The Supreme Court and Detainees in the War on Terrorism: Summary and Analysis of Recent Decisions
CRS Report for Congress
The Supreme Court 2003 Term: Summary and
Analysis of Opinions Related to Detainees in
the War on Terrorism
Jennifer K. Elsea
Legislative Attorney
American Law Division
Summary
The Supreme Court’s decisions in Rasul, Hamdi, and Padilla affirm the President’s
power to detain enemy combatants as part of the necessary force authorized by Congress
after the terrorist attacks of September 11, 2001, but approved a more limited scope of
that authority than the President had asserted, and clarified that detainees have due
process rights under the Constitution. For more, see CRS Report RL31367, Treatment
of ‘Battlefield Detainees’ in the War on Terrorism, and CRS Report RL31724,
Detention of American Citizens as Enemy Combatants.
At the close of its 2003-2004 term, the Supreme Court took up the war against
terrorism, issuing three decisions related to the detention of “enemy combatants.” In
Rasul v. Bush, the Court held that aliens detained at the U.S. Naval Station at
Guantanamo Bay, Cuba, have access to federal courts to challenge their detention. In
Hamdi v. Rumsfeld, a plurality held that a U.S. citizen allegedly captured during combat
in Afghanistan and incarcerated at a Navy brig in South Carolina is entitled to notice and
an opportunity to be heard by a neutral decision-maker regarding the government’s
reasons for detaining him. The Court in Rumsfeld v. Padilla overturned a lower court’s
grant of habeas corpus to another U.S. citizen in military custody in South Carolina on
jurisdictional grounds. The decisions affirm the President’s powers to detain “enemy
combatants” as part of the necessary force authorized by Congress after the terrorist
attacks of September 11, 2001. However the Court appears to have limited the scope of
individuals who may be treated as enemy combatants pursuant to that authority, and
clarified that such detainees have some due process rights under the U.S. Constitution.
The three decisions will likely have little immediate impact on the detainees; none
was ordered set free. The definition of the term “enemy combatant” and the scope of legal
process due to persons designated as such remain for lower courts to resolve. However,
the detainees will have a right to an attorney and an opportunity to challenge their
detention in federal court. The Defense Department has announced plans to create
“Combatant Status Review Tribunals” to implement the decision in Guantanamo
[ http://www.dod.mil/transcripts/2004/tr20040707-0981.html] .
Congressional Research Service ˜ The Library of Congress
The Bush Administration had argued that the President has the inherent power as
Commander-in-Chief to seize and detain persons as enemy combatants for the purpose
of keeping them off the battlefield and in order to interrogate them for intelligence
purposes, and that aliens held abroad have no access to federal courts even to challenge
their status. The Administration conceded that U.S. citizens have the right to petition for
habeas corpus, but argued that the role of the courts was merely to ascertain whether the
government had provided “some evidence” to support the designation, and not to provide
the detainee an opportunity to rebut the evidence.
Rasul v. Bush, 72 U.S.L.W. 4596 (2004). This case involved two Australians
and twelve Kuwaitis (a petition on behalf of two U.K. citizens was mooted by their
release) who were captured during hostilities in Afghanistan and are being held in military
custody at the Guantanamo Bay Naval Base, Cuba. The Administration argued, and the
court below agreed, that under the 1950 Supreme Court case Johnson v. Eisentrager (339
U.S. 763), “‘the privilege of litigation’ does not extend to aliens in military custody who
have no presence in ‘any territory over which the United States is sovereign.’” The
government argued that the United States occupies the base at Guantanamo Bay under a
treaty and lease that recognize Cuba’s “ultimate sovereignty” over the territory, and that
therefore Cuba rather than the United States exercises sovereignty there, even though the
treaty gives “complete jurisdiction and control” over the leased area for so long as it
remains in U.S. hands. Noting that the Writ of Habeas Corpus (“Writ”) has evolved as
the primary means to challenge executive detentions, especially those without trial, the
Court held that jurisdiction over habeas petitions does not turn on sovereignty over the
territory where detainees are held. Even if the habeas statute were presumed not to extend
extraterritorially, as the government urged, the Court found that the “complete jurisdiction
and control” the United States exercises under its lease with Cuba would suffice to bring
the detainees within the territorial and historical scope of the Writ. Without expressly
overruling Eisentrager, the Court distinguished the cases at issue to find Eisentrager
inapplicable. Eisentrager listed six factors that precluded those petitioners from seeking
habeas relief: each petitioner “(a) is an enemy alien; (b) has never been or resided in the
United States; (c) was captured outside of our territory and there held in military custody
as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside
the United States; (e) for offenses against laws of war committed outside the United
States; (f) and is at all times imprisoned outside the United States.” The present Court
noted that the Guantanamo petitioners, in contrast “are not nationals of countries at war
with the United States, and they deny that they have engaged in or plotted acts of
aggression against the United States; they have never been afforded access to any tribunal,
much less charged with and convicted of wrongdoing; and for more than two years they
have been imprisoned in territory over which the United States exercises exclusive
jurisdiction and control.”
The majority stressed that the Eisentrager opinion was concerned with the
constitutional right to habeas corpus rather than the statutory right. The Rasul Court
found authority for federal court jurisdiction in 28 U.S.C. § 2241, which grants courts the
authority to hear applications for habeas corpus “within their respective jurisdictions,” by
any person who claims to be held “in custody in violation of the Constitution or laws or
treaties of the United States.” When Eisentrager was decided in 1950, the Rasul majority
found, the “respective jurisdictions” of federal district courts was understood to extend
no farther than the geographical boundaries of the districts (Ahrens v. Clark, 335 U.S. 188
(1948)). According to the Court, that understanding was altered by a line of cases
recognized in Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973) as
overruling the statutory interpretation that had established the “inflexible jurisdictional
rule” upon which Eisentrager was implicitly based. The Court also declined to read the
statute to vary its geographical scope according to the citizenship of the detainee. Justice
Kennedy, in a concurring opinion, would have found jurisdiction over the Guantanamo
detainees based on the facts that Guantanamo is effectively a U.S. territory and is “far
removed from any hostilities,” and that the detainees are “being held indefinitely without
the benefit of any legal proceeding to determine their status.”
Justice Scalia, with Chief Justice Rehnquist and Justice Thomas, dissented, arguing
that the habeas statute on its face requires a federal district court with territorial
jurisdiction over the detainee. The dissenters would read Braden as distinguishing Ahrens
rather than overruling it, and take issue with the majority’s discussion of the special status
of Guantanamo Bay as inconsistent with its analysis that a court may entertain habeas
petitions as long as jurisdiction is proper over the official with custody of a detainee, even
if that detainee is located outside of the court’s jurisdiction. Under this view, whether
the United States exercises “jurisdiction and control” over the territory where detainees
are held is irrelevant, and the door to the courts of any U.S. federal district would also be
open to detainees held anywhere outside the United States. The dissenters objected to the
Court’s “irresponsible overturning of settled law” on which military commanders had
relied in selecting Guantanamo as the site for the detention facilities. The Court’s opinion
leaves many questions unanswered. It is unclear which of the Eisentrager (or Rasul)
factors would control under a different set of facts. For example, if a detainee at
Guantanamo is convicted by military commission, would a petition for habeas corpus on
his behalf then be foreclosed? The opinion does not address whether persons detained by
the U.S. military abroad in locations where the United States does not exercise full
jurisdiction and control would have access to U.S. courts. The Court did not decide the
merits of the petitions, although in a footnote the majority opined that “Petitioners’
allegations — that, although they have engaged neither in combat nor in acts of terrorism
against the United States, they have been held in Executive detention for more than two
years in territory subject to the long-term, exclusive jurisdiction and control of the United
States, without access to counsel and without being charged with any wrongdoing —
unquestionably describe ‘custody in violation of the Constitution or laws or treaties of the
United States.’” The opinion leaves to lower courts such issues as whether the detentions
are authorized by Congress, who may be detained and what evidence might be adduced
to determine whether a person is an enemy combatant, or whether the Geneva
Conventions afford the detainees any protections. However, the Hamdi decision may
provide some guidance for those courts.
Hamdi v. Rumsfeld, 72 U.S.L.W. 4607 (2004). Yaser Esam Hamdi was seized
by members of the Northern Alliance in Afghanistan and turned over to the United States
military. The government transferred him along with other detainees captured in
Afghanistan to the United States Naval Base in Guantanamo Bay. Later, upon learning
that Hamdi is a U.S. citizen, authorities transferred him to a naval brig in Norfolk,
Virginia, and then to a brig in Charleston, South Carolina. Hamdi’s father filed a petition
for habeas corpus on his behalf. The government argued that the President has the
constitutional and statutory authority to detain Hamdi as an “enemy combatant” without
recognizing the constitutional rights available to criminal defendants. Hamdi’s attorney
argued that his detention was unlawful as a violation of 18 U.S.C. § 4001(a), which
prohibits the detention of U.S. citizens absent an act of Congress, and that the
Constitution entitles him to due process rights to challenge his detention. The Fourth
Circuit dismissed the petition on appeal, finding that the Congress had authorized the
detention, that a declaration prepared by a Defense Department official was sufficient to
justify Hamdi’s continued detention, and that Hamdi did not have a right to meet with
counsel or present evidence to rebut the government’s assertions. A majority of Supreme
Court Justices agreed to vacate the dismissal and remand the petition so that Hamdi could
have an opportunity to present evidence on his behalf. However, the Justices could not
reach a consensus for the rationale.
Justice O’Connor, joined by the Chief Justice as well as Justices Kennedy and Breyer
wrote the opinion for the Court. This plurality opinion found that Congress’
Authorization for Use of Military Force (“the AUMF”), 115 Stat. 224 (2001), “clearly and
unmistakably” authorizes the detention of captured persons who were “part of or
supporting forces hostile to the United States or coalition partners” and “engaged in an
armed conflict against the United States,” as a necessary incident to the military use of
force. Having found the AUMF satisfies the requirement under 18 U.S.C. § 4001(a) for
an “act of Congress” authorizing detention, the plurality did not address whether the
President has the inherent authority to detain “enemy combatants” without Congress’
authorization. The opinion also assumed, without deciding, that 18 U.S.C. § 4001(a)
applies to detention under military as well as civilian authority.
The question of congressional authorization did not end the inquiry, however, as the
plurality found that even wartime detentions authorized by Congress raise due process
questions. The plurality took it as given that, absent a suspension of the Writ of Habeas
Corpus, any individual detained within the United States has the right to challenge his or
her detention. Noting that the habeas statute, 28 U.S.C. §§ 2241 et seq., “makes clear
both that Congress envisioned that habeas petitioners would have some opportunity to
present and rebut facts and that courts in cases like this retain some ability to vary the
ways in which they do so as mandated by due process,” they rejected the government’s
contention that due process under these circumstances is met if the government shows
“some evidence” to support detention, or that a more searching review would
unconstitutionally impede the President’s war powers. Instead, the plurality invoked the
balancing test of Mathews v. Eldridge, 424 U.S. 319 (1976), which holds that “the process
due in any given instance is determined by weighing ‘the private interest that will be
affected by the official action’ against the Government’s asserted interest. . .” The
plurality noted that “substantial interests lie on both sides of the scale,” but that the
circumstance of war does not tip the scale irretrievably in favor of the government. The
plurality also agreed “that indefinite detention for the purpose of interrogation is not
authorized,” and presumably could not serve as a governmental interest under Mathews.
The plurality determined that a citizen detained as an enemy combatant must receive
notice of the factual basis for his classification and a fair opportunity to rebut the
government’s factual assertions before a neutral decision-maker, including the right to
counsel. They explained, however, that the exigencies of the circumstances may allow
for a tailoring of enemy combatant proceedings “to alleviate their uncommon potential
to burden the Executive at a time of ongoing military conflict,” possibly allowing hearsay
evidence and “a presumption in favor of the Government’s evidence,” as long as a fair
opportunity to rebut such evidence is provided. They concluded that
. . . once the Government puts forth credible evidence that the habeas petitioner meets
the enemy-combatant criteria, the onus could shift to the petitioner to rebut that
evidence with more persuasive evidence that he falls outside the criteria. A
burden-shifting scheme of this sort would meet the goal of ensuring that the errant
tourist, embedded journalist, or local aid worker has a chance to prove military error
while giving due regard to the Executive once it has put forth meaningful support for
its conclusion that the detainee is in fact an enemy combatant.
The four Justices suggested that a military tribunal of some sort might fulfill due process
requirements, but also explicitly rejected the contention that courts should have no role
in the process.
Justice Souter, joined by Justice Ginsberg, agreed that Hamdi is entitled to due
process, including the right to counsel (but without the qualifications suggested by Justice
O’Connor), and joined the plurality to provide sufficient votes to vacate the decision
below. However, finding no explicit authority in the AUMF (or other statutes) to detain
persons as enemy combatants, they would have determined that 18 U.S.C. § 4001(a)
precludes the detention of American citizens as enemy combatants altogether. They
rejected the theory that the detention was authorized as a necessary incident to the use of
military force because “the Government’s stated legal position in its campaign against the
Taliban . . . is apparently at odds with its claim here to be acting in accordance with
customary law of war and hence to be within the terms of the Force Resolution in its
detention of Hamdi.” In other words, the government’s failure to accord the Taliban
detainees rights under the Geneva Convention or in accordance with Army regulations
vitiated its contention that Hamdi’s detention was authorized pursuant to the AUMF.
Justice Scalia, joined by Justice Stevens, dissented, arguing that “our constitutional
tradition has been to prosecute [U.S. citizens accused of waging war against the
government] in federal court for treason or some other crime” unless Congress has
suspended the Writ of Habeas Corpus pursuant to the Constitution’s Suspension Clause,
Art. I, § 9, cl. 2. They viewed as “unthinkable that the Executive could render otherwise
criminal grounds for detention noncriminal merely by disclaiming an intent to prosecute,
or by asserting that it was incapacitating dangerous offenders rather than punishing
wrongdoing.” Under their view, even if the AUMF did authorize detention in sufficiently
clear language to overcome the prohibition in 18 U.S.C. § 4001(a) (which, in their view,
clearly it did not), Hamdi’s detention would be unconstitutional without a proper
suspension of the Writ. Finally, the two justices argued that the role of the Court is
limited to ordering the release of a citizen unlawfully detained, not creating its own set
of rules to justify it:
The plurality seems to view it as its mission to Make Everything Come Out Right,
rather than merely to decree the consequences, as far as individual rights are
concerned, of the other two branches’ actions and omissions. Has the Legislature
failed to suspend the writ in the current dire emergency? Well, we will remedy that
failure by prescribing the reasonable conditions that a suspension should have
included. And has the Executive failed to live up to those reasonable conditions?
Well, we will ourselves make that failure good, so that this dangerous fellow (if he is
dangerous) need not be set free. The problem with this approach is not only that it
steps out of the courts’ modest and limited role in a democratic society; but that by
repeatedly doing what it thinks the political branches ought to do it encourages their
lassitude and saps the vitality of government by the people.
Justice Thomas also dissented, essentially agreeing with the government’s position
that the detention of enemy combatants is an unreviewable aspect of the war powers
constitutionally allocated to the political branches. He agreed that the AUMF provides
sufficient authority to detain enemy combatants, but suggested the President might have
inherent authority even without such authority. While he would have found that the courts
may properly review whether Hamdi’s executive detention is lawful, he would have given
utmost deference to the Executive branch. He would not have applied the Mathews v.
Eldridge balancing approach, opining at the same time that the test was misapplied. In
his view, the national security interests asserted by the government, including the need to
gather intelligence through interrogation, would outweigh any individual liberties that
might be affected. Finally, he questioned whether other acts of war, such as bombings
and missile strikes, would also be subject to due process inquiry.
Rumsfeld v. Padilla, 72 U.S.L.W. 4584 (2004). Jose Padilla, like Yaser
Hamdi, is currently detained in a military brig in South Carolina as an enemy combatant.
The circumstances surrounding his arrest differed substantially, however. Rather than
being captured during hostilities in Afghanistan, Padilla was arrested at O’Hare airport
in Chicago and held initially in New York under a material witness warrant. After the
President determined that Padilla was an enemy combatant and ordered him transferred
to military custody, his court-appointed attorney filed a petition for habeas corpus in
federal district court in New York. The district court found that the President was
authorized to detain Padilla as an enemy combatant pursuant to the AUMF, but asserted
that Padilla had a due process right to communicate with his lawyer and present evidence
to refute his designation as an enemy combatant. On interlocutory cross-appeals, the
Second Circuit granted the habeas petition, finding that the AUMF did not authorize
detention under the circumstances alleged. None of the judges in the Second Circuit
agreed with the government that the habeas statute mandates that Padilla’s petition could
only properly be brought against the commander of the military brig and only in the local
federal district court. It was on this ground that a majority of the Supreme Court, led by
Chief Justice Rehnquist, reversed. The Court did not reach the issue of whether the
President has the authority to detain Padilla militarily. Padilla’s attorney has filed a new
petition in the Fourth Circuit. Justice Stevens, joined by Justices Souter, Ginsburg, and
Breyer, dissented, arguing that the jurisdictional rule applied by the majority has many
exceptions, and that the Court has a duty to address the “questions of profound
importance to the Nation” Padilla’s case raises. He wrote:
Executive detention of subversive citizens, like detention of enemy soldiers to keep
them off the battlefield, may sometimes be justified to prevent persons from launching
or becoming missiles of destruction. It may not, however, be justified by the naked
interest in using unlawful procedures to extract information. Incommunicado
detention for months on end is such a procedure. Whether the information so procured
is more or less reliable than that acquired by more extreme forms of torture is of no
consequence. For if this Nation is to remain true to the ideals symbolized by its flag,
it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.
The four dissenting judges appear to agree with the opinion of the Second Circuit.
The opinions in Hamdi suggest that a sufficient number of Justices would reject the
government’s position that the President has the authority to detain U.S. citizens who
were taken into custody within the United States, at least unless Congress has specifically
authorized such detentions.