Enemy Combatants After 9/11

Enemy Combatants After 9/11

The attacks of September 11, 2001 gave the questions of this chapter a new setting, because the government began capturing and holding people in the name of a war that Congress had never formally declared. Congress has not declared war on terror in the only way Article I authorizes, but it did pass an Authorization for the Use of Military Force (AUMF) aimed at those responsible for the attacks.¹ That statute sits at the center of the cases below. Jackson's framework from Youngstown asks what Congress has authorized, left open, or forbidden, so the reach of the AUMF largely decides how strong the President's position is in each dispute.

Three Supreme Court decisions, taken up in four parts below, follow a single arc. Hamdi v. Rumsfeld concerned an American citizen who, the Government said, was seized on the field of battle in Afghanistan and held as an enemy combatant, and it asks two questions: whether the AUMF authorizes his detention, given that a federal statute bars imprisoning a citizen except pursuant to an Act of Congress, and what process is due if detention is authorized.² Hamdan v. Rumsfeld moves from detention to trial and asks whether the President may use military commissions where Congress has set statutory limits on how they operate.³ That question echoes Quirin, where the Court sustained a commission because Congress had already sanctioned the forum.⁴ Boumediene v. Bush then asks whether Congress and the President, acting together, may close the courthouse door by stripping federal courts of habeas jurisdiction over detainees held at Guantanamo.⁵

The arc runs from statute to Constitution. The first two decisions ask what Congress has authorized and what limits it has set, and the last asks what the Constitution preserves when the legislature and the executive have acted in concert. The two variables that separated Milligan from Quirin carry through all of them: who the person in custody is, and whether Congress has approved the forum or the detention. The discussion begins below with Hamdi.

Hamdi and Statutory Authority

The first question in Hamdi v. Rumsfeld is whether Congress, by authorizing force after the September 11 attacks, also authorized the military to hold an American citizen captured abroad. That framing fits the arc of this part of the chapter, because the answer depends on what Congress has done, and detention without charge is the kind of executive act that most needs a source in law. Yaser Hamdi was born in Louisiana in 1980, moved with his family to Saudi Arabia as a child, and was living in Afghanistan by 2001. Northern Alliance forces seized him during the ensuing conflict and turned him over to United States military authorities, who held him at Guantanamo Bay and then, on learning that he was a citizen, moved him to naval brigs in Virginia and South Carolina.⁶ The Government's account, set out in a sworn declaration, was that he had affiliated with a Taliban military unit, received weapons training, and surrendered a rifle to Northern Alliance forces.⁷ It was undisputed that the Government had charged him with no crime, and for one year and nine months it denied him any communication beyond the prison and any access to counsel.⁸

The Government defended the detention on two grounds. It said that holding a captive taken on the field of battle falls within the President's power as Commander in Chief under the laws and usages of war, and it said that two statutes supplied authority, a general provision on paying for the detention of prisoners of war and the force resolution passed after the 2001 attacks.⁹ The statutory theory carried real weight because of the Non-Detention Act, 18 U.S.C. § 4001(a), which provides that no citizen shall be imprisoned or otherwise detained by the United States "except pursuant to an Act of Congress."¹⁰ That text makes congressional authorization a precondition to holding a citizen, so the dispute narrowed to whether the Authorization for Use of Military Force (AUMF), the 2001 statute permitting the President to use force against those responsible for the attacks, was an Act of Congress of the kind the Non-Detention Act demands.

A plurality of four Justices, in an opinion by Justice O'Connor, held that it was.¹¹ The AUMF authorizes "all necessary and appropriate force" against "nations, organizations, or persons" associated with the attacks, and individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda network responsible, are individuals Congress sought to target.¹² The plurality then concluded that detaining individuals in that limited category, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident of war that it is an exercise of the force Congress authorized.¹³

The reasoning rests on what detention is for. By universal agreement and practice, the capture and detention of lawful combatants, and the capture, detention, and trial of unlawful combatants, are important incidents of war, as Ex parte Quirin recognized, and the purpose of holding a captured fighter is to prevent a return to the battlefield and a renewed taking up of arms.¹⁴ Custody of that kind is protective rather than punitive, which is why it counts as part of fighting a war and needs no separate grant of penal power. Once that premise is accepted, the absence of the word detention from the AUMF does little harm: Congress authorized the force needed to fight the Taliban, removing captured fighters from the field is part of that force, and the plurality described the resulting authorization as clear and unmistakable in these narrow circumstances.¹⁵

Citizenship does not change the answer, and the reason follows from the purpose of detention. In Quirin one of the saboteurs, Haupt, claimed to be a naturalized citizen, and the Court held that citizens who associate with the military arm of the enemy and enter the country bent on hostile acts are enemy belligerents under the law of war; the plurality read Quirin to mean that nothing precluded holding Haupt for the duration of the hostilities, even apart from trying him.¹⁶ A citizen can be part of forces hostile to the United States just as an alien can, and a citizen who is released poses the same threat of returning to the front during the ongoing conflict.¹⁷ The protective purpose of detention depends on what the person does, so the person's passport has no bearing on whether the purpose is served.

The holding is confined to the category the plurality described: a person who fought against the United States in Afghanistan as part of the Taliban, held for the duration of that conflict.¹⁸ Hamdi, as the Government told his story, sits at the center of that category, because a man captured bearing arms with a Taliban unit is exactly the sort of fighter whose return to battle detention prevents. The edges matter just as much. The protective-custody rationale supplies no justification for holding someone who has never been part of the fighting, and a rule that reached such a person would stretch the incident-of-war reasoning past the point where it explains anything.

Justice Souter, joined by Justice Ginsburg, answered the statutory question differently, and his opinion is a separate analysis resting on the Non-Detention Act rather than a milder version of the plurality's. He agreed with the plurality in rejecting the Government's claim that judicial inquiry could be limited to a minimal check on the designation, but he dissented from the conclusion that the AUMF authorized Hamdi's detention.¹⁹ His premise was that the Non-Detention Act must be read robustly, to require a clear statement of authority before a citizen is placed in a cell. The history supports that reading: the Act replaced the Emergency Detention Act of 1950, which Congress repealed in 1971 out of fear that it could authorize a repetition of the World War II internment of citizens of Japanese ancestry, and Congress meant to preclude reliance on vague congressional authority as a basis for executive detention.²⁰ The interpretive background points the same way, because Ex parte Endo, decided the same day as Korematsu, had directed that wartime measures be read to place no greater restraint on citizens than the language used clearly and unmistakably indicates.²¹

A structural reason completes his account. The branch charged with countering a serious threat will naturally amplify the claims of security, so a reasonable balance between security and liberty is more likely to come from a different branch, and the Executive is poorly placed to decide on its own how much liberty to spend on the way to victory.²² Applying that standard, Souter found the force resolution insufficient. Its focus is the use of military power, and it is fairly read to authorize armies and weapons against other armies or individual terrorists, but it never uses the word detention, and nothing suggests Congress saw a need to add executive power over dangerous citizens given the many criminal offenses, such as material support for terrorism, already available.²³ He considered the argument that authority to use force carries authority to treat enemy belligerents under the laws of war, but he held that the Government could not claim its benefit, because the Government's own stated position was that the Geneva Convention applies to Taliban detainees, which would seem to make a Taliban fighter captured bearing arms a prisoner of war and sits poorly with its claim to be following the customary law of war.²⁴ On the record before the Court, he concluded, the Non-Detention Act entitled Hamdi to be released.²⁵

Placing the plurality beside Souter shows where the real disagreement lies. Both asked whether Congress had clearly authorized detention. The plurality said that authority to use necessary and appropriate force carries detention with it as a fundamental incident of war, while Souter said that a resolution about force that never mentions detention is not the clear statement the Non-Detention Act requires.²⁶ The dispute is therefore about how much meaning an authorization of force carries by implication when a citizen's liberty is at stake.

Justice Scalia dissented on a different ground that never reaches the AUMF. The Government had charged Hamdi with no crime, and the writ of habeas corpus may be suspended only in cases of rebellion or invasion.²⁷ His point is that the historical options for a citizen accused of waging war against the United States are prosecution in federal court, typically for treason, or a lawful suspension of the writ, and that executive detention without charge is neither, so he would have reversed the judgment.²⁸ Justice Thomas dissented from the other direction. He would have held that the Executive has authority to detain enemy combatants, including citizens, during wartime, that courts should not second-guess the designation, and that the President's action is supported by the strongest presumptions when taken under express or implied congressional authorization.²⁹ He also suggested that "the President very well may have inherent authority to detain those arrayed against our troops," but found it unnecessary to decide that question because, in his view, the AUMF supplied sufficient statutory authority.³⁰

Counting the opinions shows what the case decided and what it left open. The four Justices in the plurality and Justice Thomas each found the detention authorized by the AUMF, so a majority of the Court rested the authority to detain on what Congress had done.³¹ No opinion in that majority rested the authority on an inherent Commander in Chief power, and Thomas, the one Justice who raised the possibility, left it undecided.³² In the terms of Jackson's framework from Youngstown, a President acting under an authorization from Congress stands in the first category, where power is at its maximum, which is why the inherent-power question never had to be answered. The common errors follow from forgetting that. One is to cite the case for a President's inherent authority to detain, another is to read it as reaching any citizen the Government labels an enemy combatant, and a third is to treat Souter's clear-statement analysis as the holding when it was a separate opinion in which the plurality and Thomas did not join.

The first three steps reproduce the plurality's holding, and the fourth marks where the other opinions diverge. None of these steps asks whether the President holds an inherent power to detain, because the decision never answered that question.

Due Process for Citizens

The first Hamdi holding settled that Congress's force authorization reaches a citizen who fought with the Taliban, but authority to detain a category of people does not say how the Government decides who belongs in it. That is the work of the second holding. Even where detention is authorized, a United States citizen held as an enemy combatant is entitled under the Due Process Clause to notice of the factual basis for the classification and a fair opportunity to contest it before a neutral decisionmaker.³⁶ Justice O'Connor wrote the controlling plurality opinion, and Justice Souter, who dissented from the statutory holding, joined it to the extent it required a meaningful opportunity for Hamdi to offer evidence that he was not an enemy combatant.³⁷ The two holdings fit together because the plurality's statutory conclusion was conditional: detention is authorized if the designation of the person as an enemy combatant is correct.³⁸ Authority to detain therefore rests on a factual premise, and a hearing is the means of testing that premise.

The Government's position shows what the holding rejects. It argued that a habeas court could ask only whether "some evidence" supports the designation, and at oral argument it went further and suggested that a prisoner who could explain himself during interrogation had received enough process.³⁹ The plurality refused to confine judicial inquiry in that way, and Justice Souter, agreeing on this point, said that review so limited would be virtually worthless as a way to contest detention and would leave the assertion of executive authority close to unconditional.⁴⁰ The mechanism behind that criticism is easy to trace. The Executive makes the designation, and the facts supporting it sit in the Executive's own files. A court that asks only whether the file contains something pointing toward the designation will almost always find it, and a detainee who was never told what the file says has no means of showing it is wrong. An interrogation is weaker still, because the interrogator is the accuser, and a chance to persuade the person who wants the designation confirmed is not a chance to contest it. A neutral decisionmaker removes that conflict, notice makes rebuttal possible because no one can answer an allegation never disclosed, and the opportunity to contest completes the chain.

The stakes explain why the Court insisted on the full chain. Hamdi had been charged with no crime, and for one year and nine months he was denied any communication beyond the prison and any access to counsel, while the Government claimed a right to hold him indefinitely.⁴¹ A mistaken classification in that setting means open-ended imprisonment of a citizen, and battlefield classifications carry a real risk of error. Justice O'Connor placed the holding in that context, writing that it is "during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested," and that "it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."⁴² The power to hold captured fighters is real, and the price of using it against a citizen is a process that lets the person show the Government has the wrong man.

The holding has limits that keep it from being overread. The hearing tests the classification and is not a criminal trial, and the same Court that required it held that Congress's force authorization permits detaining captured enemy fighters without a normal criminal trial.⁴³ The three features the holding names, notice, a fair opportunity to contest, and a neutral decisionmaker, are the floor, and this chapter does not extend them into a fuller code of hearing procedures. The holding also rejects the view of Justice Thomas, who would have had courts defer to the Executive's designation of a citizen as an enemy combatant instead of second-guessing it.⁴⁴ The usual exam error is to run the two Hamdi holdings together, either by treating statutory authority to detain as an answer to the due process question or by reading the due process holding as a demand for criminal charges.

The holding concerned a citizen, and the setting mattered. The Government moved Hamdi from Guantanamo to a naval brig in South Carolina once it learned of his citizenship, so he was clearly within the jurisdiction of the federal courts when his habeas petition was filed.⁴⁵ Aliens held at Guantanamo raise the process question from a different footing, which Boumediene v. Bush takes up in the last part of this chapter. There the Court held that those detainees have a constitutional right to the writ of habeas corpus and found the statutory review procedures an inadequate substitute for it.⁴⁶ Both decisions rest on the idea that the Executive's own designation cannot be the final word on who may be imprisoned, and the Boumediene Court described the duty to hear challenges to the Executive's authority to imprison a person as among the most legitimate and necessary exercises of judicial power.⁴⁷ The sources differ, though: Hamdi's right comes from the Due Process Clause and attaches to a citizen, while the right in Boumediene is access to habeas corpus itself.

Hamdan and Statutory Limits

Hamdi settled what Congress's force authorization permits the government to do with a captured fighter, and the next question is what the government may do to put that person on trial. In Hamdan v. Rumsfeld the President had created a military commission by order, and the dispute was whether the commission could proceed where Congress had already legislated about how such tribunals may operate. The answer applies the lesson of Youngstown directly: command of the forces carries no authority to disregard limits that Congress sets under its own war powers. The discussion takes the structural point first, then the statutes, then the law-of-war analysis, and last the aftermath.

Salim Ahmed Hamdan, a Yemeni national, was captured by militia forces in Afghanistan in November 2001, during hostilities between the United States and the Taliban regime that then governed the country. The militia turned him over to the United States military, which moved him to Guantanamo Bay in June 2002.⁴⁹ In July 2003 the President determined that Hamdan was eligible for trial by military commission, and in July 2004 the government charged him with a single count of conspiracy to commit offenses triable by military commission, alleging that from February 1996 to November 2001 he had joined an enterprise with members of al Qaeda.⁵⁰ Hamdan petitioned for habeas corpus to challenge both the commission's authority and its procedures, the District Court ruled for him, and the Court of Appeals reversed. While the case was pending in the Supreme Court, Congress enacted the Detainee Treatment Act of 2005 (DTA), and the government argued that the statute ended the Court's jurisdiction. The Court rejected that argument because the Act made some of its provisions expressly applicable to pending cases and left the habeas-stripping provision off that list, which it read as meaning that the provision did not reach cases already pending.⁵¹ On the merits, the Court held that the commission lacked power to proceed because its structure and procedures violated both the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions.⁵²

The structural point organizes everything else in the case. A military commission is a tribunal that the Constitution neither mentions nor creates by statute, and it was born of military necessity.⁵³ Necessity alone will not justify penal tribunals that Article I, section 8 and Article III, section 1 do not contemplate, unless some other part of the Constitution authorizes a response to the felt need, and any such authority can derive only from the powers granted jointly to the President and Congress in time of war.⁵⁴ The reason follows from what a commission does. It replaces the courts and juries that the Constitution otherwise provides, so a rule letting the Executive create one whenever the Executive finds it necessary would make the branch that wants the tribunal the only judge of whether the need exists. Tying the authority to powers that the two branches share forces any claim of necessity to pass through Congress as well.

The shared powers are specific. The Constitution makes the President Commander in Chief, but it gives Congress the powers to declare war and make rules concerning captures, to raise and support armies, to define and punish offenses against the law of nations, and to make rules for the government and regulation of the land and naval forces.⁵⁵ The Court described the interplay through Chief Justice Chase's opinion in Ex parte Milligan: neither the President nor Congress may intrude on the proper authority of the other, so Congress cannot direct the conduct of campaigns, and the President cannot, without the sanction of Congress, institute tribunals to try soldiers or civilians except in cases of controlling necessity.⁵⁶ Whether Chase was right that the President may convene commissions without Congress's sanction in such cases is a question the Court said it had not answered definitively and did not need to answer, because Quirin had found that Congress sanctioned commissions through Article of War 15, and Article 21 of the UCMJ preserved that language in substantially identical form.⁵⁷ The case therefore leaves that question open and rests on a narrower proposition. Whether or not the President holds independent power to convene commissions, the President may not disregard limits that Congress has set in the proper exercise of its own war powers.⁵⁸ That proposition has a textual footing, because Congress's power to make rules for the forces reaches, as Justice Jackson put it in Youngstown, "to some unknown extent" even command functions.⁵⁹

Article 21 supplies the statutory footing. It provides that the code's grant of jurisdiction to courts-martial does not deprive military commissions of concurrent jurisdiction over offenders or offenses that by statute or the law of war may be tried by them.⁶⁰ The Court declined to revisit Quirin's characterization of Article of War 15 as congressional authorization, but it observed that even Quirin did not treat the article as a sweeping mandate for the President to invoke commissions whenever the President deems them necessary.⁶¹ Congress had instead preserved whatever power the President held before 1916, under the Constitution and the common law of war, to convene commissions, on the express condition that the President and those under the President's command comply with the law of war.⁶² That condition explains why the Quirin Court, after finding authorization, went on to ask whether the law of war had in fact been obeyed, and it means that a commission failing the condition falls outside what Article 21 permits.

The Government asked the Court to find specific, overriding authorization for this very commission in either the Authorization for Use of Military Force (AUMF) or the DTA, and the Court found neither.⁶³ It assumed that the AUMF activated the President's war powers and that those powers include authority to convene commissions in appropriate circumstances, but nothing in the AUMF's text or legislative history even hinted that Congress meant to expand or alter Article 21, and repeals by implication are not favored.⁶⁴ The DTA was enacted after the President had convened the commission, and it contains no language authorizing that tribunal or any other at Guantanamo Bay. It acknowledges the commissions only in the weakest sense, by referring to some of the orders that govern them and creating limited judicial review, while reserving judgment on whether the Constitution and laws apply.⁶⁵ At most, the UCMJ, the AUMF, and the DTA together acknowledge a general presidential authority to convene commissions in circumstances justified under the Constitution and laws, including the law of war, so the Court's task, as in Quirin, was to decide whether this commission was so justified.⁶⁶

A reader may wonder why the AUMF, which the Hamdi plurality read to authorize detention, fails to authorize this commission. The two readings differ because holding a captured fighter off the battlefield is an incident of the force Congress authorized, while trial by commission is a subject on which Congress had already spoken specifically, in Article 21, and had conditioned its answer on compliance with the law of war. A general authorization of force is a poor vehicle for rewriting a specific statute by implication, and the Court treated it that way.⁶⁷ The more specifically Congress has addressed a subject, the less a general grant of authority can add to it.

Beyond the statutes, the opinion asked whether the law of war itself justified the commission. Commissions have historically served three functions: substituting for civilian courts where martial law has been declared, trying civilians as part of a temporary military government in occupied enemy territory, and, as an incident to the conduct of war, seizing and disciplining enemies who have violated the law of war.⁶⁸ Guantanamo is neither enemy-occupied territory nor under martial law, so the law-of-war commission was the only model available, and Quirin represents what the Court called the high-water mark of military power to try enemy combatants for war crimes.⁶⁹ The common law governing that kind of tribunal sets four preconditions for jurisdiction, and all parties agreed that they were incorporated into Article of War 15 and later into Article 21.⁷⁰ They are these:

1. The offense must have been committed within the field of command of the convening commander, which in this setting means the theater of war.
2. The offense must have been committed within the period of the war, and not before or after it.
3. The defendant must be an enemy who engaged in illegitimate warfare, or a member of one's own army chargeable with offenses not triable by court-martial.
4. The offense must be either a violation of the laws and usages of war cognizable by military tribunals only, or a breach of military orders or regulations for which the offender is not legally triable by court-martial.

Each precondition tests whether a real military necessity exists to justify an extraordinary tribunal, so the preconditions give practical content to the condition that Congress attached in Article 21.⁷¹

Measured against those preconditions, the charge was deficient on its face. It alleged a conspiracy running from 1996 to November 2001, so all but two months of that period preceded the September 11 attacks and the enactment of the AUMF on which the Government relied for its war powers. No agreement or overt act was alleged to have occurred in a theater of war or on any specified date after September 11, and none of the alleged overt acts itself violated the law of war.⁷² The opinion treated those time and place defects as symptoms of the most serious one, which was that the offense alleged is not triable by a law-of-war commission.⁷³ The votes behind each part of the opinion differ, and the conspiracy analysis needs particular care. The statutory analysis above is the opinion of the Court, but the law-of-war analysis and its conclusion about conspiracy come from a part of Justice Stevens's opinion that only three other Justices joined, and Justice Kennedy, who concurred in the judgment, would not decide the validity of the conspiracy charge.⁷⁴{{cite:see-also:expert:cm19e049bd75c3c22a3f97ae2}} The conspiracy ruling is therefore a four-Justice position and not a holding of the Court.

The commission's procedures failed a separate test, and that failure shows the structural rule at work. Article 36 of the UCMJ requires procedural rules for commissions to be uniform with court-martial rules insofar as practicable, so the President must determine that uniformity is impracticable before departing from them.⁷⁵ In Hamdan, Commission Order No. 1 allowed the accused and civilian counsel to be excluded from closed sessions and allowed admission of evidence having only probative value to a reasonable person. Yet the President made no determination of impracticability, and the record revealed no logistical or security obstacle that would justify abandoning the accused's right to be present.⁷⁶ The commission therefore violated the UCMJ. It also violated Common Article 3 of the Geneva Conventions, a provision requiring that sentences be pronounced by a regularly constituted court affording the judicial guarantees recognized as indispensable by civilized peoples, because its departures from court-martial practice lacked demonstrated practical necessity.⁷⁷ Those facts mark the pole where the rule applies: a commission created by executive order, empowered to exclude the accused and counsel and to admit evidence a court-martial would not, with no impracticability determination and no statute authorizing the departures, is unlawful. The uniformity requirement checks the one who writes the rules. The same Executive that convenes a commission and prosecutes before it would otherwise choose procedures that suit its own cases, and the impracticability determination forces a stated reason before any departure from the baseline Congress set.

Three Justices dissented from much of this reasoning, and their position is the strongest case for the executive. Justice Thomas, joined by Justice Scalia, argued that the AUMF and the President's commander-in-chief authority supported trial by commission for conspiracy to violate the law of war, relied on practice running from the Civil War through World War II, and called the majority's refusal to defer to the Executive's military judgments contrary to the constitutional structure.⁷⁸ Justice Alito, joined by both of them, would have held the commission regularly constituted because it was appointed under presidential order in accordance with domestic law.⁷⁹ The majority's answer to the first view was that nothing in the AUMF suggested any change to Article 21, and its answer to the second was that the commission's departures from court-martial practice were unexplained.

Justice Kennedy's concurrence supplies the label that connects the case to Youngstown. In his view the Court's analysis placed the case within Justice Jackson's third category, not the second or first, so that the President's power was at its "lowest ebb" and insufficient to overcome the statutory constraints.⁸⁰ The placement follows from the subtraction that defines the third category: the President can rely only on whatever executive power remains after subtracting the powers Congress holds over the subject.⁸¹ Here Congress's powers over the subject include defining and punishing offenses against the law of nations and making rules for the government and regulation of the forces, and Congress had exercised them through the UCMJ. The case was outside the first category because the AUMF did not expand the authority Article 21 conferred, and outside the second because Congress had not been silent: it had attached a condition to commissions and a uniformity requirement to their procedures. The result resembles Youngstown, where Congress had covered seizure by statutory policies inconsistent with the President's chosen method.⁸²

Justice Breyer's concurrence adds why the ruling is less drastic than it may sound. He wrote that the decision rests on a single ground, which is that Congress has not issued the Executive a "blank check," and that nothing in it prevents the President from returning to Congress to seek the authority believed necessary.⁸³ Where no emergency prevents consultation, he reasoned, insisting that the President consult Congress strengthens the Nation's ability to confront danger through democratic means.⁸⁴ The mechanism is that a commission authorized by statute carries the judgment of both political branches, while one created by the Executive alone leaves a single branch to choose the procedures, convene the tribunal, and prosecute before it. Requiring Congress to participate spreads responsibility and supplies a second check before a person is tried outside the ordinary courts. The Court also made clear that the result would have been different had the President acted with congressional authorization.⁸⁵

The aftermath confirms that reading. Only months after Hamdan came down, and at the President's urging, Congress passed the Military Commissions Act, which expressly authorized the President to use commission procedures similar to the ones the Court had held unlawful.⁸⁶ The President's position moved from the lowest ebb to the maximum of Article II authority, no court since has held the Guantanamo commissions wholly unlawful, and they remain in operation.⁸⁷ That sequence shows which fact carried the result. Procedures similar to those that failed became lawful once Congress authorized them, so Congress's position changed, and the case moved from the third category to the first with it. The Act also contained a habeas-stripping provision that was later invalidated, which the next section takes up. The usual exam error is to read the case as a holding that the President may never use military commissions, or that the Commander in Chief Clause confers no power over trials. The Court decided narrower things: that this commission lacked authority under the statutes and the law of war, and that the President cannot override limits set by Congress by invoking necessity.

The first two steps carry the structural holding, the third and fourth supply the grounds on which Hamdan's commission failed, and the fifth explains why the commissions survived the decision.

Boumediene and Habeas Review

Hamdi gave a citizen held as an enemy combatant a hearing before a neutral decisionmaker. The aliens held at Guantanamo Bay raised an earlier question, which was whether a federal court could hear them at all. The answer came out of a sequence of executive and legislative steps. In July 2004 the Secretary of Defense created Combatant Status Review Tribunals (CSRTs), panels of three commissioned officers before which a detainee could contest the designation as an enemy combatant.⁸⁹ In the Detainee Treatment Act of 2005 (DTA), Congress then limited review of CSRT determinations to the D.C. Circuit, which could ask only whether a determination complied with Defense Department procedures and, to the extent applicable, with federal statutes and the Constitution. The Act also barred Guantanamo detainees from filing habeas petitions in any other court.⁹⁰ When Hamdan v. Rumsfeld held that this bar did not reach cases already pending, Congress, at the President's request, enacted the Military Commissions Act (MCA), which reasserted that these prisoners should not be filing habeas petitions.⁹¹ Boumediene v. Bush tested that combined scheme against the Constitution, and the petitioners were men who had been held for years after CSRTs classified them as enemy combatants.

The Court held that Congress may not categorically deny habeas corpus review to aliens detained as enemy combatants without providing a meaningful substitute, and it held that the DTA's review was not one.⁹² The holding has two parts that do different work. The first is a limit on what Congress may take away: it may replace habeas with another procedure, but it may not simply remove judicial review of the detention. The second part asks what a replacement must be able to do before it counts as a replacement. The reasoning behind both parts follows from who controls the detention. The Executive captures the person, classifies the person as an enemy combatant, and holds the person, and a review process run inside that same branch tests the Executive's judgment against the Executive's own standards. Habeas exists to put an independent court between the prisoner and the jailer, so a substitute earns that name only if it can actually perform the court's function.

The Court described what an adequate substitute must allow a detainee to do, and the four requirements form a list worth memorizing in full.⁹³

1. The detainee must be able to challenge the President's authority to detain the person indefinitely.
2. The detainee must be able to contest the findings of fact made by the military tribunal.
3. The detainee must be able to introduce exculpatory evidence discovered after the tribunal proceedings ended.
4. The detainee must be able to seek release.

The first and fourth requirements concern law and remedy. A process that asks only whether the Executive followed its own procedures assumes an answer to the question habeas exists to put, which is whether the law permits the Executive to hold the person at all. A court that may find a detention unlawful but cannot order the prisoner freed has no means of ending the detention it condemns. The second and third requirements concern facts. A tribunal of officers builds its record at the start of custody, and a reviewing court that is confined to that record can correct only the errors visible on its face. Evidence that clears a detainee usually surfaces later, when a witness is located or a document is found, and a review that cannot receive it leaves the earliest and least informed finding in place for good.

The third requirement did the decisive work in the case. The Chief Justice's dissent described the majority's reason for finding the DTA inadequate as one central point, namely that detainees were unable to introduce at the appeal stage exculpatory evidence discovered after the conclusion of their CSRT proceedings.⁹⁴ That description shows how the four requirements are used. They are the content of the test, but a given statute may fail it on a single point, and on an exam the question is which requirement the substitute leaves out.

The Court also answered the objection that judicial review burdens the President in wartime. It wrote that its opinion "does not undermine the Executive's powers as Commander in Chief," and that "the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch."⁹⁵ The reasoning is a matter of incentive and legitimacy. A detention that has been tested before an independent judge and found lawful rests on a confirmed foundation, while a detention that the Executive alone has examined invites the suspicion that it rests on error or on the Executive's own interest in the result. The Court added that few exercises of judicial power are as legitimate or as necessary as hearing challenges to the Executive's authority to imprison a person, and that security subsists "in fidelity to freedom's first principles," among them freedom from arbitrary and unlawful restraint and the personal liberty secured by the separation of powers.⁹⁶ The statement links this case to the rest of the chapter, because the President here was acting with Congress behind him, which in Jackson's framework is the position of greatest strength. The detainees prevailed anyway, because the limit came from the Constitution's protection of the writ, which the President and Congress cannot remove together. That is why Justice Scalia's dissent framed the dispute as one about the Suspension Clause.⁹⁷

The holding is narrow, and the Court said so in terms. It decided only that the petitioners were entitled to seek the writ, that the DTA review procedures were an inadequate substitute for habeas, and that the petitioners need not complete DTA review in the D.C. Circuit before turning to the district court. The only law the Court identified as unconstitutional was section 7 of the MCA, and both the DTA and the CSRT process remained intact.⁹⁸ Timing is also part of the rule. The Court said its holding should not be read to mean that a habeas court should intervene the moment an enemy combatant steps onto territory where the writ runs, because the Executive is entitled to a reasonable period of time to determine a detainee's status before a court entertains a habeas petition.⁹⁹ Delay is what made the petitioners' case strong. In some of the cases six years had passed with no definitive judicial determination of the lawfulness of the detention, and the Government had not shown that responding to habeas actions would impose burdens it could not bear.¹⁰⁰ Justice Souter, concurring with Justices Ginsburg and Breyer, stressed that same fact: after six years of executive detention in a place subject to habeas jurisdiction but without any actual habeas scrutiny, the decision was no judicial victory but an act of perseverance in making habeas review mean something.¹⁰¹

Two dissents, each joined by the same four Justices, supplied the strongest objections. The Chief Justice argued that the statutory process was an adequate substitute and that the majority rested its decision on abstract and hypothetical concerns. He listed what Congress and the Executive had actually granted: the right to hear the bases of the charges, including a summary of classified evidence, the right to testify and present evidence before the CSRT, the aid of a personal representative, and, before the D.C. Circuit, the right to counsel and to challenge the factual record and secure release. He concluded that the scheme gave the Guantanamo detainees greater procedural protections than any alleged enemy detainees, citizens or aliens, had received in the Nation's history.¹⁰² Justice Scalia joined that dissent and added a more basic objection. In his view the writ of habeas corpus has never run in favor of aliens held abroad, the Suspension Clause therefore has no application, and the Court's intervention in a military matter was beyond its lawful power.¹⁰³ He also relied on Johnson v. Eisentrager, on which the Executive had relied in choosing Guantanamo, and he warned that the decision would pull military commanders into civilian courts and would send released detainees back to the battlefield.¹⁰⁴ His sharpest point tied the case to Hamdan. The Court had said there that nothing prevented the President from returning to Congress for the authority the President believed necessary, and when Congress answered with the MCA, the Court struck down its habeas provision. Scalia concluded that the Court had set its own judgment above that of both political branches on a question about the war.¹⁰⁵

The two dissents disagree with the majority at different levels. The Chief Justice accepted the principle that Congress needs an adequate substitute and found the DTA adequate, while Scalia denied that the constitutional right extends to these petitioners at all. A common exam error is to read the case as striking down the DTA or the CSRTs, or as giving Guantanamo detainees the full procedures of a criminal trial. The Court left both in place and held only that the DTA was an inadequate substitute for the writ and that section 7 of the MCA was invalid. Another error is to merge this case with Hamdi. The citizen's right in Hamdi is a due process right to notice and a hearing, and the right here is access to habeas corpus itself.

The third step carries most of the analysis, since the case itself turned on a single missing feature. The fourth step reflects the narrowness of the holding, because a recently captured detainee stands in a different position from one held for years.