A decision of the US Supreme Court was handed down today in the case of Hamdi v Rumsfeld (03-6696). This case is extremely important because it addresses the issue of whether or not a US citizen can be held indefinitely without charges, a hearing, access to a lawyer, or a judicial review if the President declares him or her to be an "enemy combatant". There were four opinions written about this case amongst the nine Supreme Court Justices. I feel it is important to summarize the arguments found in these opinions so that we can better understand the thinking of the Administrative and Judicial branches of our government on this crucial matter.

Background: The petitioner, an American citizen, was turned over to US forces in Afghanistan by soldiers of the Northern Alliance as a prisoner of war. Despite being a US citizen, Mr. Hamdi was held without hearing or trial, without charges having been filed, and without access to an attorney. Lawyers on behalf of Hamdi's father argued that as an American citizen he is entitled to all the protections provided by the Constitution, the circumstances of his arrest notwithstanding. Administration lawyers, on the other hand, argued that since he was captured in a combat zone, and was declared an "enemy combatant" by the President, he can be held without regard to Constitutional protections until such time as the threat of terrorism has passed. The administration cites the congressional declaration that followed the events of 9/11/2001 authorizing the use of "...necessary and appropriate force..." as congressional authorization for this action. It is important to note that the Supreme Court does not address the factual aspects of this case. That is, they make no determination as to whether or not Mr. Hamdi was in fact an "enemy combatant". It doesn't matter whether or not he actually was a combatant, the issue at hand is whether or not he has any remedies to appeal the decision that he is such a combatant and can be held indefinitely without trial.

Justice O'Connor wrote the opinion of the plurality and was joined by Justices Renquist, Kennedy and Breyer: " We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, 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." This decision allows for the indefinite detention of an "enemy combatant" so long as Congress has authorized the military action and that his or her "enemy combatant" status has been established by a "neutral decisionmaker". Justice O'Connor also wrote that the petitioner "...unquestionably has the right to access to counsel in connection with the proceedings on remand" guaranteeing that a US citizen will have access to legal counsel despite the administration's claims that such Constitutional protections are not granted to "enemy combatants". Thus, the decision of the court is that Mr. Hamdi has the right to counsel, and to a hearing before a "neutral decisionmaker" on his status as an "enemy combatant" and that if his status as such a combatant is upheld by the "neutral decisionmaker" (which according to O'Connor, "...could be met by an appropriately authorized and properly constituted military tribunal"), he may be held indefinitely without charges or trial.

Justice Souter, who was joined by Justice Ginsburg, wrote: "The plurality rejects any such limit on the exercise of habeas jurisdiction and so far I agree with its opinion. The plurality does, however, accept the Government’s position that if Hamdi’s designation as an enemy combatant is correct, his detention (at least as to some period) is authorized by an Act of Congress as required by §4001(a), that is, by the Authorization for Use of Military Force, 115 Stat. 224 (hereinafter Force Resolution). Ante, at 9–14. Here, I disagree and respectfully dissent. The Government has failed to demonstrate that the Force Resolution authorizes the detention complained of here even on the facts the Government claims. If the Government raises nothing further than the record now shows, the Non-Detention Act entitles Hamdi to be released." Justice Souter, while agreeing that Mr. Hamdi is entitled to intervention by the Supreme Court, would take it one step further because he feels that the post 9/11 Congressional Authorization for Use of Military Force is not enough to allow a US citizen to be held without trial.

Justice Scalia, who was joined by Justice Stevens in dissenting with the majority, wrote: "If the situation demands it, the Executive can ask Congress to authorize suspension of the writ (of Habeas Corpus)—which can be made subject to whatever conditions Congress deems appropriate, including even the procedural novelties invented by the plurality today." Interestingly, Justice Scalia agrees with Justice Souter that in order for a US citizen to be held without trial, the Congress must suspend the right of Habeas Corpus. However, Justice Scalia along with Justice Stevens decided to vote against granting remedy to the petitioner, apparently because they don't like the procedures proscribed in the ruling by Justices O'Connor, Renquist, Kennedy and Breyer.

Justice Thomas dissented and wrote: "The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners’ habeas challenge should fail, and there is no reason to remand the case." Justice Thomas has believes that since the President is acting on Congressional Authority to wage war, he also has ultimate authority to hold prisoners, even US citizens, indeterminately, and without benefit of counsel or judicial review. Justice Thomas continued, "Undeniably, Hamdi has been deprived of a serious interest, one actually protected by the Due Process Clause. Against this, however, is the Government’s overriding interest in protecting the Nation."

Clearly, eight of the nine Justices agree that some judicial oversight is required when detaining US Citizens, even in times of war. Four of the Justices believe that indefinite detention is acceptable with this judicial review, while another four believe that even judicial review is not enough to detain a US Citizen without trial (two who voted for the petitioner's writ, two who voted against it). Finally, one Justice believes that the President, based on the Congressional Authorization for Use of Military Force, has the authority to detain US Citizens indefinitely, and without judicial review.

I wrote the following in December of 2000 and it seems quite appropriate to publish it again in this venue:


The recent interesting, although not really surprising, decision by the US Supreme Court reminded me that I have promised a number of you information on the Supreme Court's, and in particular, Justice Antonin Scalia's opinions on innocence. For those of you who were not privy to these conversations, I apologize and hope that this information sheds some light on the way our democracy is being run.

The case in question is Leonel Torres Herrera v. the Texas Department of Criminal Justice, Institutional Division (506, U.S. 390, 427-428 (1993)). Herrera was accused and convicted of murdering a police officer in Texas. Following his conviction, evidence of his innocence, and police collusion in covering up exculpatory evidence, was allegedly uncovered by his attorneys. The case was brought to the US Supreme Court who refused to rule on the issue of whether or not the fact of the defendant's innocence should preclude his execution. Mr. Herrera was executed 4 months later. Please note that it is not my contention that Mr. Herrera should have been granted a new trial since I have not seen the evidence that shows his innocence. My objection is to Justice Scalia's opinion that innocence poses no constitutional impediment to upholding a conviction.

In his concurring opinion, Justice Scalia opined that "There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding, in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction." Justice Scalia goes on to state that "...if the system "shocks" the dissenters' consciences...perhaps they should doubt the calibration of their consciences..." and that if the defendant were truly innocent, he should depend on "...an executive pardon.".

Apparently I need my conscience re-calibrated! Call me foolish, but I happen to believe that our Constitution does indeed intend that innocent people should not be executed, or even incarcerated! In fact, in their concurring opinion, Justices O'Connor and Kennedy state as much as a matter of stipulation. The case syllabus may be found on the website of The Cornell University Law Library along with the full text of Justice Scalia's opinion (joined by Justice Thomas, no surprise there) and much more information on the case. I certainly hope that none of us are ever accused of a crime, since apparently the fact of one's innocence no longer matters in this society.