Laws of War

• Author: International Law Group

Yaser Esam Hamdi was born in the U.S. but moved to Saudi Arabia as a child. He was captured during the U.S. military operations in Afghanistan in the aftermath of the September 11, 2001, terrorist attacks. Designated as an "enemy combatant," the U.S. is currently holding him in Norfolk, Virginia, because he may have retained his American citizenship.

Hamdi's father then petitioned for a writ of habeas corpus under 28 U.S.C. Section 2241, alleging that his confinement was violating federal law. The district court required the Government to produce materials regarding Hamdi's enemy combatant status. In response, the Government submitted the "declaration" of a "special advisor." The district court then certified for interlocutory appeal the question of whether a Defense Department special advisor's declaration setting forth the Government's view of the capture was enough by itself to justify the detention.

On January 8, 2003, a panel of the U.S. Court of Appeals for the Fourth Circuit reversed the district court and remanded with directions to dismiss the petition. Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003). The Court held that the parties are at odds on whether U. S. forces had captured Hamdi in a zone of active combat in a foreign theater. Hence, the advisor's declaration is enough of a basis to conclude, the panel thought, that the government was constitutionally detaining Hamdi pursuant to the war powers entrusted to the President as Commander-in-Chief. Five months later, the Fourth Circuit denies a panel rehearing or a rehearing en banc. [Nevertheless, the decision includes a variety of different voices and comments, as well as a long dissent.]

One concurring judge states the issue as "whether the U.S. can capture and detain prisoners of war without subjecting the factual circumstances surrounding foreign battlefield seizures to extensive in-court review." The answer to this question, in this case as well as traditionally under Articles I and II of the Constitution, is "yes." To give prisoners of war the right to litigate their detentions in U.S. courts would restrict the executive branch of the Government more than had been the case before September 11 and would exceed the powers of the judicial branch. Also, for purposes of this case, the concurring judge considers the distinction between "prisoner of war" and "unlawful combatant" irrelevant as the decision to detain such individuals is an executive one.

Another concurring judge...