Hamdi vs. Rumsfeld: Court Issues a
“We’ll Look the Other Way” Decision

Leaves Obligation to Act as Check on Administrative Power Unfullfilled
By LCHR Staff Attorney Ken Hurwitz

Read the LCHR Media Release on the Hamdi Decision

In Hamdi vs. Rumsfeld, the Fourth Circuit Court of Appeals has given the administration sweeping discretion to proceed with its policy of indefinite detentions without charge or trial of US citizens. On January 8, 2003, the Fourth Circuit issued its opinion in the habeas corpus proceeding brought on behalf of American citizen Yasser Hamdi, who has been held incommunicado in a Virginia military brig since April 2002.

The Fourth Circuit opinion overturns Judge Robert Doumar’s District Court ruling ordering the government to provide for court review the factual basis underlying the government’s determination that Hamdi is an “enemy combatant.” With this decision, the Fourth Circuit has effectively ruled that a US citizen’s mere physical presence in a foreign battle zone where US forces are engaged is enough to strip him of any meaningful access to judicial review of the lawfulness of his detention.

Hamdi was turned over to US forces in Afghanistan last year after surrendering to Northern Alliance forces under warlord and alleged war criminal Abdul Rashid Dostum.¹. Contrary to international and US law, Hamdi has never had the opportunity to try to persuade an impartial fact-finder in an ordered proceeding that the circumstances of his capture may not accord with the government’s labeling of him as an “unlawful enemy combatant.” Though the government asserts that Hamdi has confirmed his belligerent activities under interrogation, Hamdi has not been allowed to provide his own story directly in any legal forum. Furthermore, the lawyer representing Hamdi in this proceeding has never been allowed to speak with him.

In its opinion, the Fourth Circuit acknowledges the “Bill of Rights’ historic guarantees” and the recognition by “our forebears…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” (internal quotes omitted).

But the court rejects the need for it to review executive action. Indeed, the court goes even further than the administration’s own lawyers, who had conceded that in considering a habeas corpus petition on behalf of a citizen, a court was probably entitled to require the government to provide “some evidence” to support its conclusion that a detained citizen was an “enemy combatant.”

Under the Hamdi ruling the government only has to show that the detainee was in the zone of combat. Logically, even if Hamdi was detained near the battlefield, that fact alone simply doesn’t address whether Hamdi was a belligerent at all, let alone whether he was an enemy belligerent, or whether he was an “unlawful” enemy belligerent.

The court stresses its rejection of 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.” It then asserts, however, that Hamdi is not just any American citizen, but rather “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.”

The court’s analysis proceeds from Congress’ September 18, 2024 resolution authorizing the President to use all necessary force against those he determines planned, authorized, committed or aided the September 11 attacks, or who harbored such organizations or persons. On this basis, the court finds the President has properly exercised his constitutional war powers, as Commander in Chief, and that “these powers include the authority to detain those captured in armed struggle.”

Under the Geneva Convention enemy combatants may be detained until the “cessation of active hostilities.” But persons detained as combatants have a number of important rights, including the right to seek to demonstrate their proper status in an individualized proceeding before a “competent tribunal.”

This right is not a mere formality. There may be numerous possible explanations for why someone picked up in Hamdi’s circumstances might have been improperly categorized as an enemy combatant. Plagued by decades of war and devastation, Afghanistan is one gigantic battle zone, slightly smaller than Texas. While hundreds of thousands of men have fought over the years for numerous factions, millions more are refugees or noncombatant victims of the violence. These people have been situated “in a foreign theater of war during active hostilities.”

The administration’s decision to deny “prisoner of war” status to all alleged Taliban and al Qaeda detainees - justified, in large part, according to the administration, by the war crimes and other atrocities committed by many in those groups - forecloses any opportunity for those who acknowledge being combatants to try to demonstrate that they individually have not violated the laws of war. By contrast, during World War II, German soldiers were afforded all of the rights to which they were entitled under international humanitarian law.

In making its collective judgments about those detained in the Afghan war zone, the administration reverses decades of US military practice which granted those detained on a battlefield hearings by “competent tribunals,” as required by article 5 of the Geneva Convention, to determine whether detainees were “lawful” prisoners of war, “unlawful” combatants who have violated the laws of war, or civilian non-combatants.

In these article 5 “competent tribunals” well-established US military practice has until now customarily provided for a range of fundamental due process protections.²

In overturning the District Court decision in Hamdi, the Fourth Circuit points to what it characterizes as the “signal flaw” in the District Court’s reasoning: “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 [of the Constitution].” The Fourth Circuit acknowledges that, “[a]s 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, the court insists, “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.”

This argument is disingenuous. In fact, Hamdi (and the other security detainees in the US, in Guantanamo and elsewhere) are being treated as criminals - “unlawful combatants” - and not as “lawful” prisoners of war. They have, in effect, been detained indefinitely without trial - the assumption being that they have violated the laws of war.

The Fourth Circuit’s opinion relies in part on Ex Parte Quirin, in which 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.’” But in citing the Quirin decision, the Circuit Court omits the one word at the core of the issues before it. What the Quirin court affirmed was not the mere “detention” of the Nazi saboteurs, but their “detention and trial.” Though the 1949 Geneva Conventions would later substantially change the rules regarding military trials for captured enemy forces, the saboteurs in Quirin were given a full military trial under then-applicable law. By avoiding mention of this fact, the Hamdi court seriously distorts the significance of the government’s main legal authority for its actions.

In describing the facts of Quirin, the Circuit Court presents the FBI’s version of the arrests of the saboteurs, as crack police work: “All of [the saboteurs] were apprehended by FBI agents, who subsequently learned of their mission to destroy war industries and facilities in the United States.” Yet in the Quirin case there was no factual dispute about who the saboteurs were, what they had done, and what they had been planning, all of which were conceded. By contrast, in the Hamdi case, the right to a proceeding for the reliable determination of the facts is precisely the issue.

The Fourth Circuit’s ruling appears to hold that any US citizen (and, of course, any other individual regardless of citizenship) who is “captured in a zone of active combat operations in a foreign country” loses any standing to challenge the factual determinations underlying his seizure and purportedly justifying the continuing detention. While the court expresses support for the principle that “[t]he detention of United States citizens must be subject to judicial review,” it’s view of the scope of that review is so constricted as to be practically meaningless.

The court does limit its holding in one respect. It states that:

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.

While the Court stops short of addressing questions as to the definition of the zone of combat operations, or the duration of the conflict, it makes clear how those questions will be decided if presented to it. The court states: “The executive branch is…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.”

In the war against terrorism, President Bush has stated that the enemy is global, the entire world is the battlefield, and the war will continue until “international terrorism” has been defeated. Using this frame of reference, if the Hamdi decision stands, there will be little room for the courts to review the legitimacy of detentions made pursuant to this universal and permanent state of war. When the executive chooses to call someone an enemy combatant the courts will have no choice but to be “satisfied that the Constitution does not entitle him to a searching review of the factual determinations underlying his seizure there.”

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