Abstract
The decision in Hamdi v. Rumsfeldwas handed down on the same day as the decision in Rasul. Like Rasul, Hamdi was a habeas corpus case questioning the legality of the government’s detentions of alleged enemy combatants in the War on Terror.
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Notes
- 1.
542 U.S. 507 (2004).
- 2.
542 U.S. 466 (2004).
- 3.
28 U.S.C.A. § 2241.
- 4.
I write “was” because Hamdi later renounced his American citizenship and returned to Saudi Arabia as part of a deal struck with the American government to be released.
- 5.
18 U.S.C.A. § 4001.
- 6.
U.S. Const. amend. XIV § 1.
- 7.
The question of the legality of Hamdi’s confinement as an enemy combatant further tied into the question of the nature of a War on Terror: what does it mean to be an enemy combatant in this war? Is there any well-defined end to the War on Terror? And if not, did it mean that Hamdi could be detained indefinitely?
A plurality of the court, however, found that while the potentially indefinite nature of detentions of enemy combatants in a War on Terror was indeed legally problematic, the court did not have to reach these issues in order to decide Hamdi’s case because Hamdi’s capture and detention should be viewed in light of the ongoing armed struggle in Afghanistan (Hamdi at 520).
- 8.
18 U.S.C.A. § 4001(a).
- 9.
115 Stat. 224, Pub.L. 107–40, §§ 1–2.
- 10.
O’Connor did in fact conclude that the AUMF constituted, “[…] explicit congressional authorization for the detention of individuals in the narrow category we describe” (Hamdi: 2640, emphasis added). During a lecture on constitutional law in the fall semester of 2006 at New York University, Professor Noah Feldman commented that it was less than obvious how O’Connor managed to detect an explicit authorization for detention in the very broad and general language of the AUMF, which does not mentioned the word “detention” even once.
- 11.
Discussed in Chap. 4, Sect. 4.2 (The Procedural Model and Ex Parte Quirin).
- 12.
In a parenthesised remark, she added “assuming, without deciding, that such [Congressional] authorization is required” (Hamdi at 517). This remark arguably suggests that a jurisprudential path leaning more towards the extralegal model was not unthinkable.
In Quirin, the court also leaves such a path open, noting that
It is unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation. For here Congress has authorized trial of offenses against the law of war before such commissions (Quirin at 29).
- 13.
Hearsay means “testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent on the credibility of someone other than the witness. […] Such testimony is generally inadmissible under the rules of evidence. […] In federal law, a statement (either a verbal assertion or nonverbal assertive conduct), other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted” (Blacks Law Dictionary).
- 14.
U.S.C.A. Const. Art. 1, § 9, cl. 2.
- 15.
The Amy Warwick (commonly known as the Prize Cases) 67 U.S. 635 (1862). I discuss this set of cases in Chap. 3, Sect. 3.7 (The Extralegal Model and the Prize Cases).
- 16.
Thomas chooses Hirabayashi as one of the three other cases he relies on to make this point. This arguably further indicates the radical nature of Thomas’ position. As I argue in Chap. 3, Sects. 3.3 (Hirabayashi v. United States) and 3.4 (Korematsu v. United States), it was exactly the jurisprudence of emergency developed in Hirabayashi that underpinned and defined the court’s argument in one of its most infamous decisions ever, Korematsu v. United States.
List of Cases
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
Hirabayashi v. U.S.,320 U.S. 81 (1943)
Mathews v. Eldridge, 424 U.S. 319 (1976)
Milligan, Ex parte, 71 U.S. 2 (1866)
Korematsu v. U.S., 323 U.S. 214 (1944)
Prize Cases, The Amy Warwick, 67 U.S. 635 (1862)
Quirin, Ex parte, 317 U.S. 1 (1942)
Rasul v. Bush, 542 U.S. 466 (2004)
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Hartz, E. (2013). Hamdi v. Rumsfeld. In: From the American Civil War to the War on Terror. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-32633-2_6
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