Rumsfeld v. Hamdi

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
YASER ESAM HAMDI; ESAM FOUAD 
HAMDI, as next friend of Yaser
Esam Hamdi,
Petitioners-Appellees,
v.
DONALD RUMSFELD; W. R. PAULETTE,
Commander,
Respondents-Appellants.
CENTER FOR CONSTITUTIONAL RIGHTS;
RICHARD L. ABEL, Connell Professor
of Law, University of California at
Los Angeles; WILLIAM J. ACEVES,
Professor of Law, California

Western School of Law; BRUCE A.
ACKERMAN, Sterling Professor of No. 02-7338
Law & Political Science, Yale
University; LEE A. ALBERT,
Professor of Law, University at
Buffalo Law School, The State
University of New York; BARBARA
BADER ALDAVE, Loran L. Stewart
Professor of Corporate Law,
University of Oregon School of
Law; ALICIA ALVAREZ, Clinical
Associate Professor of Law, DePaul
University School of Law; DIANE
MARIE AMANN, Professor of Law,
University of California, Davis,
School of Law; MICHELLE J.
ANDERSON, Associate Professor of

2 HAMDI v. RUMSFELD
Law, Villanova University School 
of Law; FRAN ANSLEY, Professor of
Law, University of Tennessee
College of Law; ELVIA R. ARRIOLA,
Associate Professor of Law,
Northern Illinois University College
of Law; FRANK ASKIN, Professor of
Law and Robert Knowlton Scholar,
Rutgers School of Law at Newark;
MILNER S. BALL, Caldwell Professor
of Constitutional Law, University of
Georgia School of Law; JON BAUER,
Clinical Professor of Law and
Director, Asylum & Human Rights
Clinic University of Connecticut
School of Law; PAUL SCHIFF
BERMAN, Associate Professor,
University of Connecticut School of 
Law; CYNTHIA BOWMAN, Professor
of Law, Northwestern University
School of Law; MARK S. BRODIN,
Professor of Law, Boston College
Law School; BARTRAM S. BROWN,
Professor of Law, Chicago-Kent
College of Law, Illinois Institute of
Technology; SUE BRYANT, Director
of Clinical Education and Associate
Professor of Law, CUNY School of
Law; BURTON CAINE, Professor of
Law, Temple University School of
Law; EMILY CALHOUN, Professor of
Law, University of Colorado School
of Law; ANUPAM CHANDER, Acting
Professor of Law, University of
California, Davis, School of Law;

HAMDI v. RUMSFELD 3
ERWIN CHEMERINSKY, Sydney M. 
Irmas Professor of Public Interest
Law, Legal Ethics and Political
Science, University of Southern
California Law School; PAUL G.
CHEVIGNY, Joel S. and Anne B.
Ehrenkranz Professor of Law, New
York University Law School; PAUL
CHILL, Clinical Professor of Law,
University of Connecticut School of
Law; GABRIEL J. CHIN, Rufus King
Professor of Law, University of
Cincinnati College of Law; CAROL
CHOMSKY, Associate Professor of
Law, University of Minnesota Law
School; MARGARET CHON, Associate
Professor of Law, Seattle University
School of Law; MARJORIE COHN, 
Associate Professor of Law,
Thomas Jefferson School of Law,
San Diego; ROBIN MORRIS COLLIN,
Professor of Law, University of
Oregon School of Law; DENNIS E.
CURTIS, Clinical Professor of Law,
Yale Law School; ERIN DALY,
Associate Professor of Law,
Widener University; MICHAEL H.
DAVIS, Professor of Law, Cleveland
State University; MICHAEL DEUTSCH,
Adjunct Professor of Law,
Northwestern University School of
Law; LAURA DICKINSON, Associate
Professor, University of Connecticut
School of Law; ROBERT DINERSTEIN,
Associate Dean and Professor of

4 HAMDI v. RUMSFELD
Law, American University, 
Washington College of Law; JANE
DOLKART, Associate Professor of
Law, Dedman School of Law,
Southern Methodist University;
SHARON DOLOVICH, Acting Professor
of Law, University of California at
Los Angeles; DOUGLAS L. DONOHO,
Professor of Law, Nova
Southeastern University, Shepard
Broad Law Center; DOLORES
DONOVAN, Professor of Law,
University of San Francisco School
of Law; MARY L. DUDZIAK, Judge
Edward J. and Ruey L. Guirado
Professor of Law and History,
University of Southern California
Law School; Visiting Research 
Scholar, Woodrow Wilson School
of Public and International Affairs,
Princeton University; PAMELA
EDWARDS, Assistant Professor of
Law, CUNY School of Law; NANCY
EHRENREICH, Associate Professor of
Law, University of Denver College
of Law; ROSA EHRENREICH BROOKS,
Associate Professor of Law,
University of Virginia School of
Law; J. SOFFIYAH ELIJAH, Clinical
Instructor, Criminal Justice Institute,
Harvard Law School; SUSAN J.
FEATHERS, Esq., Director, Public
Service Program, University of
Pennsylvania Law School; MARVIN
FEIN, Associate Professor,

HAMDI v. RUMSFELD 5
University of Pittsburgh School of 
Law; TODD D. FERNOW, Professor of
Law, Director, Criminal Clinic,
University of Connecticut School of
Law; SALLY FRANK, Professor of
Law, Drake University School of
Law; KATHERINE FRANKE, Professor
of Law, Columbia University; ERIC
M. FREEDMAN, Professor of Law,
Hofstra University School of Law;
NIELS W. FRENZEN, Clinical
Assistant Professor of Law,
University of Southern California;
CRAIG B. FUTTERMAN, Assistant
Clinical Professor of Law,
University of Chicago Law School;
KRISTIN BOOTH GLEN, Dean and
Professor of Law, CUNY School of
Law; BRIAN GLICK, Associate 
Clinical Professor of Law, Fordham
Law School; HOWARD A.
GLICKSTEIN, Dean and Professor of
Law, Touro Law School; PHYLLIS
GOLDFARB, Professor of Law,
Boston College Law School; BOB
GOLTEN, Director, International
Human Rights Advocacy Center,
University of Denver; CARLOS E.
GONZALEZ, Associate Professor of
Law, Rutgers School of Law -
Newark; Visiting Associate
Professor of Law, Santa Clara
University School of Law; KENNETH
W. GRAHAM, JR., Professor of Law,
University of California at Los
Angeles; ARIELA GROSS,

6 HAMDI v. RUMSFELD
Professor of Law & History, The 
Law School, University of Southern
California; LOUISE HALPER, Professor
of Law, Washington & Lee
University School of Law; JOEL F.
HANDLER, Richard C. Maxwell
Professor of Law and Professor of
Policy Studies, School of Public
Policy and Social Research,
University of California at Los
Angeles; SIDNEY L. HARRING,
Professor of Law, CUNY Law
School; VIRGINIA HENCH, Associate
Professor of Criminal Law &
Procedure & Civil Rights,
University of Hawaii - Manoa; 
KATHY HESSLER, Professor, Case
Western Reserve University School
of Law; JUDITH L. HOLMES, Assistant
Professor of Legal Studies,
University of Massachusetts -
Amherst; WYTHE W. HOLT, JR.,
University Research Professor of
Law, University of Alabama School
of Law; JOAN HOWARTH, Professor
of Law, University of Nevada, Las
Vegas; MARSHA HUIE, Professor of
Law, The University of Tulsa
College of Law; ERIC S. JANUS,
Professor of Law, William Mitchell

HAMDI v. RUMSFELD 7
College of Law; PAULA C. JOHNSON, 
Associate Professor of Law,
Syracuse University College of
Law; JOSE R. JUAREZ, JR., Professor
of Law, St. Mary’s University
School of Law; DAVID KAIRYS,
James E. Beasley Professor of Law,
Beasley School of Law, Temple
University; YALE KAMISAR, Clarence
Darrow Distinguished University
Professor of Law, University of
Michigan; JERRY KANG, Professor of
Law, University of California at
Los Angeles; LEWIS R. KATZ, John
C. Hutchins Professor of Law, Case
Western Reserve University Law
School; EILEEN KAUFMAN, Professor
of Law, Touro Law School; 
MICHAEL J. KELLY, Assistant
Professor, Creighton University
School of Law; RANETA LAWSON
MACK, Professor of Law, Creighton
University School of Law; DAVID P.
LEONARD, Professor of Law and
William M. Rains Fellow, Loyola
Law School, Los Angeles; JOHN
LEUBSDORF, Professor of Law,
Rutgers Law School - Newark;
MARTIN L. LEVY, Professor,
Thurgood Marshall School of Law,
Texas Southern University; JULES
LOBEL, Professor of Law, University
of Pittsburgh Law School; DAVID
LUBAN, Frederick Haas Professor of

8 HAMDI v. RUMSFELD
Law and Philosophy, Georgetown 
University Law Center; BETH LYON,
Assistant Professor of Law,
Villanova University School of
Law; HOLLY MAGUIGAN, Professor of
Clinical Law, New York University
School of Law; SAMUEL A.
MARCOSSON, Associate Professor,
Louis D. Brandeis School of Law,
University of Louisville; GARY M.
MAVEAL, Associate Professor of
Law, University of Detroit Mercy
School of Law; ROBERT F.
MEAGHER, Emeritus Professor,
Fletcher School of Law and
Diplomacy, Tufts University;
CARLIN MEYER, Professor of Law,
New York Law School; JONATHAN 
M. MILLER, Professor of Law,
Southwestern University School of
Law; MARGARET E. MONTOYA,
Professor of Law, University of
New Mexico School of Law;
BEVERLY MORAN, Professor of Law,
Professor of Sociology, Vanderbilt
University School of Law; DAVID A.
MORAN, Assistant Professor of Law,
Wayne State University Law
School; MARY-BETH MOYLAN,
Instructor of Law, University of the
Pacific, McGeorge School of Law;
MILLARD A. MURPHY, Esq., Clinical
Instructor, Prison Law Clinic,
University of California, Davis,
School of Law; KENNETH B. NUNN,

HAMDI v. RUMSFELD 9
Professor of Law, Fredric G. Levin 
College of Law, University of
Florida; JAMES P. OGILVY, Associate
Professor of Law, Columbus School
of Law, The Catholic University of
America; NANCY K. OTA, Professor
of Law, Albany Law School; MARC
R. POIRIER, Professor of Law, Seton
Hall Law School; JAMES POPE,
Professor of Law and Sidney
Reitman Scholar, Rutgers University
School of Law; DEBORAH W. POST,
Professor of Law, Touro Law
School; WILLIAM QUIGLEY, Professor
of Law and Director of the Loyola
Law Clinic & the Gillis Long
Poverty Law Center, Loyola Law 
School; MARGARET JANE RADIN,
Wm. Benjamin Scott and Luna M.
Scott Professor of Law, Stanford
Law School; MARTHA RAYNER,
Associate Clinical Professor of Law,
Fordham University School of Law;
JUDITH RESNICK, Arthur Liman
Professor of Law, Yale Law School;
PAULA R. RHODES, Associate
Professor of Law, Director, LLM in
American and Comparative Law
Program, University of Denver
College of Law; HENRY J.
RICHARDSON, III, Peter J. Liacouras
Professor of Law, Temple Law
School; ANNELISE RILES,

10 HAMDI v. RUMSFELD
Professor of Law and Professor of 
Anthropology, Cornell University;
TONI ROBINSON, Professor of Law,
Quinnipiac School of Law;
FLORENCE WAGMAN ROISMAN,
Professor of Law and Paul Beam
Fellow, Indiana University School
of Law-Indianapolis; KERMIT
ROOSEVELT, Assistant Professor,
University of Pennsylvania Law
School; TANINA ROSTAIN, Associate
Professor, New York Law School;
JED RUBENFELD, Robert R. Slaughter
Professor of Law, Yale University;
DAVID RUDOVSKY, Senior Fellow,
University of Pennsylvania Law
School; LEILA NADYA SADAT, 
Professor of Law, Washington
University in St. Louis; NATSU
TAYLOR SAITO, Professor of Law,
Georgia State University College of
Law; ROBERT F. SEIBEL, Professor of
Law, CUNY Law School; FRANKLIN
SIEGEL, City University of New
York School of Law; ROBERT A.
SEDLER, Distinguished Professor of
Law and Gibbs Chair in Civil
Rights and Civil Liberties, Wayne
State University; MARCI SEVILLE,
Associate Professor of Law and
Director, Women’s Employment
Rights Clinic, Golden Gate
University School of Law;

HAMDI v. RUMSFELD 11
MARJORIE SILVER, Professor, Touro 
Law Center; EILEEN SILVERSTEIN,
Zephaniah Swift Professor of Law,
University of Connecticut; DAVID
SLOSS, Assistant Professor of Law,
Saint Louis University School of
Law; RONALD C. SLYE, Associate
Professor, Seattle University School
of Law; LLOYD B. SNYDER,
Professor of Law, Cleveland State
University; ANDREJ THOMAS STARKIS,
Assistant Professor of Law,
Massachusetts School of Law;
NORMAN STEIN, Douglas Arant
Professor of Law, University of
Alabama School of Law; JOAN
STEINMAN, Distinguished Professor 
of Law, Chicago-Kent College of
Law; ROBERT N. STRASSFELD,
Professor of Law, Case Western
Reserve University School of Law;
ROBERT L. TSAI, Assistant Professor
of Law, University of Oregon
School of Law; BETH VAN SCHAACK,
Assistant Professor, Santa Clara
University School of Law; DEBORAH
M. WEISSMAN, Associate Professor
of Law and Director of Clinical
Programs, University of North
Carolina School of Law; CHARLES
E. WILSON, Associate Professor of
Law, The Ohio State University

12 HAMDI v. RUMSFELD
College of Law; RICHARD J. WILSON, 
Professor, Washington College of
Law, American University; ADAM
WINKLER, Acting Professor of Law,
University of California at Los
Angeles; STEPHEN WIZNER, William
O. Douglas Clinical Professor of
Law and Supervising Attorney, Yale
Law School; MARK E. WOJCIK,
Associate Professor of Law, The
John Marshall Law School,
Chicago; FRANK H. WU, Professor
of Law, Howard University; CLIFF
ZIMMERMAN, Clinical Associate
Professor of Law, Northwestern
University; NATIONAL LAWYERS’ 
GUILD, Heidi Boghosian, Executive
Director; NATIONAL IMMIGRATION
PROJECT OF THE NATIONAL LAWYERS
GUILD, Dan Kesselbrenner,
Executive Director; NATIONAL
LAWYERS GUILD NEW YORK CHAPTER,
Dana Biberman, President; HUMAN
RIGHTS WATCH, James Ross, Senior
Legal Counsel; SOUTHERN POVERTY
LAW CENTER, Rhonda Brownstein,
Legal Director; UNITARIAN
UNIVERSALIST SERVICE COMMITTEE,
Denise Moorehead, Deputy Director
of Program; PUERTO RICO LEGAL
DEFENSE AND EDUCATION FUND,

HAMDI v. RUMSFELD 13
INCORPORATED, Foster Maer, Acting 
Legal Director; NATIONAL
COALITION TO PROTECT POLITICAL
FREEDOM, Kit Gage, President; FIRST
AMENDMENT FOUNDATION, Kit Gage,
Director; NATIONAL LAWYER’S
GUILD/MAURICE & JANE SUGAR LAW
CENTER FOR ECONOMIC & SOCIAL
JUSTICE, Julie Hurwitz, Executive
Director; CIVIL LIBERTIES
MONITORING PROJECT, Jared
Rossman, President; ASSOCIATION OF
LEGAL AID ATTORNEYS, U.A.W.
LOCAL 2325, Michael Letwin,
Esq., President; PARTNERSHIP FOR
CIVIL JUSTICE, Mara Verheyden- 
Hilliard, co-founder; TRIAL
LAWYERS FOR PUBLIC JUSTICE,
Rebecca Epstein, Staff Attorney;
FREEDOM SOCIALIST PARTY, Val
Carlson; JEWISH ALLIANCE FOR
LAW AND SOCIAL ACTION, Andrew
M. Fischer; THE INNOCENCE
PROJECT AT THE BENJAMIN N.
CARDOZO SCHOOL OF LAW, Nina
Morrison, Esq., Executive Director;
ELLA BAKER CENTER FOR HUMAN
RIGHTS, Van Jones, National
Executive Director; AMERICAN
FRIENDS SERVICE COMMITTEE, Mary
Ellen McNish, General Secretary;

14 HAMDI v. RUMSFELD
REBER BOULT, Esq., Albuquerque, 
New Mexico; HUNTER GRAY; JOHN
MAGE, Esq., New York, New York;
DOUGLAS N. MASTERS, Esq.,
Chicago, Illinois; LAURA BETH
NIELSEN, Research Fellow, American
Bar Foundation; LEONARD
WEINGLASS, Esq., New York, New
York; CAMILLE WHITWORTH, Esq.,
Austin, Texas; MITCHELL
ZIMMERMAN, Esq., Co-Coordinator,
Law Professors for the Rule of
Law; NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS;
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION; AMERICAN CIVIL
LIBERTIES FOUNDATION OF VIRGINIA;
Amici Curiae in support

of Appellees.
RUTH WEDGWOOD, Professor of Law,
Yale University Law School;
SAMUEL ESTREICHER, Professor of
Law, New York University School
of Law; DOUGLAS W. KMIEC, Dean
& St. Thomas More Professor of
Law, Catholic University; RONALD
ROTUNDA, George Mason University
Foundation Professor of Law,
George Mason University School of
Law; DAVID B. RIVKIN, JR.; LEE A.
CASEY; DARIN R. BARTRAM,
Amici Curiae in support
of Appellants.

HAMDI v. RUMSFELD 15
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CA-02-439-2)
Argued: October 28, 2002
Decided: January 8, 2003
Before WILKINSON, Chief Judge, and WILKINS and
TRAXLER, Circuit Judges.
Reversed and remanded with directions to dismiss by published opin-
ion. Opinion by WILKINSON, Chief Judge, and WILKINS and
TRAXLER, Circuit Judges, in which all three concur.
COUNSEL
ARGUED: Paul Clement, Deputy Solicitor General, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellants. Frank Willard Dunham, Jr., Federal Public Defender,
Norfolk, Virginia, for Appellees. ON BRIEF: Paul J. McNulty,
United States Attorney, Gregory G. Garre, Assistant to the Solicitor
General, David B. Salmons, Assistant to the Solicitor General, Law-
rence R. Leonard, Managing Assistant United States Attorney,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellants. Larry W. Shelton, Assistant Federal Public
Defender, Geremy C. Kamens, Assistant Federal Public Defender,
Norfolk, Virginia, for Appellees. David B. Rivkin, Jr., Lee A. Casey,
Darin R. Bartram, BAKER & HOSTETLER, L.L.P., Washington,
D.C., for Amici Curiae Ruth Wedgwood, et al. Shayana Kadidal, Bar-
bara Olshansky, Michael Ratner, William Goodman, CENTER FOR
CONSTITUTIONAL RIGHTS, New York, New York, for Amici
Curiae Center for Constitutional Rights, et al. Steven D. Benjamin,
Richmond, Virginia; Donald G. Rehkopf, Jr., BRENNA & BRENNA,
Rochester, New York, for Amicus Curiae Association of Criminal
16 HAMDI v. RUMSFELD
Defense Lawyers. Steven R. Shapiro, Lucas Guttentag, Arthur N.
Eisenberg, Robin Goldfaden, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, New York, New York; Rebecca K. Glen-
berg, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA,
Richmond, Virginia, for Amici Curiae ACLU, et al.
OPINION
WILKINSON, Chief Judge, and WILKINS and TRAXLER, Circuit
Judges:
Yaser Esam Hamdi filed a petition under 28 U.S.C. § 2241 chal-
lenging the lawfulness of his confinement in the Norfolk Naval Brig.1
On this third and latest appeal, the United States challenges the dis-
trict court’s order requiring the production of various materials
regarding Hamdi’s status as an alleged enemy combatant. The district
court certified for appeal the question of whether a declaration by a
Special Advisor to the Under Secretary of Defense for Policy setting
forth what the government contends were the circumstances of
Hamdi’s capture was sufficient by itself to justify his detention.
Because it is undisputed that Hamdi was captured in a zone of active
combat in a foreign theater of conflict, we hold that the submitted
declaration is a sufficient basis upon which to conclude that the Com-
mander in Chief has constitutionally detained Hamdi pursuant to the
war powers entrusted to him by the United States Constitution. No
further factual inquiry is necessary or proper, and we remand the case
with directions to dismiss the petition.
I.
As recounted in earlier appeals regarding Hamdi’s detention,
Hamdi v. Rumsfeld, 294 F.3d 598 (4th Cir. 2002) ("Hamdi I"), and
Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002) ("Hamdi II"), the
1
The court expresses its appreciation to the Public Defender’s Office
for the Eastern District of Virginia, the United States Attorney’s Office
for the Eastern District of Virginia, and the Solicitor General’s Office for
the professionalism of their efforts throughout these expedited appeals.
HAMDI v. RUMSFELD 17
al Qaida terrorist network, utilizing commercial airliners, launched
massive attacks on the United States on September 11, 2001, success-
fully striking the World Trade Center in New York City, and the Pen-
tagon, the military headquarters of our country, near Washington,
D.C. A third unsuccessful attack upon at least one additional target,
most likely within Washington, D.C., was foiled by the efforts of the
passengers and crew on the highjacked airliner when it crashed in
Somerset County, Pennsylvania, southeast of Pittsburgh. In total, over
3,000 people were killed on American soil that day.
In the wake of this atrocity, Congress authorized the President "to
use all necessary and appropriate force against those nations, organi-
zations, or persons he determines planned, authorized, committed, or
aided the terrorist attacks" or "harbored such organizations or per-
sons." Authorization for Use of Military Force, Pub. L. No. 107-40,
115 Stat. 224 (Sept. 18, 2001). The President responded by ordering
United States armed forces to Afghanistan to subdue al Qaida and the
governing Taliban regime supporting it. During this ongoing military
operation, thousands of alleged enemy combatants, including Hamdi,
have been captured by American and allied forces.
The present case arises out of Hamdi’s detention by the United
States military in Norfolk, Virginia. Hamdi apparently was born in
Louisiana but left for Saudi Arabia when he was a small child.
Although initially detained in Afghanistan and then Guantanamo Bay,
Hamdi was transferred to the Norfolk Naval Station Brig after it was
discovered that he may not have renounced his American citizenship.
He has remained in Norfolk since April 2002.
In June 2002, Hamdi’s father, Esam Fouad Hamdi, filed a petition
for writ of habeas corpus, naming as petitioners both Hamdi and him-
self as next friend.2 The petition alleged that Hamdi is a citizen of the
United States who was residing in Afghanistan when he was seized
2
This court has previously determined that Esam Fouad Hamdi is a
proper next friend. Hamdi I, 294 F.3d at 600 n.1. Two earlier petitions
filed by the Federal Public Defender for the Eastern District of Virginia
Frank Dunham and Christian Peregrim, a private citizen from New Jer-
sey, were dismissed. Neither Dunham nor Peregrim had a significant
relationship with the detainee, and Hamdi’s father plainly did. Id. at 606.
18 HAMDI v. RUMSFELD
by the United States government. According to the petition, "[i]n the
course of the military campaign, and as part of their effort to over-
throw the Taliban, the United States provided military assistance to
the Northern Alliance, a loosely-knit coalition of military groups
opposed to the Taliban Government," and thereby "obtained access to
individuals held by various factions of the Northern Alliance." The
petition further alleges that "Hamdi was captured or transferred into
the custody of the United States in the Fall of 2001" in Afghanistan,
transported from Afghanistan to Camp X-Ray at the United States
Naval Base in Guantanamo Bay, Cuba, in January 2002, and ulti-
mately transferred to the Norfolk Naval Station Brig in Norfolk, Vir-
ginia, in April 2002.
Although acknowledging that Hamdi was seized in Afghanistan
during a time of active military hostilities, the petition alleges that "as
an American citizen, . . . Hamdi enjoys the full protections of the
Constitution," and that the government’s current detention of him in
this country without charges, access to a judicial tribunal, or the right
to counsel, "violate[s] the Fifth and Fourteenth Amendments to the
United States Constitution." By way of relief, the petition asks, inter
alia, that the district court: (1) "Order Respondents to cease all inter-
rogations of Yaser Esam Hamdi, direct or indirect, while this litiga-
tion is pending"; (2) "Order and declare that Yaser Esam Hamdi is
being held in violation of the Fifth and Fourteenth Amendments to the
United States Constitution"; (3) "To the extent Respondents contest
any material factual allegations in th[e] Petition, schedule an evidenti-
ary hearing, at which Petitioners may adduce proof in support of their
allegations"; and (4) "Order that Petitioner Yaser Esam Hamdi be
released from Respondents’ unlawful custody."
On June 11, before the government had time to respond to the peti-
tion, the district court appointed Public Defender Frank Dunham as
counsel for the detainee and ordered the government to allow the
Defender unmonitored access to Hamdi. On July 12, we reversed the
district court’s order granting counsel immediate access to Hamdi.
Hamdi II, 296 F.3d at 279. We cautioned that Hamdi’s petition
involved complex and serious national security issues and found that
the district court had not shown proper deference to the government’s
legitimate security and intelligence interests. We did not order the
petition dismissed outright, however, noting our reluctance to "em-
HAMDI v. RUMSFELD 19
brac[e] [the] sweeping proposition . . . that, with no meaningful judi-
cial review, any American citizen alleged to be an enemy combatant
could be detained indefinitely without charges or counsel on the gov-
ernment’s say-so." Id. at 283. Rather, we sanctioned a limited and
deferential inquiry into Hamdi’s status, noting "that if Hamdi is
indeed an ‘enemy combatant’ who was captured during hostilities in
Afghanistan, the government’s present detention of him is a lawful
one." Id. (citing Ex parte Quirin, 317 U.S. 1, 31, 37 (1942)). We also
instructed that, in conducting the inquiry, "the district court must con-
sider the most cautious procedures first, conscious of the prospect that
the least drastic procedures may promptly resolve Hamdi’s case and
make more intrusive measures unnecessary." Id. at 284.
Following this remand, the district court held a hearing on July 18.
During this hearing, the court expressed its concern over possible vio-
lations of Hamdi’s rights as an American citizen. The court also ques-
tioned the government’s most basic contentions regarding the ongoing
hostilities, asking "with whom is the war I should suggest that we’re
fighting?" and "will the war never be over as long as there is any
member [or] any person who might feel that they want to attack the
United States of America or the citizens of the United States of Amer-
ica?" The court directed that "[a]ll of these [answers should] be pro-
vided in the answer that the government is to file to the petition" and
directed the United States to file such a response to Hamdi’s petition
by July 25.
On July 25, the government filed a response to, and motion to dis-
miss, the petition for a writ of habeas corpus. Attached to its response
was an affidavit from the Special Advisor to the Under Secretary of
Defense for Policy, Michael Mobbs, which confirms the material fac-
tual allegations in Hamdi’s petition — specifically, that Hamdi was
seized in Afghanistan by allied military forces during the course of
the sanctioned military campaign, designated an "enemy combatant"
by our Government, and ultimately transferred to the Norfolk Naval
Brig for detention. Thus, it is undisputed that Hamdi was captured in
Afghanistan during a time of armed hostilities there. It is further
undisputed that the executive branch has classified him as an enemy
combatant.
In addition to stating that Hamdi has been classified as an enemy
combatant, the Mobbs declaration went on further to describe what
20 HAMDI v. RUMSFELD
the government contends were the circumstances surrounding
Hamdi’s seizure, his transfer to United States custody, and his place-
ment in the Norfolk Naval Brig. According to Mobbs, the military
determined that Hamdi "traveled to Afghanistan in approximately
July or August of 2001" and proceeded to "affiliate[ ] with a Taliban
military unit and receive[ ] weapons training." While serving with the
Taliban in the wake of September 11, he was captured when his Tali-
ban unit surrendered to Northern Alliance forces with which it had
been engaged in battle. He was in possession of an AK-47 rifle at the
time of surrender. Hamdi was then transported with his unit from
Konduz, Afghanistan to the Northern Alliance prison in Mazar-e-
Sharif, Afghanistan and, after a prison uprising there, to a prison at
Sheberghan, Afghanistan. Hamdi was next transported to the U.S.
short term detention facility in Kandahar, and then transferred again
to Guantanamo Bay and eventually to the Norfolk Naval Brig.
According to Mobbs, interviews with Hamdi confirmed the details of
his capture and his status as an enemy combatant.
In keeping with our earlier instruction that the district court should
proceed cautiously in reviewing military decisions reached during
sanctioned military operations, we directed the district court to first
"consider the sufficiency of the Mobbs declaration as an independent
matter before proceeding further." Following this order, the district
court held a hearing on August 13 to review the sufficiency of the
Mobbs declaration.
During this hearing, the district court recognized that "the govern-
ment is entitled to considerable deference in detention decisions dur-
ing hostilities." The court also noted that it did not "have any doubts
[Hamdi] had a firearm [or] any doubts he went to Afghanistan to be
with the Taliban." Despite these observations, however, the court
asserted that it was "challenging everything in the Mobbs’ declara-
tion" and that it intended to "pick it apart" "piece by piece." The court
repeatedly referred to information it felt was missing from the decla-
ration, asking "Is there anything in here that said Hamdi ever fired a
weapon?" The court questioned whether Mr. Mobbs was even a gov-
ernment employee and intimated that the government was possibly
hiding disadvantageous information from the court.
The district court filed an opinion on August 16, finding that the
Mobbs declaration "falls far short" of supporting Hamdi’s detention.
HAMDI v. RUMSFELD 21
The court ordered the government to turn over, among other things,
copies of Hamdi’s statements and the notes taken from any interviews
with him; the names and addresses of all interrogators who have ques-
tioned Hamdi; statements by members of the Northern Alliance
regarding the circumstances of Hamdi’s surrender; and a list of the
date of Hamdi’s capture and all of the dates and locations of his sub-
sequent detention.
Upon the Government’s motion to certify the August 16 production
order for immediate appeal, the district court certified the following
question: "Whether the Mobbs Declaration, standing alone, is suffi-
cient as a matter of law to allow a meaningful judicial review of
Yaser Esam Hamdi’s classification as an enemy combatant?" We then
granted the Government’s petition for interlocutory review pursuant
to 28 U.S.C.A. § 1292(b). In so doing, we noted that "this court ‘may
address any issue fairly included within the certified order because it
is the order that is appealable, and not the controlling question identi-
fied by the district court.’" Hamdi v. Rumsfeld, No. 02-7338 (4th Cir.
Sept. 12, 2002) (order granting petition for interlocutory review)
(quoting Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996)).
II.
Yaser Esam Hamdi is apparently an American citizen. He was also
captured by allied forces in Afghanistan, a zone of active military
operations. This dual status — that of American citizen and that of
alleged enemy combatant — raises important questions about the role
of the courts in times of war.
A.
The importance of limitations on judicial activities during wartime
may be inferred from the allocation of powers under our constitu-
tional scheme. "Congress and the President, like the courts, possess
no power not derived from the Constitution." Ex parte Quirin, 317
U.S. 1, 25 (1942). Article I, section 8 grants Congress the power to
"provide for the common Defence and general Welfare of the United
States . . . To declare War, grant Letters of Marque and Reprisal, and
make Rules concerning Captures on Land and Water; To raise and
support armies . . . [and] To provide and maintain a navy." Article II,
22 HAMDI v. RUMSFELD
section 2 declares that "[t]he President shall be Commander in Chief
of the Army and Navy of the United States, and of the Militia of the
several States, when called into the actual Service of the United
States."
The war powers thus invest "the President, as Commander in Chief,
with the power to wage war which Congress has declared, and to
carry into effect all laws passed by Congress for the conduct of war
and for the government and regulation of the Armed Forces, and all
laws defining and punishing offences against the law of nations,
including those which pertain to the conduct of war." Quirin, 317
U.S. at 26. These powers include the authority to detain those cap-
tured in armed struggle. Hamdi II, 296 F.3d at 281-82.3 These powers
likewise extend to the executive’s decision to deport or detain alien
enemies during the duration of hostilities, see Ludecke v. Watkins,
335 U.S. 160, 173 (1948), and to confiscate or destroy enemy prop-
erty, see Juragua Iron Co. v. United States, 212 U.S. 297, 306 (1909).
Article III contains nothing analogous to the specific powers of war
so carefully enumerated in Articles I and II. "In accordance with this
constitutional text, the Supreme Court has shown great deference to
the political branches when called upon to decide cases implicating
sensitive matters of foreign policy, national security, or military
affairs." Hamdi II, 296 F.3d at 281.
The reasons for this deference are not difficult to discern. Through
their departments and committees, the executive and legislative
branches are organized to supervise the conduct of overseas conflict
in a way that the judiciary simply is not. The Constitution’s allocation
of the warmaking powers reflects not only the expertise and experi-
ence lodged within the executive, but also the more fundamental truth
that those branches most accountable to the people should be the ones
to undertake the ultimate protection and to ask the ultimate sacrifice
from them. Thus the Supreme Court has lauded "[t]he operation of a
3
Persons captured during wartime are often referred to as "enemy com-
batants." While the designation of Hamdi as an "enemy combatant" has
aroused controversy, the term is one that has been used by the Supreme
Court many times. See, e.g., Madsen v. Kinsella, 343 U.S. 341, 355
(1952); In re Yamashita, 327 U.S. 1, 7 (1946); Quirin, 317 U.S. at 31.
HAMDI v. RUMSFELD 23
healthy deference to legislative and executive judgments in the area
of military affairs." Rostker v. Goldberg, 453 U.S. 57, 66 (1981).
The deference that flows from the explicit enumeration of powers
protects liberty as much as the explicit enumeration of rights. The
Supreme Court has underscored this founding principle: "The ulti-
mate purpose of this separation of powers is to protect the liberty and
security of the governed." Metro. Wash. Airports Auth. v. Citizens for
the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 272 (1991).
Thus, the textual allocation of responsibilities and the textual enumer-
ation of rights are not dichotomous, because the textual separation of
powers promotes a more profound understanding of our rights. For
the judicial branch to trespass upon the exercise of the warmaking
powers would be an infringement of the right to self-determination
and self-governance at a time when the care of the common defense
is most critical. This right of the people is no less a right because it
is possessed collectively.
These interests do not carry less weight because the conflict in
which Hamdi was captured is waged less against nation-states than
against scattered and unpatriated forces. We have emphasized that the
"unconventional aspects of the present struggle do not make its stakes
any less grave." Hamdi II, 296 F.3d at 283. Nor does the nature of the
present conflict render respect for the judgments of the political
branches any less appropriate. We have noted that the "political
branches are best positioned to comprehend this global war in its full
context," id., and neither the absence of set-piece battles nor the inter-
vals of calm between terrorist assaults suffice to nullify the warmak-
ing authority entrusted to the executive and legislative branches.
B.
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 Four-
teenth 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 recog-
24 HAMDI v. RUMSFELD
nize 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 acciden-
tal. Our forebears recognized that the power to detain could easily
become destructive "if exerted without check or control" by an unre-
strained 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 pur-
pose of an inquiry into the cause of commitment" for federal detain-
ees. Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 81-82. While the scope
HAMDI v. RUMSFELD 25
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 rea-
sons of state necessity.
C.
As the foregoing discussion reveals, the tensions within this case
are significant. Such circumstances should counsel caution on the part
of any court. Given the concerns discussed in the preceding sections,
any broad or categorical holdings on enemy combatant designations
would be especially inappropriate. We have no occasion, for example,
to address the designation as an enemy combatant of an American cit-
izen captured on American soil or the role that counsel might play in
such a proceeding. See, e.g., Padilla v. Bush, No. 02 Civ. 445
(MBM), 2002 WL 31718308 (S.D.N.Y. Dec. 4, 2002). We shall, in
fact, go no further in this case than the specific context before us —
that of the undisputed detention of a citizen during a combat operation
undertaken in a foreign country and a determination by the executive
that the citizen was allied with enemy forces.
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 mili-
tary 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 cit-
izens from further terrorist attacks. Hamdi II, 296 F.3d at 283.
In this regard, it is relevant that the detention of enemy combatants
serves at least two vital purposes. First, detention prevents enemy
26 HAMDI v. RUMSFELD
combatants from rejoining the enemy and continuing to fight against
America and its allies. "The object of capture is to prevent the cap-
tured individual from serving the enemy. He is disarmed and from
then on he must be removed as completely as practicable from the
front . . . ." In re Territo, 156 F.2d 142, 145 (9th Cir. 1946). In this
respect, "captivity is neither a punishment nor an act of vengeance,"
but rather "a simple war measure." W. Winthrop, Military Law and
Precedents 788 (2d ed. 1920). And the precautionary measure of dis-
arming hostile forces for the duration of a conflict is routinely accom-
plished through detention rather than the initiation of criminal
charges. To require otherwise would impose a singular burden upon
our nation’s conduct of war.
Second, detention in lieu of prosecution may relieve the burden on
military commanders of litigating the circumstances of a capture half-
way around the globe. This burden would not be inconsiderable and
would run the risk of "saddling military decision-making with the
panoply of encumbrances associated with civil litigation" during a
period of armed conflict. Hamdi II, 296 F.3d at 283-84. As the
Supreme Court has recognized, "[i]t would be difficult to devise more
effective fettering of a field commander than to allow the very ene-
mies he is ordered to reduce to submission to call him to account in
his own civil courts and divert his efforts and attention from the mili-
tary offensive abroad to the legal defensive at home." Johnson v.
Eisentrager, 339 U.S. 763, 779 (1950).4
The judiciary is not at liberty to eviscerate detention interests
directly derived from the war powers of Articles I and II. As the
nature of threats to America evolves, along with the means of carry-
ing those threats out, the nature of enemy combatants may change
also. In the face of such change, separation of powers doctrine does
4
The government has contended that appointment of counsel for
enemy combatants in the absence of charges would interfere with a third
detention interest, that of gathering intelligence, by establishing an
adversary relationship with the captor from the outset. See Hamdi II, 296
F.3d at 282 (expressing concern that the June 11 order of the district
court "does not consider what effect petitioner’s unmonitored access to
counsel might have upon the government’s ongoing gathering of intelli-
gence"). That issue, however, is not presented in this appeal.
HAMDI v. RUMSFELD 27
not deny the executive branch the essential tool of adaptability. To the
contrary, the Supreme Court has said that "[i]n adopting this flexible
understanding of separation of powers, we simply have recognized
Madison’s teaching that the greatest security against tyranny . . . lies
not in a hermetic division among the Branches, but in a carefully
crafted system of checked and balanced power within each Branch."
Mistretta v. United States, 488 U.S. 361, 381 (1989). If anything, sep-
aration of powers bears renewed relevance to a struggle whose
unforeseeable dangers may demand significant actions to protect
untold thousands of American lives.
The designation of Hamdi as an enemy combatant thus bears the
closest imaginable connection to the President’s constitutional
responsibilities during the actual conduct of hostilities. We therefore
approach this case with sensitivity to both the fundamental liberty
interest asserted by Hamdi and the extraordinary breadth of warmak-
ing authority conferred by the Constitution and invoked by Congress
and the executive branch.
III.
After the district court issued its August 16 production order, it
granted respondent’s motion for an interlocutory appeal of that order.
The following question was certified for our review:
Whether the Mobbs Declaration, standing alone, is suffi-
cient as a matter of law to allow a meaningful judicial
review of Yaser Esam Hamdi’s classification as an enemy
combatant?
As the Supreme Court has made clear, we are not limited to this
single question. Rather, an appellate court may address any issue
fairly included within the certified order, because "it is the order that
is appealable, and not the controlling question identified by the dis-
trict court." Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199,
205 (1996) (internal quotation marks omitted).
On this appeal, it is argued that Hamdi’s detention is invalid even
if the government’s assertions were entirely accurate. If that were
28 HAMDI v. RUMSFELD
clearly the case, there would be no need for further discovery such as
that detailed in the August 16 production order, because Hamdi’s
detention would be invalid for reasons beyond the scope of any fac-
tual dispute. Indeed, any inquiry into the August 16 production order
or any discussion of the certified question would be unnecessary,
because neither could suffice to justify a detention that, as a threshold
matter, was otherwise unlawful. Moreover, the burden of the August
16 order would necessarily outweigh any benefits if, quite indepen-
dent of the disputed factual issues, Hamdi were already entitled to
relief. See Fed. R. Civ. Proc. 26(b)(1)-(2). For that reason, any purely
legal challenges to Hamdi’s detention are fairly includable within the
scope of the certified order. See Juzwin v. Asbestos Corp., 900 F.2d
686, 692 (3d Cir. 1990) (stating that, on § 1292(b) review of an order
denying a dispositive motion, an appellate court is "free to consider
all grounds advanced in support of the grant of [the motion] and all
grounds suggested for sustaining its denial" (internal quotation marks
omitted)).
In this vein, Hamdi and amici have in fact pressed two purely legal
grounds for relief: 18 U.S.C. § 4001(a) and Article 5 of the Geneva
Convention. We now address them both.5
A.
18 U.S.C. § 4001 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.
(b)(1) The control and management of Federal penal and
correctional institutions, except military or naval
5
We reject at the outset one other claim that Hamdi has advanced in
abbreviated form. He asserts that our approval of his continued detention
means that the writ of habeas corpus has been unconstitutionally sus-
pended. See U.S. Const. art. I, § 9. We find this unconvincing; the fact
that we have not ordered the relief Hamdi requests is hardly equivalent
to a suspension of the writ.
HAMDI v. RUMSFELD 29
institutions, shall be vested in the Attorney General,
who shall promulgate rules for the government
thereof, and appoint all necessary officers and
employees in accordance with the civil-service
laws, the Classification Act, as amended[,] and the
applicable regulations.
(2) The Attorney General may establish and conduct
industries, farms, and other activities and classify
the inmates; and provide for their proper govern-
ment, discipline, treatment, care, rehabilitation, and
reformation.
18 U.S.C. § 4001 (2002). Hamdi argues that there is no congressional
sanction for his incarceration and that § 4001(a) therefore prohibits
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 Sep-
tember 11 terrorist attacks, authorized the President to "use all neces-
sary 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." Autho-
rization 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 "nec-
essary and appropriate force" referenced in the congressional resolu-
tion necessarily includes the capture and detention of any and all
hostile forces arrayed against our troops. Furthermore, Congress has
specifically authorized the expenditure of funds for "the maintenance,
pay, and allowances of prisoners of war [and] other persons in the
custody of the [military] whose status is determined . . . to be similar
to prisoners of war." 10 U.S.C. § 956(5) (2002). It is difficult if not
impossible to understand how Congress could make appropriations
for the detention of persons "similar to prisoners of war" without also
authorizing their detention in the first instance.
Any alternative construction of these enactments would be fraught
with difficulty. As noted above, the detention of enemy combatants
serves critical functions. Moreover, it has been clear since at least
30 HAMDI v. RUMSFELD
1942 that "[c]itizenship in the United States of an enemy belligerent
does not relieve him from the consequences of [his] belligerency."
Quirin, 317 U.S. at 37. If Congress had intended to override this well-
established precedent and provide American belligerents some immu-
nity from capture and detention, it surely would have made its inten-
tions explicit.
It is likewise significant that § 4001(a) functioned principally to
repeal the Emergency Detention Act. That statute had provided for
the preventive "apprehension and detention" of individuals inside the
United States "deemed likely to engage in espionage or sabotage"
during "internal security emergencies." H.R. Rep. 92-116, at 2 (Apr.
6, 1971). Proponents of the repeal were concerned that the Emergency
Detention Act might, inter alia, "permit[ ] a recurrence of the round
ups which resulted in the detention of Americans of Japanese ancestry
in 1941 and subsequently during World War II." Id. There is no indi-
cation that § 4001(a) was intended to overrule the longstanding rule
that an armed and hostile American citizen captured on the battlefield
during wartime may be treated like the enemy combatant that he is.
We therefore reject Hamdi’s contention that § 4001(a) bars his deten-
tion.
B.
Hamdi and amici also contend that Article 5 of the Geneva Con-
vention applies to Hamdi’s case and requires an initial formal deter-
mination of his status as an enemy belligerent "by a competent
tribunal." Geneva Convention Relative to the Treatment of Prisoners
of War, Aug. 12, 1949, art. 5, 6 U.S.T. 3316, 75 U.N.T.S. 135.
This argument falters also because the Geneva Convention is not
self-executing. "Courts will only find a treaty to be self-executing if
the document, as a whole, evidences an intent to provide a private
right of action." Goldstar (Panama) v. United States, 967 F.2d 965,
968 (4th Cir. 1992). The Geneva Convention evinces no such intent.
Certainly there is no explicit provision for enforcement by any form
of private petition. And what discussion there is of enforcement
focuses entirely on the vindication by diplomatic means of treaty
rights inhering in sovereign nations. If two warring parties disagree
about what the Convention requires of them, Article 11 instructs them
HAMDI v. RUMSFELD 31
to arrange a "meeting of their representatives" with the aid of diplo-
mats from other countries, "with a view to settling the disagreement."
Geneva Convention, at art. 11. Similarly, Article 132 states that "any
alleged violation of the Convention" is to be resolved by a joint trans-
national effort "in a manner to be decided between the interested Par-
ties." Id. at art. 132; cf. id. at arts. 129-30 (instructing signatories to
enact legislation providing for criminal sanction of "persons commit-
ting . . . grave breaches of the present Convention"). We therefore
agree with other courts of appeals that the language in the Geneva
Convention is not "self-executing" and does not "create private rights
of action in the domestic courts of the signatory countries." Huynh
Thi Anh v. Levi, 586 F.2d 625, 629 (6th Cir. 1978) (applying identical
enforcement provisions from the Geneva Convention Relative to the
Protection of Civilian Persons in Time of War, Feb. 2, 1956, 6 U.S.T.
3516, 75 U.N.T.S. 287); see also Holmes v. Laird, 459 F.2d 1211,
1222 (D.C. Cir. 1972) (noting that "corrective machinery specified in
the treaty itself is nonjudicial").
Hamdi provides no reason to conclude that 28 U.S.C. § 2241makes these diplomatically-focused rights enforceable by a private
right of petition. Indeed, it would make little practical sense for
§ 2241 to have done so, since we would have thereby imposed on the
United States a mechanism of enforceability that might not find an
analogue in any other nation. This is not to say, of course, that the
Geneva Convention is meaningless. Rather, its values are vindicated
by diplomatic means and reciprocity, as specifically contemplated by
Article 132. There is a powerful and self-regulating national interest
in observing the strictures of the Convention, because prisoners are
taken by both sides of any conflict. This is the very essence of reci-
procity and, as the drafters of the Convention apparently decided, the
most appropriate basis for ensuring compliance. As the Court in
Eisentrager observed about the predecessor to the current Geneva
Convention, "the obvious scheme of the Agreement [is] that responsi-
bility for observance and enforcement of these rights is upon political
and military authorities." 339 U.S. at 789 n.14.
Even if Article 5 were somehow self-executing, there are questions
about how it would apply to Hamdi’s case. In particular, it is anything
but clear that the "competent tribunal" which would determine
Hamdi’s status would be an Article III court. Every country has dif-
32 HAMDI v. RUMSFELD
ferent tribunals, and there is no indication that the Geneva Convention
was intended to impose a single adjudicatory paradigm upon its signa-
tories. Moreover, Hamdi’s argument begs the question of what kind
of status determination is necessary under Article 5 and how exten-
sive it should be. Hamdi and the amici make much of the distinction
between lawful and unlawful combatants, noting correctly that lawful
combatants are not subject to punishment for their participation in a
conflict. But for the purposes of this case, it is a distinction without
a difference, since the option to detain until the cessation of hostilities
belongs to the executive in either case. It is true that unlawful comba-
tants are entitled to a proceeding before a military tribunal before they
may be punished for the acts which render their belligerency unlaw-
ful. Quirin, 317 U.S. at 31. But they are also subject to mere detention
in precisely the same way that lawful prisoners of war are. Id. The
fact that Hamdi might be an unlawful combatant in no way means that
the executive is required to inflict every consequence of that status on
him. The Geneva Convention certainly does not require such treat-
ment.
For all these reasons, we hold that there is no purely legal barrier
to Hamdi’s detention. We now turn our attention to the question of
whether the August 16 order was proper on its own terms.
IV.
As we will discuss below, we conclude that Hamdi’s petition fails
as a matter of law. It follows that the government should not be com-
pelled to produce the materials described in the district court’s August
16 order.
We also note that the order, if enforced, would present formidable
practical difficulties. The district court indicated that its production
request might well be only an initial step in testing the factual basis
of Hamdi’s enemy combatant status. The court plainly did not pre-
clude making further production demands upon the government, even
suggesting that it might "bring Hamdi before [the court] to inquire
about [his] statements."
Although the district court did not have "any doubts [that Hamdi]
had a firearm" or that "he went to Afghanistan to be with the Tali-
HAMDI v. RUMSFELD 33
ban," the court ordered the government to submit to the court for in
camera, ex parte review: (1) "[c]opies of all Hamdi’s statements, and
the notes taken from any interviews with Hamdi, that relate to his rea-
sons for going to Afghanistan, his activities while in Afghanistan, or
his participation in the military forces of the Taliban or any other
organization in that country"; (2) "[a] list of all the interrogators who
have questioned Hamdi, including their names and addresses, and the
dates of the interviews"; (3) "[c]opies of any statements by members
of the Northern Alliance" regarding Hamdi’s surrender; (4) "[a] list
that includes the date of Hamdi’s capture, and that gives all the dates
and locations of his subsequent detention"; (5) "[t]he name and title
of the individual within the United States Government who made the
determination that Hamdi was an illegal enemy combatant"; (6) "[t]he
name and title of the individual within the United States Government
who made the decision to move Hamdi from Guantanamo Bay, Cuba
to the Norfolk Naval Station"; and (7) "the screening criteria utilized
to determine the status of Hamdi." The court’s order allows the gov-
ernment to redact "intelligence matters" from its responses, but only
to the extent that those intelligence matters are outside the scope of
inquiry into Hamdi’s legal status.
Hamdi argues vigorously that this order should be affirmed.
Because of the alleged "breadth with which Respondents construe
their authority to imprison American citizens whom they consider to
be enemy combatants," Br. of the Petitioners/Appellees at 27, Hamdi
argues we must allow the district court to subject the government’s
classification of him to a searching review. While the ordinary § 2241
proceeding naturally contemplates the prospect of factual develop-
ment, see 28 U.S.C. §§ 2243, 2246, such an observation only begs the
basic question in this case — whether further factual exploration
would bring an Article III court into conflict with the warmaking
powers of Article I and II. Here, the specific interests asserted by the
government flow directly from the warmaking powers and are inti-
mately connected to them. Whatever the general force of these inter-
ests (which we discussed extensively above), they are most directly
implicated by captures in a zone of active combat operations.
A review of the court’s August 16 order reveals the risk of "stand[-
ing] the warmaking powers of Articles I and II on their heads," Hamdi
II, 296 F.3d at 284. The district court, for example, ordered the gov-
34 HAMDI v. RUMSFELD
ernment to produce all Hamdi’s statements and notes from interviews.
Yet it is precisely such statements, relating to a detainee’s activities
in Afghanistan, that may contain the most sensitive and the most valu-
able information for our forces in the field. The risk created by this
order is that judicial involvement would proceed, increment by incre-
ment, into an area where the political branches have been assigned by
law a preeminent role.
The district court further ordered the government to produce a list
of all interrogators who have questioned Hamdi, including their
names and addresses and the dates of the interviews, copies of any
statements by members of the Northern Alliance regarding Hamdi’s
surrender, and a list that includes the date of Hamdi’s capture and all
the dates and locations of his subsequent detention. Once again, how-
ever, litigation cannot be the driving force in effectuating and record-
ing wartime detentions. The military has been charged by Congress
and the executive with winning a war, not prevailing in a possible
court case. Complicating the matter even further is the fact that
Hamdi was originally captured by Northern Alliance forces, with
whom American forces were generally allied. The district court’s
insistence that statements by Northern Alliance members be produced
cannot help but place a strain on multilateral efforts during wartime.
The court also expressed concern in its order that the Northern Alli-
ance did not "identify the unit [to which Hamdi was affiliated],"
"where or by whom [Hamdi] received weapons training or the nature
and extent thereof," or "who commanded the unit or the type of garb
or uniform Hamdi may have worn. . . ." In demanding such detail, the
district court would have the United States military instruct not only
its own personnel, but also its allies, on precise observations they
must make and record during a battlefield capture.
Viewed in their totality, the implications of the district court’s
August 16 production order could not be more serious. The factual
inquiry upon which Hamdi would lead us, if it did not entail disclo-
sure of sensitive intelligence, might require an excavation of facts
buried under the rubble of war. The cost of such an inquiry in terms
of the efficiency and morale of American forces cannot be disre-
garded. Some of those with knowledge of Hamdi’s detention may
have been slain or injured in battle. Others might have to be diverted
from active and ongoing military duties of their own. The logistical
HAMDI v. RUMSFELD 35
effort to acquire evidence from far away battle zones might be sub-
stantial. And these efforts would profoundly unsettle the constitu-
tional balance.
For the foregoing reasons, the court’s August 16 production request
cannot stand.
V.
The question remains, however, whether Hamdi’s petition must be
remanded for further proceedings or dismissed.
Hamdi’s American citizenship has entitled him to file a petition for
a writ of habeas corpus in a civilian court to challenge his detention,
including the military’s determination that he is an "enemy comba-
tant" subject to detention during the ongoing hostilities. Thus, as with
all habeas actions, we begin by examining the precise allegations
presented to us by the respective parties. In this case, there are two
allegations that are crucial to our analysis. First, Hamdi’s petition
alleges that he was a resident of and seized in Afghanistan, a country
in which hostilities were authorized and ongoing at the time of the
seizure, but that his continued detention in this country without the
full panoply of constitutional protections is unlawful. Second, the
Government’s response asserts that Hamdi is being detained pursuant
to the Commander-in-Chief’s Article II war powers and that the cir-
cumstances underlying Hamdi’s detention, as reflected primarily in
the Mobbs declaration, establish that Hamdi’s detention is lawful.
Generally speaking, in order to fulfill our responsibilities under
Article III to review a petitioner’s allegation that he is being detained
by American authorities in violation of the rights afforded him under
the United States Constitution, we must first determine the source of
the authority for the executive to detain the individual. Once the
source of the authority is identified, we then look at the justification
given to determine whether it constitutes a legitimate exercise of that
authority.
A.
Here the government has identified the source of the authority to
detain Hamdi as originating in Article II, Section 2 of the Constitu-
36 HAMDI v. RUMSFELD
tion, wherein the President is given the war power. We have already
emphasized that the standard of review of enemy combatant deten-
tions must be a deferential one when the detainee was captured
abroad in a zone of combat operations. The President "is best pre-
pared to exercise the military judgment attending the capture of
alleged combatants." Hamdi II, 296 F.3d at 283. Thus, in Quirin, the
Supreme Court stated in no uncertain terms that detentions "ordered
by the President in the declared exercise of his powers as Commander
in Chief of the Army in time of war and of grave public danger"
should not "be set aside by the courts without the clear conviction that
they are in conflict with the Constitution or laws of Congress consti-
tutionally enacted." Quirin, 317 U.S. at 25.
This deferential posture, however, only comes into play after we
ascertain that the challenged decision is one legitimately made pursu-
ant to the war powers. It does not preclude us from determining in the
first instance whether the factual assertions set forth by the govern-
ment would, if accurate, provide a legally valid basis for Hamdi’s
detention under that power. Otherwise, we would be deferring to a
decision made without any inquiry into whether such deference is
due. For these reasons, it is appropriate, upon a citizen’s presentation
of a habeas petition alleging that he is being unlawfully detained by
his own government, to ask that the government provide the legal
authority upon which it relies for that detention and the basic facts
relied upon to support a legitimate exercise of that authority. Indeed,
in this case, the government has voluntarily submitted — and urged
us to review — an affidavit from Michael Mobbs, Special Advisor to
the Under Secretary of Defense for Policy, describing what the gov-
ernment contends were the circumstances leading to Hamdi’s desig-
nation as an enemy combatant under Article II’s war power.
The Mobbs affidavit consists of two pages and nine paragraphs in
which Mobbs states that he was "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." In the affidavit, Mobbs avers that Hamdi entered Afghanistan
in July or August of 2001 and affiliated with a Taliban military unit.
Hamdi received weapons training from the Taliban and remained with
his military unit until his surrender to Northern Alliance forces in late
2001. At the time of his capture, Hamdi was in possession of an AK-
HAMDI v. RUMSFELD 37
47 rifle. After his capture, Hamdi was transferred first from Konduz,
Afghanistan to the prison in Mazar-e-Sharif, and then to a prison in
Sheberghan, Afghanistan where he was questioned by a United States
interrogation team. This interrogation team determined that Hamdi
met "the criteria for enemy combatants over whom the United States
was taking control." Hamdi was then transported to the U.S. short
term detention facility in Kandahar, and then transferred again to
Guantanamo Bay and eventually to the Norfolk Naval Brig. Accord-
ing to Mobbs, a subsequent interview with Hamdi confirmed the
details of his capture and his status as an enemy combatant.
The district court approached the Mobbs declaration by examining
it line by line, faulting it for not providing information about whether
Hamdi had ever fired a weapon, the formal title of the Taliban mili-
tary unit Hamdi was with when he surrendered, the exact composition
of the U.S. interrogation team that interviewed Hamdi in Sheberghan,
and even the distinguishing characteristics between a Northern Alli-
ance miliary unit and a Taliban military unit. Concluding that the fac-
tual allegations were insufficient to support the government’s
assertion of the power to detain Hamdi under the war power, the court
then ordered the production of the numerous additional materials out-
lined previously. We think this inquiry went far beyond the accept-
able scope of review.
To be sure, a capable attorney could challenge the hearsay nature
of the Mobbs declaration and probe each and every paragraph for
incompleteness or inconsistency, as the district court attempted to do.
The court’s approach, however, had a signal flaw. We are not here
dealing with a defendant who has been indicted on criminal charges
in the exercise of the executive’s law enforcement powers. We are
dealing with the executive’s assertion of its power to detain under the
war powers of Article II. See Eisentrager, 339 U.S. at 793 (Black, J.,
dissenting) ("[I]t is no ‘crime’ to be a soldier."); cf. In re Winship, 397
U.S. 358, 363 (1970) (explaining that elevated burden of proof
applies in criminal cases because of consequences of conviction,
including social stigma). To transfer the instinctive skepticism, so
laudable in the defense of criminal charges, to the review of executive
branch decisions premised on military determinations made in the
field carries the inordinate risk of a constitutionally problematic intru-
sion into the most basic responsibilities of a coordinate branch.
38 HAMDI v. RUMSFELD
The murkiness and chaos that attend armed conflict mean military
actions are hardly immune to mistake. Yet these characteristics of
warfare have been with us through the centuries and have never been
thought sufficient to justify active judicial supervision of combat
operations overseas. To inquire, for example, whether Hamdi actually
fired his weapon is to demand a clarity from battle that often is not
there. The district court, after reviewing the Mobbs affidavit, did not
"have any doubts [Hamdi] had a firearm [or] any doubts he went to
Afghanistan to be with the Taliban." To delve further into Hamdi’s
status and capture would require us to step so far out of our role as
judges that we would abandon the distinctive deference that animates
this area of law.
For these reasons, and because Hamdi was indisputably seized in
an active combat zone abroad, we will not require the government to
fill what the district court regarded as gaps in the Mobbs affidavit.
The factual averments in the affidavit, if accurate, are sufficient to
confirm that Hamdi’s detention conforms with a legitimate exercise
of the war powers given the executive by Article II, Section 2 of the
Constitution and, as discussed elsewhere, that it is consistent with the
Constitution and laws of Congress. See Quirin, 317 U.S. at 25. Ask-
ing the executive to provide more detailed factual assertions would be
to wade further into the conduct of war than we consider appropriate
and is unnecessary to a meaningful judicial review of this question.
B.
We turn then to the question of whether, because he is an American
citizen currently detained on American soil by the military, Hamdi
can be heard in an Article III court to rebut the factual assertions that
were submitted to support the "enemy combatant" designation. We
hold that no evidentiary hearing or factual inquiry on our part is nec-
essary or proper, because it is undisputed that Hamdi was captured in
a zone of active combat operations in a foreign country and because
any inquiry must be circumscribed to avoid encroachment into the
military affairs entrusted to the executive branch.
In support of its contention that no further factual inquiry is appro-
priate, the government has argued that a "some evidence" standard
should govern the adjudication of claims brought by habeas petition-
HAMDI v. RUMSFELD 39
ers in areas where the executive has primary responsibility. That stan-
dard has indeed been employed in contexts less constitutionally
sensitive than the present one, albeit in a procedural posture that ren-
ders those cases distinguishable. See, e.g., INS v. St. Cyr, 533 U.S.
289, 306 (2001) (describing historical practice under which, so long
as "there was some evidence to support" a deportation order, habeas
courts would not "review factual determinations made by the Execu-
tive"); Eagles v. Samuels, 329 U.S. 304, 312 (1946); Fernandez v.
Phillips, 268 U.S. 311, 312 (1925). In each of these cases, the Court
indicated that the role of the writ is not to correct "mere error" in the
executive’s exercise of a discretionary power, but rather to check the
executive branch if it asserts a "power to act beyond the authority
granted." Eagles, 329 U.S. at 311-12. Thus, the government asserts,
the role of a habeas court is not to reconsider the executive’s decision,
but rather only to confirm that "there was some basis for the chal-
lenged executive determination." Br. for Respondents-Appellants at
29. Once that determination is made, the government further asserts,
the detainee may not offer any rebuttal evidence and no further fac-
tual inquiry is allowed.
It is not necessary for us to decide whether the "some evidence"
standard is the correct one to be applied in this case because we are
persuaded for other reasons that a factual inquiry into the circum-
stances of Hamdi’s capture would be inappropriate.
1.
As we have emphasized throughout these appeals, we cannot set
aside executive decisions to detain enemy combatants "without the
clear conviction that they are in conflict with the Constitution or laws
of Congress constitutionally enacted." Quirin, 317 U.S. at 25. We
cannot stress too often the constitutional implications presented on the
face of Hamdi’s petition. The constitutional allocation of war powers
affords the President extraordinarily broad authority as Commander
in Chief and compels courts to assume a deferential posture in
reviewing exercises of this authority. And, while the Constitution
assigns courts the duty generally to review executive detentions that
are alleged to be illegal, the Constitution does not specifically con-
template any role for courts in the conduct of war, or in foreign policy
generally.
40 HAMDI v. RUMSFELD
Indeed, Article III courts are ill-positioned to police the military’s
distinction between those in the arena of combat who should be
detained and those who should not. Any evaluation of the accuracy
of the executive branch’s determination that a person is an enemy
combatant, for example, would require courts to consider, first, what
activities the detainee was engaged in during the period leading up to
his seizure and, second, whether those activities rendered him a com-
batant or not. The first question is factual and, were we called upon
to delve into it, would likely entail substantial efforts to acquire evi-
dence from distant battle zones. See Eisentrager, 339 U.S. at 779. The
second question may require fine judgments about whether a particu-
lar activity is linked to the war efforts of a hostile power — judg-
ments the executive branch is most competent to make.
Hamdi’s petition places him squarely within the zone of active
combat and assures that he is indeed being held in accordance with
the Constitution and Congressional authorization for use of military
force in the wake of al Qaida’s attack. Quirin, 317 U.S. at 25. Any
effort to ascertain the facts concerning the petitioner’s conduct while
amongst the nation’s enemies would entail an unacceptable risk of
obstructing war efforts authorized by Congress and undertaken by the
executive branch.
2.
Hamdi contends that, although international law and the laws of
this country might generally allow for the detention of an individual
captured on the battlefield, these laws must vary in his case because
he is an American citizen now detained on American soil. As an
American citizen, Hamdi would be entitled to the due process protec-
tions normally found in the criminal justice system, including the
right to meet with counsel, if he had been charged with a crime. But
as we have previously pointed out, Hamdi has not been charged with
any crime. He is being held as an enemy combatant pursuant to the
well-established laws and customs of war. Hamdi’s citizenship right-
fully entitles him to file this petition to challenge his detention, but
the fact that he is a citizen does not affect the legality of his detention
as an enemy combatant.
Indeed, this same issue arose in Quirin. In that case, petitioners
were German agents who, after the declaration of war between the
HAMDI v. RUMSFELD 41
United States and the German Reich, were trained at a German sabo-
tage school where they "were instructed in the use of explosives and
in methods of secret writing." Quirin, 317 U.S. at 21. The petitioners
then journeyed by submarine to the beaches of New York and Florida,
carrying large quantities of explosives and other sabotage devices. All
of them were apprehended by FBI agents, who subsequently learned
of their mission to destroy war industries and facilities in the United
States. All of the petitioners were born in Germany but had lived in
the United States at some point. One petitioner claimed American cit-
izenship by virtue of the naturalization of his parents during his youth.
The Court, however, did not need to determine his citizenship because
it held that the due process guarantees of the Fifth and Sixth Amend-
ments were inapplicable in any event. It noted that "[c]itizenship in
the United States of an enemy belligerent does not relieve him from
the consequences of a belligerency which is unlawful." Id. at 37. The
petitioner who alleged American citizenship was treated identically to
the other German saboteurs.
The Quirin principle applies here. One who takes up arms against
the United States in a foreign theater of war, regardless of his citizen-
ship, may properly be designated an enemy combatant and treated as
such. The privilege of citizenship entitles Hamdi to a limited judicial
inquiry into his detention, but only to determine its legality under the
war powers of the political branches. At least where it is undisputed
that he was present in a zone of active combat operations, we are sat-
isfied that the Constitution does not entitle him to a searching review
of the factual determinations underlying his seizure there.
3.
Similarly, we reject Hamdi’s argument that even if his initial deten-
tion in Afghanistan was lawful, his continuing detention on American
soil is not. Specifically, Hamdi contends that his petition does not
implicate military concerns because "the underlying claims in this
case are designed to test the legality of Hamdi’s imprisonment in a
naval brig in Norfolk, Virginia, not a military determination made
overseas on the basis of caution rather than accuracy." Br. of the Peti-
tioners/Appellees at 44. But the fact that Hamdi is presently being
detained in the United States — as opposed to somewhere overseas
— does not affect the legal implications of his status as an enemy
42 HAMDI v. RUMSFELD
combatant. For the same reason that courts are ill-positioned to
review the military’s distinction between those who should or should
not be detained in an arena of combat, courts are not in the position
to overturn the military’s decision to detain those persons in one loca-
tion or another. It is not clear why the United States should be pre-
cluded from exercising its discretion to move a detainee to a site
within this country, nor do we see what purpose would be served by
second guessing the military’s decision with respect to the locus of
detention.
4.
To conclude, we hold that, despite his status as an American citizen
currently detained on American soil, Hamdi is not entitled to chal-
lenge the facts presented in the Mobbs declaration. Where, as here,
a habeas petitioner has been designated an enemy combatant and it is
undisputed that he was captured in a zone of active combat operations
abroad, further judicial inquiry is unwarranted when the government
has responded to the petition by setting forth factual assertions which
would establish a legally valid basis for the petitioner’s detention.
Because these circumstances are present here, Hamdi is not entitled
to habeas relief on this basis.
C.
Finally, we address Hamdi’s contention that even if his detention
was at one time lawful, it is no longer so because the relevant hostili-
ties have reached an end. In his brief, Hamdi alleges that the govern-
ment "confuses the international armed conflict that allegedly
authorized Hamdi’s detention in the first place with an on-going fight
against individuals whom Respondents refuse to recognize as ‘bellig-
erents’ under international law." Id. at 53-54. Whether the timing of
a cessation of hostilities is justiciable is far from clear. See Ludecke,
335 U.S. at 169 ("Whether and when it would be open to this Court
to find that a war though merely formally kept alive had in fact ended,
is a question too fraught with gravity even to be adequately formu-
lated when not compelled."). The executive branch is also in the best
position to appraise the status of a conflict, and the cessation of hostil-
ities would seem no less a matter of political competence than the ini-
tiation of them. See United States v. The Three Friends, 166 U.S. 1,
HAMDI v. RUMSFELD 43
63 (1897) ("[I]t belongs to the political department to determine when
belligerency shall be recognized, and its action must be accepted
according to the terms and intention expressed."). In any case, we
need not reach this issue here. The government notes that American
troops are still on the ground in Afghanistan, dismantling the terrorist
infrastructure in the very country where Hamdi was captured and
engaging in reconstruction efforts which may prove dangerous in
their own right. Because under the most circumscribed definition of
conflict hostilities have not yet reached their end, this argument is
without merit.
VI.
It is important to emphasize that we are not placing our imprimatur
upon a new day of executive detentions. We earlier rejected the sum-
mary embrace of "a sweeping proposition — namely that, with no
meaningful judicial review, any American citizen alleged to be an
enemy combatant could be detained indefinitely without charges or
counsel on the government’s say-so." Hamdi II, 296 F.3d at 283. But,
Hamdi is not "any American citizen alleged to be an enemy comba-
tant" by the government; he is an American citizen captured and
detained by American allied forces in a foreign theater of war during
active hostilities and determined by the United States military to have
been indeed allied with enemy forces.
Cases such as Hamdi’s raise serious questions which the courts will
continue to treat as such. The nation has fought since its founding for
liberty without which security rings hollow and for security without
which liberty cannot thrive. The judiciary was meant to respect the
delicacy of the balance, and we have endeavored to do so.
The events of September 11 have left their indelible mark. It is not
wrong even in the dry annals of judicial opinion to mourn those who
lost their lives that terrible day. Yet we speak in the end not from sor-
row or anger, but from the conviction that separation of powers takes
on special significance when the nation itself comes under attack.
Hamdi’s status as a citizen, as important as that is, cannot displace our
constitutional order or the place of the courts within the Framer’s
scheme. Judicial review does not disappear during wartime, but the
review of battlefield captures in overseas conflicts is a highly deferen-
44 HAMDI v. RUMSFELD
tial one. That is why, for reasons stated, the judgment must be
reversed and the petition dismissed. It is so ordered.