.S. citizens, aliens or foreigners) from court martial do not insulate combatants from military tribunals IF
combatants are unlawful combatants and captured within the U.S. (distinction between lawful and unlawful
combatant). Unlawful combatants are subject to trial and punishment by military tribunals. They are not entitled
to the status of prisoners of war but are offenders of the laws of war (normally concealed – spy- or without
uniform).
3. Johnson v. Eisentrager (World War II), where Military commission in China tried several German soldiers
engaged in military activity against U.S. in China, violating the laws of war. They sued on U.S. courts, claiming
their military trial, violate the U.S. Constitution and the Geneva Convention (treatment of prisoners of war).
The Court held that U.S. Courts didn’t have jurisdiction, neither statutory nor constitutional, to try enemy aliens
overseas.

The 3 subsequent cases are:

1. Rumsfeld v. Padilla, that involved an American citizen arrested when he entered the country because of
information that he was planning acts of terror. He was turned to military authorities. He filed an Habeas Corpus.
The court held that he had to file the writ on South Carolina and not in New York.
The court also held that the Authorization for Use of Military Force (AUMF) permitted to detain enemy
combatants without a charge until the end of hostilities (President may detain militarily a U.S. citizen closely
associated with an entity at war with the U.S., who took arms in a foreign combat zone and thereafter travel to
the U.S. to fulfill their attack plans. The facts were not in dispute in Padilla (he admitted all the charges).
2. Rasul v. Bush, involved 2 Australians and 12 Kuwaitis captured abroad in Afghanistan during hostilities and held
in Guantanamo Bay. The Court held that because now the laws have changed, they were not following
Eisentrager, and therefore the U.S. courts have jurisdiction over foreign nationals captures abroad in connection
with hostilities and incarcerated in Guantanamo.
3. Hamdi v. Rumsfeld, involved a U.S. Citizen captured in Afghanistan and held in the U.S., allegedly an enemy
combatant against the U.S. in the war with Al Qaeda.

HAMDI V. RUMSFELD
SUPREME COURT OF UNITED STATES | 542 U.S. 507| 2004

Facts

On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack prominent targets in
the United States. Congress passed a resolution authorizing 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".

Yaser Esam Hamdi was Born in Louisiana in 1980 and moved with his family to Saudi Arabia as a child. By 2001 he
resided in Afghanistan. At some point that year, he was seized by members of the Northern Alliance, a group opposed to
the Taliban, and was turned over to the United States. The Government initially detained and interrogated Hamdi in
Afghanistan before transferring him to Guantanamo Bay in January 2002. Upon learning that Hamdi is an American
citizen, authorities transferred him to Virginia, and then to South Carolina. The Government contends that Hamdi is an
“enemy combatant,” and that this status justifies holding him in the United States indefinitely — without formal charges or
proceedings — unless and until it makes the determination that access to counsel or further process is warranted.

Hamdi’s father contends that he enjoys the full protections of the Constitution and that his detention in the United States
without charges, access to an impartial tribunal, or assistance of counsel violated and continues to violate the Fifth and
Fourteenth Amendments to the United States Constitution.

Issue

Whether the Executive has the authority to detain citizens who qualify as “enemy combatant” without due process to
dispute that status.

Procedure

Hamdi’s father filed a petition for a writ of habeas corpus. The District Court appointed the federal public defender as
counsel for the petitioners, and ordered that counsel be given access to Hamdi.

The United States Court of Appeals for the Fourth Circuit reversed that order, holding that the District Court had failed to
extend appropriate deference to the Government’s security and intelligence interests. It held that if Hamdi is indeed an
‘enemy combatant’ captured in Afghanistan, the government’s present detention of him is a lawful one."

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. The declaration stated that Hamdi “affiliated with a Taliban military unit and received weapons
training.” It asserts that Hamdi “remained with his Taliban unit following the attacks of September 11” and that, “Hamdi’s
Taliban unit surrendered”, after which he “surrendered his assault rifle” to them. Because al Qaeda and the Taliban are
hostile forces engaged in armed conflict with the United States, individuals associated with them continue to be enemy
combatants.

The District Court found that the Mobbs Declaration fell “far short” of supporting Hamdi’s detention. It ordered the
Government to turn over numerous materials for in camera review, indicating 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.

The 4th Circuit Court reversed. They hold that it was undisputed that Hamdi was captured in a zone of active combat in
a foreign theater of conflict, so no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the
Government’s assertions was necessary or proper.

Reasoning

“Enemy combatant” is an individual who, was part of supporting forces hostile to the United States or coalition partners in
Afghanistan and who engaged in an armed conflict against the United States.

The court agreed with the Government’s position, that Congress had authorized Hamdi’s detention, through the
AUMF. They concluded that the AUMF is explicit congressional authorization for the detention of “enemy
combatants”, and that the AUMF satisfied § 4001(a)’s requirement that a detention be pursuant to an Act of Congress.

The Court concluded that detention of “enemy combatants” for the duration of a particular conflict in which they were
captured, is accepted as an incident of war to be an exercise of the “necessary and appropriate force” Congress has
authorized the President to use. In Ex parte Quirin the Court held that, "The purpose of detention is to prevent captured
individuals from returning to the field of battle and taking up arms once again." In Quirin, one of the detainees, Haupt,
alleged that he was a naturalized United States citizen. We held that citizens who associate themselves with the military
arm of the enemy government, are enemy belligerents within the meaning of the law of war.

The Government can detain individuals that are determined as enemy combatants if the war is being fought. The Court in
Quirin held that his citizenship did not change this result (Precedent).
The Court found that government can detain under the AUMF once it is sufficiently clear that the individual is an enemy
combatant, and 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”).

Hamdi has received no process. An interrogation by one’s captor, can hardly constitutes a constitutionally adequate
factfinding before a neutral decisionmaker. Plainly, the “process” Hamdi has received is not that to which he is entitled
under the Due Process Clause.

Rule

Balancing test 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 was established in Mathews v. Eldridge (1976), 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.

It’s an analysis of “the risk of an erroneous deprivation” of the private interest if the process were reduced and the
“probable value of additional or substitute procedural safeguards."

There is a Burden-shift when the Government puts forth credible evidence that the habeas petitioner meets the enemy-
combatant criteria, so the petitioner could rebut that evidence with more persuasive evidence. This is not a standard of
proof but a standard of review.

Balancing test: pay proper attention both to the matters of national security that might arise in an individual case and to
the constitutional limitations safeguarding essential liberties that remain even in times of security concerns.

Holding

No, although Congress authorized the detention of enemy combatants, due process demands that a person (citizen or
foreign) held in the United States in that classification be given a meaningful opportunity to contest the factual basis for
that detention before a neutral decisionmaker.

Dissenting Opinion

This case brings into conflict the competing demands of national security and our citizens’ constitutional right to personal
liberty, but the exigencies of war allows Congress the Constitution’s Suspension Clause, Art. I, § 9, cl. 2, to relax the
usual protections temporarily.

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.

Judgment

The judgment of the United States Court of Appeals for the Fourth Circuit is vacated, and the case is remanded for
further proceedings.

NOTES

1. In Padilla, the court held that the Authorization for Use of Military Force (AUMF) permitted to detain enemy combatants
without a charge until the end of hostilities. The President may detain militarily a U.S. citizen closely associated with an
entity at war with the U.S., who took arms in a foreign combat zone who thereafter travel to the U.S. to fulfill their attack
plans. The facts were not in dispute in Padilla (he admitted all the charges).

2. In response to these Detainee Cases, the Department of Defense created the Combat Status Review Tribunals to
hold hearing to determine whether any detainee held was properly classified as an enemy combatant (give them Due
Process). Under the Due Process Clause, do they have to be provided to only US Citizens? No, if the aliens were in U.S.
territories.
3. Osama Bin Laden declared war on the U.S., but Congress never formally declared war on Al Qaeda. Al Qaeda
bombed U.S. Embassies and the U.S. responded by firing missiles at suspected Al Qaeda targets in Afghanistan and
Sudan. The U.S. held that this was an Act of self-defense based on Article 51 of the United Nations Charter.

Were the Court concerned that the War Against Terror was never declared by Congress and it was not a war fought
against a foreign nation? Were they concerned that enemy combatant’s detention could be indefinite?

6. WAR CRIMES TRIBUNALS: President create Military Commissions (with its executive power) to prosecute selected
enemy combatants for alleged war crimes. Hamdan argued that the court martial was not constituted by the UCMJ, The
DC court agreed and used habeas to enjoin the Military Commission.

Hamdan v. Rumsfeld reversed the DC decision and held that the military commission to try Hamdan lacked the power to
proceed because its structure and procedures violated the UCJM (Uniform Code of Military Justice). The Court said that
the military could prosecute Hamdan under the UMCJ, if the tribunal had procedures akin to a court martial, or if
Congress authorized the President to use different procedures for the defendants. The conspiracy to commit crimes, is
not a violation of the law of war.

There is no allegation that Hamdan had any command responsibilities, played a leadership role, or participated in the
planning of any activity. As domestic statutes control this case, Congress can change them.

7. Congress respond to Hamdan by enacting the Military Commissions Act of 2006 (MCA). This law authorized military
commissions, allowed defendants to represent themselves, and limited judicial remedies. Boumediene v. Bush upheld
the Law. One of the primary purposes of the MCA was to overrule Hamdan. No violation of the habeas suspension
clause was made, as there was no habeas for an alien held outside U.S. territory.

In Boumediene, a section of the MCA denying federal courts jurisdiction to hear habeas corpus actions that were
pending at the time of its enactment, was an unconstitutional suspension of the writ of habeas corpus. The writ of habeas
corpus does not, and never has, run in favor of aliens abroad. Therefore, the Suspension Clause has no application, and
the court’s intervention is entirely utra vires.