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University of Nevada, Reno
The Rights of Combatants:
How the Guantanamo Bay Cases May Apply to Other Issues in the War on
Terrorism
A thesis submitted in partial fulfillment
of the requirements for the degree of
Bachelor of Arts in Political Science and the Honors Program
By
Jennifer Musser
Dr. William Eubank, Thesis Advisor
May 2012
UNIVERSITY
OF NEVADA
RENO
THE HONORS PROGRAM
We recommend that the thesis
prepared under our supervision by
JENNIFER MUSSER
entitled
The Rights of Combatants:
How the Guantanamo Bay Cases May Apply to Other Issues in the War on
Terrorism
be accepted in partial fulfillment of the
requirements for the degree of
BACHELOR OF ARTS, POLITICAL SCIENCE
______________________________________________
William Eubank, Ph. D., Thesis Advisor
______________________________________________
Tamara Valentine, Ph. D., Director, Honors Program
May 2012
i
i
Abstract
Located on the island of Cuba, the Guantanamo Bay Naval Base has become home to
hundreds of detainees who are suspected of belonging to or aiding terrorist organizations
throughout the war on terror. Almost immediately after the base started being used as a
detention center for the enemy combatants, legal issues began to arise over what
constitutional provisions would be afforded to detainees and the applicability of United
States laws in such cases. The Supreme Court assumed the role of deciding these various
matters, the heart of which was determined in four key cases: Rasul v. Bush (2004),
Hamdi v. Rumsfeld (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush
(2008). The unique nature of detaining combatants at Guantanamo Bay, including the
location of the base on foreign soil and the sensitive national security matters involved,
makes this situation unlike any other before in history. Since the conclusion of these
cases, further legal questions regarding the War on Terror have arisen. Is the President
authorized to order the killing of a United States citizen abroad? Can Congress
legislatively authorize the indefinite detention of captured combatants? This paper will
analyze the legal reasoning, as expressed in the majority opinion of the Court, in each of
the Guantanamo cases in order to answer these and other questions. The analysis of the
cases regarding detention at Guantanamo Bay Naval Base provide important insight into
the legality of other issues in the War on Terrorism, and the legal reasoning can be used
to predict the outcome of pending and future cases likely to be heard by the Supreme
Court.
ii
Acknowledgements
I would like to give my sincerest gratitude to my mentor, Dr. William Eubank, for all
the time he has dedicated to reviewing my work. He has been an invaluable resource in
this process, whether it was to answer any questions I had or keep me on track in terms of
my progress.
I would also like to thank Dr. Tamara Valentine, Director of the Honors Program. She
has provided endless guidance not only when it comes to this thesis, but also throughout
the entire four years I spent in the Honors Program.
iii
Table of Contents
Abstract …………………………………………………………………………………... i
Acknowledgements ……………………………………………………………………… ii
Table of Contents ……………………………………………………………………….. iii
Introduction…………………………………………………………………..................... 1
History of Guantanamo Bay Naval Base ………………………………………………... 3
“The Great Writ”: The Origins of Habeas Corpus …………………………………….… 8
Prior Precedent …………………………………………………………………………. 13
Establishing Jurisdiction: Rasul v. Bush ……………………………………………….. 20
Rights of Citizen Combatants: Hamdi v. Rumsfeld ……………………………………. 26
Military Commissions and Congressional Authority: Hamdan v. Rumsfeld ………....... 32
The Suspension Clause: Boumediene v. Bush ………………………………………….. 37
Common Holdings and Themes ………………………………………………………... 41
Implications- How the Legal Principles Apply to Other Current Issues
A. Anwar Al-Aulaqi: Targeted Killing of Combatant American Citizens ……. 46
B. National Defense Authorization Act ……………………………………….. 54
Conclusion ………………………………………………………….............………….. 58
References ...………………………………………………………………......……….. 60
Official Documents …………………………………………………………………….. 64
Appendix I: Text of Mobbs Declaration………………………………………………... 66
1
Introduction
Much controversy has surrounded the United States’ decision to detain suspected
terrorists and affiliates at the Guantanamo Bay Naval Base following the attacks of
September 11, 2001, and the subsequent beginning of the War on Terrorism. What one
scholar has referred to as a “legal black hole” (Steyn, 2004), the detention of combatants
at a naval base on foreign soil has raised important constitutional questions regarding
jurisdiction, the legality of executive ordered detention, and the use of military
commissions. In a series of cases, Rasul v. Bush (2004), Hamdi v. Rumsfeld (2004),
Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008), the Supreme Court issued
decisions that would have a significant impact on the rights of all detainees in custody.
The current situation at Guantanamo is unlike any other in history; during oral
arguments in the Rasul case, Justice Ginsburg states, “I think Guantanamo, everyone
agrees, is an animal, there is no other like it” (cited in Kaplan, 2005, p. 831). Its unique
location “in, but not within” Cuba, a country with which the United States has severed
diplomatic relations, creates a situation in which Guantanamo “is not clearly under the
sovereignty of either nation” (Kaplan, 2005, p. 832). Despite the resolution of the four
above mentioned cases and as the War on Terror persists, legal issues continue to
abound; the killing of suspected citizen combatants, the recent signing of the Defense
Authorization Act, and continued concern over expanded presidential power during war
are all issues that continue to maintain a place in the political rhetoric that surrounds the
war. This paper will discuss the history of Guantanamo Bay and the origins of the writ of
habeas corpus, and then evaluate the facts and opinions of the Court in these four cases in
2
order to make the argument that the legal principles set forth in these cases apply to the
current issues mentioned above.
3
History of Guantanamo Bay Naval Base
Located approximately four hundred miles from Miami, Florida, the Guantanamo Bay
Naval Base is the United States Navy’s oldest overseas installation (U.S. Navy, n.d.).
The initial presence of the United States in Guantanamo Bay occurred during the
Spanish-American War. Cuba had been a Spanish colony since its discovery by
Christopher Columbus in 1494 (Joint Task Force Guantanamo, 2010). After an explosion
sank the USS Maine in the harbor near Havana, Cuba, in 1898, the Congress of the
United States declared war against Spain thus commencing the Spanish-American War.
Coinciding with the war was a revolt started by the Cuban people, who had become
displeased with Spanish rule (Joint Task Force Guantanamo, 2010). The war ended later
in 1898, and Cuba was granted its independence in 1902. An initial agreement was
passed through Cuba’s Congress setting forth terms for the establishment of a naval base
at Guantanamo. Shortly after, an appendix was included in the Constitution of the new
republic of Cuba that also provided for the establishment of a naval base (Joint Task
Force Guantanamo, 2010). Both countries signed a formal agreement in 1903 (U.S.
Navy, n.d.). The agreement leased a 45-mile area of land and water to be used as a
coaling, and later, a refueling station (U.S. Navy, n.d.) In regards to control over the base,
Article III of the agreement states the following:
While on the one hand the United States recognizes the continuance of the
ultimate sovereignty of the Republic of Cuba over the above described
areas of land and water, on the other hand the Republic of Cuba consents
that during the period of the occupation by the United States of said areas
under the terms of this agreement the United States shall exercise
complete jurisdiction and control over [emphasis added] and within said
areas with the right to acquire (under conditions to be hereafter agreed
upon by the two Governments) for the public purposes of the United
States any land or other property therein by purchase or by exercise of
4
eminent domain with full compensation to the owners thereof.
(“Agreement between the United States,” 1903)1
Another treaty signed in 1934 again certified the lease between the two countries and
United States’ control over the territory. More importantly, this treaty included a
provision stating that the lease could not be terminated unless the governments of both
countries agreed to it or the United States abandoned the base (U.S. Navy, n.d.), which
effectively established the agreement as perpetual. This provision, Article III of the
treaty, reads as follows:
Until the two contracting parties agree to the modification or abrogation of
the stipulations of the agreement in regard to the lease to the United States
of America of lands in Cuba for coaling and naval stations signed by the
President of the Republic of Cuba on February 16, 1903, and by the
President of the United States of America on the 23d day of the same
month and year, the stipulations of that agreement with regard to the naval
station of Guantanamo shall continue in effect. The supplementary
agreement in regard to naval or coaling stations signed between the two
Governments on July 2, 1903, also shall continue in effect in the same
form and on the same conditions with respect to the naval station at
Guantanamo. So long as the United States of America shall not abandon
the said naval station of Guantanamo or the two Governments shall not
agree to a modification of its present limits, the station shall continue to
have the territorial area that it now has, with the limits that it has on the
date of the signature of the present Treaty. (“Treaty Between the United
States,” 1934)
Fidel Castro would later dispute the legality of this provision when he came to power
following the end of the Cuban Revolution in 1959 (Fetini, 2008). Castro has long
contested the presence of the United States in Guantanamo Bay. In addition to the
provision making the lease perpetual, the above agreement set forth terms for an annual
lease payment from the United States to Cuba in the amount of approximately four
1
The grant of “complete jurisdiction and control” to the United States will become integral to the
decision regarding jurisdiction in the Rasul case.
5
thousand dollars a year (Boadle, 2007). Since coming to power, Castro has refused to
cash the lease payments in protest of the treaty, with the exception of the first check in
1959, which he claims was a mistake as a result of “confusion” (Boadle, 2007).
Diplomatic relations were completely severed by President Eisenhower in 1961 and
remain that way to this day (U.S. Navy, n.d.).
The United States has retained control over the Guantanamo Bay Naval Base for more
than a hundred years, despite objections from the Cuban government. Since Fidel Castro
cut off water and supply shipments to the base in 1964, the facilities have been selfsufficient in terms of power and water resources for almost fifty years (U.S. Navy, n.d.).
Used mainly as a fueling station since its founding (U.S. Navy, n.d.), the base took on a
new role after the terrorist attacks of September 11th. As the War on Terrorism
progressed, so did the need to establish a central place to house suspected terrorists and
affiliates. A primary concern of the Bush administration was choosing a location out of
reach of federal court jurisdiction (Hansen, 2011). Other factors considered included
political fallout, such as that which would occur if the base were located within the
territorial United States, stability of the region, and allied support (Hansen, 2011).
Jonathon M. Hansen describes the reasons Guantanamo Bay provided the best option for
the administration:
Guantanamo met all these objections. Sovereign territory of a hostile
state, it offered U.S. military personnel legal and diplomatic immunity.
The U.S. military strictly controlled access to the base, securing it from
prying eyes and enemies alike. Defense Secretary Rumsfeld later
characterized Guantanamo as “the least worst place.” (Hansen, 2011, p.
306)
6
By the end of 2001, Guantanamo was chosen as the location of the central detention
center and construction of the facilities began immediately. The first detainees arrived at
the base in January 2002 (Hansen, 2011). According to a report issued by the
Guantanamo Review Task Force, 779 people had at one point been held at the detention
center, and 530 of those people had either been transferred or been released from the
custody of the United States by 2009 (Guantanamo Review Task Force, 2010). Shortly
after assuming office, President Barack Obama signed Executive Order 13492, which
called for the closure of the detention facility (Guantanamo Review Task Force, 2010).
Section 3 of that order is excerpted below:
Sec. 3. Closure of Detention Facilities at Guantanamo. The detention
facilities at Guantanamo for individuals covered by this order shall be
closed as soon as practicable, and no later than 1 year from the date of this
order. If any individuals covered by this order remain in detention at
Guantanamo at the time of closure of those detention facilities, they shall
be returned to their home country, released, transferred to a third country,
or transferred to another United States detention facility in a manner
consistent with law and the national security and foreign policy interests
of the United States. Exec. Order 13492, 74 C.F.R. 4897 (2009)
Despite these conditions of closure set forth in the Executive Order, more than two years
have come and gone with little progress. The site currently houses 171 prisoners, the
majority of which have yet to be formally charged (Finn & Tate, 2012). More than ten
years after the detention center was initially constructed, the lives of those detained
remain in limbo as they await some sort of conclusion to their detention.
The history of the Guantanamo Bay Naval Base is presented because it is crucial to
understanding various aspects of the cases presented before the Supreme Court, most
notably in the establishment of jurisdiction as decided in Rasul v. Bush. The effective
control the United States has maintained over the area provides the grounds upon which
7
the Court extends its power to hear habeas corpus petitions from the detainees. The
decisions in the cases to be examined in this paper will play a significant role in
determining the legality of the detention of those remaining in custody at Guantanamo
Bay.
8
“The Great Writ”: The Origins of Habeas Corpus and Its Place in the American
Legal System
Like most aspects of the American legal system, the writ of habeas corpus was
derived from English common law and was present in the laws of the colonies prior to the
ratification of the Constitution (Chemerinsky, 1987). A writ of habeas corpus is a
directive to the jailer of a detainee that requires the jailer to present the detainee before
the Court to challenge the lawfulness of his/her detention. The process for securing a writ
of habeas corpus occurs when a representative, on behalf of the detainee, files a petition
in court asking for the issuance of the writ (Fallon & Meltzer, 2007). If the writ is issued,
the detainee may challenge the grounds upon which he/she is being held. If the court
finds that the detention of the petitioner is unlawful, the court may order his/her release.
The most common use of the writ throughout history has been as a safeguard against
Executive authority to detain people without intervention from the courts (Fallon &
Meltzer, 2007). It has remained one of the fundamental civil liberties provided to those
imprisoned. Famed legal scholar William Blackstone once referred to the writ as “the
most celebrated writ in the English Law” (Chermerinsky, 1987, p. 748), a significance
that has translated into the legal philosophy present in this country as well.
The importance of the writ’s protection is exemplified by a prohibition of its
suspension included in Article I, Section 9, Clause 2 of the U.S. Constitution (Fallon &
Meltzer, 2007). The inclusion by the Framers was again a result of British influence. In
England, the writ was commonly suspended by Parliament throughout the seventeenth
and eighteenth centuries (Chemerinsky, 1987), effectively creating a void of legal
protections and allowing the indefinite detention of citizens. The Framers were fearful of
9
the massive grant of power to an executive that would occur should Congress be granted
the same authority as Parliament. Some delegates of the Constitutional Convention
wanted an outright grant of habeas corpus protection included in the final product
(Chemerinsky, 1987). However, an agreement was reached that eventually resulted in
Article I, Section 9, Clause 2 of the United States Constitution, which states: “The
Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.” Congress provided the courts
further power in cases involving habeas corpus in the Judiciary Act of 1789, which
expressly granted the federal courts authority to grant habeas corpus to those held in
federal custody and order release should insufficient evidence be presented by the
prosecution (Chemerinsky, 1987).
Throughout the nation’s history, the exception regarding times of rebellion or invasion
as stated in the Suspension Clause has been invoked and the writ suspended by both
executive and legislative authorities. One such incident occurred during the Civil War,
when then president Abraham Lincoln, on the basis of his powers as Commander-inChief, suspended the habeas corpus rights of those imprisoned by military authorities.
The Proclamation Suspending the Writ of Habeas Corpus, issued in 1862, stated the
following:
Now, therefore, be it ordered, first, that during the existing insurrection
and as a necessary measure for suppressing the same, all Rebels and
Insurgents, their aiders and abettors within the United States, and all
persons discouraging volunteer enlistments, resisting militia drafts, or
guilty of any disloyal practice, affording aid and comfort to Rebels against
the authority of United States, shall be subject to martial law and liable to
trial and punishment by Courts Martial or Military Commission:
10
Second. That the Writ of Habeas Corpus is suspended in respect to all
persons arrested, or who are now, or hereafter during the rebellion shall
be, imprisoned in any fort, camp, arsenal, military prison, or other place of
confinement by any military authority of by the sentence of any Court
Martial or Military Commission. (Proclamation 94, September, 24, 1862)
Congress subsequently passed the Habeas Corpus Act of 1863, 12 Stat. 755 (1863),
which solidified under statute the President’s ability to suspend the issuance of writs of
habeas corpus for the remaining period of rebellion; in part, the statute reads:
Be it enacted by the Senate and the House of Representatives of the
United States of America in Congress assembled, That, during the present
rebellion, the President of the United States, whenever, in his judgment,
the public safety may require it, is authorized to suspend the privilege of
the writ of habeas corpus in any case throughout the United States, or any
part thereof… 12 Stat. 755 (1863)
However, since the commencement of the Civil War, which occurred more than a year
prior to both the proclamation and congressional legislation, Lincoln had ordered the
suspension of the writ in certain areas, such as in the entire state of Missouri as he did in
1861 (Garrison, 2011). Acting on executive authority alone, Lincoln continued the
suspension throughout the rebellion for nearly two years before congressional statute was
enacted approving such action (Garrison, 2011).
In similar fashion, President Franklin Delano Roosevelt suspended the writ of habeas
corpus during World War II, in two separate instances. First, the executive issued
proclamation 2561 in 1942 (Fisher, 2003). The relevant portions of the order state the
following:
“…all persons who are subjects, citizens, or residents of any Nation at war
with the United States or who give obedience to or act under the direction
of any such Nation and who during time of war enter or attempt to enter
the United States or any territory or possession thereof, through coastal or
boundary defenses, and are charged with committing or attempting or
preparing to commit sabotage, espionage, hostile or warlike acts, or
11
violations of the law or war, shall be subject to the law of war and to the
jurisdiction of military tribunals; and that such persons shall not be
privileged to seek any remedy or maintain any proceeding, directly or
indirectly, or to have any such remedy or proceeding sought on their
behalf, in the courts of the United States, or of its States, territories, and
possessions,…” (Proclamation 2561, 1942).
While Roosevelt’s proclamation obviously does not explicitly express an intention to
suspend the writ, the establishment of the military commissions and denial of access to
the courts of the United States effectively does just that. By removing a possible remedy
in civilian court, those held by military authorities are left with no options to challenge
their detention and petition for release.
The second instance during Roosevelt’s tenure as president that suspended habeas
corpus rights also occurred in 1942. Following the Japanese attacks on Pearl Harbor,
Roosevelt issued Executive Order 9066 (Stone, 2006). The decree authorized the United
States Army to declare certain regions “military areas” and being designated as such,
“any persons could be excluded” (Stone, 2006, p. 1319). While not explicitly naming
Japanese Americans as targets of this order, the intent that it was to this population that
the order was to apply was well understood. The effect of this authorization was the
forced internment of more than one hundred thousand individuals of Japanese ancestry
(Stone, 2006). At one point, almost 90% of the Japanese American population was
interned (Stone, 2006). Many of these military areas were established along the west
coast of the United States. Those forced to relocate were held indefinitely, though not
charged with any crime (Stone, 2006). Again, though not directly stated, the outcome of
Roosevelt’s executive order was the suspension of habeas corpus rights for all those
Japanese Americans detained and forced to reside in internment camps.
12
As illustrated in the above cases, executive and congressional authorities have in the
past suspended the writ of habeas corpus under certain circumstances. The intention is
not always expressly stated, but in the end, the results of such actions were the same.
Those held in military custody were held indefinitely and denied access to federal courts.
Such authority, however, would not go unchallenged.
13
Prior Precedent: Ex Parte Milligan, Ex Parte McCardle, and Ex Parte Quirin
In both the Civil War and World War II, several cases called into question presidential
power to establish military commissions and suspend habeas corpus. The writ of habeas
corpus and its continued protection during times of war was most notably emphasized in
three landmark Supreme Court cases, Ex Parte Milligan, Ex Parte McCardle, and Ex
Parte Quirin.
The first of these cases, Ex Parte Milligan, was decided in 1866 with the events
leading up to that decision occurring during the Civil War. More specifically, the
situation transpired following President Lincoln’s proclamation suspending habeas
corpus. Milligan, a citizen of the state of Indiana, was arrested by Union troops for
allegedly conspiring to steal weapons and raid prisoner of war camps (Garrison, 2011).
At the time of his capture, Indiana was not classified as one of the “rebellious” states in
the Union, nor had Milligan ever been a member of any military branch (Garrison, 2011).
Still, martial law had been declared in Indiana, as it had been elsewhere in the country at
the time, and so Milligan was subject to trial by military commission, at which he was
convicted and sentenced to death by hanging. Ex Parte Milligan, 71 U.S. 2 (1866).
As he awaited his execution, the Civil War officially ended and subsequently, so did
the rule of martial law. Following the end of hostilities, Milligan petitioned the district
court for a writ of habeas corpus. Ex Parte Milligan, 71 U.S. 2 (1866). When the case
was heard by the Circuit Court, the judges remained divided on the issue, and so on a
certificate of division, the case was appealed to the Supreme Court. Ex Parte Milligan,
71 U.S. 2 (1866). The question to be answered by the Court included whether or not the
military commission had jurisdiction to try Milligan and, to a lesser degree of
14
importance, the legality of the declaration of martial law (Garrison, 2011). The Court
ruled military commissions could not be used to try citizens if civilian courts are
operating properly and without the interference of a rebellion or insurrection. Ex Parte
Milligan, 71 U.S. 2 (1866). It is noted that during the time of his detention, a federal
grand jury did convene in Indianapolis, where Milligan was being held, at which time no
indictment was ever handed up against him. Ex Parte Milligan, 71 U.S. 2 (1866).
Having found the civil court system in Indiana operating unobstructed, the military
commission did not have the proper jurisdiction to try the offense (Garrison, 2011).
Delivering the unanimous opinion of the Court, Justice Davis addressed the jurisdictional
question in the following excerpt:
This court has judicial knowledge that in Indiana the Federal authority was
always unopposed, and its courts always open to hear criminal accusations
and redress grievances; and no usage of war could sanction a military trial
there for any offence whatever of a citizen in civil life, in nowise
connected with the military service. Congress could grant no such power;
and to the honor of our national legislature be it said, it has never been
provoked by the state of the country even to attempt its exercise. One of
the plainest constitutional provisions was, therefore, infringed when
Milligan was tried by a court not ordained and established by Congress,
and not composed of judges appointed during good behavior. Ex Parte
Milligan, 71 U.S. 2, 121-122 (1866).
The military commission had no jurisdiction to try Milligan because the civilian
government was in operation in the state of Indiana at the time of his detention. The
Court finding its own jurisdiction to hear the case granted the writ. Ex Parte Milligan, 71
U.S. 2 (1866).
Regarding the implementation of martial law in Indiana, the Court held:
Martial rule can never exist where the courts are open, and in the proper
and unobstructed exercise of their jurisdiction. It is also confined to the
locality of actual war. Because, during the late Rebellion it could have
15
been enforced in Virginia, where the national authority was overturned
and the courts driven out, it does not follow that it should obtain in
Indiana, where that authority was never disputed, and justice was always
administered. Ex Parte Milligan, 71 U.S. 2, 127 (1866).
Interpreting the above statement, this assertion coincides with the holding that military
commissions cannot be used to try individuals when civil courts are open and operating.
Similarly, martial law cannot be implemented if justice can be administered through the
proper course of action as outlined in the Constitution (i.e. trial by jury, right to counsel).
Describing the protection of the United States Constitution, Justice Davis states,
The history of the world had taught them [the Framers of the Constitution]
that what was done in the past might be attempted in the future. The
Constitution of the United States is a law for rulers and people, equally in
war and in peace, and covers with the shield of its protection all classes of
men, at all times, and under all circumstances. Ex Parte Milligan, 71 U.S.
2, 120-121 (1866).
In Milligan, the Court’s decision effectively restrains presidential power and reinforces
the overarching ideology upon which the country was founded; the Constitution is the
supreme law of the land and all officers of the United States, legislative, executive, and
judicial alike, are bound by its provisions of expressed and implied grants of power and
prohibitions.
Following the decision in Milligan, the Supreme Court heard the case of Ex Parte
McCardle. At the conclusion of the Civil War, the Reconstruction period began, and
Congress passed legislation authorizing the imposition of military rule in several of the
southern states. During this time, McCardle was arrested by military police for
publishing “incendiary” material. Ex parte McCardle, 74 U.S. 506 (1869). He was tried
by military commission, and like Milligan, sought a writ of habeas corpus through the
federal court system. Under the Habeas Corpus Act of 1867, the federal courts’ power to
16
issue writs of habeas corpus was expanded to extend to “all cases where any person may
be restrained of his or her liberty in violation of the Constitution, or of any treaty or law
of the United States” (Mayers, 1965, p. 35). Prior to this statute, federal law only
dictated this power to include persons held in “jail” (Mayers, 1965).
The Supreme Court heard arguments regarding McCardle’s original claim that
Congress lacked the authority to institute military rule in the South. Prior to the Court
issuing a decision, Congress repealed the above-mentioned provision in the Habeas
Corpus Act that extended the power of the federal courts to hear habeas petitions
involving “any person,” and consequently stripped the Court of appellate jurisdiction in
this case because McCardle was held in military custody and not in “jail”. Ex parte
McCardle, 74 U.S. 506 (1869). Republicans feared that the Court might use its decision
in McCardle to nullify much of the Reconstruction program by declaring relevant
legislation unconstitutional and sought to remove the Court’s chance to do so before it
could issue a ruling (Rossum, 1983). The question before the Court then became one
involving its jurisdiction to hear habeas corpus appeals from petitioners like McCardle.
To answer this question, the Court relied on the Exceptions Clause of the United States
Constitution, which reads as follows:
In all Cases affecting Ambassadors, other public Ministers and Consuls,
and those in which a State shall be Party, the supreme Court shall have
original Jurisdiction. In all the other Cases before mentioned, the supreme
Court shall have appellate Jurisdiction, both as to Law and Fact, with such
Exceptions, and under such Regulations as the Congress shall make
[emphasis added]. U.S. Constitution, Art. III, Sec. 2.
Finding that Congress, under the Exceptions Clause, has the authority to dictate appellate
jurisdiction and pass legislation that does as much, the Court dismissed the case for want
17
of jurisdiction. A situation similar to that present in McCardle involving a power
struggle between Congress and the Courts over habeas corpus jurisdiction would later
emerge in the cases involving detainees held at Guantanamo.
The final case in the development of habeas corpus precedent was Ex Parte Quirin.
Occurring during World War II, the petitioners in this case were German citizens. All
had at one point lived in the United States, but at some time after declaration of war with
Germany, had returned to receive sabotage training in Berlin. The men then made their
way to the shores of the United States, with the instructions to destroy any war facilities
and industries they could. Ex Parte Quirin, 317 U.S. 1 (1942). Two of the men defected
and reported to the Federal Bureau of Investigation, revealing the names of the other
saboteurs who were subsequently arrested (Goldsmith & Sunstein, 2002). By executive
order, President Roosevelt established a military commission to hear the case.
The Germans filed petitions for habeas corpus directly to the Supreme Court claiming
that the Executive unlawfully ordered the military commission. However, the Court
determined that Congress had authorized the executive to establish a tribunal in this
situation. Writing the unanimous decision of the Court, Justice Stone notes the
following:
From the very beginning of its history, this Court has recognized and
applied the law of war as including that part of the law of nations which
prescribes, for the conduct of war, the status, rights and duties of enemy
nations, as well as of enemy individuals. By the Articles of War, and
especially Article 15, Congress has explicitly provided, so far as it may
constitutionally do so, that military tribunals shall have jurisdiction to try
offenders or offenses against the law of war in appropriate cases. Ex Parte
Quirin, 317 U.S. 1, 27 (1942).
The Court notes the powers granted to Congress, writing the following:
18
…the Constitution gives to Congress the power to “provide for the
common Defence,” Art. I, § 8, cl. 1; “To raise and support Armies,” “To
provide and maintain a Navy,” Art. I, § 8, cl. 12, 13, and “To make Rules
for the Government and Regulation of the land and naval Forces,” Art. I, §
8, cl. 14. Ex Parte Quirin, 317 U.S. 1, 26 (1942).
Therefore, it is within the constitutional limits of power for Congress to enact legislation
allowing for the use of military tribunals in certain circumstances, such as when the laws
of war have been violated. The question before the Court, then, is whether the actions for
which the detained men are charged amount to a violation of the laws of war sufficient to
be tried by military tribunal. Ex Parte Quirin, 317 U.S. 1 (1942).
In answering this
question, the Court made an important distinction between lawful and unlawful
combatants. Chief Justice Stone makes the following remarks about this categorization:
By universal agreement and practice, the law of war draws a distinction
between the armed forces and the peaceful populations of belligerent
nations, and also between those who are lawful and unlawful combatants.
Lawful combatants are subject to capture and detention as prisoners of war
by opposing military forces. Unlawful combatants are likewise subject to
capture and detention, but, in addition, they are subject to trial and
punishment by military tribunals for acts which render their belligerency
unlawful. The spy who secretly and without uniform passes the military
lines of a belligerent in time of war, seeking to gather military information
and communicate it to the enemy, or an enemy combatant who without
uniform comes secretly through the lines for the purpose of waging war by
destruction of life or property, are familiar examples of belligerents who
are generally deemed not to be entitled to the status of prisoners of war,
but to be offenders against the law of war subject to trial and punishment
by military tribunals. Ex Parte Quirin, 317 U.S. 1, 30-31 (1942).
By defining these two categories of captured combatants, the Court is able to conclude
that the Germans are eligible to be tried under the authority of a military tribunal. The
Court deemed the saboteurs to be unlawful combatants, and charged the Germans with
crimes that violate the laws of war. This difference that the Court discerns between
19
lawful and unlawful combatants will become crucial to the decisions made in the cases
that arise from Guantanamo Bay.
Shortly following the decision of the Court, the military tribunal found all eight
saboteurs guilty of violating the laws of war and sentenced them to be executed. The
President commuted the sentence of the two Germans who cooperated with investigators,
but the other six petitioners were executed (Goldsmith & Sunstein, 2002).
These three cases, Ex Parte Milligan, Ex Parte McCardle, and Ex Parte Quirin, would
be later cited as precedent by either the government or the Court in the Guantanamo Bay
cases. The holdings in each case established important principles regarding habeas
corpus rights for those detained that continue to be binding today. The next section of
this paper will examine each of the four Guantanamo Bay cases individually, and the
rules of law that have emerged from the holdings in those cases.
20
Establishing Jurisdiction: Rasul v. Bush
A. Facts
Following the terrorist attacks of September 11th, 2001, Congress passed the
Authorization for Use of Military Force, herein referred to as the AUMF, which
permitted the President to take “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.” Rasul v. Bush 542 U.S.
466 (2004). It was based on this authorization that then President Bush sent troops into
Afghanistan. Shortly after American forces entered the country, the petitioners,
comprised of two Australian citizens and twelve Kuwaiti citizens, were captured as
alleged enemy combatants and transferred to the detention center at Guantanamo Bay
Naval Base, where they have been held since early 2002. Rasul v. Bush 542 U.S. 466
(2004). The two Australians expressly petitioned for a writ of habeas corpus, seeking to
secure their release from custody, while the Kuwaiti nationals filed a case seeking to
know the charges filed against them. Rasul v. Bush 542 U.S. 466 (2004). The cases, filed
by relatives on behalf of the detainees, were consolidated and treated as one case
regarding habeas petitions. The District Court for the District of Columbia determined
that the courts lacked jurisdiction to hear the cases because the petitioners were
noncitizens being held on foreign territory. Rasul v. Bush 542 U.S. 466 (2004). Based
on the Court’s previous holding in Johnson v. Eisentrager, 339 U. S. 763 (1950), the
District Court held that the laws of the United States do not apply extraterritorially and
the jurisdiction of the courts does not extend in this case. Rasul v. Bush 542 U.S. 466
(2004). As such, the case was dismissed. Upon further review, the decision was affirmed
21
by the Court of Appeals. The petitioners then appealed the case to the Supreme Court.
Rasul v. Bush 542 U.S. 466 (2004).
B. Analysis
The Court first notes that the initial grant of jurisdiction provided to federal courts in
matters pertaining to habeas corpus arises from Section14 of the Judiciary Act of 1789.
Rasul v. Bush 542 U.S. 466 (2004). Under this provision, the courts are granted the power
to issue writs of habeas corpus to any persons “in the custody, under or by colour of the
authority of the United States.” Rasul v. Bush 542 U.S. 466 (2004). Having evolved
throughout the years, the current federal habeas corpus statute provides that all federal
district courts “within their respective jurisdiction” Rasul v. Bush 542 U.S. 466 (2004),
have the ability to consider petitions for habeas corpus filed by any person2 who argues
that he/she remains “in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. §§2241. The fundamental question in this case is whether that
jurisdiction extends to be applicable in cases arising from the detention of aliens held on
land over which the United States does not retain exclusive sovereignty. The Court
concludes that it does have jurisdiction to hear the cases Rasul v. Bush 542 U.S. 466
(2004), a decision that makes all subsequent cases arising from Guantanmo Bay detainees
possible.
The holding that the Court has jurisdiction ultimately rests upon the nature of the writ
of habeas corpus. In writing the opinion of the Court, Justice Stevens notes the
following:
2
It is important to note that the language of the statute does not discern what petitions can be heard
on the basis of the citizenship of the petitioner.
22
Rather, because “the writ of habeas corpus does not act upon the prisoner
who seeks relief, but upon the person who holds him in what is alleged to
be unlawful custody,” a district court acts “within [its] respective
jurisdiction” within the meaning of §2241 as long as “the custodian can be
reached by service of process.” 410 U.S., at 494—495. Rasul v. Bush 542
U.S. 466, 10 (2004).
In this excerpt, Stevens is emphasizing the fact that a writ of habeas corpus is to be
delivered to the jailer, as opposed to the prisoner. This distinction is important because
in finding jurisdiction, the nationality of the detainee is not a factor. Rather, the only
determination to be made is whether the jailer falls under the jurisdiction of the United
States Court and can be reached by service3. Therefore, neither the nationality of the
3
The United States military, which in all of these cases is the jailer, indisputably falls under the
jurisdiction of the United States federal court system. However, the requirement that the jailer must
be able to be “reached by the process of service” brings up important questions regarding what this
may mean in a time of great technological advances. This may be interpreted to permit the use of
methods other than those in which the writ is physically served. This can be seen in the case of the
detention center at Bagram. In the heart of Afghanistan’s Parwan province, the United States military
houses thousands of combatants at a detention center near Bagram airfield (Stanton, 2010). Many of
the detainees held at the detention center were captured on the battlefield in Afghanistan (Eviatar,
2009). However, several of the detainees are foreign nationals that were captured in countries other
than Afghanistan and transferred to Bagram (Eviatar, 2009). Three such detainees brought suit
against the federal government, seeking a writ of habeas corpus. They claimed that the situation at
Bagram was comparable to that in Guantanamo. A federal judge agreed and ruled that the detainees
had a right to challenge their detention in a United States court (BBC News, 2009). The detainees’
lawyer hailed this as a victory for the rights of all those who are taken from their home and rendered
elsewhere by the U.S. government. One of the lawyers, Ramzi Kassem, stated, “Today, a US federal
judge ruled that our government cannot simply kidnap people and hold them beyond the law” (BBC
News, 2009). However, this decision was quickly overturned when a federal appeals court reversed
the decision of the district court. The panel of three judges claimed that the entire country of
Afghanistan was in the theatre of war, and thus could not be considered synonymous to the situation
surrounding the decisions in the Guantanamo case. The appeals court found that the presence of a
lease for the land where the Bagram facility is does not prove a level of “control” over the area similar
to the longstanding control the United States military has had over Guantanamo Bay. The court held
that the lawyers for the detainees did not prove any distinction between Bagram and other military
installations (Yost, 2010). While the Bagram detention center experiences much more turnover than
Guantanamo in terms of releases, it is also much bigger, housing more than 3,000 inmates compared
to the 171 currently at Guantanamo (New York Times Topics, 2012). While the Court found that the
level of control could not be proven merely by showing a lease is in place, there is no doubt that the
United States military exercises full control over the facility and the detainees it holds there. What
the appeals court ignored in its ruling was the distinction made by Justice Stevens in Rasul v. Bush
regarding who the writ of habeas corpus is directed to; he importantly notes that it is the jailer who
receives the detainee, and that the Court can issue such writs so long as the jailer falls within the
jurisdiction of the federal courts and the process can be served. Rasul v. Bush 542 U.S. 466 (2004).
23
detainee nor the location in which the detainee is held, sovereign territory or not, play a
role in the determination of jurisdiction.
The government argued that the Court did not have jurisdiction in this case based on
the prior precedent set forth in Johnson v. Eisentrager. Rasul v. Bush 542 U.S. 466
(2004). In Johnson v. Eisentrager, 21 German nationals were captured after the
surrender of Germany in World War II. The men had been stationed in China and were
charged with violating the laws of war by “engaging in, permitting or ordering continued
military activity against the United States after surrender of Germany and before
surrender of Japan” in supplying intelligence to Japanese forces. Johnson v. Eisentrager,
339 U.S. 763 (1950). The men were tried and convicted by a military tribunal established
in China with the consent of the Chinese government. Johnson v. Eisentrager, 339 U.S.
763 (1950). Once transferred to Germany to serve their sentences under the authority of
the United States military there, the men filed a petition seeking a writ of habeas corpus
to question their confinement in United States federal court. The Court dismissed the
petition, claiming that because the appellants were foreign nationals tried and convicted
outside the “territorial jurisdiction” of the courts, they could not invoke jurisdiction in the
case. Johnson v. Eisentrager, 339 U.S. 763 (1950). Despite the government’s contention
There is no doubt that a member of the United States military, as the jailer, falls within the
jurisdiction of the courts. While Afghanistan is in a war zone, there are not active hostilities
occurring at the actual detention center in Bagram. With the advances in technology, and the ability
to send court documents electronically, the location of the facility does not prohibit the serving of the
process. Thus, according the principles set forth by Justice Stevens in Rasul, the appeals court erred
in its ruling. This issue was initially going to be explored in depth in this paper. However, just
recently in March 2012, the United States and Afghanistan signed an agreement that will turn over
control of the detention center to the Afghan government by 2014, when American troops complete
their withdrawal (Clark & Hirschkorn, 2012). When this occurs, the issue will become moot and is
unlikely to be addressed by any court.
24
that the rule of law derived from Eisentrager should apply in Rasul, the Court carefully
distinguished the facts of Eisentrager so as to reason that the precedent does not apply in
this case. There were six key facts of the Eisentrager case identified by the Court. The
petitioners in that situation were noncitizens from an enemy country, had never lived
within the United States, and had been captured outside of American territory and
remained in military custody; the trial by military commission was employed and
conducted outside American territory, and the entirety of the petitioners’ detention as
prisoners of war had occurred outside American territory. Rasul v. Bush 542 U.S. 466
(2004). Such being the case, the previous Court ruled that no there was no right to a writ
of habeas corpus in that instance. Rasul v. Bush 542 U.S. 466 (2004). However, the
Court notes that none of these facts crucial to the Eisentrager decision are present in
Rasul. The petitioners in the present case are nationals of countries with which the U.S.
is not at war, have denied their status as enemy combatants, have not been afforded the
opportunity to appear before a military commission or even officially charged with any
crime, much less a violation of the laws of war, and have been detained at a facility over
which the United States retains exclusive control despite its location on foreign soil.
Rasul v. Bush 542 U.S. 466 (2004). From these differences, the Court concludes that the
precedent set by Eisentrager does not provide legal reasoning that can be applied to the
circumstances of the present case, dismissing the government’s claim that it does. Rasul
v. Bush 542 U.S. 466 (2004).
Another crucial distinction made in this decision regards the territorial control
exercised by the United States over Guantanamo Bay. It is to this point that the
substantial history of the base provides the reasoning upon which the conclusion about
25
jurisdiction is reached. As described above, the base has been self-sufficient for nearly a
half century. According to the lease agreements, the United States exercises “complete
jurisdiction and control” over the territory despite the fact that Cuba retains ultimate
sovereignty over the land. Rasul v. Bush 542 U.S. 466 (2004). In fact, the government
admits that should petitions arise from American citizens held at the base, federal court
jurisdiction would apply. Rasul v. Bush 542 U.S. 466 (2004). Justice Stevens in the
opinion of the Court writes:
Considering that the statute draws no distinction between Americans and
aliens held in federal custody, there is little reason to think that Congress
intended the geographical coverage of the statute to vary depending on the
detainee’s citizenship. Aliens held at the base [Guantanamo], no less than
American citizens, are entitled to invoke the federal courts’ authority
under §2241. Rasul v. Bush 542 U.S. 466, 12-13 (2004).
The physical characteristic of the base as a territorial extension of Cuba remains
immaterial to the determination of proper jurisdictional reach. As noted previously, the
federal habeas corpus statute makes no distinction between citizens and foreign aliens in
its wording. Thus, the Court concludes that there is no prohibition on its jurisdiction to
hear habeas corpus petitions filed by foreign nationals detained at Guantanamo Bay
Naval Base. Rasul v. Bush 542 U.S. 466 (2004).
26
Rights of Citizen Combatants: Hamdi v. Rumsfeld
A. Facts
Contrary to the facts presented in Rasul, the petitioner in this case is an American born
citizen. Yaser Esam Hamdi was born in Louisiana in 1980, after which he moved with
his family to Saudi Arabia at a young age. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
Hamdi ended up in Afghanistan shortly before the beginning of the American occupation
in 2001. His family claims he was doing volunteer work in the area, but at some point,
he was captured by the Northern Alliance, an ally of the United States in the fight against
the Taliban. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The Northern Alliance turned
Hamdi over to American custody, at which time he was interrogated before being
transferred to Guantanamo Bay in January 2002. Upon learning he was an American
citizen, authorities transferred Hamdi to a detention center in Norfolk before eventually
settling him at a Navy brig in Charleston, South Carolina. Hamdi v. Rumsfeld, 542 U.S.
507 (2004).
Hamdi’s father submitted a petition for a writ of habeas corpus on behalf of his son in
June 2002. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). It is alleged that Hamdi was denied
access to counsel and was being held without charges being filed, a violation of his
constitutional rights as citizen of the United States. Hamdi v. Rumsfeld, 542 U.S. 507
(2004). The District Court ordered defense counsel be provided to Hamdi, a decision that
was overruled by Fourth Circuit Court of Appeals, which concluded there was not
enough consideration given to the national security concerns of the government. Instead
of issuing a resolution, the case was returned to District Court with the instructions to
determine whether Hamdi’s status as an “enemy combatant” in the belief that if this
27
status is determined to be accurate, Hamdi’s indefinite detention would in fact be legal.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
In response to the Court’s request, the government submitted what became referred to
as the Mobbs Declaration (see Appendix I), a written statement by a special advisor to the
Under Secretary of Defense Policy. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). To
summarize, the declaration essentially described Mobbs’ familiarity with the situation
and the intelligence gathered pertaining to Hamdi’s involvement with a Taliban unit at
the time Hamdi was captured by the Northern Alliance.4 The Mobbs Declaration was the
sole statement of evidence provided by the government to justify Hamdi’s status as an
enemy combatant and his consequential detention. Hamdi v. Rumsfeld, 542 U.S. 507
(2004). The District Court found this singular statement insufficient calling it “little more
than the government’s say-so” and noting an inability for the accused to refute the
evidence presented against him/her. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The
government was ordered to turn over all notes from interviews with Hamdi, statements
from the Northern Alliance members who initially captured him, and other documents
related to the capture and detention. When the government appealed the decision, the
Court of Appeals once again reversed the District Court ruling. Hamdi v. Rumsfeld, 542
U.S. 507 (2004). In fact, the habeas petition was dismissed, the Court having concluded
that if Mobbs’ statement was accurate5, the declaration provided adequate evidence that
the detention was lawful under the President’s war power. Hamdi appealed the decision
4
5
The text of the Mobbs Declaration is included in Appendix I.
The Court declined to certify the question regarding the accuracy of the Mobbs’ statement.
28
and the Supreme Court granted review in the case in 2006. Hamdi v. Rumsfeld, 542 U.S.
507 (2004).
B. Analysis
The central question answered by the Court in this case was whether the Executive is
authorized to indefinitely detain citizens who have been designated as enemy combatants.
In a plurality opinion, the Court ruled that Hamdi has a right to challenge his status
before an independent adjudicator and the current system of tribunals and evidence
standard set by the Court of Appeals violated his due process rights. Hamdi v. Rumsfeld,
542 U.S. 507 (2004).
The Court begins its analysis by rejecting Hamdi’s claim that a lack of congressional
authorization for executive ordered detention exists in this case. Rather, the language of
the AUMF allows the Executive to take all actions of “necessary and proper force”
against al Qaeda and terrorist affiliates. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The
detention of suspected unlawful combatants for the duration of hostilities is justifiable as
falling within this grant of power and consistent with laws of war. Hamdi v. Rumsfeld,
542 U.S. 507 (2004). The culmination of these facts leads to the conclusion that Hamdi’s
detention as an enemy combatant, regardless of his citizenship status, was implicitly
authorized by Congress in the AUMF.
Despite congressional approval for detention, the question remains as to what
constitutional rights are afforded those in custody. The government contends that having
been captured in a combat zone, Hamdi’s status is “undisputed”6 and a status review and
6
This assertion of the government is by definition wrong. Hamdi’s status cannot be “undisputed” if
the case is being disputed before the Court
29
evidentiary hearing is therefore unnecessary. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
The Court rejects this argument; since his detention, Hamdi has not been able to contest
his status, as he was not provided counsel. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
The government relies solely on a statement recalling the circumstances of Hamdi’s
capture in Afghanistan. However, that statement alone, the Mobbs Declaration, does not
sufficiently prove that Hamdi meets the definition of an enemy combatant. Hamdi v.
Rumsfeld, 542 U.S. 507 (2004). For the purposes of understanding the AUMF’s use of
the term “enemy combatant”, Justice O’Connor clarifies the term’s definition in the
opinion issued by the Court, stating that an enemy combatant is “an individual who it [the
government] alleges was ‘part of or supporting forces hostile to the United States or
coalition partners’ in Afghanistan and who ‘engaged in an armed conflict against the
United States’.” Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The only specification made
by the government in its evidence is that during the time of his capture, Hamdi resided in
Afghanistan. The Court held that the evidence provide was insufficient to prove that
Hamdi was actively involved with the enemy during hostilities. For that reason, the
government’s assertion that Hamdi’s status as an enemy combatant is undeniable was
futile. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
In its second argument, the government held that further evidentiary probing would be
unnecessary and potentially detrimental to national security interests. Hamdi v.
Rumsfeld, 542 U.S. 507 (2004). To decide on this argument, the Court carefully
considered the two competing interests: Hamdi’s private interest and the public interest in
preserving national security. The Court found that the government’s proposed “some
30
evidence” solution7 and the District Court’s order for the release of all transcript and
evidence were both inefficient and unfeasible. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
Instead, the Justices sought to strike a balance between constitutional rights for citizens
detained and the protection of national interests. Taking into consideration both
perspectives, the Court determined a detainee is entitled to be given notice of the
evidence against him pertaining his status as an enemy combatant and the ability to
challenge that status before an impartial decision maker. Hamdi v. Rumsfeld, 542 U.S.
507 (2004).
Having established the minimum rights of a detainee, the Court next examined
whether the current process of military tribunals violated Hamdi’s due process rights, to
which the Court answered in the affirmative. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
While noting that military tribunals can in some cases provide adequate and equitable
judicial relief,8 Hamdi’s inability to present his own evidence regarding his status as an
enemy combatant or to challenge such a designation violates the constitutional
protections afforded to citizen detainees as previously determined by the Court. The
current structure of military tribunals in place to try Hamdi and similarly situated
detainees violates due process rights.9 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
Although the facts of this case differ from those in Rasul, both decisions in
conjunction with one another establish a rule of law pertaining to constitutional
protections for detainees; regardless of citizenship, all detainees at Guantanamo Bay are
7
“Under the some evidence standard, the focus is exclusively on the factual basis supplied by the
Executive to support its own determination.” Hamdi v. Rumsfeld 542 U.S. 507 (2004)
8 The Court cites the example of tribunals implemented to prosecute prisoners of war. However,
Hamdi is NOT being held as a prisoner of war.
9 The legality of established military commissions and tribunals is discussed in greater detail in the
Hamdan case.
31
afforded basic constitutional protections, which include the right to petition for habeas
corpus so as to prevent Executive power to order indefinite detention and the right to
challenge designation as an enemy combatant.
32
Military Commissions and Congressional Authority: Hamdan v. Rumsfeld
A. Facts
Shortly after the terrorist attack of September 11th, President George W. Bush issued
the November 13 Order entitled “Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism,” 66 Fed. Reg. 57833. Hamdan v. Rumsfeld,
548 U.S. 557 (2006). The order declared that any noncitizen believed to be affiliated
with al Qaeda or other terrorist activities were to be tried by military commission. Under
the proclamation, the Secretary of Defense was authorized to establish military
commissions to try those individuals described in the Order. Hamdan v. Rumsfeld, 548
U.S. 557 (2006). In 2001, allied forces captured Yemeni national Salim Ahmed Hamdan
in Afghanistan and subsequently turned him over to the United States. He was
transferred to the detention center at Guantanamo Bay in June 2002. More than a year
later, President Bush declared Hamdan eligible to be tried by military commission based
on the guidelines set forth in the November 13 Order. Hamdan v. Rumsfeld, 548 U.S.
557 (2006).
The case against Hamdan progressed slowly, during which time his counsel filed in
District Court petitioning for a writ of habeas corpus. Hamdan v. Rumsfeld, 548 U.S. 557
(2006). Hamdan claimed that the military commission process was not authorized by
Congress or the common laws of war and violates even the minimum protections
provided under the Uniform Code of Military Justice and international law, including
prohibiting his ability to hear the evidence against him. Hamdan v. Rumsfeld, 548 U.S.
557 (2006). When Hamdan finally appeared before a Combatant Review Status
Tribunal, Hamdan’s designation as an enemy combatant was confirmed and as a result,
33
his continued detention was determined to be justified. Hamdan v. Rumsfeld, 548 U.S.
557 (2006).
In 2004, the District Court approved Hamdan’s habeas corpus petition, imposing a
stay on the decision of the military commission. Hamdan v. Rumsfeld, 548 U.S. 557
(2006). The Court held that a military commission can legally be used only to try crimes
that violate the laws of war, which the charges levied against Hamdan were not.
Furthermore, because the military commission procedures allowed the inclusion of
evidence that the detainee was prohibited from seeing or hearing, the military tribunal
process violated the protections provided to Hamdan by both the UCMJ and Geneva
Conventions. Hamdan v. Rumsfeld, 548 U.S. 557 (2006). This decision was overturned
by the Court of Appeals, which determined the Geneva Conventions lacked judicial
authority in the United States and that the trial by military commission was legal, based
on the Court’s holding in the prior case of Ex Parte Quirin. Hamdan appealed and the
Supreme Court agreed to review the case in 2006. Hamdan v. Rumsfeld, 548 U.S. 557
(2006).
B. Analysis
The following two cases concern the legality of military commissions and procedures.
Initially, the government sought to dismiss Hamdan’s claim on the basis that the recently
enacted Detainee Treatment Act stripped federal courts of their jurisdiction over habeas
corpus petitions in this situation. However, as the case was pending prior to the passage
of the DTA in 2005, the Court denied this motion. Hamdan v. Rumsfeld, 548 U.S. 557
(2006).
34
The decision in this case somewhat mirrors that of Hamdi, but rather than determining
constitutional protections, the Court examined the legality of military commissions with
regards to the Geneva Conventions and the UCMJ. The Court noted that at the time this
case was decided, there was no federal legislation authorizing the use of military
commissions nor was there any mention of commissions in the Constitution. Hamdan v.
Rumsfeld, 548 U.S. 557 (2006). Thus, because of an absence of U.S. domestic law on the
use of military commissions, the determination of the legality of the commissions is
premised upon the process’ compliance with other applicable law, which in this case was
the laws of war. With this understanding, the Court sought to decide whether the military
commission by which Hamdan was tried was justified. Hamdan v. Rumsfeld, 548 U.S.
557 (2006).
In order to answer the question of whether Hamdan’s trial by military commission was
justified, the historical use of military tribunals was examined. The Court cites three
instances in which a tribunal has traditionally been employed: one, civilian courts are not
functioning due to a declaration of martial law; two, civilian government in an occupied
territory can not operate and a temporary military administration has been installed; and
three, instances in which a captured combatant has violated a law of war in the course of
hostilities. Hamdan v. Rumsfeld, 548 U.S. 557 (2006). None of these instances exists in
the present case. Guantanamo Bay is not an occupied enemy territory, nor is it under the
rule of martial law. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
The last circumstance, a violation of the laws of war, is the most difficult for the Court
to discern, but ultimately no violation is determined to be present in the current set of
facts. Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Hamdan has been charged with
35
conspiracy for a period that extends from 1996-2001. Hamdan v. Rumsfeld, 548 U.S. 557
(2006). This time period precedes the start of the conflict in Afghanistan, and thus the
charges do not stem from actions committed “in the theatre of war.” Hamdan v.
Rumsfeld, 548 U.S. 557 (2006). Also, due to an absence of statute defining crimes that
breach the laws of war, the Court looked to common practices in both international law
and the laws of the United States. The Court found no practice in either tradition of
defining the crime of conspiracy as a violation of the laws of war.10 Hamdan v.
Rumsfeld, 548 U.S. 557 (2006). This determination consequently excludes the charges
levied against Hamdan from classification as violating the laws of war.
In addition to the fact that the circumstances in this case do not meet one of the three
traditional cases in which tribunals are use, the Court also found that the military
commission process in this situation also violates the UCMJ. Hamdan v. Rumsfeld, 548
U.S. 557 (2006). Under the UCMJ, the President can only authorize the use of military
commissions in a way that is consistent with the laws of nations, including the Geneva
Conventions. Hamdan v. Rumsfeld, 548 U.S. 557 (2006). For reasons similar to those
described in Hamdi, the commission violates the laws of the Geneva Conventions by
prohibiting Hamdan from hearing evidence against him, which is a drastic divergence
from the procedures common in both civilian court proceedings and court-martials.
10
Justice Stevens emphasizes the Court’s decision in Quirin as evidence of this exclusion of
conspiracy as a violation of the laws of war. While the government attempts to use Quirin to bolster
its argument, Stevens finds that it actually makes a stronger case to the contrary. The Court refused
to explicitly deem conspiracy as a violation of the laws of war and sided with the petitioners that an
act must be carried out to constitute a violation rather than merely planning to, which by definition
conspiracy is. Hamdan v. Rumsfeld 548 U.S. 557 (2006)
36
Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Therefore, the military commission
procedure violates the UCMJ as well as international law.
In sum, the Court determined that Hamdan had been denied basic rights afforded to
him under provisions of the UCMJ and the Geneva Conventions. While military
commissions have been employed in the past to try detained combatants, none of the
historical circumstances requiring such use of a tribunal exists in this case. Hamdan v.
Rumsfeld, 548 U.S. 557 (2006). As such, the Court issued a five to three ruling in favor
of Hamdan and deemed the Executive established military tribunal process unlawful.
Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
37
The Suspension Clause: Boumediene v. Bush
A. Facts
In 2005, the Congress of the United States enacted legislation entitled the Detainee
Treatment Act (DTA). Boumediene v. Bush, 553 U.S. 723 (2008). The DTA outlined
procedures for evaluating a detainee’s status as an enemy combatant. Following the
Court’s decision in Hamdan, Congress passed the Military Commissions Act (MCA),
which explicitly removed the jurisdiction of federal courts to hear petitions for habeas
corpus from detainees held at Guantanamo. Boumediene v. Bush, 553 U.S. 723 (2008).
Prior to the passing of the MCA, Boumediene, an Algerian citizen, was captured by
Bosnian forces on suspicions that he was involved in a plan to attack the United States
embassy in the country. Boumediene v. Bush, 553 U.S. 723 (2008). Transferred to
Guantanamo, Boumediene filed a petition for a writ of habeas corpus, but the petition
was initially denied, the District Court finding that because Boumediene was an alien
being held on foreign soil, constitutional protections don’t apply. Boumediene v. Bush,
553 U.S. 723 (2008). However, the Supreme Court’s ruling in Rasul overruled this
decision because the Rasul decision had already established the reach of habeas corpus
rights to detainees at Guantanamo. Boumediene again petitioned for a writ of habeas
corpus. This time, he alleged that the MCA violated the Suspension Clause of the
Constitution11 by not providing an equitable substitute for habeas corpus after stripping
federal court jurisdiction over the matter. Boumediene v. Bush, 553 U.S. 723 (2008).
The Court of Appeals determined that the MCA effectively removed its jurisdiction and
because the court no longer had jurisdiction to hear the case, the appeal was dismissed.
11
The exact wording of the clause is included previously in the section describing the history of the
writ of habeas corpus.
38
Having found no authority to rule on the habeas corpus petition, the Court of Appeals
found it unnecessary to examine whether the Detainee Treatment Act created a sufficient
alternate to habeas corpus. The Supreme Court granted certiorari in 2008. Boumediene v.
Bush, 553 U.S. 723 (2008).
B. Analysis
The decision in this case is, in a sense, a culmination of the legal reasoning employed
in the previous opinions. The central issue in this case concerns the Suspension Clause of
the United States Constitution. As mentioned previously, the Suspension Clause states,
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it” (Art. I, § 9, Cl 2). The
petitioners seek to establish a right to habeas corpus that cannot be suspended except as
provided for in the clause. Boumediene v. Bush, 553 U.S. 723 (2008).
The first question in this case, as with most, is the determination of jurisdiction. The
Court notes that the Military Commissions Act expressly removes jurisdiction from the
federal court system in petitions for habeas corpus arising out of Guantanamo Bay.
Boumediene v. Bush, 553 U.S. 723 (2008). As Justice Kennedy conveys in the majority
opinion, the Court does not have jurisdiction over the matter if the legislation is
determined to be valid. As to this inquiry, it is determined that the statute
unconstitutionally suspends the right to habeas corpus and provides no equitable
alternative. Boumediene v. Bush, 553 U.S. 723 (2008).
While the Detainee Treatment Act provides a form of relief through a military
commission, the Court has held in a previous case (see Hamdan v. Rumsfeld) that the
tribunal process violates rights afforded to detainees through both international and
39
UCMJ law. Having no alternative relief adequately comparable to habeas corpus, the
only way the statute would be valid is if the right to file a petition for habeas corpus did
not exist in the first place. Boumediene v. Bush, 553 U.S. 723 (2008). The government
argues that the citizenship of the petitioners as aliens and the physical location of the
detention center at Guantanamo Bay exclude the application of the United States
Constitution in this case. Boumediene v. Bush, 553 U.S. 723 (2008). However, the
Court dismissed this claim, in part relying on similar reasoning as that found in the Rasul
decision. The opinion identifies three components necessary to determine the reach of
the Suspension Clause:
(1) the citizenship and status of the detainee and the adequacy of the
process through which the determination was made; (2) the nature of the
sites where apprehension and then detention took place; and (3) the
practical obstacles inherent in resolving the prisoner’s entitlement to the
writ. Boumediene v. Bush 553 U.S. 723, 37 (2008).
While the detainees are foreign aliens, the procedure of military commissions does not
prove to be adequate. Boumediene v. Bush, 553 U.S. 723 (2008). The facts in this case,
and all the cases examined in this paper, are in a sense incomparable to any other case in
history. However, the Court notes that the absence of precedent applicable to this
situation does not hinder its ability to make a legally justified decision. Boumediene v.
Bush, 553 U.S. 723 (2008). Based on previous holdings in the cases pertaining to
detention at Guantanamo Bay, it is decided by the Court that the laws of the Constitution
do extend to detainees held at Guantanamo Bay12. As a result, Congressional legislation
must remain in compliance with the Suspension Clause. Boumediene v. Bush, 553 U.S.
12 See Rasul v. Bush, in which the Court established that the location of detainees at Guantanamo Bay
and their citizenship as foreign nationals do not remove the reach of habeas corpus rights as
guaranteed in the Constitution.
40
723 (2008). However, the Military Commission Act’s removal of federal court
jurisdiction from habeas corpus petition cases is effectively an unconstitutional
suspension of habeas corpus. Boumediene v. Bush, 553 U.S. 723 (2008).
41
Common Holdings and Themes
The most prominent theme throughout the Guantanamo Bay cases, and the one upon
which all the cases ultimately hinge, is the extraterritorial reach of the Constitution. Had
the Court decided differently in Rasul, neither Hamdan nor Boumediene would have had
the necessary merit to be heard for lack of jurisdiction by the federal courts. 13 In the
Rasul opinion, Justice Stevens asserts:
In Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 495 (1973),
this Court held, contrary to Ahrens, that the prisoner’s presence within the
territorial jurisdiction of the district court is not “an invariable
prerequisite” to the exercise of district court jurisdiction under the federal
habeas statute. Rather, because “the writ of habeas corpus does not act
upon the prisoner who seeks relief, but upon the person who holds him in
what is alleged to be unlawful custody,” a district court acts “within [its]
respective jurisdiction” within the meaning of §2241 as long as “the
custodian can be reached by service of process.” 410 U.S., at 494—495.
Rasul v. Bush 542 U.S. 466, 10 (2004).14
Essentially, Stevens is noting that the writ of habeas corpus is in fact directed at the jailer,
as opposed to the detained. Therefore, the jailer, not the detainee, must fall within the
purview of federal court jurisdiction. At Guantanamo Bay, the detainees are held by the
United States military, individuals who clearly fall within the jurisdiction of the federal
courts. According to the legal reasoning employed in Rasul, the jailer being under the
jurisdiction of the United States confers statutory authority to the courts to issue writs of
13
The decision regarding the extraterritorial reach of the Constitution does not have the same effect
on Hamdi because he was being held on U.S. soil.
14 The Aherns case mentioned in the Rasul opinion refers to a situation involving more than a
hundred Germans being held at Ellis Island for deportation because “each of them is dangerous to the
public peace and safety of the United States because he has adhered to a government with which the
United States is at war or to the principles thereof.” Aherns v. Clark, 335 U.S. 188, 189 (1948). Those
being held sought a writ of habeas corpus in district court, raising the question of whether the federal
courts had jurisdiction under the circumstances of the case. The Court ultimately held that “the writ
[of habeas corpus] can issue only when the place of confinement lies within the limits of the court's
territorial jurisdiction.” Aherns v. Clark, 335 U.S. 188, 194 (1948).
42
habeas corpus. Thus, the physical location of the detainee does not necessarily exclude
the Court from maintaining its authority. This theme of extraterritoriality and jurisdiction
presents itself in all the cases, and the determination by the Court regarding the extension
of jurisdiction to Guantanamo Bay in Rasul created the precedent upon which jurisdiction
could be asserted in the Hamdan and Boumediene cases.
The second common holding throughout each of the cases is the irrelevance of the
petitioner’s citizenship in determining what rights may be afforded to the detainee. In the
case of Hamdi, an American citizen, the Court ruled that citizen combatants have the
right to challenge their designation as such before an independent adjudicator. In Rasul,
the Court determined that the fact that the detainee is a foreign alien does not exclude the
right to counsel, the ability to hear evidence to be used by the prosecution, and other
rights enumerated in the Constitution. The detainees, at the very least, have the right to
challenge their detention by invoking the federal courts habeas corpus jurisdiction. This
goes hand in hand with the theme of extraterritoriality because the holding that
jurisdiction extends to the base means that federal laws, and consequently the
Constitution, are applicable to the actions of the government in relation to the detainees at
Guantanamo Bay.
In Hamdan and Boumediene, the right to trial in civilian court as opposed to military
commission is asserted by determining that the Common Article III of the Geneva
Conventions is applicable to all captured combatants. While the government argued that
as unlawful combatants (see distinction from lawful combatants in Eisentrager) detainees
were not entitled to Geneva protections, the Court held that Common Article III applied
43
in this case and provided minimum protections. Hamdan v. Rumsfeld, 548 U.S. 557
(2006). The relevant provisions of Common Article III are excerpted below:
Art 3. In the case of armed conflict not of an international character
occurring in the territory of one of the High Contracting Parties, each
Party to the conflict shall be bound to apply, as a minimum, the following
provisions:
(1) Persons taking no active part in the hostilities, including members of
armed forces who have laid down their arms and those placed hors de
combat by sickness, wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse distinction
founded on race, colour, religion or faith, sex, birth or wealth, or any other
similar criteria. To this end the following acts are and shall remain
prohibited at any time and in any place whatsoever with respect to the
above-mentioned persons…
(d) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court affording
all the judicial guarantees which are recognized as indispensable by
civilized peoples. (ICRC, Geneva Convention III, Art. 3, 1949)
Common Article III was established to provide protections in conflicts “not of an
international character” and was intended to apply to conflicts that occur within the
territorial borders of one state, such as cases of civil war (Akande, 2011). An
international conflict refers to a conflict between two or more nation states. However, the
Taliban is not a nation state nor is it affiliated with the government of a nation state
(Akande, 2011). The group is most synonymous to that of a band of guerilla fighters or
other non-state sponsored opposition group. Thus, the war against al-Qaeda in
Afghanistan is not an international conflict. Akande notes the following about the
characterization of a conflict as noninternational in nature:
In the view of this author, the law that governs transnational conflicts
between a State and a non-State group will depend, in the first place, on
whether the territorial State in which the non-state group is based has
given its consent to the foreign State using force against that group. Where
44
such consent exists, then the conflict will be governed by the law of noninternational armed conflicts. The situation here will be no different from
a situation in which the territorial State is itself fighting the non-State
group and invites the foreign State to intervene. The consent of the
territorial State has the effect that there are not two opposing States
involved in the conflict. (Akande, 2011)
Based on this definition, the conflict with the Taliban should be categorized as not of an
international character. Because of this, the Court determined that the detainees fell
within the purview of Common Article III as “placed hors de combat” by their detention.
Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
Having determined such, the Court further held that the military commission as
established through congressional legislation violates the Geneva Conventions and does
not provide an adequate alternative the habeas corpus review process by the federal
judiciary. The Court describes the inadequacies of the Combatant Status Review
Tribunals (CSRT) as follows:
In comparison the procedural protections afforded to the detainees in the
CSRT hearings are far more limited, and, we conclude, fall well short of
the procedures and adversarial mechanisms that would eliminate the need
for habeas corpus review. Although the detainee is assigned a “Personal
Representative” to assist him during CSRT proceedings, the Secretary of
the Navy’s memorandum makes clear that person is not the detainee’s
lawyer or even his “advocate.” The Government’s evidence is accorded a
presumption of validity. Id., at 159. The detainee is allowed to present
“reasonably available” evidence, id., at 155, but his ability to rebut the
Government’s evidence against him is limited by the circumstances of his
confinement and his lack of counsel at this stage. And although the
detainee can seek review of his status determination in the Court of
Appeals, that review process cannot cure all defects in the earlier
proceedings. Boumediene v. Bush 553 U.S. 723, 37-38 (2008).
Essentially, the CSRT process violates clause (d) of Common Article III by not providing
such judicial guarantees as right to counsel, right to see evidence, etc. Hamdan v.
45
Rumsfeld, 548 U.S. 557 (2006). The Court noted some of these guarantees in the
following excerpt:
For the writ of habeas corpus, or its substitute, to function as an effective
and proper remedy in this context, the court that conducts the habeas
proceeding must have the means to correct errors that occurred during the
CSRT proceedings. This includes some authority to assess the sufficiency
of the Government’s evidence against the detainee. It also must have the
authority to admit and consider relevant exculpatory evidence that was not
introduced during the earlier proceeding. Boumediene v. Bush 553 U.S.
723, 54 (2008).
There is a common notion expressed throughout each of these decisions that regardless of
citizenship, detainees are afforded a minimum set of rights, which are detailed in
Common Article III of the Geneva Conventions and the United States Constitution.
The final holding common in each of the cases relates to restraining presidential
power during a time of war. As it did in Milligan when it restrained presidential
authority to establish military commissions, the Court limited presidential power when it
ruled that the executive does not have the authority to indefinitely detain suspected
combatants. This notion is reinforced by the very nature of the Court’s exercise of
habeas corpus review. The ability to challenge one’s status or legality of detention is
essentially a prohibition on indefinite detention by requiring a filing of charges and the
presentation of evidence. In Hamdan, the opinion of the Court states, “Any process in
which the Executive’s factual assertions go wholly unchallenged or are simply presumed
correct without any opportunity for the alleged combatant to demonstrate otherwise falls
constitutionally short.” Hamdan v. Rumsfeld 548 U.S. 557 (2006). The Court effectively
removed George Bush’s ability to label a captured person as an unlawful combatant and
hold them indefinitely without any specified charges.
46
Implications- How the Legal Principles Apply to Other Current Issues
A. Anwar Al-Aulaqi: Targeted Killing of Combatant American Citizens
In September 2011, a CIA ordered drone attack killed extremist Yemeni cleric, Anwar
Al-Aulaqi (Finn, 2012). Less than a year prior, Al-Aulaqi’s father, Nasser Al-Aulaqi,
filed a petition in the United States District Court for the District of Columbia seeking an
injunction to stop the American government from targeting his son for killing claiming
such action would be unlawful. The government responded to the petition by motioning
for dismissal on several grounds, including the political question doctrine and state
secrets privilege. Al-Aulaqii v. Obama, No. 10-1469 (2010). In its opinion, the Court
noted the unique nature of such a situation and the paradoxical questions that arose from
the facts in this case:
Stark, and perplexing, questions readily come to mind, including the
following: How is it that judicial approval is required when the United
States decides to target a U.S. citizen overseas for electronic surveillance,
but that, according to defendants, judicial scrutiny is prohibited when the
United States decides to target a U.S. citizen overseas for death? Can a
U.S. citizen – himself or through another – use the U.S. judicial system to
vindicate his constitutional rights while simultaneously evading U.S. law
enforcement authorities, calling for “jihad against the West,” and engaging
in operational planning for an organization that has already carried out
numerous terrorist attacks against the United States? Can the Executive
order the assassination of a U.S. citizen without first affording him any
form of judicial process whatsoever, based on the mere assertion that he is
a dangerous member of a terrorist organization? Al-Aulaqi v. Obama, No.
10-1469, 2 (2010).
Based on the Supreme Court’s decision in Hamdi v. Rumsfeld as precedent, I will argue
that the government’s targeting of an American citizen without any judicial process
whatsoever should be deemed unconstitutional.
47
As outlined in the facts presented in the opinion of the Court, Anwar Al-Aulaqi is an
American citizen, born in New Mexico in 1971. He completed his undergraduate studies
at Colorado State University before earning his master’s degree from San Diego
University, at which point he moved to Yemen. Al-Aulaqi v. Obama, No. 10-1469
(2010). According to the Treasury Department’s Office of Foreign Assets Control
(OFAC), Al-Aulaqi assumed an increasingly more prominent role within al-Qaeda’s
operations in the Arabian Peninsula beginning in late 2009. He is accused by OFAC of
aiding both the man charged with attempting to blow up a flight headed for Detroit on
Christmas Day in 2009 and Nidal Hasan, the U.S. Army member accused of killing
thirteen people in a rampage that occurred at Fort Hood just a month earlier. Al-Aulaqi v.
Obama, No. 10-1469 (2010). The culmination of these actions and Al-Aulaqi’s
increasingly public calls for “jihad against the West” led OFAC to designate him as a
“Specially Designated Global Terrorist.” Al-Aulaqi v. Obama, No. 10-1469, 5 (2010).
Charges were never filed against Al-Aulaqi. Instead, his father asserts that Anwar was
included on CIA “kill lists” based on various media reports citing statements from
anonymous military and intelligence personnel. Al-Aulaqi v. Obama, No. 10-1469
(2010). While the government does not confirm nor deny the existence of such “kill
lists,” or consequently the inclusion of Al-Aulaqi on any such list, the government does
readily assert that should he choose to turn himself in peacefully, the officials detaining
Al-Aulaqi would be bound by international legal principles that “would prohibit using
lethal force or other violence against him.” Al-Aulaqi v. Obama, No. 10-1469, 8 (2010).
Among other things, Al-Aulaqi’s father claims that the targeted killing of his son without
charges or conviction are a violation of several constitutional principles, including the
48
right to be free from illegal seizure and the prohibition on the deprivation of life without
due process of the law. Al-Aulaqi v. Obama, No. 10-1469 (2010).
The first question addressed by the District Court is that of standing, a procedural
matter. In the judicial system of the United States, a petitioner must have proper standing
in order to invoke the jurisdiction of the federal courts. This requirement arises from
Article III of the Constitution, which extends the judicial power of the United States to
“cases” and “controversies” arising under the Constitution and the laws of the United
States. Al-Aulaqi v. Obama, No. 10-1469 (2010). As it has evolved over time, the
doctrine of standing as applied today has come to require three criteria be met in order for
federal jurisdiction to properly be invoked:
… a plaintiff must allege (1) an “inquiry in fact” which is “(a) concrete
and particularized and (b) actual or imminent, not conjectural or
hypothetical”; (2) “a causal connection between the injury and the conduct
complained of”; and (3) a likelihood “that the injury will be redressed by a
favorable decision.” Al-Aulaqi v. Obama, No. 10-1469, 13 (2010).
In determining whether Nasser Al-Aulaqi has standing under this doctrine to bring this
petition on behalf of his son, the Court looks no further than the first requirement. A
concrete and particularized injury, by definition, requires harm, or the imminent threat of
harm, to have been done directly to, or been directed at, the petitioner himself. Because
he is filing on behalf of his son, Nasser is a third-party to the case. The previous case of
Warth v. Seldin held that a “plaintiff generally must assert his own legal right and
interests.” Al-Aulaqi v. Obama, No. 10-1469 (2010).
In the present case, Al-Aulaqi’s
father does not have standing under these requirements to bring forth a suit in federal
49
court. The federal district court dismisses Al-Aulaqi’s petition due to lack of standing.15
Having been dismissed, the Court declines to entertain the overarching question of
whether the Executive can constitutionally order the targeted killing of citizen
combatants abroad.
In his discussion on citizen combatants, Perkins notes, “In times of national crisis civil
liberties are sometimes abridged in exchange for greater security,” (2004, p. 437) but “It
is the function of the judiciary to stand as a bulwark against the people’s representatives
when public fear and outrage compel or allow measures that contravene or undermine
core constitutional principles” (Perkins, 2004, p. 438). Justice O’Connor reaffirms this
notion in the opinion of the Court in Hamdi:
“It is during our most challenging and uncertain moments that our
Nation’s commitment to due process is most severely tested; and it is in
those times that we must preserve our commitment at home to the
principles for which we fight abroad.” Hamdi v. Rumsfeld 542 U.S. 507,
25 (2004).
In the case of Al-Aulaqi, the District Court failed at being the “bulwark” against the
infringement of the constitutional principles upon which this country was founded. By
avoiding the questions of merit in this case, the District Court essentially paved the way
The Court notes two exceptions to this general doctrine of standing: “next friend” standing and
“third-party” standing. The first, “next friend” standing requires the petitioner to be acting on behalf
of the “best interests” of the person in question. The Court dismisses Al-Aulaqi’s claim that he is
acting in the best interest of his son based on the fact that his son has made numerous public
statements that he has no desire to adjudicate this matter in the United States judicial system and has
outright criticized the American legal system. Al-Aulaqi v. Obama, No. 10-1469 (2010). The fact that
he is a parent does not automatically invoke standing under this “best interests” standards (see
Anthem Life Ins. v. Olguin, 2007). The criteria for third-party standing arises under Article III of the
Constitution, which again requires a “direct and particularized injury”, except in this case, the injury
must occur to the petitioner himself as a third party. Al-Aulaqi v. Obama, No. 10-1469 (2010). AlAulaqi claims that the killing of his son presents a direct injury to himself. However, the Court held
that emotional harm alone “is not sufficient to satisfy Article III’s injury in fact requirement.” AlAulaqi v. Obama, No. 10-1469 (2010). Therefore, the petitioner does not have standing under either
“next friend” or “third party” standing criteria and thus, the case is dismissed.
15
50
for the executive-ordered drone attack that eventually killed Anwar Al-Aulaqi. The
targeted killing of American citizens abroad, without any due process or judicial
proceedings, is unconstitutional as it deprives Al-Aulaqi of his life without due process of
the law. Generally speaking, the due process clause “promises that before depriving a
citizen of life, liberty or property, government must follow fair procedures. Thus, it is not
always enough for the government just to act in accordance with whatever law there may
happen to be. Citizens may also be entitled to have the government observe or offer fair
procedures, whether or not those procedures have been provided for in the law on the
basis of which it is acting” (Legal Information Institute). The killing of an American
citizen without any judicial process is not either fair or in accordance with the
Constitution.
The targeted killing of Al-Aulaqi also violates precedent set forth by Hamdi v.
Rumsfeld on two accounts: first, the classification of targets on “kill lists” occurs in a
process entirely conducted by executive and military officials and does not present
evidence above the “some evidence” standard found to be insufficient by the Court in
Hamdi’s case; second, the process of placement on “kill lists” does not afford Al-Aulaqi
the ability to challenge his status or position on the list, or anyone on his behalf to do so.
The processes by which terrorists and affiliates are placed on certain lists and targeted
for execution remain largely guarded. However, several news reports cite information
from former and current officials about the process. According to one report, the panel
making such decisions is a subset of the National Security Council and comprised of
senior government officials (Hosenball, 2011). The anonymous government sources
continue by asserting that once placement on the list is decided by the panel, the
51
President is then informed (Hosenball, 2011).16 According to these facts, the process is
entirely conducted by the Executive and closed to any oversight. In the opinion of the
Court, O’Connor writes, “Any process in which the Executive’s factual assertions go
wholly unchallenged or are simply presumed correct without any opportunity for the
alleged combatant to demonstrate otherwise falls constitutionally short.” Hamdi v.
Rumsfeld 542 U.S. 507, 30 (2004). The government does not meet even the minimum
of the “some evidence” standard, which itself was ruled unconstitutional in Hamdi, by
failing to provide any evidence whatsoever.
While it is understandable that the petitioner himself cannot challenge his position on
any “kill list” as such inclusion is never confirmed by the government, there should be
some disclosure by the government to the judicial branch to determine the sufficiency of
evidence in order to prevent the exercise of unfettered power by the Executive. In other
sensitive national security matters, the U.S. government has established the Foreign FISA
Court. Created in 1978 as a result of the Foreign Intelligence Surveillance Act, the Court
approves wiretap requests in national security intelligence cases: “To get a FISA wiretap
the FBI must show probable cause to believe the target of the surveillance is a foreign
agent or suspected terrorist” (Ryan, 2006). Applying a similar procedure for unique
situations like the Al-Aulaqi case would not only provide a measure of judicial process,
For the purpose of this legal argument, it can be assumed that such hearsay from reputable media
sources would be admissible. In the Hamdi decision, Justice O’Connor writes, “Hearsay, for example,
may need to be accepted as the most reliable available evidence from the Government in such a
proceeding.” The information provided by government sources is essentially hearsay. The
anonymity of the sources is due to the sensitive nature of national security present in this case.
These circumstances also constitute one in which hearsay is likely all that would be available to the
public and judiciary, as it is clear the executive department has not divulged any such information
itself. Therefore, it can be concluded that the hearsay describing the process would constitute a
situation in which hearsay may be the only reliable information presented to explain the actions of
the government.
16
52
but it would also require a sufficient evidence standard. The use of FISA Court to
oversee executive action in an area of national security show that not only can it be done,
a balance between the national security interests of the state and the preservation of
judicial process can be achieved.
The jurisprudence that emerged from the Guantanamo cases reveals a common trend
of restricting the power of the Executive during the war. In fact, Justice O’Connor
acknowledges such in the opinion of Hamdi, stating, “We have long since made clear that
a state of war is not a blank check for the President when it comes to the rights of the
Nation’s citizens.” Hamdi v. Rumsfeld 542 U.S. 507, 29 (2004). The Court’s holdings
that ruled unconstitutional both indefinite detention of captured combatants and the
military commissions established by the Executive show a clear supremacy of
constitutional principles despite the circumstances of war. While the facts surrounding
the detention of combatants at Guantanamo differ from those of Al-Aulaqi, who is in fact
not captured or held by military authorities, his location in a foreign country and status as
a combatant against the United States do not deprive him of his constitutional rights as an
American citizen, and neither does the fact that he remain free from capture. If the Court
finds that indefinite detention without judicial access is unconstitutional, the deprivation
of life without such oversight, a more serious offense than detention, should too be found
in violation of the Constitution and a blatant attempt to unconstitutionally expand
Presidential war powers at the expense of civil liberties.
It is clear that this situation is a unique question that requires the balance of national
interests with that of public interests, a situation described by Justice O’Connor as
follows:
53
Striking the proper constitutional balance here is of great importance to
the Nation during this period of ongoing combat. But it is equally vital
that our calculus not give short shrift to the values that this country holds
dear or to the privilege that is American citizenship. It is during our most
challenging and uncertain moments that our Nation’s commitment to due
process is most severely tested; and it is in those times that we must
preserve our commitment at home to the principles for which we fight
abroad. Hamdi v. Rumsfeld 542 U.S. 507, 25 (2004).
This balance is clearly not achieved in the case of Al-Aulaqi, in which the Executive’s
actions go largely unnoticed and unchallenged. In this case, the national security
interests of the state completely overrule the constitutional rights afforded to all citizens.
This case presented an opportunity for the District Court to set a foundation and continue
to build upon the rights asserted by the Court in the cases arising from Guantanamo Bay.
However, the District Court did not take advantage of this opportunity, and the question
regarding the constitutionally of Executive ordered execution of citizen combatants
remains unanswered, at least judicially. Yet, the application of the same jurisprudence
formed from the Guantanamo Bay cases, namely Hamdi, to the situation with Al-Aulaqi
leads to the reasonable conclusion that should the Supreme Court ever entertain the
merits of Executive ordered execution of citizen combatants abroad, it is likely such
action would be found unconstitutional.
54
B. National Defense Authorization Act
On December 31, 2011, President Obama signed into law the National Defense
Authorization Act, an appropriations bill that provides funding for defense spending for
the 2012 fiscal year (Nakamura, 2011). However, prior to his authorization of the
legislation, there had been threats of a veto because of certain provisions the bill included
regarding detainees in the War on Terror (Savage, 2011). While the House of
Representatives removed a provision prohibiting the use of civilian courts to try terrorist
suspects, the Senate added a confined stipulation that allows for the indefinite detention
of suspected al Qaeda operatives and affiliates. In Section 1031, the legislation describes
the following authority relating to detainee matters in the War on Terrorism:
Congress affirms that the authority of the President to use all necessary
and appropriate force pursuant to the Authorization for Use of Military
Force (Public Law 107–40) includes the authority for the Armed Forces of
the United States to detain covered persons (as defined in subsection (b))
pending disposition under the law of war…
The disposition of a person under the law of war as described in
subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the
hostilities authorized by the Authorization for Use of Military Force.
(H1540CR.HSE)
In effect, Congress is authorizing the Executive to indefinitely detain suspected terrorists,
and consequently suspending habeas corpus rights by doing so, an act that not only
violates the Suspension Clause of the Constitution, but also contradicts the precedent
established by Boumediene v. Bush17.
17
The cited portion of the National Defense Authorization Act violates precedent because in
Boumediene v. Bush, the Court held that Congress did not have the power to suspend habeas corpus
rights by removing appellate jurisdiction without providing an equitable substitute. Though there is
no removal of jurisdiction in this case, including a provision that allows for indefinite detention
removes any chance for accessing the courts and the remedies that can be afforded if the detainee is
being held unlawfully. Removing all access to judicial relief is an effective suspension of habeas
corpus as prohibited by the Constitution.
55
Delivering the majority opinion of the Court, Justice Kennedy describes the purpose
of the inclusion of the Suspension Clause in the United States Constitution:
The Clause protects the rights of the detained by a means consistent with
the essential design of the Constitution. It ensures that, except during
periods of formal suspension, the Judiciary will have a time-tested device,
the writ, to maintain the “delicate balance of governance” that is itself the
surest safeguard of liberty. See Hamdi, 542 U. S., at 536 (plurality
opinion). The Clause protects the rights of the detained by affirming the
duty and authority of the Judiciary to call the jailer to account.
Boumediene v. Bush 553 U.S. 723, 15 (2008).
In the current War on Terror, there is no formal suspension of the writ by executive order,
as there was by Abraham Lincoln during the Civil War and by Franklin Roosevelt during
World War II. Therefore, the status of detainees as combatants does not prohibit their
access to the courts. Boumediene v. Bush 553 U.S. 723 (2008).
The effect of the National Defense Authorization Act is similar to that of the Military
Commissions Act (MCA), which stripped the federal courts of their jurisdiction and
entrusted the entirety of decisions regarding detainees in the War on Terror to military
commissions. The excerpt from the National Defense Authorization Act presented above
provides essentially the same results. In fact, the excerpted provision of the NDAA does
not even provide the possibility for detainees to be heard before a military commission,
rather stating that detainees can be held without trial for the duration of hostilities. The
language effectively provides congressional authorization for indefinite detention. In his
discussion on the matter, Neuman notes the Court’s assertion that the Suspension Clause
is in part a structural provision intended to maintain the separation of power among the
branches of government (2010). He states, “It remains noteworthy, however, that
description of the Suspension Clause as a separation of powers provision focuses
56
predominantly on its role in guaranteeing a remedy for detention by the executive
branch” (Neuman, 2010, p.550). With this intent of the Suspension Clause in mind, the
argument that the National Defense Authorization Act violates the clause is further
strengthened; the Act removes judicial oversight and jurisdiction entirely from the
situation, providing no relief from executive ordered detention.
In the Boumediene decision, Justice Kennedy writing the majority opinion states the
following:
The cases before us, however, do not involve detainees who have been
held for a short period of time while awaiting their CSRT determinations.
Were that the case, or were it probable that the Court of Appeals could
complete a prompt review of their applications, the case for requiring
temporary abstention or exhaustion of alternative remedies would be much
stronger. These qualifications no longer pertain here. In some of these
cases six years have elapsed without the judicial oversight that habeas
corpus or an adequate substitute demands. And there has been no showing
that the Executive faces such onerous burdens that it cannot respond to
habeas corpus actions. Boumediene v. Bush 553 U.S. 723, 65-66 (2008).
From the Court’s discussion of the CSRT, it can reasonably be concluded that the same
logic would apply to the language of the National Defense Authorization Act. Removing
access to trial also removes the detainee’s possibility to seek review and remedy from an
appeals court. The Act provides for detention for the “duration of hostilities.” Having
already lasted over a decade, in the current war detention for the duration of hostilities
could mean combatants are held for several years, with no access to judicial relief to
challenge such detention. Based on this assertion of the Court in Boumediene, indefinite
detention as authorized in the National Defense Authorization Act violates the
Suspension Clause and is, therefore, unconstitutional.
Recently, the Obama administration sought to create exemptions from some of the
57
above-mentioned issues. The National Defense Authorization Act, in certain cases,
requires that those suspected of being Al Qaeda operatives or affiliates be held in military
custody without access to the civilian courts (Savage, 2012). Disagreeing with this rule,
the Obama administration began preparing waivers for “any case in which officials
believed that placing a detainee in military custody could impede counterterrorism
cooperation with the detainee’s home government or interfere with efforts to secure the
person’s cooperation or confession” (Savage, 2012). The waivers also cover permanent
lawful residents arrested within the United States or whose alleged crimes took place
within the country (Savage, 2012). Such a step provides some relief to the
unconstitutional suspension of habeas corpus by allowing access to civilian courts and the
rights afforded by such access, including a fair and speedy trial, but because they do not
cover all detainees, the waivers will not go so far as to completely solve the problem.
Whether these waivers will provide some relief to those detained currently or who will be
in the future is yet to be seen.
58
Conclusion
There can be no doubt that the circumstances surrounding the War on Terror are
unlike those of any war in our nation’s past. Hostilities have been continuous and
ongoing for longer than any other war in recent history. This fact presents particular
problems in relation to indefinite detention. Also, the very nature of present warfare
makes terrorism difficult to combat. Increased technology and a highly globalized world
have provided terrorists with access to a greater assortment of potentially devastating
weapons. However, the circumstances surrounding the use of terrorism do not warrant
the restriction of civil liberties. Justice Kennedy sums up the responsibility of the Court
and its role in the War on Terror as follows:
Because our Nation’s past military conflicts have been of limited
duration, it has been possible to leave the outer boundaries of war powers
undefined. If, as some fear, terrorism continues to pose dangerous threats
to us for years to come, the Court might not have this luxury. This result
is not inevitable, however. The political branches, consistent with their
independent obligations to interpret and uphold the Constitution, can
engage in a genuine debate about how best to preserve constitutional
values while protecting the Nation from terrorism. Boumediene v. Bush
553 U.S. 723, 69 (2008).
Furthermore, the design of the Constitution is such as to afford those within its
jurisdiction basic rights, regardless of the difficulties the country may be facing. Justice
Kennedy continuing:
The laws and Constitution are designed to survive, and remain in force, in
extraordinary times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the law. The Framers
decided that habeas corpus, a right of first importance, must be a part of
that framework, a part of that law. Boumediene v. Bush 553 U.S. 723, 70
(2008).
The decisions of the Court in the four main cases arising from Guantanamo Bay serve to
59
reinforce the fundamental protections provided by the right to habeas corpus.
Despite the decisions in the cases at the focus of this paper, questions of
constitutionality have continued to arise as hostilities continue. While employing the
legal principles found in past cases can provide some insight as to the legality of the
Executive branch’s action in targeting citizen combatants or the Legislative branch’s
grant of authority allowing indefinite detention, the cases have yet to definitively be
decided, a fact that is unlikely to change in the near future. Yet, the precedent established
by the Court in the cases related to Guantanamo Bay proves to reinforce the supremacy
of the Constitution and to dispel notions of unlimited Executive power during times of
war, principles that are likely to persist in legal thought and provide the foundation for
situations that have yet to occur. The continued importance of the Court’s decisions in
Rasul v. Bush, Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush will be
seen for years to come.18
In 2004, Shafiq Rasul was released from Guantanamo months prior to the Court’s issuance of a
decision in Rasul v. Bush. He was returned to his home country of England and within 36 hours of his
return, British authorities released him without filing any charges (Washington Media Associates,
2008). Yaser Hamdi was also released in 2004, returning to Saudi Arabia with the condition that he
renounces his American citizenship within a week; he did so as soon as he stepped off the plane. He,
too, was not charged with any crime upon his release to the Saudi government (Brinkley & Lichtblau,
2004). Salim Ahmed Hamdan was tried under new military commission standards that were
implemented as a result of his case before the Court. He was found guilty by a jury of material
support of terrorism for the aid he provided as Osama bin Laden’s driver. While sentenced to 66
months of detention, Hamdan was credited with 61 months served for the time he had already spent
at Guantanamo. In 2008, Hamdan was transferred home to Yemen, where he was released to the
custody of the Yemeni government and would complete the remaining month of his sentence (White
& Branigin, 2008). Following his Court win, Lakhdar Boumediene was ordered released from
American custody after a federal judge found the evidence against him lacking. After more than
seven years of detention, Boumediene was released to France a free man in 2009 (Smith, Tappers, &
Travers, 2009, p.2-3).
18
60
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66
Appendix I: Text of Mobbs Declaration
Declaration of Michael H. Mobbs
Special Advisor to the Under Secretary of Defense
for Policy
Filed in Hamdi v. Rumsfeld, No. 2:02CV439 (E.D. Va.)
Declaration of Michael H. Mobbs
Special Advisor to the Under Secretary of
Defense for Policy
Pursuant to 28 U.S.C. § 1746, I, Michael H. Mobbs, Special Advisor to the Under
Secretary of Defense for Policy, hereby declare that, to the best of my knowledge,
information and belief, and under the penalty of perjury, the following is true and correct:
1. I am a Special Advisor to the Under Secretary of Defense for Policy. In this position, I
have been substantially involved with matters related to the detention of enemy
combatants in the current war against the al Qaeda terrorists and those who support and
harbor them (including the Taliban). I have been involved with detainee operations since
mid-February 2002 and currently head the Under Secretary of Defense for Policy's
Detainee Policy Group.
2. I am familiar with Department of Defense, U.S. Central Command and U.S. land
forces commander policies and procedures applicable to the detention, control and
transfer of al Qaeda or Taliban personnel in Afghanistan during the relevant period.
Based upon my review of relevant records and reports, I am also familiar with the facts
and circumstances related to the capture of Yaser Esam Hamdi and his detention by U.S.
military forces.
3. Yaser Esam Hamdi traveled to Afghanistan in approximately July or August of 2001.
He affiliated with a Taliban military unit and received weapons training. Hamdi remained
with his Taliban unit following the attacks of September 11 and after the United States
began military operations against the al Qaeda and Taliban on October 7, 2001.
4. In late 2001, Northern Alliance forces were engaged in battle with the Taliban. During
this time, Hamdi's Taliban unit surrendered to Northern Alliance forces and he was
transported with his unit from Konduz, Afghanistan to the prison in Mazar-e-Sharif,
Afghanistan which was under the control of the Northern Alliance forces. Hamdi was
directed to surrender his Kalishnikov assault rifle to Northern Alliance forces en route to
Mazar-e-Sharif and did so. After a prison uprising, the Northern Alliance transferred
Hamdi to a prison at Sheberghan, Afghanistan, which was also under the control of
Northern Alliance forces.
67
5. While in the Northern Alliance prison at Sheberghan, Hamdi was interviewed by a
U.S. interrogation team. He identified himself as a Saudi citizen who had been born in the
United States and who entered Afghanistan the previous summer to train with and, if
necessary, fight for the Taliban. Hamdi spoke English.
6. Al Qaeda and Taliban were and are hostile forces engaged in armed conflict with the
armed forces of the United States and its Coalition partners. Accordingly, individuals
associated with al Qaeda or Taliban were and continue to be enemy combatants. Based
upon his interviews and in light of his association with the Taliban, Hamdi was
considered by military forces to be an enemy combatant.
7. At the Sheberghan prison, Hamdi was determined by the U.S. military screening team
to meet the criteria for enemy combatants over whom the United States was taking
control. Based on an order of the U.S. land forces commander, a group of detainees,
including Hamdi, was transferred from the Northern Alliance-controlled Sheberghan
prison to the U.S. short-term detention facility in Kandahar. Hamdi was in-processed and
screened by U.S. forces at the Kandahar facility.
8. In January 2002, a Detainee Review and Screening Team established by Commander,
U.S. Central Command reviewed Hamdi's record and determined he met the criteria
established by the Secretary of Defense for individuals over whom U.S. forces should
take control and transfer to Guantanamo Bay.
9. A subsequent interview of Hamdi has confirmed the fact that he surrendered and gave
his firearm to Northern Alliance forces which supports his classification as an enemy
combatant.
[Signed]
MICHAEL H. MOBBS
Special Advisor to the
Under Secretary of Defense
for Policy
Dated: 24 July 2002
(Frontline, 2003)