Hamdi v. Rumfeld - Legal Precedents Continued

Hamdi v. Rumfeld -

Court Decision - Original Text

Actually, Hamdi v. Rumfeld predates the Padilla case by sheer months, you'll see tidbits of it in the Fourth Circuit ruling as you have read.  This case actually got to the Supreme Court after having being batted back and forth between District Court of Eastern Virginia and the Appeals Court for the Fourth Circuit several times.  This was an interesting excerpt from the ruling:

Despite the clear allocation of war powers to the political branches, judicial deference to executive decisions made in the name of war is not unlimited. The Bill of Rights which Hamdi invokes in his petition is as much an instrument of mutual respect and tolerance as the Fourteenth Amendment is. It applies to American citizens regardless of race, color, or creed. And as we become a more diverse nation, the Bill of Rights may become even more a lens through which we recognize ourselves. To deprive any American citizen of its protections is not a step that any court would casually take.

Drawing on the Bill of Rights’ historic guarantees, the judiciary plays its distinctive role in our constitutional structure when it reviews the detention of American citizens by their own government. Indeed, if due process means anything, it means that the courts must defend
the "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." Powell v. Alabama, 287 U.S.45, 67 (1932) (internal quotation marks omitted).

The Constitution is suffused with concern about how the state will wield its awesome power of forcible restraint. And this preoccupation was not accidental. Our forebears recognized that the power to detain could easily become destructive "if exerted without check or control" by an unrestrained executive free to "imprison, dispatch, or exile any man that
was obnoxious to the government, by an instant declaration that such is their will and pleasure." 4 W. Blackstone, Commentaries on the Laws of England 349-50 (Cooley ed. 1899) (quoted in Duncan v.Louisiana, 391 U.S. 145, 151 (1968)).

The duty of the judicial branch to protect our individual freedoms does not simply cease whenever our military forces are committed by the political branches to armed conflict. The Founders "foresaw that troublous times would arise, when rulers and people would . . . seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law." Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866). While that recognition does not dispose of this case, it does indicate one thing: The detention of United States citizens must be subject to judicial review. See Hamdi II, 296 F.3d at 283.

It is significant, moreover, that the form of relief sought by Hamdi is a writ of habeas corpus. In war as in peace, habeas corpus provides one of the firmest bulwarks against unconstitutional detentions. As early as 1789, Congress reaffirmed the courts’ common law authority to review detentions of federal prisoners, giving its explicit blessing to the judiciary’s power to "grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment" for federal detainees. Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 81-82. While the scope of habeas review has expanded and contracted over the succeeding centuries, its essential function of assuring that restraint accords with the rule of law, not the whim of authority, remains unchanged. Hamdi’s petition falls squarely within the Great Writ’s purview, since
he is an American citizen challenging his summary detention for reasons of state necessity."

 The writing of this opinion is simply stunning in it's prose, it's scope and thoughfulness of all the issues at hand.  I love when they pull out William Blackstone and his Commentaries on the Laws of England.  They admit that the law isn't that perfect, when it comes to war, it's really hard to neatly define it.

"The safeguards that all Americans have come to expect in criminal prosecutions do not translate neatly to the arena of armed conflict. In fact, if deference to the executive is not exercised with respect to military judgments in the field, it is difficult to see where deference would ever obtain. For there is a "well-established power of the military to exercise jurisdiction over members of the armed forces, those directly connected with such forces, [and] enemy belligerents, prisoners of war, [and] others charged with violating the laws of war." Duncan v.
Kahanamoku, 327 U.S. 304, 313-14 (1946) (footnotes omitted). As we emphasized in our prior decision, any judicial inquiry into Hamdi’s status as an alleged enemy combatant in Afghanistan must reflect this deference as well as "a recognition that government has
no more profound responsibility" than the protection of American citizensfrom further terrorist attacks. Hamdi II, 296 F.3d at 283."

"18 U.S.C. § 4001 (2002). Hamdi argues that there is no congressional sanction for his incarceration and that § 4001(a) therefore prohibit his continued detention. We find this contention unpersuasive.
Even if Hamdi were right that § 4001(a) requires Congressional authorization of his detention, Congress has, in the wake of the September 11 terrorist attacks, authorized the President to "use 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." Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001) (emphasis added). As noted above, capturing and detaining enemy combatants is an inherent part of warfare; the "necessary and appropriate force" referenced in the congressional resolution necessarily includes the capture and detention of any and all
hostile forces arrayed against our troops."

In the second part here, is the decision on the Non-Detention Act of 1971 and they dismiss Hamdi's argument on it.  They point out that Congress has authorized his detention through Public Law 107-40 (AUMF).  In the end, they do agree that the detention of a US citizen is subject to judicial review.  It's true, the AUMF is an act of Congress and pretty much extend the reach of detainment to US citizens.

18 U.S.C. § 4001 (Non-Detention Act of 1971) regulates the detentions of United States citizens.
It states in full:
(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.