Creating Legal Rights for Suspected Terrorists: Is the Court Being Courageous or Politically Pragmatic?

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Boumediene v. Bush (1) continued the Supreme Court's quixotic quest to establish legal guidelines for the War on Terrorism, which George Bush waged--with the support of Congress--after al Qaeda's attacks of September 11, 2001. (2) A majority of Justices began their battle against the political branches five years ago in a pair of cases.

First, Hamdi v. Rumsfeld (3) invalidated the government's indefinite detention of "enemy combatants" (i.e., those who had engaged in armed conflict against the United States) who were American citizens. (4) The Court ruled that they had due process rights to notice and a hearing before an impartial decisionmaker, which might include a military tribunal. (5)

Second, Rasul v. Bush (6) concerned the President's decision to imprison alien enemy combatants in Guantanamo Bay, Cuba, which he had made in reliance upon entrenched precedent construing the federal habeas corpus statute as not extending jurisdiction to foreigners captured and confined abroad. (7) The Court creatively reinterpreted this statute to allow the Guantanamo detainees to file habeas petitions and purported to distinguish its previous contrary cases. (8)

In consultation with the executive branch, Congress swiftly responded by clarifying that its habeas law did not give any federal court jurisdiction over aliens incarcerated at Guantanamo (thereby overturning Rasul) and by establishing instead for these prisoners a multilayered process of military justice followed by federal judicial review. (9) Seeming to defy Congress, five Justices in Hamdan v. Rumsfeld (10) held that it had not repealed the Court's appellate jurisdiction over cases involving foreign enemy combatants or authorized their trial by military commissions. (11) Once again, Congress quickly made crystal clear that it had indeed intended to (1) deprive all federal courts (including the Supreme Court) of jurisdiction over habeas petitions from such detainees, and (2) empower the President to try them by military tribunals. (12)

Undaunted, the same five Justices who had formed the Hamdan majority recently reached the unprecedented conclusion in Boumediene v. Bush that the Constitution's writ of habeas corpus may be invoked by noncitizen enemy combatants who have been apprehended and detained outside of the United States' sovereign territory. (13) Accordingly, the Court struck down Congress's procedures for such detainees as a suspension of the constitutional habeas writ and as inadequate to protect due process rights. (14)

Legal scholars and pundits, who almost uniformly loathe George Bush and thus applauded the Hamdi, Rasul, and Hamdan decisions, praised the Boumediene Court for its "courage" in upholding individual liberties and the "rule of law" (15) against the assertedly unparalleled misconduct of the Bush administration, which had suffered another stunning "rebuke" that would force it to make significant policy changes. (16) Such claims seem implausible, for several reasons.

For one thing, the current Justices in general are not particularly bold or hell-bent on expansively protecting individual rights, especially as compared to their predecessors on the Warren and early Burger Courts. The Rehnquist and Roberts Courts have shown far greater restraint by: (1) cutting their annual docket in half; (2) frequently deciding cases on the narrowest possible grounds, thereby leaving many legal questions open and amenable to further democratic deliberation; and (3) refraining from creating far-reaching constitutional rights. (17) The "enemy combatant" cases depart from this cautious approach.

Moreover, the Court hardly promotes the rule of law by disingenuously "interpreting" statutes to mean the opposite of what they plainly say (as in Rasul and Hamdan), inventing new constitutional doctrines (as in Boumediene), and ignoring or distorting its precedent (as in all three cases). On the contrary, the rule of law presupposes that judges will impartially apply the written legal rules contained in the Constitution, statutes, and cases. (18)

Finally, the Court's repeated stern reprimands of President Bush and Congress had little real-world impact on their antiterrorism policies, which were not nearly as offensive as measures taken during previous wars. (19) Although the President and Congress always expressed respect for the Court, they did not implement the radical changes it likely hoped to spur.

In short, I am skeptical of the conventional wisdom that a uniquely brave Supreme Court, motivated by its steadfast commitment to the rule of law, successfully foiled the military policies of a singularly evil President and his legislative henchmen. Rather, I believe that five pragmatic Justices, animated by their personal and political disagreements with the Bush administration, capitalized on the relatively rare opportunity to give a legal lecture to a politically unpopular (but not especially bellicose) President and Congress at a time when a national security crisis had safely passed. I predict that when the next emergency arises (such as another terrorist attack), the Court will accede to whatever military retaliation the President deems appropriate--and will cite as support the precedent that it was careful to distinguish rather than overrule.

I base the foregoing conclusions on recurrent historical patterns, which reveal a flexible and politically sensitive approach to reviewing cases involving military affairs. (20) The Court has never entertained general claims that the formulation or implementation of military policy exceeded the powers of Congress under Article I or the President under Article II. More specific complaints that the exercise of war powers violated someone's individual legal rights have been judicially reviewed, but with far more deference to the government than in the domestic sphere.

The degree of deference, however, has depended upon the factual, legal, and political context of each case. The Court's discretion has been guided primarily by four interrelated factors: (1) the seriousness of the military crisis and the necessity for the President's responsive action; (2) whether or not Congress approved the President's conduct; (3) the egregiousness of the alleged violation of individual rights; and (4) the President's political strength, which if high enough might lead him to ignore a court order to desist from an action he has determined is essential to win a war whose outcome hangs in the balance. This last consideration is never publicly articulated but nonetheless can be crucial.

Application of these factors has always led the Court to decline to challenge politically powerful Presidents like Abraham Lincoln and Franklin Roosevelt who, with Congress's backing, addressed perilous national security threats--regardless of the individual rights at stake. (21) Even in less dire circumstances, however, the Justices usually have deferred to the President's judgment. (22) The Court has struck down war measures only in a few cases when a very unpopular President, such as Andrew Johnson or Harry Truman, unilaterally took a step that the Court found to be disproportionately drastic, invasive of fundamental legal rights, and unnecessary because the military crisis had ended. (23)

I predict that Boumediene and the other "enemy combatant" decisions will eventually be grouped in this latter category. The Court decided these cases when President Bush's approval ratings had hit historic lows, long after the September 11 emergency had passed and therefore Bush's continuation of his initial hard-line approach struck the majority as unnecessary--and inimical to basic liberty interests. (24) The only traditional factor for judicial intervention that has not been consistently present is the lack of congressional approval. On the one hand, the majority justified the Rasul and Hamdan holdings largely on their conclusion that Congress had not authorized President Bush's action. (25) On the other hand, in Hamdi and Boumediene the Court acknowledged such legislative authorization, yet struck down the President's actions as unconstitutional--a result that had never occurred before. (26)

One possible explanation for the novelty of Hamdi and Boumediene is that the Court found itself in a historically unique situation which allowed it to defy both political branches with relative impunity, for two reasons. (27) First, by 2008 the approval rating of Congress had dropped to twelve percent, even lower than George Bush's twenty-six percent. (28) Second, the Justices who decided Boumediene knew that there would be a new President elected five months later, and both candidates had pledged to make major changes in detainee policy (including possibly shutting down Guantanamo). Thus, the lame-duck President Bush could not effectively retaliate against the Court, especially given voters' overriding concern with the sinking economy. (29) Under these unusual circumstances, it would be a mistake to characterize the recent "enemy combatant" cases as heralding a permanent shift to fearless, aggressive judicial oversight of military decisions.

The foregoing ideas will be developed in three parts. Part I will summarize the Court's pragmatic, case-by-case approach to judicial review of war powers. Part II will analyze the Court's recent War on Terrorism decisions, with a special emphasis on Boumediene. Part III will suggest that these cases eventually will be seen as aberrational, not a harbinger of a Brave New World of increased judicial micromanagement of military policy. (30)

I. JUDICIAL REVIEW OF THE EXERCISE OF WAR POWERS

A. The Constitutional Scheme

The Constitution does not explicitly mention judicial review, much less say how it should be exercised in evaluating claims that Congress or the President acted unconstitutionally in taking war measures. Nonetheless, many clauses in the Constitution, read in light of its underlying structure and political theory, suggest that the judiciary would play an extremely circumscribed role in examining military actions.

The Constitution's Framers and ratifiers understood that it established a heavy presumption favoring judicial review, because only independent Article Ill courts could impartially ascertain whether political officials had observed the written constitutional limits on their powers and had not transgressed individual legal rights. (31) This presumption could be rebutted, however, on a showing that particular constitutional provisions entrust Congress or the President with exclusive and conclusive power to interpret and enforce them. (32)

The latter "political questions" included the making, execution, and evaluation of military and foreign policy. The Constitution commits these powers solely to Congress and the President, who have the democratic authority, political incentives, and institutional competence to protect national security. (33) Under Article I, Congress can provide for the common defense; (34) authorize military action (by a declaration of war or other means); (35) establish, fund, and regulate the armed forces; (36) suspend the writ of habeas corpus "when in Cases of Rebellion or Invasion the public Safety may require it"; (37) and oversee the executive branch's conduct of war. (38) Article II vests in the President all "executive Power" (39) (to administer federal statutes, including those related to the military) and designates him "Commander in Chief' (to direct the army and navy). (40) Moreover, Article II implicitly allows the President to respond independently to military emergencies (41) because, unlike the multimember and slow-moving legislature and judiciary, he can take quick and decisive action based on the advice of his expert subordinates who have access to confidential military and foreign intelligence. (42)

Article III does not give the judiciary any role in authorizing or conducting war. (43) Therefore, challenges to military decisions solely on the ground that they did not comply with Articles I or II are not justiciable. (44) The only situation in which judicial intervention might be appropriate would be where the exercise of war powers allegedly violated individual legal rights. Unfortunately, nothing in either the Constitution or its drafting and ratification history explicitly reveals whether such claims should be dismissed as political questions, examined through ordinary domestic-style judicial review, or analyzed through a compromise approach of exercising jurisdiction but showing great deference to the political branches. The Supreme Court wisely chose the latter course. (45)

B. Jurisprudence on War Powers

The Marshall Court simultaneously asserted the power of judicial review while recognizing its inapplicability to the military decisions of Congress and the President, which generally concerned the nation as a whole and therefore were subject to scrutiny only through the national political process. (46) Ever since, the Court has reaffirmed this "political question" analysis. (47) The only exceptions have arisen in a few cases in which plaintiffs credibly alleged that a particular exercise of war powers breached a legal duty in a way that violated their individual legal rights. (48) Even in these instances, however, the Court typically has resolved all doubts in favor of the validity of the government's action. (49) The precise degree of deference, however, has varied depending upon the facts and political background of each case. Although the Court's idiosyncratic decisionmaking cannot be reduced to any simple formula, four factors have been particularly influential. (50)

First, the Justices evaluate the severity of the military emergency and the need for the government's particular retaliatory action. For instance, the Court has accorded Presidents virtual carte blanche in dealing with nation-threatening crises, but less leeway in addressing comparatively smaller conflicts. (51)

Second, regardless of the magnitude of the military operation, the Court until 2004 always sustained the President when he acted with explicit congressional authorization. (52) When the President has proceeded unilaterally, however, the Court has been more willing to check him. (53)

Third, the Justices assess the egregiousness of the alleged invasion of individual legal rights. Unfortunately, this criterion is so protean that its application amounts to a gut call, as illustrated by the Court's contradictory conclusions about the procedures owed to enemy combatants. (54)

Fourth, the Court considers the President's political strength--in particular, whether he enjoys such widespread popular and congressional support in waging a major war that he might ignore a judicial order that, in his opinion, endangers national security. (55) This calculation is nakedly political and hence is made sub rosa, but nonetheless has loomed large in several cases.

The foregoing combination of factors usually leads the Court to uphold the government's action, but there have been important exceptions. These cases reveal the heavily discretionary nature of judicial review of military decisions.

1. Cases Sustaining the Government's Exercise of War Powers

The Civil War era set enduring precedent for deferring to Presidential actions during wartime. Most notably, in The Prize Cases, (56) the Court sustained Lincoln's April 1861 order, which he had issued on his own in response to the attack on Fort Sumter, to blockade Confederate ports and seize all offending merchant vessels and their cargoes--even from shipowners who were unaware of the blockade--despite their claims of unconstitutional deprivation of their property without due process. (57) A majority of Justices held that Article II gives the President, as Commander in Chief, unreviewable political discretion to determine the appropriate degree of force required by the crisis, such as the blockade and accompanying deployment of warships. (58) Moreover, the absence of congressional preauthorization for this specific action did not trouble the Court because (1) existing federal statutes broadly empowered the President to use the military to suppress domestic insurrections, and (2) Congress remedied any possible constitutional problems with Lincoln's order by ratifying it retroactively. (59) Similarly, in Ex parte Vallandigham, (60) the Court rejected a due process challenge to a sentence imposed by an army tribunal constituted pursuant to instructions approved by Lincoln. (61) The Court declared that it could not "review or pronounce any opinion upon the proceedings of a military commission" (62) or any other executive branch wartime judgments. (63)

One reason for the Court's surrender was that Lincoln, at the war's outset, had made it clear he would defy judicial orders that he determined might endanger the military effort--and hence the United States' entire constitutional form of government. Lincoln independently asserted astonishingly broad powers in addition to the blockade, such as suspending the writ of habeas corpus. (64) Especially concerned that Maryland would secede (thereby cutting off Washington from the Northern states), Lincoln directed U.S. Army officials to throw Confederate sympathizers in military prisons. (65) One of them, John Merryman, filed a habeas writ to the appropriate Circuit Court, where Chief Justice Taney sat. (66) Taney ruled that Lincoln had violated his oath to faithfully execute the law by usurping the Article I power of Congress to suspend habeas corpus and the judiciary's Article III power to determine whether a private citizen had been detained in violation of the Due Process Clause. (67)

Lincoln ignored Taney's order. Instead, in an address to Congress, he argued that the Constitution implicitly conferred on the President all powers necessary to preserve the Union. (68) In 1863, Congress retroactively endorsed Lincoln's suspension of habeas. (69)

Furthermore, Lincoln carried out his pre-election pledge to refuse to follow the Court's constitutional interpretation in Dred Scott v. Sandford (70) that the federal government could not interfere with state power over slavery. (71) Indeed, he audaciously claimed that the President as Commander in Chief could unilaterally emancipate millions of slaves in rebellious areas, even though such a sweeping policy determination appeared to be legislative in nature. (72)

Overall, Lincoln established that a strong President can disregard explicit and critical constitutional provisions--and their interpretation by federal courts--if he concludes that doing so is necessary to meet a serious military crisis and Congress approves his action (even after it was taken). (73) Woodrow Wilson learned this lesson well, as he successfully suppressed freedom of expression and other constitutional rights during World War I. (74)

The pattern continued during World War II. The Court repeatedly caved in to Franklin Roosevelt's assertions (often supported by weak or nonexistent evidence) that military necessity justified his seemingly plain violations of constitutional rights and liberties. Three cases illustrate this abdication.

First, in Ex parte Quirin, (75) a unanimous Court initially construed an ambiguous federal statute as empowering the President to use his own military commissions to try enemy combatants accused of violating the laws of war. (76) The Court then upheld a commission's sentence of capital punishment against Nazi spies (including an American citizen) who had snuck into the United States, and rejected their argument that the Constitution guaranteed their right to a trial in civilian court with ordinary procedural protections. (77) The Quirin opinion does not mention that Roosevelt had garnered overwhelming public support in this matter and that he had used back channels to let the Justices know he intended to execute the saboteurs even if the Court reached a contrary decision. (78)

Second, in Korematsu v. United States, (79) the Court sustained an executive order (approved by Congress) excluding Americans of Japanese descent from the West Coast to prevent sabotage and espionage, despite the serious infringement of their Fourteenth Amendment rights to liberty and equality. (80) Even though it turned out that the political branches had no credible evidence that Japanese Americans were treacherously disloyal, the Court stressed that it could not in hindsight say that the actions taken during the emergency after Pearl Harbor were unjustified. (81)

Third, Roosevelt seized over sixty plants where labor disputes and other problems had impeded the war effort. (82) The Court waited until the end of hostilities to consider legal challenges to these seizures, then dismissed the cases as moot. (83)

In all these decisions, the Court recognized that it could not realistically prevent Roosevelt--a remarkably popular President who acted with enthusiastic congressional approval--from taking any steps he deemed essential to win World War II, which imperiled not only the United States but all democracies. (84) Under these extreme circumstances, it is likely that Roosevelt would have successfully ignored any Court order to desist. (85)

Even after World War II ended, however, the Court almost always continued to defer to the political branches' military decisions. For instance, it sustained the President's power to convene military commissions to try alien enemies in In re Yamashita (86) and Brandt v. United States (87)--and even noncombatant American citizens in certain cases, like Madsen v. Kinsella. (88) Most pertinently, Johnson v. Eisentrager (89) held that Article III courts did not have jurisdiction, under either the federal habeas statute or the constitutional provision that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it," to hear a petition from a nonresident enemy alien who had been captured in China, convicted there of war crimes by an American military commission, and transferred to a United States military prison in Germany. (90) Citing a long and unbroken line of precedent, the Court declared: "Executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security." (91) The Court warned that permitting federal judges to extend habeas corpus beyond their territorial jurisdiction would hamper the war effort and help our enemies by imposing major risks and costs (particularly in transporting and caring for detainees and their witnesses), undercutting the authority of commanding officers and distracting them, and causing friction between the judiciary and the military. (92) Therefore, the Court declined to review the proceedings of the military tribunal--an institution with longstanding authority to adjudicate violations of the law of war. (93)

Interestingly, even the Warren Court did not second-guess the President's military decisions, but rather confined its liberal constitutional revolution to the domestic sphere. (94) Indeed, in the half-century following Chief Justice Warren's ascension to the bench in 1954, the Court never invalidated an exercise of war powers. (95)

In sum, in every historical era, the Court typically has acceded to the President's exercise of war powers. Such deference always has been shown when a politically strong President, backed by Congress, responded to a military emergency--regardless of how seriously he infringed individual legal rights. Even in less dire circumstances, however, the Court has been inclined to yield to the political branches' military decisions.

2. Cases Invalidating the President's Exercise of War Powers

Occasionally, however, the Court has departed from its deferential posture. Such cases invariably have involved a politically vulnerable and unpopular President who unilaterally took a disproportionately drastic action, after a military crisis had passed, that egregiously invaded constitutional rights.

The landmark decision is Ex parte Milligan, (96) issued the year after the Civil War had ended. The Court granted a writ of habeas corpus to an Indiana citizen who had been sentenced to death by a military commission for conspiracy against the federal government, reasoning that he deserved an ordinary jury trial because he had never been a soldier and the civilian courts had always remained open. (97) The Court asserted: "The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." (98) Because this soaring rhetoric so obviously conflicted with the Court's recent abdication in constitutional cases (including those involving military tribunals), it frankly admitted:

   During the late wicked Rebellion, the temper of the times did not
   allow that calmness in deliberation and discussion so necessary to
   a correct conclusion of a purely judicial question. Then,
   considerations of safety were mingled with the exercise of power;
   and feelings and interests prevailed which are happily terminated.
   Now that the public safety is assured, this question, as well as
   all others, can be discussed and decided without passion or the
   admixture of any element not required to form a legal judgment. (99)

The Court did not mention that Andrew Johnson had no political capital to spend on a fight with the judiciary. A Southern Democrat who had remained loyal to the Union and was selected Vice President by the Republican Lincoln as a conciliatory gesture, Johnson assumed office upon Lincoln's assassination and quickly became embroiled in a bitter struggle over Reconstruction with the dominant Radical Republicans in Congress, which culminated in his impeachment. (100)

Alas, the Court's newfound commitment to defend the Constitution "at all times, and under all circumstances" lasted less than a year, when it began to capitulate to constitutionally dubious Reconstruction legislation. (101) The conclusion seems inescapable that the Justices realized that they could defy the politically vulnerable Johnson, but not the powerful Congress. Moreover, in World Wars I and II the Court proved itself wholly unable to fulfill its promise in Milligan to render purely "legal judgment[s]" protecting constitutional rights after "calmness in deliberation" when military emergencies threatened "public safety" and excited passionate "feelings and interests." (102)

Again, however, after World War II the Court carefully chose a few cases to reassert some role for the judiciary. (103) Most notably, in Youngstown Sheet & Tube Co. v. Sawyer, (104) six Justices denied Harry Truman's claim of Article II power to unilaterally seize and operate American steel mills, threatened with closure by a labor strike, to ensure production of arms and materials for the Korean War. (105) The Court emphasized that Truman had not demonstrated that the military situation was so urgent as to warrant his draconian response (taking private property domestically without providing due process or just compensation), especially since he had not received specific congressional permission. (106)

Justice Jackson focused on this latter consideration in his famous concurring opinion, which set forth a flexible, contextual approach to war powers featuring three major categories. (107) First, he posited that if the President acts pursuant to legislative authorization, the strongest possible presumption of constitutionality arises, rebuttable only upon the exceedingly difficult showing that the federal government as a whole lacks power. (108) Second, when Congress is silent, the President's disputed assertion of power would be resolved politically. (109) Third, "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress...." (110) Justice Jackson placed the steel seizure in the third category and concluded that Truman had not demonstrated the requisite exclusive constitutional power. (111) As Chief Justice Vinson and two other dissenters pointed out, however, several generally worded federal statutes and Article II empowered the President to do anything he deemed necessary to wage war successfully (including the seizure of property), and the Court had repeatedly upheld similar executive actions during wartime. (112)

The dissenters' legally persuasive argument suggests that unspoken pragmatic considerations influenced the majority's judgment. The political reality was that by 1952 Americans were tired of war, Truman had become one of the most unpopular Presidents in history, and he did not have the political resources or incentives to stand up to the Court. (113) The majority also must have thought that Truman's wholesale takeover of a major American industry--a serious invasion of Fifth Amendment rights--could not be justified because the relatively minor conflict in Korea lacked the same urgency and magnitude of World War II or the Civil War.

In sum, the Court can cite cases like Milligan and Youngstown when it wishes to strike down the President's exercise of military powers. Such opinions provide legal cover for kicking weak Presidents when they're down.

3. Summary

The Court has adopted a practical approach to judicial review in the military context, which consists of a complicated weighing of various legal and political factors in light of the facts and circumstances of each case. Unlike in the domestic sphere, the Court does not simply substitute its interpretation of the Constitution for that of the political branches, but rather accords their views far more respect. (114) The result is that, in the vast majority of decisions, the Court either has deemed the exercise of war powers to be a political question (as in The Prize Cases, Vallandigham, and Eisentrager) or has asserted jurisdiction but deferred to the President, despite his infringements on individual constitutional rights (for example, Quirin and Korematsu).

Sometimes, however, the Court has seized unique opportunities (invariably when the President is politically weak) to announce legal limits on military authority. Such decisions, however, have never signaled a lasting shift to aggressive judicial checking of the political branches. Rather, they recede into the mists when the next emergency hits. This historical background should be kept in mind when examining the recent cases involving alleged terrorists.

II. FIGHTING AND LITIGATING THE WAR ON TERRORISM

Al Qaeda's September 11 attacks triggered a forceful response by President Bush and Congress, which in turn precipitated a host of legal challenges. The Court has tried to set limits on the political branches while leaving them enough discretion to wage the War on Terrorism.

On September 18, 2001, Congress in its Authorization for Use of Military Force (AUMF) empowered the President to use "all necessary and appropriate force" against those who planned, committed, or aided the terrorist attacks. (115) Relying upon both that statute and Article II, George Bush swiftly sent armed forces to Afghanistan (which had actively supported al Qaeda) and stepped up antiterrorism efforts. (116) Most significantly, he asserted power to indefinitely detain anyone he determined was an "enemy combatant" and, at his option, to try such persons by military commissions appointed by the Secretary of Defense. (117)

In four habeas corpus cases brought by such enemy combatants, the Court held that the President had exceeded his authority under either statutes or the Constitution in a way that violated individual legal rights. (118) A critical examination of these decisions reveals legal reasoning that is so strained as to invite the conclusion that practical and political considerations generated the results. The proposed four-factor analysis helps to make sense out of the Court's cases.

A. Hamdi: The Due Process Rights of Citizen Detainees

Hamdi v. Rumsfeld considered a habeas corpus petition brought by an American citizen who had been captured in Afghanistan by American troops. (119) The government accused Hamdi of fighting with the Taliban, designated him an "enemy combatant," and detained him indefinitely at several military prisons (most recently, one in South Carolina). (120) Hamdi's father claimed that his son had gone to Afghanistan to do "relief work." (121)

In an opinion by Justice O'Connor, the Court initially noted that Hamdi was covered by a 1971 statute prohibiting the United States from detaining any citizen "'except pursuant to an Act of Congress.'" (122) The majority found such authorization in the AUMF's "all necessary and appropriate force" language, which implicitly included the President's long-recognized power to imprison enemy combatants--even citizens--for the duration of an armed conflict. (123)

Nonetheless, the Court ruled that the Due Process Clause gave citizen-detainees the right to receive notice of the factual basis for their classification and a fair opportunity to rebut the government's assertions before a neutral decisionmaker (124)--which might take the form of an impartial, "appropriately authorized" military tribunal. (125) The majority rejected the originalist argument of Justices Scalia and Stevens that Hamdi, as an American citizen, had a constitutional right to a criminal trial in an Article III court with full procedural and evidentiary protections. (126) Justice O'Connor concluded that such elaborate proceedings would undermine the government's legitimate interests in avoiding disclosure of military secrets, preventing the diversion of military officers from their duties, and precluding enemy soldiers from returning to take up arms against America. (127) The Court declared that its compromise approach balanced the judiciary's "time-honored and constitutionally mandated roles of reviewing and resolving [individual rights] claims" (128) with sensitivity to the executive's superior competence over military affairs. (129)

In dissent, Justice Thomas maintained that the Court should have limited its inquiry to determining whether Article II and the AUMF had authorized the President to detain enemy combatants. (130) Having decided that question in the affirmative, the Court should have declined to second-guess the President's judgment--committed to him alone by the Constitution--that Hamdi was in fact an enemy combatant who deserved detention to protect the public. (131)

This dissent had ample support in presidential practice …