Sunday, November 19, 2006

An Enlightened Layperson's Belated Reflections on Hamdi v. Rumsfeld

It is, of course, way too late in the game to be worth discussing the 2004 case of Hamdi v. Rumsfeld, but I read it for the first time in the process of researching my last post and found it interesting. So here are an enlightened layperson's thoughts on the subject.

Yaser Esam Hamdi was born in the United States and therefore a citizen, but his family moved to Saudi Arabia when he was a child, and he appears to have had no further contact with the land of his birth. When the United States invaded Afghanistan, he was turned captured by the Northern Alliance and turned over to U.S. forces as a Taliban fighter. Hamdi denied belonging to Taliban and said that he went to Afghanistan as a relief worker. He was held as an enemy combatant in Guantanamo and later transferred to a military prison in South Carolina when he was discovered to be a US citizen. (See my last post for the significance of South Carolina). Since Hamdi was being held incommunicado, his father filed a petition for habeas corpus on his behalf, which was appealed all the way to the Supreme Court.

The plurality

The Supreme Court offered a highly fractured opinion. The controlling opinion was written by Sandra Day O'Connor, joined by Chief Justice Renquist and Justices Kennedy and Breyer. O'Connor complained that the government never gave a satisfactory definition of "enemy combatant." In this case, it applied to members of the hostile forces in Afghanistan, and the decision made clear that it was addressed only to this narrow definition. The Court ruled that, since Congress had passed the Authorization to Use Military Force (AUMF) authorizing the war in Afghanistan, it logically followed that it authorized detention of enemy fighters in Afghanistan because this was "a fundamental incident of waging war" and members of Taliban "are individuals Congress sought to target in passing the AUMF." In response to the objection that the "War on Terror" might last longer than Hamdi's life, the Court held that he could be held only for the duration of the war in Afghanistan. Furthermore, "[I]ndefinite detention for the purpose of interrogation is not authorized." Hamdi's citizenship was not a barrier to his being held as an enemy combatant because U.S. citizens captured in foreign combat zones have been held as POW's in the past.

Clearly, then, this opinion applies only to citizens captured in actual combat zones. Such citizens may be held as enemy combatants, but only for the duration of the war in that particular country.

The opinion then sets forth the procedure for such a citizen to challenge his detention, with care given not to overly burden the military. A citizen held as an enemy combatant may file a habeas petition challenging his designation. Seeking to balance individual rights against military necessity, the Court agreed that "[M]ilitary officers who are engaged in the serious work of waging battle would be unnecessarily and dangerously distracted by litigation half a world away." Hearsay should therefore be admissible and classified documents need not be revealed. However, the government acknowledged that it already kept records of battlefield detainees. The Court suggested that it should not be too great an imposition for someone to submit an affidavit summarizing these records. Once the government presented a sufficient case that the detainee was an enemy combatant, the burden shifted to the detainee to present evidence that he was something else, perhaps an "errant tourist, embedded journalist, or local aid worker."

Once again the emphasis on not overly burdening the military makes the point that this decision was meant to apply to people captured in actual combat zones, not to arrests in the US. The streamlined procedure was designed not to inconvenience the military.

Another point was not adequately addressed. The streamlined process, designed not to unduly burden the military, implies a common and routine procedure. Yet Hamdi addressed only the rights of citizen detainees, and citizens detained as enemy combatants are extremely rare. (Hamdi and John Walker Lindh were apparently the only ones in the entire Afghan war). Although the Supreme Court never said that non-citizen detainees were entitled to such a procedure, the emphasis on simplicity and streamlining could be taken to imply that this procedure should be available to everyone.


Justice Souter, joined by Justice Ginsburg, concurred in part and dissented in part. Justice Souter's complaint was that the procedure set forth by the plurality violated the laws of war. Under the Geneva Convention, a military tribunal was to determine a captive's status. Anyone claiming to be an innocent civilian had the right to hearing and status determination before a competent tribunal. In case of doubt, captives must accorded prisoner of war status until found not to be entitled by a competent tribunal. Souter, then, would require the government to comply with these provisions. Since his opinion was a minority, he agreed to go along with the plurality opinion as the one closest to his own.


Justice Scalia, joined by Justice Stevens, famously dissented, saying that the government should either charge Hamdi with treason or release him. He denounced the procedure set forth by the plurality, both as an outrage against citizen's right to due process and an unwarranted act of judicial lawmaking, establishing a procedure that only Congress had the right to establish. However, Scalia's opinion is rendered largely meaningless because it is limited to citizen detainees held within the territorial jurisdiction of the federal courts. The President could evade it simply by holding detainees beyond the courts' reach.

Scalia's dissent is often hailed as the most favorable to individual rights of any of the opinions, but it is actually far more favorable to the government that the plurality or concurrence. Scalia expressly limits his dissent to citizens. He has constantly maintained that non-citizens detained as enemy combatants have no right to challenge their detention, no matter what the circumstances. He could call for the full protracted and elaborate protections of a criminal trial for treason only because he was addressing only the very few detainees who were citizens. The military as a whole would be little inconvienced by having a handful of soldiers return to the U.S. to testify at a treason trial.

Justice Thomas also dissented, holding that even a citizen had no right to challenge his detention. Waging war is an executive function that the courts have no business second guessing. Courts lack the specialized knowledge to judge such things that only the executive can understand. Father knows best and the dog ate my homework.

My own opinion

My own lay opinion is of little value and doubtless biased, but I will give it nonetheless. I am most inclined to agree with Justice Souter. Since Congress authorized the Afghan war, it is fair to assume they also authorized the detention of enemy soldiers captured in the war zone for the duration of the (Afghan) combat. This would apply to citizens as well as non-citizens. However, they should be held according to the laws of war. Justice Scalia does have a point that the judges are overstepping their limits in setting up a review procedure, especially if one already exists under the laws of war. The Admninistration should comply with the already existing procedure for allowing challenges, under the Geneva Convention and military law. (I will also add that I believe the Taliban were, for all intents and purposes, the Afghan national army, resisting a foreign invasion and should have been treated as lawful combatants. That designation does not, of course, apply to Al-Qaeda).


Blogger liquified viscera said...

Speaking of Liquified Viscera, I'm keeping a close eye on Wet Nurse.

Wow! Are you not clever! I guess "working in a law office but not being a lawyer" will do that for a subpar intellect.

Keep being a dull-witted groupie of Greenwald! It looks good on your Blogistan Resume.

10:04 AM  

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