November 13, 2014

Federal Bar Council News / Written by: Bennette Deacy Kramer

Articles in the June 2003 and February 2004 issues of the Federal Bar Council News discussed Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003), and Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003), which concern the right of the President of the United States to authorize the U.S. military to detain U.S. citizens indefinitely and the amount of process due in connection with habeas corpus petitions brought by U.S. citizen detainees labeled "enemy combatants" following September 11, 2001. On June 28, 2004, the Supreme Court issued decisions reversing both circuit court decisions. This article briefly discusses the Supreme Court decisions; the facts of both cases are set forth in the earlier articles.

In Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), the Court vacated and remanded the Fourth Circuit decision holding that "due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." The Court also held that the detention by the government was authorized by Congress.

In Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004), the Court held that the Southern District of New York did not have jurisdiction over Padilla's habeas petition because the proper respondent was not Secretary Rumsfeld, but Commander Melanie A. Marr, Commander of the Consolidated Naval Brig in Charleston, South Carolina, where Padilla was detained. Thus, the Court did not reach the merits to decide whether the President possessed authority to detain Padilla militarily.


In Hamdi, Justice O'Connor delivered the opinion of the Court in a plurality decision, joined by Chief Justice Rehnquist, and Justices Kennedy and Breyer, setting forth the Court's holding that the detention was authorized, but only after a detainee has been afforded due process. Justice Souter filed an opinion, joined by Justice Ginsburg, concurring in the holding that Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant, but concluding that Hamdi's detention was unauthorized. Justice Scalia filed a dissenting opinion in which Justice Stevens joined in which he concluded that the only course would be to prosecute Hamdi under the criminal justice system for treason or some other crime, with all the requisite due process. Finally, Justice Thomas filed a dissenting opinion in which he concluded that the Executive had the power to detain Hamdi and no additional process was necessary.

First, Justice O'Connor concluded that Congress had explicitly authorized the detention of individuals who qualified as "enemy combatants" in the Authorization for Use of Military Force (the "AUMF") passed by Congress a week after September 11. The AUMF 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Justice O'Connor found that such a detention could extend for the duration of the conflict in which the detainees were captured in order "to prevent captured individuals from returning to the field of battle and taking up arms once again." Nor, the plurality concluded, was the President barred from holding a U.S. citizen as an enemy combatant. However, Justice O'Connor rejected any notion that the detention would last the rest of Hamdi's life, stating that such a detention could only last as long as active hostilities. Nor could the government hold Hamdi indefinitely for the purposes of interrogation:

The United States may detain, for the duration of these hostilities [in Afghanistan], individuals legitimately determined to be Taliban combatants who engaged in an armed conflict against the United States. If the record established that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.

Next, and most significantly, Justice O'Connor turned to the question of what process is constitutionally due to a citizen, such as Hamdi, who disputes his enemy- combatant status. The test established in Matthews v. Eldridge, 424 U.S. 319 (1976), states that the process due is determined by weighing the private or individual interest against the government's asserted interest, and the burdens the government would face in providing greater process. Concerning the risk of erroneous deprivation of the liberty interest in being free from physical detention by the government, Justice O'Connor stated: We reaffirm today the fundamental nature of a citizen's right to be free from the involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interest against the curtailment of liberty that such confinement entails.

The government's interest is "in ensuring that those who have in fact fought with the enemy during a war do not return to battle with the United States." Justice O'Connor emphasized that the fundamental values of the United States were tested when the country was engaged in ongoing combat, and that this was a time to be most vigilant in seeking to protect those values. In that light, the Court held: that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification and a fair opportunity to rebut the Government's factual assertion before a neutral decisionmaker.

However, in establishing the due process requirements in this situation, Justice O'Connor acknowledged the exigent circumstances, stating that, "while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully the Government's case and to be heard by an impartial adjudicator."

Under the Constitution and in deference to the exigent circumstances, Justice O'Connor suggested that procedures for a challenge to enemy combatant status would allow: (1) hearsay evidence; (2) a presumption in favor of the government's evidence, as long as it was rebuttable; and (3) an opportunity for the habeas petitioner to rebut the government's evidence.

Finally, Justice O'Connor, rejecting the government's contention that a state of war was a "blank check for the President when it comes to the rights of the Nation's citizens," emphasized that the courts had a continuing role, even in time of war, and that under the Constitution, all three branches played an equal role in protecting threatened individual liberties. Only when Congress suspends the writ of habeas corpus would the role of the Judicial Branch be restricted, and that has not happened here.

Justice O'Connor pointed out that Hamdi had received no process, and has the right to rebut any evidence the government submits. In closing, Justice O'Connor stated, "He unquestionably has the right to access to counsel in connection with the proceedings on remand."


In Padilla, Chief Justice Rehnquist delivered the opinion of the Court in a decision, joined by Justices O'Connor, Scalia, Kennedy and Thomas, setting forth the Court's holding that the Southern District of New York did not have jurisdiction over Padilla's habeas petition, and that the habeas action must be brought against the immediate custodian in the district which includes the place where the custodian is located. Justice Kennedy filed a concurring opinion, joined by Justice O'Connor, emphasizing that the rules the Court set forth were not jurisdictional and could be waived by the government. Justice Stevens filed a dissenting opinion in which Justices Souter, Ginsburg and Breyer joined, arguing under these circumstances an exception should be established to the immediate custodian rule for reasons of fairness and efficiency.

The Court relied on the language of 28 U.S.C. § 2242, requiring that a petition for habeas corpus "shall be directed to the person having custody of the person detained" in holding that only the immediate custodian of a person confined is the proper respondent to the detainee's habeas petition. Thus, only Commander Marr, the person having immediate custody of Padilla in South Carolina, was the proper respondent to Padilla's habeas petition. Following from that conclusion, relying on its reading of 28 U.S.C. § 2241(a), the court determined that the Southern District of New York did not have jurisdiction over Commander Marr, because at the time his petition was filed, Padilla had been moved to South Carolina. Thus, the Southern District was no longer the district of confinement. The Court established the rule that: Whenever a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement.


On September 22, lawyers for the Justice Department and Hamdi announced that Hamdi would be freed and allowed to return to Saudi Arabia. The agreement requires Hamdi to renounce his American citizenship, establishes strict travel restrictions, barring him from leaving Saudi Arabia for a time, and requires him to report possible terrorist activity. Hamdi's release was seen as an acknowledgment by the government that it could not meet the burden of proof established by the Supreme Court to show justification for maintaining Hamdi in custody.

[This article is reprinted with permission from the October 2004 issue of the Federal Bar Council News. Copyright © 2004 Federal Bar Council. All rights reserved. Further duplication without permission is prohibited.]