Due Process and The War On Terror
Part I: U.S. Citizens As “Enemy Combatants” and Due Process
The idea that an American student is afforded Due Process (notice, a meaningful opportunity to be heard or contest the allegation, a neutral decision-maker, etc.) before being expelled from public school is easy enough to agree with. So too the idea that we should extend this same protection to a doctor before we take her professional license away, or before keeping a U.S. citizen in jail for theft. But, what about Due Process in other situations—where the stakes are higher, so to speak? And what about where we don’t deal with children, doctors, or low-level criminal accusations, but instead with alleged terrorists?
Following September 11, 2001, terrorist attacks on the United States, Congress passed a resolution authorizing then-President George Bush to “use all necessary and appropriate force against those nations, organizations, or persons he [President Bush] determined planned, authorized, committed, or aided the terrorist attacks.” This resolution was titled the Authorization for Use of Military Force (AUMF). Shortly thereafter, the President ordered the United States Armed Forces to Afghanistan to subdue terrorist organizations and groups. Soon after, a man named Yaser Esam Hamdi, an American citizen, alleged by the Government to have taken up arms with the Taliban was captured and detained by the United States as an “enemy combatant.”
Hamdi was born in Louisiana in 1980, and moved with his parents to Saudi Arabia as a child. By 2001, he resided in Afghanistan. At some point during the same year, he was seized by members of the Northern Alliance (a coalition of military groups who opposed the Taliban) and was turned over to the United States military. He was eventually brought to American, and was detained at a military brig in Charleston, South Carolina. Hamdi asserted he was in Afghanistan to perform “relief work” and that he had been trapped in Afghanistan following September 11, 2001. The Government, via an affidavit of Michael Hobbs (Special Advisor to the Under Secretary of Defense), conversely argued that Hamdi had “remained with his Taliban unit following September 11, 2001,” and “Hamdi’s Taliban unit surrendered [to Northern Alliance forces]” and that Hamdi then “surrendered his Kalishnikov assault rifle.”
The Government contended it could hold Hamdi indefinitely and without formal charges or proceedings based on the above, and his resultant designation (by the Government) as an “enemy combatant.” Hamdi disagreed, and filed a Petition for Writ of Habeas Corpus, arguing (1) that he should be appointed counsel to represent him (previously, Hamdi had been denied access to legal counsel of any kind); (2) that all interrogation of Hamdi should cease immediately; (3) that his detention violated the Fourth and Fifth Amendments of the United States Constitution; (4) that an evidentiary hearing should be held permitting him to contest his designation as an “enemy combatant,” and wherein the Government would be required to provide evidence supporting its designation of Hamdi as such; and (5) that he be released.
The case eventually reached the Supreme Court of the United States in 2004, wherein the issue to be decided was, in effect, what process, if any, is constitutionally owed to a United States citizen who is detained as an “enemy combatant” of the United States, to challenge his designation as such. In other words, does Hamdi have due process rights to challenge his detention as an “enemy combatant”?
Can the President Detain Citizens As Enemy Combatants Under These Facts?
In a word, “yes.” Why is this even a question? Well, 18 U.S.C. s4001(a) provides that “no citizen shall be imprisoned or otherwise detained except as pursuant to an Act of Congress.” Here, the President/Secretary of Defense has ordered the detention of Hamdi as an “enemy combatant”—not Congress. However, recall that the AUMF explicitly authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he [President Bush] determined planned, authorized, committed, or aided the terrorist attacks.” Thus, the Supreme Court reasoned, the detention “pursuant to an Act of Congress.”
Can the Government Hold A Citizen Indefinitely?
Not without running afoul of the Geneva Convention and the Hague Convention. The “law of war” dictates that detention of enemy combatants may last only as long as active hostilities. After the cessation of active hostilities, prisoners of war are to be released “without delay.” Thus, the Government cannot legally hold a citizen or non-citizen as a prisoner of war indefinitely.
What Process is Due to Citizens Alleged to Be Enemy Combatants?
Ultimately, the Supreme Court of the United States held that a citizen-detainee being held as an “enemy combatant” can challenge his classification as such, and must “receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertion before a neutral decision-maker.” So, Hamdi is entitled to notice of the factual circumstances providing a basis for his classification by the Government as an “enemy combatant;” a fair opportunity to make his case against refuting such claims; and a neutral decision-maker to ultimately determine if such classification is justified. The standard born by the Government to prove Hamdi’s “enemy combatant” status must be greater than “some evidence.” The accused citizen-detainee must be afforded counsel.
Therefore, before the Government could continue to detain Hamdi it had to provide him with due process (notice, a fair hearing in front of a neutral magistrate/party, access to counsel.)
Shortly after the Court’s decision in June of 2014, Hamdi was released and returned to Saudi Arabia. The Pentagon stated “considerations of the United States national security did not require his continued detention.” An agreement was drafted wherein the United States agreed not to request Saudi Arabia to detain Hamdi upon his return, provided Hamdi agreed to travel restrictions, and—no joke—not to sue the United States government for wrongful imprisonment.