Hamdi v. Rumsfeld--page 417

Yaser Hamdi is an American citizen who was "residing in Afghanistan in 2001. The Government claims he took up arms with the Taliban and was captured in Afghanistan. He is being held in a South Carolina military prison as an "enemy combatant," but he has never been charged with any crime.

Hamdi's father sought a writ of habeas corpus arguing that Hamdi's "detention in the United States without charges, access to an impartial tribunal, or assistance of counsel" violates Due Process.

The Fourth Circuit agreed with the Government's position and held that Hamdi was not entitled to any type of due process or hearing.

The first issue before the Supreme Court was whether the President ("the Executive") has the authority to detain an American citizen apprehended as an enemy combatant in a foreign country.

Does the President have the inherent executive power to do this?

---Art. II, section 1: "The executive power shall be vested in a President of the United States of America."

--Art. II, section 2: " The President shall be commander in chief of the Army and Navy of the United States."

Or, alternatively, does the President have the authority to do this if authorized to do so by Congress?

What are the two acts of Congress that are relevant?

--18 USC sect 4001 provides that "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." [designed to prevent situations such as the Japanese internment camps of WW II] p. 419
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--AUMF: One week after 9/11, Congress passed a resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons" engaged in terrorism against the United States. p. 417-418

What does Justice O'Connor and the Plurality hold?

p. 420 The plurality held that "once it is sufficiently clear that the individual is...an enemy combatant,"
the President has legislative authority under the AUMF to detain Mr. Hamdi.

Justice Thomas is the 5th vote in favor of the power to detain under the President's 'war powers" under Art. II: "the President has constitutional authority to protect the national security and...this authority carries with it broad discretion....it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive." p. 433

The second issue is what, if any, procedural rights are available to Hamdi.

The Court held that Hamdi was entitled to due process--at the minimum some kind of meaningful factual hearing.

The case was remanded for a determination of exactly what process was due, but before the remand was held the Government and Hamdi reached an agreement: "In exchange for Hamdi being released from custody, he agreed to leave the country, renounce his citizenship, and never to take up arms against the United States."