Hamdi Decision

In a significant victory for the Bush Administration's prosecution of the War on Terrorism abroad, the Fourth Circuit Court of Appeals on January 8 dismissed the habeas corpus petition of Yaser Hamdi, an apparent American citizen who had been captured among Taliban forces in Afghanistan and is detained at a military prison in Virginia.

The precise question was how much evidence the President must provide to support his designation of Hamdi as an "enemy combatant." The court gave some significance to a declaration that the government had submitted describing Hamdi's capture and detention, but it essentially held that the government need provide no evidence, and a detainee may offer no rebuttal, where-as in Hamdi's case-it is undisputed that he was captured abroad in a zone of combat.

Given this undisputed predicate, there was no cause to question the President's designation. Thus, it was irrelevant what Hamdi had been doing in the zone of combat, whether he was a lawful or unlawful combatant, whether he was an American citizen, and where he was being detained. The Fourth Circuit's refrain was that, by limiting judicial inquiry to the existence of this predicate, it was exercising a deference mandated by the hazards of and obstacles to probing battlefield incidents and by the critical, constitutional powers of the President and Congress to vindicate the collective right of self-defense.

But the court also limited its decision. First, it expressly avoided the case of Jose Padilla, by distinguishing the question of enemy combatants captured outside a zone of combat or within the United States-even as it relied on In re Quirin, in which the Supreme Court had upheld detention of German soldiers captured in the U.S. Second, the court arguably left an opening for closer judicial review of enemy-combatant designations in wars, unlike the present one, that the President conducts without some form of congressional approval. Finally, the Fourth Circuit avoided the thorny question whether, and how, a court could determine that hostilities had ceased, making such a detention no longer lawful, explaining that hostilities in Afghanistan plainly had not ceased.

Please click HERE to read the opinion.