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.
Due process 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.
This case arises out of the detention of Yaser Hamdi whom the Government alleges took up arms with the Taliban during the conflict. Born an American citizen, Hamdi moved with his family to Saudi Arabia as a child. In 2001, he was seized by members of the Northern Alliance 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. Upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Virginia, where he remained until a recent transfer to a brig in South Carolina.
Does the Executive have the authority to detain citizens who qualify as enemy combatants?
No, though 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 by given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.
Justice Scalia and Thomas
Scalia: Where the Government accuses a citizen of waging a war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. The problem with the Court’s approach is that it steps out of the courts’ modest and limited role in a democratic society and that by repeatedly doing what it thinks the political branches should do it encourages their lassitude and saps the vitality of government by the people. 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.
Thomas: The Executive’s detention of Hamdi falls squarely within the Federal Government’s war powers, and the Court lack the expertise and capacity to second-guess that decision. As such, petitioner’s challenge should fail. 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.
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. 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 instance, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. It is unlikely that the basic process will have the dire impact on the central functions of warmaking that the Government forecasts. Moreover, 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. Aside from unspecified screening processes, and military interrogations in which the Government suggests Hamdi could have contested his classification, Hamdi has received no process.