The rights of 'enemy combatants'.

The question in Hamdi v. Rumsfeld is whether a U.S. citizen, captured by Northern Alliance forces in Afghanistan and declared an "enemy combatant" by out government, can be held indefinitely, incommunicado, and without the right to habeas corpus. (1)

After Yaser Hamdi's capture, he was transferred to a Navy brig in Norfolk, Virginia, where he remains in solitary confinement without access to counsel. His father, as next friend, filed a habeas corpus petition on his behalf. The government moved to dismiss the petition, filing a statement by a Defense Department official named Michael Mobbs that Hamdi had "traveled to Afghanistan," become "affiliated with a Taliban military unit and received weapons training," and was captured in a combat zone with an AK-47 rifle. (2) The government therefore considered him an enemy combatant who could be held indefinitely as neither a prisoner of war (POW) nor an ordinary arrestee.

The district court, after concluding that the Mobbs affidavit "falls far short" of supporting Hamdi's detention, ordered the govermnent to turn over essentially all of its information concerning Hamdi and the circumstances of his capture. (3) The Fourth Circuit reversed this order and dismissed the habeas corpus petition. (4) Later, the court denied a request for a rehearing en banc, and the U.S. Supreme Court has granted certiorari.

The Fourth Circuit began its opinion with a disquisition on the relative powers of the president and the judiciary in wartime, noting that the president has the power to "detain those captured in armed struggle" and to "deport or detain alien enemies during the duration of hostilities." (5) Furthermore, "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, and military affairs." (6)

With this deference in mind, the court addressed the two main arguments raised in Hamdi's petition. First, that he had been detained in violation of 18 U.S.C. [section] 4001, and second, that he was entitled to be treated as a prisoner of war under Geneva Convention rules. (7)

Section 4001, provides that "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress."

The Fourth Circuit held that Congress had, "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.'" (8) Since "capturing and detaining enemy combatants is an inherent part of warfare," it followed that the detention of Hamdi was authorized by Congress and did not violate [section] 4001. (9)

The Second Circuit took the opposite view on this point in Padilla v. Rumsfeld, which concerned a U.S. citizen arrested on American soil. (10) (Even the dissenting judge agreed that Juan Padilla was entitled to a habeas corpus hearing, with counsel, to contest his enemy combatant status. (11)) And U.S. Supreme Court decisions suggest that even if Congress had clearly indicated that [section] 4001 did not apply to enemy combatants in Afghanistan, it lacks the authority to abrogate the Fourth Amendment rights of American citizens not to be arrested without probable cause or held without charge. (12)

Geneva Convention

As for the Geneva Convention, the Fourth Circuit wrote it off as "not self-executing." (13) That is, it contains "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." (14) For example, "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." (15) The court noted that the Sixth and District of Columbia circuits shared this view, (16) although not everyone does. (17)

The Fourth Circuit further concluded that the district court's order would interfere with the conduct of the war and could not be sustained. (18) Finally, the court held that the case should not be remanded but rather that the petition should be dismissed.

This decision was based on the district court's conclusions, themselves based on the Mobbs affidavit (the only evidence presented concerning Hamdi's status) that Hamdi had gone to Afghanistan "to be with the Taliban" and had a weapon when he was captured. For these reasons and "because Hamdi was indisputably seized in an active combat zone abroad," the Fourth Circuit concluded that "the factual averments in the [Mobbs] affidavit, if accurate, are sufficient to confirm that Hamdi's detention conforms with a legitimate exercise of the war powers." (19)

The Fourth Circuit further concluded that Hamdi was not entitled to be heard in a federal court to rebut the factual assertions in the Mobbs declaration. "[N]o evidentiary hearing on out 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." (20)

There was no dissent from the panel decision, but two judges did dissent from the denial of rehearing en banc. Only one, Judge Diana Gribbon Motz, fully disagreed with the panel decision.

She began by noting that "the panel's decision marks the first time in our history that a federal court has approved the elimination of protections afforded a citizen by the Constitution solely on the basis of the executive's designation of that citizen as an enemy combatant without testing the accuracy of the designation." (21) In particular, she noted that in the Supreme Court's Quirin case, (22) involving Nazi saboteurs who landed on Long Island, New York, "the citizen, after consultation with counsel, stipulated to the facts supporting the enemy combatant designation." (23)

In fact, none of the other Supreme Court cases cited by the panel support its holding in Hamdi. Rather, as Johnson v. Eisentrager illustrates, the Court has specifically held that a resident alien could "challenge the executive's designation of him as an enemy." (24) Likewise, in Luedecke v. Watkins, the Court held that "courts will entertain his plea for freedom from executive custody only to ascertain the existence of a state of war and whether he is an alien enemy." (25)

Motz may have given too little credit to the majority by declaring that the panel pointed to "only a single, justification for its unprecedented decision" that "Hamdi's capture in a 'zone of active combat' was assertedly 'undisputed.'" (26)

As noted above, the panel at one point also cited the district court's conclusion, based on the Mobbs affidavit, that Hamdi had joined the Taliban and was armed when captured. Thus, Motz's claim that a journalist or humanitarian worker who was apprehended in a combat zone "could be imprisoned indefinitely ... if the executive designated that person an enemy combatant" (27) does not necessarily reflect the panel's conclusion. In other parts of the panel opinion, how ever, (28) and in Judge J. Harvie Wilkinson's concurrence in the denial of rehearing en banc, the fact that Hamdi was "captured in a zone of armed combat" seems to be dispositive by itself. (29)

In any case, all the facts on which the panel relied come solely from the unchallenged hearsay declaration of all unseen government official and are undisputed because Hamdi has not been given an opportunity to dispute them. The panel's position clearly is that the government need only adduce "some evidence" and that the Mobbs affidavit satisfies that standard (30)--despite the fact that Mobbs himself had no "personal knowledge of the facts surrounding Hamdi's capture" but based his affidavit on his "review of undisclosed and unenumerated 'relevant records and reports.'" (31) Thus, the Fourth Circuit's conclusion that the Mobbs affidavit is sufficient "if accurate" is meaningless because no effort was made to test its accuracy.

Motz concluded, however, that "the total inadequacy of the executive's proffer and the panel's review here does not provide license for a searching judicial inquiry into the factual circumstances of every detainee's capture or require compliance with a production order as demanding as that called for by the district court." (32) Instead, she would give Hamdi a hearing, but put the burden on him to show that he was not an enemy combatant. (33)

Wilkinson responded to Motz's suggestion by asking: "What further steps should the judiciary then be prepared to take? What kind of hearings? What role for counsel? What kind of showings? What sort of witnesses?" (34)

But in light of clear statements in Johnson and Luedecke requiring judicial determination of a detainee's status as an enemy combatant, these concerns should be the government's problem, not Hamdi's. It does not seem unduly burdensome to require the government (not the detainee, as Motz suggests) to establish that citizens whom it proposes to detain indefinitely as unlawful combatants are in fact unlawful combatants and not relief workers, journalists, or lawful enemy soldiers. Moreover, a showing as to why the extraordinary measure of indefinite detention without charge is necessary should also be required.

Wartime rationale

The government's position is, essentially, "In war, we can do what we want." The government makes no argument about why it needs to detain American citizens indefinitely, without even a hearing as to whether they are, in fact, enemy combatants. Under the government's rationale, there is nothing to stop it from executing Hamdi or torturing him, since he is outside even the minimal protections of the Geneva Convention.

In fact, Hamdi's status as all American citizen seems to have worked against him here, since that is presumably why he has been designated an enemy combatant who has no rights, rather than a POW, who would have the right, to have a competent tribunal determine his status, to be treated humanely, and to receive other protections. (35) Thus, Wilkinson's declaration that it is irrelevant whether Hamdi is a POW or an unlawful combatant is not consistent with the Geneva Convention.

The government's position in this case and in the pending Padilla case, which the Court recently agreed to hear--that it can arrest American citizens at home and abroad and hold them indefinitely without charge, based on the untested claim of unseen government officials that they are enemy combatants--violates the most basic tenets of our system of government.

Yaser Hamdi is at least entitled to test the enemy combatant claim in court. Juan Padilla, who was not arrested in a combat zone and whose situation does not involve judicial interference with combat operations, should either be charged with a crime or released.

Notes

(1.) 316 F.3d 450 (4th Cir. 2003), cert. granted, 124 S. Ct. 981 (2004).

(2.) 316 F.3d 450, 461.

(3.) Id. at 462.

(4.) Id. at 476.

(5.) Id. at 463.

(6.) Id. (quoting Hamdi v. Rumsfeld, 296 F.3d 278, 281 (4th Cir. 2002)).

(7.) 316 F. 3d 450, 467.

(8.) Id. (citation omitted).

(9.) Id.

(10.) 352 F.3d 695, 723 (2d Cir. 2003), cert. granted, No. 03-1027, 2004 WL 95802 (U.S. Feb. 20, 2004).

(11.) Id. at 732-33 (Wesley, J. dissenting).

(12.) See Reid v. Covert, 354 U.S. 1, 5 (1957) (plurality op.) (rejecting the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights) cited with approval in United States v. Verdugo-Urquidez, 494 U.S. 259, 270 (1990).

(13.) Hamdi, 316 F.3d 450, 468.

(14.) Id.

(15.) Id. (quoting the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, art. 11, 6 U.S.T. 3316 [hereinafter the Geneva Convention], available at 1959 WL 54809).

(16.) Id. at 468-69.

(17.) For an opposing view, see Brief of Amici Curiae Former Prisoners of War et al., in support of Hamdi's Petition for Certiorari, 2003 WL 22907290 at 9 (No. 03-6696 (filed Dec. 3, 2003)).

(18.) Hamdi, 316 F.3d 450, 470.

(19.) Id. at 473.

(20.) Id.

(21.) Hamdi v. Rumsfed, 337 F.3d 335, 369 (4th Cir. 2003) (Motz, J., dissenting).

(22.) Ex parte Quirin, 317 U.S. 1 (1942).

(23.) Hamdi, 337 F.3d 335, 370.

(24.) 339 U.S. 763, 775 (1950).

(25.) Id.; see also Luedecke v. Watkins, 335 U.S. 160, 171 n.17 (1948).

(26.) Hamdi, 337 F.3d 335, 371.

(27.) Id. at 372.

(28.) Hamdi, 316 F.3d 450, 470.

(29.) Hamdi, 337 F.3d 335, 341.

(30.) Hamdi, 316 F.3d 450, 473. The majority also pointed to the "next friend's" statement that Hamdi resided in Afghanistan when he was seized, to support its "combat zone" conclusion, but, as Motz pointed out, such next-friend admissions are not binding. Hamdi, 337 F.3d 335, 371 n.1 (citing White v. Miller, 158 U.S. 128, 146 (1895)).

(31.) Hamdi. 337 F.3d 335, 372.

(32.) Id. at 374.

(33.) Id.

(34.) Id. at 343.

(35.) The Geneva Convention, supra note 15. art. 5.

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].