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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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YASER ESAM HAMDI; ESAM FOUAD

HAMDI, as next friend of Yaser

Esam Hamdi,

Petitioners-Appellees,

DONALD RUMSFELD; W. R. PAULETTE,

Commander,

Respondents-Appellants.

RUTH WEDGWOOD, Professor of Law,

Yale University Law School, and

Edward B. Burling Professor of

International Law and Diplomacy,

Johns Hopkins University; SAMUEL

ESTREICHER, Professor of Law, NewNo. 02-7338

York University School of Law;

RONALD ROTUNDA, George Mason

University Foundation Professor of

Law, George Mason University

School of Law; DOUGLAS W. KMIEC,

Dean & St. Thomas More Professor

of Law, Catholic University; DAVID

B. RIVKIN, JR.; LEE A. CASEY; DARIN

R. BARTRAM;

Amici Curiae in support of

Appellants.

CENTER FOR CONSTITUTIONAL RIGHTS;

RICHARD L. ABEL, Connell Professor

of Law, University of California at

Los Angeles; WILLIAM J. ACEVES,

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Professor of Law, California

Western School of Law; BRUCE A.

ACKERMAN, Sterling Professor of

Law & Political Science, Yale

University; LEE A. ALBERT,

Professor of Law, University at

Buffalo Law School, The State

University of New York; BARBARA

BADER ALDAVE, Loran L. Stewart

Professor of Corporate Law,

University of Oregon School of

Law; ALICIA ALVAREZ, Clinical

Associate Professor of Law, DePaul

University School of Law; DIANE

MARIE AMANN, Professor of Law,

University of California, Davis,

School of Law; MICHELLE J.

ANDERSON, Associate Professor of

Law, Villanova University School

of Law; FRAN ANSLEY, Professor of

Law, University of Tennessee

College of Law; ELVIA R. ARRIOLA,

Associate Professor of Law,

Northern Illinois University College

of Law; FRANK ASKIN, Professor of

Law and Robert Knowlton Scholar,

Rutgers School of Law at Newark;

MILNER S. BALL, Caldwell Professor

of Constitutional Law, University of

Georgia School of Law; JON BAUER,

Clinical Professor of Law and

Director, Asylum & Human Rights

Clinic University of Connecticut

School of Law; PAUL SCHIFF

BERMAN, Associate Professor,

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University of Connecticut School of

Law; CYNTHIA BOWMAN, Professor

of Law, Northwestern University

School of Law; MARK S. BRODIN,

Professor of Law, Boston College

Law School; BARTRAM S. BROWN,

Professor of Law, Chicago-Kent

College of Law, Illinois Institute of

Technology; SUE BRYANT, Director

of Clinical Education and Associate

Professor of Law, CUNY School of

Law; BURTON CAINE, Professor of

Law, Temple University School of

Law; EMILY CALHOUN, Professor of

Law, University of Colorado School

of Law; ANUPAM CHANDER, Acting

Professor of Law, University of

California, Davis, School of Law;

ERWIN CHEMERINSKY, Sydney M.

Irmas Professor of Public Interest

Law, Legal Ethics and Political

Science, University of Southern

California Law School; PAUL G.

CHEVIGNY, Joel S. and Anne B.

Ehrenkranz Professor of Law, New

York University Law School; PAUL

CHILL, Clinical Professor of Law,

University of Connecticut School of

Law; GABRIEL J. CHIN, Rufus King

Professor of Law, University of

Cincinnati College of Law; CAROL

CHOMSKY, Associate Professor of

Law, University of Minnesota Law

School; MARGARET CHON, Associate

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Professor of Law, Seattle University

School of Law; MARJORIE COHN,

Associate Professor of Law,

Thomas Jefferson School of Law,

San Diego; ROBIN MORRIS COLLIN,

Professor of Law, University of

Oregon School of Law; DENNIS E.

CURTIS, Clinical Professor of Law,

Yale Law School; ERIN DALY,

Associate Professor of Law,

Widener University; MICHAEL H.

DAVIS, Professor of Law, Cleveland

State University; MICHAEL DEUTSCH,

Adjunct Professor of Law,

Northwestern University School of

Law; LAURA DICKINSON, Associate

Professor, University of Connecticut

School of Law; ROBERT DINERSTEIN,

Associate Dean and Professor of

Law, American University,

Washington College of Law; JANE

DOLKART, Associate Professor of

Law, Dedman School of Law,

Southern Methodist University;

SHARON DOLOVICH, Acting Professor

of Law, University of California at

Los Angeles; DOUGLAS L. DONOHO,

Professor of Law, Nova

Southeastern University, Shepard

Broad Law Center; DOLORES

DONOVAN, Professor of Law,

University of San Francisco School

of Law; MARY L. DUDZIAK, Judge

Edward J. and Ruey L. Guirado

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Professor of Law and History,

University of Southern California

Law School; Visiting Research

Scholar, Woodrow Wilson School

of Public and International Affairs,

Princeton University; PAMELA

EDWARDS, Assistant Professor of

Law, CUNY School of Law; NANCY

EHRENREICH, Associate Professor of

Law, University of Denver College

of Law; ROSA EHRENREICH BROOKS,

Associate Professor of Law,

University of Virginia School of

Law; J. SOFFIYAH ELIJAH, Clinical

Instructor, Criminal Justice Institute,

Harvard Law School; SUSAN J.

FEATHERS, Esq., Director, Public

Service Program, University of

Pennsylvania Law School; MARVIN

FEIN, Associate Professor,

University of Pittsburgh School of

Law; TODD D. FERNOW, Professor of

Law, Director, Criminal Clinic,

University of Connecticut School of

Law; SALLY FRANK, Professor of

Law, Drake University School of

Law; KATHERINE FRANKE, Professor

of Law, Columbia University; ERIC

M. FREEDMAN, Professor of Law,

Hofstra University School of Law;

NIELS W. FRENZEN, Clinical

Assistant Professor of Law,

University of Southern California;

CRAIG B. FUTTERMAN, Assistant

Clinical Professor of Law,

------------------------------------------------*

University of Chicago Law School;

KRISTIN BOOTH GLEN, Dean and

Professor of Law, CUNY School of

Law; BRIAN GLICK, Associate

Clinical Professor of Law, Fordham

Law School; HOWARD A.

GLICKSTEIN, Dean and Professor of

Law, Touro Law School; PHYLLIS

GOLDFARB, Professor of Law,

Boston College Law School; BOB

GOLTEN, Director, International

Human Rights Advocacy Center,

University of Denver; CARLOS E.

GONZALEZ, Associate Professor of

Law, Rutgers School of Law -

Newark; Visiting Associate

Professor of Law, Santa Clara

University School of Law; KENNETH

W. GRAHAM, JR., Professor of Law,

University of California at Los

Angeles; ARIELA GROSS, Professor of

Law & History, The Law School,

University of Southern California;

LOUISE HALPER, Professor of Law,

Washington & Lee University

School of Law; JOEL F. HANDLER,

Richard C. Maxwell Professor of

Law and Professor of Policy

Studies, School of Public Policy

and Social Research, University of

California at Los Angeles; SIDNEY

L. HARRING, Professor of Law,

CUNY Law School; VIRGINIA

HENCH, Associate Professor of

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Criminal Law & Procedure & Civil

Rights, University of Hawaii -

Manoa; KATHY HESSLER, Professor,

Case Western Reserve University

School of Law; JUDITH L. HOLMES,

Assistant Professor of Legal

Studies, University of Massachusetts

- Amherst; WYTHE W. HOLT, JR.,

University Research Professor of

Law, University of Alabama School

of Law; JOAN HOWARTH, Professor

of Law, University of Nevada, Las

Vegas; MARSHA HUIE, Professor of

Law, The University of Tulsa

College of Law; ERIC S. JANUS,

Professor of Law, William Mitchell

College of Law; PAULA C. JOHNSON,

Associate Professor of Law,

Syracuse University College of

Law; JOSE R. JUAREZ, JR., Professor

of Law, St. Mary's University

School of Law; DAVID KAIRYS,

James E. Beasley Professor of Law,

Beasley School of Law, Temple

University; YALE KAMISAR, Clarence

Darrow Distinguished University

Professor of Law, University of

Michigan; JERRY KANG, Professor of

Law, University of California at

------------------------------------------------*

Los Angeles; LEWIS R. KATZ, John

C. Hutchins Professor of Law, Case

Western Reserve University Law

School; EILEEN KAUFMAN, Professor

of Law, Touro Law School;

MICHAEL J. KELLY, Assistant

Professor, Creighton University

School of Law; RANETA LAWSON

MACK, Professor of Law, Creighton

University School of Law; DAVID P.

LEONARD, Professor of Law and

William M. Rains Fellow, Loyola

Law School, Los Angeles; JOHN

LEUBSDORF, Professor of Law,

Rutgers Law School-Newark;

MARTIN L. LEVY, Professor,

Thurgood Marshall School of Law,

Texas Southern University; JULES

LOBEL, Professor of Law, University

of Pittsburgh Law School; DAVID

LUBAN, Frederick Haas Professor of

Law and Philosophy, Georgetown

University Law Center; BETH LYON,

Assistant Professor of Law,

Villanova University School of

Law; HOLLY MAGUIGAN, Professor of

Clinical Law, New York University

School of Law; SAMUEL A.

MARCOSSON, Associate Professor,

Louis D. Brandeis School of Law,

University of Louisville; GARY M.

MAVEAL, Associate Professor

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of Law, University of Detroit Mercy

School of Law; ROBERT F.

MEAGHER, Emeritus Professor,

Fletcher School of Law and

Diplomacy, Tufts University;

CARLIN MEYER, Professor of Law,

New York Law School; JONATHAN

M. MILLER, Professor of Law,

Southwestern University School of

Law; MARGARET E. MONTOYA,

Professor of Law, University of

New Mexico School of Law;

BEVERLY MORAN, Professor of Law,

Professor of Sociology, Vanderbilt

University School of Law; DAVID A.

MORAN, Assistant Professor of Law,

Wayne State University Law

School; MARY-BETH MOYLAN,

Instructor of Law, University of the

Pacific, McGeorge School of Law;

MILLARD A. MURPHY, Esq., Clinical

Instructor, Prison Law Clinic,

University of California, Davis,

School of Law; KENNETH B. NUNN,

Professor of Law, Fredric G. Levin

College of Law, University of

Florida; JAMES P. OGILVY, Associate

Professor of Law, Columbus School

of Law, The Catholic University of

America; NANCY K. OTA, Professor

of Law, Albany Law School; MARC

R. POIRIER, Professor of Law, Seton

Hall Law School; JAMES POPE,

Professor of Law and

------------------------------------------------*

Sidney Reitman Scholar, Rutgers

University School of Law; DEBORAH

W. POST, Professor of Law, Touro

Law School; WILLIAM QUIGLEY,

Professor of Law and Director of

the Loyola Law Clinic & the Gillis

Long Poverty Law Center, Loyola

Law School; MARGARET JANE RADIN,

Wm. Benjamin Scott and Luna M.

Scott Professor of Law, Stanford

Law School; MARTHA RAYNER,

Associate Clinical Professor of Law,

Fordham University School of Law;

JUDITH RESNICK, Arthur Liman

Professor of Law, Yale Law School;

PAULA R. RHODES, Associate

Professor of Law, Director, LLM in

American and Comparative Law

Program, University of Denver

College of Law; HENRY J.

RICHARDSON, III, Peter J. Liacouras

Professor of Law, Temple Law

School; ANNELISE RILES, Professor

of Law and Professor of

Anthropology, Cornell University;

TONI ROBINSON, Professor of Law,

Quinnipiac School of Law;

FLORENCE WAGMAN ROISMAN,

Professor of Law and Paul Beam

Fellow, Indiana University School

of Law-Indianapolis; KERMIT

ROOSEVELT, Assistant Professor,

University of Pennsylvania Law

School; TANINA ROSTAIN,

------------------------------------------------*

Associate Professor, New York Law

School; JED RUBENFELD, Robert R.

Slaughter Professor of Law, Yale

University; DAVID RUDOVSKY, Senior

Fellow, University of Pennsylvania

Law School; LEILA NADYA SADAT,

Professor of Law, Washington

University in St. Louis; NATSU

TAYLOR SAITO, Professor of Law,

Georgia State University College of

Law; ROBERT F. SEIBEL, Professor of

Law, CUNY Law School; FRANKLIN

SIEGEL, City University of New

York School of Law; ROBERT A.

SEDLER, Distinguished Professor of

Law and Gibbs Chair in Civil

Rights and Civil Liberties, Wayne

State University; MARCI SEVILLE,

Associate Professor of Law and

Director, Women's Employment

Rights Clinic, Golden Gate

University School of Law; MARJORIE

SILVER, Professor, Touro Law

Center; EILEEN SILVERSTEIN,

Zephaniah Swift Professor of Law,

University of Connecticut; DAVID

SLOSS, Assistant Professor of Law,

Saint Louis University School of

Law; RONALD C. SLYE, Associate

Professor, Seattle University School

of Law; LLOYD B. SNYDER,

Professor of Law, Cleveland State

University; ANDREJ THOMAS STARKIS,

Assistant Professor of Law,

------------------------------------------------*

Massachusetts School of Law;

NORMAN STEIN, Douglas Arant

Professor of Law, University of

Alabama School of Law; JOAN

STEINMAN, Distinguished Professor

of Law, Chicago-Kent College of

Law; ROBERT N. STRASSFELD,

Professor of Law, Case Western

Reserve University School of Law;

ROBERT L. TSAI, Assistant Professor

of Law, University of Oregon

School of Law; BETH VAN SCHAACK,

Assistant Professor, Santa Clara

University School of Law; DEBORAH

M. WEISSMAN, Associate Professor

of Law and Director of Clinical

Programs, University of North

Carolina School of Law; CHARLES

E. WILSON, Associate Professor of

Law, The Ohio State University

College of Law; RICHARD J. WILSON,

Professor, Washington College of

Law, American University; ADAM

WINKLER, Acting Professor of Law,

University of California at Los

Angeles; STEPHEN WIZNER, William

O. Douglas Clinical Professor of

Law and Supervising Attorney, Yale

Law School; MARK E. WOJCIK,

Associate Professor of Law, The

John Marshall Law School,

Chicago; FRANK H. WU,

------------------------------------------------*

Professor of Law, Howard

University; CLIFF ZIMMERMAN,

Clinical Associate Professor of Law,

Northwestern University; NATIONAL

LAWYERS' GUILD, Heidi Boghosian,

Executive Director; NATIONAL

IMMIGRATION PROJECT OF THE

NATIONAL LAWYERS GUILD, Dan

Kesselbrenner, Executive Director;

NATIONAL LAWYERS GUILD NEW

YORK CHAPTER, Dana Biberman,

President; HUMAN RIGHTS WATCH,

James Ross, Senior Legal Counsel;

SOUTHERN POVERTY LAW CENTER,

Rhonda Brownstein, Legal Director;

UNITARIAN UNIVERSALIST SERVICE

COMMITTEE, Denise Moorehead,

Deputy Director of Program;

PUERTO RICO LEGAL DEFENSE AND

EDUCATION FUND, INCORPORATED,

Foster Maer, Acting Legal Director;

NATIONAL COALITION TO PROTECT

POLITICAL FREEDOM, Kit Gage,

President; FIRST AMENDMENT

FOUNDATION, Kit Gage, Director;

NATIONAL LAWYER'S GUILD/MAURICE

& JANE SUGAR LAW CENTER FOR

ECONOMIC & SOCIAL JUSTICE, Julie

Hurwitz, Executive Director; CIVIL

LIBERTIES MONITORING PROJECT, Jared

Rossman, President; ASSOCIATION OF

LEGAL AID ATTORNEYS, U.A.W.

------------------------------------------------*

LOCAL 2325, Michael Letwin, Esq.,

President; PARTNERSHIP FOR CIVIL

JUSTICE, Mara Verheyden-Hilliard,

co-founder; TRIAL LAWYERS FOR

PUBLIC JUSTICE, Rebecca Epstein,

Staff Attorney; FREEDOM SOCIALIST

PARTY, Val Carlson; JEWISH

ALLIANCE FOR LAW AND SOCIAL

ACTION, Andrew M. Fischer; THE

INNOCENCE PROJECT AT THE BENJAMIN

N. CARDOZO SCHOOL OF LAW, Nina

Morrison, Esq., Executive Director;

ELLA BAKER CENTER FOR HUMAN

RIGHTS, Van Jones, National

Executive Director; AMERICAN

FRIENDS SERVICE COMMITTEE, Mary

Ellen McNish, General Secretary;

REBER BOULT, Esq., Albuquerque,

New Mexico; HUNTER GRAY; JOHN

MAGE, Esq., New York, New York;

DOUGLAS N. MASTERS, Esq.,

Chicago, Illinois; LAURA BETH

NIELSEN, Research Fellow, American

Bar Foundation; LEONARD

WEINGLASS, Esq., New York, New

York; CAMILLE WHITWORTH, Esq.,

Austin, Texas; MITCHELL

ZIMMERMAN, Esq., Co-Coordinator,

Law Professors for the Rule

------------------------------------------------*

of Law; NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS;

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION; ACLU FOUNDATION OF

VIRGINIA,

Amici Curiae in support

of Appellees.

------------------------------------------------*

Filed: July 9, 2003

____________________________________________________________

ORDER

Appellees filed a petition for rehearing and suggestion for rehear-

ing en banc.

The panel voted to deny panel rehearing.

A member of the Court requested a poll on the petition for rehear-

ing en banc, and a majority of the judges in active service voted to

deny rehearing en banc. Judges Luttig, Motz, King, and Gregory

voted to grant rehearing en banc. Chief Judge Wilkins, and Judges

Widener, Wilkinson, Niemeyer, Williams, Michael, Traxler, and

Shedd voted to deny rehearing en banc.

Judge Wilkinson filed an opinion, concurring in the denial of

rehearing en banc. Judge Traxler filed an opinion, concurring in the

denial of rehearing en banc. Judge Luttig filed an opinion, dissenting

from the denial of rehearing en banc. Judge Motz filed an opinion,

dissenting from the denial of rehearing en banc.

The Court denies the petition for rehearing and suggestion for

rehearing en banc. The mandate shall issue forthwith.

Entered at the direction of Judge Wilkinson for the Court.

WILKINSON, Circuit Judge, concurring in the denial of rehearing en

banc:

I concur in the denial of the rehearing en banc. The panel opinion

written by Chief Judge Wilkins, Judge Traxler, and myself has

already properly resolved this case. See Hamdi v. Rumsfeld, 316 F.3d

450 (4th Cir. 2003). I thus offer only these few comments in response

to the dissent of my good colleague Judge Motz.

Hamdi is being held according to the time-honored laws and cus-

toms of war. There is nothing illegal about that. The option to detain

those captured in a zone of armed combat for the duration of hostili-

ties belongs indisputably to the Commander in Chief. Art. II, Sec. II.

And the question is essentially whether the United States can capture

and detain prisoners of war without subjecting the factual circum-

stances surrounding foreign battlefield seizures to extensive in-court

review.¹ The answer to this is now - and always has been - yes.

In giving prisoners of war the right to litigate their detentions in

American courts, the dissent would install a more restrictive regime

on the executive branch after September 11 than existed before. I

regret that my colleague does not even quote the provisions of Article

I and Article II which delegate the conduct of war to the coordinate

____________________________________________________________

¹ The government does not concede that Hamdi is a prisoner of war, but

rather asserts that he is an unlawful combatant. For the purposes of this

case, the distinction is irrelevant because the decision to detain until the

cessation of hostilities belongs to the executive in either case. See

Hamdi, 316 F.3d at 469.

The panel earlier expressed doubt that the timing of a cessation of hos-

tilities was even justiciable. Hamdi v. Rumsfeld, 316 F.3d at 476 (quoting

Ludecke v. Watkins, 335 U.S. 160, 169 (1948) ("Whether and when it

would be open to this Court to find that a war though merely formally

kept alive had in fact ended, is a question too fraught with gravity even

to be adequately formulated when not compelled.")). It would be an

intrusive venture into international relations for an inferior federal court

to declare a cessation of hostilities and order a combatant's release when

an American military presence remained in the theater of combat and

when the status of combatants, their terms of release, and the mutuality

of exchanges may all remain subjects for negotiation and diplomacy. See

Ludecke, 335 U.S. at 169; The Three Friends, 166 U.S. 1, 63 (1897); The

Prize Cases, 67 U.S. 635, 670 (1862).

branches of our government. For the course on which my dissenting

colleague is embarked will trespass, increment by increment, upon

those powers, to the detriment of the judiciary's own obligation to

respect the proper limits and boundaries of its role.

To claim, as my colleague does here, that there was no meaningful

judicial review of Hamdi's detention is incorrect. There was extensive

review of every legal challenge to Hamdi's detention. The dissent

wishes to proceed further and litigate precisely why petitioner was

seized and whether the military capture can be justified. The conduct

of war, however, involves innumerable discretionary decisions made

by our armed forces in the field every day. Many of them have life

or death consequences. To subject these discretionary decisions made

in the course of foreign combat operations to the prospect of domestic

litigation would be an unprecedented step. Doing so would ignore the

fundamentals of Article I and II - namely that they entrust to our

armed forces the capacity to make the necessary and traditional judg-

ments attendant to armed warfare, and that among these judgments is

the capture and detention of prisoners of war. See The Prize Cases,

67 U.S. 635, 670 (1862).

Hamdi's own filings make clear that he was seized in a zone of

active combat operations. Hamdi's petition notes that "[w]hen seized

by the United States Government, Mr. Hamdi resided in Afghani-

stan." See Petition for Habeas Corpus, p. 2. In their traverse, petition-

ers state that the petition does not "implicate Respondents' initial

detention of Petitioner Hamdi in Afghanistan." See Traverse and

Response to Respondent's Motion to Dismiss, p. 2. And outside the

legal arena, petitioner Esam Fouad Hamdi, in a letter to Senator Pat-

rick J. Leahy, stated that they were "not challenging the battlefield

determination, decision to detain individuals in the theater of com-

bat." See Letter to Senator Patrick J. Leahy, August 5, 2002. Even the

district court, while ordering a more intrusive examination of the cir-

cumstances of Hamdi's capture, noted that "[p]etitioners concede that

Hamdi's initial detention in a foreign land during a period of ongoing

hostilities is not subject, for obvious reasons, to a due process chal-

lenge." See Order of August 16, 2002, p. 8.² Our review of the peti-

tion was undertaken in light of this undisputed fact.

____________________________________________________________

² The above submissions were repeatedly reinforced by Hamdi's coun-

sel in open court. See, e.g., "Hamdi[,] as far as I know, is the only

With respect, the dissent's demand for further factual inquiries

raises many more questions than it answers. The dissent notes

vaguely that it wants a non-hearsay basis for petitioner's detention

and that the Mobbs Declaration must be probed for every incomplete-

ness or inconsistency. Post at 58. While the dissent appears to

acknowledge that the district court production order went too far, its

specific criticisms of the Mobbs Declaration suggest otherwise. This

desire to have courts wade further and further into the supervision of

armed warfare ignores the undertow of judicial process, the capacity

of litigation to draw us into the review of military judgments step by

step.

The dissent declines to acknowledge the perils in its path, and we

are left to guess at how it would proceed. Opposing affidavits would

not likely satisfy the dissent, for they would leave the court to weigh

____________________________________________________________

[American citizen] out of all the detainees that were gathered up on the

battlefield in Afghanistan." (Tr. of Oct. 28, 2000 oral argument at 37);

Hamdi's counsel describing as "correct" the district judge's statement

that "this man was in a fighting situation. . . . He was where the fight

was." (Tr. of Aug. 13, 2002 district court proceedings at 70-71). Indeed,

as Judge Traxler's thoughtful opinion indicates, the record is replete with

admissions that Hamdi was captured in Afghanistan during hostilities,

references that are fully consistent with the panel opinion and that make

the locus of Hamdi's seizure susceptible to little more than metaphysical

doubt. The fact that the panel may not have specifically quoted all such

references in its opinion in no way implies that it rejected their validity.

The dissent makes the contention that Hamdi's father as next friend is

incapable of making representations on Hamdi's behalf. Post at 62. But

the cases my colleague cites in no way involved the constitutional princi-

ples implicated by a foreign battlefield capture. See White v. Joyce, 158

U.S. 128 (1895); Kingsbury v. Buckner, 134 U.S. 650 (1890); Stolte v.

Larkin, 110 F.2d 226, 233 (8th Cir. 1940). In seeking to deny effect to

the filings of the next friend in this case, the dissent's approach would

abrogate yet once again the separation of powers by endowing those

deemed enemy combatants with rights comparable to those enjoyed by

ordinary civil or criminal litigants. And in decrying this reasoning as

"dizzyingly circular", see post at 62 n.1, the dissent again makes clear

that nothing less than a full judicial exploration of the circumstances of

petitioner's capture will suffice.

one protestation against the other with little means of doing so. Ex

parte, in camera review would set disputes in motion over the scope

of redaction and create a whole new set of secrecy issues surrounding

Hamdi's case. Ex parte, in camera submissions would likely please

no one - neither the government required to hand over potentially

sensitive materials, nor Hamdi who would be denied the chance to

contest an ex parte review of them, nor the public who would be left

in the dark about the real basis for resolving Hamdi's case. My dis-

senting colleague also laments the absence of "first-hand knowledge

of Hamdi's conduct or status in Afghanistan." See post at 65. The dis-

sent is plainly unwilling to trust the judgment of those actually fight-

ing the war that Hamdi was properly seized. What further steps

should the judiciary then be prepared to take? What kind of hearings?

What role for counsel? What kind of showings? What sort of wit-

nesses? The district court struggled with these questions to ill effect.

See Hamdi, 316 F.3d at 470-71; Hamdi v. Rumsfeld, 243 F. Supp. 2d

527 (E.D.Va. 2002).

My colleague's desire for more and more information signals not

the end of a constitutionally intrusive inquiry, but the beginning. To

start down this road of litigating what Hamdi was actually doing

among the enemy or to what extent he was aiding the enemy is to

bump right up against the war powers of Articles I and II. Judges are

ill equipped to serve as final and ultimate arbiters of the degree to

which litigation should be permitted to burden foreign military opera-

tions. The ingredients essential to military success - its planning,

tactics, and intelligence - are beyond our ken, and the courtroom is

a poor vantage point for the breadth of comprehension that is required

to conduct a military campaign on foreign soil.

Because I think it both unreasonable and unfair to expect either

judges or attorneys to discard a lifetime of honed instinct, I suspect

that in time, if the course of the dissent is followed, the norms of the

criminal justice process would come to govern the review of battle-

field detentions in federal court. The prospect of such extended litiga-

tion would operate to inhibit our armed forces in taking the steps they

need to win a war. The specter of hindsight in the courtroom would

haunt decision-making in the field. At a minimum, if rules are to be

prescribed for litigating something as sensitive as the soundness of

battlefield detentions in Article III courts, then the prescription should

come from Congress or the Executive - the branches of government

charged by our Constitution with the conduct of foreign war. I cannot

conceive of the courts on their own motion - without the considered

input of the political branches - devising a set of procedures allow-

ing prisoners of war to hold American commanders accountable in

federal court. If any illustration of the difficulties and hazards of such

a judicial enterprise were needed, the history of Hamdi's case should

more than suffice.

My colleague also interprets a series of World War II-era Supreme

Court cases as invitations for the judiciary to involve itself in an

exacting review of decisions made on foreign battlefields. Post at 60-

61. My colleague's overreading of these decisions misses their funda-

mental import: they are replete with warnings that the judiciary must

stay its hand when reviewing an exercise of the Commander-in-Chief

powers during wartime. Ex parte Quirin, for example, holds without

reservation that detentions "ordered by the President in the declared

exercise of his powers as Commander in Chief of the Army in time

of war and of grave public danger" should not "be set aside by the

courts without the clear conviction that they are in conflict with the

Constitution or laws of Congress constitutionally enacted." 317 U.S.

1, 25 (1942). Likewise, Johnson v. Eisentrager emphasized that

"[e]xecutive power over enemy aliens" - the enemy combatants at

issue in that case - "undelayed and unhampered by litigation, has

been deemed, throughout our history, essential to war-time security."

339 U.S. 763, 774 (1950); see also id. at 778-79 (detailing the crip-

pling complications that would arise from allowing searching judicial

review of the petitioners' detention). And In re Yamashita noted that

the military tribunals challenged in that case were "not subject to judi-

cial review merely because they have made a wrong decision on dis-

puted facts." 327 U.S. 1, 8 (1946). "Such great war powers may be

abused, no doubt, but that is a bad reason for having judges supervise

their exercise, whatever the legal formulas within which such supervi-

sion would nominally be confined." Ludecke v. Watkins, 335 U.S.

160, 172 (1948). These cases are caution signals to the judiciary, not

green lights.

I seriously doubt that any mistake was made in Hamdi's case. But

the Supreme Court in Ex parte Quirin, Johnson v. Eisentrager, and

In re Yamashita was fully aware that war was a messy business, that

mistakes could be made, but that close judicial review was nonethe-

less costly and constitutionally proscribed. And the panel in this case

did not seek to move further than the precise case before it. See

Hamdi, 316 F.3d at 465. To compare this battlefield capture to the

domestic arrest in Padilla v. Bush is to compare apples and oranges.

Moreover, the recharacterizations of the holding in the dissent are

manifestly far afield. The panel did not suggest that its holding would

apply to any part of the world where American troops might happen

to be present. There is not the slightest resemblance of a foreign bat-

tlefield detention to the roundly and properly discredited mass arrest

and detention of Japanese-Americans in California in Korematsu.

These attempts to recharacterize the holding of the panel find no sup-

port in the opinion's text itself.

Finally, although both the panel opinion and the dissent have noted

the evidentiary shortcomings of the Mobbs Declaration, there is a

value to having the United States state under oath its reasons for the

detention of an American citizen, even one captured during the course

of armed combat.³ To go further, however, would be folly. It is pre-

cisely at the point of armed combat abroad that the government's

detention interests in gathering vital intelligence, in preventing detain-

ees from rejoining the enemy and in stemming the diversion of mili-

tary resources abroad into litigation at home are at their zenith. It

diminishes these interests to inquire whether the judiciary deems them

"legitimate," "substantial," or "compelling," for they are grounded in

the wording of Articles I and II themselves. The federal judiciary

plays a vital role in securing our rights. But the other branches of gov-

____________________________________________________________

³ My colleague Judge Luttig's dissent attempts to straddle the issue by

taking sides with both parties. On the one hand, it asserts that "the panel

found itself simply unwilling to allow petitioner Hamdi to challenge the

facts supporting his designation by the Executive as an enemy comba-

tant." Post at 42. On the other hand, it argues that it is likely that "the

facts recited in Special Advisor Mobbs' affidavit, as to which there is not

even hint of fabrication, are sufficient to satisfy the constitutionally

appropriate standard." Post at 57. In all events, the panel had before it

the straightforward situation where petitioners' filings repeatedly corrob-

orated the government's assertions that the locus of Hamdi's capture was

a zone of active combat operations abroad. Unsurprisingly, the panel

addressed the case on the basis of what was before it.

ernment also play their part in securing the blessings of our liberty.

In this case, the paramount right is that of the citizens of our country

to have their democracy's most vital, life-or-death decisions made by

those whom the Constitution charges with that task.

In sum, this petition was properly dismissed.

TRAXLER, Circuit Judge, concurring in the denial of rehearing en

banc:

In their dissents from the denial of rehearing, my colleagues have

appreciated the nature and magnitude of the competing interests at

stake here. However, because I believe that their opinions at times

have unfairly and inaccurately characterized the panel opinion, I

regrettably find myself drawn to offer a few comments in response.¹

I.

Each of my dissenting colleagues argues that the panel erred in

premising its decision on the "admission" that Yaser Esam Hamdi

was captured within the boundaries of Afghanistan. Judge Luttig

questions whether any such admission was made, at least in the peti-

tion, and Judge Luttig and Judge Motz both believe that any such

admission should be ineffective because it was made by Hamdi's

father, Esam Fouad Hamdi, acting as Yaser Esam Hamdi's "next

friend," and not directly by Yaser Esam Hamdi.

A.

I begin with Judge Luttig's charge that the panel opinion "is unper-

suasive, because of its exclusive reliance upon a mistaken character-

ization of the circumstances of Hamdi's seizure as`undisputed'"

because they were not, in his view, "conceded in fact." As an initial

premise, I would point out that the panel decision does not character-

ize all the circumstances of Hamdi's seizure as being undisputed.

Rather, it characterizes one circumstance of Hamdi's seizure as undis-

____________________________________________________________

¹ Because Judge Wilkinson has already written eloquently, and primar-

ily, in response to Judge Motz's dissent, I focus my comments chiefly on

matters raised by Judge Luttig.

puted - his presence in Afghanistan while active military operations

were being waged by the United States military against the governing

Taliban regime. Hamdi's reason for being in Afghanistan at the time

he was seized and the question as to whether he was indeed actively

engaged as an enemy to our forces and this country are very much in

dispute. The government asserts that Hamdi was in Afghanistan bear-

ing arms as a Taliban soldier when he was seized; Hamdi's father

asserts that Hamdi was only temporarily residing in Afghanistan

while engaged in relief work when he was apprehended. Thus, the

panel opinion's observation is in reality limited to the simple fact that

"Hamdi was captured in a zone of active combat in a foreign theater

of conflict." Hamdi, 316 F.3d at 459.²

As to this more narrow point of disagreement, Judge Luttig cor-

rectly observes that the habeas petition does not explicitly state that

"Hamdi was captured in a zone of active combat in a foreign theater

of conflict." Id. However, from this single pleading omission, Judge

Luttig inexplicably leaps to the conclusion that the remaining petition

allegations are ambiguous on the question (or, worse, that we should

ignore them) and, even more inexplicably, to the belief that when

responding to a dissent to a denial for rehearing en banc, the panel has

somehow forfeited a right to point to any other pleading or represen-

tation filed or otherwise made by the petitioner that supports the

observation, unremarkable when made, that Hamdi was indeed in

Afghanistan when captured.

First, the petition's failure to affirmatively state that Hamdi was

captured in a foreign combat zone did not and still does not compel

me to ignore the other allegations that are present, nor does it cause

me to consider that the place of Hamdi's capture is a matter of dis-

pute. As Judge Wilkinson has pointed out, the petition alleges that

____________________________________________________________

² See also Hamdi, 316 F.3d at 460 (noting that the petitioner "ac-

knowledg[ed] that Hamdi was seized in Afghanistan during a time of

active military hostilities") (emphasis added); id. at 461 (noting that it

was "undisputed that Hamdi was captured in Afghanistan during a time

of armed hostilities there") (emphasis added); id. at 474 (noting that

"Hamdi's petition places him squarely within the zone of active combat")

(emphasis added); id. at 476 (noting that "it is undisputed that [Hamdi]

was captured in a zone of active combat operations").

"[w]hen seized by the United States Government, Mr. Hamdi resided

in Afghanistan." J.A. 9.³ Were this the only allegation made, I sup-

pose I could speculate about whether Hamdi had traveled from his

"reside[nce] in Afghanistan" to another country "when [and where he

was] seized by the United States Government," but I need not do so.

Id. Significantly, the one statement quoted above is not the only alle-

gation made; the petition provides a great deal more information than

that. It avers that, following the terrorist attacks on September 11,

2001, "the United States initiated military action against the Taliban

Government in Afghanistan," and that, "in the course of the military

campaign, . . ., the United States provided military assistance to the

Northern Alliance." J.A. 10. As a result of this military assistance in

Afghanistan, the petition states that

the United States obtained access to individuals held by var-

ious factions of the Northern Alliance. On information and

belief, Mr. Hamdi was captured or transferred into the cus-

tody of the United States in the Fall of 2001.

J.A. 10. It goes on to allege that "[o]n or about January 11, 2002, the

United States military began transporting prisoners captured in

Afghanistan to Camp X-Ray at the United States Naval Base in Guan-

tanamo Bay, Cuba," and that on or about that same date, "the United

States military transferred Yaser Esam Hamdi to Camp X-Ray, Guan-

tanamo Bay." J.A. 11.

When we authored the panel opinion, I did not consider these peti-

tion allegations to be ambiguous, nor do I today. A plain reading of

the submission to us made clear that Esam Fouad Hamdi, as next

friend to Yaser Esam Hamdi and as his father, based his claims in

large part on the fact that Yaser was seized in Afghanistan in the

course of the United States military operations within that country.

His contention was that the United States military should release

Yaser because he was not in Afghanistan to fight us or our allies and,

____________________________________________________________

³ According to later representations made by his father, Hamdi left

"Saudi Arabia for Pakistan and then Afghanistan on July 15, 2001 to do

relief work in those countries," and became "trapped in Afghanistan once

the military campaign began." J.A. 153.

therefore, was not properly being held as an "enemy combatant" by

our military forces.

There was not then and there is not now any reason to be troubled

by the lack of an explicit allegation in the petition that Hamdi was

seized in a zone of active combat in a foreign theater of conflict,

because any possible question about whether the petition was incom-

plete or uncertain in its intent to allege that Hamdi was actually one

of the prisoners captured and detained in Afghanistan would have

been eliminated by Hamdi's Traverse and Response to the govern-

ment's motion to dismiss, in which the petitioner engages in his own

characterization of the substance of the factual allegations and the

claims contained within the petition.

There, the petitioner unequivocally represents that the "claim [does

not] implicate Respondents' initial detention of Petitioner Hamdi in

Afghanistan," but "challenges only his current indefinite imprison-

ment in the United States Naval Brig in Norfolk, Virginia" and that,

because petitioner did not contest the initial detention of Hamdi in

Afghanistan, "Hamdi's claims have no practical consequences for the

conduct of the military overseas." J.A. 64-65.⁴ I do not see how the

petitioner could be any clearer. He acknowledged that "[a]ccording to

both the Petition and the Mobbs Declaration, Petitioner Hamdi was

captured by the Northern Alliance and transferred into the custody of

the United States in the Fall of 2001 or late 2001," J.A. 67 (emphasis

added), represented that "[i]n January 2002, Respondents transported

Petitioner Hamdi from Afghanistan to Guantanamo Bay, Cuba," J.A.

____________________________________________________________

⁴ We have also been challenged for our alleged "altered and para-

phrased rendition" of the petition's allegation concerning the location of

Hamdi's seizure. We did interpret the petition as alleging that "`Hamdi

was captured or transferred into the custody of the United States in the

Fall of 2001' in Afghanistan." Hamdi, 316 F.3d at 460 (emphasis added);

see J.A. 10. But, even if we assume that the petition was ambiguous on

this point, we did not "suppl[y] a geographical location of [Hamdi's] sei-

zure and detention" nor "imput[e] a representation as to this location to

the next friend," as charged by Judge Luttig; the next friend supplied the

geographical location. Any ambiguity as to whether Hamdi was captured

or transferred to the United States military in Afghanistan was likewise

cleared up by the next friend's own characterization of his claim.

69, and complained that Hamdi was being punished by his "isolat[ion]

from others similarly situated in Afghanistan and Guantanamo Bay,

Cuba." J.A. 71.⁵

Additionally, as Judge Motz has observed in her dissent, we had

been presented in the Joint Appendix with a letter written by Hamdi's

father to United States Senator Patrick Leahy (which petitioner had

submitted to the district court). In the letter, Hamdi's father stated that

Yaser had "left our home in Saudi Arabia for Pakistan and then

Afghanistan on July 15, 2001 to do relief work in those countries,"

"was trapped in Afghanistan once the military campaign began," and

"was caught up in a local dragnet of non-Afghans in Mazar-e-Sharif

in Afghanistan in November 2001" along with John Walker Lindh.

J.A. 153. He was then "kept in [an] Afghanistan jail for 2-3 months

prior to being moved to Guantanamo Bay where he stayed for 2

months before they confirmed that he [was] an American citizen, then

they moved him to the Norfolk jail." J.A. 154. At no time was it ever

hypothesized that Hamdi might not have been in Afghanistan when

he was seized. Indeed, it was affirmatively represented that Hamdi

____________________________________________________________

⁵ Consistent arguments were also made to this court. For example,

Hamdi argued that no deference was due the Respondents because, inter

alia, "Hamdi's claims do not challenge the conduct of foreign policy,

military decision-making, or even the propriety of his initial detention in

Afghanistan," but instead challenge "the legality of his indefinite deten-

tion in a Norfolk naval brig without due process." Appellees' Brief at 27.

Later, it was again represented that "Hamdi's claims do not require

review of Respondents' prosecution of the war effort. As noted earlier,

Hamdi's claims do not seek judicial review of the Executive Branch's

conduct overseas." Appellees' Brief at 40. At yet another point, Hamdi

argued that the "Respondents [had] mischaracteriz[ed] Hamdi's claims as

an effort to `second-guess[ ] the military determination' of his enemy

combatant status," representing that "[o]n the contrary, the underlying

claims in this case are designed to test the legality of Hamdi's imprison-

ment in a naval brig in Norfolk, Virginia, not a military determination

made overseas. . . ." Appellees' Brief at 44. And, during oral argument,

Hamdi again clarified that he was not challenging the legality of his ini-

tial seizure and detention in Afghanistan as an enemy combatant, but

rather was only asserting that as one moves away from a foreign battle-

field to the United States where civil courts are open and functioning, the

deference due to the military's battlefield decision decreases.

was "caught at the same time Mr. John Walker Lindh was caught" in

Afghanistan, but that he was "not [being] treated the same way," and

was not properly determined to be "an enemy combatant." J.A. 154.⁶

In keeping with affirmative representations made to the court, at no

time did anyone on either side of this controversy aver or allege that

Hamdi was anywhere other than Afghanistan when he was captured

or detained by the Northern Alliance or when he was turned over to

the United States military. Judge Luttig has not pointed to a single

contrary allegation. Nor did Hamdi's most capable counsel "gratu-

itously or foolishly concede that his seizure occurred in a foreign zone

of combat," as Judge Luttig might have us believe. The case has at

all times been litigated by counsel based on the consistent position of

Hamdi's father that his son was in Afghanistan and was captured

there by our military, but that he was not there as an enemy comba-

tant. Even in his petition for rehearing and rehearing en banc, Esam

Hamdi did not assert that Yaser was somewhere other than in Afghan-

istan when seized; on the contrary, the petition affirmatively acknowl-

edges that Hamdi's presence in Afghanistan is indeed an "undisputed"

fact. The petition seeks a remand in order to allow Yaser Hamdi the

opportunity to meet with counsel and contradict the government's

assertion that he was in a zone of combat operations within the coun-

try of Afghanistan. Again, the petition seeks to litigate the factual

question of why Hamdi was in Afghanistan when he was seized and,

more precisely, whether he was actively engaged as an enemy to our

forces, not whether he was in Afghanistan during wartime.

I cannot base a decision in so momentous a case on the theoretical

possibility that the general allegations in the petition - that the

United States obtained access to Hamdi and other prisoners in the

custody of the Northern Alliance in Afghanistan and transferred these

prisoners "captured in Afghanistan" to Guantanamo Bay - are wrong

and do not apply to Hamdi's situation. Indeed, it would be ludicrous

for us to somehow presume that they were not intended to be

believed. Nor do I know of any precedent that would prompt us here

to ignore the factual representations made by the petitioner and coun-

____________________________________________________________

⁶ See United States v. Lindh, 227 F.Supp.2d 565 (E.D. Va. 2002);

United States v. Lindh, 212 F.Supp.2d 541 (E.D. Va. 2002); United

States v. Lindh, 198 F.Supp.2d 739 (E.D. Va. 2002).

sel in support of the petition. Because the government moved to dis-

miss the petition, I have assumed the factual allegations of the petition

to be true and, for that matter, have accepted the petitioner's in-court

representations regarding how they were intended to be interpreted.

I am unfamiliar with any principle that would require us to assume

that the factual allegations and in-court representations made by the

petitioner and the government are false, and none has been cited to

me. Indeed, it would seem inappropriate for us to impute such strange

intentions to Hamdi's father and his counsel. Cf. S. Cross Overseas

Agencies v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 428 n.8

(3d Cir. 1999) (employing a "reasonable reading of the complaint" to

supply an allegation not expressly made by the plaintiffs).

Petitioner's position has remained quite constant throughout this

appeal - that, because Hamdi is an American citizen by birth, he was

entitled to meet with appointed counsel in order to contest the factual

basis underlying the military's designation of him as an enemy com-

batant, as opposed to a peaceful resident, in Afghanistan - once he

was removed from the battlefield. We found this position untenable,

holding (for a great many reasons which I need not reiterate here) that

when an American citizen is captured in an enemy country where we

are engaged in active hostilities, we will require no more legal justifi-

cation than what the government voluntarily provided to us in this

case. I am still of the belief that this is the proper and legal course of

analysis. And I reject, with little hesitation, this bemusing attempt to

rewrite the case history and the substance of the habeas claim placed

before us.

B.

I likewise disagree with Judge Luttig's belief, shared by Judge

Motz, that Hamdi's capture in Afghanistan is not "susceptible to con-

cession in law because Hamdi has not been permitted to speak for

himself or even through counsel as to those circumstances." I am also

cited to no authority for the proposition that we should ignore or dis-

believe the petitioner's allegations that Hamdi was taken into military

custody in Afghanistan during the combat operations being waged

there at the time (whether made expressly in the petition, by implica-

tion from its allegations, or by virtue of the petitioner's representa-

tions as to the intended meaning of the allegations) merely because

the allegations were not personally written by Yaser Hamdi.

Indeed, a next friend does have the power to admit facts on behalf

of the real party in interest, subject to the supervision of the court. See

Hall v. Hague, 34 F.R.D. 449, 450 (D. Md. 1964). Were it otherwise,

a next friend might be compelled to contest every fact which might

be relevant, thereby creating unnecessary trouble and expense for the

parties and the court. See id. at 449-50. Or, the mere filing of a next

friend petition challenging civil disabilities might compel the lifting

of such disabilities so that the real party in interest might participate

fully in the litigation. The latter possibility is particularly ominous in

a case such as this, as it would enable an alleged enemy combatant

to disrupt, with no showing whatsoever, safeguards that the Executive

has determined are necessary to protect vital national security interests.⁷

In sum, I do not believe the panel erred in construing the petition to

admit that Hamdi was captured in Afghanistan and in giving effect to

that admission.

C.

This brings me, regrettably, to Judge Luttig's accusation that Judge

Wilkinson and I have "attempt[ed] to save the panel opinion by mar-

shaling for the first time today additional support, beyond that relied

upon by the panel, for the panel's conclusion that it has been con-

ceded that Hamdi was seized in a foreign combat zone." In a series

of charges, Judge Luttig complains that Judge Wilkinson's concur-

rence "makes reference not only to the next friend petition upon

which the panel solely relied, . . . but also to the new materials cited

by the government in its response to the petition for rehearing in sup-

____________________________________________________________

⁷ The cases cited by Judge Motz do not compel a contrary conclusion.

See White v. Miller, 158 U.S. 128, 146 (1895); Kinsbury v. Buckner, 134

U.S. 650, 680 (1890); Stolte v. Larkin, 110 F.2d 226, 233 (8th Cir. 1940).

The cases do not translate to a holding that the court, as opposed to the

next friend, is charged with the duty to rewrite a claim brought by a next

friend on behalf of a military detainee so as to assure its survival. Here,

there is no reason to believe that rights are being bargained away or that

a factual mistake is being made. There is surely no doubt as to the nature

of the claim before us.

port of the court's conclusion that the location of seizure has been

conceded, [including] Petitioner's Traverse and Response to Respon-

dent's Motion to Dismiss filed in the district court. . . .", charges that

this is but another example of "the trend in our court to attempt `to

add to, subtract from, or recharacterize the facts recited and relied

upon in a challenged panel opinion,'" and presumes that our reliance

upon petitioner's representations made about his petition is but an

improper attempt to "shore up" our joint panel opinion because the

panel now "senses . . . analytical softness of its opinion."

First, I can state without hesitation that I have no "sense" that our

decision is analytically soft at all. On the contrary, the dissent's fail-

ure to point to a single allegation or statement in the record of this

case that creates a dispute as to where Hamdi was when he was seized

or detained by our allies or our own military forces should end the

discussion.

Second, Judge Luttig appears to have forgotten his characterization

of our panel opinion as a "challenged panel opinion," albeit chal-

lenged in the form of the dissents written by Judge Luttig and Judge

Motz to the full court's vote not to rehear the case en banc. Judge Lut-

tig's criticism appears to be premised upon a belief that when panel

members write in response to a dissent to a denial of rehearing en

banc, it is improper for them to refer to anything in the original record

which was not specifically referenced in the panel decision, as this

would amount to "supply[ing] . . . important new facts or reasoning"

not susceptible to appellate review. Such "additional support," Judge

Luttig asserts, became "irrelevan[t] as a matter of law given that they

were not relied upon in the panel opinion."

Obviously, any response by a panel, unanimous at the time the

decision was rendered, to a dissent from a denial of rehearing en banc

might be construed as an act of bolstering or "shor[ing] up" the pub-

lished opinion in some sense. Otherwise, there would be nothing to

say. Yet, I find no reason to remain silent when our opinion is being

misinterpreted. I am confident that neither Judge Wilkinson nor I

have informally "modif[ied]" the panel decision which we, along with

Judge Wilkins, so painstakingly authored together. It is not my

opinion-writing practice to recite every source of information con-

tained within a joint appendix, nor every source directly relied upon

in arguments. Indeed, there is rarely, if ever, a need to clutter an opin-

ion with record support for uncontroversial statements that the parties

have not contested in their pleadings, responses, briefs, or arguments.

In any event, I see no need to modify the panel opinion because we

have pointed to no "important new facts or reasoning." We observed

in the panel opinion that the habeas petition before us for disposition

placed Hamdi in an enemy country when he was seized and detained

by our military forces as an enemy combatant. In response to Judge

Luttig's charge that the language of the petition does not place Hamdi

in Afghanistan at the point of seizure, Judge Wilkinson and I have

only gone so far as to point out that any question as to whether we

have properly characterized the claims can be laid to rest by petition-

er's own characterization of those allegations. Neither of us has

pointed to anything that has not at all times been a part of the record

and entirely consistent with the petition's allegations outlined above.⁸

____________________________________________________________

⁸ For this reason, I also think it misleading to characterize the Traverse

and Leahy letter as "new materials cited by the government in response

to the petition for rehearing in support of the court's conclusion that the

location of seizure has been conceded." These materials have been in the

district court record and in the Joint Appendix since the inception of the

appeal, and have been referred to by the parties throughout this litigation.

There is nothing "new" about them.

With specific regard to Esam Hamdi's letter to Senator Leahy, we are

additionally confronted by Judge Motz's view that it was improperly "ig-

nored" by us and Judge Luttig's belief that it should have been ignored

because it is "obviously irrelevant" to the issue. We considered every-

thing submitted by the parties in the Joint Appendix and all of the argu-

ments when authoring our joint opinion. We did not ignore the Leahy

letter or find it to be "obviously irrelevant." The letter was presented to

the district court by Hamdi's counsel, along with several other docu-

ments. The panel did not expressly cite to the letter to support the obser-

vation that Yaser Esam Hamdi was captured in a combat zone. But, like

the Traverse (and other representations made below and at oral argument

before this court), the Leahy letter was perfectly consistent with the unre-

markable observation which we drew from the allegations of the petition

before us and as they had been represented to us, i.e., that Hamdi was

indeed in Afghanistan when he was seized. It certainly did not raise any

ambiguity in the petition concerning Hamdi's location when he was

seized.

II.

I turn next to Judge Luttig and Judge Motz's shared belief that we

have placed undue significance on the fact that Hamdi was seized in

a foreign combat zone in evaluating the legal sufficiency of the

Mobbs Declaration and, by doing so, have somehow paved the way

for widespread deprivation of the individual constitutional rights of

our citizens.

First, we have not pulled the significance of this simple fact from

thin air. It is grounded in the time-honored rule of law in wartime -

that all persons residing in an enemy country during hostilities are

deemed to be enemies, regardless of nationality. See Juragua Iron Co.

v. United States, 212 U.S. 297, 305-06 (1909)."[U]nder the recog-

nized rules governing the conduct of a war between two nations, . . .

all persons, whatever their nationality, who reside [ ] [in the enemy

country [are], pending such war, to be deemed enemies of the United

States and all of its people." Id.; see also Lamar v. Browne, 92 U.S.

187, 194 (1875); Young v. United States, 97 U.S. 39, 60 (1877). This

is not to say that all persons residing within the enemy country are in

fact enemies, or specifically that Hamdi was necessarily an enemy

combatant merely because he was in Afghanistan during a conflict

between the United States and the Afghan government. But, signifi-

cant consequences necessarily attached to Hamdi's presence in

Afghanistan; his individual rights stood in tension with the Execu-

tive's wartime powers under Article II. Consequently, the Judiciary

became compelled, by the nature of war and by dint of the separation

of powers we are required to safeguard and honor, to give deference

to the Executive to determine who within a hostile country is friend

and who is foe.⁹

____________________________________________________________

⁹ In his petition for rehearing and rehearing en banc, petitioner argued

it could only be said to be undisputed that Hamdi was in a zone of active

combat operations if the entire country of Afghanistan is such a zone at

the time of capture. I have no problem with this view. The United States

is in a sanctioned military operation designed to oust from power the

governing regime of the country of Afghanistan. Just as we "are ill-

positioned to police the military's distinction between those in the arena

of combat who should be detained and those who should not," Hamdi,

316 F.3d at 474, we are ill-positioned to question the military's determi-

nation that any particular area of a country with whom we are at war is

or is not an "active combat zone."

Second, Judge Motz and Judge Luttig's collective fear that our rec-

ognition of this time-honored principle might result in innocent jour-

nalists or unwitting tourists falling victim to unreviewable military

detentions anywhere in the world can be easily laid to rest. Judge

Motz, for example, asserts that our decision would allow "any of the

`embedded' American journalists covering the war in Iraq or any

member of a humanitarian organization working in Afghanistan, [to]

be imprisoned indefinitely" by our military, that "any American citi-

zen seized in a part of the world where American troops are present

- e.g., the former Yugoslavia, the Philippines, or Korea - could be

imprisoned indefinitely, merely by asserting that the area is a zone of

active combat," and the even more extreme "fear that the panel may

also have opened the door to the indefinite detention, without access

to a lawyer or the courts, of any American citizen, even one captured

on American soil, who the Executive designates an `enemy comba-

tant,' as long as the Executive asserts that the area in which the citizen

was detained was an `active combat zone,' and the detainee, deprived

of access to courts and counsel, cannot dispute this fact." Judge Luttig

also points to "[t]he embedded journalist or even the unwitting tour-

ist" who "could be seized and detained in a foreign combat zone."

And, he too claims that such a likelihood would be "far from infinites-

imal where the theater is global, not circumscribed, and the engage-

ment is an unconventional war against terrorists, not a conventional

war against an identifiable nation state."

Although effective in stirring emotion, our colleagues' expressed

fears are grounded in conclusions not reached or even predicted by

the panel decision. Our decision does not speak to the issue of

whether an "enemy combatant" may challenge the government's

claim that the former Yugoslavia, the Philippines, or Korea is a zone

of active military operations for purposes of the President's exercise

of his Article II war powers. Rather, it addresses only the appropriate

level of deference to be observed when the President exercised his

power to detain an American citizen found within the boundaries of

Afghanistan during our military efforts to overthrow its governing

regime. Nor does it sanction indefinite detention, but rather contem-

plates detention for the duration of such hostilities.

In short, my colleagues' collective desire (albeit undertaken for

much different reasons) to redefine the case before us has caused

them to lose their focus on our holding. Afghanistan is an identifiable

nation state and Hamdi was in a conventional war situation. Every

resident within Afghanistan (including Hamdi as was explicitly

alleged) was in law an enemy, until determined by the Executive to

be a friend. As Judge Wilkinson aptly observed, war is a messy busi-

ness and mistakes can be made. American journalists and American

tourists who venture into a country with whom we are at war without

the approval of our military, or who fail to return to this country in

time of war, necessarily expose themselves to many risks, including

this one. But the circumstances of armed conflict against a foreign

government in a foreign land require the deference we have shown

the Executive in the making of military decisions.

III.

Despite their common criticism of our observation that Hamdi was

captured in Afghanistan - and our belief that Hamdi's capture in

Afghanistan guides our inquiry as to whether the Mobbs Declaration

is sufficient to justify Hamdi's detention as an enemy combatant -

our colleagues differ significantly in their opinions as to what kind of

review is appropriate.

Judge Motz would hold that the Mobbs Declaration is insufficient

to justify Hamdi's enemy combatant designation. And, although she

disagrees that Hamdi's capture in Afghanistan is undisputed, in the

end it really matters not to Judge Motz whether Hamdi was seized in

Afghanistan. As Judge Wilkinson has noted, Judge Motz believes it

proper for the Judiciary to litigate precisely why Yaser Hamdi was

seized and whether the military capture can be justified regardless of

where the seizure occurred. In short, Judge Motz "would require a

greater showing from the Executive before [she] would permit an

American citizen, held in the United States, to be imprisoned indefi-

nitely, without ever being afforded the opportunity to appear in court,

contest the allegations against him, or consult with a lawyer." For the

reasons expressed by Judge Wilkinson, I, of course, disagree.

Judge Luttig also contests our observation that Hamdi was present

in Afghanistan when he was captured, but only pays lip service to

Judge Motz's belief that we would have to give Hamdi access to

counsel and a direct voice in an Article III court in order to determine

his place of seizure. Unlike Judge Motz, it appears that Judge Luttig

would in practice not give Hamdi a voice to either concede or dispute

the place of seizure. Rather, Judge Luttig "believe[s]" he would adopt

at most a "some evidence" standard as the appropriate level of defer-

ence due and "would likely conclude, as argued by the United States,

that the facts recited in [the Mobbs' Declaration] are sufficient" to sat-

isfy it. In other words, it seems Judge Luttig would hold that the

Mobbs Declaration is sufficient to justify Hamdi's enemy combatant

designation regardless of whether Hamdi admitted his presence in

Afghanistan or flatly disputed it.

From this, I can only assume that Judge Luttig is really dissatisfied

not because we have refused to give Hamdi a voice to raise a dispute

as to his place of seizure, but because we evaluated the legal suffi-

ciency of the government's response within the context of Hamdi's

capture in Afghanistan. Thus, Judge Luttig charges, by "refus[ing] to

rest decision on the proffer made by the President of the United

States" and instead "rest[ing] decision on a putative concession by the

detainee," we have "all but eviscerate[d] the President's Article II

power to determine who are and who are not enemies of the United

States during times of war." He accuses us of "disown[ing] [our]

promise to the Executive to accord him the substantial deference to

which he is constitutionally entitled for his wartime decisions as to

who constitute enemies of the United States," and predicts that our

rule "will henceforth . . . cast the Judiciary as ultimate arbiter, in each

and every instance, of whether the Executive has properly so classi-

fied a detainee." "[I]n every instance in which the [habeas] petitioner

refrains from affirmative concession that he was seized in a foreign

combat zone," Judge Luttig laments, "counsel must now be provided

and judicial review had of the Executive's determination that one is

an enemy combatant." Such hyperbole is not only unwarranted, it is

plainly wrong.

Judge Luttig's first misrepresentation lies in his characterization of

our opinion as holding that "more is `unnecessary to a meaningful

judicial review' of a challenge to an Executive's enemy combatant

designation than a concession of seizure in a foreign combat zone."

We have held no such thing, nor can such be fairly read from our

opinion. The inaccuracy of this "paraphrased rendition" of our hold-

ing is readily apparent. The language quoted by Judge Luttig from the

panel opinion is excised from the following passage from our opinion

which follows an extensive discussion of the contents of the Mobbs

Declaration and the practical problems of active judicial supervision

of combat operations overseas:

[B]ecause Hamdi was indisputably seized in an active com-

bat zone abroad, we will not require the government to fill

what the district court regarded as gaps in the Mobbs affida-

vit. The factual averments in the affidavit, if accurate, are

sufficient to confirm that Hamdi's detention conforms with

a legitimate exercise of the war powers given the executive

by Article II, Section 2 of the Constitution and . . . is consis-

tent with the Constitution and laws of Congress. Asking the

executive to provide more detailed factual assertions would

be to wade further into the conduct of war than we consider

appropriate and is unnecessary to a meaningful judicial

review of this question.

Id. at 473 (emphasis added) (citations omitted). Obviously, we did not

hold that Hamdi's concession of seizure in a foreign combat zone ren-

dered further judicial inquiry into an enemy combatant designation

unnecessary. For the constitutional and practical reasons extensively

discussed in the opinion, we held that Hamdi's presence in a war zone

when seized rendered judicial inquiry beyond the legal sufficiency of

the government's response unnecessary to a meaningful judicial

review.

Indeed, we expressed no opinion as to whether the Mobbs Declara-

tion was more than sufficient or just enough to ensure meaningful

judicial review of the Executive's detention of an American citizen in

an enemy country as an enemy combatant. The submission of the

Mobbs Declaration was not directed by the Judiciary. Rather, the gov-

ernment voluntarily opted to provide, under oath, a level of informa-

tion it believed to be legally sufficient to justify detention of an

American citizen captured during the course of armed conflict in a

foreign theater of battle, and asked us to respect the balance of powers

and accept it as sufficient to warrant dismissal of the petition before

us. And, we did indeed accept the Executive's voluntary proffer as

sufficient. We took care not to make grand pronouncements as to

what we might do in a different case, and even went so far as to

expressly discourage any propensity on the part of others to view our

decision as moving beyond the set of circumstances before us. Judge

Luttig decries what he believes to be a "Pyrrhic victory" for the gov-

ernment, but it has lost nothing. Even if we assume that the govern-

ment sought such a broad holding, the most that can be said is that

they did not get all they wanted and must seek it elsewhere.

Judge Luttig's second misrepresentation comes in the form of the

prediction that, as a result of our opinion, "in every instance in which

the [habeas] petitioner refrains from affirmative concession that he

was seized in a foreign combat zone," "counsel must now be provided

and judicial review had of the Executive's determination that one is

an enemy combatant." Our opinion says no such thing. We held that

the Mobbs Declaration was sufficient to allow meaningful judicial

review of Hamdi's detention because he was within a hostile country

when captured. We did not predict what would constitute meaningful

judicial review of the detention of an United States citizen in cases

in which the place of seizure is unknown or alleged to be within a

country with whom we are not actively at war. Although we left open

the possibility that the place of seizure might require further factual

inquiry depending upon what representations the government pro-

vided, we did not hold that extended judicial review of the Execu-

tive's determination that one is an enemy combatant would become

appropriate merely because a dispute existed as to the place of cap-

ture. Nor for that matter, did we even hold that the Mobbs Declaration

would have been insufficient had the place of capture been in dispute

in this case. Our opinion dealt, as it should, with the precise situation

before us.

IV.

Finally, while I fully recognize that we have not gone as far as

Judge Luttig would have us go, I take umbrage at his charge that this

panel, as a result of "decisional paralysis," has "retreated" from its

constitutional duty to decide this case based upon the facts presented

and, instead, has fabricated a fact to ease our task. Nothing could be

further from the truth. The government makes no such charge, no

doubt cognizant that, in accordance with time-honored principles of

constitutional decision-making, we have gone no further than neces-

sary to resolve the delicate balance of constitutional interests before

us. See Poe v. Ullman, 367 U.S. 497, 503 (1961) ("The best teaching

of this Court's experience admonishes us not to entertain constitu-

tional questions in advance of strictest necessity.") (quoting Parker v.

County of Los Angeles, 338 U.S. 327, 333 (1947)); Ashwander v. Ten-

nessee Valley Authority, 297 U.S. 288, 346 (1936) (Brandeis, J., con-

curring) ("The Court will not `anticipate a question of constitutional

law in advance of the necessity of deciding it.'") (quoting Liverpool,

N.Y. & Phila. Steamship Co. v. Emigration Commissioners, 113 U.S.

33, 39 (1885)); id. ("The Court will not`formulate a rule of constitu-

tional law broader than is required by the precise facts to which it is

to be applied.'"). Burton v. United States, 196 U.S. 283, 295 (1905)

("It is not the habit of the court to decide questions of a constitutional

nature unless absolutely necessary to a decision of the case."). Nor,

for that matter, does the petitioner, who argues not that Yaser's pres-

ence in Afghanistan was a matter of dispute, but only that we should

not as a legal matter rely upon the allegations of the petition and the

representations of the petitioner for the premise that Yaser was in an

active combat zone within that country.

Nor is it fair to say that we "retreated to ground that . . . neither

party attempted to defend." The government has recognized the sig-

nificance of the place of capture from the outset of this case, arguing

to us that "[t]he military determination at issue in this case - the

decision to detain someone who was armed with an assault rifle when

he surrendered in a combat zone as part of an enemy unit - directly

implicates the national defense, not to mention the safety of American

soldiers still stationed in the zone of conflict, and falls at the heart of

the military's ability to conduct war." Respondents' Brief at 27. So

has the petitioner, who has repeatedly disclaimed any intent to chal-

lenge a battlefield seizure in Afghanistan, but only Hamdi's current

detention in the United States.

This case was presented to us on appeal from the district court's

order finding that the Mobbs Declaration was insufficient to allow

meaningful judicial review of Hamdi's classification as an enemy

combatant. We held that the Mobbs Declaration provided by the gov-

ernment in response to the habeas petition was sufficient to uphold

Hamdi's detention as an enemy combatant under the President's war-

time powers. We have upheld the President's Article II power as

Commander in Chief of the armed forces to defend this country from

its enemies and to determine who are and who are not enemies of the

United States within countries where we are engaged in active hostili-

ties.

Yaser Hamdi's status as an American citizen entitles him to peti-

tion the Judiciary personally, or by next friend if he cannot for rea-

sons of national security, for habeas relief and thereby to demand a

response from the Executive as to why the detention is an acceptable

utilization of his Article II powers. In the exercise of our Article III

powers, we review that response and may consider any legal argu-

ments as to why the detention does not comport with a lawful exercise

of war powers. Because Hamdi was within a country with whom we

were fighting when he was seized, principles of separation of powers

and practicalities of armed conflict dictate that we defer to the Execu-

tive's determination as to who is foe and who is not. Hamdi may test

the legal basis for his detention. But, beyond that, Hamdi may be

held, not indefinitely, but for the duration of active hostilities just like

other non-citizen detainees captured in an enemy country by our mili-

tary forces making a battlefield determination that the person detained

was there to take up arms against our soldiers. And, in the holding

most overlooked but most directly applicable to the claim as it was

filed and argued before us, Hamdi's transfer by the military from the

enemy country to Guantanamo Bay and then to the United States did

not result in a greater right to challenge his designation.

In the end, Judge Luttig complains not because we accepted the

Mobbs Declaration as sufficient and, thereby, granted the President

the deference he sought from us. Rather, he complains because we

have not forecast a similar level of deference in other contexts by

adopting a global standard of review for all Executive detentions

undertaken in the "war against terror." But, in order to reach this

broader holding, he must attempt to find fault with our observation

that Hamdi was in Afghanistan when seized, and he must character-

ize, however inaccurately, our opinion as resting solely upon that

observation.

The impropriety of reaching beyond this case to decide another is,

in my view, quite obvious. Judge Luttig opines that he would proba-

bly adopt the "some evidence" standard advanced by the government

and hold that the Mobbs Declaration would be sufficient even in the

face of a factual dispute as to whether Hamdi was in Afghanistan.

That question, however, does not merely raise a single difficult issue,

as posited by Judge Luttig, as to what the global standard should be

for this and other cases. Rather, it raises many difficult issues related

to the President's Article II wartime powers and how they will ulti-

mately be interpreted in an age of terror. And, no matter how interest-

ing such questions may be, they are simply not before us. We are not

dealing with the President's designation of Hamdi as an enemy com-

batant because he is a terrorist in the "war against terror" declared

after the tragic events of September 11, 2001. Had Hamdi's petition

been grounded in an allegation that he was seized in France under the

auspices of the "war against terror," and had the military agreed to

that allegation and designated him an enemy combatant, then we

would have a much different case. Had Hamdi's petition been

grounded in an allegation that he was seized in the United States

under the auspices of the "war against terror," and the government

agreed, then we would have a case not unlike Padilla v. Bush.¹⁰ In

both hypothetical situations, we might well be called upon to weigh

other important national security interests. Whereas we would not

likely face the dilemma of pulling military commanders out of the

theater of war to testify in a court of law, for example, we would

likely encounter such issues as whether France or the United States

is a "zone of active military operations" and, if not, whether such sei-

zures in a noncombat country can be a valid exercise of the Execu-

tive's Article II war power.

I need express no opinion on such issues because they are not

before us. As the government's response to the petition makes clear,

we are dealing with the President's designation of Hamdi as an enemy

combatant in the war against Afghanistan with the stated goal of oust-

ing the Taliban regime in order to end its support for Al Qaida and

other terrorist networks. The conflict in Afghanistan is certainly

related to the global conflict referred to as the "war against terror," but

it is unquestionably a military conflict that falls quite neatly within

our historical concepts of war. The questions Judge Luttig wishes to

address might include some of the more novel, complex, and interest-

ing ones a court could be called upon to contemplate, but no matter

____________________________________________________________

¹⁰ See Padilla v. Bush, 243 F.Supp.2d 42 (S.D.N.Y. 2003); Padilla v.

Bush, 233 F.Supp.2d 564 (S.D.N.Y. 2002).

how much we might like to deal with them, they are not before us.

We should not reach beyond this case to decide them.

LUTTIG, Circuit Judge, dissenting from denial of rehearing en banc:

As should be true under a rule of law, the reasoning underlying our

resolution of the important issue presented by this appeal has implica-

tions beyond the particular dispute before us. In this instance, those

implications are for no less commanding constitutional interests than

the President's power to conduct war and the right of our citizens to

be free from governmental restraint except upon lawful justification.

As my colleagues have recognized, the panel's opinion resolving

the important issue presented by this suit is unpersuasive, because of

its exclusive reliance upon a mistaken characterization of the circum-

stances of Hamdi's seizure as "undisputed," when those circum-

stances are neither conceded in fact, nor susceptible to concession in

law, because Hamdi has not been permitted to speak for himself or

even through counsel as to those circumstances. That the panel opin-

ion is unpersuasive is borne out by no less significant a fact than that

the panel itself, as evidenced by the two separate concurrences today,

cannot even now agree as to either the proper interpretation or

defense of its opinion.

Additionally, beyond the opinion's unpersuasiveness, its refusal to

rest decision on the proffer made by the President of the United

States, and its insistence instead upon resting decision on a putative

concession by the detainee, has yielded reasoning that all but eviscer-

ates the President's Article II power to determine who are and who

are not enemies of the United States during times of war.

Because of the facial unpersuasiveness of the court's opinion, and

because the opinion of law that resolves the issue raised in this appeal

is of even greater constitutional importance than the result reached by

that opinion, I would grant the requested rehearing en banc. I believe

that the significance of the issue that has been presented calls for an

opinion from this court that directly addresses that issue and resolves

it unambiguously and convincingly (however broadly or narrowly),

based upon the facts as they appear in the record and the arguments

as they have been well made by the parties.

I.

On the central question presented in this case, it is evident that the

panel found itself simply unwilling to allow petitioner Hamdi to chal-

lenge the facts supporting his designation by the Executive as an

enemy combatant, under any standard of review urged by those who

appeared on behalf of Hamdi. However, the panel was equally unwill-

ing either to adopt the "some evidence" standard and accept as suffi-

cient under that standard the facts offered by the government as

justification for Hamdi's seizure or to hold that the Judiciary is with-

out all authority to review the President's designation of an individual

as an enemy combatant, as alternatively urged by the government.

Faced with this decisional paralysis, the panel retreated to ground that

not only neither party attempted to defend, but that is transparently

indefensible - holding that Hamdi cannot challenge, and the court

cannot question, the facts proffered by the government in support of

Hamdi's particular seizure and detention as an enemy combatant, for

the asserted reason that Hamdi has conceded that he was seized in a

foreign combat zone.

A.

In resting its decision on this factually and legally untenable

ground, the panel reneged on the promises it hastily made to the par-

ties at the litigation's inception.

It promised the citizen seized by the government "meaningful judi-

cial review" of his claim that he was not an enemy combatant, point-

edly refusing to "embrac[e] a sweeping proposition - namely that,

with no meaningful judicial review, any American citizen alleged to

be an enemy combatant could be detained indefinitely without

charges or counsel on the government's say-so." Hamdi v. Rumsfeld,

296 F.3d 278, 283 (4th Cir. 2002) ("Hamdi II "). But it ultimately pro-

vided that citizen a review that actually entailed absolutely no judicial

inquiry into the facts on the basis of which the government designated

that citizen as an enemy combatant.

One could hardly be faulted for wondering why, as the panel held,

more is "unnecessary to a meaningful judicial review" of a challenge

to an Executive's enemy combatant designation than a concession of

seizure in a foreign combat zone. Under even an exceedingly deferen-

tial standard of review, such, though it is relevant to, would hardly

seem dispositive of whether one has been legitimately classified as an

enemy combatant. The embedded journalist or even the unwitting

tourist could be seized and detained in a foreign combat zone. Indeed,

the likelihood that such could occur is far from infinitesimal where

the theater is global, not circumscribed, and the engagement is an

unconventional war against terrorists, not a conventional war against

an identifiable nation state. But surely we would not conclude that

that journalist or tourist (who could be expected to readily admit to

his seizure in the foreign combat zone) had received meaningful judi-

cial review of his claim that he was not an enemy combatant, if that

claim received no judicial scrutiny at all merely because he stipulated

that he was seized in that foreign combat zone. It is undoubtedly for

these reasons that the Executive neither designated Hamdi an enemy

combatant on the basis of his mere seizure in a foreign combat zone

nor defends its designation in this court on such basis.

But as the panel disowned its promise to the detainee to provide

him meaningful judicial review, so also did it disown its promise to

the Executive to accord him the substantial deference to which he is

constitutionally entitled for his wartime decisions as to who constitute

enemies of the United States. The panel promised the Executive that

the Judiciary would not sit in full review of his judgments as to who

is an enemy combatant of the United States, but it adopted a rule that

will henceforth do just that, cast the Judiciary as ultimate arbiter, in

each and every instance, of whether the Executive has properly so

classified a detainee.

Upon a moment's reflection, it is apparent that the rule of law that

was fashioned by the panel professedly in the name of deference to

the Executive, and that now binds us, is, in application, a rule of no

deference at all. For counsel must now be provided and judicial

review had of the Executive's determination that one is an enemy

combatant in every instance in which the petitioner but refrains from

affirmative concession that he was seized in a foreign combat zone.

The Executive's undeniably important interests in the prohibition of

access to detained enemy combatants for reasons of national security

and in the conduct of war free from fear that it will be summoned to

court to answer to the Judiciary for its enemy designations, thus, are

uncomfortably protected by little more than the hope (vain after the

court's opinion, if not before) that the habeas petitioner will gratu-

itously or foolishly concede that his seizure occurred in a foreign zone

of combat.

That the government's victory is but thinly guised defeat could not

be better confirmed than by the arguments that have already been

made in opposition to, and in support of, the panel's opinion by the

parties to this dispute. Thus, those appearing on behalf of Hamdi

argue, to no surprise and in compelling understatement, that the panel

fundamentally erred for the reason that, "it cannot fairly be stated that

it is `undisputed' that Hamdi was captured within a zone of active

combat operations in a foreign country" "[b]ecause Hamdi was denied

the opportunity to meet with counsel, and was refused the opportunity

to dispute the facts put forth by [the government] - including asser-

tions as to where he was captured and what the circumstances were

at the time." Appellee's Petition for Rehearing and Suggestion for

Rehearing in Banc, at 12-13. The obvious remedy for this error being,

they reasonably claim, a remand for further factual development on

the issue, with allowance for participation by Hamdi himself.

And the government, as expected, rejoins that "the type of evidenti-

ary proceeding that appellees seek would raise precisely the same

problems concerning judicial oversight of military operations over-

seas that the panel properly concluded is not only unwise, but unau-

thorized under our constitutional scheme." Answer for Respondents-

Appellants to Petition for Rehearing and Suggestion for Rehearing en

Banc, at 11.

A more Pyrrhic victory would be hard to conceive.

In sum, then, because of its unwillingness to confront head-on the

admittedly difficult issue presented by this appeal, decide upon the

standard of review required by the Constitution, and resolve the case

by application of that standard to the facts proffered in justification

for the Executive's designation of Hamdi as an enemy combatant of

the United States, the panel succeeded in securing neither the guaran-

tees of the Bill of Rights nor the powers committed to the Executive

by Article II of the Constitution.

B.

These breaches perhaps could be excused if the panel had divined

an unassailable narrower ground for decision than that foreshadowed

by either of its bold promises. However, its decision cannot be

excused on this basis, because the ground upon which the panel rested

its decision is anything but unassailable. For it simply is not "undis-

puted" that Hamdi was seized in a foreign combat zone.

For its repeated assertions that this circumstance is conceded, see

Hamdi v. Rumsfeld, 316 F.3d 450, 459, 461, 465, 473, 475, 476 (4th

Cir. 2003) ("Hamdi III"), the panel relied solely on the petition filed

by Hamdi's father as next friend. See id. at 460; id. at 461 (stating that

the Mobbs affidavit "confirms the material factual allegations in

Hamdi's petition"); id. at 474 ("Hamdi's petition places him squarely

within the zone of active combat and assures that he is indeed being

held in accordance with the Constitution. . . ."). As the panel wrote,

[i]n this case, there are two allegations that are crucial to our

analysis. First, Hamdi's petition alleges that he was a resi-

dent of and seized in Afghanistan . . . . Second, the Govern-

ment's response asserts that Hamdi is being detained

pursuant to the Commander-in-Chief's Article II war pow-

ers and that the circumstances underlying Hamdi's deten-

tions, as reflected primarily in the Mobbs declaration,

establish that Hamdi's detention is lawful.

Id. at 471 (emphasis added). Thus, the panel opinion quite clearly

rests on the petition alone for the court's conclusion that seizure in a

combat zone was "undisputed."

But the next friend petition says no such thing as the panel held

that it does. It states that, "[w]hen seized by the United States Govern-

ment, Mr. Hamdi resided in Afghanistan." J.A. 9 (emphasis added).

Of course, it is a non sequitur to conclude from the representation that

Hamdi resided in Afghanistan at the time of his seizure, that he was

also seized in a foreign zone of active combat. In the end, it is obvious

that the panel simply missed the critical import of this distinction

between residency on one hand, and seizure or capture on the other,

even though it recognized - at least in passing - the distinction

between the two. As it said, though incorrectly as to the latter,

"Hamdi's petition alleges that he was a resident of and seized in

Afghanistan. . . ." Hamdi III, 316 F.3d at 471 (emphasis added).

Insistence that the distinction be drawn between acknowledgment

of residency and concession of seizure in a combat zone is not to be

clever. I have no reason to believe that Hamdi was not in a combat

zone at the time of his seizure, and, to the extent relevant, I believe

that he was. But, as a court of law, we cannot impute a concession

of this circumstance of seizure from an innocuous acknowledgment

of residency in a country in which combat was underway. Such is not

credible.

No more so can other statements that appear in the next friend peti-

tion and relied upon by the panel be fairly taken as concession that

Hamdi was actually seized in a foreign combat zone, as opposed to

acknowledgment merely that he was a resident of a country in which

there was ongoing combat at the time of seizure. The panel recites

that,

[a]ccording to the petition, "[i]n the course of the military

campaign, and as part of their effort to overthrow the Tali-

ban, the United States provided military assistance to the

Northern Alliance, a loosely-knit coalition of military

groups opposed to the Taliban Government," and thereby

"obtained access to individuals held by various factions of

the Northern Alliance."

Hamdi III, 316 F.3d at 460. The panel apparently viewed the quoted

petition passages similarly as conceding seizure in a foreign combat

zone. But a careful reading of these passages reveals that neither is

such a concession fairly inferable from them. Most obviously, neither

passage says anything at all about Hamdi. But, additionally, even if

they had, there is no reason to presume that every person who was

held by the Northern Alliance (assuming, for the moment, that Hamdi

falls within that class) was captured in Afghanistan during the course

of combat operations. Of course, this may have been the case. But it

also may not have been.

The final statement in the next friend petition that the panel quoted,

and on which it seemingly relied, was at once materially abbreviated

by the panel and materially supplemented. The materiality of both the

omission and the addition is apparent when the actual quotation from

the petition is read side-by-side with the panel's altered and para-

phrased rendition of that quotation. The petition actually reads as fol-

lows:

On information and belief, Mr. Hamdi was captured or

transferred into the custody of the United States in the Fall

of 2001.

J.A. 10. In its opinion, however, the panel relates the statement in this

way:

The petition further alleges that "Hamdi was captured or

transferred into the custody of the United States in the Fall

of 2001" in Afghanistan. . . .

Hamdi III, 316 F.3d at 460 (emphasis added). Thus, terribly signifi-

cantly given that the panel's opinion rests on the "undisputed" nature

of the circumstance, the panel supplies a geographical location of sei-

zure and detention that the statement in the petition just does not con-

tain, imputing a representation as to this location to the next friend.

And though it should not be necessary to put a finer point on it than

this, even had the petition statement actually contained the geographi-

cal location of seizure and detention that the panel thought, the state-

ment would not support the conclusion that the situs of seizure was

conceded. For, even with this significant alteration, the statement

would only admit that Hamdi was either "captured or transferred into

custody," not necessarily one as opposed to the other.

In fact, upon reading the petition, it is actually apparent that it scru-

pulously avoids any admission as to the precise geographical point of

seizure, likely because such was unknown to Hamdi's father, who

filed the petition. See J.A. 11 (Petition: "On or about January 11,

2002, the United States military began transporting prisoners captured

in Afghanistan to Camp X-Ray at the United States Naval Base in

Guantanamo Bay, Cuba. . . . On or about January 11, 2002, the pre-

cise date unknown to Petitioners but known to Respondents, the

United States military transferred Yaser Esam Hamdi to Camp X-

Ray, Guantanamo Bay, where he was held until April 2002.").

Because the panel opinion relies exclusively upon the next friend

petition for its conclusion that Hamdi was conceded to have been

seized in a foreign combat zone, and because none of the statements

in that petition either concede or can be fairly read to concede seizure

in such a location, the panel's opinion, which in turn rests exclusively

upon such a concession, is unconvincing.

C.

Sensing the vulnerability of the panel's opinion, the concurrences

in the denial of rehearing en banc (Judges Wilkinson and Traxler)

attempt to save the panel opinion by marshaling for the first time

today additional support, beyond that relied upon by the panel, for the

panel's conclusion that it has been conceded that Hamdi was seized

in a foreign combat zone. Thus, for example, Judge Wilkinson main-

tains, "Hamdi's own filings make clear that he was seized in a zone

of active combat operations," ante at 17 (emphasis added), by which

he makes reference not only to the next friend petition upon which the

panel solely relied, see, e.g., Hamdi III, 316 F.3d at 460; id. at 461

(stating that the Mobbs Declaration "confirms the material factual

allegations in Hamdi's petition"); id. at 471 ("Hamdi's petition alleges

that he was a resident of and seized in Afghanistan.. . ."); id. at 474

("Hamdi's petition places him squarely within the zone of active com-

bat. . . ."), but also to the new materials cited by the government in

its response to the petition for rehearing, in support of the court's con-

clusion that the location of seizure has been conceded. In particular,

excepting a letter that is admittedly "outside the legal arena" and thus

obviously irrelevant, Judge Wilkinson cites to Petitioner's Traverse

and Response to Respondent's Motion to Dismiss filed in the district

court and a statement by the district court. Ante at 17.

I have previously expressed my concern about the trend in our

court to attempt "to add to, subtract from, or recharacterize the facts

recited and relied upon in a challenged panel opinion, or even to fine-

tune, if not fundamentally reshape, the legal analysis undertaken by

the original panel, in the course of opinions respecting the denial of

rehearing en banc." Jones v. Buchanan, 325 F.3d 520, 538-40 (4th

Cir. 2003) (Luttig, J., dissenting) (citing cases). Without repeating in

full the reasons for this concern here, such attempted modifications

are unfair to the litigants, because the parties (and the public) are

bound by the panel opinion as it was written and issued, and they may

obtain further review only of the issued panel opinion, without regard

to modifications suggested by a concurrence in denial of en banc

rehearing. In other words, they are bound by the only opinion of law

in the case, not by the hypothetical opinion represented by the combi-

nation of the original panel opinion and purported modifications made

during proceedings appealing for en banc reconsideration. This is not

to say that explanatory concurrences in denials of rehearing en banc

should never be written by the author of the challenged opinion or by

judges who joined in that opinion; it is only to say that when such an

opinion would add significant factual or legal support for the judg-

ment reached, the appropriate course is for the panel to modify its

opinion formally so as to supply the important new facts or reasoning

in an opinion that then becomes the precedent for the court which

may be appealed by the parties to the Supreme Court of the United

States.

But putting this concern to one side, the very fact that the concur-

rences have felt need to offer up the additional support that they have

is confirmation that the panel at least now senses the analytical soft-

ness of its opinion. There would otherwise be no reason to attempt to

shore up that opinion with these additional materials, which the panel

fully considered originally and rejected as not providing any support

for its conclusion that the location of seizure was "undisputed."

In any event, apart from their irrelevancy now as a matter of law

given that they were not relied upon in the panel opinion, these addi-

tional materials, as the panel originally concluded, do not any more

prove an affirmative concession that Hamdi was captured in a foreign

combat zone, than do the statements contained in the petition filed by

the next friend - even if, in combination with that sole filing relied

upon by the panel, they render the case slightly closer.

Judge Wilkinson quotes from a traverse filed in the district court

which reads that the petitioner's claim does not "implicate Respon-

dents' initial detention of Petitioner Hamdi in Afghanistan." J.A. 64.

Much like the acknowledgment of Hamdi's place of residence, the

observation that Hamdi's claim does not implicate his initial detention

does not, and certainly should not in a court, say anything about

where he was originally seized - at least not necessarily. As does the

law, these parties themselves distinguish between seizure and deten-

tion throughout their submissions. If there were any doubt as to the

inappropriateness of drawing such an irrebuttable inference as to

place of seizure from place of detention in this instance, it should be

put to rest by the fact that that very same traverse filing states that

"[p]etitioner in no way concedes that Respondents' factual assertions

are true." J.A. 65 n.1. Indeed, it even specifically states that "informa-

tion about Petitioner Hamdi prior to his transfer to the custody of [the

government] is based on the hearsay of unknown members of the

Northern Alliance." Id. The other materials with which the concur-

rences now attempts to support the panel's opinion suffer from the

same flaw, as they too speak only as to the place of detention, not the

place of seizure.

Thus, neither the panel nor even the concurrences after the fact,

adduce a single statement from Hamdi's petition or any other filing

in this case in which there appears a concession that Hamdi was cap-

tured or seized in a foreign zone of active combat operations. A single

example suffices to show the extent of the reach attempted by the

panel. The concurrences now cite even to a defense counsel's single

word of agreement with a statement made by the district court that

Hamdi was "in a fighting situation." Ante at 17-18 n.2 (citing Tr. of

Aug. 13, 2002 district court proceedings). Not only is this single word

of agreement with this statement made by the district court ambiguous

on its face, it is followed by defense counsel's statement - omitted

by the concurrences - that "what is the problem with all of that, of

course, is that we have absolutely no detail with regard to the circum-

stances under which he was initially captured. . . . We don't know

what happened." J.A. 394.

D.

But more important than the substantive content of any of these

several oblique references marshaled by the concurrences in en banc

denial is their source. These statements, however they are interpreted,

are not from Hamdi or from counsel acting on his behalf. They are

from Hamdi's father, acting as next friend, who, it has been repre-

sented to us, has not even had any contact with his son since the latter

was seized over a year ago. As Judge Motz recognizes, even an unam-

biguous concession as to the location of Hamdi's seizure in such a

third party submission cannot, as a legal matter, bind Hamdi to a fact

that in turn is deemed dispositive of his claim for freedom.

In no sense, then, is the place of Hamdi's seizure "undisputed" by

the parties to this suit. An opinion that rests exclusively on the prem-

ise of a stipulated agreement as to this circumstance of seizure, as

does the panel's, is simply unconvincing. And it is rendered no more

convincing, even if it is thought more palatable, by the fact that rest-

ing decision on this ground permits superficial distinguishment on

fact (though not in principle) of the case in which a citizen seized on

American soil is denominated an enemy combatant, see Hamdi III,

316 F.3d at 465 (citing and distinguishing Padilla v. Bush, 233 F.

Supp. 2d 564 (S.D.N.Y. 2002)), which case the panel feared might

unavoidably be reached by a decision on the issue as presented and

under the facts as proffered.

E.

Judge Traxler writes extensively in defense of the panel opinion,

although, beyond embracing the materials newly cited by Judge Wil-

kinson, he does little more than repeat at length the panel's reasoning

(where needed, embroidering upon that opinion for himself), and

quote liberally from this and Judge Motz's opinion. But the juxtaposi-

tion of the particular defenses that he chooses to make, with their

obvious responses, all but confirms to the careful reader the short-

comings in the panel's opinion. It is undoubtedly for this reason that

Judge Traxler's co-panelists, who, with him, jointly authored the orig-

inal opinion, do not align themselves with him today.

1.

To begin with the most significant, Judge Traxler, though writing

to bolster the panel's conclusion that the place of seizure in a foreign

combat zone was in fact conceded in the next friend petition, actually

ends up admitting that the petition itself does not explicitly concede

seizure in such a zone. See, e.g., ante at 23-24 ("Judge Luttig cor-

rectly observes that the habeas petition does not explicitly state that

`Hamdi was captured in a zone of active combat in a foreign theater

of conflict.'"); id. at 23 (stating that "the petition[ ] fail[s] to affirma-

tively state that Hamdi was captured in a foreign combat zone"). This

is an admission of no small consequence, of course, for the panel

relied entirely upon the existence of such a concession of capture in

a foreign combat zone in the petition, and the opinion plainly

regarded this concession as having been made explicitly and unequiv-

ocally. Certainly, until today, the reader would have never thought

otherwise. Nowhere, for instance, is there even the slightest sugges-

tion that the panel regarded this dispositive concession as merely "im-

plicit." And there certainly is no mention of any inferential steps of

which one would expect explanation before a dispositive concession

is implied by a court.

By this candid admission alone, Judge Traxler has made out the

case against the panel's opinion better than have either Judge Motz

or myself. For if, as Judge Traxler says, this is a "momentous" case,

then he has now confirmed that it was dismissed on the basis of a con-

cession believed by the panel (though disputed by the parties) to have

been made only "implicitly," and at that, by a third party to the action

who not only had had no contact whatsoever with the petitioner him-

self, but who even disavowed that he could speak to the facts except

upon information and belief.

Unwittingly compounding further the analytical problems that

beset the panel's opinion as it is written, Judge Traxler next attempts

to marshal for the first time support for what was the panel's

assumed, but wholly unsupported, holding that a next friend may con-

cede facts sufficient to conclude a litigation when the detainee is inac-

cessible to the next friend by reason of the respondent's own actions.

All that need be said as to this effort is that, after now critically

addressing himself as a single judge to the proposition that the panel

originally uncritically assumed, Judge Traxler is able to cite only a

single case and that of a district court almost forty years ago. See ante

at 29 (citing Hall v. Hague, 34 F.R.D. 449 (D. Md. 1964)). And not

even that case holds that a next friend may concede the facts that will

lead to the dismissal of the plaintiff's suit in circumstances anywhere

approaching those presented by this case. Thus, on this score as well,

has Judge Traxler made the case for dissent better than have either

Judge Motz or myself.

Judge Wilkinson, to his credit, recognizes as much, and attempts

to salvage the panel opinion on this critical point by asserting that "or-

dinary civil [and] criminal litigants" cannot be bound by next friend

concessions, but that Hamdi must be so bound, for the reason that he

allegedly was seized in a foreign zone of active combat operations.

See ante at 17-18 n.2. But in attempting the salvage, Judge Wilkinson

himself comes very close (although he does not realize it) to outright

conceding the indefensibility of the point, because the binding charac-

ter of a next friend concession obviously does not turn upon whether

the concession is or is not made on behalf of an individual allegedly

seized abroad, or even an individual seized abroad in a foreign theater

of battle. Nor does the separation of powers have anything to do with

this necessary legal fact. And even if the binding character of a next

friend concession somehow did turn upon the location of the petition-

er's seizure, the principle would cut in precisely the opposite direction

from that believed by Judge Wilkinson: the alleged concession might

be binding upon one seized domestically with whom the next friend

is in unfettered contact, but presumptively would never be binding

upon one seized abroad and held incommunicado.

In tacit recognition that these belated arguments as to the fact of

concession and the legal acceptability of third-party fact concessions

ring hollow, Judge Traxler (notably speaking only for himself) sug-

gests finally that the panel would have reached the same outcome in

this case even had it not concluded that the place of seizure was

undisputed. See ante at 37 ("Nor for that matter, did we even hold that

the Mobbs Declaration would have been insufficient had the place of

capture been in dispute in this case."). I do not know quite how to

respond to this statement, because I am in no position to say that, irre-

spective of what the panel wrote, it would not have decided the case

differently had it concluded that the location of seizure was disputed.

All that I, the parties, and the public can do is reason inferentially

from the opinion for the court, which the panel did write. And based

upon that opinion, while Judge Traxler may now in hindsight charac-

terize the supposed concession by Hamdi's next friend as insignifi-

cant, the panel opinion he co-authored treats it as anything but. The

opinion well speaks for itself in rebuttal to this suggestion. Said the

panel, in emphasized words that Judge Traxler would have us over-

look today, the concession of seizure in a combat zone made in the

petition is "crucial to our analysis." Hamdi III, 316 F.3d at 471.

Thus, while Judge Traxler may now want to say that the panel

would decide the case no differently absent a concession, he is faced

with self-contradiction to so maintain, given that the opinion he co-

authored went out of its way to denominate as "crucial" to its analysis

the concession that it mistakenly believed was made. The unavoidable

inference to be drawn from such a characterization of fact disposi-

tively relied upon is not, as Judge Traxler would now have it, that

absent that fact, the disposition would still be the same, but rather,

that the disposition reached on the strength of that fact quite likely

would be different if the fact were otherwise.

2.

Unable to shore up the foundation of the panel's opinion, that

Hamdi's next friend conceded that Hamdi was seized in a zone of

active combat operations and bound Hamdi to that fact, Judge Traxler

attempts to shift the focus away from the panel's opinion and the ulti-

mate legal issue entirely, by erecting and then attacking a series of

straw man arguments he ascribes to this dissent. Thus, he suggests

that I argue that the facts alleged in the petition should be taken as

false, ante at 27-28, and that I am "attempt[ing] to rewrite the case

history and the substance of the habeas claim," ante at 28. Of course,

I make no such arguments. I make the simple point that the petition

does not affirmatively concede capture in a foreign combat zone, a

fact that Judge Traxler now admits, see ante at 23.

Judge Traxler next argues that I have unfairly stated that neither

party has attempted to defend the significance of the place of capture,

ante at 37-38. Again, I make no such statement. What I have stated

is that neither party assigned any legal significance to the argument

relied on by the panel that the locus of capture was "undisputed."

(And, given the record as I have recited it herein, it is unsurprising

that they did not.) But to remove the source of my objection from all

doubt, and as I explain more fully below, it is not the panel's reliance

on the place of capture that troubles me. Rather, it is the panel's inde-

fensible reliance on an assumed concession by the petitioner, as

opposed to a proffer by the government, to establish this "fact."

In his final attempt to shift the focus to a criticism that I have not

made, but to which response is easier, Judge Traxler asserts that I am

criticizing the panel for issuing a narrow, as opposed to a broad, hold-

ing. See ante at 37. As I have quite clearly said, however, the panel's

error in my view was not in its search for a narrower ground, but

rather in the unpersuasiveness of the putatively narrower ground on

which it ultimately relied - a concession by Hamdi as to the place

of his seizure. Not only is this narrower ground of concession factu-

ally unpersuasive, it is also unpersuasive as a matter of law, for the

reasons Judge Motz and I have set forth.

3.

When all is said and done, then, Judge Traxler's writing today both

confirms the vulnerabilities inherent in the panel's opinion he seeks

to defend and puts the lie to the panel's assertion that, by grounding

its decision on the reputed concession by Hamdi's next friend, it both

provided Hamdi meaningful judicial review and protected the Presi-

dent's Article II powers to determine who and who are not enemies

of the United States.

As to the former, not only does he admit that there is no such

explicit concession as the panel believed, but he is forced as well to

acknowledge that there is not even legal support for the panel's unex-

amined supposition that a next friend can actually concede a disposi-

tive fact without even the petitioner's knowledge. As to the latter, his

analytical admissions betray well that Hamdi was not provided the

meaningful judicial review that he was promised. And, through his

attempt to discount the importance of the supposed concession to the

panel's disposition, he only draws attention to the pivotal importance

of that supposed concession and thereby to the trifling deference the

panel accorded the President of the United States in his determina-

tions of who constitute enemies of our Country. A more forceful

explanation of the grounds for dissent I could not make.

II.

Because of the overarching importance of the opinion of law that

resolves the issue presented by this appeal, because of the panel opin-

ion's dismissiveness of the substantial interests at stake in this case

for both citizen and government, and because of the analytical vulner-

ability of the court's opinion as it stands, I believe that both the

United States and the petitioner would be served by reconsideration

by our full court.

Upon reconsideration, we should decide the critical issue of the

appropriate standard that is to govern the Judiciary's review of an

individual's challenge to an Executive designation of enemy comba-

tant status, the indecision of which by the panel I believe fails to serve

the substantial interests of not only the parties but also the public in

the resolution of this issue. Having decided the governing standard,

we should decide the issue of whether that standard has been satisfied

in this case by the government's proffer of the facts contained in the

Michael H. Mobbs affidavit, the like indecision of which by the panel

also, I believe, fails to serve the parties and the public.

III.

Although I reserve ultimate judgment because of the difficulty of

the issue and because I write in dissent from the request to rehear the

case and therefore without the benefit of argument, I believe, as to the

standard of review, that the government may be correct that

[p]roper respect for separation of powers and the limited

role and capabilities of courts in matters of national security

may well limit the courts to the consideration of legal

attacks on detention of the type considered in [ Ex parte]

Quirin[, 317 U.S. 1 (1942)] and [In re] Territo, [156 F.2d

142 (9th Cir. 1946),] and raised by the petition in this case.

At most, however[ ] . . . a court's proper role in a habeas

proceeding such as this would be to confirm that there is a

factual basis supporting the military's determination that a

detainee is indeed an enemy combatant.

Br. of Respondents-Appellants at 28 (internal citation omitted); see

also id. at 36 ("[T]o prevail under a constitutionally appropriate stan-

dard, the government would at most need to provide some factual

basis for supporting the military's determination that Hamdi is an

enemy combatant."). That is, I believe that the President of the United

States may well be entitled under the Constitution to receive from the

Judiciary the deference afforded by a standard selected from those

along this continuum, when, in exercise of the powers conferred upon

him by Article II of the Constitution, he designates a person as an

enemy combatant against this Nation.

As to the application of the standard to the facts proffered by the

government in support of the Executive's designation of Hamdi as an

enemy combatant, I reserve ultimate judgment for the same reasons.

I am prepared to say, however, that I would likely conclude, as argued

by the United States, that the facts recited in Special Advisor Mobbs'

affidavit, as to which there is not even hint of fabrication, are suffi-

cient to satisfy the constitutionally appropriate standard for the Presi-

dent's designation of an enemy of the United States.

This affidavit states that Hamdi traveled to Afghanistan in the sum-

mer of 2001, where he promptly affiliated with a Taliban military unit

and received weapons training. It further states that during a battle

between the Taliban and the Northern Alliance later that year,

Hamdi's Taliban unit surrendered to Northern Alliance forces. It con-

tinues that Hamdi was directed to surrender his Kalishnikov assault

rifle (i.e., AK-47) to Northern Alliance forces and was subsequently

imprisoned. The affidavit represents that, while in prison, Hamdi was

determined by the United States military screening team to meet the

criteria for enemy combatants over whom the United States was tak-

ing control. And finally, the affidavit relates that in January 2002, a

Detainee Review and Screening Team established by the Commander

of the United States Central Command reviewed Hamdi's record and

determined again that he met the criteria established by the Secretary

of Defense for individuals over whom United States forces should

take control and transfer to Guantanamo Bay.

In addition to these declarations made under penalty of perjury by

the appointed representative of the government, the President of the

United States, through his Solicitor General, has represented to this

court that in his judgment Hamdi is indeed an enemy combatant,

detention of whom is warranted in the interests of national security.

The panel's contrary holding notwithstanding, I suspect that more

than this would be unnecessary to affirm the President's decision to

designate Hamdi an enemy of the United States.

In all events, I believe that it is the obligation of this court to decide

these issues that have been presented to us by the United States and

by one of its citizens. At times, judicial avoidance of the difficult and

the politically charged is the more prudent and the more faithful to the

judicial role, both. This is a case in which it is neither.

**********

For the reasons set forth, I would grant the suggestion for rehearing

en banc. Accordingly, I respectfully dissent from the court's denial of

that suggestion.

DIANA GRIBBON MOTZ, Circuit Judge, dissenting from denial of

rehearing en banc:

For more than a year, a United States citizen, Yaser Esam Hamdi,

has been labeled an enemy combatant and held in solitary confine-

ment in a Norfolk, Virginia naval brig. He has not been charged with

a crime, let alone convicted of one. The Executive will not state

when, if ever, he will be released. Nor has the Executive allowed

Hamdi to appear in court, consult with counsel, or communicate in

any way with the outside world.

Precedent dictates that we must tolerate some abrogation of consti-

tutional rights if Hamdi is, in fact, an enemy combatant. However, a

panel of this court has held that a short hearsay declaration by Mr.

Michael Mobbs - an unelected, otherwise unknown, government

"advisor," - "standing alone" (subject to no challenge by Hamdi or

court-ordered verification) is "sufficient as a matter of law to allow

meaningful judicial review" and approval of the Executive's designa-

tion of Hamdi as an enemy combatant. See Hamdi v. Rumsfeld, 316

F.3d 450 (4th Cir. 2003). I cannot agree.

To justify forfeiture of a citizen's constitutional rights, the Execu-

tive must establish enemy combatant status with more than hearsay.

In holding to the contrary, the panel allows appropriate deference to

the Executive's authority in matters of war to eradicate the Judiciary's

own Constitutional role: protection of the individual freedoms guaran-

teed all citizens. With respect, I believe the panel has seriously erred,

and I dissent from the court's refusal to rehear this case en banc.

I.

The panel's decision marks the first time in our history that a fed-

eral court has approved the elimination of protections afforded a citi-

zen by the Constitution solely on the basis of the Executive's

designation of that citizen as an enemy combatant, without testing the

accuracy of the designation. Neither the Constitution nor controlling

precedent sanction this holding.

The rights provided in the Constitution to each American citizen

include the right to due process of law and to petition for a writ of

habeas corpus. U.S. Const. amend. V; art. I, § 9. Unquestionably, the

availability of habeas relief extends to detention pursuant to the Exec-

utive's military authority. See, e.g., Ex parte Milligan, 71 U.S. (4

Wall.) 2, 120-21 (1866); Duncan v. Kahanamoku, 327 U.S. 304

(1946). Just as clearly, the responsibility for ensuring that individuals

detained by the Executive receive the due process guarantees of the

Constitution, including the right to petition for habeas corpus, rests

with the courts. See In re Yamashita, 327 U.S. 1, 9 (1946). As the

Supreme Court has explained, "the allowable limits of military discre-

tion, and whether or not they have been overstepped in a particular

case, are judicial questions," Sterling v. Constantin, 287 U.S. 378, 401

(1932); see Duncan, 327 U.S. at 322-23; and the "government must

always be accountable to the judiciary for a man's imprisonment."

Fay v. Noia, 372 U.S. 391, 402 (1963), overruled on other grounds,

Coleman v. Thompson, 501 U.S. 722 (1991).

The panel acknowledges as much, conceding that "[t]he duty of the

judicial branch to protect our individual freedoms does not simply

cease whenever our military forces are committed by the political

branches to armed conflict" and that "detention of United States citi-

zens must be subject to judicial review." Hamdi, 316 F.3d at 464. Fur-

ther, the panel recognizes that Hamdi, "an American citizen currently

detained on American soil," is entitled to petition for a writ of habeas

corpus and that habeas proceedings "naturally contemplate[ ] the

prospect of factual development." Id. at 470, 473. The panel even rec-

ognizes the inadequacy of the sole "evidence" the Executive has prof-

fered to support its enemy combatant designation of Hamdi - the

Mobbs declaration - for it admits that "a capable attorney could

challenge the hearsay nature of the Mobbs declaration and probe each

and every paragraph for incompleteness or inconsistency." Id. at 473.

Yet, the panel concludes that "no . . . factual inquiry on our part is

necessary or proper" and that "Hamdi is not entitled to challenge the

facts presented in the Mobbs declaration." Id. at 473, 476.

The panel suggests that this conclusion accords with precedent. See

id. at 475 ("this same issue arose in Quirin . . . the Quirin principle

applies here"). In fact the Supreme Court has never held that a person

designated by the Executive as an enemy combatant cannot challenge

that designation or that a court cannot require the Executive to sub-

stantiate it. In the case on which the majority relies, Ex Parte Quirin,

317 U. S. 1 (1942), the Court did hold that for a violation of the laws

of war, even an American citizen could be treated as an "enemy com-

batant" and held without the full array of Constitutional rights, but

only because the citizen, after consultation with legal counsel, stipu-

lated to the facts supporting the enemy combatant designation.

Thus, in Quirin, a German-born soldier, who claimed to be an

American citizen, stipulated that after receiving payment by the Ger-

man government and instruction by the "German High Command to

destroy war industries and war facilities in the United States," he and

six other German soldiers secretly landed in the United States during

World War II with "a supply of explosives." Id. at 20-21. Only after

finding that these "conceded facts" demonstrated "plainly" that the

soldiers were within the "boundaries of the jurisdiction of military tri-

bunals," did the Supreme Court reject their contention that they could

not be tried by a military commission. Id. at 46. Critical to the case

at hand, the Court first expressly rejected the Executive's argument

that the soldiers, "must be denied access to the courts because they

are enemy aliens who have entered our territory." Id. at 24-25.

Instead, each of the soldiers was permitted, with the assistance of

counsel, to file his own (not a next friend) petition for a writ of habeas

corpus, which the courts reviewed to ensure that each soldier was in

fact an enemy combatant. Id.

None of the few other Supreme Court cases addressing the rights

of enemy combatants involved American citizens. But even when

dealing with the claims of German and Japanese citizens detained by

military authorities outside the United States during World War II, the

Court has never suggested that an enemy combatant is without

recourse to challenge that designation in court. On the contrary, the

Court has held that a resident alien - who, the Court specifically

noted, has far less status than those, like Hamdi, who enjoy the "high

privilege" of citizenship - can challenge the Executive's designation

of him as an enemy. Johnson v. Eisentrager, 339 U.S. 763, 770, 775

(1950) (internal quotation marks and citation omitted). As the Court

explained: "Courts will entertain his plea for freedom from Executive

custody only to ascertain the existence of a state of war and whether

he is an alien enemy." Id. at 775 (emphasis added); see also id. at

784-85; Ludecke v. Watkins, 335 U.S. 160, 171 n.17 (1948) (noting

that "whether the person restrained is in fact an alien enemy . . . may

also be reviewed by the courts"); Yamashita, 327 U.S. at 8 (noting

that "[t]he courts may inquire whether the detention complained of is

within the authority of those detaining the petitioner" and "the Execu-

tive branch of the government could not, unless there was a suspen-

sion of the writ, withdraw from the courts the duty and power" to

inquire whether the "Constitution or laws of the United States with-

hold authority" from a military tribunal).

Moreover, the Supreme Court has upheld the Executive's designa-

tion of a person as an enemy alien or enemy combatant only when

presented with facts supporting this designation - facts stipulated by

the petitioner with the advice of counsel, as in Quirin, or facts proved

by the prosecution at a military trial in which the petitioner was

afforded counsel, as in Yamashita. In the case at hand, no facts have

been presented to support the Executive's designation. The Executive

has not permitted Hamdi to consult with counsel or challenge the alle-

gations contained in the Mobbs declaration. And Hamdi has certainly

not stipulated to anything. Denied the most basic procedural protec-

tions, Hamdi could not possibly mount a challenge to the Executive's

designation of him as an enemy combatant. Yet in Eisentrager, Lud-

ecke, and Yamashita the Supreme Court has explained that even

aliens are entitled to precisely this right. Thus, far from supporting the

panel's position, controlling precedent prohibits its approach.

II.

Without any acknowledgment of its break with precedent, the panel

embarks on a perilous new course - approving the Executive's des-

ignation of enemy combatant status not on the basis of facts stipulated

or proven, but solely on the basis of an unknown Executive advisor's

declaration, which the panel itself concedes is subject to challenge as

"incomplete[ ]" and "inconsisten [t]" hearsay. Hamdi, 316 F.3d at 473.

My good colleagues' opinion, although well-intentioned and replete

with compelling declarations of separation-of-powers principles with

which no one would quarrel, utterly fails to set forth an adequate

rationale for its breathtaking holding.

Indeed, the panel offers only a single justification for its unprece-

dented decision to permit the Executive to support its designation of

Hamdi as an enemy combatant with pure hearsay: Hamdi's capture in

a "zone of active combat" was assertedly "undisputed." See Hamdi,

316 F.3d at 459 ("Because it is undisputed that Hamdi was captured

in a zone of active combat in a foreign theater of conflict, we hold the

submitted declaration is . . . sufficient." (emphasis added)); id. at 476

("Hamdi is not entitled to challenge the facts presented in the Mobbs

declaration," because he "has been designated an enemy combatant

and it is undisputed that he was captured in a zone of active combat

operations abroad." (emphasis added)). According to the panel, this

apparently all-important fact is "undisputed" because "Hamdi's peti-

tion places him squarely within the zone of active combat." Id. at 474;

see also id. at 460-61.

This is a thin reed on which to rest abrogation of constitutional

rights, and one that collapses entirely upon examination. For Hamdi

has never been given the opportunity to dispute any facts. The "facts"

as to the place of Hamdi's "capture" could only be "undisputed" by

reliance on a facially innocuous statement in a petition filed by

Hamdi's father, as his "next friend." Thus, the panel determines that

a petition filed by a next friend on behalf of, but without access to or

consultation with, the petitioner constitutes a binding admission by

the petitioner that results in the forfeiture of the petitioner's constitu-

tional rights. This holding flatly contravenes venerable Supreme

Court precedent. The Court long ago held that "a next friend or guard-

ian ad litem cannot, by admissions or stipulations, surrender the rights

of" the represented party. Kingsbury v. Buckner, 134 U.S. 650, 680

(1890); see also White v. Miller, 158 U.S. 128, 146 (1895) (same);

Stolte v. Larkin, 110 F.2d 226, 233 (8th Cir. 1940) (collecting cases).¹

____________________________________________________________

¹ Judge Wilkinson contends in his concurrence to the order denying

rehearing en banc that these cases do not apply to Hamdi because he is

an enemy combatant who is not entitled to rights "enjoyed by ordinary

civil or criminal litigants." See ante at 17-18 n.2. This reasoning is dizzy-

ingly circular. The panel relied heavily on an admission of Hamdi's next

Just as importantly, even if the statement in his father's petition

that "[w]hen seized," Hamdi "resided in Afghanistan," J.A. 9, some-

____________________________________________________________

friend (who had no opportunity to consult with Hamdi) to find Hamdi an

enemy combatant. Now, Judge Wilkinson maintains that because Hamdi

is an enemy combatant, White and Kingsbury do not apply, and Hamdi

is bound by his next friend's assertedly critical admission. Id. Thus,

Judge Wilkinson seeks to use the panel's conclusion (that Hamdi is an

enemy combatant) to justify the panel's improper reliance on an admis-

sion of Hamdi's next friend, which provides the very basis for that con-

clusion. In sum, according to Judge Wilkinson, because Hamdi's next

friend made a purportedly devastating admission, Hamdi forfeits all

rights to challenge that admission, and ultimately all constitutional rights.

Surely this does not constitute the "meaningful judicial review" that the

panel promised. See Hamdi, 316 F.3d at 462, 473.

Nor does the district court opinion, Hall v. Hague, 34 F.R.D. 449 (D.

Md. 1964), relied on by Judge Traxler in his concurrence, ante at 29,

offer support for the panel's startling approach. In Hall, a district judge

merely determined that the guardian ad litem of a minor could admit cer-

tain housekeeping matters prior to trial, on the understanding that "[a]t

the trial, the judge will be able to tell if any unjustified admissions have

been made and take appropriate action." Id. at 449-50 (internal quotation

marks and citation omitted) (emphasis added). This is a long way from

holding, as the panel does (ignoring Kingsbury and White), that a state-

ment in a petition filed by Hamdi's next friend constitutes an admission

by Hamdi providing the basis for denial of his constitutional rights and

indefinite imprisonment, without the benefit of any trial. Indeed, Judge

Traxler's assertion that "there is no reason to believe that [Hamdi's]

rights are being bargained away or that a factual mistake is being made,"

in the next friend petition, ante at 29 n.7, ignores the obvious. How could

there be any "reason to believe that rights are being bargained away or

that a factual mistake is being made" when the only person who could

offer such a reason or contest a factual mistake - Yaser Esam Hamdi

- has never been given the chance to do so? By keeping Hamdi impris-

oned incommunicado, the Executive has denied him this opportunity.

Thus, we simply have no idea whether his "rights are being bargained

away" or "a factual mistake is being made." It is precisely to avoid

resolving an individual's fate on such uncertain grounds that the

Supreme Court has held that a next friend petition "cannot be excepted

to for insufficiency, nor can any admission . . . be binding." White, 158

U.S. at 146.

how translated into Hamdi's admission that he was captured "in a

zone of active combat," Hamdi, 316 F.3d at 459, this should not ren-

der the Executive's designation of enemy combatant status irrebutt-

able. The ramifications of such a holding are chilling. Pursuant to the

panel's decision, for example, any of the "embedded" American jour-

nalists covering the war in Iraq or any member of a humanitarian

organization working in Afghanistan,² could be imprisoned indefi-

nitely without being charged with a crime or provided access to coun-

sel if the Executive designated that person an "enemy combatant."

Indeed, under the panel's holding, any American citizen seized in a

part of the world where American troops are present - e.g., the for-

mer Yugoslavia, the Philippines, or Korea - could be imprisoned

indefinitely without being charged with a crime or afforded legal

counsel, if the Executive asserted that the area was a zone of active

combat.³ Thus, the only basis for relying on a hearsay declaration to

approve the Executive's designation of Hamdi as an enemy comba-

tant, i.e., Hamdi's assertedly "undisputed capture[ ] in a zone of active

combat," is in truth a chimera and certainly provides no justification

for the panel's extraordinary holding.

____________________________________________________________

² I note that in a letter to Senator Patrick Leahy, contained in the record,

but ignored by the panel, Hamdi's father, in fact, states that his son went

to Afghanistan less than two months before September 11, 2001 to do

"relief work," was "trapped in Afghanistan once that military campaign

began," could not have received military training, and was never an

enemy combatant. J.A. 153-54.

³ I find puzzling the contention that the panel opinion "does not speak

to the issue of whether an `enemy combatant' may challenge the govern-

ment's claim that the former Yugoslavia, the Philippines, or Korea is a

zone of active military operations," ante at 36-37. First, no basis is pro-

vided for distinguishing between the "troops . . . still on the ground in

Afghanistan," Hamdi, 316 F.3d at 476, and American troops "on the

ground" in the former Yugoslavia, the Philippines, or Korea. Moreover,

in suggesting that a person detained in one of those countries might be

able to challenge the Executive's designation of that country as a zone

of active military operations, the concurrence necessarily implies that the

question of what constitutes such a zone is justiciable - a conclusion

seemingly at odds not only with the panel opinion, see 316 F.3d at 476

(dismissing Hamdi's contention that hostilities in Afghanistan had

ended), but also with the concurrence itself. See ante at 32 n.9.

Nor, as the panel implicitly acknowledges, does the two-page, nine

paragraph Mobbs declaration by itself, provide such justification. The

panel's assessment of the Mobbs declaration is entirely accurate; that

declaration could indeed be easily and successfully "challenge[d]" as

"hearsay," and "probe[d]" for "incompleteness or inconsistency."

Hamdi, 316 F.3d at 473.⁴ The declaration contains no indicia of reli-

ability except for Mr. Mobbs' oath - which seems of minimal value

given that Mr. Mobbs does not claim any personal knowledge of the

facts surrounding Hamdi's capture and incarceration. Rather Mr.

Mobbs states that his "familiar[ity]" with "the facts and circum-

stances" surrounding Hamdi's capture, is "[b]ased upon" his review

of undisclosed and unenumerated "relevant records and reports." J.A.

61. In fact, Mr. Mobbs himself did not (perhaps could not) make the

determination that Hamdi is an "enemy combatant." Instead, Mr.

Mobbs can merely declare that, according to "records and reports,"

"Hamdi was determined by the U.S. military screening team to meet

the criteria for enemy combatants." J.A. 62. The Mobbs declaration

does not even state what, if any, evidence this "U.S. military screen-

ing team" relied on in making that determination or whether Mr.

Mobbs himself conducted any independent review of this evidence.

Indeed, the declaration's statement that Northern Alliance troops ini-

tially captured Hamdi suggests that even the U.S. military does not

have any first-hand knowledge of Hamdi's conduct or status in

Afghanistan.

In sum, the record provides no credible evidence supporting the

Executive's designation of Hamdi as an enemy combatant. Accord-

ingly, a court has no basis upon which to perform its constitutional

duty "`to examine'" the "`validity'" of the "`reason'" for Hamdi's

"`commitment.'" See Ex parte Merryman, 17 F. Cas. 144, 150 (No.

9,847) (C.C. Md. 1861) (noting "`the absolute necessity of expressing

upon every commitment the reason for which it is made, [and] that

the court, upon a habeas corpus, may examine into its validity'"

(quoting 3 Blackstone, Commentaries 133, 134)). Thus, although the

panel steadfastly maintains that it engages in a "meaningful judicial

____________________________________________________________

⁴ The panel twice details the statements made in the Mobbs declaration,

Hamdi, 316 F.3d at 461 and 472, and the Executive forcefully contends

that the declaration meets the "some evidence" standard, but the panel

carefully refrains from so holding. Id. at 474.

review," see Hamdi, 316 F.3d at 462, 473, its rubberstamp of the

Executive's unsupported designation lacks both the procedural and

substantive content of such review.⁵

At the same time, I hasten to note that the total inadequacy of the

Executive's proffer and the panel's review here does not provide

license for a searching judicial inquiry into the factual circumstances

of every detainee's capture, or require compliance with a production

order as demanding as that called for by the district court.⁶ Such an

approach could hamper the Executive's ability to wage war, as the

panel explains at length. See Hamdi, 316 F.3d at 469-473. But the

possibility, no matter how real, that an improperly conducted judicial

inquiry could impair the Executive's ability to wage war cannot, as

the panel seems to believe, provide a justification for holding that the

Executive can indefinitely detain an American citizen (even one cap-

tured in a zone of active hostilities) without producing any credible

evidence that the citizen is an "enemy combatant." The Constitution

____________________________________________________________

⁵ Moreover, while I applaud the panel's attempt to confine its holding

to the facts at hand, without effect on the rights of citizens captured on

American territory, see Hamdi, 316 F.3d at 465, similar attempts to con-

strain judicial holdings have proved unavailing. As Justice Jackson

recounted, despite the Supreme Court's careful efforts to limit the scope

of its holding in Hirabayashi v. United States, 320 U.S. 81 (1943), to the

specific facts of that case, see id. at 101-02, 105, the Court later deter-

mined that Hirabayashi dictated the holding in Korematsu v. United

States, 323 U.S. 214, 218 (1944). See id. at 247 (Jackson, J., dissenting)

("The Court is now saying that in Hirabayashi we did decide the very

things we there said we were not deciding."). I fear that the panel may

also have opened the door to the indefinite detention, without access to

a lawyer or the courts, of any American citizen, even one captured on

American soil, who the Executive designates an "enemy combatant," as

long as the Executive asserts that the area in which the citizen was

detained was an "active combat zone," and the detainee, deprived of

access to courts and counsel, cannot dispute this fact.

⁶ Although I agree with the panel that the district court's production

order required too much, the experienced district judge should be com-

mended nonetheless. For, during wartime and in the face of opposition

by representatives of a President enjoying record popular support, the

district judge has courageously attempted to provide the meaningful judi-

cial review that the Constitution mandates, however unpopular the case.

gives Congress, not the Executive and not the courts, the power to

suspend the writ of habeas corpus when the public safety requires it.

U.S. Const. art. I, § 9. Absent a suspension of the writ, the Constitu-

tion demands that we strike the proper balance between ensuring the

Executive's ability to wage war effectively and protecting the individ-

ual rights guaranteed to all American citizens. See Yamashita, 327

U.S. at 8. Without such a balance, our system of ordered liberty will

indeed ring hollow.

Thus, in contrast to the panel's holding, which effectively trans-

forms the asserted "fact" of being captured in a zone of active hostili-

ties into an irrebuttable presumption of "enemy combatant" status,⁷ a

court could regard such a "fact" as creating a rebuttable presumption,

thereby shifting the burden to Hamdi (and others like him) to estab-

lish that he was not an "enemy combatant." The burden of persuasion

would then be on Hamdi, with the aid of counsel, to proffer affirma-

tive evidence of his "non-combatant" status. This would seem to be

the course dictated by precedent.

Alternatively, if the Executive produced the "relevant records and

reports" on which Mr. Mobbs relied in making his declaration, a court

might be able to assure itself of the legitimacy of the Executive's des-

ignation. (Of course, the possibility that the "relevant records" per-

taining to Hamdi's detention might contain no evidence that he was

an "enemy combatant" is precisely the reason why judicial review is

necessary.) The Department of Defense has obviously already com-

____________________________________________________________

⁷ Notwithstanding Judge Traxler's contention, nineteenth and early

twentieth century takings cases do not support the panel's de facto cre-

ation of this irrebuttable presumption to justify Hamdi's indefinite

imprisonment. Cf. ante at 32. Those cases, upholding the wartime

destruction or seizure without compensation of property outside the

United States, including property owned by U.S. citizens, do broadly

note that "[i]n war, all residents of [an] enemy country are enemies."

Lamar v. Browne, 92 U.S. 187, 194 (1875). But no liberty rights of U.S.

citizens were at issue in any of those cases or their progeny. See, e.g.,

Juragua Iron Co. v. United States, 212 U.S. 297, 305-306 (1909);

Lamar, 92 U.S. at 194. Indeed, the Supreme Court has never held that

an American citizen becomes an "enemy" and can be deprived of his lib-

erty rights solely by virtue of residing in an enemy country during war-

time.

piled and collected these records. Producing them for judicial review,

ex parte and in camera if necessary, would not in any way hamper

the Executive's ability to wage war. Indeed, the Executive has appar-

ently already made similar productions in other cases. See Padilla v.

Bush, 233 F. Supp. 2d 564, 608 (S.D.N.Y. 2002); United States v.

Lindh, 212 F. Supp. 2d 541 (E.D. Va. 2002). Such evidence might

suffice to substantiate the Executive's designation.⁸

But in all events, the Executive must offer more than hearsay to

support that designation; and so in answer to the question certified to

us - "[w]hether the Mobbs Declaration, standing alone, is sufficient

as a matter of law to allow a meaningful judicial review of Yasser

Esam Hamdi's classification as an enemy combatant?" - the answer

must be, "No."

III.

In conclusion, I must note that I have no doubt that, in this time of

great challenge for our Nation, the Executive has acted in good faith

when designating Hamdi an enemy combatant. Under our Constitu-

tion, however, it is the responsibility of the courts to ensure that

American citizens are not deprived of liberty without due process of

law, regardless of the personal belief of any individual judge concern-

ing the integrity of the Executive. As the Framers well understood,

the Executive branch must be subjected to checks on its power if indi-

vidual liberties are to be preserved. See Duncan, 327 U.S. at 322-23;

see also United States v. Robel, 389 U.S. 258, 264 (1967).

But one need not refer back to the time of the Framers to under-

stand that courts must be vigilant in guarding Constitutional free-

doms, perhaps never more so than in time of war. We must not forget

____________________________________________________________

⁸ In Padilla, now certified for interlocutory appeal to the Second Cir-

cuit, the district court ruled that it would apply the "some evidence" stan-

dard suggested by the Executive, once Padilla - with the assistance of

counsel - "presents any facts he may wish to present to the court"

regarding his designation as an enemy combatant. Padilla, 233 F. Supp.

2d at 608, 610; Padilla v. Rumsfeld, 2003 WL 1858157 (S.D.N.Y. April

9, 2003) (granting government's motion to certify orders in case for

interlocutory appeal).

the lesson of Korematsu, a case in which the Supreme Court sanc-

tioned the military internment of thousands of American citizens of

Japanese ancestry during World War II. See 323 U.S. at 219. In its

deference to an Executive report that, like the Mobbs declaration, was

filed by a member of the Executive associated with the military and

which purported to explain the Executive's actions, the Court upheld

the Executive's conviction of Korematsu for simply remaining in his

home, in violation of the military internment order. See id. at 215-16.

Of course, history has long since rejected the Korematsu holding.

Indeed, Congress itself has specifically repudiated Korematsu, recog-

nizing that "a grave injustice was done to" those "of Japanese ancestry

by th[e] actions . . . carried out without adequate security reasons and

. . . motivated largely by racial prejudice, wartime hysteria, and a fail-

ure of political leadership." 50 App. U.S.C.A. § 1989a(a) (West

1990). But in truth, here, as in Korematsu, the Executive has failed

to proffer any real evidence to justify its action. When presented with

no basis for reviewing the Executive's designation that an American

citizen is an enemy combatant, other than the assurance of a Defense

Department "advisor" that someone in the United States military

made this determination, a court must demand more. Cf. Korematsu,

323 U.S. at 245 (Jackson, J., dissenting) ("So the Court, having no

real evidence before it, has no choice but to accept General DeWitt's

own unsworn, self-serving statement, untested by any cross-

examination.").

The Executive's treatment of Hamdi threatens the freedoms we all

cherish, but the panel's opinion sustaining the Executive's action con-

stitutes an even greater and "more subtle blow to liberty." Id. at 245-

46 (Jackson, J., dissenting). For although the incommunicado impris-

onment of Hamdi will hopefully terminate some day, the panel opin-

ion rationalizing this imprisonment will live on. As Justice Jackson

warned, when the Executive "overstep[s] the bounds of constitutional-

ity, . . . it is an incident," but when a court "review[s] and approve[s],

that passing incident becomes the doctrine." Id. at 246.

Courts have no higher duty than protection of the individual free-

doms guaranteed by our Constitution. This is especially true in time

of war, when our carefully crafted system of checks and balances

must accommodate the vital needs of national security while guarding

the liberties the Constitution promises all citizens. See id. at 234

(Murphy, J., dissenting) ("Individuals must not be left impoverished

of their constitutional rights on a plea of military necessity that has

neither substance nor support."). I believe that our court has failed in

this case to carry out this most important responsibility. I would

require a greater showing from the Executive before I would permit

an American citizen, held in the United States, to be imprisoned

indefinitely, without ever being afforded the opportunity to appear in

court, contest the allegations against him, or consult with a lawyer.

It is for all of these reasons that I respectfully dissent from the

court's denial of rehearing en banc.⁹

____________________________________________________________

⁹ Contrary to Judge Wilkinson's suggestion in his concurrence, I do not

question that Articles I and II delegate decisions as to the conduct of war

and national defense to the Executive and Legislative branches of our

government, and that we owe deference to those decisions. But deference

to the political branches does not compel the Judiciary to abdicate its

own duty to protect the individual liberties guaranteed all citizens. My

disagreement with the panel decision is that Hamdi has not received the

meaningful judicial review to which the panel acknowledges he is enti-

tled. Such review is possible only if the Executive is required to substan-

tiate its contentions that Hamdi is an enemy combatant with more than

a declaration that the panel concedes is hearsay, inconsistent and incom-

plete. Even in the darkest days of World War II, after the devastating

attack on Pearl Harbor, the Supreme Court recognized a greater role for

the courts in safeguarding individual liberties than the panel now pro-

vides Hamdi. See, e.g., Quirin, 317 U.S. at 46. After all, "[i]mplicit in

the term `national defense' is the notion of defending those values and

ideals which set the Nation apart." Robel, 389 U.S. at 264. I regret that

in the name of deference to the political branches' preeminence in mat-

ters of war, the panel permits the subversion of the very liberties that

make defense of this Country worthwhile.

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