HAMDI V RUMSFELD

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06844136
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 26
• Document Creation Date: March 9, 2023
• Document Release Date: September 28, 2020
• Case Number: F-2016-02028

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4th Circuit Court
U.S. 4th Circuit Court of Appeals
HAMDI v RUMSFELD
PUBL I SHED
No. 02-7338
YASER ESAM HAMDI; ESAM FOUAD HAMDI, as next friend of Yaser Esam
Hamdi,
Petitioners - Appellees,
versus
DONALD RUMSFELD; W. R. PAULETTE, Commander,
(b)(3)
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Respondents - Appellants.
CENTER FOR CONSTITUTIONAL RIGHTS; RICHARD L. ABEL, Connell
Professor of Law, University of California at Los Angeles; WILLIAM
J. ACEVES, Professor of Law, California Western School of Law;
BRUCE A. ACKERMAN, Sterling Professor of Law & Political Science,
Yale University; LEE A. ALBERT, Professor of Law, University at
Buffalo Law School, The State University of New York; BARBARA BADER
ALDAVE, Loran L. Stewart Professor of Corporate Law, University of
Oregon School of Law; ALICIA ALVAREZ, Clinical Associate Professor
of Law, DePaul University School of Law; DIANE MARIE AMANN,
Professor of Law, University of California, Davis, School of Law;
MICHELLE J. ANDERSON, Associate Professor of Law, Villanova
University School of Law; FRAN ANSLEY, Professor of Law, University
of Tennessee College of Law; ELVIA R. ARRIOLA, Associate Professor
of Law, Northern Illinois University College of Law; FRANK ASKIN,
Professor of Law and Robert Knowlton Scholar, Rutgers School of Law
at Newark; MILNER S. BALL, Caldwell Professor of Constitutional
Law, University of Georgia School of Law; JON BAUER, Clinical
Professor of Law and Director, Asylum & Human Rights Clinic
University of Connecticut School of Law; PAUL SCHIFF BERMAN,
Associate Professor, University of Connecticut School of Law;
CYNTHIA BOWMAN, Professor of Law, Northwestern University School of
Law; MARK S. BRODIN, Professor of Law, Boston College Law School;
BARTRAM S. BROWN, Professor of Law, Chicago-Kent College of Law,
Illinois Institute of Technology; SUE BRYANT, Director of Clinical
Education and Associate Professor of Law, CUNY School of Law;
BURTON CAINE, Professor of Law, Temple University School of Law;
EMILY CALHOUN, Professor of Law, University of Colorado School of
Law; ANUPAM CHANDER, Acting Professor of Law, University of
California, Davis, School of Law; ERWIN CHEMERINSKY, Sydney M.
Irmas Professor of Public Interest Law, Legal Ethics and Political
Science, University of Southern California Law School; PAUL G.
CHEVIGNY, Joel S. and Anne B. Ehrenkranz Professor of Law, New York
University Law School; PAUL CHILL, Clinical Professor of Law,
University of Connecticut School of Law; GABRIEL J. CHIN, Rufus
King Professor of Law, University of Cincinnati College of Law;
CAROL CHOMSKY, Associate Professor of Law, University of Minnesota
Law School; MARGARET CHON, Associate Professor of Law, Seattle
University School of Law; MARJORIE COHN, Associate Professor of
Law, Thomas Jefferson School of Law, San Diego; ROBIN MORRIS
COLLIN, Professor of Law,University of Oregon School of Law; DENNIS
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E. CURTIS, Clinical Professor of Law, Yale Law School; ERIN DALY,
Associate Professor of Law, Widener University; MICHAEL H. DAVIS,
Professor of Law, Cleveland State University; MICHAEL DEUTSCH,
Adjunct Professor of Law, Northwestern University School of Law;
LAURA DICKINSON, Associate Professor, University of Connecticut
School of Law; ROBERT DINERSTEIN, Associate Dean and Professor of
Law, American University, Washington College of Law; JANE DOLKART,
Associate Professor of Law, Dedman School of Law, Southern
Methodist University; SHARON DOLOVICH, Acting Professor of Law,
University of California at Los Angeles; DOUGLAS L. DONOHO,
Professor of Law, Nova Southeastern University, Shepard Broad Law
Center; DOLORES DONOVAN, Professor of Law, University of San
Francisco School of Law; MARY L. DUDZIAK, Judge Edward J. and Ruey
L. Guirado Professor of Law and History, University of Southern
California Law School; Visiting Research Scholar, Woodrow Wilson
School of Public and International Affairs, Princeton University;
PAMELA EDWARDS, Assistant Professor of Law, CUNY School of Law;
NANCY EHRENREICH, Associate Professor of Law, University of Denver
College of Law; ROSA EHRENREICH BROOKS, Associate Professor of Law,
University of Virginia School of Law; J. SOFFIYAH ELIJAH, Clinical
Instructor, Criminal Justice Institute, Harvard Law School; SUSAN
J. FEATHERS, Esq., Director, Public Service Program, University of
Pennsylvania Law School; MARVIN FEIN, Associate Professor,
University of Pittsburgh School of Law; TODD D. FERNOW, Professor
of Law, Director, Criminal Clinic, University of Connecticut School
of Law; SALLY FRANK, Professor of Law, Drake University School of
Law; KATHERINE FRANKE, Professor of Law, Columbia University; ERIC
M. FREEDMAN, Professor of Law, Hofstra University School of Law;
NIELS W. FRENZEN, Clinical Assistant Professor of Law, University
of Southern California; CRAIG B. FUTTERMAN, Assistant Clinical
Professor of Law, University of Chicago Law School; KRISTIN BOOTH
GLEN, Dean and Professor of Law, CUNY School of Law; BRIAN GLICK,
Associate Clinical Professor of Law, Fordham Law School; HOWARD A.
GLICKSTEIN, Dean and Professor of Law, Touro Law School; PHYLLIS
GOLDFARB, Professor of Law, Boston College Law School; BOB GOLTEN,
Director, International Human Rights Advocacy Center, University of
Denver; CARLOS E. GONZALEZ, Associate Professor of Law, Rutgers
School of Law - Newark; Visiting Associate Professor of Law, Santa
Clara University School of Law; KENNETH W. GRAHAM, JR., Professor
of Law, University of California at Los Angeles; ARIELA GROSS,
Professor of Law & History, The Law School, University of Southern
California; LOUISE HALPER, Professor of Law, Washington & Lee
University School of Law; JOEL F. HANDLER, Richard C. Maxwell
Professor of Law and Professor of Policy Studies, School of Public
Policy and Social Research, University of California at Los
Angeles; SIDNEY L. HARRING, Professor of Law, CUNY Law School;
VIRGINIA HENCH, Associate Professor of Criminal Law & Procedure &
Civil Rights, University of Hawaii - Manoa; KATHY HESSLER,
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Professor, Case Western Reserve University School of Law; JUDITH L.
HOLMES, Assistant Professor of Legal Studies, University of
Massachusetts - Amherst; WYTHE W. HOLT, JR., University Research
Professor of Law, University of Alabama School of Law; JOAN
HOWARTH, Professor of Law, University of Nevada, Las Vegas; MARSHA
HUIE, Professor of Law, The University of Tulsa College of Law;
ERIC S. JANUS, Professor of Law, William Mitchell College of Law;
PAULA C. JOHNSON, Associate Professor of Law, Syracuse University
College of Law; JOSE R. JUAREZ, JR., Professor of Law, St. Mary's
University School of Law; DAVID KAIRYS, James E. Beasley Professor
of Law, Beasley School of Law, Temple University; YALE KAMISAR,
Clarence Darrow Distinguished University Professor of Law,
University of Michigan; JERRY KANG, Professor of Law, University of
California at Los Angeles; LEWIS R. KATZ, John C. Hutchins
Professor of Law, Case Western Reserve University Law School;
EILEEN KAUFMAN, Professor of Law, Touro Law School; MICHAEL J.
KELLY, Assistant Professor, Creighton University School of Law;
RANETA LAWSON MACK, Professor of Law, Creighton University School
of Law; DAVID P. LEONARD, Professor of Law and William M. Rains
Fellow, Loyola Law School, Los Angeles; JOHN LEUBSDORF, Professor
of Law, Rutgers Law School-Newark; MARTIN L. LEVY, Professor,
Thurgood Marshall School of Law, Texas Southern University; JULES
LOBEL, Professor of Law, University of Pittsburgh Law School; DAVID
LUBAN, Frederick Haas Professor of Law and Philosophy, Georgetown
University Law Center; BETH LYON, Assistant Professor of Law,
Villanova University School of Law; HOLLY MAGUIGAN, Professor of
Clinical Law, New York University School of Law; SAMUEL A.
MARCOSSON, Associate Professor, Louis D. Brandeis School of Law,
University of Louisville; GARY M. MAVEAL, Associate Professor of
Law, University of Detroit Mercy School of Law; ROBERT F. MEAGHER,
Emeritus Professor, Fletcher School of Law and Diplomacy, Tufts
University; CARLIN MEYER, Professor of Law, New York Law School;
JONATHAN M. MILLER, Professor of Law, Southwestern University
School of Law; MARGARET E. MONTOYA, Professor of Law, University of
New Mexico School of Law; BEVERLY MORAN, Professor of Law,
Professor of Sociology, Vanderbilt University School of Law; DAVID
A. MORAN, Assistant Professor of Law, Wayne State University Law
School; MARY-BETH MOYLAN, Instructor of Law, University of the
Pacific, McGeorge School of Law; MILLARD A. MURPHY, Esq., Clinical
Instructor, Prison Law Clinic, University of California, Davis,
School of Law; KENNETH B. NUNN, Professor of Law, Fredric G. Levin
College of Law, University of Florida; JAMES P. OGILVY, Associate
Professor of Law, Columbus School of Law, The Catholic University
of America; NANCY K. OTA, Professor of Law, Albany Law School; MARC
R. POIRIER, Professor of Law, Seton Hall Law School; JAMES POPE,
Professor of Law and Sidney Reitman Scholar, Rutgers University
School of Law; DEBORAH W. POST, Professor of Law, Touro Law School;
WILLIAM QUIGLEY, Professor of Law and Director of the Loyola Law
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Clinic & the Gillis Long Poverty Law Center, Loyola Law School;
MARGARET JANE RADIN, Wm. Benjamin Scott and Luna M. Scott Professor
of Law, Stanford Law School; MARTHA RAYNER, Associate Clinical
Professor of Law, Fordham University School of Law; JUDITH RESNICK,
Arthur Liman Professor of Law, Yale Law School; PAULA R. RHODES,
Associate Professor of Law, Director, LLM in American and
Comparative Law Program, University of Denver College of Law; HENRY
J. RICHARDSON, III, Peter J. Liacouras Professor of Law, Temple Law
School; ANNELISE RILES, Professor of Law and Professor of
Anthropology, Cornell University; TONI ROBINSON, Professor of Law,
Quinnipiac School of Law; FLORENCE WAGMAN ROISMAN, Professor of Law
and Paul Beam Fellow, Indiana University School of Law-
Indianapolis; KERMIT ROOSEVELT, Assistant Professor, University of
Pennsylvania Law School; TANINA ROSTAIN, Associate Professor, New
York Law School; JED RUBENFELD, Robert R. Slaughter Professor of
Law, Yale University; DAVID RUDOVSKY, Senior Fellow, University of
Pennsylvania Law School; LEILA NADYA SADAT, Professor of Law,
Washington University in St. Louis; NATSU TAYLOR SAITO, Professor
of Law, Georgia State University College of Law; ROBERT F. SEIBEL,
Professor of Law, CUNY Law School; FRANKLIN SIEGEL, City University
of New York School of Law; ROBERT A. SEDLER, Distinguished
Professor of Law and Gibbs Chair in Civil Rights and Civil
Liberties, Wayne State University; MARCI SEVILLE, Associate
Professor of Law and Director, Women's Employment Rights Clinic,
Golden Gate University School of Law; MARJORIE SILVER, Professor,
Touro Law Center; EILEEN
SILVERSTEIN, Zephaniah Swift Professor of Law, University of
Connecticut; DAVID SLOSS, Assistant Professor of Law, Saint Louis
University School of Law; RONALD C. SLYE, Associate Professor,
Seattle University School of Law; LLOYD B. SNYDER, Professor of
Law, Cleveland State University; ANDREJ THOMAS STARKIS, Assistant
Professor of Law, Massachusetts School of Law; NORMAN STEIN,
Douglas Arant Professor of Law, University of Alabama School of
Law; JOAN STEINMAN, Distinguished Professor of Law, Chicago-Kent
College of Law; ROBERT N. STRASSFELD, Professor of Law, Case
Western Reserve University School of Law; ROBERT L. TSAI, Assistant
Professor of Law, University of Oregon School of Law; BETH VAN
SCHAACK, Assistant Professor, Santa Clara University School of Law;
DEBORAH M. WEISSMAN, Associate Professor of Law and Director of
Clinical Programs, University of North Carolina School of Law;
CHARLES E. WILSON, Associate Professor of Law, The Ohio State
University College of Law; RICHARD J. WILSON, Professor, Washington
College of Law, American University; ADAM WINKLER, Acting Professor
of Law, University of California at Los Angeles; STEPHEN WIZNER,
William 0. Douglas Clinical Professor of Law and Supervising
Attorney, Yale Law School; MARK E. WOJCIK, Associate Professor of
Law, The John Marshall Law School, Chicago; FRANK H. WU, Professor
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of Law, Howard University; CLIFF ZIMMERMAN, Clinical Associate
Professor of Law, Northwestern University; NATIONAL LAWYERS' GUILD,
Heidi Boghosian, Executive Director; NATIONAL IMMIGRATION PROJECT
OF THE NATIONAL LAWYERS GUILD, Dan Kesselbrenner, Executive
Director; NATIONAL LAWYERS GUILD NEW YORK CHAPTER, Dana Biberman,
President; HUMAN RIGHTS WATCH, James Ross, Senior Legal Counsel;
SOUTHERN POVERTY LAW CENTER, Rhonda Brownstein, Legal Director;
UNITARIAN UNIVERSALIST SERVICE COMMITTEE, Denise Moorehead, Deputy
Director of Program; PUERTO RICO LEGAL DEFENSE AND EDUCATION FUND,
INCORPORATED, Foster Maer, Acting Legal Director; NATIONAL
COALITION TO PROTECT POLITICAL FREEDOM, Kit Gage, President; FIRST
AMENDMENT FOUNDATION, Kit Gage, Director; NATIONAL LAWYER'S GUILD/
MAURICE & JANE SUGAR LAW CENTER FOR ECONOMIC & SOCIAL JUSTICE,
Julie Hurwitz, Executive Director; CIVIL LIBERTIES MONITORING
PROJECT, Jared Rossman, President; ASSOCIATION OF LEGAL AID
ATTORNEYS, U.A.W. LOCAL 2325, Michael Letwin, Esq., President;
PARTNERSHIP FOR CIVIL JUSTICE, Mara Verheyden-Hilliard, co-founder;
TRIAL LAWYERS FOR PUBLIC JUSTICE, Rebecca Epstein, Staff Attorney;
FREEDOM SOCIALIST PARTY, Val Carlson; JEWISH ALLIANCE FOR LAW AND
SOCIAL ACTION, Andrew M. Fischer; THE INNOCENCE PROJECT AT THE
BENJAMIN N. CARDOZO SCHOOL OF LAW, Nina Morrison, Esq., Executive
Director; ELLA BAKER CENTER FOR HUMAN RIGHTS, Van Jones, National
Executive Director; AMERICAN FRIENDS SERVICE COMMITTEE, Mary Ellen
McNish, General Secretary; REBER BOULT, Esq., Albuquerque, New
Mexico; HUNTER GRAY; JOHN MAGE, Esq., New York, New York; DOUGLAS
N. MASTERS, Esq., Chicago, Illinois; LAURA BETH NIELSEN, Research
Fellow, American Bar Foundation; LEONARD WEINGLASS, Esq., New York,
New York; CAMILLE WHITWORTH, Esq., Austin, Texas; MITCHELL
ZIMMERMAN, Esq., Co-Coordinator, Law Professors for the Rule of
Law; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; AMERICAN
CIVIL LIBERTIES UNION FOUNDATION; AMERICAN CIVIL LIBERTIES
FOUNDATION OF VIRGINIA;
Amici Curiae in support
of Appellees,
RUTH WEDGWOOD, Professor of Law, Yale University Law School; SAMUEL
ESTREICHER, Professor of Law, New York University School of Law;
DOUGLAS W. KMIEC, Dean & St. Thomas More Professor of Law, Catholic
University; RONALD ROTUNDA, George Mason University Foundation
Professor of Law, George Mason University School of Law; DAVID B.
RIVKIN, JR.; LEE A. CASEY; DARIN R. BARTRAM;
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Amici Curiae in support
of Appellants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior District
Judge. (CA-02-439- 2)
Argued: October 28, 2002 Decided: January 8, 2003
Before WILKINSON, Chief Judge, and WILKINS and TRAXLER, Circuit Judges.
Reversed and remanded with directions to dismiss by published
opinion. Opinion by WILKINSON, Chief Judge, and WILKINS and
TRAXLER, Circuit Judges, in which all three concur.
ARGUED: Paul Clement, Deputy Solicitor General, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Frank
Willard Dunham, Jr., Federal Public Defender, Norfolk, Virginia,
for Appellees. ON BRIEF: Paul J. McNulty, United States Attorney,
Gregory G. Garre, Assistant to the Solicitor General, David B.
Salmons, Assistant to the Solicitor General, Lawrence R. Leonard,
Managing Assistant United States Attorney, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellants. Larry W. Shelton,
Assistant Federal Public Defender, Geremy C. Kamens, Assistant
Federal Public Defender, Norfolk, Virginia, for Appellees. David B.
Rivkin, Jr., Lee A. Casey, Darin R. Bartram, BAKER & HOSTETLER, L.L.
P., Washington, D.C., for Amici Curiae Ruth Wedgwood, et al.
Shayana Kadidal, Barbara Olshansky, Michael Ratner, William
Goodman, CENTER FOR CONSTITUTIONAL RIGHTS, New York, New York, for
Amici Curiae Center for Constitutional Rights, et al. Steven D.
Benjamin, Richmond, Virginia; Donald G. Rehkopf, Jr., BRENNA &
BRENNA, Rochester, New York, for Amicus Curiae Association of
Criminal Defense Lawyers. Steven R. Shapiro, Lucas Guttentag,
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Arthur N. Eisenberg, Robin Goldfaden, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, New York, New York; Rebecca K. Glenberg, AMERICAN
CIVIL LIBERTIES UNION OF VIRGINIA, Richmond, Virginia, for Amici
Curiae ACLU, et al.
WILKINSON, Chief Judge, and WILKINS and TRAXLER, Circuit Judges:
Yaser Esam Hamdi filed a petition under 28 U.S.C. � 2241 challenging the lawfulness of his confinement in the
Norfolk Naval Brig.' On this third and latest appeal, the United States challenges the district court's order requiring
the production of various materials regarding Hamdi's status as an alleged enemy combatant. The district court
certified for appeal the question of whether a declaration by a Special Advisor to the Under Secretary of Defense for
Policy setting forth what the government contends were the circumstances of Hamdi's capture was sufficient by
itself to justify his detention. Because it is undisputed that Hamdi was captured in a zone of active combat in a
foreign theater of conflict, we hold that 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. No further factual inquiry is necessary or proper, and we remand the case with directions
to dismiss the petition.
I.
As recounted in earlier appeals regarding Hamdi's detention, Hamdi v. Rumsfeld, 294 F.3d 598 (4th Cir. 2002)
("Hamdi I"), and Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002) ("Hamdi II"), the al Qaida terrorist network,
utilizing commercial airliners, launched massive attacks on the United States on September 11, 2001, successfully
striking the World Trade Center in New York City, and the Pentagon, the military headquarters of our country, near
Washington, D.C. A third unsuccessful attack upon at least one additional target, most likely within Washington, D.
C., was foiled by the efforts of the passengers and crew on the highjacked airliner when it crashed in Somerset
County, Pennsylvania, southeast of Pittsburgh. In total, over 3,000 people were killed on American soil that day.
In the wake of this atrocity, Congress authorized 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." Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat.
224 (Sept. 18, 2001). The President responded by ordering United States armed forces to Afghanistan to subdue al
Qaida and the governing Taliban regime supporting it. During this ongoing military operation, thousands of alleged
enemy combatants, including Hamdi, have been captured by American and allied forces.
The present case arises out of Hamdi's detention by the United States military in Norfolk, Virginia. Hamdi
apparently was born in Louisiana but left for Saudi Arabia when he was a small child. Although initially detained in
Afghanistan and then Guantanamo Bay, Hamdi was transferred to the Norfolk Naval Station Brig after it was
discovered that he may not have renounced his American citizenship. He has remained in Norfolk since April 2002.
In June 2002, Hamdi's father, Esam Fouad Hamdi, filed a petition for writ of habeas corpus, naming as petitioners
both Hamdi and himself as next friend.2 The petition alleged that Hamdi is a citizen of the United States who was
residing in Afghanistan when he was seized by the United States government. According to the petition, "[i]n the
course of the military campaign, and as part of their effort to overthrow the Taliban, the United States provided
military assistance to the Northern Alliance, a loosely-knit coalition of military groups opposed to the Taliban
Government," and thereby "obtained access to individuals held by various factions of the Northern Alliance." The
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petition further alleges that "Hamdi was captured or transferred into the custody of the United States in the Fall of
2001" in Afghanistan, transported from Afghanistan to Camp X-Ray at the United States Naval Base in
Guantanamo Bay, Cuba, in January 2002, and ultimately transferred to the Norfolk Naval Station Brig in Norfolk,
Virginia, in April 2002.
Although acknowledging that Hamdi was seized in Afghanistan during a time of active military hostilities, the
petition alleges that "as an American citizen, . . . Hamdi enjoys the full protections of the Constitution," and that the
government's current detention of him in this country without charges, access to a judicial tribunal, or the right to
counsel, "violate[s] the Fifth and Fourteenth Amendments to the United States Constitution." By way of relief, the
petition asks, inter alia, that the district court: (1) "Order Respondents to cease all interrogations of Yaser Esam
Hamdi, direct or indirect, while this litigation is pending"; (2) "Order and declare that Yaser Esam Hamdi is being
held in violation of the Fifth and Fourteenth Amendments to the United States Constitution"; (3) "To the extent
Respondents contest any material factual allegations in th[e] Petition, schedule an evidentiary hearing, at which
Petitioners may adduce proof in support of their allegations"; and (4) "Order that Petitioner Yaser Esam Hamdi be
released from Respondents' unlawful custody."
On June 11, before the government had time to respond to the petition, the district court appointed Public Defender
Frank Dunham as counsel for the detainee and ordered the government to allow the Defender unmonitored access to
Hamdi. On July 12, we reversed the district court's order granting counsel immediate access to Hamdi. Hamdi II,
296 F.3d at 279. We cautioned that Hamdi's petition involved complex and serious national security issues and
found that the district court had not shown proper deference to the government's legitimate security and intelligence
interests. We did not order the petition dismissed outright, however, noting our reluctance to "embrac[e] [the]
sweeping proposition. . . that, with no meaningful judicial review, any American citizen alleged to be an enemy
combatant could be detained indefinitely without charges or counsel on the government's say-so." Id. at 283. Rather,
we sanctioned a limited and deferential inquiry into Hamdi's status, noting "that if Hamdi is indeed an 'enemy
combatant' who was captured during hostilities in Afghanistan, the government's present detention of him is a
lawful one." Id. (citing Ex parte Quirin, 317 U.S. 1, 31, 37 (1942)). We also instructed that, in conducting the
inquiry, "the district court must consider the most cautious procedures first, conscious of the prospect that the least
drastic procedures may promptly resolve Hamdi's case and make more intrusive measures unnecessary." Id. at 284.
Following this remand, the district court held a hearing on July 18. During this hearing, the court expressed its
concern over possible violations of Hamdi's rights as an American citizen. The court also questioned the
government's most basic contentions regarding the ongoing hostilities, asking "with whom is the war I should
suggest that we're fighting?" and "will the war never be over as long as there is any member [or] any person who
might feel that they want to attack the United States of America or the citizens of the United States of America?"
The court directed that "[all! of these [answers should] be provided in the answer that the government is to file to the
petition" and directed the United States to file such a response to Hamdi's petition by July 25.
On July 25, the government filed a response to, and motion to dismiss, the petition for a writ of habeas corpus.
Attached to its response was an affidavit from the Special Advisor to the Under Secretary of Defense for Policy,
Michael Mobbs, which confirms the material factual allegations in Hamdi's petition -- specifically, that Hamdi was
seized in Afghanistan by allied military forces during the course of the sanctioned military campaign, designated an
"enemy combatant" by our Government, and ultimately transferred to the Norfolk Naval Brig for detention. Thus, it
is undisputed that Hamdi was captured in Afghanistan during a time of armed hostilities there. It is further
undisputed that the executive branch has classified him as an enemy combatant.
In addition to stating that Hamdi has been classified as an enemy combatant, the Mobbs declaration went on further
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to describe what the government contends were the circumstances surrounding Hamdi's seizure, his transfer to
United States custody, and his placement in the Norfolk Naval Brig. According to Mobbs, the military determined
that Hamdi "traveled to Afghanistan in approximately July or August of 2001" and proceeded to "affiliaten with a
Taliban military unit and receive[] weapons training." While serving with the Taliban in the wake of September 11,
he was captured when his Taliban unit surrendered to Northern Alliance forces with which it had been engaged in
battle. He was in possession of an AK-47 rifle at the time of surrender. Hamdi was then transported with his unit
from Konduz, Afghanistan to the Northern Alliance prison in Mazar-e-Sharif, Afghanistan and, after a prison
uprising there, to a prison at Sheberghan, Afghanistan. Hamdi was next transported to the U.S. short term detention
facility in Kandahar, and then transferred again to Guantanamo Bay and eventually to the Norfolk Naval Brig.
According to Mobbs, interviews with Hamdi confirmed the details of his capture and his status as an enemy
combatant.
In keeping with our earlier instruction that the district court should proceed cautiously in reviewing military
decisions reached during sanctioned military operations, we directed the district court to first "consider the
sufficiency of the Mobbs declaration as an independent matter before proceeding further." Following this order, the
district court held a hearing on August 13 to review the sufficiency of the Mobbs declaration.
During this hearing, the district court recognized that "the government is entitled to considerable deference in
detention decisions during hostilities." The court also noted that it did not "have any doubts [Hamdi] had a firearm
[or] any doubts he went to Afghanistan to be with the Taliban." Despite these observations, however, the court
asserted that it was "challenging everything in the Mobbs' declaration" and that it intended to "pick it apart" "piece
by piece." The court repeatedly referred to information it felt was missing from the declaration, asking "Is there
anything in here that said Hamdi ever fired a weapon?" The court questioned whether Mr. Mobbs was even a
government employee and intimated that the government was possibly hiding disadvantageous information from the
court.
The district court filed an opinion on August 16, finding that the Mobbs declaration "falls far short" of supporting
Hamdi's detention. The court ordered the government to turn over, among other things, copies of Hamdi's
statements and the notes taken from any interviews with him; the names and addresses of all interrogators who have
questioned Hamdi; statements by members of the Northern Alliance regarding the circumstances of Hamdi's
surrender; and a list of the date of Hamdi's capture and all of the dates and locations of his subsequent detention.
Upon the Government's motion to certify the August 16 production order for immediate appeal, the district court
certified the following question: "Whether the Mobbs Declaration, standing alone, is sufficient as a matter of law to
allow a meaningful judicial review of Yaser Esam Hamdi's classification as an enemy combatant?" We then granted
the Government's petition for interlocutory review pursuant to 28 U.S.C.A. � 1292(b). In so doing, we noted that
"this court 'may address any issue fairly included within the certified order because it is the order that is appealable,
and not the controlling question identified by the district court." Hamdi v. Rumsfeld, No. 02-7338 (4th Cir. Sept.
12, 2002) (order granting petition for interlocutory review) (quoting Yamaha Motor Corp. v. Calhoun, 516 U.S. 199,
205 (1996)).
Yaser Esam Hamdi is apparently an American citizen. He was also captured by allied forces in Afghanistan, a zone
of active military operations. This dual status -- that of American citizen and that of alleged enemy combatant --
raises important questions about the role of the courts in times of war.
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A.
The importance of limitations on judicial activities during wartime may be inferred from the allocation of powers
under our constitutional scheme. "Congress and the President, like the courts, possess no power not derived from the
Constitution." Ex parte Quinn, 317 U.S. 1, 25 (1942). Article I, section 8 grants Congress the power to "provide for
the common Defence and general Welfare of the United States. . . To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land and Water; To raise and support armies. . . [and] To
provide and maintain a navy." Article II, section 2 declares that "[t]he President shall be Commander in Chief of the
Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of
the United States."
The war powers thus 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 conduct of war and for the government and
regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including
those which pertain to the conduct of war." Quirin, 317 U.S. at 26. These powers include the authority to detain
those captured in armed struggle. Hamdi II, 296 F.3d at 281- 82.1 These powers likewise extend to the executive's
decision to deport or detain alien enemies during the duration of hostilities, see Ludecke v. Watkins, 335 U.S. 160,
173 (1948), and to confiscate or destroy enemy property, see Juragua Iron Co. v. United States, 212 U.S. 297, 306
(1909).
Article III contains nothing analogous to the specific powers of war so carefully enumerated in Articles I and II. "In
accordance with this constitutional text, the Supreme Court has shown great deference to the political branches
when called upon to decide cases implicating sensitive matters of foreign policy, national security, or military
affairs." Hamdi II, 296 F.3d at 281.
The reasons for this deference are not difficult to discern. Through their departments and committees, the executive
and legislative branches are organized to supervise the conduct of overseas conflict in a way that the judiciary
simply is not. The Constitution's allocation of the warmaking powers reflects not only the expertise and experience
lodged within the executive, but also the more fundamental truth that those branches most accountable to the people
should be the ones to undertake the ultimate protection and to ask the ultimate sacrifice from them. Thus the
Supreme Court has lauded "[t]he operation of a healthy deference to legislative and executive judgments in the area
of military affairs." Rostker v. Goldberg, 453 U.S. 57, 66 (1981).
The deference that flows from the explicit enumeration of powers protects liberty as much as the explicit
enumeration of rights. The Supreme Court has underscored this founding principle: "The ultimate purpose of this
separation of powers is to protect the liberty and security of the governed." Metro. Wash. Airports Auth. v. Citizens
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for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 272 (1991). Thus, the textual allocation of responsibilities
and the textual enumeration of rights are not dichotomous, because the textual separation of powers promotes a
more profound understanding of our rights. For the judicial branch to trespass upon the exercise of the warmaking
powers would be an infringement of the right to self-determination and self-governance at a time when the care of
the common defense is most critical. This right of the people is no less a right because it is possessed collectively.
These interests do not carry less weight because the conflict in which Hamdi was captured is waged less against
nation-states than against scattered and unpatriated forces. We have emphasized that the "unconventional aspects of
the present struggle do not make its stakes any less grave." Hamdi II, 296 F.3d at 283. Nor does the nature of the
present conflict render respect for the judgments of the political branches any less appropriate. We have noted that
the "political branches are best positioned to comprehend this global war in its full context," id., and neither the
absence of set-piece battles nor the intervals of calm between terrorist assaults suffice to nullify the warmaking
authority entrusted to the executive and legislative branches.
B.
Despite the clear allocation of war powers to the political branches, judicial deference to executive decisions made
in the name of war is not unlimited. The Bill of Rights which Hamdi invokes in his petition is as much an
instrument of mutual respect and tolerance as the Fourteenth Amendment is. It applies to American citizens
regardless of race, color, or creed. And as we become a more diverse nation, the Bill of Rights may become even
more a lens through which we recognize ourselves. To deprive any American citizen of its protections is not a step
that any court would casually take.
Drawing on the Bill of Rights' historic guarantees, the judiciary plays its distinctive role in our constitutional
structure when it reviews the detention of American citizens by their own government. Indeed, if due process means
anything, it means that the courts must defend the "fundamental principles of liberty and justice which lie at the base
of all our civil and political institutions." Powell v. Alabama, 287 U.S. 45, 67 (1932) (internal quotation marks
omitted). The Constitution is suffused with concern about how the state will wield its awesome power of forcible
restraint. And this preoccupation was not accidental. Our forebears recognized that the power to detain could easily
become destructive "if exerted without check or control" by an unrestrained executive free to "imprison, dispatch, or
exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure."
4 W. Blackstone, Commentaries on the Laws of England 349-50 (Cooley ed. 1899) (quoted in Duncan v. Louisiana,
391 U.S. 145, 151 (1968)).
The duty of the judicial branch to protect our individual freedoms does not simply cease whenever our military
forces are committed by the political branches to armed conflict. The Founders "foresaw that troublous times would
arise, when rulers and people would. . . seek by sharp and decisive measures to accomplish ends deemed just and
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proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law." Ex
Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866). While that recognition does not dispose of this case, it does indicate
one thing: The detention of United States citizens must be subject to judicial review. See Hamdi II, 296 F.3d at 283.
It is significant, moreover, that the form of relief sought by Hamdi is a writ of habeas corpus. In war as in peace,
habeas corpus provides one of the firmest bulwarks against unconstitutional detentions. As early as 1789, Congress
reaffirmed the courts' common law authority to review detentions of federal prisoners, giving its explicit blessing to
the judiciary's power to "grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment"
for federal detainees. Act of Sept. 24, 1789, ch. 20, � 14, 1 Stat. 81-82. While the scope of habeas review has
expanded and contracted over the succeeding centuries, its essential function of assuring that restraint accords with
the rule of law, not the whim of authority, remains unchanged. Hamdi's petition falls squarely within the Great
Writ's purview, since he is an American citizen challenging his summary detention for reasons of state necessity.
C.
As the foregoing discussion reveals, the tensions within this case are significant. Such circumstances should counsel
caution on the part of any court. Given the concerns discussed in the preceding sections, any broad or categorical
holdings on enemy combatant designations would be especially inappropriate. We have no occasion, for example, to
address the designation as an enemy combatant of an American citizen captured on American soil or the role that
counsel might play in such a proceeding. See, e.g., Padilla v. Bush, No. 02 Civ. 445 (MBM), 2002 WL 31718308 (S.
D.N.Y. Dec. 4, 2002). We shall, in fact, go no further in this case than the specific context before us -- that of the
undisputed detention of a citizen during a combat operation undertaken in a foreign country and a determination by
the executive that the citizen was allied with enemy forces.
The safeguards that all Americans have come to expect in criminal prosecutions do not translate neatly to the arena
of armed conflict. In fact, if deference to the executive is not exercised with respect to military judgments in the
field, it is difficult to see where deference would ever obtain. For there is a "well-established power of the military
to exercise jurisdiction over members of the armed forces, those directly connected with such forces, [and] enemy
belligerents, prisoners of war, [and] others charged with violating the laws of war." Duncan v. Kahanamolui, 327 U.
S. 304, 313-14 (1946) (footnotes omitted). As we emphasized in our prior decision, any judicial inquiry into
Hamdi's status as an alleged enemy combatant in Afghanistan must reflect this deference as well as "a recognition
that government has no more profound responsibility" than the protection of American citizens from further terrorist
attacks. Hamdi II, 296 F.3d at 283.
In this regard, it is relevant that the detention of enemy combatants serves at least two vital purposes. First,
detention prevents enemy combatants from rejoining the enemy and continuing to fight against America and its
allies. "The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from
then on he must be removed as completely as practicable from the front. . . ." In re Territo, 156 F.2d 142, 145 (9th
Cir. 1946). In this respect, "captivity is neither a punishment nor an act of vengeance," but rather "a simple war
measure." W. Winthrop, Military Law and Precedents 788 (2d ed. 1920). And the precautionary measure of
disarming hostile forces for the duration of a conflict is routinely accomplished through detention rather than the
initiation of criminal charges. To require otherwise would impose a singular burden upon our nation's conduct of
war.
Second, detention in lieu of prosecution may relieve the burden on military commanders of litigating the
circumstances of a capture halfway around the globe. This burden would not be inconsiderable and would run the
risk of "saddling military decision-making with the panoply of encumbrances associated with civil litigation" during
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a period of armed conflict. Hamdi II, 296 F.3d at 283-84. As the Supreme Court has recognized, "[i]t would be
difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to
reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the
military offensive abroad to the legal defensive at home." Johnson v. Eisentrager, 339 U.S. 763, 779 (1950).4
The judiciary is not at liberty to eviscerate detention interests directly derived from the war powers of Articles I and
II. As the nature of threats to America evolves, along with the means of carrying those threats out, the nature of
enemy combatants may change also. In the face of such change, separation of powers doctrine does not deny the
executive branch the essential tool of adaptability. To the contrary, the Supreme Court has said that "[i]n adopting
this flexible understanding of separation of powers, we simply have recognized Madison's teaching that the greatest
security against tyranny. . . lies not in a hermetic division among the Branches, but in a carefully crafted system of
checked and balanced power within each Branch." Mistretta v. United States, 488 U.S. 361, 381 (1989). If anything,
separation of powers bears renewed relevance to a struggle whose unforeseeable dangers may demand significant
actions to protect untold thousands of American lives.
The designation of Hamdi as an enemy combatant thus bears the closest imaginable connection to the President's
constitutional responsibilities during the actual conduct of hostilities. We therefore approach this case with
sensitivity to both the fundamental liberty interest asserted by Hamdi and the extraordinary breadth of warmaking
authority conferred by the Constitution and invoked by Congress and the executive branch.
After the district court issued its August 16 production order, it granted respondent's motion for an interlocutory
appeal of that order. The following question was certified for our review:
Whether the Mobbs Declaration, standing alone, is sufficient as a
matter of law to allow a meaningful judicial review of Yaser Esam
Hamdi's classification as an enemy combatant?
As the Supreme Court has made clear, we are not limited to this single question. Rather, an appellate court may
address any issue fairly included within the certified order, because "it is the order that is appealable, and not the
controlling question identified by the district court." Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205
(1996) (internal quotation marks omitted).
On this appeal, it is argued that Hamdi's detention is invalid even if the government's assertions were entirely
accurate. If that were clearly the case, there would be no need for further discovery such as that detailed in the
August 16 production order, because Hamdi's detention would be invalid for reasons beyond the scope of any
factual dispute. Indeed, any inquiry into the August 16 production order or any discussion of the certified question
would be unnecessary, because neither could suffice to justify a detention that, as a threshold matter, was otherwise
unlawful. Moreover, the burden of the August 16 order would necessarily outweigh any benefits if, quite
independent of the disputed factual issues, Hamdi were already entitled to relief. See Fed. R. Civ. Proc. 26(b)(1)-(2).
For that reason, any purely legal challenges to Hamdi's detention are fairly includable within the scope of the
certified order. See Juzwin v. Asbestos Corp., 900 F.2d 686, 692 (3d Cir. 1990) (stating that, on � 1292(b) review of
an order denying a dispositive motion, an appellate court is "free to consider all grounds advanced in support of the
grant of [the motion] and all grounds suggested for sustaining its denial" (internal quotation marks omitted)).
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In this vein, Hamdi and amici have in fact pressed two purely legal grounds for relief: 18 U.S.C. � 4001(a) and
Article 5 of the Geneva Convention. We now address them both.
A.
18 U.S.C. � 4001 regulates the detentions of United States citizens. It states in full:
(a) No citizen shall be imprisoned or otherwise detained by the
United States except pursuant to an Act of Congress.
(b)(1) The control and management of Federal penal and correctional
institutions, except military or naval institutions, shall be
vested in the Attorney General, who shall promulgate rules for the
government thereof, and appoint all necessary officers and
employees in accordance with the civil-service laws, the
Classification Act, as amended[,] and the applicable regulations.
(2) The Attorney General may establish and conduct industries,
farms, and other activities and classify the inmates; and provide
for their proper government, discipline, treatment, care,
rehabilitation, and reformation.
18 U.S.C. � 4001 (2002). Hamdi argues that there is no congressional sanction for his incarceration and that � 4001
(a) therefore prohibits his continued detention. We find this contention unpersuasive.
Even if Hamdi were right that � 4001(a) requires Congressional authorization of his detention, Congress has, in the
wake of the September 11 terrorist attacks, authorized 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." Authorization for Use of Military Force, Pub. L. No. 107-40,
115 Stat. 224 (Sept. 18, 2001) (emphasis added). As noted above, capturing and detaining enemy combatants is an
inherent part of warfare; the "necessary and appropriate force" referenced in the congressional resolution necessarily
includes the capture and detention of any and all hostile forces arrayed against our troops. Furthermore, Congress
has specifically authorized the expenditure of funds for "the maintenance, pay, and allowances of prisoners of war
[and] other persons in the custody of the [military] whose status is determined. . . to be similar to prisoners of war."
10 U.S.C. � 956(5) (2002). It is difficult if not impossible to understand how Congress could make appropriations
for the detention of persons "similar to prisoners of war" without also authorizing their detention in the first instance.
Any alternative construction of these enactments would be fraught with difficulty. As noted above, the detention of
enemy combatants serves critical functions. Moreover, it has been clear since at least 1942 that "[c]itizenship in the
United States of an enemy belligerent does not relieve him from the consequences of [his] belligerency." Quinn,
317 U.S. at 37. If Congress had intended to override this well-established precedent and provide American
belligerents some immunity from capture and detention, it surely would have made its intentions explicit.
It is likewise significant that � 4001(a) functioned principally to repeal the Emergency Detention Act. That statute
had provided for the preventive "apprehension and detention" of individuals inside the United States "deemed likely
to engage in espionage or sabotage" during "internal security emergencies." H.R. Rep. 92-116, at 2 (Apr. 6, 1971).
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Proponents of the repeal were concerned that the Emergency Detention Act might, inter alia, "permit[] a recurrence
of the round ups which resulted in the detention of Americans of Japanese ancestry in 1941 and subsequently during
World War II." Id. There is no indication that � 4001(a) was intended to overrule the longstanding rule that an
armed and hostile American citizen captured on the battlefield during wartime may be treated like the enemy
combatant that he is. We therefore reject Hamdi's contention that � 4001(a) bars his detention.
B.
Hamdi and amici also contend that Article 5 of the Geneva Convention applies to Hamdi's case and requires an
initial formal determination of his status as an enemy belligerent "by a competent tribunal." Geneva Convention
Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 5, 6 U.S.T. 3316, 75 U.N.T.S. 135.
This argument falters also because the Geneva Convention is not self- executing. "Courts will only find a treaty to
be self-executing if the document, as a whole, evidences an intent to provide a private right of action." Goldstar
(Panama) v. United States, 967 F.2d 965, 968 (4th Cir. 1992). The Geneva Convention evinces no such intent.
Certainly there is no explicit provision for enforcement by any form of private petition. And what discussion there is
of enforcement focuses entirely on the vindication by diplomatic means of treaty rights inhering in sovereign
nations. If two warring parties disagree about what the Convention requires of them, Article 11 instructs them to
arrange a "meeting of their representatives" with the aid of diplomats from other countries, "with a view to settling
the disagreement." Geneva Convention, at art. 11. Similarly, Article 132 states that "any alleged violation of the
Convention" is to be resolved by a joint transnational effort "in a manner to be decided between the interested
Parties." Id at art. 132; cf. id. at arts. 129-30 (instructing signatories to enact legislation providing for criminal
sanction of "persons committing . . . grave breaches of the present Convention"). We therefore agree with other
courts of appeals that the language in the Geneva Convention is not "self-executing" and does not "create private
rights of action in the domestic courts of the signatory countries." Huynh Thi Anh v. Levi, 586 F.2d 625, 629 (6th
Cir. 1978) (applying identical enforcement provisions from the Geneva Convention Relative to the Protection of
Civilian Persons in Time of War, Feb. 2, 1956, 6 U.S.T. 3516, 75 U.N.T.S. 287); see also Holmes v. Laird, 459 F.2d
1211, 1222 (D.C. Cir. 1972) (noting that "corrective machinery specified in the treaty itself is nonjudicial").
Hamdi provides no reason to conclude that 28 U.S.C. � 2241 makes these diplomatically-focused rights enforceable
by a private right of petition. Indeed, it would make little practical sense for � 2241 to have done so, since we would
have thereby imposed on the United States a mechanism of enforceability that might not find an analogue in any
other nation. This is not to say, of course, that the Geneva Convention is meaningless. Rather, its values are
vindicated by diplomatic means and reciprocity, as specifically contemplated by Article 132. There is a powerful
and self- regulating national interest in observing the strictures of the Convention, because prisoners are taken by
both sides of any conflict. This is the very essence of reciprocity and, as the drafters of the Convention apparently
decided, the most appropriate basis for ensuring compliance. As the Court in Eisentrager observed about the
predecessor to the current Geneva Convention, "the obvious scheme of the Agreement [is] that responsibility for
observance and enforcement of these rights is upon political and military authorities." 339 U.S. at 789 11.14.
Even if Article 5 were somehow self-executing, there are questions about how it would apply to Hamdi's case. In
particular, it is anything but clear that the "competent tribunal" which would determine Hamdi's status would be an
Article III court. Every country has different tribunals, and there is no indication that the Geneva Convention was
intended to impose a single adjudicatory paradigm upon its signatories. Moreover, Hamdi's argument begs the
question of what kind of status determination is necessary under Article 5 and how extensive it should be. Hamdi
and the amici make much of the distinction between lawful and unlawful combatants, noting correctly that lawful
combatants are not subject to punishment for their participation in a conflict. But for the purposes of this case, it is a
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distinction without a difference, since the option to detain until the cessation of hostilities belongs to the executive
in either case. It is true that unlawful combatants are entitled to a proceeding before a military tribunal before they
may be punished for the acts which render their belligerency unlawful. Quinn, 317 U.S. at 31. But they are also
subject to mere detention in precisely the same way that lawful prisoners of war are. Id. The fact that Hamdi might
be an unlawful combatant in no way means that the executive is required to inflict every consequence of that status
on him. The Geneva Convention certainly does not require such treatment.
For all these reasons, we hold that there is no purely legal barrier to Hamdi's detention. We now turn our attention to
the question of whether the August 16 order was proper on its own terms.
IV.
As we will discuss below, we conclude that Hamdi's petition fails as a matter of law. It follows that the government
should not be compelled to produce the materials described in the district court's August 16 order.
We also note that the order, if enforced, would present formidable practical difficulties. The district court indicated
that its production request might well be only an initial step in testing the factual basis of Hamdi's enemy combatant
status. The court plainly did not preclude making further production demands upon the government, even suggesting
that it might "bring Hamdi before [the court] to inquire about [his] statements."
Although the district court did not have "any doubts [that Hamdi] had a firearm" or that "he went to Afghanistan to
be with the Taliban," the court ordered the government to submit to the court for in camera, ex parte review: (1) "[c]
opies of all Hamdi's statements, and the notes taken from any interviews with Hamdi, that relate to his reasons for
going to Afghanistan, his activities while in Afghanistan, or his participation in the military forces of the Taliban or
any other organization in that country"; (2) "[a] list of all the interrogators who have questioned Hamdi, including
their names and addresses, and the dates of the interviews"; (3) "[c]opies of any statements by members of the
Northern Alliance" regarding Hamdi's surrender; (4) "[a] list that includes the date of Hamdi's capture, and that
gives all the dates and locations of his subsequent detention"; (5) "[t]he name and title of the individual within the
United States Government who made the determination that Hamdi was an illegal enemy combatant"; (6) "[t]he
name and title of the individual within the United States Government who made the decision to move Hamdi from
Guantanamo Bay, Cuba to the Norfolk Naval Station"; and (7) "the screening criteria utilized to determine the status
of Hamdi." The court's order allows the government to redact "intelligence matters" from its responses, but only to
the extent that those intelligence matters are outside the scope of inquiry into Hamdi's legal status.
Hamdi argues vigorously that this order should be affirmed. Because of the alleged "breadth with which
Respondents construe their authority to imprison American citizens whom they consider to be enemy combatants,"
Br. of the Petitioners/Appellees at 27, Hamdi argues we must allow the district court to subject the government's
classification of him to a searching review. While the ordinary � 2241 proceeding naturally contemplates the
prospect of factual development, see 28 U.S.C. �� 2243, 2246, such an observation only begs the basic question in
this case -- whether further factual exploration would bring an Article III court into conflict with the warmaking
powers of Article I and II. Here, the specific interests asserted by the government flow directly from the warmaking
powers and are intimately connected to them. Whatever the general force of these interests (which we discussed
extensively above), they are most directly implicated by captures in a zone of active combat operations.
A review of the court's August 16 order reveals the risk of "stand[ing] the warmaking powers of Articles I and II on
their heads," Hamdi II, 296 F.3d at 284. The district court, for example, ordered the government to produce all
Hamdi's statements and notes from interviews. Yet it is precisely such statements, relating to a detainee's activities
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in Afghanistan, that may contain the most sensitive and the most valuable information for our forces in the field.
The risk created by this order is that judicial involvement would proceed, increment by increment, into an area
where the political branches have been assigned by law a preeminent role.
The district court further ordered the government to produce a list of all interrogators who have questioned Hamdi,
including their names and addresses and the dates of the interviews, copies of any statements by members of the
Northern Alliance regarding Hamdi's surrender, and a list that includes the date of Hamdi's capture and all the dates
and locations of his subsequent detention. Once again, however, litigation cannot be the driving force in effectuating
and recording wartime detentions. The military has been charged by Congress and the executive with winning a
war, not prevailing in a possible court case. Complicating the matter even further is the fact that Hamdi was
originally captured by Northern Alliance forces, with whom American forces were generally allied. The district
court's insistence that statements by Northern Alliance members be produced cannot help but place a strain on
multilateral efforts during wartime. The court also expressed concern in its order that the Northern Alliance did not
"identify the unit [to which Hamdi was affiliated]," "where or by whom [Hamdi] received weapons training or the
nature and extent thereof," or "who commanded the unit or the type of garb or uniform Hamdi may have worn. . . ."
In demanding such detail, the district court would have the United States military instruct not only its own
personnel, but also its allies, on precise observations they must make and record during a battlefield capture.
Viewed in their totality, the implications of the district court's August 16 production order could not be more
serious. The factual inquiry upon which Hamdi would lead us, if it did not entail disclosure of sensitive intelligence,
might require an excavation of facts buried under the rubble of war. The cost of such an inquiry in terms of the
efficiency and morale of American forces cannot be disregarded. Some of those with knowledge of Hamdi's
detention may have been slain or injured in battle. Others might have to be diverted from active and ongoing
military duties of their own. The logistical effort to acquire evidence from far away battle zones might be
substantial. And these efforts would profoundly unsettle the constitutional balance.
For the foregoing reasons, the court's August 16 production request cannot stand.
V.
The question remains, however, whether Hamdi's petition must be remanded for further proceedings or dismissed.
Hamdi's American citizenship has entitled him to file a petition for a writ of habeas corpus in a civilian court to
challenge his detention, including the military's determination that he is an "enemy combatant" subject to detention
during the ongoing hostilities. Thus, as with all habeas actions, we begin by examining the precise allegations
presented to us by the respective parties. In this case, there are two allegations that are crucial to our analysis. First,
Hamdi's petition alleges that he was a resident of and seized in Afghanistan, a country in which hostilities were
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authorized and ongoing at the time of the seizure, but that his continued detention in this country without the full
panoply of constitutional protections is unlawful. Second, the Government's response asserts that Hamdi is being
detained pursuant to the Commander-in-Chiefs Article II war powers and that the circumstances underlying
Hamdi's detention, as reflected primarily in the Mobbs declaration, establish that Hamdi's detention is lawful.
Generally speaking, in order to fulfill our responsibilities under Article III to review a petitioner's allegation that he
is being detained by American authorities in violation of the rights afforded him under the United States
Constitution, we must first determine the source of the authority for the executive to detain the individual. Once the
source of the authority is identified, we then look at the justification given to determine whether it constitutes a
legitimate exercise of that authority.
A.
Here the government has identified the source of the authority to detain Hamdi as originating in Article II, Section 2
of the Constitution, wherein the President is given the war power. We have already emphasized that the standard of
review of enemy combatant detentions must be a deferential one when the detainee was captured abroad in a zone of
combat operations. The President "is best prepared to exercise the military judgment attending the capture of alleged
combatants." Hamdi II, 296 F.3d at 283. Thus, in Quirin, the Supreme Court stated in no uncertain terms that
detentions "ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in
time of war and of grave public danger" should not "be set aside by the courts without the clear conviction that they
are in conflict with the Constitution or laws of Congress constitutionally enacted." Quinn, 317 U.S. at 25.
This deferential posture, however, only comes into play after we ascertain that the challenged decision is one
legitimately made pursuant to the war powers. It does not preclude us from determining in the first instance whether
the factual assertions set forth by the government would, if accurate, provide a legally valid basis for Hamdi's
detention under that power. Otherwise, we would be deferring to a decision made without any inquiry into whether
such deference is due. For these reasons, it is appropriate, upon a citizen's presentation of a habeas petition alleging
that he is being unlawfully detained by his own government, to ask that the government provide the legal authority
upon which it relies for that detention and the basic facts relied upon to support a legitimate exercise of that
authority. Indeed, in this case, the government has voluntarily submitted -- and urged us to review -- an affidavit
from Michael Mobbs, Special Advisor to the Under Secretary of Defense for Policy, describing what the
government contends were the circumstances leading to Hamdi's designation as an enemy combatant under Article
Ifs war power.
The Mobbs affidavit consists of two pages and nine paragraphs in which Mobbs states that he was "substantially
involved with matters related to the detention of enemy combatants in the current war against the al Qaeda terrorists
and those who support and harbor them." In the affidavit, Mobbs avers that Hamdi entered Afghanistan in July or
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August of 2001 and affiliated with a Taliban military unit. Hamdi received weapons training from the Taliban and
remained with his military unit until his surrender to Northern Alliance forces in late 2001. At the time of his
capture, Hamdi was in possession of an AK-47 rifle. After his capture, Hamdi was transferred first from Konduz,
Afghanistan to the prison in Mazar-e-Sharif, and then to a prison in Sheberghan, Afghanistan where he was
questioned by a United States interrogation team. This interrogation team determined that Hamdi met "the criteria
for enemy combatants over whom the United States was taking control." Hamdi was then transported to the U.S.
short term detention facility in Kandahar, and then transferred again to Guantanamo Bay and eventually to the
Norfolk Naval Brig. According to Mobbs, a subsequent interview with Hamdi confirmed the details of his capture
and his status as an enemy combatant.
The district court approached the Mobbs declaration by examining it line by line, faulting it for not providing
information about whether Hamdi had ever fired a weapon, the formal title of the Taliban military unit Hamdi was
with when he surrendered, the exact composition of the U.S. interrogation team that interviewed Hamdi in
Sheberghan, and even the distinguishing characteristics between a Northern Alliance miliary unit and a Taliban
military unit. Concluding that the factual allegations were insufficient to support the government's assertion of the
power to detain Hamdi under the war power, the court then ordered the production of the numerous additional
materials outlined previously. We think this inquiry went far beyond the acceptable scope of review.
To be sure, a capable attorney could challenge the hearsay nature of the Mobbs declaration and probe each and
every paragraph for incompleteness or inconsistency, as the district court attempted to do. The court's approach,
however, had a signal flaw. We are not here dealing with a defendant who has been indicted on criminal charges in
the exercise of the executive's law enforcement powers. We are dealing with the executive's assertion of its power to
detain under the war powers of Article II. See Eisentrager, 339 U.S. at 793 (Black, J., dissenting) ("[I]t is no 'crime'
to be a soldier."); cf. In re Winship, 397 U.S. 358, 363 (1970) (explaining that elevated burden of proof applies in
criminal cases because of consequences of conviction, including social stigma). To transfer the instinctive
skepticism, so laudable in the defense of criminal charges, to the review of executive branch decisions premised on
military determinations made in the field carries the inordinate risk of a constitutionally problematic intrusion into
the most basic responsibilities of a coordinate branch.
The murkiness and chaos that attend armed conflict mean military actions are hardly immune to mistake. Yet these
characteristics of warfare have been with us through the centuries and have never been thought sufficient to justify
active judicial supervision of combat operations overseas. To inquire, for example, whether Hamdi actually fired his
weapon is to demand a clarity from battle that often is not there. The district court, after reviewing the Mobbs
affidavit, did not "have any doubts [Hamdi] had a firearm [or] any doubts he went to Afghanistan to be with the
Taliban." To delve further into Hamdi's status and capture would require us to step so far out of our role as judges
that we would abandon the distinctive deference that animates this area of law.
For these reasons, and because Hamdi was indisputably seized in an active combat zone abroad, we will not require
the government to fill what the district court regarded as gaps in the Mobbs affidavit. The factual averments in the
affidavit, if accurate, are sufficient to confirm that Hamdi's detention conforms with a legitimate exercise of the war
powers given the executive by Article II, Section 2 of the Constitution and, as discussed elsewhere, that it is
consistent with the Constitution and laws of Congress. See Quinn, 317 U.S. at 25. Asking the executive to provide
more detailed factual assertions would be to wade further into the conduct of war than we consider appropriate and
is unnecessary to a meaningful judicial review of this question.
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B.
We turn then to the question of 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. We hold that no evidentiary hearing or factual inquiry on our part is necessary
or proper, because it is undisputed that Hamdi was captured in a zone of active combat operations in a foreign
country and because any inquiry must be circumscribed to avoid encroachment into the military affairs entrusted to
the executive branch.
In support of its contention that no further factual inquiry is appropriate, the government has argued that a "some
evidence" standard should govern the adjudication of claims brought by habeas petitioners in areas where the
executive has primary responsibility. That standard has indeed been employed in contexts less constitutionally
sensitive than the present one, albeit in a procedural posture that renders those cases distinguishable. See, e.g., INS
v. St. Cyr, 533 U.S. 289, 306 (2001) (describing historical practice under which, so long as "there was some
evidence to support" a deportation order, habeas courts would not "review factual determinations made by the
Executive"); Eagles v. Samuels, 329 U.S. 304, 312 (1946); Fernandez v. Phillips, 268 U.S. 311, 312 (1925). In each
of these cases, the Court indicated that the role of the writ is not to correct "mere error" in the executive's exercise of
a discretionary power, but rather to check the executive branch if it asserts a "power to act beyond the authority
granted." Eagles, 329 U.S. at 311-12. Thus, the government asserts, the role of a habeas court is not to reconsider
the executive's decision, but rather only to confirm that "there was some basis for the challenged executive
determination." Br. for Respondents-Appellants at 29. Once that determination is made, the government further
asserts, the detainee may not offer any rebuttal evidence and no further factual inquiry is allowed.
It is not necessary for us to decide whether the "some evidence" standard is the correct one to be applied in this case
because we are persuaded for other reasons that a factual inquiry into the circumstances of Hamdi's capture would
be inappropriate.
1.
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As we have emphasized throughout these appeals, we cannot set aside executive decisions to detain enemy
combatants "without the clear conviction that they are in conflict with the Constitution or laws of Congress
constitutionally enacted." Quinn, 317 U.S. at 25. We cannot stress too often the constitutional implications
presented on the face of Hamdi's petition. The constitutional allocation of war powers affords the President
extraordinarily broad authority as Commander in Chief and compels courts to assume a deferential posture in
reviewing exercises of this authority. And, while the Constitution assigns courts the duty generally to review
executive detentions that are alleged to be illegal, the Constitution does not specifically contemplate any role for
courts in the conduct of war, or in foreign policy generally.
Indeed, Article III courts are ill-positioned to police the military's distinction between those in the arena of combat
who should be detained and those who should not. Any evaluation of the accuracy of the executive branch's
determination that a person is an enemy combatant, for example, would require courts to consider, first, what
activities the detainee was engaged in during the period leading up to his seizure and, second, whether those
activities rendered him a combatant or not. The first question is factual and, were we called upon to delve into it,
would likely entail substantial efforts to acquire evidence from distant battle zones. See Eisentrager, 339 U.S. at
779. The second question may require fine judgments about whether a particular activity is linked to the war efforts
of a hostile power -- judgments the executive branch is most competent to make.
Hamdi's petition places him squarely within the zone of active combat and assures that he is indeed being held in
accordance with the Constitution and Congressional authorization for use of military force in the wake of al Qaida's
attack. Quirin, 317 U.S. at 25. Any effort to ascertain the facts concerning the petitioner's conduct while amongst the
nation's enemies would entail an unacceptable risk of obstructing war efforts authorized by Congress and
undertaken by the executive branch.
2.
Hamdi contends that, although international law and the laws of this country might generally allow for the detention
of an individual captured on the battlefield, these laws must vary in his case because he is an American citizen now
detained on American soil. As an American citizen, Hamdi would be entitled to the due process protections
normally found in the criminal justice system, including the right to meet with counsel, if he had been charged with
a crime. But as we have previously pointed out, Hamdi has not been charged with any crime. He is being held as an
enemy combatant pursuant to the well-established laws and customs of war. Hamdi's citizenship rightfully entitles
him to file this petition to challenge his detention, but the fact that he is a citizen does not affect the legality of his
detention as an enemy combatant.
Indeed, this same issue arose in Quinn. In that case, petitioners were German agents who, after the declaration of
war between the United States and the German Reich, were trained at a German sabotage school where they "were
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instructed in the use of explosives and in methods of secret writing." Quinn, 317 U.S. at 21. The petitioners then
journeyed by submarine to the beaches of New York and Florida, carrying large quantities of explosives and other
sabotage devices. All of them were apprehended by FBI agents, who subsequently learned of their mission to
destroy war industries and facilities in the United States. All of the petitioners were born in Germany but had lived
in the United States at some point. One petitioner claimed American citizenship by virtue of the naturalization of his
parents during his youth. The Court, however, did not need to determine his citizenship because it held that the due
process guarantees of the Fifth and Sixth Amendments were inapplicable in any event. It noted that "[c]itizenship in
the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is
unlawful." kl. at 37. The petitioner who alleged American citizenship was treated identically to the other German
saboteurs.
The Quinn principle applies here. One who takes up arms against the United States in a foreign theater of war,
regardless of his citizenship, may properly be designated an enemy combatant and treated as such. The privilege of
citizenship entitles Hamdi to a limited judicial inquiry into his detention, but only to determine its legality under the
war powers of the political branches. At least where it is undisputed that he was present in a zone of active combat
operations, we are satisfied that the Constitution does not entitle him to a searching review of the factual
determinations underlying his seizure there.
3.
Similarly, we reject Hamdi's argument that even if his initial detention in Afghanistan was lawful, his continuing
detention on American soil is not. Specifically, Hamdi contends that his petition does not implicate military
concerns because "the underlying claims in this case are designed to test the legality of Hamdi's imprisonment in a
naval brig in Norfolk, Virginia, not a military determination made overseas on the basis of caution rather than
accuracy." Br. of the Petitioners/Appellees at 44. But the fact that Hamdi is presently being detained in the United
States -- as opposed to somewhere overseas -- does not affect the legal implications of his status as an enemy
combatant. For the same reason that courts are ill-positioned to review the military's distinction between those who
should or should not be detained in an arena of combat, courts are not in the position to overturn the military's
decision to detain those persons in one location or another. It is not clear why the United States should be precluded
from exercising its discretion to move a detainee to a site within this country, nor do we see what purpose would be
served by second guessing the military's decision with respect to the locus of detention.
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4.
To conclude, we hold that, despite his status as an American citizen currently detained on American soil, Hamdi is
not entitled to challenge the facts presented in the Mobbs declaration. Where, as here, a habeas petitioner has been
designated an enemy combatant and it is undisputed that he was captured in an zone of active combat operations
abroad, further judicial inquiry is unwarranted when the government has responded to the petition by setting forth
factual assertions which would establish a legally valid basis for the petitioner's detention. Because these
circumstances are present here, Hamdi is not entitled to habeas relief on this basis.
C.
Finally, we address Hamdi's contention that even if his detention was at one time lawful, it is no longer so because
the relevant hostilities have reached an end. In his brief, Hamdi alleges that the government "confuses the
international armed conflict that allegedly authorized Hamdi's detention in the first place with an on-going fight
against individuals whom Respondents refuse to recognize as 'belligerents' under international law." Id. at 53-54.
Whether the timing of a cessation of hostilities is justiciable is far from clear. See Ludecke, 335 U.S. at 169
("Whether and when it would be open to this Court to find that a war though merely formally kept alive had in fact
ended, is a question too fraught with gravity even to be adequately formulated when not compelled."). The
executive branch is also in the best position to appraise the status of a conflict, and the cessation of hostilities would
seem no less a matter of political competence than the initiation of them. See United States v. The Three Friends,
166 U.S. 1, 63 (1897) ("[I]t belongs to the political department to determine when belligerency shall be recognized,
and its action must be accepted according to the terms and intention expressed."). In any case, we need not reach
this issue here. The government notes that American troops are still on the ground in Afghanistan, dismantling the
terrorist infrastructure in the very country where Hamdi was captured and engaging in reconstruction efforts which
may prove dangerous in their own right. Because under the most circumscribed definition of conflict hostilities have
not yet reached their end, this argument is without merit.
VI.
It is important to emphasize that we are not placing our imprimatur upon a new day of executive detentions. We
earlier rejected the summary embrace of "a sweeping proposition -- namely that, with no meaningful judicial
review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or
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counsel on the government's say-so." Hamdi II, 296 F.3d at 283. But, Hamdi is not "any American citizen alleged to
be an enemy combatant" by the government; he is an American citizen captured and detained by American allied
forces in a foreign theater of war during active hostilities and determined by the United States military to have been
indeed allied with enemy forces.
Cases such as Hamdi's raise serious questions which the courts will continue to treat as such. The nation has fought
since its founding for 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, and we have endeavored to do so.
The events of September 11 have left their indelible mark. It is not wrong even in the dry annals of judicial opinion
to mourn those who lost their lives that terrible day. Yet we speak in the end not from sorrow or anger, but from the
conviction that separation of powers takes on special significance when the nation itself comes under attack.
Hamdi's status as a citizen, as important as that is, cannot displace our constitutional order or the place of the courts
within the Framer's scheme. Judicial review does not disappear during wartime, but the review of battlefield
captures in overseas conflicts is a highly deferential one. That is why, for reasons stated, the judgment must be
reversed and the petition dismissed. It is so ordered.
FOOTNOTES
111
The court expresses its appreciation to the Public Defender's Office for the Eastern District of Virginia, the United
States Attorney's Office for the Eastern District of Virginia, and the Solicitor General's Office for the
professionalism of their efforts throughout these expedited appeals.
Ii
This court has previously determined that Esam Fouad Hamdi is a proper next friend. Hamdi I, 294 F.3d at 600 n.1 I.
Two earlier petitions filed by the Federal Public Defender for the Eastern District of Virginia Frank Dunham and
Christian Peregrim, a private citizen from New Jersey, were dismissed. Neither Dunham nor Peregrim had a
significant relationship with the detainee, and Hamdi's father plainly did. Id. at 606.
111
Persons captured during wartime are often referred to as "enemy combatants." While the designation of Hamdi as an
"enemy combatant" has aroused controversy, the term is one that has been used by the Supreme Court many times.
See, e.g., Madsen v. Kinsella, 343 U.S. 341, 355 (1952); In re Yamashita, 327 U.S. 1, 7 (1946); Quinn, 317 U.S. at
31.
141
The government has contended that appointment of counsel for enemy combatants in the absence of charges would
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interfere with a third detention interest, that of gathering intelligence, by establishing an adversary relationship with
the captor from the outset. See Hamdi II, 296 F.3d at 282 (expressing concern that the June 11 order of the district
court "does not consider what effect petitioner's unmonitored access to counsel might have upon the government's
ongoing gathering of intelligence"). That issue, however, is not presented in this appeal.
Ii
We reject at the outset one other claim that Hamdi has advanced in abbreviated form. He asserts that our approval of
his continued detention means that the writ of habeas corpus has been unconstitutionally suspended. See U.S. Const.
art. I, � 9. We find this unconvincing; the fact that we have not ordered the relief Hamdi requests is hardly
equivalent to a suspension of the writ.
4ldvertisi.2 him
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