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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,No. 02-6895
v.
DONALD RUMSFELD; W. R. PAULETTE,
Commander,
Respondents-Appellants.
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Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (CA-02-439-2)
Argued: June 25, 2002
Decided: July 12, 2002
Before WILKINSON, Chief Judge, and WILKINS and TRAXLER, Circuit Judges.
____________________________________________________________
Reversed and remanded by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judge Wilkins and Judge Traxler joined.
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COUNSEL
ARGUED: Paul D. Clement, Deputy Solicitor General, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellants. Geremy Charles Kamens, Assistant Federal Public
Defender, Norfolk, Virginia, for Appellees. ON BRIEF: Paul J.
McNulty, United States Attorney, Alice S. Fisher, Deputy Assistant
Attorney General, Gregory G. Garre, Assistant to the Solicitor Gen-
eral, Lawrence R. Leonard, Managing Assistant United States Attor-
ney, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellants. Frank W. Dunham, Jr., Federal Public Defender,
Robert J. Wagner, Assistant Federal Public Defender, Larry W. Shel-
ton, Assistant Federal Public Defender, Norfolk, Virginia, for Appel-
lees.
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OPINION
WILKINSON, Chief Judge:
Esam Fouad Hamdi has filed a petition for a writ of habeas corpus
as next friend of his son, Yaser Esam Hamdi, a detainee at the Nor-
folk Naval Station Brig who was captured as an alleged enemy com-
batant during ongoing military operations in Afghanistan. In its order
of June 11, 2002, the district court concluded that Hamdi's father
properly filed his case as next friend, appointed the Federal Public
Defender for the Eastern District of Virginia as counsel for the peti-
tioners, and ordered the government to allow the Public Defender
unmonitored access to Hamdi. Because the district court appointed
counsel and ordered access to the detainee without adequately consid-
ering the implications of its actions and before allowing the United
States even to respond, we reverse the court's June 11 order mandat-
ing access to counsel and remand the case for proceedings consistent
with this opinion.
I.
As recounted in the earlier appeal regarding Hamdi's detention,
Hamdi v. Rumsfeld, No. 02-6827, the al Qaida terrorist network
launched massive attacks on the United States on September 11,
2001, killing approximately 3,000 people. In the wake of this tragedy,
Congress authorized the President "to use all necessary and appropri-
ate force against those nations, organizations, or persons he deter-
mines planned, authorized, committed, or aided the terrorist attacks"
2
or "harbored such organizations or persons." Authorization for Use of
Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001). The Presi-
dent responded by ordering United States armed forces to Afghani-
stan to subdue al Qaida and the governing Taliban regime that was
supporting it. During this ongoing military operation, thousands of
alleged enemy combatants have been captured by American and
allied forces including, as the government contends, Hamdi.
Hamdi was initially transferred to Camp X-Ray at the Naval Base
in Guantanamo Bay, Cuba. After it came to light that he was born in
Louisiana and may not have renounced his American citizenship,
Hamdi was brought to the Norfolk Naval Station Brig. His petition
claims he was taken into custody in Afghanistan in the fall of 2001,
transferred to Guantanamo Bay in January 2002, and transferred again
to Norfolk in April 2002. Believing that Hamdi's detention is neces-
sary for intelligence gathering efforts, the United States has deter-
mined that Hamdi should continue to be detained as an enemy
combatant in accordance with the laws and customs of war.
On May 10, 2002, the Federal Public Defender for the Eastern Dis-
trict of Virginia, Frank Dunham, filed a habeas petition, naming as
petitioners both Hamdi and himself as Hamdi's next friend. The Pub-
lic Defender had been in contact with Hamdi's father, but the father
had not sought to be appointed as next friend as of the time the
Defender filed his petition. Subsequently, one Christian Peregrim, a
private citizen from New Jersey, filed a separate habeas petition on
Hamdi's behalf, naming the United States Navy as respondent. On
May 29, the district court held a hearing, consolidated the Public
Defender's petition with Peregrim's, and concluded that the Defend-
er's case was "properly filed by Frank Dunham as next friend."
After directing the government to respond by June 13, the district
court ordered that "Hamdi must be allowed to meet with his attorney
because of fundamental justice provided under the Constitution." Fur-
ther, the court ordered that the meeting be unmonitored and be
allowed to take place as of June 1, twelve days before the govern-
ment's answer was due.
On May 31, the United States filed a motion for stay pending
appeal of the district court's access order. We stayed the court's order
and heard oral argument four days later.
3
While these cases were under submission, Hamdi's father filed a
separate petition for a writ of habeas corpus under 28 U.S.C. §§ 2241
& 2242, naming as petitioners both Hamdi and himself as next friend.
This petition is presently before us. The father's petition asked, inter
alia, that the district court: (1) "Grant Petitioner Esam Fouad Hamdi
Next Friend status, as Next Friend of Yaser Esam Hamdi;" (2) "Ap-
point counsel to represent Yaser Esam Hamdi because he is indigent
and has no funds with which to retain counsel in the United States;"
(3) "Order Respondents to cease all interrogations of Yaser Esam
Hamdi, direct or indirect, while this litigation is pending;" and (4)
"Order that Petitioner Yaser Esam Hamdi be released from Respon-
dents' unlawful custody." Unlike the Public Defender's petition, the
father's petition did not specifically request that counsel be granted
unmonitored access to Hamdi.
On June 11, before the government had been served with the
father's petition, the district court determined that Hamdi's father
could proceed as next friend. The court then ordered the government
to answer by noon on June 17, and appointed the Public Defender as
counsel for the detainee based on the father's affidavit stating that
neither he nor his son was able to pay for an attorney. See 18 U.S.C.
§ 3006A. Further, the court again ordered the government to allow the
Defender unmonitored access to Hamdi "for the same reasons articu-
lated in the May 29, 2002 Order." The court specified that this meet-
ing was to be "private between Hamdi, the attorney, and the
interpreter, without military personnel present, and without any listen-
ing or recording devices of any kind being employed in any way."
And the court ordered that the meeting be allowed to take place by
June 14, three days before the government's response was due.
Finally, the court stayed its order to allow the government an opportu-
nity to appeal.
On June 13, the United States filed a second motion for stay pend-
ing appeal. The following day, we stayed both the district court's June
11 order and all proceedings before that court regarding the detainee.
We heard oral argument on the instant appeal on June 25.
We subsequently dismissed the habeas petitions filed by the Public
Defender and Peregrim as Hamdi's next friend. Neither had a signifi-
cant relationship with the detainee, Hamdi v. Rumsfeld, No. 02-6827,
4
slip op. at 2 (4th Cir. June 26, 2002), and Hamdi's father plainly had
a significant relationship with his son and had filed a valid next friend
petition. See id. at 3 n.1. We therefore turn to the district court's June
11 order.1
II.
The order arises in the context of foreign relations and national
security, where a court's deference to the political branches of our
national government is considerable. It is the President who wields
"delicate, plenary and exclusive power . . . as the sole organ of the
federal government in the field of international relations - a power
which does not require as a basis for its exercise an act of Congress."
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320
(1936). And where as here the President does act with statutory autho-
rization from Congress, there is all the more reason for deference.
See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
635-37 & n.2 (1952) (Jackson, J., concurring). Indeed, Articles I and
II prominently assign to Congress and the President the shared
responsibility for military affairs. See U.S. Const. art. I, § 8; art. II,
§ 2. In accordance with this constitutional text, the Supreme Court has
shown great deference to the political branches when called upon to
decide cases implicating sensitive matters of foreign policy, national
security, or military affairs. See, e.g., Dames & Moore v. Regan, 453
U.S. 654, 660-61 (1981); Curtiss-Wright, 299 U.S. at 319-20; United
States v. The Three Friends, 166 U.S. 1, 63 (1897); Stewart v. Kahn,
78 U.S. 493, 506 (1870); The Prize Cases, 67 U.S. (2 Black) 635, 670
(1862).
This deference extends to military designations of individuals as
enemy combatants in times of active hostilities, as well as to their
detention after capture on the field of battle. The authority to capture
those who take up arms against America belongs to the Commander
in Chief under Article II, Section 2. As far back as the Civil War, the
Supreme Court deferred to the President's determination that those in
rebellion had the status of belligerents. See The Prize Cases, 67 U.S.
____________________________________________________________
1 For the same reasons stated in our previous opinion, see Hamdi, No.
02-6827, slip op. at 5 n.2, we are presented here with an appealable
order.
5
(2 Black) at 670. And in World War II, the Court stated in no uncer-
tain terms that the President's wartime detention decisions are to be
accorded great deference from the courts. Ex parte Quirin, 317 U.S.
1, 25 (1942). It was inattention to these cardinal principles of consti-
tutional text and practice that led to the errors below.
III.
The district court's June 11 order directed the United States to pro-
vide the Public Defender unmonitored access to Hamdi. And petition-
ers contend that order represented an unexceptional exercise of a
district court's discretion in a case challenging the legality of an
American citizen's restraint. Petitioners' characterization, however, is
incomplete. The court's order was not merely a garden-variety
appointment of counsel in an ordinary criminal case. If it had been,
the lower court's discretion would be almost plenary and hardly a
subject for appeal, much less reversal. See 18 U.S.C. § 3006A. But
the June 11 order was different in kind. In the face of ongoing hostili-
ties, the district court issued an order that failed to address the many
serious questions raised by Hamdi's case.
For example, it has been the government's contention that Hamdi
is an "enemy combatant" and as such "may be detained at least for the
duration of the hostilities." The government has asserted that "enemy
combatants who are captured and detained on the battlefield in a for-
eign land" have "no general right under the laws and customs of war,
or the Constitution . . . to meet with counsel concerning their deten-
tion, much less to meet with counsel in private, without military
authorities present." The Public Defender for his part has contended
that "no evidence has been submitted to support" Hamdi's status as
an enemy combatant and that "unlike aliens located outside the
United States, Petitioner Hamdi [as an American citizen detained in
the United States] is entitled to constitutional protections" including
unmonitored access to counsel.
The district court's June 11 order purported to resolve these and
many other questions without proper benefit of briefing and argu-
ment. Indeed the court directed that counsel have unmonitored access
to Hamdi three days before the government's response was even due.
There is little indication in the order (or elsewhere in the record for
6
that matter) that the court gave proper weight to national security con-
cerns. The peremptory nature of the proceedings stands in contrast to
the significance of the issues before the court. The June 11 order does
not consider what effect petitioner's unmonitored access to counsel
might have upon the government's ongoing gathering of intelligence.
The order does not ask to what extent federal courts are permitted to
review military judgments of combatant status. Indeed, the order does
not mention the term enemy combatant at all.
Instead, the June 11 order apparently assumes (1) that Hamdi is not
an enemy combatant or (2) even if he might be such a person, he is
nonetheless entitled not only to counsel but to immediate and unmoni-
tored access thereto. Either ruling has sweeping implications for the
posture of the judicial branch during a time of international conflict,
and neither may rest on a procedurally flawed foundation that denied
both petitioners and the government a chance to properly present their
arguments, or to lay even a modest foundation for meaningful appel-
late review. The district court's order must be reversed and remanded
for further proceedings.
IV.
A.
The government urges us not only to reverse and remand the June
11 order, but in the alternative to reach further and dismiss the instant
petition in its entirety. In its brief before this court, the government
asserts that "given the constitutionally limited role of the courts in
reviewing military decisions, courts may not second-guess the mili-
tary's determination that an individual is an enemy combatant and
should be detained as such." The government thus submits that we
may not review at all its designation of an American citizen as an
enemy combatant - that its determinations on this score are the first
and final word.
Any dismissal of the petition at this point would be as premature
as the district court's June 11 order. In dismissing, we ourselves
would be summarily embracing a sweeping proposition - namely
that, with no meaningful judicial review, any American citizen
alleged to be an enemy combatant could be detained indefinitely with-
7
out charges or counsel on the government's say-so. Given the inter-
locutory nature of this appeal, a remand rather than an outright
dismissal is appropriate.
If dismissal is thus not appropriate, deference to the political
branches certainly is. It should be clear that circumspection is
required if the judiciary is to maintain its proper posture of restraint.
The Prize Cases, 67 U.S. at 670 ("[T]his Court must be governed by
the decisions and acts of the political department of the Government
to which this power was entrusted."). The federal courts have many
strengths, but the conduct of combat operations has been left to oth-
ers. See, e.g., Quirin, 317 U.S. at 25-26. The executive is best pre-
pared to exercise the military judgment attending the capture of
alleged combatants. The political branches are best positioned to com-
prehend this global war in its full context and it is the President who
has been charged to use force against those "nations, organizations,
or persons he determines" were responsible for the September 11 ter-
rorist attacks. Authorization for Use of Military Force, 115 Stat. at
224 (emphasis added). The unconventional aspects of the present
struggle do not make its stakes any less grave. Accordingly, any judi-
cial inquiry into Hamdi's status as an alleged enemy combatant in
Afghanistan must reflect a recognition that government has no more
profound responsibility than the protection of Americans, both mili-
tary and civilian, against additional unprovoked attack.
B.
The standards and procedures that should govern this case on
remand are not for us to resolve in the first instance. It has long been
established that if Hamdi is indeed an "enemy combatant" who was
captured during hostilities in Afghanistan, the government's present
detention of him is a lawful one. See, e.g., Quirin, 317 U.S. at 31, 37
(holding that both lawful and unlawful combatants, regardless of citi-
zenship, "are subject to capture and detention as prisoners of war by
opposing military forces"); Duncan v. Kahanamoku, 327 U.S. 304,
313-14 (1946) (same); In re Territo, 156 F.2d 142, 145 (9th Cir.
1946) (same). Separation of powers principles must, moreover, shape
the standard for reviewing the government's designation of Hamdi as
an enemy combatant. Any standard of inquiry must not present a risk
8
of saddling military decision-making with the panoply of encum-
brances associated with civil litigation.
As for procedures, we cannot blueprint them on this appeal. The
government has sought to file as an ex parte, supplemental attachment
to its brief before this court "a sealed declaration discussing the mili-
tary's determination to detain petitioner Hamdi as an enemy comba-
tant." The government explains that "[t]his declaration is not a matter
of record, as it was not proffered in the district court because the pro-
ceedings there did not reach the point where the merits of the habeas
petition were reached." The government further states that the decla-
ration "specifically delineates the manner in which the military
assesses and screens enemy combatants to determine who among
them should be brought under Department of Defense control," and
"describes how the military determined that petitioner Hamdi fit the
eligibility requirements applied to enemy combatants for detention."
This declaration is factual in nature. As such, it should come first
before the district court, not the court of appeals.
The development of facts may pose special hazards of judicial
involvement in military decision-making that argument of questions
of pure law may not. For example, allowing alleged combatants to
call American commanders to account in federal courtrooms would
stand the warmaking powers of Articles I and II on their heads.
Finally, the role that counsel should or should not play in resolving
questions of law or fact is a matter of immense importance.2
V.
Upon remand, the district court must consider the most cautious
procedures first, conscious of the prospect that the least drastic proce-
dures may promptly resolve Hamdi's case and make more intrusive
measures unnecessary. Our Constitution's commitment of the conduct
of war to the political branches of American government requires the
court's respect at every step. Because the district court appointed
counsel and ordered access to the detainee without adequately consid-
ering the implications of its actions and before allowing the United
____________________________________________________________
2 Whether the financial eligibility requirements of 18 U.S.C. § 3006A
have been satisfied is likewise an issue we leave for remand.
9
States even to respond, we reverse the court's June 11 order mandat-
ing access to counsel and remand the case for proceedings consistent
with this opinion.
REVERSED AND REMANDED
10