In the Matter of the Detention of YASER ASAM HAMDI ET AL, Appellant, v. DONALD RUMSFELD ET AL, Respondent

SUPREME COURT OF THE UNITED STATES

March 10, 2006

PRIOR HISTORY: Appeal from 4^th Circuit Court of Appeals

August 6, 2004

DISPOSITION: Vacated and Remanded

COUNSEL: For Appellant: Frank W. Dunham, Jr.

For Respondent: Paul D. Clement

JUDGES: Maldonado, J. announced the judgment of the Court and delivered a joint opinion with Kelly, J., in which Kennedy, J., Breyer, J., O’Connor, J., Scalia, J., Ginsburg, J., and Thomas, J., all joined. Hanson, J., filed a dissenting Opinion.

FACTS OF THE CASE

On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack prominent targets in the United States, wherein approximately 3,000 people were killed. In response, Congress passed the Authorization for Use of Military Force (“the AUMF”), 115 Stat 224, 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.” Yaser Esam Hamdi, an American Citizen, was seized while armed with an AK-47 by members of the Northern Alliance after his Taliban unit surrendered on the battlefield. The government contends Hamdi is an “enemy combatant,” and is currently under United States custody.

(Justice MALDONADO)

ARGUMENT

I. CONSTITUTIONALITY

In response to the terrorist attacks against the United States on September 11, 2001, the Congress passed the Authorization for Use of Military Force, S.J.Res. 23, on September 14, 2001, 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 that occurred on September 11, 2001, or harbored such organizations or persons....” The President signed this legislation into law on September 18, 2001 (P.L. 107-40, 115 Stat. 224 (2001)).[1] Counsel for Hamdi argues that, despite such legislation, indefinite “incarceration of [United States citizens] directly violates the Fifth Amendment’s due process clause, which guarantees the accused a meaningful opportunity to contest the factual basis for detention before a neutral decision-maker.”[2] We do not agree.

Although fundamental, this court has held the due process clause of the Fifth Amendment to not be absolute in all circumstances. In Quirin, this court held that “citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war.” In Territo, it was stated that “a prisoner of war is not a convict; his imprisonment is a simple war measure … The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be … treated humanely, and in time exchanged, repatriated, or otherwise released.”[3] The government is justified in detaining Hamdi so long as such an effort prevents Hamdi from returning to and fighting for the enemy we are furring fighting against.

The due process clause, like other fundamental rights, is not absolute in all circumstances. This court has consistently upheld rulings limiting the freedom of speech, a core liberty entrusted to the people of the United States when such expression was found to compromise United States security. In Brandenburg the Court introduced the ‘imminent lawless action’ test, set forth in the Court’s majority opinion, constitutionally limiting the free speech rights of citizens that would otherwise induce or incite ‘imminent lawless action’. The court held, more specifically, that ‘constitutional guarantees of free speech do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action.’[4] Hamdi’s suspension of due process, much like the suspension of free speech protections, is in line with this court’s stance that many rights, although fundamental, are not absolute in all circumstances. By taking up arms against the United States Hamdi not only renders himself a threat to the security of the United States, but also forfeits his due process rights, much like individuals prompting ‘imminent lawless danger’ forfeit constitutionally protected free speech rights.

Although Hamdi alleges his detention is forbidden by 18 U.S.C. sec. 4001(a) “no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress,”[5] the AUMF constitutes an acceptable “Act of Congress” as is necessitated for lawful detention under 4001(a). We conclude, then, that Hamdi’s detention, as it falls under the penumbra of the constitutional stipulations set forth by the AUMF, exist as both a “necessary and appropriate force” Congress has authorized the President to use. We further uphold the constitutionality of the AUMF as it sets forth a limited category, narrow in scope, applicable only in instances such as the one at hand, where a United States citizen was found to have undisputedly taken up arms against the United States with the Taliban, an international terrorist organization known to have supported the al Qaeda terrorist network. This court has repeatedly acknowledged the importance of employing strict judicial difference regarding legislative intent. So long as this court finds, as it has, the AUMF to exist as an acceptable act of congress and satisfy the requirements set forth under 18 U.S.C. sec. 4001(a), we need not address the particular merits of the AUMF itself.

Although siding with the majority opinion, I would like to particularly emphasize that in upholding Hamdi’s detention pursuant to the AUMF and Article II of the United States Constitution, this court engenders a longstanding belief that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.[6] Further, that unless authorized by Congressional Act, as is the case herein, the Great Writ of habeas corpus necessitates the Judicial Branch’s continued oversight in maintaining the delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of military detention.[7]

Although the Constitution holds that “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,”[8] I feel obliged to urge the Legislature to remain mindful of the importance such a Writ has to the core of liberty secured by our Anglo-Saxon system of separated powers. Further, that whereas I support Hamdi’s detention for the reasons mentioned above, I encourage those enacting similar legislation to be ever so mindful of the dangerous consequences that may follow.

(Justice KELLY)

I. THE COURT LACKS THE EXPERTISE AND CAPACITY TO SECOND GUESS THE GOVERNMENT

“It is an obvious and unarguable statement that there is no government interest more important than the security of the Nation.” Haig v. Agee, 453 U.S. 289, 307 (1981) (quoting Aptheker v. Secretary of State, 387 U.S. 500, 509, (1964)). The national security, after all, is the primary purpose and responsibility of the Federal Government. Because the framers of the Constitution understood that it was impossible to predict the any number of scenarios that could threaten this nation, they choose to create a Federal Government that possessed sufficient power to handle any type of threat to national security. The Federalist No. 23, pp. 147 (J. Cook ed. 1961) (A. Hamilton) The power to protect this nation

“ought to exist without limitation… [b]ecause it is impossible to foresee or define the extent or variety of national exigencies, or 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.”

The Framers wanted the President to have the responsibility, along with the necessary powers, to protect this nation’s national security.

The Court has long recognized the constitutional authority of the President to protect this nation and that this authority carries with it broad discretion.

“If 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 except the challenge without waiting for special legislative authority…. Whether the President in fulfilling his duty is, 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)

With respect to both the Armed forces and foreign affairs the Court has recognized the President’s independent authority and the need for it to be free from outside interference. Congress also plays a large role in both foreign affairs and national security, but it needs to be recognized that interference by this court in such matters would destroy the whole purpose of placing the primary responsibility in the hands of the Executive. As Commander-in-Chief of this nation, the President has available to him many types of intelligence services; for example, the National Security Agency, whose reports should not be made available to the public on account of national security. It would be impossible for the Court to be able to make a fair and informed decision without the release of such reports. It is not the position of this Court to make decisions that overturn orders given by the Executive with information that would have to be held in secret. In Article III of the Constitution there is no such mention of the court having powers with regards to the national security of this Nation. In regards to decisions involving national security issues, Justice Jackson said, “They are the decision of the kind for which the Judiciary has neither aptitude, facilities nor responsibilities and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.” Chicago & Southern Airlines Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).

Finally, this Court should not interfere in this decision because the President was not only acting with the full authority granted him by the Constitution, but he was also exercising the powers delegated to him by Congress. In such a case the President’s power to act is at its greatest and the President is therefore afforded the greatest latitude of this Court’s interpretation. It is for this reason that the Court explained the “the detention, ordered by the President in the declared exercise his power as Commander-in-Chief of the Army in a time of war and 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). The Appellant compared the detention of Hamdi to that of the internment of Japanese citizens during World War II; however, the Court has made an important distinction between the two cases. In Ex parte Endo, 323 U.S. 283, (1944) The Court held that the internment of Japanese American citizens during WWI was unlawful, and it did so because, the reasons given had nothing to do with constitutional or congressional authority. The authority only granted the detention of those who had committed sabotage or espionage and could not be used to justify the internment of all loyal Japanese American citizens. Though it is relevant for the Court to decide whether the President acted within the scope of authority granted to him by the constitution, the Court does not have the information or expertise to rule on whether or not Hamdi is an enemy combatant. That question is better left answered by the Legislative and Judicial branches of the government, because it is these braches of the government that the framers granted war powers.

It is the responsibility of Congress to provide adequate procedural protection against such, but until it does, this Court has no right to insist upon them. It is not the place of this Court to try and balance away the Federal Government’s war powers, and for this reason the Petitioner’s habeas challenge should fail and there is no reason to remand this case.

Hamdi’s detention, as is constitutionally authorized under the AUMF and Article II of the United States Constitution, therefore, is affirmed.

Justice Hanson Dissenting

Today’s decision is a devastating blow to American democracy. The Court’s ruling today makes it legal for the President to detain any American for any period of time without legal representation and without the opportunity to have their case heard in a front of a neutral third party. While Justice Maldonado implores the legislature to use cautiously the Court’s newly given power to the Executive, the fact remains that the war against terrorism appears to be one that will last for years. Yaser Esam Hamdi, an American Citizen, will remain in detention. He will not be able to prove he is innocent. Any American will be subject to the same. As counsel Rekhi noted:

Allowing the Department of Defense to ignore the Constitutional provision of due-process sets a precedent for ignoring the Constitution at large. In his ruling, Scalia equates one’s freedom from indefinite imprisonment at the will of the Executive with the “very core of liberty secured by our Anglo-Saxon system of separated powers.”

Due Process is an instrumental check against the Executive Branch’s unbridled usurpation of tyrannical powers. " 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 secretly where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."[i]

The Constitutional founders underscored the importance of judicial proceedings with an accusation, a hearing before an impartial tribunal with proper jurisdiction, and a conviction and judgment before punitive measures can be taken.[ii] In the Federalist Papers, Alexander Hamilton declares “safety from external danger [to be] the most powerful director of national conduct. Even the ardent love of liberty will, after time, give way to its dictates… nations the most attached to liberty [will] resort for repose and security to institutions which have a tendency to destroy their civil and political rights.” . . . Without the Constitution, American citizens lack protection against their own government during times of political unrest.

The majority opinion fails to consider secret military tribunals which can assure our national security while ensuring fundamental due process rights to American citizens. The majority gives the President power that the Constitution does not provide. The majority presumes Hamdi to be guilty but has only the word of Hamdi’s accusers to support that. Today’s decision is a devastating blow to freedom and every American should be very afraid because the President may now arrest and detain indefinitely any American the President claims is a threat. And you will not be able to prove you are innocent because there will be no hearing for you to make that claim other than before the walls of the prison.

[1] Congressional Research Services, Authorization For Use Of Military Force in Response to the 9/11 Attacks (P.L. 107-40): Legislative History

[3] In re Territo, 156 F.2d 142, 145 (CA9 1946)

[5] 18 U.S.C. sec. 4001(a) [18 USCS sec 4001(a)]

[6] Youngstown Sheet & Tube, U.S., at 587, 96 L. Ed. 1153, 72. S. Ct. 863

[7] St. Cyr, 533 U.S. at 301, 150 L. Ed. 2d 347, 121 S. Ct. 2271

[8] United States Constitution, Article I, Sec. 9, Cl. 2