In the spring of 2008, the United States is still very much engulfed in Iraq and the War on Terror. With it comes new legal territory and the opportunity for loopholes and a legal blackhole. The Supreme Court case of Hamdi v. Rumsfeld, decided in 2004, was one of the largest mistakes made by the American federal government during the War on Terror. Yaser Esam Hamdi, a United States and Afghanistan dual citizen, grew up in Louisiana and eventually was brainwashed to join the Taliban. Once captured by U.S. officials, Hamdi was detained without charge or due process rights, which should be awarded by the U.S. Constitution and several international law documents. This abhorrent and flagrant human rights violation is sure to leave a painful imprint on American history; effecting many prisoners of war, immigrants, and even American travelers in the future.
In Hamdi v. Rumsfeld, the Court gave the Executive Branch the power to declare even U.S. citizens “illegal enemy combatants” and detain the within the limitations of war. However, the Justices also stated detainees with U.S. citizenship must have the ability to appeal their detention before a neutral judge. With no majority opinion, eight of the nine Supreme Court justices agreed a U.S. citizen still has certain inalienable basic due process rights.
The Court’s judgment was conveyed in a plurality opinion by Justice O’Connor and joined by Chief Justice Rehnquist and Justices Breyer and Kennedy. Following the attacks of September 11th, Congress passed the Authorization for Use of Military Force Act, which allowed (according to O’Connor) the detention of unlawful combatants. However, the Supreme Court said Hamdi should have an opportunity to challenge his detention; given to him by the U.S. Constitution due process rights. Consequently, O’Connor utilized the case of Mathews v. Eldridge and the three prong test to limit Hamdi’s rights. It was determined that because of the circumstances surrounding the War on Terror and the invasion of Afghanistan, the government no longer held the burden of prood. Furthermore, Yaser Hamdi’s case was to be heard and he was to be given a Notice of Charges. However, along the same limes as the previous logic, hearsay was to be admissible in trial.
Next, Justice O’Connor advised the Department of Defense to create tribunals to determine if a detainee merited the label of an “enemy combatant” and deserved continued detention until the end of the conflict. The Combatant Status Review Tribunals were subsequently created in light of this seemingly legal blackhole. Hamdi was given attorneys already, so the Court did not comment on this right; other than he should continue to receive access to legal counsel. The only Justice to completely agree with the Executive war-making powers and the Fourth Circuit ruling was Clarence Thomas.
Justices David Souter and Ruth Bader Ginsberg concurred that Hamdi should have due process rights, but they dissented, disagreeing with the plurality judgment that the AUMF Act from Congress authorized detention of unlawful combatants. Justice Antonin Scalia and John Paul Stevens dissented as well, basing their opinions on historical precedent. According to Scalia, the government only had two paths to take.
First, Congress could suspend the right to habeas corpus, allowed by the Constitution in times of invasion or rebellion (which infallibly were not and are not occurring). Second, Yaser Hamdi must be tried under regular criminal law. Futhermore, Scalia firmly declared that the U.S. Supreme Court only had the right to determine the constitutionality of Hamdi’s case and treatment; and not give advisory opinions or legal procedural law (the creation of a military tribunal). Basically, the Court’s authority was to either release Hamdi or properly arrest him.
On one hand, Scalia is suggesting to limit the power of the judiciary to only have the responsibility of determining the constitutionality of a law. On the other hand, Scalia wants to remove Congress’s power to indefinitely hold U.S. citizens without charge. Through Marbury v. Madison, the court received the power of judicial review and the focus of Hamdi v. Rumsfeld should be on that Yaser Hamdi is a U.S. citizen and has certain natural and legal rights, provided by the Constitution.
Another point to include is that Congress did not declare war in Iraq or Afghanistan. Under the current decision, Hamdi as an unlawful enemy combatant could be held until the end of the conflict, which is the War on Terror in this case. Theoretically, detainees could be held indefinitely; a lifetime spent in Guatanamo Bay or elsewhere. These blurry, shady lines of the War on Terror have certain impact on men like Yaser Hamdi.
In addition, allowing such violations of basic rights in the United States, a world superpower, condones Middle Eastern countries to do the same to Americans or westerners on their soil. In the near future, it is likely that a U.S. citizen will find themselves in the Middle East in a prison forever with no charges; all justified by the Supreme Court decision of Hamdi v. Rumsfeld.
There were numerous Amicus Curae briefs submitted on Hamdi’s behalf, provoking several questions to the Supreme Court. The Center for American Unity, Friends of Immigration Law Enforcement, the National Center on Citizenship and Immigration, and Representatives Steve King, Sana Rohrabacher, Lamar S. Smith, Thomas G. Tancredo, Roscoe Bartlett, Mac Collins, Joe Barton, and John J. Duncan, Jr. collaborated in an Amicus Curiae brief regarding jurisdiction. They suggested that the Court look at if a person born to alien parents on a temporary work visa, who grew up outside of the U.S. and never returned, should be considered a citizen. The idea was that Yaser Hamdi declared himself a citizen of Saudi Arabia and showed loyalty to the kingdom of Saudi Arabia, so he should not be subject to jurisdiction in the Fourteenth Amendment’s Citizenship Clause of the United States Constitution. The Center for American Unity used the historical concept of how American Indians were not taxed because they did not hold loyalty to the United States government. Therefore, since Hamdi has no attachment to the United States, he should not be subject to the complete jurisdiction of America. (www.cfau.org)
In an Amicus Curiae Brief submitted by Global Rights of Washington, D.C., notions of international law came about. Global Rights is a non-profit public interest legal organization in twenty-two countries, founded in 1978 as the International Human Rights Law Group, advocating human rights and the enforcement of international covenants. International law and human rights norms should be held of greater importance than domestic law; especially in a case where Hamdi possibly could not be held under United States jurisdiction.
The Global Rights legal team said the United States government violated the Geneva Conventions of 1949, the International Covenant on Civil and Political Rights, and customary international law of the international and United Nations community. Basically, Yaser Hamdi was arbitrarily detained and held outside the paremeters of the law. Also, Hamdi had no opportunity to challenge the basis of his detention, which deprived him of due process. The legal team also said the Fourth Circuit was wrong in interpreting the ambiguity of Congress’s Authorization for Use of Military Force Joint Resolution. (www.jenner.com)
According to the Experts on the Laws of War Amicus Curae, they agreed that the Geneva Conventions were violated. The Geneva Convention Relative to the Treatment of Prisoners of War, signed on April 12, 1949, which protected captured soldiers. Detainees are to be treated as Prisoners of War until their guilt or innocence has been proved in a competent tribunal. The United States has ratified all the Geneva Conventions, therefore it is to be held as supreme law, along with reference to military obligations in the Constitution. Hamdi was indeed a soldier for the Aghani government, so he should be treated as a POW with the rights awarded to such in war. Following the Geneva Conventions protects U.S. citizens abroad, as well. The Experts on the Laws of War bring up the notion that Hamdi was a civilian caught up in the confusion of war, but either way, he should have received the basic due process rights of a POW. (www.jenner.com)
Hamdi v. Rumsfeld created such a stir in the legal community and the human rights field that the Supreme Court received a pouring of Amicus Curiae Briefs. Other briefs in favor of Yaser Hamdi were also written by The American Bar Association; The American Civil Liberties Union, The American Civil Liberties Union, The American Jewish Committee, Trial Lawyers for Justice, and Union for Reform Judaism; The Cato Institute; Former Prisoners Of War; Hon. Nathaniel R. Jones, Hon. Abner J. Mikva, Hon. William A. Norris, Hon. H. Lee Sarokin, Hon. Herbert J. Stern, Hon. Harold R. Tyler, Jr., Scott Greathead, Robert N. Pennoyer, and Barbara Paul Robinson; and International Humanitarian Organizations and Associations of International Journalists; International Law Professors. With the sheer amount of support for Hamdi, it is testament to the Supreme Court that they do not hear the public or take outside influences. However, it is also quite disagreeable that the Justices would ignore the scholarly and experienced thoughts of so many in the judicial branch and human rights field. (www.jenner.com)
Hamdi should have been prosecuted in federal court for treason and other related crimes. As a United States citizen, he should have been charged, given counsel from the start, and tried by a jury. There he would have been determined an enemy combatant or as his father says, an inexperienced aid worker in the wrong place and time. Dissenting Justice spoke about the competing demands of national security and citizens’ constitutional rights to personal liberty. Even though Hamdi was likely to have been a threat to national security, he should have been awarded the due process rights in Constitution as an American citizen. The military said the Constitution’s Suspension Clause in Article 1, Section 9, Clause 2 allowed them to suspend habeas corpus. However, habeas corpus should not have been suspended because there was no revolution or military order.
Justice Scalia quoted Blackstone in his dissent:
“Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper. . . there would soon be an end of all other rights and immunities. . . . To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. . . .”
Allowing any American citizen, even one accused of treason, should have due process of the law because otherwise, it is likely that others who are innocent will not receive fair treatment in the future. Delivering charges should be a “minimum” right awarded to U.S. and non-U.S. citizens. A trial or tribunal with appropriate counsel and translators should be available to all accused criminals as well, but they have to be charged of something first for that to even happen. Yaser Hamdi was held for over two years at the Norfolk and Charleston Naval Brigs without charge. The point of due process rights is to follow through with them before an individual is stripped of personal liberty and happiness.
In addition to all these issues, the Supreme Court Justices made a huge mistake by breaking precedent. Even though the War on Terror is new to the American people, there are cases in U.S. history that American citizens who were enemies were still privileged to due process rights. For example, in United States v. Fricke, two American citizens allegedly spied on behalf of Germany during World War I. Being U.S. citizens, they were tried in federal court for acts of war against the United States. In States v. Robinson, a conspirator for the Germans during WWI was given military process – still more than Hamdi received at the outset. Lastly, in World War II in Ex parte Quirin, the German spies received military process and the associating citizens received criminal process. Therefore, even Hamdi who associated with the enemy, should have received criminal due process.
One day, historians and future Supreme Court Justices will look back at Hamdi v. Rumsfeld and realize the disaster and abomination of constitutional rights. Paul L. Murphy, a former Regents Professor of History and American Studies at the University of Minnesota once said that historians and scholars should have the responsibility of evaluating Supreme Court history, not attorneys and judges because they are advocates. (VanBurkleo)
Hamdi v. Rumsfeld looked at the new issue of if enemy combatants should be tried differently during wartime. The ruling was extremely unjust and only allowed President Bush and his administration to continue indefinite detention practices. Furthermore, because of the vague terms of the War on Terror, members of the Taliban are not considered prisoners of war yet. By ignoring international and domestic human rights standards, the U.S. government is inherently putting its own citizens and soldiers at risk for vile treatment in hostile nations.
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