In response to a terrorist’s attack on the U.S in 2001, Congress authorized President to “use all necessary and appropriate force against those nations” or organizations, he determines aided the terrorist attacks. The President then ordered U.S Armed Forces to subdue al Qaeda and quell the Taliban regime in Afghanistan. Yaser Esam Hamdi, born an American citizen, but resided in Afghanistan was captured and turned over to the U.S military. The Government called him an “enemy combatant” and detained him without formal charges or proceedings.
A citizen detainee has a right under the Due Process Clause to contest the factual basis before a court.
In response to the al Qaeda terrorist’s hijacking of airliners to attack the U.S in 2001, Congress passed a resolution authorizing the President to “use all necessary and appropriate force against those nations” or organizations, he determines aided the terrorist attacks. The President then ordered U.S Armed Forces to subdue al Qaeda and quell the Taliban regime in Afghanistan. Yaser Esam Hamdi, born an American citizen, but resided in Afghanistan was captured and turned over to the U.S military. The Government alleges that he aided the Taliban during the conflict and Hamdi, that he is an “enemy combatant” and that this status justifies holding him in the U.S indefinitely without formal charges or proceedings. The Government argues that no explicit congressional authorization is needed, because the Executive possesses plenary power to detain under Article II of the Constitution.
Does the Executive have the authority to detain citizens who qualify as “enemy combatants?”
No. While Congress authorized the detention of combatants in the narrow circumstances at issue, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to receive notice of the factual basis for his classification and a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker.
Whether the attacks September 11, 2001, constitute an “invasion” and whether those attacks justify suspension several years later, are questions for Congress, not this Court. If civil rights such as due process are to be limited during wartime, it must be done openly and democratically, as the Constitution requires, rather than by the silent opinion of the Court.
The Government’s asserted authority to detain an individual that the President has determined to be an enemy combatant comports with the Due Process Clause. The President’s decision that a detention is necessary to protect the public need not and should not be subjected to judicial second-guessing. This would erode the unity and secrecy the Founding Fathers believed to be so important to the warmaking function.
Hamdi’s detention is forbidden by the Non-Detention Act, which provides that “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” A reasonable balance between security and liberty is more likely to be reached by Congress. However, the Government has failed to justify holding him in the absence of further Act of Congress, criminal charges, or a showing that the detention conforms to the laws of war.
The Government and Hamdi have both legitimate concerns. The Government asserts that it needs the autonomy to pursue effectively a particular goal during a time of conflict and that respect for separation of powers and the limited judicial capabilities in matters of military decision-making during an ongoing conflict should eliminate any individual process. Hamdi asserts this Court has recognized due process whether or not the Executive’s asserted justifications for detention have merits.
The proper, ordinary mechanism the Court has used for balancing such serious competing interests, comes from Mathews. 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 interest and burdens. Hamdi’s private interest in being free from physical detention is the most element of liberty interests. Such interest is not offset by the circumstances of war. Moreover, history and common sense demonstrate that an unchecked system of detention carries the risk of oppressing and abusing others who do not present an immediate threat to the national security. While the weighty and sensitive governmental interests do have merits, the basic due process will unlikely have the dire impact on the central functions of warmaking that the Government forecasts.