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Published online by Cambridge University Press: 27 February 2017
1 Hamdi v. Rumsfeld, 124 S.Ct. 2633, 2645 (2004) [hereinafter Hamdi IV].
2 Id. at 2635.
3 Two previous “next friend” petitions filed by nonrelatives had been dismissed for lack of standing. See Hamdi v. Rumsfeld, 294 F.3d 598, 600 (4th Cir. 2002) [hereinafter Hamdi I].
4 18 U.S.C. §4001(a) (2000).
5 See, e.g., Brief of the Petitioners/Appellees at 47 (Oct. 18, 2002) [hereinafter Hamdi III brief], Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) (No. 02–7338) [hereinafter Hamdi III].
6 Hamdi III brief, supra note 5, at 53 (citing presidential proclamations recognizing regime change in Afghanistan).
7 Aug. 12, 1949, 6 UST 3316, 75 UNTS 135 [hereinafter Third Geneva Convention].
8 Hamdi III brief, supra note 5, at 38.
9 The district court’s order that Hamdi be granted immediate unrestricted access to counsel was reversed on interlocutory appeal, and the case was remanded for further proceedings. Hamdi v. Rumsfeld, 296 F.3d 278 (4th Cir. 2002) [hereinafter Hamdi II].
10 Hamdi III, supra note 5, at 461.
11 317 U.S. 1(1942).
12 Hamdi HI, supra note 5, at 461 (quoting Hamdi II, supra note 9, at 283).
13 Id. at 473. The Fourth Circuit denied rehearing en banc, with several written dissents. 337 F.3d 335 (4th Cir. 2003).
14 Hamdi III, supra note 5, at 468.
15 Hamdi IV, supra note 1, at 2635. Chief Justice Rehnquist and Justices Kennedy and Breyer joined this opinion.
16 Id at 2640.
17 Id. at 2641.
18 Pub. L. No. 107–40, 115 Stat. 224 (Sept. 18, 2001).The AUMF authorized the president to “use all necessary 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.” Id.
19 Hamdi IV, supra note 1, at 2642 n.1.
20 Id. at 2639.
21 Id. at 2641. The Court also cited the 1899 Hague Convention [No. II] with Respect to the Laws and Customs of War on Land, July 29, 1899,32 Stat. 1803,1 Bevans 247, and the 1907 Hague Convention [No. W] Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.
22 Hamdi IV, supra note 1, at 2641.
23 Id. at 2642.
24 424 U.S. 319(1976).
25 Hamdi IV, supra note 1, at 2646–47.
26 Id. at 2648.
27 Id. at 2652. While the case was pending in the Supreme Court, the government began allowing Hamdi access to his attorneys on a voluntary basis.
28 Id. at 2649.
29 Id. at 2651.
30 Id. at2649n.2.
31 Id. at 2652 (Souter, J., concurring in part, dissenting in part, and concurring in the judgment).
32 Id. at 2654.
33 Id. at 2658–59.
34 Id. at 2660.
35 Id.
36 Id. at 2660 (Scalia, J., dissenting).
37 Id. at 2661.
38 Id. at 2660–61.
39 See U.S. Const. Art. I, §9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”)
40 Hamdi IV, supra note 1, at 2660–61 (Scalia, J., dissenting).
41 Id. at 2672 n.5.
42 Id. at 2674 (Thomas, J., dissenting).
43 Id. at 2674–75.
44 124 S.Ct. 2686 (2004); see Sloss, David L.. Case Report: Rasul v. Bush, 98 AJIL 788 (2004)Google Scholar.
45 This clarification will not, however, come in the case of Hamdi himself; at the time of this writing, the government had agreed to release Hamdi, a remarkable turnaround from its previous insistence mat national security demanded that Hamdi be held incommunicado and denied access to counsel and court. See Markon, Jerry, U.S. to Free Hamdi, Send Him Home, Wash. Post, Sept. 23, 2004, at A1.Google Scholar
46 Hamdi IV, supra note 1, at 2640 (plurality op.) (quoting Ex parte Quirin, 317 U.S. 1, 28 (1942)).
47 Quirin, 317 U.S. at 29–30.
48 For example, this passage of the plurality opinion includes quotations from an article in the International Review of the Red Cross and from the decision of Nuremberg Military Tribunal as reprinted in the American Journal of International Law, 41 AJIL 172, 229 (1947)Google Scholar). Hamdi IV, supra note 1, at 2640; see also In re Territo, 156 F.2d 142, 145–47 (9th Cir. 1946) (relying on the 1929 Geneva Conventions) (cited at id.).
49 Hamdi IV, supra note 1, at 2641. For the Hague Conventions, see supra note 21.
50 Hamdi IV, supra note 1, at 2639.
51 Id. at 2642 n.1.
52 Comments in some of the other opinions rendered at the same time as Hamdi suggest that the majority of the Court may view such detentions skeptically. See, e.g., Rumsfeld v. Padilla, 124 S.Ct. 2711, 2735 n.8 (2004) (Stevens, J., dissenting).
53 Hamdi IV, supra note 1, at 2642.
54 Geneva Convention [No. LV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287. Though I recognize that the issue remains in dispute, I agree with the position of the International Committee of the Red Cross (ICRC) that such persons remain covered by the Fourth Geneva Convention. See ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts 9 (2003), at <http://www.icrc.org>>Google Scholar .
55 See Third Geneva Convention, supra note 7, Art. 2 (“[T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties....”).
56 See id., Arts. 4 (“Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.”), 5 (“Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”). Although there remains some dispute about whether individuals sharing the nationality of their captors are protected persons under the Third Geneva Convention, I take the position that they are.
57 See, e.g., ICRC, International Humanitarian Law and Terrorism: Questions and Answers (2004) (describing conflict in Afghanistan after June 2002 as a non–international armed conflict), at <http://www.icrc.org>>Google Scholar . My intent here is not to stake out a definitive position on this issue, but simply to note that it is a relevant question, and one that the Court might have addressed.
58 See, e.g., Third Geneva Convention, supra note 7, Art. 3 (setting forth standards applicable to an “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”).
59 Hamdi IV, supra note 1, at 2641.
60 Id.
