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Hamdi V. Rumsfeld

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Hamdi V. Rumsfeld No. 03-6696 IN THE Supreme Court of the United States __________ YASER ESAM HAMDI and ESAM FOUAD HAMDI, as Next Friend of Yaser Esam Hamdi, Petitioners, v. DONALD RUMSFELD, Secretary of Defense, et al., Respondents. __________ On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit __________ BRIEF OF WASHINGTON LEGAL FOUNDATION, U.S. REPRESENTATIVES JOE BARTON, WALTER JONES, AND LAMAR SMITH, AND ALLIED EDUCATIONAL FOUNDATION AS AMICI CURIAE IN SUPPORT OF RESPONDENTS __________ Daniel J. Popeo Thomas V. Loran Richard A. Samp William T. DeVinney Washington Legal Foundation (Counsel of Record) 2009 Massachusetts Ave., NW Pillsbury Winthrop LLP Washington, DC 20036 1133 Connecticut Ave., NW (202) 588-0302 Washington, DC 20036 (202) 775-9800 Date: March 24, 2004 QUESTIONS PRESENTED 1. Whether the President has authority as Commander in Chief and in light of Congress's Authorization for Use of Military Force, Pub.L.No. 107-40, 115 Stat. 224, to seize on a foreign battlefield and detain a United States citizen based on a determination by the American military that he is an enemy combatant who: affiliated with a Taliban military unit, received weapons training, and was captured when his Taliban unit surrendered to Northern Alliance forces with which it had been engaged in battle in Afghanistan. 2. Whether the appeals court provided Petitioner with an adequate hearing regarding the military's determination that he is an enemy combatant. iii TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................iv INTERESTS OF THE AMICI CURIAE .............. 1 STATEMENT OF THE CASE ..................... 2 SUMMARY OF ARGUMENT .................... 7 ARGUMENT .................................. 9 I. THE PRESIDENT’S COMMANDER-IN-CHIEF POWERS AUTHORIZE HIM TO DETAIN HAMDI AS AN ENEMY COMBATANT REGARDLESS OF HAMDI'S CITIZENSHIP .... 9 A. Hamdi's Alleged U.S. Citizenship Does Not Negate the President’s Authority to Detain Him as an Enemy Combatant ......................... 14 B. The President Is Not Required to Release Hamdi Now That He Is Outside the Field of Battle ...... 15 II. HAMDI HAS BEEN PROVIDED AN ADE- QUATE OPPORTUNITY TO CONTEST HIS DETENTION ............................. 17 CONCLUSION ............................... 24 iv TABLE OF AUTHORITIES Page Cases: Brown v. United States, 12 U.S. (8 Cranch) 110 (1814) ............. 11, 12, 13 Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956), cert. denied, 352 U.S. 1014 (1957) ............. 10, 14 Ex Parte Quirin, 317 U.S. 1 (1942) .......................... passim Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866) ...................... 16 Gilligan v. Morgan, 413 U.S. 1 (1973) ............................. 18 Hirabayashi v. United States, 320 U.S. 81 (1943) ............................. 9 Hirota v. MacArthur, 338 U.S. 197 (1948) ......................... 9, 13 In re Territo, 156 F.2d 142 (9th Cir. 1946) ............... 8, 14, 16 INS v. St. Cyr, 533 U.S. 289 (2001) ........................... 17 Johnson v. Eisentrager, 339 U.S. 763 (1950) ...................... 8, 10, 19 Kansas v. Crane, 534 U.S. 407 (2002) ........................... 22 Korematsu v. United States, 323 U.S. 214 (1944) ........................ 20, 21 Martin v. Mott, 25 U.S. (12 Wheat) 19 (1827) ................... 23 The Prize Cases, 67 U.S. (2 Black) 635 (1862) ................. 13, 18 v Page United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) ..................... 13, 18, 23 United States v. Macintosh, 283 U.S. 605 (1931) ............................ 9 United States v. Salerno, 481 U.S. 739 (1987) ........................... 22 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ........................... 10 Statutes and Constitutional Provisions: U.S. Const., art. I .............................. 18 U.S. Const., art. I, § 8 ........................... 12 U.S. Const., art. I, § 8, cl. 9 ...................... 12 U.S. Const., art. II ...................... 8, 10, 18, 23 U.S. Const., art. II, § 2 ......................... 7, 9 U.S. Const., art. III ............................. 18 Alien Enemy Act of 1798, ch. 66, § 1, 1 Stat. 577 (now codified at 50 U.S.C. § 21) ................. 12 Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001) ........ passim vi Page Miscellaneous: Michael Beattie and Lisa Yonka Stevens, An Open Debate on United States Citizens Designated as Enemy Combatants: Where Do We Go From Here?, 62 MD. L.REV. 975 (2003) ...................... 11 Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 .............. 11 Lieber Code of 1863 ............................ 11 Pamela Constable, "U.S. Launches New Operation in Afghanistan," Washington Post, March 14, 2004, at A22 ......................... 3 BRIEF OF WASHINGTON LEGAL FOUNDATION, U.S. REPRESENTATIVES JOE BARTON, WALTER JONES, AND LAMAR SMITH, AND ALLIED EDUCATIONAL FOUNDATION AS AMICI CURIAE IN SUPPORT OF RESPONDENTS __________ INTERESTS OF AMICI CURIAE The Washington Legal Foundation (WLF) is a non-profit public interest law and policy center with supporters in all 50 states.1 WLF devotes a substantial portion of its resources to promoting America's national security. To that end, WLF has appeared in this and numerous other federal and state courts to ensure that the United States government is not deprived of the tools necessary to protect this country from those who would seek to destroy it and/or harm its citizens. See, e.g., Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), cert. granted sub nom., Rasul v. Bush, No. 03-334 (U.S., dec. pending); Rumsfeld v. Padilla, No. 03-1027 (U.S. dec. pending); Sosa v. Alvarez-Machain, No. 03-339 (U.S., dec. pending); Demore v. Kim, 123 S. Ct. 1708 (2003); Zadvydas v. Davis, 533 U.S. 678 (2001). WLF also filed a brief in this matter when it was before the court of appeals. The Honorable Joe Barton, the Honorable Walter Jones, and the Honorable Lamar Smith are United States Representatives from Texas, North Carolina and Texas, respectively. They strongly support the efforts of the Executive Branch to protect the American people by taking 1 Pursuant to Supreme Court Rule 37.6, amici state that no counsel for a party authored this brief in whole or in part; and that no person or entity, other than amici and their counsel, contributed monetarily to the preparation and submission of this brief. The parties have consented to the filing of this brief; letters of consent have been lodged with the Court. 2 aggressive steps to defeat terrorist organizations that have declared war on the United States. All three supported the joint resolution adopted by Congress on September 18, 2001, Pub. L. 107-40, which authorized the President to use "all necessary and appropriate force" to defeat those organizations; they believe that the joint resolution unquestionably authorizes the President to detain enemy combatants (both citizens and aliens) who take up arms against the United States in support of those organizations. The Allied Educational Foundation (AEF) is a non-profit charitable foundation based in Englewood, New Jersey. Founded in 1964, AEF is dedicated to promoting education in diverse areas of study, such as law and public policy, and has appeared as amicus curiae in this Court on a number of occasions. Amici believe that one of the best protections our nation has against terrorist attacks is a strong Executive Branch possessing broad decision-making powers with regard to the war on terror, as contemplated by the framers of our Constitution. Specifically, when our military leaders determine that an individual should be detained as an enemy combatant, the Judiciary should show substantial deference to that decision. The Judiciary is ill-equipped to make independent findings as to matters of foreign policy, especially those involving overseas combat. Petitioner's citizenship entitles him to ask the courts to protect him from arbitrary or discriminatory detention; it does not entitle him to de novo review of military determinations. STATEMENT OF THE CASE Al Qaeda is a network of terrorist groups that has conducted attacks throughout the world. Those attacks had all 3 occurred outside of the United States until September 11, 2001, when al Qaeda coordinated the series of attacks on the United States that killed approximately 3,000 people. The President and Congress promptly responded to ensure that the United States would not be subject to further attacks. Congress declared that al Qaeda continued to represent an “unusual and extraordinary threat to national security,” and recognized that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” Authorization for Use of Military Force, Pub. L. No. 107-40, Sec. 2(a), 115 Stat. 224 (2001) (“AUMF”). Congress endorsed the President's use, in his capacity as Commander in Chief of the armed forces, of “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Id. The President thereafter ordered the United States military to enter Afghanistan to attack al Qaeda forces, as well as forces of the ruling Taliban which had supported and provided refuge for al Qaeda. The Afghanistan operation, named operation Enduring Freedom, began on October 7, 2001, and hostilities continue to this day.2 During the
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