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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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

YASER ESAM HAMDI; ESAM FOUAD

HAMDI, as next friend of Yaser

Esam Hamdi,

Petitioners-Appellees,

DONALD RUMSFELD; W. R. PAULETTE,

Commander,

Respondents-Appellants.

CENTER FOR CONSTITUTIONAL RIGHTS;

RICHARD L. ABEL, Connell Professor

of Law, University of California at

Los Angeles; WILLIAM J. ACEVES,

Professor of Law, California

Western School of Law; BRUCE A.No. 02-7338

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,

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

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

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 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 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; AMERICAN CIVIL

LIBERTIES FOUNDATION OF VIRGINIA;

Amici Curiae in support

of Appellees.

RUTH WEDGWOOD, Professor of Law,

Yale University Law School;

SAMUEL ESTREICHER, Professor of

Law, New York University School

of Law; DOUGLAS W. KMIEC, Dean

& St. Thomas More Professor of

Law, Catholic University; RONALD

ROTUNDA, George Mason University

Foundation Professor of Law,

George Mason University School of

Law; DAVID B. RIVKIN, JR.; LEE A.

CASEY; DARIN R. BARTRAM,

Amici Curiae in support

of Appellants.

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

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: October 28, 2002

Decided: January 8, 2003

Before WILKINSON, Chief Judge, and WILKINS and
TRAXLER, Circuit Judges.

____________________________________________________________

Reversed and remanded with directions to dismiss by published opin-

ion. Opinion by WILKINSON, Chief Judge, and WILKINS and

TRAXLER, Circuit Judges, in which all three concur.

____________________________________________________________

COUNSEL

ARGUED: Paul Clement, Deputy Solicitor General, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellants. Frank Willard Dunham, Jr., Federal Public Defender,

Norfolk, Virginia, for Appellees. ON BRIEF: Paul J. McNulty,

United States Attorney, Gregory G. Garre, Assistant to the Solicitor

General, David B. Salmons, Assistant to the Solicitor General, Law-

rence R. Leonard, Managing Assistant United States Attorney,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellants. Larry W. Shelton, Assistant Federal Public

Defender, Geremy C. Kamens, Assistant Federal Public Defender,

Norfolk, Virginia, for Appellees. David B. Rivkin, Jr., Lee A. Casey,

Darin R. Bartram, BAKER & HOSTETLER, L.L.P., Washington,

D.C., for Amici Curiae Ruth Wedgwood, et al. Shayana Kadidal, Bar-

bara Olshansky, Michael Ratner, William Goodman, CENTER FOR

CONSTITUTIONAL RIGHTS, New York, New York, for Amici

Curiae Center for Constitutional Rights, et al. Steven D. Benjamin,

Richmond, Virginia; Donald G. Rehkopf, Jr., BRENNA & BRENNA,

Rochester, New York, for Amicus Curiae Association of Criminal

Defense Lawyers. Steven R. Shapiro, Lucas Guttentag, Arthur N.

Eisenberg, Robin Goldfaden, AMERICAN CIVIL LIBERTIES

UNION FOUNDATION, New York, New York; Rebecca K. Glen-

berg, AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA,

Richmond, Virginia, for Amici Curiae ACLU, et al.

____________________________________________________________

OPINION

WILKINSON, Chief Judge, and WILKINS and TRAXLER, Circuit

Judges:

Yaser Esam Hamdi filed a petition under 28 U.S.C. § 2241 chal-

lenging the lawfulness of his confinement in the Norfolk Naval Brig.¹

On this third and latest appeal, the United States challenges the dis-

trict court's order requiring the production of various materials

regarding Hamdi's status as an alleged enemy combatant. The district

court certified for appeal the question of whether a declaration by a

Special Advisor to the Under Secretary of Defense for Policy setting

forth what the government contends were the circumstances of

Hamdi's capture was sufficient by itself to justify his detention.

Because it is undisputed that Hamdi was captured in a zone of active

combat in a foreign theater of conflict, we hold that the submitted

declaration is a sufficient basis upon which to conclude that the Com-

mander in Chief has constitutionally detained Hamdi pursuant to the

war powers entrusted to him by the United States Constitution. No

further factual inquiry is necessary or proper, and we remand the case

with directions to dismiss the petition.

I.

As recounted in earlier appeals regarding Hamdi's detention,

Hamdi v. Rumsfeld, 294 F.3d 598 (4th Cir. 2002) ("Hamdi I"), and

Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002) ("Hamdi II"), the

____________________________________________________________

¹ The court expresses its appreciation to the Public Defender's Office

for the Eastern District of Virginia, the United States Attorney's Office

for the Eastern District of Virginia, and the Solicitor General's Office for

the professionalism of their efforts throughout these expedited appeals.

al Qaida terrorist network, utilizing commercial airliners, launched

massive attacks on the United States on September 11, 2001, success-

fully striking the World Trade Center in New York City, and the Pen-

tagon, the military headquarters of our country, near Washington,

D.C. A third unsuccessful attack upon at least one additional target,

most likely within Washington, D.C., was foiled by the efforts of the

passengers and crew on the highjacked airliner when it crashed in

Somerset County, Pennsylvania, southeast of Pittsburgh. In total, over

3,000 people were killed on American soil that day.

In the wake of this atrocity, Congress authorized the President "to

use all necessary and appropriate force against those nations, organi-

zations, or persons he determines planned, authorized, committed, or

aided the terrorist attacks" or "harbored such organizations or per-

sons." Authorization for Use of Military Force, Pub. L. No. 107-40,

115 Stat. 224 (Sept. 18, 2001). The President responded by ordering

United States armed forces to Afghanistan to subdue al Qaida and the

governing Taliban regime supporting it. During this ongoing military

operation, thousands of alleged enemy combatants, including Hamdi,

have been captured by American and allied forces.

The present case arises out of Hamdi's detention by the United

States military in Norfolk, Virginia. Hamdi apparently was born in

Louisiana but left for Saudi Arabia when he was a small child.

Although initially detained in Afghanistan and then Guantanamo Bay,

Hamdi was transferred to the Norfolk Naval Station Brig after it was

discovered that he may not have renounced his American citizenship.

He has remained in Norfolk since April 2002.

In June 2002, Hamdi's father, Esam Fouad Hamdi, filed a petition

for writ of habeas corpus, naming as petitioners both Hamdi and him-

self as next friend.² The petition alleged that Hamdi is a citizen of the

United States who was residing in Afghanistan when he was seized

____________________________________________________________

² This court has previously determined that Esam Fouad Hamdi is a

proper next friend. Hamdi I, 294 F.3d at 600 n.1. Two earlier petitions

filed by the Federal Public Defender for the Eastern District of Virginia

Frank Dunham and Christian Peregrim, a private citizen from New Jer-

sey, were dismissed. Neither Dunham nor Peregrim had a significant

relationship with the detainee, and Hamdi's father plainly did. Id. at 606.

by the United States government. According to the petition, "[i]n the

course of the military campaign, and as part of their effort to over-

throw the Taliban, 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." The

petition further alleges that "Hamdi was captured or transferred into

the custody of the United States in the Fall of 2001" in Afghanistan,

transported from Afghanistan to Camp X-Ray at the United States

Naval Base in Guantanamo Bay, Cuba, in January 2002, and ulti-

mately transferred to the Norfolk Naval Station Brig in Norfolk, Vir-

ginia, in April 2002.

Although acknowledging that Hamdi was seized in Afghanistan

during a time of active military hostilities, the petition alleges that "as

an American citizen, . . . Hamdi enjoys the full protections of the

Constitution," and that the government's current detention of him in

this country without charges, access to a judicial tribunal, or the right

to counsel, "violate[s] the Fifth and Fourteenth Amendments to the

United States Constitution." By way of relief, the petition asks, inter

alia, that the district court: (1) "Order Respondents to cease all inter-

rogations of Yaser Esam Hamdi, direct or indirect, while this litiga-

tion is pending"; (2) "Order and declare that Yaser Esam Hamdi is

being held in violation of the Fifth and Fourteenth Amendments to the

United States Constitution"; (3) "To the extent Respondents contest

any material factual allegations in th[e] Petition, schedule an evidenti-

ary hearing, at which Petitioners may adduce proof in support of their

allegations"; and (4) "Order that Petitioner Yaser Esam Hamdi be

released from Respondents' unlawful custody."

On June 11, before the government had time to respond to the peti-

tion, the district court appointed Public Defender Frank Dunham as

counsel for the detainee and ordered the government to allow the

Defender unmonitored access to Hamdi. On July 12, we reversed the

district court's order granting counsel immediate access to Hamdi.

Hamdi II, 296 F.3d at 279. We cautioned that Hamdi's petition

involved complex and serious national security issues and found that

the district court had not shown proper deference to the government's

legitimate security and intelligence interests. We did not order the

petition dismissed outright, however, noting our reluctance to "em-

brac[e] [the] sweeping proposition . . . that, with no meaningful judi-

cial review, any American citizen alleged to be an enemy combatant

could be detained indefinitely without charges or counsel on the gov-

ernment's say-so." Id. at 283. Rather, we sanctioned a limited and

deferential inquiry into Hamdi's status, noting "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." Id. (citing Ex parte Quirin, 317 U.S. 1, 31, 37 (1942)). We also

instructed that, in conducting the inquiry, "the district court must con-

sider the most cautious procedures first, conscious of the prospect that

the least drastic procedures may promptly resolve Hamdi's case and

make more intrusive measures unnecessary." Id. at 284.

Following this remand, the district court held a hearing on July 18.

During this hearing, the court expressed its concern over possible vio-

lations of Hamdi's rights as an American citizen. The court also ques-

tioned the government's most basic contentions regarding the ongoing

hostilities, asking "with whom is the war I should suggest that we're

fighting?" and "will the war never be over as long as there is any

member [or] any person who might feel that they want to attack the

United States of America or the citizens of the United States of Amer-

ica?" The court directed that "[a]ll of these [answers should] be pro-

vided in the answer that the government is to file to the petition" and

directed the United States to file such a response to Hamdi's petition

by July 25.

On July 25, the government filed a response to, and motion to dis-

miss, the petition for a writ of habeas corpus. Attached to its response

was an affidavit from the Special Advisor to the Under Secretary of

Defense for Policy, Michael Mobbs, which confirms the material fac-

tual allegations in Hamdi's petition - specifically, that Hamdi was

seized in Afghanistan by allied military forces during the course of

the sanctioned military campaign, designated an "enemy combatant"

by our Government, and ultimately transferred to the Norfolk Naval

Brig for detention. Thus, it is undisputed that Hamdi was captured in

Afghanistan during a time of armed hostilities there. It is further

undisputed that the executive branch has classified him as an enemy

combatant.

In addition to stating that Hamdi has been classified as an enemy

combatant, the Mobbs declaration went on further to describe what

the government contends were the circumstances surrounding

Hamdi's seizure, his transfer to United States custody, and his place-

ment in the Norfolk Naval Brig. According to Mobbs, the military

determined that Hamdi "traveled to Afghanistan in approximately

July or August of 2001" and proceeded to "affiliate[ ] with a Taliban

military unit and receive[ ] weapons training." While serving with the

Taliban in the wake of September 11, he was captured when his Tali-

ban unit surrendered to Northern Alliance forces with which it had

been engaged in battle. He was in possession of an AK-47 rifle at the

time of surrender. Hamdi was then transported with his unit from

Konduz, Afghanistan to the Northern Alliance prison in Mazar-e-

Sharif, Afghanistan and, after a prison uprising there, to a prison at

Sheberghan, Afghanistan. Hamdi was next transported to the U.S.

short term detention facility in Kandahar, and then transferred again

to Guantanamo Bay and eventually to the Norfolk Naval Brig.

According to Mobbs, interviews with Hamdi confirmed the details of

his capture and his status as an enemy combatant.

In keeping with our earlier instruction that the district court should

proceed cautiously in reviewing military decisions reached during

sanctioned military operations, we directed the district court to first

"consider the sufficiency of the Mobbs declaration as an independent

matter before proceeding further." Following this order, the district

court held a hearing on August 13 to review the sufficiency of the

Mobbs declaration.

During this hearing, the district court recognized that "the govern-

ment is entitled to considerable deference in detention decisions dur-

ing hostilities." The court also noted that it did not "have any doubts

[Hamdi] had a firearm [or] any doubts he went to Afghanistan to be

with the Taliban." Despite these observations, however, the court

asserted that it was "challenging everything in the Mobbs' declara-

tion" and that it intended to "pick it apart" "piece by piece." The court

repeatedly referred to information it felt was missing from the decla-

ration, asking "Is there anything in here that said Hamdi ever fired a

weapon?" The court questioned whether Mr. Mobbs was even a gov-

ernment employee and intimated that the government was possibly

hiding disadvantageous information from the court.

The district court filed an opinion on August 16, finding that the

Mobbs declaration "falls far short" of supporting Hamdi's detention.

The court ordered the government to turn over, among other things,

copies of Hamdi's statements and the notes taken from any interviews

with him; the names and addresses of all interrogators who have ques-

tioned Hamdi; statements by members of the Northern Alliance

regarding the circumstances of Hamdi's surrender; and a list of the

date of Hamdi's capture and all of the dates and locations of his sub-

sequent detention.

Upon the Government's motion to certify the August 16 production

order for immediate appeal, the district court certified the following

question: "Whether the Mobbs Declaration, standing alone, is suffi-

cient as a matter of law to allow a meaningful judicial review of

Yaser Esam Hamdi's classification as an enemy combatant?" We then

granted the Government's petition for interlocutory review pursuant

to 28 U.S.C.A. § 1292(b). In so doing, we noted that "this court `may

address any issue fairly included within the certified order because it

is the order that is appealable, and not the controlling question identi-

fied by the district court.'" Hamdi v. Rumsfeld, No. 02-7338 (4th Cir.

Sept. 12, 2002) (order granting petition for interlocutory review)

(quoting Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996)).

II.

Yaser Esam Hamdi is apparently an American citizen. He was also

captured by allied forces in Afghanistan, a zone of active military

operations. This dual status - that of American citizen and that of

alleged enemy combatant - raises important questions about the role

of the courts in times of war.

A.

The importance of limitations on judicial activities during wartime

may be inferred from the allocation of powers under our constitu-

tional scheme. "Congress and the President, like the courts, possess

no power not derived from the Constitution." Ex parte Quirin, 317

U.S. 1, 25 (1942). Article I, section 8 grants Congress the power to

"provide for the common Defence and general Welfare of the United

States . . . To declare War, grant Letters of Marque and Reprisal, and

make Rules concerning Captures on Land and Water; To raise and

support armies . . . [and] To provide and maintain a navy." Article II,

section 2 declares that "[t]he President shall be Commander in Chief

of the Army and Navy of the United States, and of the Militia of the

several States, when called into the actual Service of the United

States."

The war powers thus invest "the President, as Commander in Chief,

with the power to wage war which Congress has declared, and to

carry into effect all laws passed by Congress for the conduct of war

and for the government and regulation of the Armed Forces, and all

laws defining and punishing offences against the law of nations,

including those which pertain to the conduct of war." Quirin, 317

U.S. at 26. These powers include the authority to detain those cap-

tured in armed struggle. Hamdi II, 296 F.3d at 281-82.³ These powers

likewise extend to the executive's decision to deport or detain alien

enemies during the duration of hostilities, see Ludecke v. Watkins,

335 U.S. 160, 173 (1948), and to confiscate or destroy enemy prop-

erty, see Juragua Iron Co. v. United States, 212 U.S. 297, 306 (1909).

Article III contains nothing analogous to the specific powers of war

so carefully enumerated in Articles I and II. "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." Hamdi II, 296 F.3d at 281.

The reasons for this deference are not difficult to discern. Through

their departments and committees, the executive and legislative

branches are organized to supervise the conduct of overseas conflict

in a way that the judiciary simply is not. The Constitution's allocation

of the warmaking powers reflects not only the expertise and experi-

ence lodged within the executive, but also the more fundamental truth

that those branches most accountable to the people should be the ones

to undertake the ultimate protection and to ask the ultimate sacrifice

from them. Thus the Supreme Court has lauded "[t]he operation of a

____________________________________________________________

³ Persons captured during wartime are often referred to as "enemy com-

batants." While the designation of Hamdi as an "enemy combatant" has

aroused controversy, the term is one that has been used by the Supreme

Court many times. See, e.g., Madsen v. Kinsella, 343 U.S. 341, 355

(1952); In re Yamashita, 327 U.S. 1, 7 (1946); Quirin, 317 U.S. at 31.

healthy deference to legislative and executive judgments in the area

of military affairs." Rostker v. Goldberg, 453 U.S. 57, 66 (1981).

The deference that flows from the explicit enumeration of powers

protects liberty as much as the explicit enumeration of rights. The

Supreme Court has underscored this founding principle: "The ulti-

mate purpose of this separation of powers is to protect the liberty and

security of the governed." Metro. Wash. Airports Auth. v. Citizens for

the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 272 (1991).

Thus, the textual allocation of responsibilities and the textual enumer-

ation of rights are not dichotomous, because the textual separation of

powers promotes a more profound understanding of our rights. For

the judicial branch to trespass upon the exercise of the warmaking

powers would be an infringement of the right to self-determination

and self-governance at a time when the care of the common defense

is most critical. This right of the people is no less a right because it

is possessed collectively.

These interests do not carry less weight because the conflict in

which Hamdi was captured is waged less against nation-states than

against scattered and unpatriated forces. We have emphasized that the

"unconventional aspects of the present struggle do not make its stakes

any less grave." Hamdi II, 296 F.3d at 283. Nor does the nature of the

present conflict render respect for the judgments of the political

branches any less appropriate. We have noted that the "political

branches are best positioned to comprehend this global war in its full

context," id., and neither the absence of set-piece battles nor the inter-

vals of calm between terrorist assaults suffice to nullify the warmak-

ing authority entrusted to the executive and legislative branches.

B.

Despite the clear allocation of war powers to the political branches,

judicial deference to executive decisions made in the name of war is

not unlimited. The Bill of Rights which Hamdi invokes in his petition

is as much an instrument of mutual respect and tolerance as the Four-

teenth Amendment is. It applies to American citizens regardless of

race, color, or creed. And as we become a more diverse nation, the

Bill of Rights may become even more a lens through which we recog-

nize ourselves. To deprive any American citizen of its protections is

not a step that any court would casually take.

Drawing on the Bill of Rights' historic guarantees, the judiciary

plays its distinctive role in our constitutional structure when it reviews

the detention of American citizens by their own government. Indeed,

if due process means anything, it means that the courts must defend

the "fundamental principles of liberty and justice which lie at the base

of all our civil and political institutions." Powell v. Alabama, 287 U.S.

45, 67 (1932) (internal quotation marks omitted). The Constitution is

suffused with concern about how the state will wield its awesome

power of forcible restraint. And this preoccupation was not acciden-

tal. Our forebears recognized that the power to detain could easily

become destructive "if exerted without check or control" by an unre-

strained executive free to "imprison, dispatch, or exile any man that

was obnoxious to the government, by an instant declaration that such

is their will and pleasure." 4 W. Blackstone, Commentaries on the

Laws of England 349-50 (Cooley ed. 1899) (quoted in Duncan v.

Louisiana, 391 U.S. 145, 151 (1968)).

The 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. The Founders "foresaw that

troublous times would arise, when rulers and people would . . . seek

by sharp and decisive measures to accomplish ends deemed just and

proper; and that the principles of constitutional liberty would be in

peril, unless established by irrepealable law." Ex Parte Milligan, 71

U.S. (4 Wall.) 2, 120 (1866). While that recognition does not dispose

of this case, it does indicate one thing: The detention of United States

citizens must be subject to judicial review. See Hamdi II, 296 F.3d at

283.

It is significant, moreover, that the form of relief sought by Hamdi

is a writ of habeas corpus. In war as in peace, habeas corpus provides

one of the firmest bulwarks against unconstitutional detentions. As

early as 1789, Congress reaffirmed the courts' common law authority

to review detentions of federal prisoners, giving its explicit blessing

to the judiciary's power to "grant writs of habeas corpus for the pur-

pose of an inquiry into the cause of commitment" for federal detain-

ees. Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 81-82. While the scope

of habeas review has expanded and contracted over the succeeding

centuries, its essential function of assuring that restraint accords with

the rule of law, not the whim of authority, remains unchanged.

Hamdi's petition falls squarely within the Great Writ's purview, since

he is an American citizen challenging his summary detention for rea-

sons of state necessity.

C.

As the foregoing discussion reveals, the tensions within this case

are significant. Such circumstances should counsel caution on the part

of any court. Given the concerns discussed in the preceding sections,

any broad or categorical holdings on enemy combatant designations

would be especially inappropriate. We have no occasion, for example,

to address the designation as an enemy combatant of an American cit-

izen captured on American soil or the role that counsel might play in

such a proceeding. See, e.g., Padilla v. Bush, No. 02 Civ. 445

(MBM), 2002 WL 31718308 (S.D.N.Y. Dec. 4, 2002). We shall, in

fact, go no further in this case than the specific context before us -

that of the undisputed detention of a citizen during a combat operation

undertaken in a foreign country and a determination by the executive

that the citizen was allied with enemy forces.

The safeguards that all Americans have come to expect in criminal

prosecutions do not translate neatly to the arena of armed conflict. In

fact, if deference to the executive is not exercised with respect to mili-

tary judgments in the field, it is difficult to see where deference would

ever obtain. For there is a "well-established power of the military to

exercise jurisdiction over members of the armed forces, those directly

connected with such forces, [and] enemy belligerents, prisoners of

war, [and] others charged with violating the laws of war." Duncan v.

Kahanamoku, 327 U.S. 304, 313-14 (1946) (footnotes omitted). As

we emphasized in our prior decision, any judicial inquiry into

Hamdi's status as an alleged enemy combatant in Afghanistan must

reflect this deference as well as "a recognition that government has

no more profound responsibility" than the protection of American cit-

izens from further terrorist attacks. Hamdi II, 296 F.3d at 283.

In this regard, it is relevant that the detention of enemy combatants

serves at least two vital purposes. First, detention prevents enemy

combatants from rejoining the enemy and continuing to fight against

America and its allies. "The object of capture is to prevent the cap-

tured individual from serving the enemy. He is disarmed and from

then on he must be removed as completely as practicable from the

front . . . ." In re Territo, 156 F.2d 142, 145 (9th Cir. 1946). In this

respect, "captivity is neither a punishment nor an act of vengeance,"

but rather "a simple war measure." W. Winthrop, Military Law and

Precedents 788 (2d ed. 1920). And the precautionary measure of dis-

arming hostile forces for the duration of a conflict is routinely accom-

plished through detention rather than the initiation of criminal

charges. To require otherwise would impose a singular burden upon

our nation's conduct of war.

Second, detention in lieu of prosecution may relieve the burden on

military commanders of litigating the circumstances of a capture half-

way around the globe. This burden would not be inconsiderable and

would run the risk of "saddling military decision-making with the

panoply of encumbrances associated with civil litigation" during a

period of armed conflict. Hamdi II, 296 F.3d at 283-84. As the

Supreme Court has recognized, "[i]t would be difficult to devise more

effective fettering of a field commander than to allow the very ene-

mies he is ordered to reduce to submission to call him to account in

his own civil courts and divert his efforts and attention from the mili-

tary offensive abroad to the legal defensive at home." Johnson v.

Eisentrager, 339 U.S. 763, 779 (1950).⁴

The judiciary is not at liberty to eviscerate detention interests

directly derived from the war powers of Articles I and II. As the

nature of threats to America evolves, along with the means of carry-

ing those threats out, the nature of enemy combatants may change

also. In the face of such change, separation of powers doctrine does

____________________________________________________________

⁴ The government has contended that appointment of counsel for

enemy combatants in the absence of charges would interfere with a third

detention interest, that of gathering intelligence, by establishing an

adversary relationship with the captor from the outset. See Hamdi II, 296

F.3d at 282 (expressing concern that the June 11 order of the district

court "does not consider what effect petitioner's unmonitored access to

counsel might have upon the government's ongoing gathering of intelli-

gence"). That issue, however, is not presented in this appeal.

not deny the executive branch the essential tool of adaptability. To the

contrary, the Supreme Court has said that "[i]n adopting this flexible

understanding of separation of powers, we simply have recognized

Madison's teaching that the greatest security against tyranny . . . lies

not in a hermetic division among the Branches, but in a carefully

crafted system of checked and balanced power within each Branch."

Mistretta v. United States, 488 U.S. 361, 381 (1989). If anything, sep-

aration of powers bears renewed relevance to a struggle whose

unforeseeable dangers may demand significant actions to protect

untold thousands of American lives.

The designation of Hamdi as an enemy combatant thus bears the

closest imaginable connection to the President's constitutional

responsibilities during the actual conduct of hostilities. We therefore

approach this case with sensitivity to both the fundamental liberty

interest asserted by Hamdi and the extraordinary breadth of warmak-

ing authority conferred by the Constitution and invoked by Congress

and the executive branch.

III.

After the district court issued its August 16 production order, it

granted respondent's motion for an interlocutory appeal of that order.

The following question was certified for our review:

Whether the Mobbs Declaration, standing alone, is suffi-

cient as a matter of law to allow a meaningful judicial

review of Yaser Esam Hamdi's classification as an enemy

combatant?

As the Supreme Court has made clear, we are not limited to this

single question. Rather, an appellate court may address any issue

fairly included within the certified order, because "it is the order that

is appealable, and not the controlling question identified by the dis-

trict court." Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199,

205 (1996) (internal quotation marks omitted).

On this appeal, it is argued that Hamdi's detention is invalid even

if the government's assertions were entirely accurate. If that were

clearly the case, there would be no need for further discovery such as

that detailed in the August 16 production order, because Hamdi's

detention would be invalid for reasons beyond the scope of any fac-

tual dispute. Indeed, any inquiry into the August 16 production order

or any discussion of the certified question would be unnecessary,

because neither could suffice to justify a detention that, as a threshold

matter, was otherwise unlawful. Moreover, the burden of the August

16 order would necessarily outweigh any benefits if, quite indepen-

dent of the disputed factual issues, Hamdi were already entitled to

relief. See Fed. R. Civ. Proc. 26(b)(1)-(2). For that reason, any purely

legal challenges to Hamdi's detention are fairly includable within the

scope of the certified order. See Juzwin v. Asbestos Corp., 900 F.2d

686, 692 (3d Cir. 1990) (stating that, on § 1292(b) review of an order

denying a dispositive motion, an appellate court is "free to consider

all grounds advanced in support of the grant of [the motion] and all

grounds suggested for sustaining its denial" (internal quotation marks

omitted)).

In this vein, Hamdi and amici have in fact pressed two purely legal

grounds for relief: 18 U.S.C. § 4001(a) and Article 5 of the Geneva

Convention. We now address them both.⁵

A.

18 U.S.C. § 4001 regulates the detentions of United States citizens.

It states in full:

(a) No citizen shall be imprisoned or otherwise detained

by the United States except pursuant to an Act of

Congress.

(b)(1) The control and management of Federal penal and

correctional institutions, except military or naval

____________________________________________________________

⁵ We reject at the outset one other claim that Hamdi has advanced in

abbreviated form. He asserts that our approval of his continued detention

means that the writ of habeas corpus has been unconstitutionally sus-

pended. See U.S. Const. art. I, § 9. We find this unconvincing; the fact

that we have not ordered the relief Hamdi requests is hardly equivalent

to a suspension of the writ.

institutions, shall be vested in the Attorney General,

who shall promulgate rules for the government

thereof, and appoint all necessary officers and

employees in accordance with the civil-service

laws, the Classification Act, as amended[,] and the

applicable regulations.

(2) The Attorney General may establish and conduct

industries, farms, and other activities and classify

the inmates; and provide for their proper govern-

ment, discipline, treatment, care, rehabilitation, and

reformation.

18 U.S.C. § 4001 (2002). Hamdi argues that there is no congressional

sanction for his incarceration and that § 4001(a) therefore prohibits

his continued detention. We find this contention unpersuasive.

Even if Hamdi were right that § 4001(a) requires Congressional

authorization of his detention, Congress has, in the wake of the Sep-

tember 11 terrorist attacks, authorized the President to "use all neces-

sary and appropriate force against those nations, organizations, or

persons he determines planned, authorized, committed, or aided the

terrorist attacks" or "harbored such organizations or persons." Autho-

rization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224

(Sept. 18, 2001) (emphasis added). As noted above, capturing and

detaining enemy combatants is an inherent part of warfare; the "nec-

essary and appropriate force" referenced in the congressional resolu-

tion necessarily includes the capture and detention of any and all

hostile forces arrayed against our troops. Furthermore, Congress has

specifically authorized the expenditure of funds for "the maintenance,

pay, and allowances of prisoners of war [and] other persons in the

custody of the [military] whose status is determined . . . to be similar

to prisoners of war." 10 U.S.C. § 956(5) (2002). It is difficult if not

impossible to understand how Congress could make appropriations

for the detention of persons "similar to prisoners of war" without also

authorizing their detention in the first instance.

Any alternative construction of these enactments would be fraught

with difficulty. As noted above, the detention of enemy combatants

serves critical functions. Moreover, it has been clear since at least

1942 that "[c]itizenship in the United States of an enemy belligerent

does not relieve him from the consequences of [his] belligerency."

Quirin, 317 U.S. at 37. If Congress had intended to override this well-

established precedent and provide American belligerents some immu-

nity from capture and detention, it surely would have made its inten-

tions explicit.

It is likewise significant that § 4001(a) functioned principally to

repeal the Emergency Detention Act. That statute had provided for

the preventive "apprehension and detention" of individuals inside the

United States "deemed likely to engage in espionage or sabotage"

during "internal security emergencies." H.R. Rep. 92-116, at 2 (Apr.

6, 1971). Proponents of the repeal were concerned that the Emergency

Detention Act might, inter alia, "permit[ ] a recurrence of the round

ups which resulted in the detention of Americans of Japanese ancestry

in 1941 and subsequently during World War II." Id. There is no indi-

cation that § 4001(a) was intended to overrule the longstanding rule

that an armed and hostile American citizen captured on the battlefield

during wartime may be treated like the enemy combatant that he is.

We therefore reject Hamdi's contention that § 4001(a) bars his deten-

tion.

B.

Hamdi and amici also contend that Article 5 of the Geneva Con-

vention applies to Hamdi's case and requires an initial formal deter-

mination of his status as an enemy belligerent "by a competent

tribunal." Geneva Convention Relative to the Treatment of Prisoners

of War, Aug. 12, 1949, art. 5, 6 U.S.T. 3316, 75 U.N.T.S. 135.

This argument falters also because the Geneva Convention is not

self-executing. "Courts will only find a treaty to be self-executing if

the document, as a whole, evidences an intent to provide a private

right of action." Goldstar (Panama) v. United States, 967 F.2d 965,

968 (4th Cir. 1992). The Geneva Convention evinces no such intent.

Certainly there is no explicit provision for enforcement by any form

of private petition. And what discussion there is of enforcement

focuses entirely on the vindication by diplomatic means of treaty

rights inhering in sovereign nations. If two warring parties disagree

about what the Convention requires of them, Article 11 instructs them

to arrange a "meeting of their representatives" with the aid of diplo-

mats from other countries, "with a view to settling the disagreement."

Geneva Convention, at art. 11. Similarly, Article 132 states that "any

alleged violation of the Convention" is to be resolved by a joint trans-

national effort "in a manner to be decided between the interested Par-

ties." Id. at art. 132; cf. id. at arts. 129-30 (instructing signatories to

enact legislation providing for criminal sanction of "persons commit-

ting . . . grave breaches of the present Convention"). We therefore

agree with other courts of appeals that the language in the Geneva

Convention is not "self-executing" and does not "create private rights

of action in the domestic courts of the signatory countries." Huynh

Thi Anh v. Levi, 586 F.2d 625, 629 (6th Cir. 1978) (applying identical

enforcement provisions from the Geneva Convention Relative to the

Protection of Civilian Persons in Time of War, Feb. 2, 1956, 6 U.S.T.

3516, 75 U.N.T.S. 287); see also Holmes v. Laird, 459 F.2d 1211,

1222 (D.C. Cir. 1972) (noting that "corrective machinery specified in

the treaty itself is nonjudicial").

Hamdi provides no reason to conclude that 28 U.S.C. § 2241

makes these diplomatically-focused rights enforceable by a private

right of petition. Indeed, it would make little practical sense for

§ 2241 to have done so, since we would have thereby imposed on the

United States a mechanism of enforceability that might not find an

analogue in any other nation. This is not to say, of course, that the

Geneva Convention is meaningless. Rather, its values are vindicated

by diplomatic means and reciprocity, as specifically contemplated by

Article 132. There is a powerful and self-regulating national interest

in observing the strictures of the Convention, because prisoners are

taken by both sides of any conflict. This is the very essence of reci-

procity and, as the drafters of the Convention apparently decided, the

most appropriate basis for ensuring compliance. As the Court in

Eisentrager observed about the predecessor to the current Geneva

Convention, "the obvious scheme of the Agreement [is] that responsi-

bility for observance and enforcement of these rights is upon political

and military authorities." 339 U.S. at 789 n.14.

Even if Article 5 were somehow self-executing, there are questions

about how it would apply to Hamdi's case. In particular, it is anything

but clear that the "competent tribunal" which would determine

Hamdi's status would be an Article III court. Every country has dif-

ferent tribunals, and there is no indication that the Geneva Convention

was intended to impose a single adjudicatory paradigm upon its signa-

tories. Moreover, Hamdi's argument begs the question of what kind

of status determination is necessary under Article 5 and how exten-

sive it should be. Hamdi and the amici make much of the distinction

between lawful and unlawful combatants, noting correctly that lawful

combatants are not subject to punishment for their participation in a

conflict. But for the purposes of this case, it is a distinction without

a difference, since the option to detain until the cessation of hostilities

belongs to the executive in either case. It is true that unlawful comba-

tants are entitled to a proceeding before a military tribunal before they

may be punished for the acts which render their belligerency unlaw-

ful. Quirin, 317 U.S. at 31. But they are also subject to mere detention

in precisely the same way that lawful prisoners of war are. Id. The

fact that Hamdi might be an unlawful combatant in no way means that

the executive is required to inflict every consequence of that status on

him. The Geneva Convention certainly does not require such treat-

ment.

For all these reasons, we hold that there is no purely legal barrier

to Hamdi's detention. We now turn our attention to the question of

whether the August 16 order was proper on its own terms.

IV.

As we will discuss below, we conclude that Hamdi's petition fails

as a matter of law. It follows that the government should not be com-

pelled to produce the materials described in the district court's August

16 order.

We also note that the order, if enforced, would present formidable

practical difficulties. The district court indicated that its production

request might well be only an initial step in testing the factual basis

of Hamdi's enemy combatant status. The court plainly did not pre-

clude making further production demands upon the government, even

suggesting that it might "bring Hamdi before [the court] to inquire

about [his] statements."

Although the district court did not have "any doubts [that Hamdi]

had a firearm" or that "he went to Afghanistan to be with the Tali-

ban," the court ordered the government to submit to the court for in

camera, ex parte review: (1) "[c]opies of all Hamdi's statements, and

the notes taken from any interviews with Hamdi, that relate to his rea-

sons for going to Afghanistan, his activities while in Afghanistan, or

his participation in the military forces of the Taliban or any other

organization in that country"; (2) "[a] list of all the interrogators who

have questioned Hamdi, including their names and addresses, and the

dates of the interviews"; (3) "[c]opies of any statements by members

of the Northern Alliance" regarding Hamdi's surrender; (4) "[a] list

that includes the date of Hamdi's capture, and that gives all the dates

and locations of his subsequent detention"; (5)"[t]he name and title

of the individual within the United States Government who made the

determination that Hamdi was an illegal enemy combatant"; (6) "[t]he

name and title of the individual within the United States Government

who made the decision to move Hamdi from Guantanamo Bay, Cuba

to the Norfolk Naval Station"; and (7) "the screening criteria utilized

to determine the status of Hamdi." The court's order allows the gov-

ernment to redact "intelligence matters" from its responses, but only

to the extent that those intelligence matters are outside the scope of

inquiry into Hamdi's legal status.

Hamdi argues vigorously that this order should be affirmed.

Because of the alleged "breadth with which Respondents construe

their authority to imprison American citizens whom they consider to

be enemy combatants," Br. of the Petitioners/Appellees at 27, Hamdi

argues we must allow the district court to subject the government's

classification of him to a searching review. While the ordinary § 2241

proceeding naturally contemplates the prospect of factual develop-

ment, see 28 U.S.C. §§ 2243, 2246, such an observation only begs the

basic question in this case - whether further factual exploration

would bring an Article III court into conflict with the warmaking

powers of Article I and II. Here, the specific interests asserted by the

government flow directly from the warmaking powers and are inti-

mately connected to them. Whatever the general force of these inter-

ests (which we discussed extensively above), they are most directly

implicated by captures in a zone of active combat operations.

A review of the court's August 16 order reveals the risk of "stand[-

ing] the warmaking powers of Articles I and II on their heads," Hamdi

II, 296 F.3d at 284. The district court, for example, ordered the gov-

ernment to produce all Hamdi's statements and notes from interviews.

Yet it is precisely such statements, relating to a detainee's activities

in Afghanistan, that may contain the most sensitive and the most valu-

able information for our forces in the field. The risk created by this

order is that judicial involvement would proceed, increment by incre-

ment, into an area where the political branches have been assigned by

law a preeminent role.

The district court further ordered the government to produce a list

of all interrogators who have questioned Hamdi, including their

names and addresses and the dates of the interviews, copies of any

statements by members of the Northern Alliance regarding Hamdi's

surrender, and a list that includes the date of Hamdi's capture and all

the dates and locations of his subsequent detention. Once again, how-

ever, litigation cannot be the driving force in effectuating and record-

ing wartime detentions. The military has been charged by Congress

and the executive with winning a war, not prevailing in a possible

court case. Complicating the matter even further is the fact that

Hamdi was originally captured by Northern Alliance forces, with

whom American forces were generally allied. The district court's

insistence that statements by Northern Alliance members be produced

cannot help but place a strain on multilateral efforts during wartime.

The court also expressed concern in its order that the Northern Alli-

ance did not "identify the unit [to which Hamdi was affiliated],"

"where or by whom [Hamdi] received weapons training or the nature

and extent thereof," or "who commanded the unit or the type of garb

or uniform Hamdi may have worn. . . ." In demanding such detail, the

district court would have the United States military instruct not only

its own personnel, but also its allies, on precise observations they

must make and record during a battlefield capture.

Viewed in their totality, the implications of the district court's

August 16 production order could not be more serious. The factual

inquiry upon which Hamdi would lead us, if it did not entail disclo-

sure of sensitive intelligence, might require an excavation of facts

buried under the rubble of war. The cost of such an inquiry in terms

of the efficiency and morale of American forces cannot be disre-

garded. Some of those with knowledge of Hamdi's detention may

have been slain or injured in battle. Others might have to be diverted

from active and ongoing military duties of their own. The logistical

effort to acquire evidence from far away battle zones might be sub-

stantial. And these efforts would profoundly unsettle the constitu-

tional balance.

For the foregoing reasons, the court's August 16 production request

cannot stand.

V.

The question remains, however, whether Hamdi's petition must be

remanded for further proceedings or dismissed.

Hamdi's American citizenship has entitled him to file a petition for

a writ of habeas corpus in a civilian court to challenge his detention,

including the military's determination that he is an "enemy comba-

tant" subject to detention during the ongoing hostilities. Thus, as with

all habeas actions, we begin by examining the precise allegations

presented to us by the respective parties. In this case, there are two

allegations that are crucial to our analysis. First, Hamdi's petition

alleges that he was a resident of and seized in Afghanistan, a country

in which hostilities were authorized and ongoing at the time of the

seizure, but that his continued detention in this country without the

full panoply of constitutional protections is unlawful. Second, the

Government's response asserts that Hamdi is being detained pursuant

to the Commander-in-Chief's Article II war powers and that the cir-

cumstances underlying Hamdi's detention, as reflected primarily in

the Mobbs declaration, establish that Hamdi's detention is lawful.

Generally speaking, in order to fulfill our responsibilities under

Article III to review a petitioner's allegation that he is being detained

by American authorities in violation of the rights afforded him under

the United States Constitution, we must first determine the source of

the authority for the executive to detain the individual. Once the

source of the authority is identified, we then look at the justification

given to determine whether it constitutes a legitimate exercise of that

authority.

A.

Here the government has identified the source of the authority to

detain Hamdi as originating in Article II, Section 2 of the Constitu-

tion, wherein the President is given the war power. We have already

emphasized that the standard of review of enemy combatant deten-

tions must be a deferential one when the detainee was captured

abroad in a zone of combat operations. The President "is best pre-

pared to exercise the military judgment attending the capture of

alleged combatants." Hamdi II, 296 F.3d at 283. Thus, in Quirin, the

Supreme Court stated in no uncertain terms 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 consti-

tutionally enacted." Quirin, 317 U.S. at 25.

This deferential posture, however, only comes into play after we

ascertain that the challenged decision is one legitimately made pursu-

ant to the war powers. It does not preclude us from determining in the

first instance whether the factual assertions set forth by the govern-

ment would, if accurate, provide a legally valid basis for Hamdi's

detention under that power. Otherwise, we would be deferring to a

decision made without any inquiry into whether such deference is

due. For these reasons, it is appropriate, upon a citizen's presentation

of a habeas petition alleging that he is being unlawfully detained by

his own government, to ask that the government provide the legal

authority upon which it relies for that detention and the basic facts

relied upon to support a legitimate exercise of that authority. Indeed,

in this case, the government has voluntarily submitted - and urged

us to review - an affidavit from Michael Mobbs, Special Advisor to

the Under Secretary of Defense for Policy, describing what the gov-

ernment contends were the circumstances leading to Hamdi's desig-

nation as an enemy combatant under Article II's war power.

The Mobbs affidavit consists of two pages and nine paragraphs in

which Mobbs states that he was "substantially involved with matters

related to the detention of enemy combatants in the current war

against the al Qaeda terrorists and those who support and harbor

them." In the affidavit, Mobbs avers that Hamdi entered Afghanistan

in July or August of 2001 and affiliated with a Taliban military unit.

Hamdi received weapons training from the Taliban and remained with

his military unit until his surrender to Northern Alliance forces in late

2001. At the time of his capture, Hamdi was in possession of an AK-

47 rifle. After his capture, Hamdi was transferred first from Konduz,

Afghanistan to the prison in Mazar-e-Sharif, and then to a prison in

Sheberghan, Afghanistan where he was questioned by a United States

interrogation team. This interrogation team determined that Hamdi

met "the criteria for enemy combatants over whom the United States

was taking control." Hamdi was then transported to the U.S. short

term detention facility in Kandahar, and then transferred again to

Guantanamo Bay and eventually to the Norfolk Naval Brig. Accord-

ing to Mobbs, a subsequent interview with Hamdi confirmed the

details of his capture and his status as an enemy combatant.

The district court approached the Mobbs declaration by examining

it line by line, faulting it for not providing information about whether

Hamdi had ever fired a weapon, the formal title of the Taliban mili-

tary unit Hamdi was with when he surrendered, the exact composition

of the U.S. interrogation team that interviewed Hamdi in Sheberghan,

and even the distinguishing characteristics between a Northern Alli-

ance miliary unit and a Taliban military unit. Concluding that the fac-

tual allegations were insufficient to support the government's

assertion of the power to detain Hamdi under the war power, the court

then ordered the production of the numerous additional materials out-

lined previously. We think this inquiry went far beyond the accept-

able scope of review.

To be sure, a capable attorney could challenge the hearsay nature

of the Mobbs declaration and probe each and every paragraph for

incompleteness or inconsistency, as the district court attempted to do.

The court's approach, however, had a signal flaw. We are not here

dealing with a defendant who has been indicted on criminal charges

in the exercise of the executive's law enforcement powers. We are

dealing with the executive's assertion of its power to detain under the

war powers of Article II. See Eisentrager, 339 U.S. at 793 (Black, J.,

dissenting) ("[I]t is no `crime' to be a soldier."); cf. In re Winship, 397

U.S. 358, 363 (1970) (explaining that elevated burden of proof

applies in criminal cases because of consequences of conviction,

including social stigma). To transfer the instinctive skepticism, so

laudable in the defense of criminal charges, to the review of executive

branch decisions premised on military determinations made in the

field carries the inordinate risk of a constitutionally problematic intru-

sion into the most basic responsibilities of a coordinate branch.

The murkiness and chaos that attend armed conflict mean military

actions are hardly immune to mistake. Yet these characteristics of

warfare have been with us through the centuries and have never been

thought sufficient to justify active judicial supervision of combat

operations overseas. To inquire, for example, whether Hamdi actually

fired his weapon is to demand a clarity from battle that often is not

there. The district court, after reviewing the Mobbs affidavit, did not

"have any doubts [Hamdi] had a firearm [or] any doubts he went to

Afghanistan to be with the Taliban." To delve further into Hamdi's

status and capture would require us to step so far out of our role as

judges that we would abandon the distinctive deference that animates

this area of law.

For these reasons, and because Hamdi was indisputably seized in

an active combat zone abroad, we will not require the government to

fill what the district court regarded as gaps in the Mobbs affidavit.

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, as discussed elsewhere, that it is consistent with the

Constitution and laws of Congress. See Quirin, 317 U.S. at 25. Ask-

ing 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.

B.

We turn then to the question of whether, because he is an American

citizen currently detained on American soil by the military, Hamdi

can be heard in an Article III court to rebut the factual assertions that

were submitted to support the "enemy combatant" designation. We

hold that no evidentiary hearing or factual inquiry on our part is nec-

essary or proper, because it is undisputed that Hamdi was captured in

a zone of active combat operations in a foreign country and because

any inquiry must be circumscribed to avoid encroachment into the

military affairs entrusted to the executive branch.

In support of its contention that no further factual inquiry is appro-

priate, the government has argued that a "some evidence" standard

should govern the adjudication of claims brought by habeas petition-

ers in areas where the executive has primary responsibility. That stan-

dard has indeed been employed in contexts less constitutionally

sensitive than the present one, albeit in a procedural posture that ren-

ders those cases distinguishable. See, e.g., INS v. St. Cyr, 533 U.S.

289, 306 (2001) (describing historical practice under which, so long

as "there was some evidence to support" a deportation order, habeas

courts would not "review factual determinations made by the Execu-

tive"); Eagles v. Samuels, 329 U.S. 304, 312 (1946); Fernandez v.

Phillips, 268 U.S. 311, 312 (1925). In each of these cases, the Court

indicated that the role of the writ is not to correct "mere error" in the

executive's exercise of a discretionary power, but rather to check the

executive branch if it asserts a "power to act beyond the authority

granted." Eagles, 329 U.S. at 311-12. Thus, the government asserts,

the role of a habeas court is not to reconsider the executive's decision,

but rather only to confirm that "there was some basis for the chal-

lenged executive determination." Br. for Respondents-Appellants at

29. Once that determination is made, the government further asserts,

the detainee may not offer any rebuttal evidence and no further fac-

tual inquiry is allowed.

It is not necessary for us to decide whether the "some evidence"

standard is the correct one to be applied in this case because we are

persuaded for other reasons that a factual inquiry into the circum-

stances of Hamdi's capture would be inappropriate.

1.

As we have emphasized throughout these appeals, we cannot set

aside executive decisions to detain enemy combatants "without the

clear conviction that they are in conflict with the Constitution or laws

of Congress constitutionally enacted." Quirin, 317 U.S. at 25. We

cannot stress too often the constitutional implications presented on the

face of Hamdi's petition. The constitutional allocation of war powers

affords the President extraordinarily broad authority as Commander

in Chief and compels courts to assume a deferential posture in

reviewing exercises of this authority. And, while the Constitution

assigns courts the duty generally to review executive detentions that

are alleged to be illegal, the Constitution does not specifically con-

template any role for courts in the conduct of war, or in foreign policy

generally.

Indeed, Article III courts 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. Any evaluation of the accuracy

of the executive branch's determination that a person is an enemy

combatant, for example, would require courts to consider, first, what

activities the detainee was engaged in during the period leading up to

his seizure and, second, whether those activities rendered him a com-

batant or not. The first question is factual and, were we called upon

to delve into it, would likely entail substantial efforts to acquire evi-

dence from distant battle zones. See Eisentrager, 339 U.S. at 779. The

second question may require fine judgments about whether a particu-

lar activity is linked to the war efforts of a hostile power - judg-

ments the executive branch is most competent to make.

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 and Congressional authorization for use of military

force in the wake of al Qaida's attack. Quirin, 317 U.S. at 25. Any

effort to ascertain the facts concerning the petitioner's conduct while

amongst the nation's enemies would entail an unacceptable risk of

obstructing war efforts authorized by Congress and undertaken by the

executive branch.

2.

Hamdi contends that, although international law and the laws of

this country might generally allow for the detention of an individual

captured on the battlefield, these laws must vary in his case because

he is an American citizen now detained on American soil. As an

American citizen, Hamdi would be entitled to the due process protec-

tions normally found in the criminal justice system, including the

right to meet with counsel, if he had been charged with a crime. But

as we have previously pointed out, Hamdi has not been charged with

any crime. He is being held as an enemy combatant pursuant to the

well-established laws and customs of war. Hamdi's citizenship right-

fully entitles him to file this petition to challenge his detention, but

the fact that he is a citizen does not affect the legality of his detention

as an enemy combatant.

Indeed, this same issue arose in Quirin. In that case, petitioners

were German agents who, after the declaration of war between the

United States and the German Reich, were trained at a German sabo-

tage school where they "were instructed in the use of explosives and

in methods of secret writing." Quirin, 317 U.S. at 21. The petitioners

then journeyed by submarine to the beaches of New York and Florida,

carrying large quantities of explosives and other sabotage devices. All

of them were apprehended by FBI agents, who subsequently learned

of their mission to destroy war industries and facilities in the United

States. All of the petitioners were born in Germany but had lived in

the United States at some point. One petitioner claimed American cit-

izenship by virtue of the naturalization of his parents during his youth.

The Court, however, did not need to determine his citizenship because

it held that the due process guarantees of the Fifth and Sixth Amend-

ments were inapplicable in any event. It noted that"[c]itizenship in

the United States of an enemy belligerent does not relieve him from

the consequences of a belligerency which is unlawful." Id. at 37. The

petitioner who alleged American citizenship was treated identically to

the other German saboteurs.

The Quirin principle applies here. One who takes up arms against

the United States in a foreign theater of war, regardless of his citizen-

ship, may properly be designated an enemy combatant and treated as

such. The privilege of citizenship entitles Hamdi to a limited judicial

inquiry into his detention, but only to determine its legality under the

war powers of the political branches. At least where it is undisputed

that he was present in a zone of active combat operations, we are sat-

isfied that the Constitution does not entitle him to a searching review

of the factual determinations underlying his seizure there.

3.

Similarly, we reject Hamdi's argument that even if his initial deten-

tion in Afghanistan was lawful, his continuing detention on American

soil is not. Specifically, Hamdi contends that his petition does not

implicate military concerns because "the underlying claims in this

case are designed to test the legality of Hamdi's imprisonment in a

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

overseas on the basis of caution rather than accuracy." Br. of the Peti-

tioners/Appellees at 44. But the fact that Hamdi is presently being

detained in the United States - as opposed to somewhere overseas

- does not affect the legal implications of his status as an enemy

combatant. For the same reason that courts are ill-positioned to

review the military's distinction between those who should or should

not be detained in an arena of combat, courts are not in the position

to overturn the military's decision to detain those persons in one loca-

tion or another. It is not clear why the United States should be pre-

cluded from exercising its discretion to move a detainee to a site

within this country, nor do we see what purpose would be served by

second guessing the military's decision with respect to the locus of

detention.

4.

To conclude, we hold that, despite his status as an American citizen

currently detained on American soil, Hamdi is not entitled to chal-

lenge the facts presented in the Mobbs declaration. Where, as here,

a habeas petitioner has been designated an enemy combatant and it is

undisputed that he was captured in a zone of active combat operations

abroad, further judicial inquiry is unwarranted when the government

has responded to the petition by setting forth factual assertions which

would establish a legally valid basis for the petitioner's detention.

Because these circumstances are present here, Hamdi is not entitled

to habeas relief on this basis.

C.

Finally, we address Hamdi's contention that even if his detention

was at one time lawful, it is no longer so because the relevant hostili-

ties have reached an end. In his brief, Hamdi alleges that the govern-

ment "confuses the international armed conflict that allegedly

authorized Hamdi's detention in the first place with an on-going fight

against individuals whom Respondents refuse to recognize as `bellig-

erents' under international law." Id. at 53-54. Whether the timing of

a cessation of hostilities is justiciable is far from clear. See Ludecke,

335 U.S. at 169 ("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 formu-

lated when not compelled."). The executive branch is also in the best

position to appraise the status of a conflict, and the cessation of hostil-

ities would seem no less a matter of political competence than the ini-

tiation of them. See United States v. The Three Friends, 166 U.S. 1,

63 (1897) ("[I]t belongs to the political department to determine when

belligerency shall be recognized, and its action must be accepted

according to the terms and intention expressed."). In any case, we

need not reach this issue here. The government notes that American

troops are still on the ground in Afghanistan, dismantling the terrorist

infrastructure in the very country where Hamdi was captured and

engaging in reconstruction efforts which may prove dangerous in

their own right. Because under the most circumscribed definition of

conflict hostilities have not yet reached their end, this argument is

without merit.

VI.

It is important to emphasize that we are not placing our imprimatur

upon a new day of executive detentions. We earlier rejected the sum-

mary embrace of "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 II, 296 F.3d at 283. But,

Hamdi is not "any American citizen alleged to be an enemy comba-

tant" by the government; he is an American citizen captured and

detained by American allied forces in a foreign theater of war during

active hostilities and determined by the United States military to have

been indeed allied with enemy forces.

Cases such as Hamdi's raise serious questions which the courts will

continue to treat as such. The nation has fought since its founding for

liberty without which security rings hollow and for security without

which liberty cannot thrive. The judiciary was meant to respect the

delicacy of the balance, and we have endeavored to do so.

The events of September 11 have left their indelible mark. It is not

wrong even in the dry annals of judicial opinion to mourn those who

lost their lives that terrible day. Yet we speak in the end not from sor-

row or anger, but from the conviction that separation of powers takes

on special significance when the nation itself comes under attack.

Hamdi's status as a citizen, as important as that is, cannot displace our

constitutional order or the place of the courts within the Framer's

scheme. Judicial review does not disappear during wartime, but the

review of battlefield captures in overseas conflicts is a highly deferen-

tial one. That is why, for reasons stated, the judgment must be

reversed and the petition dismissed. It is so ordered.

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