HAMDI- COMBATANT CASE

Brief Fact Summary. American citizen captured in Afghanistan was held as an enemy combatant.

Synopsis of Rule of Law. Because it is undisputed that Hamdi was capture in a zone of active combat in a
foreign theater of conflict, the submitted declaration is a sufficient basis upon which to conclude that the
Commander in Chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the
United States Constitution.

Facts. Petitioner Hamdi was captured in Afghanistan shortly after 9/11. Hamdi is an American citizen, and was
classified as an enemy combatant. After a period of petitions, motions, and counter-motions, Hamdi filed for a
writ of habeas corpus. The Special Advisor to the Under Secretary of Defense for Policy, Michael Mobbs,
issued a response, outlining the Governments position. The district court found the Mobbs declaration
insufficient in supporting the Governments case.

Issue. [W]hether a declaration by a Special Advisor to the Under Secretary of Defense for Policy setting forth
what the government contends were the circumstances of Hamdis capture was sufficient by itself to justify his
detention.
Held. Yes. First, the Court of Appeals for the Fourth Circuit acknowledged that the Constitution creates war
powers that invest the President, as Commander in Chief, with the power to wage war which Congress has
declared, and to carry into effect all laws passed by Congress for the conducts of war The Court also noted
that since Article III of the Constitution does not have any sort of war powers analog, the Supreme Court has
shown great deference to the political branches in war matters. However, the Court noted that this deference
is not unlimited, and that habeas corpus is still valid. The Court found that is must approach this case by
balancing the tension of individual rights and national security interests.
The Court rejected Hamdis assertion that 18 U.S.C. 4001 prohibited his incarceration, in light of the broad
authorization Congress granted the President post 9/11.
The Court rejected Hamdis assertion of the Geneva Convention because it is not self-executing and does not
create private rights of action in the domestic courts of the signatory countries.
The Court rejected Hamdis petition as a matter of law because the order required substantial factual
information from the government. The Court found that impossible because of security concerns, and the
impracticality of demanding factual analysis during battle.
As to whether Hamdis petition needed to be remanded, the Court identified two issues First, Hamdi argued
while his seizure was valid, his continued detention in this country without the full panoply of constitutional
protections is unlawful. The Court held that the data in the Mobbs affidavit was sufficient under Article II.
Second, whether, because he is an American citizen currently detained on American soil by the military,
Hamdi can be heard in an Article III court to rebut the factual assertions that were submitted to support the
enemy combatant designation. The Court held that no evidentiary hearing or factual inquiry on [its] part is
necessary or proper, because it is undisputed that Hamdi was capture in a zone of active combat. Hamdi
finally contended that even if his detention was at one time lawful, it is no longer so because the relevant
hostilities have reached an end. Because troops were still on the ground, the Court did not see reason to
address the concern.
Discussion. Cases such as Hamdis raise serious questions which the courts will continue to treat as such.
The nation has fought since its founding for the liberty without which security rings hollow and for security
without which liberty cannot thrive. The judiciary was meant to respect the delicacy of the balance.

Hamdi v. Rumsfeld
SCOTUS- 2004
Facts
Congress passed a resolution authorizing the President to "use all necessary and appropriate force" against
terrorists or those who harbored terrorists.
Government detained D for allegedly fighting with the Taliban during the Afghanistan war.
D was born an American citizen, moved to Saudi Arabia as a child, and eventually to Afghanistan.
D was transported to Guantanamo Bay, then, upon learning of his American citizenship, transferred him to the
U.S.
Gov't claims that he is an enemy combatant, and therefore the gov't can hold him indefinitely.
Procedural History
Fourth Circuit held that Hamdi's detention was legally authorized and that he was entitled to no further
opportunity to challenge his enemy-combatant label.
SCOTUS vacates and remands.
Issues
Does the executive have the authority to detain citizens who qualify as "enemy combatants"?
What process is constitutionally due to a citizen who disputes his enemy-combatant status?
Holding/Rule
Although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process
demands that a citizen held in the U.S. as an enemy combatant be given a meaningful opportunity to contest the
factual basis for his detention.
Reasoning
Court only addresses the constitutionality of the detention of an enemy combatant who falls under the narrow
definition provided by the gov't: "part of or supporting forces hostile to the United States or coalition partners" in
Afghanistan who "engaged in an armed conflict against the United States." Full definition of enemy combatant
not addressed/understood by Court.
Gov't argues that no congressional authorization is required and that detention powers fall under Article II.
o However, Court agrees with gov't's alternative position that Congress authorized D's detention.
o Section 4001(a) of 18 U.S.C. says that no one can be detained except by act of Congress.
Gov't argues that this does not apply to military prisons.
Also argues, alternatively, that D is detained pursuant to the Authorization for Use of Military
Force. Court agrees with this.
o There is no doubt that Congress intended those who fought against the U.S. in Afghanistan to be
detained under this act under the "necessary and appropriate force."
Purpose is to stop combatant from going back into battle.
Doesn't matter that AUMF doesn't use the word "detain" because this is incident to waging
war.
o Indefinite detention for the purpose of interrogation is not authorized, but detention for the duration of
the relevant conflict is allowed
o This is not overruling Milligan, because Milligan was not a prisoner of war and was arrested at his
home.
Part III: Addresses due process
o It is undisputed that D is correctly before the Court under Article III (habeas)
Gov't alleges, however, that since D's seizure took place in a combat zone, habeas can be
denied as a matter of law.
However, D's seizure is not "undisputed," because the circumstances were not conceded in
fact nor could they be in law, because Hamdi had not been permitted to speak for himself or
through counsel. Also, the facts are insufficient to support his detention.
D only said he resided in Afghanistan, not that he was part of the fighting against the U.S.
o Gov't also alleges that further factual exploration is inappropriate because of the extraordinary
constitutional interests at stake, namely separation of powers and the ability for the executive branch to
make decisions in military conflicts.
Gov't says court should review under a very deferential "some evidence" standard.
D argues that the Court has recognized that an individual challenging his detention may not be
held at the will of the Executive without recourse.
o In order to balance such competing interests, the Court generally uses Matthews, which dictates that the
process due in any given instance is determined by weighing the private interest against the gov't's
interests and burdens.
o Matthews balance: risk of an erroneous deprivation of private interests in process were reduced and the
probably value of additional or substitute safeguards.
Matthews has interest in being free from detention by his own government.
This is not offset by circumstances of war or the accusations, because the risk of
erroneous detention is high and must be considered since it could be used abusively.
However, there is also the gov't interest in ensuring that enemy combatants do not return to
combat. It is also impractical to expect that military officers engage in litigation to prove
enemy combatant status.
o Held that a citizen detainee seeking to challenge enemy combatant status must receive notice o the
factual basis for his classification and a fair opportunity to rebut the gov't's factual assertions before a
neutral decision maker.
However, the proceedings may be tailored to alleviate burden on Executive.
For example, hearsay could be allowed and there could be a (rebuttable) presumption in favor
of the government.
Court rejects assertion that separation of powers mandates a heavily circumscribed role for the courts in such
circumstances. Gov't's approach would condense power into a single branch, because the courts would have to
forego examination of the individual case and focus only on the legality of the broader detention scheme.
o State of war is not a blank check when it comes to the right of citizens.
o When individual liberties are at stake, the Constitution plays a role,
o Absent suspension of the writ of habeas, a citizen detained as an enemy combatant is entitled to this
process.
Dissent
Souter/O'Connor (concurring in judgment)
o The gov't has failed to show that the Force Resolution authorizes the detention complained of here even
on the facts the government claims. If the gov't raises nothing further, the Non-Detention Act entitles D
to be released.
o Section 4001(a) prohibition must be read broadly to impose a burden of justification on the government
for several reasons:
First, Congress enacted 4001 out of fear that the Detention Act of 1950 could authorize
repetition of the Japanese-American internments during WWII. This means that Congress
wanted clear authorization before a citizen could be detained.
Second, manifest authority should be read into 4001(a) because the executive branch might
infringe on liberty in an attempt to fill its role in ensuring security, as liberty and security
always need to be balanced in government. Therefore, we should not rely on the executive
branch to ensure liberty, and a reasonable balance is more likely to be reached by allocating
this power to a different branch. There should thus be a clearly expressed congressional
resolution of citizen detention
o Also notes that gov't's argument regarding Article II is weak (looks to Jackson's opinion in Youngstown
to say that where the President acts contrary to congressional will, presidential authority is at its lowest
ebb.
o He shouldn't have to make a judgment on what process D is required because of his opinion, but he
joins with the Court in ordering remand based on the terms closest to those he would impose. D should
have the benefit of the opportunity to refute the factual claims on remand.
Scalia/Stevens (dissenting)
o Decision below should be reversed because a citizen waging war against his own country should be
tried for treason or some other crime in federal court.
o Congress can relax these protections where the exigencies of war prevent that, but it must do so under
the Constitution's Suspension Clause: Article 1 Sect 9 Clause 2. It did not do so here.
o If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the
Constitution requires, rather than by silent erosion through an opinion of this Court.
Thomas (dissenting)
o There is no reason to remand the case and the habeas claim should fail because the executive branch
has acted through the President's constitutional powers to declare that D is an enemy combatant and
should be detained.
o The Federal gov't's power should not be balanced by the Court, and the plurality fails to address the
gov't's compelling interests.

HAMDAN CASE- 9/11 Conspiracy Case
Brief Fact Summary. Hamdan was charged with conspiracy to commit offences triable by a military
commission and was granted Habeas Corpus to dispute this charge.

Synopsis of Rule of Law. Prisoners of war may not be tried in military commissions that do not afford the
rights prescribed in the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions


Facts. It is alleged that between the years of 1996 and 2001 Hamdan was engaged in actions in preparation of
the September 11, 2001 attacks against the United States. Militia forces in Afghanistan that were fighting the
Taliban captured Hamdan and turned him over to the U.S. Military in 2002. He was transferred to Guantanamo
Bay. A United States occupied Military base. After a year of being detained without any charges being brought
against him, President Bush declared that he had committed acts triable by a military commission. He was
charged with one count of conspiracy to commit offenses triable by the commission. This commission is
created by military necessity, not by statute or constitutional power. This commission has a presiding officer
and at least three other members. The accused is afforded military counsel, and a copy of the charges against
him. This hearing may be conducted outside the presence of the accused for the accused does not have a right
to see all evidence or hear all witness statement against him for purposes of national security. After being tried
and convicted of conspiracy, Hamdan apply for a writ of Habeas Corpus stating he deserved all the
constitutional rights afforded to him at trial, the writ was granted.

Issue. Whether Hamdan committed a crime triable by military commissions and whether that commission is
constitutional.
Held. No. The President at a time of war has the power to try and punish crimes against the laws of nations.
This is the constitutional provision used to show that military commission tribunals are legal. However, this
court feels that only certain circumstances allow for offense to be triable in a military commission. Those
offenses are; 1 in place of civilian courts when marital law has been declared, 2 temporary military government
in occupied territory or in lands where there is no government to try cases, and 3 when the crime is an incident
to the conduct of war which violate the laws of war. The court states that only the 3rd type applies, however the
charge of conspiracy is not an incident to the conduct of war. Incidents of war are accusations of actual
conduct, not the attempt or planning of such conduct. Inchoate criminal charges belong in a federal court or
court martial proceeding. Secondly this commission violates not only constitutional rights afforded an individual,
but also rules established by the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. A
military commission tribunal must have rules and regulations that do not fall short of at least a military court
marshal proceeding. The lack of presence and ability to see the evidence and witness before you is not
constitutional. Therefore Hamdan should not be tried in front of this commission. This court reversed the
commissions charges of conspiracy.
Concurrence. The President does not have a blank check to try prisoners of war as he pleases. While there is
a large separation of powers issue here, Congress has specifically legislate the UCMJ to prescribe the rules for
such commissions to avoid these violations and we will not disagree with it.

CLASS NOTES ON HAMDI
They go with AUMF, not that there is an inherent executive power
No bail, hearsay is admissible, no presumption of innocence
Hamdi has been denied due process
OConnor says your get notice of the basis of the detention as an enemy combatant,
opportunity to rebut before neutral decision maker
Scalia says criminal trial is due (all the protections afforded to a crim def)
Souter, Ginsburg-they just remand, issue is not reach
Thomas says you get a good faith interrogation (determination) by the executive that you're an
enemy combatant

Hamdan v. Rumsfeld
Procedural History:
Appeal from circuit court holding that a military commission violated a detainee's rights under the Geneva
Convention. A u.s. military commission began proceedings against Hamdan (P), who was captured in Afghanistan.
Hamdan (P) challenged the authority of the commission.

Overview:
-Salim Ahmed Hamdan (P) was captured by Mghani forces and imprisoned by the U.S. military in Guantanamo Bay.
He filed a petition for a writ of habeas corpus in federal district court to challenge his detention. Before the
district court ruled on the petition, a U.S. military commission began proceedings against Hamdan (P), which
designated him an enemy combatant. Hamdan (P) challenged the authority of the commission, arguing that the
commission trial would violate his rights under Article 102 of the Geneva Convention, which provides that a
"prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according
to the same procedure as in the case of members of the armed forces of the Detaining Power."
-The district court granted Hamdan's (P) habeas petition, ruling that a hearing to determine whether he was a
prisoner of war under the Geneva Convention must have taken place before he could be tried by a military
commission.
-The D.C. Circuit Court of Appeals reversed the decision, finding that the Geneva Convention could not be
enforced in federal court and that the establishment of military tribunals had been authorized by Congress and
was therefore not unconstitutional.

Issue:
(1) Was the military commission established to try those deemed "enemy combatants" for alleged war crimes in the
War on Terror authorized by the Congress or the inherent powers of the President? (2) May the rights protected by
the Geneva Convention be enforced in federal court through habeas corpus petitions?'

Rule:
1. the military commission established to try those deemed enemy combatants for alleged war crimes in the
GWOT was not authorized by congress or the inherent powers of the president
2. the rights protected by the Geneva convention may be enforced in federal court through habeas corpus
petitions.

Analysis:
Many U.S. and international human rights organizations have determined that violations might occur through the
non-application of the Geneva Convention to detainees in the U.S. war on terrorism.

Outcome:
(1) No. The military commission established to try those deemed "enemy combatants" for alleged war crimes in the
War on Terror was not authorized by the Congress or the inherent powers of the President. Neither an act of
Congress nor the inherent powers of the Executive Branch laid out in the Constitution expressly authorized the sort
of military commission at issue in this case. Absent that express authorization, the commission had to comply with
the ordinary laws of the United States (D) and the laws of war.
(2) Yes. The rights protected by the Geneva Convention may be enforced in federal court through habeas corpus
petitions. The Geneva Convention, as a part of the ordinary laws of war, could be enforced by the U.S. Supreme
Court, along with the statutory Uniform Code of Military Justice (UCMJ), since the military commission was not
authorized. Hamdan's (P) exclusion from certain parts of his trial deemed classified by the military commission
violated both of these, and the trial was therefore illegal. Article 3, or common Article 3" as it is sometimes
known, does apply to Hamdan (P), despite a holding to the contrary by the court of appeals, and arguments to the
contrary by the government. Common Article 3 provides minimal protection to individuals associated with neither
a signatory nor a non-signatory "Power" who are involved in a conflict in the territory of a signatory. Common
Article 3 is applicable here and requires that Hamdan (P) be tried by a "regularly constituted court affording all the
judicial guarantees which are recognized as indispensable by civilized peoples."

CLASS NOTES Oct 3
rd

Lincoln suspension of the writ of habeas corpus was unauthorized, only congress
Ex parte Milligan
o 1864 Milligan detain for participation in rebellion
Article of war
o Congress power to regulate military
International Law Categories
o Treaty law- conventional
o Customary international law (unwritten/common law)
Jus ad bellum- going to work/resort to war (when is it permissible to resort to war) [UN Charter]
Self defense
Authorized by UN
Aggressive war is illegal
Jus in bello- rules governing the conduct of war, once you're in a war [Geneva Conventions, Hague Law]
International humanitarian law
Hague
o Permissible means of waging war
Not permissible to use horrible chemical weapons to cause max bodily harm
Protect civilian population from harm
Geneva
o Protection of prisoners and civilians especially
o Conventions:
4 kinds
First two- sick and wounded at 1. land and 2. sea
Third- POW
Fourth- Civilians
Authorized military commission to try case about the laws of war Art 1 Court
o Pursuant to congress legislative power
o Lawful and unlawful combatants are subject to capture
o Ordinary POW can be detained but not subject to punishment
o Unlawful combatant = not wearing uniform, not fighting openly
o US citizens war criminal doesnt get a right to trial against the laws of war
Because our own military doesnt get a trial by jury