OPINION OF O'CONNOR, J. HAMDI V. RUMSFELD 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-6696 YASER ESAM HAMDI and ESAM FOUAD HAMDI, as next
friend of YASER ESAM HAMDI, PETITION- ERS v. DONALD H.
RUMSFELD, SECRETARY OF DEFENSE, et al.

															on writ of certiorari to the united states court of
appeals for the fourth circuit

															[June 28, 2004]

															   Justice O’Connor announced the
judgment of the Court and delivered an opinion, in which The Chief
Justice, Justice Kennedy, and Justice Breyer join.

															   At this difficult time in our
Nation’s history, we are called upon to consider the legality of
the Government’s detention of a United States citizen on United
States soil as an “enemy combatant” and to address the process that
is constitutionally owed to one who seeks to challenge his
classification as such. The United States Court of Appeals for the
Fourth Circuit held that petitioner’s detention was legally
authorized and that he was entitled to no further opportunity to
challenge his enemy-combatant label. We now vacate and remand. We
hold that although Congress authorized the detention of combatants
in the narrow circumstances alleged here, due process demands that
a citizen held in the United States as an enemy combatant be given
a meaningful opportunity to contest the factual basis for that
detention before a neutral decisionmaker.

															I

															   On September 11, 2001, the al
Qaeda terrorist network used hijacked commercial airliners to
attack prominent targets in the United States. Approximately 3,000
people were killed in those attacks. One week later, in response to
these “acts of treacherous violence,” Congress passed a resolution
authorizing 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, in order to
prevent any future acts of international terrorism against the
United States by such nations, organizations or persons.”
Authorization for Use of Military Force (“the AUMF”), 115 Stat.
224. Soon thereafter, the President ordered United States Armed
Forces to Afghanistan, with a mission to subdue al Qaeda and quell
the Taliban regime that was known to support it.

															   This case arises out of the
detention of a man whom the Government alleges took up arms with
the Taliban during this conflict. His name is Yaser Esam Hamdi.
Born an American citizen in Louisiana in 1980, Hamdi moved with his
family to Saudi Arabia as a child. By 2001, the parties agree, he
resided in Afghanistan. At some point that year, he was seized by
members of the Northern Alliance, a coalition of military groups
opposed to the Taliban government, and eventually was turned over
to the United States military. The Government asserts that it
initially detained and interrogated Hamdi in Afghanistan before
transferring him to the United States Naval Base in Guantanamo Bay
in January 2002. In April 2002, upon learning that Hamdi is an
American citizen, authorities transferred him to a naval brig in
Norfolk, Virginia, where he remained until a recent transfer to a
brig in Charleston, South Carolina. The Government contends that
Hamdi is an “enemy combatant,” and that this status justifies
holding him in the United States indefinitely—without formal
charges or proceedings—unless and until it makes the determination
that access to counsel or further process is warranted.

															   In June 2002, Hamdi’s father, Esam Fouad
Hamdi, filed the present petition for a writ of habeas corpus under
28 U. S. C. §2241 in the Eastern District of Virginia, naming
as petitioners his son and himself as next friend. The elder Hamdi
alleges in the petition that he has had no contact with his son
since the Government took custody of him in 2001, and that the
Government has held his son “without access to legal counsel or
notice of any charges pending against him.” App. 103, 104. The
petition contends that Hamdi’s detention was not legally
authorized. Id ., at 105. It argues that, “[a]s an American
citizen, … Hamdi enjoys the full protections of the Constitution,”
and that Hamdi’s detention in the United States without charges,
access to an impartial tribunal, or assistance of counsel “violated
and continue[s] to violate the Fifth and Fourteenth Amendments to
the United States Constitution.” Id ., at 107. The habeas
petition asks that the court, among other things, (1) appoint
counsel for Hamdi; (2) order respondents to cease interrogating
him; (3) declare that he is being held in violation of the Fifth
and Fourteenth Amendments; (4) “[t]o the extent Respondents contest
any material factual allegations in this Petition, schedule an
evidentiary hearing, at which Petitioners may adduce proof in
support of their allegations”; and (5) order that Hamdi be released
from his “unlawful custody.” Id ., at 108–109. Although his
habeas petition provides no details with regard to the factual
circumstances surrounding his son’s capture and detention, Hamdi’s
father has asserted in documents found elsewhere in the record that
his son went to Afghanistan to do “relief work,” and that he had
been in that country less than two months before September 11,
2001, and could not have received military training. Id .,
at 188–189. The 20-year-old was traveling on his own for the first
time, his father says, and “[b]ecause of his lack of experience, he
was trapped in Afghanistan once that military campaign began.” Id ., at 188–189.

															   The District Court found that Hamdi’s father
was a proper next friend, appointed the federal public defender as
counsel for the petitioners, and ordered that counsel be given
access to Hamdi. Id ., at 113–116. The United States Court
of Appeals for the Fourth Circuit reversed that order, holding that
the District Court had failed to extend appropriate deference to
the Government’s security and intelligence interests. 296
F. 3d 278, 279, 283 (2002). It directed the District Court to
consider “the most cautious procedures first,” id ., at
284, and to conduct a deferential inquiry into Hamdi’s status, id ., at 283. It opined 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.” Ibid .

															   On remand, the Government filed a response and
a motion to dismiss the petition. It attached to its response a
declaration from one Michael Mobbs (hereinafter “Mobbs
Declaration”), who identified himself as Special Advisor to the
Under Secretary of Defense for Policy. Mobbs indicated that in this
position, he has been “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
(including the Taliban).” App. 148. He expressed his
“familiar[ity]” with Department of Defense and United States
military policies and procedures applicable to the detention,
control, and transfer of al Qaeda and Taliban personnel, and
declared that “[b]ased upon my review of relevant records and
reports, I am also familiar with the facts and circumstances
related to the capture of … Hamdi and his detention by U. S.
military forces.” Ibid .

															   Mobbs then set forth what remains the sole
evidentiary support that the Government has provided to the courts
for Hamdi’s detention. The declaration states that Hamdi “traveled
to Afghanistan” in July or August 2001, and that he thereafter
“affiliated with a Taliban military unit and received weapons
training.” Ibid . It asserts that Hamdi “remained with his
Taliban unit following the attacks of September 11” and that,
during the time when Northern Alliance forces were “engaged in
battle with the Taliban,” “Hamdi’s Taliban unit surrendered” to
those forces, after which he “surrender[ed] his Kalishnikov assault
rifle” to them. Id ., at 148–149. The Mobbs Declaration
also states that, because al Qaeda and the Taliban “were and are
hostile forces engaged in armed conflict with the armed forces of
the United States,” “individuals associated with” those groups
“were and continue to be enemy combatants.” Id ., at 149.
Mobbs states that Hamdi was labeled an enemy combatant “[b]ased
upon his interviews and in light of his association with the
Taliban.” Ibid . According to the declaration, a series of
“U. S. military screening team[s]” determined that Hamdi met “the
criteria for enemy combatants,” and “a subsequent interview of
Hamdi has confirmed that he surrendered and gave his firearm to
Northern Alliance forces, which supports his classification as an
enemy combatant.” Id ., at 149–150.

															   After the Government submitted this
declaration, the Fourth Circuit directed the District Court to
proceed in accordance with its earlier ruling and, specifically, to
“ ‘consider the sufficiency of the Mobbs Declaration as an
independent matter before proceeding further.’ ” 316
F. 3d at 450, 462 (2003) . The District Court found
that the Mobbs Declaration fell “far short” of supporting Hamdi’s
detention. App. 292. It criticized the generic and hearsay nature
of the affidavit, calling it “little more than the government’s
‘say-so.’ ” Id ., at 298. It ordered the Government to
turn over numerous materials for in camera review,
including copies of all of Hamdi’s statements and the notes taken
from interviews with him that related to his reasons for going to
Afghanistan and his activities therein; a list of all interrogators
who had questioned Hamdi and their names and addresses; statements
by members of the Northern Alliance regarding Hamdi’s surrender and
capture; a list of the dates and locations of his capture and
subsequent detentions; and the names and titles of the United
States Government officials who made the determinations that Hamdi
was an enemy combatant and that he should be moved to a naval brig. Id ., at 185–186. The court indicated that all of these
materials were necessary for “meaningful judicial review” of
whether Hamdi’s detention was legally authorized and whether Hamdi
had received sufficient process to satisfy the Due Process Clause
of the Constitution and relevant treaties or military regulations. Id ., at 291–292. The Government sought to appeal
the production order, and the District Court certified the question
of whether the Mobbs Declaration, “ ‘standing alone, is
sufficient as a matter of law to allow meaningful judicial review
of [Hamdi’s] classification as an enemy combatant.’ ” 316
F. 3d, at 462. The Fourth Circuit reversed, but did not
squarely answer the certified question. It instead stressed that,
because it was “undisputed that Hamdi was captured in a zone of
active combat in a foreign theater of conflict,” no factual inquiry
or evidentiary hearing allowing Hamdi to be heard or to rebut the
Government’s assertions was necessary or proper. Id ., at
459. Concluding that the factual averments in the Mobbs
Declaration, “if accurate,” provided a sufficient basis upon which
to conclude that the President had constitutionally detained Hamdi
pursuant to the President’s war powers, it ordered the habeas
petition dismissed. Id ., at 473. The Fourth Circuit
emphasized that the “vital purposes” of the detention of uncharged
enemy combatants—preventing those combatants from rejoining the
enemy while relieving the military of the burden of litigating the
circumstances of wartime captures halfway around the globe—were
interests “directly derived from the war powers of Articles I and
II.” Id ., at 465–466. In that court’s view, because
“Article III contains nothing analogous to the specific powers of
war so carefully enumerated in Articles I and II,” id ., at
463, separation of powers principles prohibited a federal court
from “delv[ing] further into Hamdi’s status and capture,” id ., at 473. Accordingly, the District Court’s more
vigorous inquiry “went far beyond the acceptable scope of review.” Ibid . On the more global question of
whether legal authorization exists for the detention of citizen
enemy combatants at all, the Fourth Circuit rejected Hamdi’s
arguments that 18 U. S. C. §4001(a) and Article 5 of the
Geneva Convention rendered any such detentions unlawful. The court
expressed doubt as to Hamdi’s argument that §4001(a), which
provides that “[n]o citizen shall be imprisoned or otherwise
detained by the United States except pursuant to an Act of
Congress,” required express congressional authorization of
detentions of this sort. But it held that, in any event, such
authorization was found in the post-September 11 Authorization for
Use of Military Force. 316 F. 3d, at 467. Because “capturing
and detaining enemy combatants is an inherent part of warfare,” the
court held, “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.” Ibid . ; see also id. , at 467–468
(noting that Congress, in 10 U. S. C. §956(5), had
specifically authorized the expenditure of funds for keeping
prisoners of war and persons whose status was determined “to be
similar to prisoners of war,” and concluding that this
appropriation measure also demonstrated that Congress had
“authorized [these individuals’] detention in the first instance”).
The court likewise rejected Hamdi’s Geneva Convention claim,
concluding that the convention is not self-executing and that, even
if it were, it would not preclude the Executive from detaining
Hamdi until the cessation of hostilities. 316 F. 3d, at
468–469. Finally, the Fourth Circuit
rejected Hamdi’s contention that its legal analyses with regard to
the authorization for the detention scheme and the process to which
he was constitutionally entitled should be altered by the fact that
he is an American citizen detained on American soil. Relying on Ex parte Quirin , 317 U. S. 1 (1942), the court emphasized
that “[o]ne who takes up arms against the United States in a
foreign theater of war, regardless of his citizenship, may properly
be designated an enemy combatant and treated as such.” 316 F.3d, at
475. “The privilege of citizenship,” the court held, “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 satisfied that the
Constitution does not entitle him to a searching review of the
factual determinations underlying his seizure there.” Ibid . The Fourth Circuit denied
rehearing en banc, 337 F. 3d 335 (2003), and we granted
certiorari. 540 U. S. __ (2004). We now vacate the judgment below
and remand. II The threshold
question before us is whether the Executive has the authority to
detain citizens who qualify as “enemy combatants.” There is some
debate as to the proper scope of this term, and the Government has
never provided any court with the full criteria that it uses in
classifying individuals as such. It has made clear, however, that,
for purposes of this case, the “enemy combatant” that it is seeking
to detain is an individual who, it alleges, was “ ‘part of or
supporting forces hostile to the United States or coalition
partners’ ” in Afghanistan and who “ ‘engaged in an armed
conflict against the United States’ ” there. Brief for
Respondents 3. We therefore answer only the narrow question before
us: whether the detention of citizens falling within that
definition is authorized. The Government
maintains that no explicit congressional authorization is required,
because the Executive possesses plenary authority to detain
pursuant to Article II of the Constitution. We do not reach the
question whether Article II provides such authority, however,
because we agree with the Government’s alternative position, that
Congress has in fact authorized Hamdi’s detention, through the
AUMF. Our analysis on that point, set
forth below, substantially overlaps with our analysis of Hamdi’s
principal argument for the illegality of his detention. He posits
that his detention is forbidden by 18 U. S. C. §4001(a).
Section 4001(a) states that “[n]o citizen shall be imprisoned or
otherwise detained by the United States except pursuant to an Act
of Congress.” Congress passed §4001(a) in 1971 as part of a bill to
repeal the Emergency Detention Act of 1950, 50 U. S. C. §811 et seq ., which provided procedures for executive
detention, during times of emergency, of individuals deemed likely
to engage in espionage or sabotage. Congress was particularly
concerned about the possibility that the Act could be used to
reprise the Japanese internment camps of World War II. H. R.
Rep. No. 92–116 (1971); id. , at 4 (“The concentration camp
implications of the legislation render it
abhorrent”).   The Government again presses two
alternative positions. First, it argues that §4001(a), in light of
its legislative history and its location in Title 18, applies only
to “the control of civilian prisons and related detentions,” not to
military detentions. Brief for Respondents 21. Second, it maintains
that §4001(a) is satisfied, because Hamdi is being detained
“pursuant to an Act of Congress”—the AUMF. Id ., at 21–22.
Again, because we conclude that the Government’s second assertion
is correct, we do not address the first. In other words, for the
reasons that follow, we conclude that the AUMF is explicit
congressional authorization for the detention of individuals in the
narrow category we describe (assuming, without deciding, that such
authorization is required), and that the AUMF satisfied §4001(a)’s
requirement that a detention be “pursuant to an Act of Congress”
(assuming, without deciding, that §4001(a) applies to military
detentions). The AUMF authorizes the President
to use “all necessary and appropriate force” against “nations,
organizations, or persons” associated with the September 11, 2001,
terrorist attacks. 115 Stat. 224. There can be no doubt that
individuals who fought against the United States in Afghanistan as
part of the Taliban, an organization known to have supported the al
Qaeda terrorist network responsible for those attacks, are
individuals Congress sought to target in passing the AUMF. We
conclude that detention of individuals falling into the limited
category we are considering, for the duration of the particular
conflict in which they were captured, is so fundamental and
accepted an incident to war as to be an exercise of the “necessary
and appropriate force” Congress has authorized the President to
use. The capture and detention of
lawful combatants and the capture, detention, and trial of unlawful
combatants, by “universal agreement and practice,” are “important
incident[s] of war.” Ex parte Quirin, 317 U. S., at 28.
The purpose of detention is to prevent captured individuals from
returning to the field of battle and taking up arms once again.
Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross
571, 572 (2002) (“[C]aptivity in war is ‘neither revenge, nor
punishment, but solely protective custody, the only purpose of
which is to prevent the prisoners of war from further participation
in the war’ ” (quoting decision of Nuremberg Military
Tribunal, reprinted in 41 Am. J. Int’l L. 172, 229 (1947)); W.
Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) (“The
time has long passed when ‘no quarter’ was the rule on the
battlefield … . It is now recognized that ‘Captivity is
neither a punishment nor an act of vengeance,’ but ‘merely a
temporary detention which is devoid of all penal character.’ … ‘A
prisoner of war is no convict; his imprisonment is a simple war
measure.’ ” (citations omitted); cf. In re Territo ,
156 F.2d 142, 145 (CA9 1946) (“The object of capture is to prevent
the captured individual from serving the enemy. He is disarmed and
from then on must be removed as completely as practicable from the
front, treated humanely, and in time exchanged, repatriated, or
otherwise released” (footnotes omitted)). There is no bar to this Nation’s
holding one of its own citizens as an enemy combatant. In Quirin , one of the detainees, Haupt, alleged that he was a
naturalized United States citizen. 317 U. S., at 20. We held that
“[c]itizens who associate themselves with the military arm of the
enemy government, and with its aid, guidance and direction enter
this country bent on hostile acts, are enemy belligerents within
the meaning of … the law of war.” Id . , at 37–38.
While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded
his mere detention for the duration of the relevant hostilities.
See id . , at 30–31. See also Lieber Code, ¶ ;153,
Instructions for the Government of Armies of the United States in
the Field, Gen. Order No. 100 (1863), reprinted in 2 Lieber,
Miscellaneous Writings, p. 273 (contemplating, in code binding the
Union Army during the Civil War, that “captured rebels” would be
treated “as prisoners of war”). Nor can we see any reason for
drawing such a line here. A citizen, no less than an alien, can be
“part of or supporting forces hostile to the United States or
coalition partners” and “engaged in an armed conflict against the
United States,” Brief for Respondents 3; such a citizen, if
released, would pose the same threat of returning to the front
during the ongoing conflict. In light of these principles, it
is of no moment that the AUMF does not use specific language of
detention. Because detention to prevent a combatant’s return to the
battlefield is a fundamental incident of waging war, in permitting
the use of “necessary and appropriate force,” Congress has clearly
and unmistakably authorized detention in the narrow circumstances
considered here. Hamdi objects, nevertheless, that
Congress has not authorized the indefinite detention to
which he is now subject. The Government responds that “the
detention of enemy combatants during World War II was just as
‘indefinite’ while that war was being fought.” Id ., at 16.
We take Hamdi’s objection to be not to the lack of certainty
regarding the date on which the conflict will end, but to the
substantial prospect of perpetual detention. We recognize that the
national security underpinnings of the “war on terror,” although
crucially important, are broad and malleable. As the Government
concedes, “given its unconventional nature, the current conflict is
unlikely to end with a formal cease-fire agreement.” Ibid .
The prospect Hamdi raises is therefore not far-fetched. If the
Government does not consider this unconventional war won for two
generations, and if it maintains during that time that Hamdi might,
if released, rejoin forces fighting against the United States, then
the position it has taken throughout the litigation of this case
suggests that Hamdi’s detention could last for the rest of his
life. It is a clearly established
principle of the law of war that detention may last no longer than
active hostilities. See Article 118 of the Geneva Convention (III)
Relative to the Treatment of Prisoners of War, Aug. 12, 1949,
[1955] 6 U. S. T. 3316, 3406, T. I. A. S. No. 3364 (“Prisoners of
war shall be released and repatriated without delay after the
cessation of active hostilities”). See also Article 20 of the Hague
Convention (II) on Laws and Customs of War on Land, July 29, 1899,
32 Stat. 1817 (as soon as possible after “conclusion of peace”);
Hague Convention (IV), supra , Oct. 18, 1907, 36 Stat.
2301(“conclusion of peace” (Art. 20)); Geneva Convention, supra , July 27, 1929, 47 Stat. 2055 (repatriation should
be accomplished with the least possible delay after conclusion of
peace (Art. 75)); Praust, Judicial Power to Determine the Status
and Rights of Persons Detained without Trial, 44 Harv. Int’l L. J.
503, 510–511 (2003) (prisoners of war “can be detained during an
armed conflict, but the detaining country must release and
repatriate them ‘without delay after the cessation of active
hostilities,’ unless they are being lawfully prosecuted or have
been lawfully convicted of crimes and are serving sentences”
(citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 T.
I .A. S., at 3384, 3392, 3406, 3418)). Hamdi contends that the AUMF does
not authorize indefinite or perpetual detention. Certainly, we
agree that indefinite detention for the purpose of interrogation is
not authorized. Further, we understand Congress’ grant of authority
for the use of “necessary and appropriate force” to include the
authority to detain for the duration of the relevant conflict, and
our understanding is based on longstanding law-of-war principles.
If the practical circumstances of a given conflict are entirely
unlike those of the conflicts that informed the development of the
law of war, that understanding may unravel. But that is not the
situation we face as of this date. Active combat operations against
Taliban fighters apparently are ongoing in Afghanistan. See, e.g., Constable, U. S. Launches New Operation in
Afghanistan, Washington Post, Mar. 14, 2004, p. A22 (reporting that
13,500 United States troops remain in Afghanistan, including
several thousand new arrivals); J. Abizaid, Dept. of Defense, Gen.
Abizaid Central Command Operations Update Briefing, Apr. 30, 2004,
http://www.defenselink.mil/transcripts/2004/tr20040430-1402.html
(as visited June 8, 2004, and available in the Clerk of Court’s
case file) (media briefing describing ongoing operations in
Afghanistan involving 20,000 United States troops). The United
States may detain, for the duration of these hostilities,
individuals legitimately determined to be Taliban combatants who
“engaged in an armed conflict against the United States.” If the
record establishes that United States troops are still involved in
active combat in Afghanistan, those detentions are part of the
exercise of “necessary and appropriate force,” and therefore are
authorized by the AUMF. Ex parte
Milligan, 4 Wall. 2, 125 (1866), does not undermine our
holding about the Government’s authority to seize enemy combatants,
as we define that term today. In that case, the Court made repeated
reference to the fact that its inquiry into whether the military
tribunal had jurisdiction to try and punish Milligan turned in
large part on the fact that Milligan was not a prisoner of war, but
a resident of Indiana arrested while at home there. Id .,
at 118, 131. That fact was central to its conclusion. Had Milligan
been captured while he was assisting Confederate soldiers by
carrying a rifle against Union troops on a Confederate battlefield,
the holding of the Court might well have been different. The
Court’s repeated explanations that Milligan was not a prisoner of
war suggest that had these different circumstances been present he
could have been detained under military authority for the duration
of the conflict, whether or not he was a citizen.[ Footnote 1 ] Moreover, as Justice Scalia
acknowledges, the Court in Ex parte Quirin , 317 U. S. 1 (1942), dismissed the
language of Milligan that the petitioners had suggested
prevented them from being subject to military process. Post , at 17–18 (dissenting opinion). Clear in this
rejection was a disavowal of the New York State cases cited in Milligan , 4 Wall., at 128–129, on which Justice Scalia
relies. See id ., at 128–129. Both Smith v. Shaw , 12 Johns. *257 (N. Y. 1815), and M’Connell v. Hampton , 12 Johns. *234 (N. Y.
1815), were civil suits for false imprisonment. Even accepting that
these cases once could have been viewed as standing for the
sweeping proposition for which Justice Scalia cites them—that the
military does not have authority to try an American citizen accused
of spying against his country during wartime— Quirin makes
undeniably clear that this is not the law today. Haupt, like the
citizens in Smith and M’Connell , was accused of
being a spy. The Court in Quirin found him “subject to
trial and punishment by [a] military tribunal[ ]” for those acts,
and held that his citizenship did not change this result. 317 U.
S., at 31, 37–38. Quirin was a unanimous
opinion. It both postdates and clarifies Milligan ,
providing us with the most apposite precedent that we have on the
question of whether citizens may be detained in such circumstances.
Brushing aside such precedent—particularly when doing so gives rise
to a host of new questions never dealt with by this Court—is
unjustified and unwise. To the extent that Justice Scalia
accepts the precedential value of Quirin , he argues that
it cannot guide our inquiry here because “[i]n Quirin it
was uncontested that the petitioners were members of enemy forces,”
while Hamdi challenges his classification as an enemy combatant. Post , at 19. But it is unclear why, in the paradigm
outlined by Justice Scalia, such a concession should have any
relevance. Justice Scalia envisions a system in which the only
options are congressional suspension of the writ of habeas corpus
or prosecution for treason or some other crime. Post , at
1. He does not explain how his historical analysis supports the
addition of a third option—detention under some other process after
concession of enemy-combatant status—or why a concession should
carry any different effect than proof of enemy-combatant status in
a proceeding that comports with due process. To be clear, our
opinion only finds legislative authority to detain under the AUMF
once it is sufficiently clear that the individual is, in fact, an
enemy combatant; whether that is established by concession or by
some other process that verifies this fact with sufficient
certainty seems beside the point. Further, Justice Scalia largely
ignores the context of this case: a United States citizen captured
in a foreign combat zone. Justice Scalia refers to only
one case involving this factual scenario—a case in which a United
States citizen-POW (a member of the Italian army) from World War II
was seized on the battlefield in Sicily and then held in the United
States. The court in that case held that the military detention of
that United States citizen was lawful. See In re
Territo , 156 F. 2d, at 148. Justice Scalia’s treatment of that
case—in a footnote—suffers from the same defect as does his
treatment of Quirin: Because Justice Scalia finds the fact
of battlefield capture irrelevant, his distinction based on the
fact that the petitioner “conceded” enemy combatant status is
beside the point. See supra , at 15–16. Justice Scalia can
point to no case or other authority for the proposition that those
captured on a foreign battlefield (whether detained there or in U.
S. territory) cannot be detained outside the criminal
process. Moreover, Justice Scalia
presumably would come to a different result if Hamdi had been kept
in Afghanistan or even Guantanamo Bay. See post , at 25
(Scalia, J., dissenting). This creates a perverse incentive.
Military authorities faced with the stark choice of submitting to
the full-blown criminal process or releasing a suspected enemy
combatant captured on the battlefield will simply keep
citizen-detainees abroad. Indeed, the Government transferred Hamdi
from Guantanamo Bay to the United States naval brig only after it
learned that he might be an American citizen. It is not at all
clear why that should make a determinative constitutional
difference. III Even in cases in
which the detention of enemy combatants is legally authorized,
there remains the question of what process is constitutionally due
to a citizen who disputes his enemy-combatant status. Hamdi argues
that he is owed a meaningful and timely hearing and that
“extra-judicial detention [that] begins and ends with the
submission of an affidavit based on third-hand hearsay” does not
comport with the Fifth and Fourteenth Amendments. Brief for
Petitioners 16. The Government counters that any more process than
was provided below would be both unworkable and “constitutionally
intolerable.” Brief for Respondents 46. Our resolution of this
dispute requires a careful examination both of the writ of habeas
corpus, which Hamdi now seeks to employ as a mechanism of judicial
review, and of the Due Process Clause, which informs the procedural
contours of that mechanism in this instance. A Though they reach
radically different conclusions on the process that ought to attend
the present proceeding, the parties begin on common ground. All
agree that, absent suspension, the writ of habeas corpus remains
available to every individual detained within the United States. U.
S. Const., Art. I, §9, cl. 2 (“The Privilege of the Writ of
Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it”). Only in
the rarest of circumstances has Congress seen fit to suspend the
writ. See, e.g. , Act of Mar. 3, 1863, ch. 81, §1, 12 Stat.
755; Act of April 20, 1871, ch. 22, §4, 17 Stat. 14. At all other
times, it has remained a critical check on the Executive, ensuring
that it does not detain individuals except in accordance with law.
See INS v. St. Cyr, 533 U. S. 289 , 301
(2001). All agree suspension of the writ has not occurred here.
Thus, it is undisputed that Hamdi was properly before an Article
III court to challenge his detention under 28 U. S. C. §2241.
Brief for Respondents 12. Further, all agree that §2241 and its
companion provisions provide at least a skeletal outline of the
procedures to be afforded a petitioner in federal habeas review.
Most notably, §2243 provides that “the person detained may, under
oath, deny any of the facts set forth in the return or allege any
other material facts,” and §2246 allows the taking of evidence in
habeas proceedings by deposition, affidavit, or
interrogatories. The simple outline of
§2241 makes clear both that Congress envisioned that habeas
petitioners would have some opportunity to present and rebut facts
and that courts in cases like this retain some ability to vary the
ways in which they do so as mandated by due process. The Government
recognizes the basic procedural protections required by the habeas
statute, Id ., at 37–38, but asks us to hold that, given
both the flexibility of the habeas mechanism and the circumstances
presented in this case, the presentation of the Mobbs Declaration
to the habeas court completed the required factual development. It
suggests two separate reasons for its position that no further
process is due. B First, the Government
urges the adoption of the Fourth Circuit’s holding below—that
because it is “undisputed” that Hamdi’s seizure took place in a
combat zone, the habeas determination can be made purely as a
matter of law, with no further hearing or factfinding necessary.
This argument is easily rejected. As the dissenters from the denial
of rehearing en banc noted, the circumstances surrounding Hamdi’s
seizure cannot in any way be characterized as “undisputed,” as
“those circumstances are neither conceded in fact, nor susceptible
to concession in law, because Hamdi has not been permitted to speak
for himself or even through counsel as to those circumstances.” 337
F. 3d 335, 357 (CA4 2003) (Luttig, J., dissenting from denial
of rehearing en banc); see also id ., at 371–372 (Motz, J.,
dissenting from denial of rehearing en banc). Further, the “facts”
that constitute the alleged concession are insufficient to support
Hamdi’s detention. Under the definition of enemy combatant that we
accept today as falling within the scope of Congress’
authorization, Hamdi would need to be “part of or supporting forces
hostile to the United States or coalition partners” and “engaged in
an armed conflict against the United States” to justify his
detention in the United States for the duration of the relevant
conflict. Brief for Respondents 3. The habeas petition states only
that “[w]hen seized by the United States Government, Mr. Hamdi
resided in Afghanistan.” App. 104. An assertion that one resided in a country in which combat operations are taking
place is not a concession that one was “ captured in a zone
of active combat operations in a foreign theater of war,” 316
F. 3d, at 459 (emphasis added), and certainly is not a
concession that one was “part of or supporting forces hostile to
the United States or coalition partners” and “engaged in an armed
conflict against the United States.” Accordingly, we reject any
argument that Hamdi has made concessions that eliminate any right
to further process. C The Government’s
second argument requires closer consideration. This is the argument
that further factual exploration is unwarranted and inappropriate
in light of the extraordinary constitutional interests at stake.
Under the Government’s most extreme rendition of this argument,
“[r]espect for separation of powers and the limited institutional
capabilities of courts in matters of military decision-making in
connection with an ongoing conflict” ought to eliminate entirely
any individual process, restricting the courts to investigating
only whether legal authorization exists for the broader detention
scheme. Brief for Respondents 26. At most, the Government argues,
courts should review its determination that a citizen is an enemy
combatant under a very deferential “some evidence” standard. Id ., at 34 (“Under the some evidence standard, the focus
is exclusively on the factual basis supplied by the Executive to
support its own determination” (citing Superintendent, Mass.
Correctional Institution at Walpole v. Hill, 472 U. S. 445 , 455–457
(1985) (explaining that the some evidence standard “does not
require” a “weighing of the evidence,” but rather calls for
assessing “whether there is any evidence in the record that could
support the conclusion”)). Under this review, a court would assume
the accuracy of the Government’s articulated basis for Hamdi’s
detention, as set forth in the Mobbs Declaration, and assess only
whether that articulated basis was a legitimate one. Brief for
Respondents 36; see also 316 F. 3d, at 473–474 (declining to
address whether the “some evidence” standard should govern the
adjudication of such claims, but noting that “[t]he factual
averments in the [Mobbs] affidavit, if accurate, are sufficient to
confirm” the legality of Hamdi’s detention). In response, Hamdi
emphasizes that this Court consistently has recognized that an
individual challenging his detention may not be held at the will of
the Executive without recourse to some proceeding before a neutral
tribunal to determine whether the Executive’s asserted
justifications for that detention have basis in fact and warrant in
law. See, e.g ., Zadvydas v. Davis, 533 U. S. 678 ,
690 (2001); Addington v. Texas, 441 U. S. 418 , 425–427
(1979). He argues that the Fourth Circuit inappropriately “ceded
power to the Executive during wartime to define the conduct for
which a citizen may be detained, judge whether that citizen has
engaged in the proscribed conduct, and imprison that citizen
indefinitely,” Brief for Petitioners 21, and that due process
demands that he receive a hearing in which he may challenge the
Mobbs Declaration and adduce his own counter evidence. The District
Court, agreeing with Hamdi, apparently believed that the
appropriate process would approach the process that accompanies a
criminal trial. It therefore disapproved of the hearsay nature of
the Mobbs Declaration and anticipated quite extensive discovery of
various military affairs. Anything less, it concluded, would not be
“meaningful judicial review.” App. 291. Both of these positions highlight
legitimate concerns. And both emphasize the tension that often
exists between the autonomy that the Government asserts is
necessary in order to pursue effectively a particular goal and the
process that a citizen contends he is due before he is deprived of
a constitutional right. The ordinary mechanism that we use for
balancing such serious competing interests, and for determining the
procedures that are necessary to ensure that a citizen is not
“deprived of life, liberty, or property, without due process of
law,” U. S. Const., Amdt. 5, is the test that we articulated in Mathews v. Eldridge, 424 U. S. 319 (1976).
See, e.g. , Heller v. Doe, 509 U. S. 312 , 330–331
(1993); Zinermon v. Burch, 494 U. S. 113 , 127–128
(1990); United States v. Salerno, 481 U. S. 739 , 746
(1987); Schall v. Martin, 467 U. S. 253 , 274–275
(1984); Addington v. Texas, supra , at
425. Mathews dictates that the process due in any given
instance is determined by weighing “the private interest that will
be affected by the official action” against the Government’s
asserted interest, “including the function involved” and the
burdens the Government would face in providing greater process. 424
U. S., at 335. The Mathews calculus then contemplates a
judicious balancing of these concerns, through an analysis of “the
risk of an erroneous deprivation” of the private interest if the
process were reduced and the “probable value, if any, of additional
or substitute safeguards.” Ibid . We take each of these
steps in turn. 1 It is beyond question
that substantial interests lie on both sides of the scale in this
case. Hamdi’s “private interest … affected by the official action,” ibid ., is the most elemental of liberty interests—the
interest in being free from physical detention by one’s own
government. Foucha v. Louisiana, 504 U. S. 71 , 80 (1992)
(“Freedom from bodily restraint has always been at the core of the
liberty protected by the Due Process Clause from arbitrary
governmental action”); see also Parham v. J. R., 442 U. S. 584 , 600
(1979) (noting the “substantial liberty interest in not being
confined unnecessarily”). “In our society liberty is the norm,” and
detention without trial “is the carefully limited exception.” Salerno, supra , at 755. “We have always been
careful not to ‘minimize the importance and fundamental nature’ of
the individual’s right to liberty,” Foucha, supra , at 80 (quoting Salerno , supra , at
750), and we will not do so today. Nor is the weight on
this side of the Mathews scale offset by the circumstances
of war or the accusation of treasonous behavior, for “[i]t is clear
that commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection,” Jones v. United States, 463 U. S. 354 , 361
(1983) (emphasis added; internal quotation marks omitted), and at
this stage in the Mathews calculus, we consider the
interest of the erroneously detained individual. Carey v. Piphus, 435 U. S. 247 , 259
(1978) (“Procedural due process rules are meant to protect persons
not from the deprivation, but from the mistaken or unjustified
deprivation of life, liberty, or property”); see also id .,
at 266 (noting “the importance to organized society that procedural
due process be observed,” and emphasizing that “the right to
procedural due process is ‘absolute’ in the sense that it does not
depend upon the merits of a claimant’s substantive assertions”).
Indeed, as amicus briefs from media and relief
organizations emphasize, the risk of erroneous deprivation of a
citizen’s liberty in the absence of sufficient process here is very
real. See Brief for AmeriCares et al. as Amici Curiae 13–22 (noting ways in which “[t]he nature of humanitarian relief
work and journalism present a significant risk of mistaken military
detentions”). Moreover, as critical as the Government’s interest
may be in detaining those who actually pose an immediate threat to
the national security of the United States during ongoing
international conflict, history and common sense teach us that an
unchecked system of detention carries the potential to become a
means for oppression and abuse of others who do not present that
sort of threat. See Ex parte Milligan, 4 Wall., at 125
(“[The Founders] knew—the history of the world told them—the nation
they were founding, be its existence short or long, would be
involved in war; how often or how long continued, human foresight
could not tell; and that unlimited power, wherever lodged at such a
time, was especially hazardous to freemen”). Because we live in a
society in which “[m]ere public intolerance or animosity cannot
constitutionally justify the deprivation of a person’s physical
liberty,” O’Connor v. Donaldson, 422 U. S. 563 , 575
(1975), our starting point for the Mathews v. Eldridge analysis is unaltered by the allegations
surrounding the particular detainee or the organizations with which
he is alleged to have associated. We reaffirm today the fundamental
nature of a citizen’s right to be free from involuntary confinement
by his own government without due process of law, and we weigh the
opposing governmental interests against the curtailment of liberty
that such confinement entails. 2 On the other side of
the scale are the weighty and sensitive governmental interests in
ensuring that those who have in fact fought with the enemy during a
war do not return to battle against the United States. As discussed
above, supra , at 10, the law of war and the realities of
combat may render such detentions both necessary and appropriate,
and our due process analysis need not blink at those realities.
Without doubt, our Constitution recognizes that core strategic
matters of warmaking belong in the hands of those who are best
positioned and most politically accountable for making them. Department of Navy v. Egan, 484 U. S. 518 , 530
(1988) (noting the reluctance of the courts “to intrude upon the
authority of the Executive in military and national security
affairs”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 587
(1952) (acknowledging “broad powers in military commanders engaged
in day-to-day fighting in a theater of war”). The Government also
argues at some length that its interests in reducing the process
available to alleged enemy combatants are heightened by the
practical difficulties that would accompany a system of trial-like
process. In its view, military officers who are engaged in the
serious work of waging battle would be unnecessarily and
dangerously distracted by litigation half a world away, and
discovery into military operations would both intrude on the
sensitive secrets of national defense and result in a futile search
for evidence buried under the rubble of war. Brief for Respondents
46–49. To the extent that these burdens are triggered by heightened
procedures, they are properly taken into account in our due process
analysis. 3 Striking the proper
constitutional balance here is of great importance to the Nation
during this period of ongoing combat. But it is equally vital that
our calculus not give short shrift to the values that this country
holds dear or to the privilege that is American citizenship. It is
during our most challenging and uncertain moments that our Nation’s
commitment to due process is most severely tested; and it is in
those times that we must preserve our commitment at home to the
principles for which we fight abroad. See Kennedy v. Mendoza&nbhyph;Martinez, 372 U. S. 144 , 164–165
(1963) (“The imperative necessity for safeguarding these rights to
procedural due process under the gravest of emergencies has existed
throughout our constitutional history, for it is then, under the
pressing exigencies of crisis, that there is the greatest
temptation to dispense with guarantees which, it is feared, will
inhibit government action”); see also United States v. Robel, 389 U. S. 258 , 264
(1967) (“It would indeed be ironic if, in the name of national
defense, we would sanction the subversion of one of those liberties
… which makes the defense of the Nation worthwhile”). With due recognition
of these competing concerns, we believe that neither the process
proposed by the Government nor the process apparently envisioned by
the District Court below strikes the proper constitutional balance
when a United States citizen is detained in the United States as an
enemy combatant. That is, “the risk of erroneous deprivation” of a
detainee’s liberty interest is unacceptably high under the
Government’s proposed rule, while some of the “additional or
substitute procedural safeguards” suggested by the District Court
are unwarranted in light of their limited “probable value” and the
burdens they may impose on the military in such cases. Mathews , 424 U. S., at 335. We therefore hold that a
citizen-detainee seeking to challenge his classification as an
enemy combatant must receive notice of the factual basis for his
classification, and a fair opportunity to rebut the Government’s
factual assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532 , 542
(1985) (“An essential principle of due process is that a
deprivation of life, liberty, or property ‘be preceded by notice
and opportunity for hearing appropriate to the nature of the
case’ ” (quoting Mullane v. Central Hanover Bank
& Trust Co., 339 U. S. 306 , 313
(1950)); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern
Cal., 508
U. S. 602 , 617 (1993) (“due process requires a ‘neutral and
detached judge in the first instance’ ” (quoting Ward v. Monroeville, 409 U. S. 57 , 61–62
(1972)). “For more than a century the central meaning of procedural
due process has been clear: ‘Parties whose rights are to be
affected are entitled to be heard; and in order that they may enjoy
that right they must first be notified.’ It is equally fundamental
that the right to notice and an opportunity to be heard ‘must be
granted at a meaningful time and in a meaningful manner.’ ” Fuentes v. Shevin, 407 U. S. 67 , 80 (1972)
(quoting Baldwin v. Hale, 1 Wall. 223, 233
(1864); Armstrong v. Manzo, 380 U. S. 545 , 552
(1965) (other citations omitted)). These essential constitutional
promises may not be eroded. At the same time, the exigencies
of the circumstances may demand that, aside from these core
elements, enemy combatant proceedings may be tailored to alleviate
their uncommon potential to burden the Executive at a time of
ongoing military conflict. Hearsay, for example, may need to be
accepted as the most reliable available evidence from the
Government in such a proceeding. Likewise, the Constitution would
not be offended by a presumption in favor of the Government’s
evidence, so long as that presumption remained a rebuttable one and
fair opportunity for rebuttal were provided. Thus, once the
Government puts forth credible evidence that the habeas petitioner
meets the enemy-combatant criteria, the onus could shift to the
petitioner to rebut that evidence with more persuasive evidence
that he falls outside the criteria. A burden-shifting scheme of
this sort would meet the goal of ensuring that the errant tourist,
embedded journalist, or local aid worker has a chance to prove
military error while giving due regard to the Executive once it has
put forth meaningful support for its conclusion that the detainee
is in fact an enemy combatant. In the words of Mathews ,
process of this sort would sufficiently address the “risk of
erroneous deprivation” of a detainee’s liberty interest while
eliminating certain procedures that have questionable additional
value in light of the burden on the Government. 424 U. S., at
335.[ Footnote 2 ] We think it unlikely that this
basic process will have the dire impact on the central functions of
warmaking that the Government forecasts. The parties agree that
initial captures on the battlefield need not receive the process we
have discussed here; that process is due only when the
determination is made to continue to hold those who have
been seized. The Government has made clear in its briefing that
documentation regarding battlefield detainees already is kept in
the ordinary course of military affairs. Brief for Respondents 3–4.
Any factfinding imposition created by requiring a knowledgeable
affiant to summarize these records to an independent tribunal is a
minimal one. Likewise, arguments that military officers ought not
have to wage war under the threat of litigation lose much of their
steam when factual disputes at enemy-combatant hearings are limited
to the alleged combatant’s acts. This focus meddles little, if at
all, in the strategy or conduct of war, inquiring only into the
appropriateness of continuing to detain an individual claimed to
have taken up arms against the United States. While we accord the
greatest respect and consideration to the judgments of military
authorities in matters relating to the actual prosecution of a war,
and recognize that the scope of that discretion necessarily is
wide, it does not infringe on the core role of the military for the
courts to exercise their own time-honored and constitutionally
mandated roles of reviewing and resolving claims like those
presented here. Cf. Korematsu v. United States , 323 U. S. 214 ,
233–234 (1944) (Murphy, J., dissenting) (“[L]ike other claims
conflicting with the asserted constitutional rights of the
individual, the military claim must subject itself to the judicial
process of having its reasonableness determined and its conflicts
with other interests reconciled”); Sterling v. Constantin, 287 U. S. 378 , 401
(1932) (“What are the allowable limits of military discretion, and
whether or not they have been overstepped in a particular case, are
judicial questions”). In sum, while the full protections
that accompany challenges to detentions in other settings may prove
unworkable and inappropriate in the enemy-combatant setting, the
threats to military operations posed by a basic system of
independent review are not so weighty as to trump a citizen’s core
rights to challenge meaningfully the Government’s case and to be
heard by an impartial adjudicator. D In so holding, we
necessarily reject the Government’s assertion that separation of
powers principles mandate a heavily circumscribed role for the
courts in such circumstances. Indeed, the position that the courts
must forgo any examination of the individual case and focus
exclusively on the legality of the broader detention scheme cannot
be mandated by any reasonable view of separation of powers, as this
approach serves only to condense power into a single
branch of government. We have long since made clear that a state of
war is not a blank check for the President when it comes to the
rights of the Nation’s citizens. Youngstown Sheet &
Tube , 343 U. S., at 587. Whatever power the United States
Constitution envisions for the Executive in its exchanges with
other nations or with enemy organizations in times of conflict, it
most assuredly envisions a role for all three branches when
individual liberties are at stake. Mistretta v. United
States, 488 U. S. 361 , 380
(1989) (it was “the central judgment of the Framers of the
Constitution that, within our political scheme, the separation of
governmental powers into three coordinate Branches is essential to
the preservation of liberty”); Home Building & Loan
Assn. v. Blaisdell, 290 U. S. 398 , 426
(1934) (The war power “is a power to wage war successfully, and
thus it permits the harnessing of the entire energies of the people
in a supreme cooperative effort to preserve the nation. But even
the war power does not remove constitutional limitations
safeguarding essential liberties”). Likewise, we have made clear
that, unless Congress acts to suspend it, the Great Writ of habeas
corpus allows the Judicial Branch to play a necessary role in
maintaining this delicate balance of governance, serving as an
important judicial check on the Executive’s discretion in the realm
of detentions. See St. Cyr , 533 U. S., at 301 (“At its
historical core, the writ of habeas corpus has served as a means of
reviewing the legality of Executive detention, and it is in that
context that its protections have been strongest”). Thus, while we
do not question that our due process assessment must pay keen
attention to the particular burdens faced by the Executive in the
context of military action, it would turn our system of checks and
balances on its head to suggest that a citizen could not make his
way to court with a challenge to the factual basis for his
detention by his government, simply because the Executive opposes
making available such a challenge. Absent suspension of the writ by
Congress, a citizen detained as an enemy combatant is entitled to
this process. Because we conclude
that due process demands some system for a citizen detainee to
refute his classification, the proposed “some evidence” standard is
inadequate. Any process in which the Executive’s factual assertions
go wholly unchallenged or are simply presumed correct without any
opportunity for the alleged combatant to demonstrate otherwise
falls constitutionally short. As the Government itself has
recognized, we have utilized the “some evidence” standard in the
past as a standard of review, not as a standard of proof. Brief for
Respondents 35. That is, it primarily has been employed by courts
in examining an administrative record developed after an
adversarial proceeding—one with process at least of the sort that
we today hold is constitutionally mandated in the citizen
enemy-combatant setting. See, e.g. , St. Cyr , supra; Hill , 472 U. S., at 455–457. This standard
therefore is ill suited to the situation in which a habeas
petitioner has received no prior proceedings before any tribunal
and had no prior opportunity to rebut the Executive’s factual
assertions before a neutral decisionmaker. Today we are faced only with such
a case. Aside from unspecified “screening” processes, Brief for
Respondents 3–4, and military interrogations in which the
Government suggests Hamdi could have contested his classification,
Tr. of Oral Arg. 40, 42, Hamdi has received no process. An
interrogation by one’s captor, however effective an
intelligence-gathering tool, hardly constitutes a constitutionally
adequate factfinding before a neutral decisionmaker. Compare Brief
for Respondents 42–43 (discussing the “secure interrogation
environment,” and noting that military interrogations require a
controlled “interrogation dynamic” and “a relationship of trust and
dependency” and are “a critical source” of “timely and effective
intelligence”) with Concrete Pipe , 508 U. S., at 617–618
(“one is entitled as a matter of due process of law to an
adjudicator who is not in a situation which would offer a possible
temptation to the average man as a judge . . . which might lead him
not to hold the balance nice, clear and true” (internal quotation
marks omitted). That even purportedly fair adjudicators “are
disqualified by their interest in the controversy to be decided is,
of course, the general rule.” Tumey v. Ohio, 273 U. S. 510 , 522
(1927). Plainly, the “process” Hamdi has received is not that to
which he is entitled under the Due Process Clause. There remains the possibility that
the standards we have articulated could be met by an appropriately
authorized and properly constituted military tribunal. Indeed, it
is notable that military regulations already provide for such
process in related instances, dictating that tribunals be made
available to determine the status of enemy detainees who assert
prisoner-of-war status under the Geneva Convention. See Enemy
Prisoners of War, Retained Personnel, Civilian Internees and Other
Detainees, Army Regulation 190–8, §1–6 (1997). In the absence of
such process, however, a court that receives a petition for a writ
of habeas corpus from an alleged enemy combatant must itself ensure
that the minimum requirements of due process are achieved. Both
courts below recognized as much, focusing their energies on the
question of whether Hamdi was due an opportunity to rebut the
Government’s case against him. The Government, too, proceeded on
this assumption, presenting its affidavit and then seeking that it
be evaluated under a deferential standard of review based on
burdens that it alleged would accompany any greater process. As we
have discussed, a habeas court in a case such as this may accept
affidavit evidence like that contained in the Mobbs Declaration, so
long as it also permits the alleged combatant to present his own
factual case to rebut the Government’s return. We anticipate that a
District Court would proceed with the caution that we have
indicated is necessary in this setting, engaging in a factfinding
process that is both prudent and incremental. We have no reason to
doubt that courts faced with these sensitive matters will pay
proper heed both to the matters of national security that might
arise in an individual case and to the constitutional limitations
safeguarding essential liberties that remain vibrant even in times
of security concerns. IV Hamdi asks us to hold
that the Fourth Circuit also erred by denying him immediate access
to counsel upon his detention and by disposing of the case without
permitting him to meet with an attorney. Brief for Petitioners 19.
Since our grant of certiorari in this case, Hamdi has been
appointed counsel, with whom he has met for consultation purposes
on several occasions, and with whom he is now being granted
unmonitored meetings. He unquestionably has the right to access to
counsel in connection with the proceedings on remand. No further
consideration of this issue is necessary at this stage of the
case. * * * The judgment of the
United States Court of Appeals for the Fourth Circuit is vacated,
and the case is remanded for further proceedings. It is so ordered. Footnote 1 Here the basis asserted for
detention by the military is that Hamdi was carrying a weapon
against American troops on a foreign battlefield; that is, that he
was an enemy combatant. The legal category of enemy combatant has
not been elaborated upon in great detail. The permissible bounds of
the category will be defined by the lower courts as subsequent
cases are presented to them. Footnote 2 Because we hold that Hamdi is
constitutionally entitled to the process described above, we need
not address at this time whether any treaty guarantees him similar
access to a tribunal for a determination of his status. SCALIA, J., DISSENTING HAMDI V. RUMSFELD 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-6696 YASER ESAM HAMDI and ESAM FOUAD HAMDI, as next
friend of YASER ESAM HAMDI, PETITION- ERS v. DONALD H.
RUMSFELD, SECRETARY OF DEFENSE, et al.

															on writ of certiorari to the united states court of
appeals for the fourth circuit

															[June 28, 2004]

															   Justice Scalia, with whom Justice
Stevens joins, dissenting.

															   Petitioner, a presumed American
citizen, has been imprisoned without charge or hearing in the
Norfolk and Charleston Naval Brigs for more than two years, on the
allegation that he is an enemy combatant who bore arms against his
country for the Taliban. His father claims to the contrary, that he
is an inexperienced aid worker caught in the wrong place at the
wrong time. This case brings into conflict the competing demands of
national security and our citizens’ constitutional right to
personal liberty. Although I share the Court’s evident unease as it
seeks to reconcile the two, I do not agree with its resolution.

															   Where the Government accuses a citizen of
waging war against it, our constitutional tradition has been to
prosecute him in federal court for treason or some other crime.
Where the exigencies of war prevent that, the Constitution’s
Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax
the usual protections temporarily. Absent suspension, however, the
Executive’s assertion of military exigency has not been thought
sufficient to permit detention without charge. No one contends that
the congressional Authorization for Use of Military Force, on which
the Government relies to justify its actions here, is an
implementation of the Suspension Clause. Accordingly, I would
reverse the decision below.

															I

															   The very core of liberty secured
by our Anglo-Saxon system of separated powers has been freedom from
indefinite imprisonment at the will of the Executive. Blackstone
stated this principle clearly:

															   “Of great importance to the
public is the preservation of this personal liberty: for if once it
were left in the power of any, the highest, magistrate to imprison
arbitrarily whomever he or his officers thought proper … there
would soon be an end of all other rights and immunities. … To
bereave a man of life, or by violence to confiscate his estate,
without accusation or trial, would be so gross and notorious an act
of despotism, as must at once convey the alarm of tyranny
throughout the whole kingdom. But confinement of the person, by
secretly hurrying him to gaol, where his sufferings are unknown or
forgotten; is a less public, a less striking, and therefore a more
dangerous engine of arbitrary government. …

															   “To make imprisonment lawful, it must either
be, by process from the courts of judicature, or by warrant from
some legal officer, having authority to commit to prison; which
warrant must be in writing, under the hand and seal of the
magistrate, and express the causes of the commitment, in order to
be examined into (if necessary) upon a habeas corpus . If
there be no cause expressed, the gaoler is not bound to detain the
prisoner. For the law judges in this respect, … that it is
unreasonable to send a prisoner, and not to signify withal the
crimes alleged against him.” 1 W. Blackstone, Commentaries on the
Laws of England 132–133 (1765) (hereinafter Blackstone).

															These words were well known to the Founders.
Hamilton quoted from this very passage in The Federalist No. 84, p.
444 (G. Carey & J. McClellan eds. 2001). The two ideas central
to Blackstone’s understanding—due process as the right secured, and
habeas corpus as the instrument by which due process could be
insisted upon by a citizen illegally imprisoned—found expression in
the Constitution’s Due Process and Suspension Clauses. See Amdt. 5;
Art. I, §9, cl. 2.

															   The gist of the Due Process Clause, as
understood at the founding and since, was to force the Government
to follow those common-law procedures traditionally deemed
necessary before depriving a person of life, liberty, or property.
When a citizen was deprived of liberty because of alleged criminal
conduct, those procedures typically required committal by a
magistrate followed by indictment and trial. See, e.g., 2
& 3 Phil. & M., c. 10 (1555); 3 J. Story, Commentaries on
the Constitution of the United States §1783, p. 661 (1833)
(hereinafter Story) (equating “due process of law” with “due
presentment or indictment, and being brought in to answer thereto
by due process of the common law”). The Due Process Clause “in
effect affirms the right of trial according to the process and
proceedings of the common law.” Ibid . See also T. Cooley,
General Principles of Constitutional Law 224 (1880) (“When life and
liberty are in question, there must in every instance be judicial
proceedings; and that requirement implies an accusation, a hearing
before an impartial tribunal, with proper jurisdiction, and a
conviction and judgment before the punishment can be inflicted”
(internal quotation marks omitted)).

															   To be sure, certain types of permissible non criminal detention—that is, those not dependent upon
the contention that the citizen had committed a criminal act—did
not require the protections of criminal procedure. However, these
fell into a limited number of well-recognized exceptions—civil
commitment of the mentally ill, for example, and temporary
detention in quarantine of the infectious. See Opinion on the
Writ of Habeas Corpus , 97 Eng. Rep. 29, 36–37 (H. L. 1758)
(Wilmot, J.). It is unthinkable that the Executive could render
otherwise criminal grounds for detention noncriminal merely by
disclaiming an intent to prosecute, or by asserting that it was
incapacitating dangerous offenders rather than punishing
wrongdoing. Cf. Kansas v. Hendricks, 521
U. S. 346 , 358 (1997) (“A finding of dangerousness, standing
alone, is ordinarily not a sufficient ground upon which to justify
indefinite involuntary commitment”).

															   These due process rights have historically
been vindicated by the writ of habeas corpus. In England before the
founding, the writ developed into a tool for challenging executive
confinement. It was not always effective. For example, in Darnel’s Case , 3 How. St. Tr. 1 (K. B. 1627), King Charles
I detained without charge several individuals for failing to assist
England’s war against France and Spain. The prisoners sought writs
of habeas corpus, arguing that without specific charges,
“imprisonment shall not continue on for a time, but for ever; and
the subjects of this kingdom may be restrained of their liberties
perpetually.” Id. , at 8. The Attorney General replied that
the Crown’s interest in protecting the realm justified imprisonment
in “a matter of state … not ripe nor timely” for the ordinary
process of accusation and trial. Id. , at 37. The court
denied relief, producing widespread outrage, and Parliament
responded with the Petition of Right, accepted by the King in 1628,
which expressly prohibited imprisonment without formal charges, see
3 Car. 1, c. 1, §§5, 10.

															   The struggle between subject and Crown
continued, and culminated in the Habeas Corpus Act of 1679, 31 Car.
2, c. 2, described by Blackstone as a “second magna
charta , and stable bulwark of our liberties.” 1 Blackstone
133. The Act governed all persons “committed or detained … for any
crime.” §3. In cases other than felony or treason plainly expressed
in the warrant of commitment, the Act required release upon
appropriate sureties (unless the commitment was for a nonbailable
offense). Ibid. Where the commitment was for felony or
high treason, the Act did not require immediate release, but
instead required the Crown to commence criminal proceedings within
a specified time. §7. If the prisoner was not “indicted some Time
in the next Term,” the judge was “required … to set at Liberty the
Prisoner upon Bail” unless the King was unable to produce his
witnesses. Ibid. Able or no, if the prisoner was not
brought to trial by the next succeeding term, the Act
provided that “he shall be discharged from his Imprisonment.” Ibid. English courts sat four terms per year, see 3
Blackstone 275–277, so the practical effect of this provision was
that imprisonment without indictment or trial for felony or high
treason under §7 would not exceed approximately three to six
months.

															   The writ of habeas corpus was preserved in the
Constitution—the only common-law writ to be explicitly mentioned.
See Art. I, §9, cl. 2. Hamilton lauded “the establishment of
the writ of habeas corpus ” in his Federalist defense as a
means to protect against “the practice of arbitrary imprisonments …
in all ages, [one of] the favourite and most formidable instruments
of tyranny.” The Federalist No. 84, supra, at 444. Indeed,
availability of the writ under the new Constitution (along with the
requirement of trial by jury in criminal cases, see Art. III,
§2, cl. 3) was his basis for arguing that additional, explicit
procedural protections were unnecessary. See The Federalist No. 83,
at 433.

															II

															   The allegations here, of course,
are no ordinary accusations of criminal activity. Yaser Esam Hamdi
has been imprisoned because the Government believes he participated
in the waging of war against the United States. The relevant
question, then, is whether there is a different, special procedure
for imprisonment of a citizen accused of wrongdoing by aiding
the enemy in wartime .

															A

															   Justice O’Connor, writing for a
plurality of this Court, asserts that captured enemy combatants
(other than those suspected of war crimes) have traditionally been
detained until the cessation of hostilities and then released. Ante , at 10–11. That is probably an accurate description
of wartime practice with respect to enemy aliens . The
tradition with respect to American citizens, however, has been
quite different. Citizens aiding the enemy have been treated as
traitors subject to the criminal process.

															   As early as 1350, England’s
Statute of Treasons made it a crime to “levy War against our Lord
the King in his Realm, or be adherent to the King’s Enemies in his
Realm, giving to them Aid and Comfort, in the Realm, or elsewhere.”
25 Edw. 3, Stat. 5, c. 2. In his 1762 Discourse on High Treason,
Sir Michael Foster explained:

															   “With regard to Natural-born
Subjects there can be no Doubt. They owe Allegiance to the Crown at
all Times and in all Places.

															   . . . . .

															   “The joining with Rebels in an Act of
Rebellion, or with Enemies in Acts of Hostility, will make a Man a
Traitor: in the one Case within the Clause of Levying War, in the
other within that of Adhering to the King’s enemies.

															. . . . .

															   “States in Actual Hostility with Us, though no
War be solemnly Declared, are Enemies within the meaning of the
Act. And therefore in an Indictment on the Clause of Adhering to
the King’s Enemies, it is sufficient to Aver that the Prince or
State Adhered to is an Enemy , without shewing any War
Proclaimed… . And if the Subject of a Foreign Prince in Amity
with Us, invadeth the Kingdom without Commission from his
Sovereign, He is an Enemy. And a Subject of England adhering to Him is a Traitor within this Clause of the Act.” A
Report of Some Proceedings on the Commission … for the Trial of the
Rebels in the Year 1746 in the County of Surry, and of Other Crown
Cases, Introduction, §1, p. 183; Ch. 2, §8, p. 216; §12, p.
219.

															Subjects accused of levying war against the King
were routinely prosecuted for treason. E.g. , Harding’s
Case , 2 Ventris 315, 86 Eng. Rep. 461 (K. B. 1690); Trial
of Parkyns , 13 How. St. Tr. 63 (K. B. 1696); Trial of
Vaughan , 13 How. St. Tr. 485 (K. B. 1696); Trial of
Downie , 24 How. St. Tr. 1 (1794). The Founders inherited the
understanding that a citizen’s levying war against the Government
was to be punished criminally. The Constitution provides: “Treason
against the United States, shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and
Comfort”; and establishes a heightened proof requirement (two
witnesses) in order to “convic[t]” of that offense. Art. III,
§3, cl. 1.

															   In more recent times, too, citizens have been
charged and tried in Article III courts for acts of war against the
United States, even when their noncitizen co-conspirators were not.
For example, two American citizens alleged to have participated
during World War I in a spying conspiracy on behalf of Germany were
tried in federal court. See United States v. Fricke , 259 F. 673 (SDNY 1919); United States v. Robinson , 259 F. 685 (SDNY 1919). A German member of the
same conspiracy was subjected to military process. See United
States ex rel. Wessels v. McDonald , 265 F. 754 (EDNY
1920). During World War II, the famous German saboteurs of Ex
parte Quirin, 317 U. S.
1 (1942), received military process, but the citizens who
associated with them (with the exception of one citizen-saboteur,
discussed below) were punished under the criminal process. See Haupt v. United States, 330 U. S. 631 (1947); L.
Fisher, Nazi Saboteurs on Trial 80–84 (2003); see also Cramer v. United States, 325 U. S. 1 (1945). The modern treason statute is 18
U. S. C. §2381; it basically tracks the language of the
constitutional provision. Other provisions of Title 18 criminalize
various acts of warmaking and adherence to the enemy. See, e.g., §32 (destruction of aircraft or aircraft
facilities), §2332a (use of weapons of mass destruction), §2332b
(acts of terrorism transcending national boundaries), §2339A
(providing material support to terrorists), §2339B (providing
material support to certain terrorist organizations), §2382
(misprision of treason), §2383 (rebellion or insurrection), §2384
(seditious conspiracy), §2390 (enlistment to serve in armed
hostility against the United States). See also 31 CFR §595.204
(2003) (prohibiting the “making or receiving of any contribution of
funds, goods, or services” to terrorists); 50 U. S. C.
§1705(b) (criminalizing violations of 31 CFR §595.204). The only
citizen other than Hamdi known to be imprisoned in connection with
military hostilities in Afghanistan against the United States was subjected to criminal process and convicted upon a
guilty plea. See United States v. Lindh , 212
F. Supp. 2d 541 (ED Va. 2002) (denying motions for
dismissal); Seelye, N. Y. Times, Oct. 5, 2002, p. A1, col.
5. B There are times when
military exigency renders resort to the traditional criminal
process impracticable. English law accommodated such exigencies by
allowing legislative suspension of the writ of habeas corpus for
brief periods. Blackstone explained: “And yet sometimes, when the state is
in real danger, even this [ i.e. , executive detention] may
be a necessary measure. But the happiness of our constitution is,
that it is not left to the executive power to determine when the
danger of the state is so great, as to render this measure
expedient. For the parliament only, or legislative power, whenever
it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to
imprison suspected persons without giving any reason for so
doing… . In like manner this experiment ought only to be tried
in case of extreme emergency; and in these the nation parts with
it[s] liberty for a while, in order to preserve it for ever.” 1
Blackstone 132. Where the Executive has not pursued the
usual course of charge, committal, and conviction, it has
historically secured the Legislature’s explicit approval of a
suspension. In England, Parliament on numerous occasions passed
temporary suspensions in times of threatened invasion or rebellion. E.g. , 1 W. & M., c. 7 (1688) (threatened return of
James II); 7 & 8 Will. 3, c. 11 (1696) (same); 17 Geo. 2, c. 6
(1744) (threatened French invasion); 19 Geo. 2, c. 1 (1746)
(threatened rebellion in Scotland); 17 Geo. 3, c. 9 (1777) (the
American Revolution). Not long after Massachusetts had adopted a
clause in its constitution explicitly providing for habeas corpus,
see Mass. Const. pt. 2, ch. 6, art. VII (1780), reprinted in 3
Federal and State Constitutions, Colonial Charters and Other
Organic Laws 1888, 1910 (F. Thorpe ed. 1909), it suspended the writ
in order to deal with Shay’s Rebellion, see Act for Suspending the
Privilege of the Writ of Habeas Corpus, ch. 10, 1786 Mass. Acts
510. Our Federal Constitution contains
a provision explicitly permitting suspension, but limiting the
situations in which it may be invoked: “The privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.” Art. I,
§9, cl. 2. Although this provision does not state that
suspension must be effected by, or authorized by, a legislative
act, it has been so understood, consistent with English practice
and the Clause’s placement in Article I. See Ex parte
Bollman, 4 Cranch 75, 101 (1807); Ex parte Merryman ,
17 F. Cas. 144, 151–152 (CD Md. 1861) (Taney, C. J., rejecting
Lincoln’s unauthorized suspension); 3 Story §1336, at
208–209. The Suspension Clause was by
design a safety valve, the Constitution’s only “express provision
for exercise of extraordinary authority because of a crisis,” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 650
(1952) (Jackson, J., concurring). Very early in the Nation’s
history, President Jefferson unsuccessfully sought a suspension of
habeas corpus to deal with Aaron Burr’s conspiracy to overthrow the
Government. See 16 Annals of Congress 402–425 (1807). During the
Civil War, Congress passed its first Act authorizing Executive
suspension of the writ of habeas corpus, see Act of Mar. 3, 1863,
12 Stat. 755, to the relief of those many who thought President
Lincoln’s unauthorized proclamations of suspension ( e.g. ,
Proclamation No. 1, 13 Stat. 730 (1862)) unconstitutional. Later
Presidential proclamations of suspension relied upon the
congressional authorization, e.g. , Proclamation No. 7, 13
Stat. 734 (1863). During Reconstruction, Congress passed the Ku
Klux Klan Act, which included a provision authorizing suspension of
the writ, invoked by President Grant in quelling a rebellion in
nine South Carolina counties. See Act of Apr. 20, 1871, ch. 22, §4,
17 Stat. 14; A Proclamation [of Oct. 17, 1871], 7 Compilation of
the Messages and Papers of the Presidents 136–138 (J. Richardson
ed. 1899) (hereinafter Messages and Papers); id. , at
138–139. Two later Acts of Congress
provided broad suspension authority to governors of U. S.
possessions. The Philippine Civil Government Act of 1902 provided
that the Governor of the Philippines could suspend the writ in case
of rebellion, insurrection, or invasion. Act of July 1, 1902, ch.
1369, §5, 32 Stat. 691. In 1905 the writ was suspended for nine
months by proclamation of the Governor. See Fisher v. Baker, 203 U. S. 174 , 179–181
(1906). The Hawaiian Organic Act of 1900 likewise provided that the
Governor of Hawaii could suspend the writ in case of rebellion or
invasion (or threat thereof). Ch. 339, §67, 31 Stat.
153. III Of course the
extensive historical evidence of criminal convictions and habeas
suspensions does not necessarily refute the Government’s
position in this case. When the writ is suspended, the Government
is entirely free from judicial oversight. It does not claim such
total liberation here, but argues that it need only produce what it
calls “some evidence” to satisfy a habeas court that a detained
individual is an enemy combatant. See Brief for Respondents 34.
Even if suspension of the writ on the one hand, and committal for
criminal charges on the other hand, have been the only traditional means of dealing with citizens who levied war
against their own country, it is theoretically possible that the
Constitution does not require a choice between these
alternatives. I believe, however,
that substantial evidence does refute that possibility. First, the
text of the 1679 Habeas Corpus Act makes clear that indefinite
imprisonment on reasonable suspicion is not an available option of
treatment for those accused of aiding the enemy, absent a
suspension of the writ. In the United States, this Act was read as
“enforc[ing] the common law,” Ex parte Watkins , 3 Pet.
193, 202 (1830), and shaped the early understanding of the scope of
the writ. As noted above, see supra , at 5, §7 of the Act
specifically addressed those committed for high treason, and
provided a remedy if they were not indicted and tried by
the second succeeding court term. That remedy was not a
bobtailed judicial inquiry into whether there were reasonable
grounds to believe the prisoner had taken up arms against the King.
Rather, if the prisoner was not indicted and tried within the
prescribed time, “he shall be discharged from his Imprisonment.” 31
Car. 2, c. 2, §7. The Act does not contain any exception for
wartime. That omission is conspicuous, since §7 explicitly
addresses the offense of “High Treason,” which often involved
offenses of a military nature. See cases cited supra , at
7. Writings from the founding
generation also suggest that, without exception, the only
constitutional alternatives are to charge the crime or suspend the
writ. In 1788, Thomas Jefferson wrote to James Madison questioning
the need for a Suspension Clause in cases of rebellion in the
proposed Constitution. His letter illustrates the constraints under
which the Founders understood themselves to operate: “Why suspend the Hab. corp. in
insurrections and rebellions? The parties who may be arrested may
be charged instantly with a well defined crime. Of course the judge
will remand them. If the publick safety requires that the
government should have a man imprisoned on less probable testimony
in those than in other emergencies; let him be taken and tried,
retaken and retried, while the necessity continues, only giving him
redress against the government for damages.” 13 Papers of Thomas
Jefferson 442 (July 31, 1788) (J. Boyd ed. 1956). A similar view was reflected in the
1807 House debates over suspension during the armed uprising that
came to be known as Burr’s conspiracy: “With regard to those persons who may
be implicated in the conspiracy, if the writ of habeas corpus be
not suspended, what will be the consequence? When apprehended, they
will be brought before a court of justice, who will decide whether
there is any evidence that will justify their commitment for
farther prosecution. From the communication of the Executive, it
appeared there was sufficient evidence to authorize their
commitment. Several months would elapse before their final trial,
which would give time to collect evidence, and if this shall be
sufficient, they will not fail to receive the punishment merited by
their crimes, and inflicted by the laws of their country.” 16
Annals of Congress, at 405 (remarks of Rep. Burwell). The absence of
military authority to imprison citizens indefinitely in
wartime—whether or not a probability of treason had been
established by means less than jury trial—was confirmed by three
cases decided during and immediately after the War of 1812. In the
first, In re Stacy , 10 Johns. *328 (N. Y. 1813), a citizen
was taken into military custody on suspicion that he was “carrying
provisions and giving information to the enemy.” Id. , at
*330 (emphasis deleted). Stacy petitioned for a writ of habeas
corpus, and, after the defendant custodian attempted to avoid
complying, Chief Justice Kent ordered attachment against him. Kent
noted that the military was “without any color of authority in any
military tribunal to try a citizen for that crime” and that it was
“holding him in the closest confinement, and contemning the civil
authority of the state.” Id. , at *333–*334. Two other cases, later cited with
approval by this Court in Ex parte Milligan, 4 Wall. 2,
128–129 (1866), upheld verdicts for false imprisonment against
military officers. In Smith v. Shaw , 12 Johns.
*257 (N. Y. 1815), the court affirmed an award of damages for
detention of a citizen on suspicion that he was, among other
things, “an enemy’s spy in time of war.” Id. , at *265. The
court held that “[n]one of the offences charged against Shaw were cognizable by a court-martial, except that which
related to his being a spy; and if he was an American citizen, he could not be charged with such an offence. He might be
amenable to the civil authority for treason; but could not be
punished, under martial law, as a spy.” Ibid . “If the
defendant was justifiable in doing what he did, every citizen of
the United States would, in time of war, be equally
exposed to a like exercise of military power and authority.” Id. , at *266. Finally, in M’Connell v. Hampton , 12 Johns. *234 (N. Y. 1815), a jury awarded
$9,000 for false imprisonment after a military officer confined a
citizen on charges of treason; the judges on appeal did not
question the verdict but found the damages excessive, in part
because “it does not appear that [the defendant] … knew [the
plaintiff] was a citizen.” Id. , at *238 (Spencer, J.). See
generally Wuerth, The President’s Power to Detain “Enemy
Combatants”: Modern Lessons from Mr. Madison’s Forgotten War, 98
Nw. U. L. Rev. (forthcoming 2004) (available in Clerk of Court’s
case file). President Lincoln, when he
purported to suspend habeas corpus without congressional
authorization during the Civil War, apparently did not doubt that
suspension was required if the prisoner was to be held without
criminal trial. In his famous message to Congress on July 4, 1861,
he argued only that he could suspend the writ, not that even
without suspension, his imprisonment of citizens without criminal
trial was permitted. See Special Session Message, 6 Messages and
Papers 20–31. Further evidence comes from this
Court’s decision in Ex parte Milligan , supra .
There, the Court issued the writ to an American citizen who had
been tried by military commission for offenses that included
conspiring to overthrow the Government, seize munitions, and
liberate prisoners of war. Id. , at 6–7. The Court rejected
in no uncertain terms the Government’s assertion that military
jurisdiction was proper “under the ‘laws and usages of war,’ ” id. , at 121: “It can serve no
useful purpose to inquire what those laws and usages are, whence
they originated, where found, and on whom they operate; they can
never be applied to citizens in states which have upheld the
authority of the government, and where the courts are open and
their process unobstructed.” Ibid .[ Footnote 1 ] Milligan is not exactly this
case, of course, since the petitioner was threatened with death,
not merely imprisonment. But the reasoning and conclusion of Milligan logically cover the present case. The Government
justifies imprisonment of Hamdi on principles of the law of war and
admits that, absent the war, it would have no such authority. But
if the law of war cannot be applied to citizens where courts are
open, then Hamdi’s imprisonment without criminal trial is no less
unlawful than Milligan’s trial by military tribunal. Milligan responded to the
argument, repeated by the Government in this case, that it is
dangerous to leave suspected traitors at large in time of
war: “If it was dangerous, in the distracted
condition of affairs, to leave Milligan unrestrained of his
liberty, because he ‘conspired against the government, afforded aid
and comfort to rebels, and incited the people to insurrection,’ the law said arrest him, confine him closely, render him
powerless to do further mischief; and then present his case to the
grand jury of the district, with proofs of his guilt, and, if
indicted, try him according to the course of the common law. If
this had been done, the Constitution would have been vindicated,
the law of 1863 enforced, and the securities for personal liberty
preserved and defended.” Id ., at 122. Thus, criminal process was viewed as
the primary means—and the only means absent congressional action
suspending the writ—not only to punish traitors, but to
incapacitate them. The proposition that the Executive
lacks indefinite wartime detention authority over citizens is
consistent with the Founders’ general mistrust of military power
permanently at the Executive’s disposal. In the Founders’ view, the
“blessings of liberty” were threatened by “those military
establishments which must gradually poison its very fountain.” The
Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of
the Federalist were devoted in whole or part to allaying fears of
oppression from the proposed Constitution’s authorization of
standing armies in peacetime. Many safeguards in the Constitution
reflect these concerns. Congress’s authority “[t]o raise and
support Armies” was hedged with the proviso that “no Appropriation
of Money to that Use shall be for a longer Term than two Years.” U.
S. Const., Art. 1, §8, cl. 12. Except for the actual command of
military forces, all authorization for their maintenance and all
explicit authorization for their use is placed in the control of
Congress under Article I, rather than the President under Article
II. As Hamilton explained, the President’s military authority would
be “much inferior” to that of the British King: “It would amount to nothing more than
the supreme command and direction of the military and naval forces,
as first general and admiral of the confederacy: while that of the
British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all
which, by the constitution under consideration, would appertain to
the legislature.” The Federalist No. 69, p. 357. A view of the Constitution that gives
the Executive authority to use military force rather than the force
of law against citizens on American soil flies in the face of the
mistrust that engendered these provisions. IV The Government argues
that our more recent jurisprudence ratifies its indefinite
imprisonment of a citizen within the territorial jurisdiction of
federal courts. It places primary reliance upon Ex parte
Quirin, 317 U. S.
1 (1942), a World War II case upholding the trial by military
commission of eight German saboteurs, one of whom, Hans Haupt, was
a U. S. citizen. The case was not this Court’s finest hour. The
Court upheld the commission and denied relief in a brief per
curiam issued the day after oral argument concluded, see id. , at 18–19, unnumbered note; a week later the
Government carried out the commission’s death sentence upon six
saboteurs, including Haupt. The Court eventually explained its
reasoning in a written opinion issued several months
later. Only three paragraphs
of the Court’s lengthy opinion dealt with the particular
circumstances of Haupt’s case. See id ., at 37–38, 45–46.
The Government argued that Haupt, like the other petitioners, could
be tried by military commission under the laws of war. In agreeing
with that contention, Quirin purported to interpret the
language of Milligan quoted above (the law of war “can
never be applied to citizens in states which have upheld the
authority of the government, and where the courts are open and
their process unobstructed”) in the following manner: “Elsewhere in its opinion … the Court
was at pains to point out that Milligan, a citizen twenty years
resident in Indiana, who had never been a resident of any of the
states in rebellion, was not an enemy belligerent either entitled
to the status of a prisoner of war or subject to the penalties
imposed upon unlawful belligerents. We construe the Court’s
statement as to the inapplicability of the law of war to Milligan’s
case as having particular reference to the facts before it. From
them the Court concluded that Milligan, not being a part of or
associated with the armed forces of the enemy, was a
non-belligerent, not subject to the law of war … .” 317 U. S.,
at 45. In my view this seeks to revise Milligan rather than describe it. Milligan had
involved (among other issues) two separate questions: (1) whether
the military trial of Milligan was justified by the laws of war,
and if not (2) whether the President’s suspension of the writ,
pursuant to congressional authorization, prevented the issuance of
habeas corpus. The Court’s categorical language about the law of
war’s inapplicability to citizens where the courts are open (with
no exception mentioned for citizens who were prisoners of war) was
contained in its discussion of the first point. See 4 Wall., at
121. The factors pertaining to whether Milligan could reasonably be
considered a belligerent and prisoner of war, while mentioned
earlier in the opinion, see id ., at 118, were made
relevant and brought to bear in the Court’s later discussion, see id ., at 131, of whether Milligan came within the statutory
provision that effectively made an exception to Congress’s
authorized suspension of the writ for (as the Court described it)
“all parties, not prisoners of war, resident in their respective
jurisdictions, … who were citizens of states in which the
administration of the laws in the Federal tribunals was
unimpaired,” id ., at 116. Milligan thus
understood was in accord with the traditional law of habeas corpus
I have described: Though treason often occurred in wartime, there
was, absent provision for special treatment in a congressional
suspension of the writ, no exception to the right to trial by jury
for citizens who could be called “belligerents” or “prisoners of
war.”[ Footnote 2 ] But even if Quirin gave a
correct description of Milligan , or made an irrevocable
revision of it, Quirin would still not justify denial of
the writ here. In Quirin it was uncontested that the
petitioners were members of enemy forces. They were
“ admitted enemy invaders,” 317 U. S., at 47 (emphasis
added), and it was “undisputed” that they had landed in the United
States in service of German forces, id. , at 20. The
specific holding of the Court was only that, “upon the conceded facts,” the petitioners were “plainly within
[the] boundaries” of military jurisdiction, id. , at 46
(emphasis added).[ Footnote 3 ]
But where those jurisdictional facts are not conceded—where the petitioner insists that he is not a
belligerent— Quirin left the pre-existing law in place:
Absent suspension of the writ, a citizen held where the courts are
open is entitled either to criminal trial or to a judicial decree
requiring his release.[ Footnote
4 ] V It follows from what
I have said that Hamdi is entitled to a habeas decree requiring his
release unless (1) criminal proceedings are promptly brought, or
(2) Congress has suspended the writ of habeas corpus. A suspension
of the writ could, of course, lay down conditions for continued
detention, similar to those that today’s opinion prescribes under
the Due Process Clause. Cf. Act of Mar. 3, 1863, 12 Stat. 755. But
there is a world of difference between the people’s
representatives’ determining the need for that suspension (and
prescribing the conditions for it), and this Court’s doing
so. The plurality finds
justification for Hamdi’s imprisonment in the Authorization for Use
of Military Force, 115 Stat. 224, which provides: “That the President is authorized to
use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizations or persons, in
order to prevent any future acts of international terrorism against
the United States by such nations, organizations or persons.”
§2(a). This is not remotely a congressional
suspension of the writ, and no one claims that it is. Contrary to
the plurality’s view, I do not think this statute even authorizes
detention of a citizen with the clarity necessary to satisfy the
interpretive canon that statutes should be construed so as to avoid
grave constitutional concerns, see Edward J. DeBartolo
Corp. v. Florida Gulf Coast Building & Constr. Trades
Council, 485 U. S. 568 , 575
(1988); with the clarity necessary to comport with cases such as Ex parte Endo, 323 U. S. 283 , 300
(1944), and Duncan v. Kahanamoku, 327 U. S. 304 , 314–316,
324 (1946); or with the clarity necessary to overcome the statutory
prescription that “[n]o citizen shall be imprisoned or otherwise
detained by the United States except pursuant to an Act of
Congress.” 18 U. S. C. §4001(a).[ Footnote 5 ] But even if it did, I would not permit it to
overcome Hamdi’s entitlement to habeas corpus relief. The
Suspension Clause of the Constitution, which carefully
circumscribes the conditions under which the writ can be withheld,
would be a sham if it could be evaded by congressional prescription
of requirements other than the common-law requirement of
committal for criminal prosecution that render the writ,
though available, unavailing. If the Suspension Clause does not
guarantee the citizen that he will either be tried or released,
unless the conditions for suspending the writ exist and the grave
action of suspending the writ has been taken; if it merely
guarantees the citizen that he will not be detained unless Congress
by ordinary legislation says he can be detained; it guarantees him
very little indeed. It should not be thought, however,
that the plurality’s evisceration of the Suspension Clause
augments, principally, the power of Congress. As usual, the major
effect of its constitutional improvisation is to increase the power
of the Court. Having found a congressional authorization for
detention of citizens where none clearly exists; and having
discarded the categorical procedural protection of the Suspension
Clause; the plurality then proceeds, under the guise of the Due
Process Clause, to prescribe what procedural protections it thinks appropriate. It “weigh[s] the private interest …
against the Government’s asserted interest,” ante , at 22
(internal quotation marks omitted), and—just as though writing a
new Constitution—comes up with an unheard-of system in which the
citizen rather than the Government bears the burden of proof,
testimony is by hearsay rather than live witnesses, and the
presiding officer may well be a “neutral” military officer rather
than judge and jury. See ante , at 26–27. It claims
authority to engage in this sort of “judicious balancing” from Mathews v. Eldridge, 424 U. S. 319 (1976), a
case involving … the withdrawal of disability benefits! Whatever the merits of this technique when newly recognized
property rights are at issue (and even there they are
questionable), it has no place where the Constitution and the
common law already supply an answer. Having distorted the Suspension
Clause, the plurality finishes up by transmogrifying the Great
Writ—disposing of the present habeas petition by remanding for the
District Court to “engag[e] in a factfinding process that is both
prudent and incremental,” ante , at 32. “In the absence of
[the Executive’s prior provision of procedures that satisfy due
process], … a court that receives a petition for a writ of habeas
corpus from an alleged enemy combatant must itself ensure that the
minimum requirements of due process are achieved.” Ante ,
at 31–32. This judicial remediation of executive default is unheard
of. The role of habeas corpus is to determine the legality of
executive detention, not to supply the omitted process necessary to
make it legal. See Preiser v. Rodriguez, 411 U. S. 475 , 484
(1973) (“[T]he essence of habeas corpus is an attack by a person in
custody upon the legality of that custody, and … the traditional
function of the writ is to secure release from illegal custody”); 1
Blackstone 132–133. It is not the habeas court’s function to make
illegal detention legal by supplying a process that the Government
could have provided, but chose not to. If Hamdi is being imprisoned
in violation of the Constitution (because without due process of
law), then his habeas petition should be granted; the Executive may
then hand him over to the criminal authorities, whose detention for
the purpose of prosecution will be lawful, or else must release
him. There is a certain harmony of
approach in the plurality’s making up for Congress’s failure to
invoke the Suspension Clause and its making up for the Executive’s
failure to apply what it says are needed procedures—an approach
that reflects what might be called a Mr. Fix-it Mentality. The
plurality seems to view it as its mission to Make Everything Come
Out Right, rather than merely to decree the consequences, as far as
individual rights are concerned, of the other two branches’ actions
and omissions. Has the Legislature failed to suspend the writ in
the current dire emergency? Well, we will remedy that failure by
prescribing the reasonable conditions that a suspension should have
included. And has the Executive failed to live up to those
reasonable conditions? Well, we will ourselves make that failure
good, so that this dangerous fellow (if he is dangerous) need not
be set free. The problem with this approach is not only that it
steps out of the courts’ modest and limited role in a democratic
society; but that by repeatedly doing what it thinks the political
branches ought to do it encourages their lassitude and saps the
vitality of government by the people. VI Several limitations
give my views in this matter a relatively narrow compass. They
apply only to citizens, accused of being enemy combatants, who are
detained within the territorial jurisdiction of a federal court.
This is not likely to be a numerous group; currently we know of
only two, Hamdi and Jose Padilla. Where the citizen is captured
outside and held outside the United States, the constitutional
requirements may be different. Cf. Johnson v. Eisentrager, 339 U. S. 763 , 769–771 (1950); Reid v. Covert , 354 U. S. 1 , 74–75 (1957) (Harlan, J.,
concurring in result); Rasul v. Bush , ante , at 15–17 (Scalia, J., dissenting). Moreover, even
within the United States, the accused citizen-enemy combatant may
lawfully be detained once prosecution is in progress or in
contemplation. See, e.g. , County of Riverside v. McLaughlin, 500 U. S. 44 (1991)
(brief detention pending judicial determination after warrantless
arrest); United States v. Salerno, 481 U. S. 739 (1987)
(pretrial detention under the Bail Reform Act). The Government has
been notably successful in securing conviction, and hence long-term
custody or execution, of those who have waged war against the
state. I frankly do not know
whether these tools are sufficient to meet the Government’s
security needs, including the need to obtain intelligence through
interrogation. It is far beyond my competence, or the Court’s
competence, to determine that. But it is not beyond Congress’s. If
the situation demands it, the Executive can ask Congress to
authorize suspension of the writ—which can be made subject to
whatever conditions Congress deems appropriate, including even the
procedural novelties invented by the plurality today. To be sure,
suspension is limited by the Constitution to cases of rebellion or
invasion. But whether the attacks of September 11, 2001, constitute
an “invasion,” and whether those attacks still justify suspension
several years later, are questions for Congress rather than this
Court. See 3 Story §1336, at 208–209.[ Footnote 6 ] If civil rights are to be curtailed during
wartime, it must be done openly and democratically, as the
Constitution requires, rather than by silent erosion through an
opinion of this Court. * * * The Founders well
understood the difficult tradeoff between safety and freedom.
“Safety from external danger,” Hamilton declared, “is the most powerful director of
national conduct. Even the ardent love of liberty will, after a
time, give way to its dictates. The violent destruction of life and
property incident to war; the continual effort and alarm attendant
on a state of continual danger, will compel nations the most
attached to liberty, to resort for repose and security to
institutions which have a tendency to destroy their civil and
political rights. To be more safe, they, at length, become willing
to run the risk of being less free.” The Federalist No. 8,
p. 33. The Founders warned us about the risk,
and equipped us with a Constitution designed to deal with
it. Many think it not only inevitable
but entirely proper that liberty give way to security in times of
national crisis—that, at the extremes of military exigency, inter arma silent leges . Whatever the general merits of
the view that war silences law or modulates its voice, that view
has no place in the interpretation and application of a
Constitution designed precisely to confront war and, in a manner
that accords with democratic principles, to accommodate it. Because
the Court has proceeded to meet the current emergency in a manner
the Constitution does not envision, I respectfully
dissent. Footnote 1 As I shall discuss presently, see infra , at 17–19, the Court purported to limit this
language in Ex parte Quirin, 317 U. S.
1 , 45 (1942). Whatever Quirin ’s effect on Milligan ’s precedential value, however, it cannot
undermine its value as an indicator of original meaning. Cf. Reid v. Covert, 354 U. S. 1 , 30 (1957) (plurality
opinion) ( Milligan remains “one of the great landmarks in
this Court’s history”). Footnote 2 Without bothering to respond to
this analysis, the plurality states that Milligan “turned
in large part” upon the defendant’s lack of prisoner-of-war status,
and that the Milligan Court explicitly and repeatedly said so. See ante , at 14. Neither is true. To the
extent, however, that prisoner-of-war status was relevant in Milligan , it was only because prisoners of war received different statutory treatment under the
conditional suspension then in effect. Footnote 3 The only two Court of Appeals cases from World
War II cited by the Government in which citizens were detained
without trial likewise involved petitioners who were conceded to
have been members of enemy forces. See In re Territo ,
156 F. 2d 142, 143–145 (CA9 1946); Colepaugh v. Looney , 235 F. 2d 429, 432 (CA10 1956). The plurality
complains that Territo is the only case I have identified
in which “a United States citizen [was] captured in a foreign combat zone,” ante , at 16. Indeed it is;
such cases must surely be rare. But given the constitutional
tradition I have described, the burden is not upon me to find cases
in which the writ was granted to citizens in this country who had been captured on foreign battlefields; it is upon
those who would carve out an exception for such citizens (as the
plurality’s complaint suggests it would) to find a single case
(other than one where enemy status was admitted) in which habeas
was denied . Footnote 4 The plurality’s assertion that Quirin somehow “clarifies” Milligan , ante , at 15, is simply false. As I discuss supra ,
at 17–19, the Quirin Court propounded a mistaken
understanding of Milligan; but nonetheless its holding was
limited to “the case presented by the present record,” and to
“ the conceded facts ,” and thus avoided conflict with the
earlier case. See 317 U. S., at 45–46 (emphasis added). The
plurality, ignoring this expressed limitation, thinks it “beside
the point” whether belligerency is conceded or found “by some other
process” (not necessarily a jury trial) “that verifies this fact
with sufficient certainty.” Ante , at 16. But the whole
point of the procedural guarantees in the Bill of Rights is to
limit the methods by which the Government can determine facts that
the citizen disputes and on which the citizen’s liberty depends.
The plurality’s claim that Quirin ’s one-paragraph
discussion of Milligan provides a “[c]lear . . .
disavowal” of two false imprisonment cases from the War of 1812, ante , at 15, thus defies logic; unlike the plaintiffs in
those cases, Haupt was concededly a member of an enemy
force. The Government also cites Moyer v. Peabody, 212 U. S. 78 (1909), a
suit for damages against the Governor of Colorado, for violation of
due process in detaining the alleged ringleader of a rebellion
quelled by the state militia after the Governor’s declaration of a
state of insurrection and (he contended) suspension of the writ “as
incident thereto.” Ex parte Moyer , 35 Colo. 154, 157, 91
P. 738, 740 (1905). But the holding of Moyer v. Peabody (even assuming it is transferable from
state-militia detention after state suspension to federal
standing-army detention without suspension) is simply that “[s]o
long as such arrests [were] made in good faith and in the honest
belief that they [were] needed in order to head the insurrection
off,” 212 U. S., at 85, an action in damages could not lie. This
“good-faith” analysis is a forebear of our modern doctrine of
qualified immunity. Cf. Scheuer v. Rhodes, 416 U. S. 232 , 247–248
(1974) (understanding Moyer in this way). Moreover, the
detention at issue in Moyer lasted about two and a half
months, see 212 U. S., at 85, roughly the length of time
permissible under the 1679 Habeas Corpus Act, see supra ,
at 4–5. In addition to Moyer v. Peabody , Justice Thomas relies upon Luther v. Borden, 7 How. 1 (1849), a case in which the state
legislature had imposed martial law—a step even more drastic than
suspension of the writ. See post , at 13–14 (dissenting
opinion). But martial law has not been imposed here, and in any
case is limited to “the theatre of active military operations,
where war really prevails,” and where therefore the courts are
closed. Ex parte Milligan , 4 Wall. 2, 127 (1866); see also id. , at 129–130 (distinguishing Luther ). Footnote 5 The plurality rejects any need
for “specific language of detention” on the ground that detention
of alleged combatants is a “fundamental incident of waging war.” Ante , at 12. Its authorities do not support that holding
in the context of the present case. Some are irrelevant because
they do not address the detention of American citizens . E.g. , Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l
Rev. Red Cross 571, 572 (2002). The plurality’s assertion that
detentions of citizen and alien combatants are equally authorized
has no basis in law or common sense. Citizens and noncitizens, even
if equally dangerous, are not similarly situated. See, e.g., Milligan, supra; Johnson v. Eisentrager, 339 U. S. 763 (1950); Rev. Stat. 4067,
50 U. S. C. §21 (Alien Enemy Act). That captivity may be
consistent with the principles of international law does not prove
that it also complies with the restrictions that the Constitution
places on the American Government’s treatment of its own citizens.
Of the authorities cited by the plurality that do deal with
detention of citizens, Quirin and Territo have
already been discussed and rejected. See supra , at 19–20,
and n. 3. The remaining authorities pertain to U. S. detention of
citizens during the Civil War, and are irrelevant for two reasons:
(1) the Lieber Code was issued following a congressional
authorization of suspension of the writ, see Instructions for the
Government of Armies of the United States in the Field, Gen. Order
No. 100 (1863), reprinted in 2 Lieber, Miscellaneous Writings, p.
246; Act of Mar. 3, 1863, 12 Stat. 755, §§1, 2; and (2) citizens of
the Confederacy, while citizens of the United States, were also
regarded as citizens of a hostile power. Footnote 6 Justice Thomas worries that the
constitutional conditions for suspension of the writ will not exist
“during many … emergencies during which … detention authority might
be necessary,” post , at 16. It is difficult to imagine
situations in which security is so seriously threatened as to
justify indefinite imprisonment without trial, and yet the
constitutional conditions of rebellion or invasion are not
met. THOMAS, J., DISSENTING HAMDI V. RUMSFELD 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-6696 YASER ESAM HAMDI and ESAM FOUAD HAMDI, as next
friend of YASER ESAM HAMDI, PETITION- ERS v. DONALD H.
RUMSFELD, SECRETARY OF DEFENSE, et al.

															on writ of certiorari to the united states court of
appeals for the fourth circuit

															[June 28, 2004]

															   Justice Thomas, dissenting.

															   The Executive Branch, acting
pursuant to the powers vested in the President by the Constitution
and with explicit congressional approval, has determined that Yaser
Hamdi is an enemy combatant and should be detained. This detention
falls squarely within the Federal Government’s war powers, and we
lack the expertise and capacity to second-guess that decision. As
such, petitioners’ habeas challenge should fail, and there is no
reason to remand the case. The plurality reaches a contrary
conclusion by failing adequately to consider basic principles of
the constitutional structure as it relates to national security and
foreign affairs and by using the balancing scheme of Mathews v. Eldridge, 424
U. S. 319 (1976). I do not think that the Federal Government’s
war powers can be balanced away by this Court. Arguably, Congress
could provide for additional procedural protections, but until it
does, we have no right to insist upon them. But even if I were to
agree with the general approach the plurality takes, I could not
accept the particulars. The plurality utterly fails to account for
the Government’s compelling interests and for our own institutional
inability to weigh competing concerns correctly. I respectfully
dissent.

															I

															   “It is ‘obvious and unarguable’
that no governmental interest is more compelling than the security
of the Nation.” Haig v. Agee, 453 U. S. 280 , 307
(1981) (quoting Aptheker v. Secretary of
State, 378
U. S. 500 , 509 (1964)). The national security, after all, is
the primary responsibility and purpose of the Federal Government.
See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 662
(1952) (Clark, J., concurring in judgment); The Federalist No. 23,
pp. 146–147 (J. Cooke ed. 1961) (A. Hamilton) (“The principle
purposes to be answered by Union are these—The common defence of
the members—the preservation of the public peace as well against
internal convulsions as external attacks”). But because the
Founders understood that they could not foresee the myriad
potential threats to national security that might later arise, they
chose to create a Federal Government that necessarily possesses
sufficient power to handle any threat to the security of the
Nation. The power to protect the Nation

															“ought to exist without limitation … [b]ecause
it is impossible to foresee or define the extent and
variety of national exigencies, or the
correspondent extent & variety of the means which may
be necessary to satisfy them. The circumstances that endanger
the safety of nations are infinite; and for this reason no
constitutional shackles can wisely be imposed on the power to which
the care of it is committed.” Id., at 147.

															See also The Federalist Nos. 34 and 41.

															   The Founders intended that the President have
primary responsibility—along with the necessary power—to protect
the national security and to conduct the Nation’s foreign
relations. They did so principally because the structural
advantages of a unitary Executive are essential in these domains.
“Energy in the executive is a leading character in the definition
of good government. It is essential to the protection of the
community against foreign attacks.” The Federalist No. 70,
p. 471 (A. Hamilton). The principle “ingredien[t]” for “energy
in the executive” is “unity.” Id., at 472. This is because
“[d]ecision, activity, secrecy, and dispatch will generally
characterise the proceedings of one man, in a much more eminent
degree, than the proceedings of any greater number.” Ibid. These structural advantages are most important
in the national-security and foreign-affairs contexts. “Of all the
cares or concerns of government, the direction of war most
peculiarly demands those qualities which distinguish the exercise
of power by a single hand.” The Federalist No. 74, p. 500 (A.
Hamilton). Also for these reasons, John Marshall explained that
“[t]he President is the sole organ of the nation in its external
relations, and its sole representative with foreign nations.” 10
Annals of Cong. 613 (1800); see id., at 613–614. To this
end, the Constitution vests in the President “[t]he executive
Power,” Art. II, §1, provides that he “shall be Commander in
Chief of the” armed forces, §2, and places in him the power to
recognize foreign governments, §3.

															   This Court has long recognized these features
and has accordingly held that the President has constitutional authority to protect the national security
and that this authority carries with it broad discretion.

															“If a war be made by invasion of a foreign nation,
the President is not only authorized but bound to resist force by
force. He does not initiate the war, but is bound to accept the
challenge without waiting for any special legislative
authority… . Whether the President in fulfilling his duties,
as Commander in-chief, in suppressing an insurrection, has met with
such armed hostile resistance … is a question to be decided by
him .” Prize Cases, 2 Black 635, 668, 670 (1863).

															The Court has acknowledged that the President has
the authority to “employ [the Nation’s Armed Forces] in the manner
he may deem most effectual to harass and conquer and subdue the
enemy.” Fleming v. Page, 9 How. 603, 615 (1850).
With respect to foreign affairs as well, the Court has recognized
the President’s independent authority and need to be free from
interference. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U. S. 304 , 320
(1936) (explaining that the President “has his confidential sources
of information. He has his agents in the form of diplomatic,
consular and other officials. Secrecy in respect of information
gathered by them may be highly necessary, and the premature
disclosure of it productive of harmful results”); Chicago &
Southern Air Lines, Inc. v. Waterman S. S.
Corp., 333
U. S. 103 , 111 (1948).

															   Congress, to be sure, has a substantial and
essential role in both foreign affairs and national security. But
it is crucial to recognize that judicial interference in
these domains destroys the purpose of vesting primary
responsibility in a unitary Executive. I cannot improve on Justice
Jackson’s words, speaking for the Court:

															“The President, both as Commander-in-Chief and as
the Nation’s organ for foreign affairs, has available intelligence
services whose reports are not and ought not to be published to the
world. It would be intolerable that courts, without the relevant
information, should review and perhaps nullify actions of the
Executive taken on information properly held secret. Nor can courts
sit in camera in order to be taken into executive
confidences. But even if courts could require full disclosure, the
very nature of executive decisions as to foreign policy is
political, not judicial. Such decisions are wholly confided by our
Constitution to the political departments of the government,
Executive and Legislative. They are delicate, complex, and involve
large elements of prophecy. They are and should be undertaken only
by those directly responsible to the people whose welfare they
advance or imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility and
which has long been held to belong in the domain of political power
not subject to judicial intrusion or inquiry.” Ibid. Several points, made forcefully by Justice
Jackson, are worth emphasizing. First, with respect to certain
decisions relating to national security and foreign affairs, the
courts simply lack the relevant information and expertise to
second-guess determinations made by the President based on
information properly withheld. Second, even if the courts could
compel the Executive to produce the necessary information, such
decisions are simply not amenable to judicial determination because
“[t]hey are delicate, complex, and involve large elements of
prophecy.” Ibid. Third, the Court in Chicago &
Southern Air Lines and elsewhere has correctly recognized the
primacy of the political branches in the foreign-affairs and
national-security contexts.

															   For these institutional reasons and because
“Congress cannot anticipate and legislate with regard to every
possible action the President may find it necessary to take or
every possible situation in which he might act,” it should come as
no surprise that “[s]uch failure of Congress … does not,
‘especially … in the areas of foreign policy and national
security,’ imply ‘congressional disapproval’ of action taken by the
Executive.” Dames & Moore v. Regan, 453 U. S. 654 , 678
(1981) (quoting Agee, 453 U. S., at 291). Rather, in these
domains, the fact that Congress has provided the President with
broad authorities does not imply—and the Judicial Branch should not
infer—that Congress intended to deprive him of particular powers
not specifically enumerated. See Dames & Moore , 453 U.
S., at 678. As far as the courts are concerned, “the enactment of
legislation closely related to the question of the President’s
authority in a particular case which evinces legislative intent to
accord the President broad discretion may be considered to ‘invite’
‘measures on independent presidential responsibility.’ ” Ibid. (quoting Youngstown, 343 U. S., at 637
(Jackson, J., concurring)).

															   Finally, and again for the same reasons, where
“the President acts pursuant to an express or implied authorization
from Congress, he exercises not only his powers but also those
delegated by Congress[, and i]n such a case the executive action
‘would be supported by the strongest of presumptions and the widest
latitude of judicial interpretation, and the burden of persuasion
would rest heavily upon any who might attack it.’ ” Dames
& Moore , supra , at 668 (quoting Youngstown , supra , at 637 (Jackson, J.,
concurring)). That is why the Court has explained, in a case
analogous to this one, that “the detention[,] 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[, is]
not to be set aside by the courts without the clear conviction that
[it is] in conflict with the Constitution or laws of Congress
constitutionally enacted.” Ex parte Quirin, 317 U. S. 1 , 25 (1942).
See also Ex parte Milligan, 4 Wall. 2, 133 (1866) (Chase,
C. J., concurring in judgment) (stating that a sentence
imposed by a military commission “must not be set aside except upon
the clearest conviction that it cannot be reconciled with the
Constitution and the constitutional legislation of Congress”). This
deference extends to the President’s determination of all the
factual predicates necessary to conclude that a given action is
appropriate. See Quirin , supra , at 25 (“We are
not here concerned with any question of the guilt or innocence of
petitioners”). See also Hirabayashi v. United
States, 320
U. S. 81 , 93 (1943); Prize Cases, 2 Black, at 670; Martin v. Mott, 12 Wheat. 19, 29–30 (1827).

															   To be sure, the Court has at times held, in
specific circumstances, that the military acted beyond its
warmaking authority. But these cases are distinguishable in
important ways. In Ex parte Endo, 323 U. S. 283 (1944),
the Court held unlawful the detention of an admittedly law-abiding
and loyal American of Japanese ancestry. It did so because the
Government’s asserted reason for the detention had nothing to do
with the congressional and executive authorities upon which the
Government relied. Those authorities permitted detention for the
purpose of preventing espionage and sabotage and thus could not be
pressed into service for detaining a loyal citizen. See id., at 301–302. Further, the Court “stress[ed] the
silence … of the [relevant] Act and the Executive Orders .” Id. , at 301 (emphasis added); see also id., at
301–304. The Court sensibly held that the Government could not
detain a loyal citizen pursuant to executive and congressional
authorities that could not conceivably be implicated given the
Government’s factual allegations. And in Youngstown ,
Justice Jackson emphasized that “Congress ha[d] not left seizure of
private property an open field but ha[d] covered it by three
statutory policies inconsistent with th[e] seizure.” 343 U. S., at
639 (concurring opinion). See also Milligan , supra, at 134 (Chase, C. J., concurring in judgment)
(noting that the Government failed to comply with statute directly
on point).

															   I acknowledge that the question whether
Hamdi’s executive detention is lawful is a question properly
resolved by the Judicial Branch, though the question comes to the
Court with the strongest presumptions in favor of the Government.
The plurality agrees that Hamdi’s detention is lawful if he is an
enemy combatant. But the question whether Hamdi is actually an
enemy combatant is “of a kind for which the Judiciary has neither
aptitude, facilities nor responsibility and which has long been
held to belong in the domain of political power not subject to
judicial intrusion or inquiry.” Chicago & Southern Air
Lines , 333 U. S., at 111. That is, although it is appropriate
for the Court to determine the judicial question whether the
President has the asserted authority, see, e.g., Ex
parte Endo , supra , we lack the information and
expertise to question whether Hamdi is actually an enemy combatant,
a question the resolution of which is committed to other
branches.[ Footnote 1 ] In the
words of then-Judge Scalia:

															“In Old Testament days, when judges ruled the
people of Israel and led them into battle, a court professing the
belief that it could order a halt to a military operation in
foreign lands might not have been a startling phenomenon. But in
modern times, and in a country where such governmental functions
have been committed to elected delegates of the people, such an
assertion of jurisdiction is extraordinary. The [C]ourt’s decision
today reflects a willingness to extend judicial power into areas
where we do not know, and have no way of finding out, what serious
harm we may be doing.” Ramirez de Arellano v. Weinberger, 745 F. 2d 1500, 1550–1551 (CADC 1984) (en
banc) (dissenting opinion) (footnote omitted).

															See also id., at 1551, n. 1 (noting
that “[e]ven the ancient Israelites eventually realized the
shortcomings of judicial commanders-in-chief”). The decision
whether someone is an enemy combatant is, no doubt, “delicate,
complex, and involv[es] large elements of prophecy,” Chicago
& Southern Air Lines , supra , at 111, which,
incidentally might in part explain why “the Government has never
provided any court with the full criteria that it uses in
classifying individuals as such,” ante , at 8. See also infra , at 18–20 (discussing other military decisions).

															II

															   “The war power of the national
government is ‘the power to wage war successfully.’ ” Lichter v. United States, 334 U. S. 742 , 767,
n. 9 (1948) (quoting Hughes, War Powers Under the
Constitution, 42 A. B. A. Rep. 232, 238). It follows that
this power “is not limited to victories in the field, but carries
with it the inherent power to guard against the immediate renewal
of the conflict,” In re Yamashita, 327 U. S. 1 , 12 (1946);
see also Stewart v. Kahn, 11 Wall. 493, 507
(1871), and quite obviously includes the ability to detain those
(even United States citizens) who fight against our troops or those
of our allies, see, e.g., Quirin , 317 U. S., at
28–29, 30–31; id., at 37–39; Duncan v. Kahanamoku, 327 U. S. 304 , 313–314
(1946); W. Winthrop, Military Law and Precedents 788 (2d ed. 1920);
W. Whiting, War Powers Under the Constitution of the United States
167 (43d ed. 1871); id., at 44–46 (noting that Civil War
“rebels” may be treated as foreign belligerents); see also ante , at 10–12.

															   Although the President very well
may have inherent authority to detain those arrayed against our
troops, I agree with the plurality that we need not decide that
question because Congress has authorized the President to do so.
See ante , at 9. The Authorization for Use of Military
Force (AUMF), 115 Stat. 224, authorizes 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” of September 11, 2001.
Indeed, the Court has previously concluded that language materially
identical to the AUMF authorizes the Executive to “make the
ordinary use of the soldiers … ; that he may kill persons who
resist and, of course, that he may use the milder measure of
seizing [and detaining] the bodies of those whom he considers to
stand in the way of restoring peace.” Moyer v. Peabody, 212 U. S. 78 , 84
(1909).

															   The plurality, however, qualifies its
recognition of the President’s authority to detain enemy combatants
in the war on terrorism in ways that are at odds with our
precedent. Thus, the plurality relies primarily on Article 118 of
the Geneva Convention (III) Relative to the Treatment of Prisoners
of War, Aug. 12, 1949, [1955] 6 U. S. T. 3406,
T. I. A. S. No. 3364, for the proposition that “[i]t
is a clearly established principle of the law of war that detention
may last no longer than active hostilities.” Ante , at
12–13. It then appears to limit the President’s authority to detain
by requiring that the record establis[h] that United States troops
are still involved in active combat in Afghanistan because, in that
case, detention would be “part of the exercise of ‘necessary and
appropriate force.’ ” Ante , at 14. But I do not
believe that we may diminish the Federal Government’s war powers by
reference to a treaty and certainly not to a treaty that does not
apply. See n. 6, infra . Further, we are bound by the
political branches’ determination that the United States is at war.
See, e.g., Ludecke v. Watkins, 335 U. S. 160 , 167–170 (1948); Prize Cases, 2 Black, at 670; Mott , 12 Wheat., at
30. And, in any case, the power to detain does not end with the
cessation of formal hostilities. See, e.g., Madsen v. Kinsella, 343 U. S. 341 , 360
(1952); Johnson v. Eisentrager, 339 U. S. 763 , 786
(1950); cf. Moyer , supra, at 85.

															   Accordingly, the President’s action here is
“supported by the strongest of presumptions and the widest latitude
of judicial interpretation.” Dames & Moore , 453 U. S.,
at 668 (internal quotation marks omitted).[ Footnote 2 ] The question becomes whether the Federal
Government (rather than the President acting alone) has power to
detain Hamdi as an enemy combatant. More precisely, we must
determine whether the Government may detain Hamdi given the
procedures that were used.

															III

															   I agree with the plurality that
the Federal Government has power to detain those that the Executive
Branch determines to be enemy combatants. See ante , at 10.
But I do not think that the plurality has adequately explained the
breadth of the President’s authority to detain enemy combatants, an
authority that includes making virtually conclusive factual
findings. In my view, the structural considerations discussed
above, as recognized in our precedent, demonstrate that we lack the
capacity and responsibility to second-guess this determination.

															   This makes complete sense once
the process that is due Hamdi is made clear. As an initial matter,
it is possible that the Due Process Clause requires only “that our
Government must proceed according to the ‘law of the land’—that is,
according to written constitutional and statutory provisions.” In re Winship, 397 U. S. 358 , 382
(1970) (Black, J., dissenting). I need not go this far today
because the Court has already explained the nature of due process
in this context.

															   In a case strikingly similar to this one, the
Court addressed a Governor’s authority to detain for an extended
period a person the executive believed to be responsible, in part,
for a local insurrection. Justice Holmes wrote for a unanimous
Court:

															“When it comes to a decision by the head of the
State upon a matter involving its life, the ordinary rights of
individuals must yield to what he deems the necessities of
the moment. Public danger warrants the substitution of executive
process for judicial process. This was admitted with regard to
killing men in the actual clash of arms, and we think it obvious,
although it was disputed, that the same is true of temporary
detention to prevent apprehended harm.” Moyer , 212 U. S.,
at 85 (citation omitted; emphasis added).

															The Court answered Moyer’s claim that he had been
denied due process by emphasizing that

															“it is familiar that what is due process of law
depends on circumstances. It varies with the subject-matter and the
necessities of the situation. Thus summary proceedings suffice for
taxes, and executive decisions for exclusion from the
country… . Such arrests are not necessarily for punishment,
but are by way of precaution to prevent the exercise of hostile
power.” Id., at 84–85 (citations omitted).

															In this context, due process requires nothing more
than a good-faith executive determination.[ Footnote 3 ] To be clear: The Court has held that an
executive, acting pursuant to statutory and constitutional
authority may, consistent with the Due Process Clause, unilaterally
decide to detain an individual if the executive deems this
necessary for the public safety even if he is
mistaken . Moyer is not an exceptional case. In Luther v. Borden, 7 How. 1 (1849), the Court
discussed the President’s constitutional and statutory authority,
in response to a request from a state legislature or executive,
“ ‘to call forth such number of the militia of any other State
or States, as may be applied for, as he may judge sufficient to
suppress [an] insurrection.’ ” Id ., at 43 (quoting
Act of Feb. 28, 1795). The Court explained that courts could not
review the President’s decision to recognize one of the competing
legislatures or executives. See 7 How., at 43 . If a court
could second-guess this determination, “it would become the duty of
the court (provided it came to the conclusion that the President
had decided incorrectly) to discharge those who were arrested or
detained by the troops in the service of the United States.” Ibid. “If the judicial power extends so far,” the Court
concluded, “the guarantee contained in the Constitution of the
United States [referring to Art. IV, §4] is a guarantee of anarchy,
and not of order.” Ibid. The Court clearly contemplated
that the President had authority to detain as he deemed necessary,
and such detentions evidently comported with the Due Process Clause
as long as the President correctly decided to call forth the
militia, a question the Court said it could not review.

															   The Court also addressed the natural concern
that placing “this power in the President is dangerous to liberty,
and may be abused.” Id., at 44. The Court noted that
“[a]ll power may be abused if placed in unworthy hands,” and
explained that “it would be difficult … to point out any other
hands in which this power would be more safe, and at the same time
equally effectual.” Ibid. Putting that aside, the Court
emphasized that this power “is conferred upon him by the
Constitution and laws of the United States, and must therefore be
respected and enforced in its judicial tribunals.” Ibid. Finally, the Court explained that if the President abused this
power “it would be in the power of Congress to apply the proper
remedy. But the courts must administer the law as they find it.” Id., at 45.

															   Almost 140 years later, in United
States v. Salerno, 481 U. S. 739 , 748
(1987), the Court explained that the Due Process Clause “lays down
[no] categorical imperative.” The Court continued:

															“We have repeatedly held that the Government’s
regulatory interest in community safety can, in appropriate
circumstances, outweigh an individual’s liberty interest. For
example, in times of war or insurrection, when society’s interest
is at its peak, the Government may detain individuals whom the
Government believes to be dangerous.” Ibid. The Court cited Ludecke v. Watkins, 335 U. S. 160 (1948), for this latter
proposition even though Ludecke actually involved
detention of enemy aliens. See also Selective Draft Law
Cases, 245
U. S. 366 (1918); Jacobson v. Massachusetts, 197 U. S. 11 , 27–29
(1905) (upholding legislated mass vaccinations and approving of
forced quarantines of Americans even if they show no signs of
illness); cf. Kansas v. Hendricks, 521 U. S. 346 (1997); Juragua Iron Co. v. United States, 212 U. S. 297 (1909).

															   The Government’s asserted authority to detain
an individual that the President has determined to be an enemy
combatant, at least while hostilities continue, comports with the
Due Process Clause. As these cases also show, the Executive’s
decision that a detention is necessary to protect the public need
not and should not be subjected to judicial second-guessing.
Indeed, at least in the context of enemy-combatant determinations,
this would defeat the unity, secrecy, and dispatch that the
Founders believed to be so important to the warmaking function. See
Part I, supra .

															   I therefore cannot agree with
Justice Scalia’s conclusion that the Government must choose between
using standard criminal processes and suspending the writ. See ante , at 26 (dissenting opinion). Justice Scalia relies
heavily upon Ex parte Milligan, 4 Wall. 2 (1866), see ante, at 14–16, 17–20, and three cases decided by New York
state courts in the wake of the War of 1812, see ante, at
13–14. I admit that Milligan supports his position. But
because the Executive Branch there, unlike here, did not follow a
specific statutory mechanism provided by Congress, the Court did
not need to reach the broader question of Congress’ power, and its
discussion on this point was arguably dicta, see 4 Wall., at 122,
as four Justices believed, see id., at 132, 134–136
(Chase, C. J., joined by Wayne, Swayne, and Miller, JJ.,
concurring in judgment).

															   More importantly, the Court referred
frequently and pervasively to the criminal nature of the
proceedings instituted against Milligan. In fact, this feature
serves to distinguish the state cases as well. See In re
Stacy , 10 Johns. *328, *334 (N. Y. 1813) (“A military
commander is here assuming criminal jurisdiction over a
private citizen” (emphasis added)); Smith v. Shaw , 12 Johns. *257, *265 (N. Y. 1815) (Shaw “might
be amenable to the civil authority for treason; but could not be punished , under martial law, as a spy” (emphasis
added)); M’Connell v. Hampton , 12 Johns. *234
(N. Y. 1815) (same for treason).

															   Although I do acknowledge that the reasoning
of these cases might apply beyond criminal punishment, the
punishment-nonpunishment distinction harmonizes all of the
precedent. And, subsequent cases have at least implicitly
distinguished Milligan in just this way. See, e.g., Moyer , 212 U. S., at 84–85 (“Such arrests
are not necessarily for punishment, but are by way of precaution”).
Finally, Quirin overruled Milligan to the extent
that those cases are inconsistent. See Quirin , 317 U. S.,
at 45 (limiting Milligan to its facts). Because the
Government does not detain Hamdi in order to punish him, as the
plurality acknowledges, see ante , at 10–11, Milligan and the New York cases do not control.

															   Justice Scalia also finds support in a letter
Thomas Jefferson wrote to James Madison. See ante, at 12.
I agree that this provides some evidence for his position. But I
think this plainly insufficient to rebut the authorities upon which
I have relied. In any event, I do not believe that Justice Scalia’s
evidence leads to the necessary “clear conviction that [the
detention is] in conflict with the Constitution or laws of Congress
constitutionally enacted,” Quirin, supra, at 25,
to justify nullifying the President’s wartime action.

															   Finally, Justice Scalia’s position raises an
additional concern. Justice Scalia apparently does not disagree
that the Federal Government has all power necessary to protect the
Nation. If criminal processes do not suffice, however, Justice
Scalia would require Congress to suspend the writ. See ante, at 26. But the fact that the writ may not be
suspended “unless when in Cases of Rebellion or Invasion the public
Safety may require it,” Art. I, §9, cl. 2, poses two related
problems. First, this condition might not obtain here or during
many other emergencies during which this detention authority might
be necessary. Congress would then have to choose between acting
unconstitutionally[ Footnote 4 ]
and depriving the President of the tools he needs to protect the
Nation. Second, I do not see how suspension would make
constitutional otherwise unconstitutional detentions ordered by the
President. It simply removes a remedy. Justice Scalia’s position
might therefore require one or both of the political branches to
act unconstitutionally in order to protect the Nation. But the
power to protect the Nation must be the power to do so
lawfully.

															   Accordingly, I conclude that the
Government’s detention of Hamdi as an enemy combatant does not
violate the Constitution. By detaining Hamdi, the President, in the
prosecution of a war and authorized by Congress, has acted well
within his authority. Hamdi thereby received all the process to
which he was due under the circumstances. I therefore believe that
this is no occasion to balance the competing interests, as the
plurality unconvincingly attempts to do.

															IV

															   Although I do not agree with the
plurality that the balancing approach of Mathews v. Eldridge, 424
U. S. 319 (1976), is the appropriate analytical tool with which
to analyze this case,[ Footnote
5 ] I cannot help but explain that the plurality misapplies its
chosen framework, one that if applied correctly would probably lead
to the result I have reached. The plurality devotes two paragraphs
to its discussion of the Government’s interest, though much of
those two paragraphs explain why the Government’s concerns are
misplaced. See ante , at 24–25. But: “It is ‘obvious and
unarguable’ that no governmental interest is more compelling than
the security of the Nation.” Agee , 453 U. S., at 307
(quoting Aptheker, 378 U. S., at 509). In Moyer ,
the Court recognized the paramount importance of the Governor’s
interest in the tranquility of a Colorado town. At issue here is
the far more significant interest of the security of the Nation.
The Government seeks to further that interest by detaining an enemy
soldier not only to prevent him from rejoining the ongoing fight.
Rather, as the Government explains, detention can serve to gather
critical intelligence regarding the intentions and capabilities of
our adversaries, a function that the Government avers has become
all the more important in the war on terrorism. See Brief for
Respondents 15; App. 347–351.

															   Additional process, the
Government explains, will destroy the intelligence gathering
function. Brief for Respondents 43–45. It also does seem quite
likely that, under the process envisioned by the plurality, various
military officials will have to take time to litigate this matter.
And though the plurality does not say so, a meaningful ability to
challenge the Government’s factual allegations will probably
require the Government to divulge highly classified information to
the purported enemy combatant, who might then upon release return
to the fight armed with our most closely held secrets.

															   The plurality manages to avoid these problems
by discounting or entirely ignoring them. After spending a few
sentences putatively describing the Government’s interests, the
plurality simply assures the Government that the alleged burdens
“are properly taken into account in our due process analysis.” Ante , at 25. The plurality also announces that “the risk
of erroneous deprivation of a detainee’s liberty interest is
unacceptably high under the Government’s proposed rule.” Ante, at 26 (internal quotation marks omitted). But there
is no particular reason to believe that the federal courts have the
relevant information and expertise to make this judgment. And for
the reasons discussed in Part I, supra, there is every
reason to think that courts cannot and should not make these
decisions.

															   The plurality next opines that “[w]e think it
unlikely that this basic process will have the dire impact on the
central functions of warmaking that the Government forecasts.” Ante, at 27. Apparently by limiting hearings “to the
alleged combatant’s acts,” such hearings “meddl[e] little, if at
all, in the strategy or conduct of war.” Ante, at 28. Of
course, the meaning of the combatant’s acts may become clear only
after quite invasive and extensive inquiry. And again, the federal
courts are simply not situated to make these judgments.

															   Ultimately, the plurality’s dismissive
treatment of the Government’s asserted interests arises from its
apparent belief that enemy-combatant determinations are not part of
“the actual prosecution of a war,” ibid. , or one of the
“central functions of warmaking,” ante, at 27. This seems
wrong: Taking and holding enemy combatants is a
quintessential aspect of the prosecution of war. See, e.g., ante , at 10–11; Quirin , 317 U.
S. , at 28. Moreover, this highlights serious difficulties
in applying the plurality’s balancing approach here. First, in the
war context, we know neither the strength of the Government’s
interests nor the costs of imposing additional process.

															   Second, it is at least difficult to explain
why the result should be different for other military operations
that the plurality would ostensibly recognize as “central functions
of warmaking.” As the plurality recounts:

															“Parties whose rights are to be affected are
entitled to be heard; and in order that they may enjoy that right
they must first be notified. It is equally fundamental that the
right to notice and an opportunity to be heard must be granted at a
meaningful time and in a meaningful manner.” Ante , at 26
(internal quotation marks omitted).

															See also ibid. (“notice” of the
Government’s factual assertions and “a fair opportunity to rebut
[those] assertions before a neutral decisionmaker” are essential
elements of due process). Because a decision to bomb a particular
target might extinguish life interests, the plurality’s
analysis seems to require notice to potential targets. To take one
more example, in November 2002, a Central Intelligence Agency (CIA)
Predator drone fired a Hellfire missile at a vehicle in Yemen
carrying an al Qaeda leader, a citizen of the United States, and
four others. See Priest, CIA Killed U. S. Citizen In Yemen Missile
Strike, Washington Post, Nov. 8, 2002, p. A1. It is not clear
whether the CIA knew that an American was in the vehicle. But the
plurality’s due process would seem to require notice and
opportunity to respond here as well. Cf. Tennessee v. Garner, 471 U. S. 1 (1985). I
offer these examples not because I think the plurality would demand
additional process in these situations but because it clearly would
not. The result here should be the same.

															   I realize that many military operations are,
in some sense, necessary. But many, if not most, are merely
expedient, and I see no principled distinction between the military
operation the plurality condemns today (the holding of an enemy
combatant based on the process given Hamdi) from a variety of other
military operations. In truth, I doubt that there is any sensible,
bright-line distinction. It could be argued that bombings and
missile strikes are an inherent part of war, and as long as our
forces do not violate the laws of war, it is of no constitutional
moment that civilians might be killed. But this does not serve to
distinguish this case because it is also consistent with the laws
of war to detain enemy combatants exactly as the Government has
detained Hamdi.[ Footnote 6 ]
This, in fact, bolsters my argument in Part III to the extent that
the laws of war show that the power to detain is part of a
sovereign’s war powers.

															   Undeniably, Hamdi has been deprived of a
serious interest, one actually protected by the Due Process Clause.
Against this, however, is the Government’s overriding interest in
protecting the Nation. If a deprivation of liberty can be justified
by the need to protect a town, the protection of the Nation, a
fortiori , justifies it.

															   I acknowledge that under the plurality’s
approach, it might, at times, be appropriate to give detainees
access to counsel and notice of the factual basis for the
Government’s determination. See ante , at 25–27. But
properly accounting for the Government’s interests also requires
concluding that access to counsel and to the factual basis would
not always be warranted. Though common sense suffices, the
Government thoroughly explains that counsel would often destroy the
intelligence gathering function. See Brief for Respondents 42–43.
See also App. 347–351 (affidavit of Col. D. Woolfolk). Equally
obvious is the Government’s interest in not fighting the war in its
own courts, see, e.g., Johnson v. Eisentrager, 339 U. S., at 779, and protecting classified
information, see, e.g., Department of Navy v. Egan, 484 U. S. 518 , 527
(1988) (President’s “authority to classify and control access to
information bearing on national security and to determine” who gets
access “flows primarily from [the Commander-in-Chief Clause] and
exists quite apart from any explicit congressional grant”); Agee, 453 U. S., at 307 (upholding revocation of former
CIA employee’s passport in large part by reference to the
Government’s need “to protect the secrecy of [its] foreign
intelligence operations”).[ Footnote
7 ]

															* * *

															   For these reasons, I would affirm
the judgment of the Court of Appeals. Footnote 1 Although I have emphasized national-security
concerns, the President’s foreign-affairs responsibilities are also
squarely implicated by this case. The Government avers that
Northern Alliance forces captured Hamdi, and the District Court
demanded that the Government turn over information relating to
statements made by members of the Northern Alliance. See 316
F. 3d 450, 462 (CA4 2003). Footnote 2 It could be argued that the habeas statutes
are evidence of congressional intent that enemy combatants are
entitled to challenge the factual basis for the Government’s
determination. See, e.g., 28 U. S. C. §§2243, 2246.
But factual development is needed only to the extent necessary to
resolve the legal challenge to the detention. See, e.g., Walker v. Johnston, 312 U. S. 275 , 284
(1941). Footnote 3 Indeed, it is not even clear that the Court
required good faith. See Moyer, 212 U. S., at 85 (“It is
not alleged that [the Governor’s] judgment was not honest, if that
be material, or that [Moyer] was detained after fears of the
insurrection were at an end”). Footnote 4 I agree with Justice Scalia that this Court
could not review Congress’ decision to suspend the writ. See ante, at 26. Footnote 5 Evidently, neither do the parties, who do not
cite Mathews even once. Footnote 6 Hamdi’s detention comports with the laws of
war, including the Geneva Convention (III) Relative to the
Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U.
S. T. 3406, T. I. A. S. No. 3364. See Brief for
Respondents 22–24. Footnote 7 These observations cast still more doubt on
the appropriateness and usefulness of Mathews v. Eldridge, 424
U. S. 319 (1976), in this context. It is, for example,
difficult to see how the plurality can insist that Hamdi
unquestionably has the right to access to counsel in connection
with the proceedings on remand, when new information could become
available to the Government showing that such access would pose a
grave risk to national security. In that event, would the
Government need to hold a hearing before depriving Hamdi of his
newly acquired right to counsel even if that hearing would itself
pose a grave threat? OPINION OF SOUTER, J. HAMDI V. RUMSFELD 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-6696 YASER ESAM HAMDI and ESAM FOUAD HAMDI, as next
friend of YASER ESAM HAMDI, PETITION- ERS v. DONALD H.
RUMSFELD, SECRETARY OF DEFENSE, et al.

															on writ of certiorari to the united states court of
appeals for the fourth circuit

															[June 28, 2004]

															   Justice Souter, with whom Justice
Ginsburg joins, concurring in part, dissenting in part, and
concurring in the judgment.

															   According to Yaser Hamdi’s
petition for writ of habeas corpus, brought on his behalf by his
father, the Government of the United States is detaining him, an
American citizen on American soil, with the explanation that he was
seized on the field of battle in Afghanistan, having been on the
enemy side. It is undisputed that the Government has not charged
him with espionage, treason, or any other crime under domestic law.
It is likewise undisputed that for one year and nine months, on the
basis of an Executive designation of Hamdi as an “enemy combatant,”
the Government denied him the right to send or receive any
communication beyond the prison where he was held and, in
particular, denied him access to counsel to represent him.[ Footnote 1 ] The Government asserts a
right to hold Hamdi under these conditions indefinitely, that is,
until the Government determines that the United States is no longer
threatened by the terrorism exemplified in the attacks of September
11, 2001.

															   In these proceedings on Hamdi’s petition, he
seeks to challenge the facts claimed by the Government as the basis
for holding him as an enemy combatant. And in this Court he presses
the distinct argument that the Government’s claim, even if true,
would not implicate any authority for holding him that would
satisfy 18 U. S. C. §4001(a) (Non-Detention Act), which bars
imprisonment or detention of a citizen “except pursuant to an Act
of Congress.”

															   The Government responds that Hamdi’s
incommunicado imprisonment as an enemy combatant seized on the
field of battle falls within the President’s power as Commander in
Chief under the laws and usages of war, and is in any event
authorized by two statutes. Accordingly, the Government contends
that Hamdi has no basis for any challenge by petition for habeas
except to his own status as an enemy combatant; and even that
challenge may go no further than to enquire whether “some evidence”
supports Hamdi’s designation, see Brief for Respondents 34–36; if
there is “some evidence,” Hamdi should remain locked up at the
discretion of the Executive. At the argument of this case, in fact,
the Government went further and suggested that as long as a
prisoner could challenge his enemy combatant designation when
responding to interrogation during incommunicado detention he was
accorded sufficient process to support his designation as an enemy
combatant. See Tr. of Oral Arg. 40; id ., at 42 (“[H]e has
an opportunity to explain it in his own words” “[d]uring
interrogation”). Since on either view judicial enquiry so limited
would be virtually worthless as a way to contest detention, the
Government’s concession of jurisdiction to hear Hamdi’s habeas
claim is more theoretical than practical, leaving the assertion of
Executive authority close to unconditional.

															   The plurality rejects any such limit on the
exercise of habeas jurisdiction and so far I agree with its
opinion. The plurality does, however, accept the Government’s
position that if Hamdi’s designation as an enemy combatant is
correct, his detention (at least as to some period) is authorized
by an Act of Congress as required by §4001(a), that is, by the
Authorization for Use of Military Force, 115 Stat. 224 (hereinafter
Force Resolution). Ante , at 9–14. Here, I disagree and
respectfully dissent. The Government has failed to demonstrate that
the Force Resolution authorizes the detention complained of here
even on the facts the Government claims. If the Government raises
nothing further than the record now shows, the Non-Detention Act
entitles Hamdi to be released.

															I

															   The Government’s first response
to Hamdi’s claim that holding him violates §4001(a), prohibiting
detention of citizens “except pursuant to an Act of Congress,” is
that the statute does not even apply to military wartime
detentions, being beyond the sphere of domestic criminal law. Next,
the Government says that even if that statute does apply, two Acts
of Congress provide the authority §4001(a) demands: a general
authorization to the Department of Defense to pay for detaining
“prisoners of war” and “similar” persons, 10 U. S. C. §956(5),
and the Force Resolution, passed after the attacks of 2001. At the
same time, the Government argues that in detaining Hamdi in the
manner described, the President is in any event acting as Commander
in Chief under Article II of the Constitution, which brings with it
the right to invoke authority under the accepted customary rules
for waging war. On the record in front of us, the Government has
not made out a case on any theory.

															II

															   The threshold issue is how
broadly or narrowly to read the Non-Detention Act, the tone of
which is severe: “No citizen shall be imprisoned or otherwise
detained by the United States except pursuant to an Act of
Congress.” Should the severity of the Act be relieved when the
Government’s stated factual justification for incommunicado
detention is a war on terrorism, so that the Government may be said
to act “pursuant” to congressional terms that fall short of
explicit authority to imprison individuals? With one possible
though important qualification, see infra , at 10–11, the
answer has to be no. For a number of reasons, the prohibition
within §4001(a) has to be read broadly to accord the statute a long
reach and to impose a burden of justification on the
Government.

															   First, the circumstances in which
the Act was adopted point the way to this interpretation. The
provision superseded a cold-war statute, the Emergency Detention
Act of 1950 (formerly 50 U. S. C. §811 et seq. (1970
ed.)), which had authorized the Attorney General, in time of
emergency, to detain anyone reasonably thought likely to engage in
espionage or sabotage. That statute was repealed in 1971 out of
fear that it could authorize a repetition of the World War II
internment of citizens of Japanese ancestry; Congress meant to
preclude another episode like the one described in Korematsu v. United States , 323 U. S. 214 (1944). See H. R.
Rep. No. 92–116, pp. 2, 4–5 (1971). While Congress might simply
have struck the 1950 statute, in considering the repealer the point
was made that the existing statute provided some express procedural
protection, without which the Executive would seem to be subject to
no statutory limits protecting individual liberty. See id. , at 5 (mere repeal “might leave citizens subject to
arbitrary executive action, with no clear demarcation of the limits
of executive authority”); 117 Cong. Rec. 31544 (1971) (Emergency
Detention Act “remains as the only existing barrier against the
future exercise of executive power which resulted in” the Japanese
internment); cf. id. , at 31548 (in the absence of further
procedural provisions, even §4001(a) “will virtually leave us
stripped naked against the great power … which the President has”).
It was in these circumstances that a proposed limit on Executive
action was expanded to the inclusive scope of §4001(a) as
enacted.

															   The fact that Congress intended to guard
against a repetition of the World War II internments when it
repealed the 1950 statute and gave us §4001(a) provides a powerful
reason to think that §4001(a) was meant to require clear
congressional authorization before any citizen can be placed in a
cell. It is not merely that the legislative history shows that
§4001(a) was thought necessary in anticipation of times just like
the present, in which the safety of the country is threatened. To
appreciate what is most significant, one must only recall that the
internments of the 1940’s were accomplished by Executive action.
Although an Act of Congress ratified and confirmed an Executive
order authorizing the military to exclude individuals from defined
areas and to accommodate those it might remove, see Ex parte
Endo , 323 U. S. 283 , 285–288 (1944), the
statute said nothing whatever about the detention of those who
might be removed, id. , at 300–301; internment camps were
creatures of the Executive, and confinement in them rested on
assertion of Executive authority, see id. , at 287–293.
When, therefore, Congress repealed the 1950 Act and adopted
§4001(a) for the purpose of avoiding another Korematsu , it
intended to preclude reliance on vague congressional authority (for
example, providing “accommodations” for those subject to removal)
as authority for detention or imprisonment at the discretion of the
Executive (maintaining detention camps of American citizens, for
example). In requiring that any Executive detention be “pursuant to
an Act of Congress,” then, Congress necessarily meant to require a
congressional enactment that clearly authorized detention or
imprisonment.

															   Second, when Congress passed §4001(a) it was
acting in light of an interpretive regime that subjected enactments
limiting liberty in wartime to the requirement of a clear statement
and it presumably intended §4001(a) to be read accordingly. This
need for clarity was unmistakably expressed in Ex parte Endo , supra , decided the same day as Korematsu . Endo began with a petition for habeas
corpus by an interned citizen claiming to be loyal and law-abiding
and thus “unlawfully detained.” 323 U. S., at 294. The petitioner
was held entitled to habeas relief in an opinion that set out this
principle for scrutinizing wartime statutes in derogation of
customary liberty:

															“In interpreting a wartime measure we must assume
that [its] purpose was to allow for the greatest possible
accommodation between … liberties and the exigencies of war. We
must assume, when asked to find implied powers in a grant of
legislative or executive authority, that the law makers intended to
place no greater restraint on the citizen than was clearly and
unmistakably indicated by the language they used.” Id ., at
300.

															Congress’s understanding of the need for clear
authority before citizens are kept detained is itself therefore
clear, and §4001(a) must be read to have teeth in its demand for
congressional authorization.

															   Finally, even if history had spared us the
cautionary example of the internments in World War II, even if
there had been no Korematsu , and Endo had set out
no principle of statutory interpretation, there would be a
compelling reason to read §4001(a) to demand manifest authority to
detain before detention is authorized. The defining character of
American constitutional government is its constant tension between
security and liberty, serving both by partial helpings of each. In
a government of separated powers, deciding finally on what is a
reasonable degree of guaranteed liberty whether in peace or war (or
some condition in between) is not well entrusted to the Executive
Branch of Government, whose particular responsibility is to
maintain security. For reasons of inescapable human nature, the
branch of the Government asked to counter a serious threat is not
the branch on which to rest the Nation’s entire reliance in
striking the balance between the will to win and the cost in
liberty on the way to victory; the responsibility for security will
naturally amplify the claim that security legitimately raises. A
reasonable balance is more likely to be reached on the judgment of
a different branch, just as Madison said in remarking that “the
constant aim is to divide and arrange the several offices in such a
manner as that each may be a check on the other—that the private
interest of every individual may be a sentinel over the public
rights.” The Federalist No. 51, p. 349 (J. Cooke ed. 1961). Hence
the need for an assessment by Congress before citizens are subject
to lockup, and likewise the need for a clearly expressed
congressional resolution of the competing claims.

															III

															   Under this principle of reading
§4001(a) robustly to require a clear statement of authorization to
detain, none of the Government’s arguments suffices to justify
Hamdi’s detention.

															A

															   First, there is the argument that
§4001(a) does not even apply to wartime military detentions, a
position resting on the placement of §4001(a) in Title 18 of the
United States Code, the gathering of federal criminal law. The text
of the statute does not, however, so limit its reach, and the
legislative history of the provision shows its placement in Title
18 was not meant to render the statute more restricted than its
terms. The draft of what is now §4001(a) as contained in the
original bill prohibited only imprisonment unauthorized by Title
18. See H. R. Rep. No. 92– 116, at 4. In response to the
Department of Justice’s objection that the original draft seemed to
assume wrongly that all provisions for the detention of convicted
persons would be contained in Title 18, the provision was amended
by replacing a reference to that title with the reference to an
“Act of Congress.” Id., at 3. The Committee on the
Judiciary, discussing this change, stated that “[limiting]
detention of citizens … to situations in which … an Act of
Congres[s] exists” would “assure that no detention camps can be
established without at least the acquiescence of the Congress.” Id. , at 5. See also supra , at 4–6. This
understanding, that the amended bill would sweep beyond
imprisonment for crime and apply to Executive detention in
furtherance of wartime security, was emphasized in an extended
debate. Representative Ichord, chairman of the House Internal
Security Committee and an opponent of the bill, feared that the
redrafted statute would “deprive the President of his emergency
powers and his most effective means of coping with sabotage and
espionage agents in war-related crises.” 117 Cong. Rec., at 31542.
Representative Railsback, the bill’s sponsor, spoke of the bill in
absolute terms: “[I]n order to prohibit arbitrary executive action,
[the bill] assures that no detention of citizens can be undertaken
by the Executive without the prior consent of Congress.” Id. , at 31551. This legislative history indicates that
Congress was aware that §4001(a) would limit the Executive’s power
to detain citizens in wartime to protect national security, and it
is fair to say that the prohibition was thus intended to extend not
only to the exercise of power to vindicate the interests underlying
domestic criminal law, but to statutorily unauthorized detention by
the Executive for reasons of security in wartime, just as Hamdi
claims.[ Footnote 2 ]

															B

															   Next, there is the Government’s
claim, accepted by the Court, that the terms of the Force
Resolution are adequate to authorize detention of an enemy
combatant under the circumstances described,[ Footnote 3 ] a claim the Government fails to
support sufficiently to satisfy §4001(a) as read to require a clear
statement of authority to detain. Since the Force Resolution was
adopted one week after the attacks of September 11, 2001, it
naturally speaks with some generality, but its focus is clear, and
that is on the use of military power. It is fairly read to
authorize the use of armies and weapons, whether against other
armies or individual terrorists. But, like the statute discussed in Endo , it never so much as uses the word detention, and
there is no reason to think Congress might have perceived any need
to augment Executive power to deal with dangerous citizens within
the United States, given the well-stocked statutory arsenal of
defined criminal offenses covering the gamut of actions that a
citizen sympathetic to terrorists might commit. See, e.g .,
18 U. S. C. §2339A (material support for various terrorist
acts); §2339B (material support to a foreign terrorist
organization); §2332a (use of a weapon of mass destruction,
including conspiracy and attempt); §2332b(a)(1) (acts of terrorism
“transcending national boundaries,” including threats, conspiracy,
and attempt); 18 U. S. C. A. §2339C (Supp. 2004)
(financing of certain terrorist acts); see also 18 U. S. C.
§3142(e) (pretrial detention). See generally Brief for Janet Reno
et al. as Amici Curiae in Rumsfeld v. Padilla , O. T. 2003, No. 03–1027, pp. 14–19, and
n. 17 (listing the tools available to the Executive to fight
terrorism even without the power the Government claims here); Brief
for Louis Henkin et al. as Amici Curiae in Rumsfeld v. Padilla , O. T. 2003, No.
03–1027, p. 23, n. 27.[ Footnote 4 ]

															C

															   Even so, there is one argument
for treating the Force Resolution as sufficiently clear to
authorize detention of a citizen consistently with §4001(a).
Assuming the argument to be sound, however, the Government is in no
position to claim its advantage.

															   Because the Force Resolution
authorizes the use of military force in acts of war by the United
States, the argument goes, it is reasonably clear that the military
and its Commander in Chief are authorized to deal with enemy
belligerents according to the treaties and customs known
collectively as the laws of war. Brief for Respondents 20– 22; see ante , at 9–14 (accepting this argument). Accordingly, the
United States may detain captured enemies, and Ex parte Quirin, 317
U. S. 1 (1942), may perhaps be claimed for the proposition that
the American citizenship of such a captive does not as such limit
the Government’s power to deal with him under the usages of war. Id., at 31, 37–38. Thus, the Government here repeatedly
argues that Hamdi’s detention amounts to nothing more than
customary detention of a captive taken on the field of battle: if
the usages of war are fairly authorized by the Force Resolution,
Hamdi’s detention is authorized for purposes of §4001(a).

															   There is no need, however, to address the
merits of such an argument in all possible circumstances. For now
it is enough to recognize that the Government’s stated legal
position in its campaign against the Taliban (among whom Hamdi was
allegedly captured) is apparently at odds with its claim here to be
acting in accordance with custo- mary law of war and hence to be
within the terms of the Force Resolution in its detention of Hamdi.
In a statement of its legal position cited in its brief, the
Government says that “the Geneva Convention applies to the Taliban
detainees.” Office of the White House Press Secretary, Fact Sheet,
Status of Detainees at Guantanamo (Feb. 7, 2002),
www.whitehouse.gov/news/releases/2002/ 02/20020207–13.html (as
visited June 18, 2004, and available in Clerk of Court’s case file)
(hereinafter White House Press Release) (cited in Brief for
Respondents 24, n. 9). Hamdi presumably is such a detainee,
since according to the Government’s own account, he was taken
bearing arms on the Taliban side of a field of battle in
Afghanistan. He would therefore seem to qualify for treatment as a
prisoner of war under the Third Geneva Convention, to which the
United States is a party. Article 4 of the Geneva Convention (III)
Relative to the Treatment of Prisoners of War, Aug. 12, 1949,
[1955] 6 U. S. T. 3316, 3320, T. I. A. S. No.
3364.

															   By holding him incommunicado, however, the
Government obviously has not been treating him as a prisoner of
war, and in fact the Government claims that no Taliban detainee is
entitled to prisoner of war status. See Brief for Respondents 24;
White House Press Release. This treatment appears to be a violation
of the Geneva Convention provision that even in cases of doubt,
captives are entitled to be treated as prisoners of war “until such
time as their status has been determined by a competent tribunal.”
Art. 5, 6 U. S. T., at 3324. The Government answers that the
President’s determination that Taliban detainees do not qualify as
prisoners of war is conclusive as to Hamdi’s status and removes any
doubt that would trigger application of the Convention’s tribunal
requirement. See Brief for Respondents 24. But reliance on this
categorical pronouncement to settle doubt is apparently at odds
with the military regulation, Enemy Prisoners of War, Retained
Personnel, Civilian Internees and Other Detainees, Army Reg. 190–8,
§§1–5, 1–6 (1997), adopted to implement the Geneva
Convention, and setting out a detailed procedure for a military
tribunal to determine an individual’s status. See, e.g. , id ., §1–6 (“A competent tribunal shall be
composed of three commissioned officers”; a “written record shall
be made of proceedings”; “[p]roceedings shall be open” with certain
exceptions; “[p]ersons whose status is to be determined shall be
advised of their rights at the beginning of their hearings,”
“allowed to attend all open sessions,” “allowed to call witnesses
if reasonably available, and to question those witnesses called by
the Tribunal,” and to “have a right to testify”; and a tribunal
shall determine status by a “[p]reponderance of evidence”). One of
the types of doubt these tribunals are meant to settle is whether a
given individual may be, as Hamdi says he is, an “[i]nnocent
civilian who should be immediately returned to his home or
released.” Id. , 1–6 e (10)( c ). The
regulation, jointly promulgated by the Headquarters of the
Departments of the Army, Navy, Air Force, and Marine Corps,
provides that “[p]ersons who have been determined by a competent
tribunal not to be entitled to prisoner of war status may not be
executed, imprisoned, or otherwise penalized without further
proceedings to determine what acts they have committed and what
penalty should be imposed.” Id. , §1–6 g . The
regulation also incorporates the Geneva Convention’s presumption
that in cases of doubt, “persons shall enjoy the protection of the
… Convention until such time as their status has been determined by
a competent tribunal.” Id ., §1–6 a . Thus, there is
reason to question whether the United States is acting in
accordance with the laws of war it claims as
authority. Whether, or to what
degree, the Government is in fact violating the Geneva Convention
and is thus acting outside the customary usages of war are not
matters I can resolve at this point. What I can say, though, is
that the Government has not made out its claim that in detaining
Hamdi in the manner described, it is acting in accord with the laws
of war authorized to be applied against citizens by the Force
Resolution. I conclude accordingly that the Government has failed
to support the position that the Force Resolution authorizes the
described detention of Hamdi for purposes of
§4001(a). It is worth adding a
further reason for requiring the Government to bear the burden of
clearly justifying its claim to be exercising recognized war powers
before declaring §4001(a) satisfied. Thirty-eight days after
adopting the Force Resolution, Congress passed the statute entitled
Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (USA
PATRIOT ACT), 115 Stat. 272; that Act authorized the detention of
alien terrorists for no more than seven days in the absence of
criminal charges or deportation proceedings, 8 U. S. C.
§1226a(a)(5) (2000 ed., Supp. I). It is very difficult to believe
that the same Congress that carefully circumscribed Executive power
over alien terrorists on home soil would not have meant to require
the Government to justify clearly its detention of an American
citizen held on home soil incommunicado. D Since the
Government has given no reason either to deflect the application of
§4001(a) or to hold it to be satisfied, I need to go no further;
the Government hints of a constitutional challenge to the statute,
but it presents none here. I will, however, stray across the line
between statutory and constitutional territory just far enough to
note the weakness of the Government’s mixed claim of inherent,
extrastatutory authority under a combination of Article II of the
Constitution and the usages of war. It is in fact in this
connection that the Government developed its argument that the
exercise of war powers justifies the detention, and what I have
just said about its inadequacy applies here as well. Beyond that,
it is instructive to recall Justice Jackson’s observation that the
President is not Commander in Chief of the country, only of the
military. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 643–644
(1952) (concurring opinion); see also id ., at 637–638
(Presidential authority is “at its lowest ebb” where the President
acts contrary to congressional will). There may
be room for one qualification to Justice Jackson’s statement,
however: in a moment of genuine emergency, when the Government must
act with no time for deliberation, the Executive may be able to
detain a citizen if there is reason to fear he is an imminent
threat to the safety of the Nation and its people (though I doubt
there is any want of statutory authority, see supra , at
9–10). This case, however, does not present that question, because
an emergency power of necessity must at least be limited by the
emergency; Hamdi has been locked up for over two years. Cf. Ex
parte Milligan, 4 Wall. 2, 127 (1866) (martial law justified
only by “actual and present” necessity as in a genuine invasion
that closes civilian courts). Whether insisting on
the careful scrutiny of emergency claims or on a vigorous reading
of §4001(a), we are heirs to a tradition given voice 800 years ago
by Magna Carta, which, on the barons’ insistence, confined
executive power by “the law of the land.” IV Because I find Hamdi’s
detention forbidden by §4001(a) and unauthorized by the Force
Resolution, I would not reach any questions of what process he may
be due in litigating disputed issues in a proceeding under the
habeas statute or prior to the habeas enquiry itself. For me, it
suffices that the Government has failed to justify holding him in
the absence of a further Act of Congress, criminal charges, a
showing that the detention conforms to the laws of war, or a
demonstration that §4001(a) is unconstitutional. I would therefore
vacate the judgment of the Court of Appeals and remand for
proceedings consistent with this view. Since this disposition
does not command a majority of the Court, however, the need to give
practical effect to the conclusions of eight members of the Court
rejecting the Government’s position calls for me to join with the
plurality in ordering remand on terms closest to those I would
impose. See Screws v. United States , 325 U. S. 91 , 134 (1945)
(Rutledge, J., concurring in result). Although I think litigation
of Hamdi’s status as an enemy combatant is unnecessary, the terms
of the plurality’s remand will allow Hamdi to offer evidence that
he is not an enemy combatant, and he should at the least have the
benefit of that opportunity. It should go without
saying that in joining with the plurality to produce a judgment, I
do not adopt the plurality’s resolution of constitutional issues
that I would not reach. It is not that I could disagree with the
plurality’s determinations (given the plurality’s view of the Force
Resolution) that someone in Hamdi’s position is entitled at a
minimum to notice of the Government’s claimed factual basis for
holding him, and to a fair chance to rebut it before a neutral
decision maker, see ante , at 26; nor, of course, could I
disagree with the plurality’s affirmation of Hamdi’s right to
counsel, see ante , at 32–33. On the other hand, I do not
mean to imply agreement that the Government could claim an
evidentiary presumption casting the burden of rebuttal on Hamdi,
see ante , at 27, or that an opportunity to litigate before
a military tribunal might obviate or truncate enquiry by a court on
habeas, see ante , at 31–32. Subject to these
qualifications, I join with the plurality in a judgment of the
Court vacating the Fourth Circuit’s judgment and remanding the
case. Footnote
1 The Government has
since February 2004 permitted Hamdi to consult with counsel as a
matter of policy, but does not concede that it has an obligation to
allow this. Brief for Respondents 9, 39–46. Footnote
2 Nor is it possible to
distinguish between civilian and military authority to detain based
on the congressional object of avoiding another Korematsu v. United States, 323 U. S. 214 (1944). See Brief for
Respondents 21 (arguing that military detentions are exempt).
Although a civilian agency authorized by Executive order ran the
detention camps, the relocation and detention of American citizens
was ordered by the military under authority of the President as
Commander in Chief. See Ex parte Endo , 323 U. S. 283 , 285–288 (1944). The
World War II internment was thus ordered under the same
Presidential power invoked here and the intent to bar a repetition
goes to the action taken and authority claimed
here. Footnote
3 As noted, supra , at 3, the Government argues that a required Act of
Congress is to be found in a statutory authorization to spend money
appropriated for the care of prisoners of war and of other, similar
prisoners, 10 U. S. C. §956(5). It is enough to say that this
statute is an authorization to spend money if there are prisoners,
not an authorization to imprison anyone to provide the occasion for
spending money. Footnote
4 Even a brief examination of
the reported cases in which the Government has chosen to proceed
criminally against those who aided the Taliban shows the Government
has found no shortage of offenses to allege. See United
States v. Lindh , 212 F. Supp. 2d 541, 547 (ED
Va. 2002); United States v. Khan , 309
F. Supp. 2d 789, 796 (ED Va. 2004).