Hamdi V. Rumsfeld - Opinion of The Court

Opinion of The Court

Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review.

Justice O'Connor wrote a plurality opinion representing the Court's judgment, which was joined by Chief Justice Rehnquist and Justices Breyer and Kennedy. O'Connor wrote that although Congress had expressly authorized the detention of enemy combatants in its Authorization for Use of Military Force (AUMF) passed after 9/11, due process required that Hamdi have a meaningful opportunity to challenge his enemy combatant status. However, Justice O'Connor used the three-prong test of Mathews v. Eldridge to limit the due process to be received. This required notice of the charges and an opportunity to be heard, though because of the burden upon the Executive of ongoing military conflict, normal procedural protections such as placing the burden of proof on the government or the ban on hearsay need not apply. O'Connor suggested the Department of Defense create fact-finding tribunals similar to the AR 190-8 to determine whether a detainee merited continued detention as an enemy combatant. The United States Department of Defense created Combatant Status Review Tribunals in response, modeling them after the AR 190-8. O'Connor did not write at length on Hamdi's right to an attorney, because by the time the Court rendered its decision, Hamdi had already been granted access to one. However, O'Connor did write that Hamdi "unquestionably has the right to access to counsel in connection with the proceedings on remand." The plurality held that judges need not be involved in reviewing these cases, rather only an impartial decision maker was required.

Justice David Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality's judgment that due process protections must be available for Hamdi to challenge his status and detention, providing a majority for that part of the ruling. However, they dissented from the plurality's ruling that AUMF established Congressional authorization for the detention of enemy combatants.

Justice Antonin Scalia's dissent, joined by Justice John Paul Stevens, went the furthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus, or Hamdi must be tried under normal criminal law. Scalia wrote that the plurality, though well-meaning, had no basis in law for trying to establish new procedures that would be applicable in a challenge to Hamdi's detention—it was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention.

Justice Clarence Thomas was the only justice who sided entirely with the executive branch and the Fourth Circuit's ruling, based on his view of the security interests at stake and the President's broad war-making powers. Thomas wrote that the Court's rationale would also require due process rights for bombing targets: "Because a decision to bomb a particular target might extinguish life interests, the plurality’s analysis seems to require notice to potential targets." Thomas also wrote that Congress intended that the AUMF authorized such detentions. Thomas would later make use of this dissent in Turner v. Rogers in 2011.