Hamdi v. Rumsfeld

[Argued April 28, 2004. Decided June 28, 2004, on certiorari to the United States Court of Appeals for the Fourth Circuit. 316 F. 3d 450, vacated and remanded.]

[The line-up, quoted from the reporter, and it is the first thing to understand about this case: “O’CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and KENNEDY and BREYER, JJ., joined. SOUTER, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which GINSBURG, J., joined, post, p. 539. SCALIA, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 554. THOMAS, J., filed a dissenting opinion, post, p. 579.” There is no opinion of the Court. O’Connor speaks for four. Souter and Ginsburg join the judgment only, to produce one, and say so. No numerical vote is printed anywhere.]

*[A note on citation. Unlike the slip-opinion readings elsewhere in this course, this one carries real U.S. Reports pin cites. The star markers in the text — *533 and the like — mark the first word of that page of volume 542, run continuously from *508 through 599, and were verified against an independent set of page markers in the Harvard scan of the bound volume. Cite them.]

[The facts. Yaser Esam Hamdi, born in Louisiana and therefore an American citizen, was seized in Afghanistan in 2001, transferred to Guantanamo, and then — when his citizenship surfaced — moved to a naval brig in Virginia and later South Carolina. He was held without charge, initially without counsel, on the strength of a two-page declaration by a Defense Department official named Michael Mobbs. His father filed the habeas petition. The Fourth Circuit held the detention authorized and Hamdi entitled to nothing further.]

[What to watch for, and there are four things. First, the authorization question. The plurality finds detention authorized not by inherent Commander-in-Chief power but by the AUMF, read through the law of war — which means the whole case rests on a statute Congress could amend tomorrow. Souter reads the same statute the other way, against 18 U. S. C. § 4001(a), the Non-Detention Act. Second, Mathews v. Eldridge. The plurality imports a balancing test designed for the termination of Social Security disability benefits and applies it to indefinite military detention of a citizen. Ask whether the framework can bear that. Thomas, in dissent, says the plurality misapplies its own balance; Scalia says no balance was ever available. Third, what Quirin actually held — you read it two cases ago — and whether the plurality’s use of it survives the distinction between trying an unlawful belligerent and detaining one. Fourth, the sentence at 533 about a neutral decisionmaker, and the following suggestion that a properly constituted military tribunal might suffice: notice how much of the holding that sentence gives back.]

[This reading is edited. The plurality is given entire except the recital of facts in Part I. Souter’s opinion, Scalia’s dissent and Thomas’s dissent are given in their openings, with bracketed summaries of the rest. Omissions are marked.]

*509 JUSTICE O’CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE BREYER join.

At this difficult time in our Nation’s history, we are called upon to consider the legality of the Government’s detention of a United States citizen on United States soil as an “enemy combatant” and to address the process that is constitutionally owed to one who seeks to challenge his classification as such. The United States Court of Appeals for the Fourth Circuit held that petitioner Yaser Hamdi’s detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

*510 I

*[The rest of Part I of the plurality opinion, reciting the facts and the proceedings below (*510–516), is omitted. In short: Hamdi, an American citizen born in Louisiana, was seized in Afghanistan in 2001, transferred to Guantanamo Bay, and then — when it was learned he was a citizen — to Navy brigs in Norfolk and Charleston, where he was held without charge. His father petitioned for habeas corpus. The Government’s only evidentiary support was a declaration by Michael Mobbs, a Defense Department official, asserting that Hamdi was affiliated with a Taliban unit and surrendered with it. The Fourth Circuit held that the declaration was enough and that no further factual inquiry was permitted.]

II

The threshold question before us is whether the Executive has the authority to detain citizens who qualify as “enemy combatants.” There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the “enemy combatant” that it is seeking to detain is an individual who, it alleges, was “‘part of or supporting forces hostile to the United States or coalition partners’” in Afghanistan and who “‘engaged in an armed conflict against the United States’” there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. *517 We do not reach the question whether Article II provides such authority, however, because we agree with the Government’s alternative position, that Congress has in fact authorized Hamdi’s detention, through the AUMF.

Our analysis on that point, set forth below, substantially overlaps with our analysis of Hamdi’s principal argument for the illegality of his detention. He posits that his detention is forbidden by 18 U. S. C. § 4001(a). Section 4001(a) states that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Congress passed § 4001(a) in 1971 as part of a bill to repeal the Emergency Detention Act of 1950, 50 U. S. C. § 811 et seq., which provided procedures for executive detention, during times of emergency, of individuals deemed likely to engage in espionage or sabotage. Congress was particularly concerned about the possibility that the Act could be used to reprise the Japanese-American internment camps of World War II. H. R. Rep. No. 92-116 (1971); id., at 4 (“The concentration camp implications of the legislation render it abhorrent”). The Government again presses two alternative positions. First, it argues that § 4001(a), in light of its legislative history and its location in Title 18, applies only to “the control of civilian prisons and related detentions,” not to military detentions. Brief for Respondents 21. Second, it maintains that § 4001(a) is satisfied, because Hamdi is being detained “pursuant to an Act of Congress”—the AUMF. Id., at 21-22. Again, because we conclude that the Government’s second assertion is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied § 4001(a)‘s requirement that a detention be “pursuant to an Act of Congress” (assuming, without deciding, that § 4001(a) applies to military detentions).

*518 The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.

The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident[s] of war.” Ex parte Quirin, supra, at 28, 30. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross 571, 572 (2002) (“[C]aptivity in war is ‘neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war’” (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int’l L. 172, 229 (1947)); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) (“The time has long passed when ‘no quarter’ was the rule on the battlefield… . It is now recognized that ‘Captivity is neither a punishment nor an act of vengeance,’ but ‘merely a temporary detention which is devoid of all penal character.’ … ‘A prisoner of war is no convict; his imprisonment is a simple war measure’” (citations omitted)); cf. In re Territo, 156 F. 2d 142, 145 (CA9 1946) (“The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on *519 must be removed as completely as practicable from the front, treated humanely and in time exchanged, repatriated or otherwise released” (footnotes omitted)).

There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U. S., at 20. We held that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.” Id., at 37-38. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id., at 30-31. See also Lieber Code ¶ 153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 F. Lieber, Miscellaneous Writings, p. 273, ¶ 153 (1880) (contemplating, in code binding the Union Army during the Civil War, that “captured rebels” would be treated “as prisoners of war”). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States,” Brief for Respondents 3; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.

In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. *520 The Government responds that “the detention of enemy combatants during World War II was just as ‘indefinite’ while that war was being fought.” Id., at 16. We take Hamdi’s objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the “war on terror,” although crucially important, are broad and malleable. As the Government concedes, “given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement.” Ibid. The prospect Hamdi raises is therefore not farfetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.

It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3406, T. I. A. S. No. 3364 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1817 (as soon as possible after “conclusion of peace”); Hague Convention (IV), supra, Oct. 18, 1907, 36 Stat. 2301 (“conclusion of peace” (Art. 20)); Geneva Convention, supra, July 27, 1929, 47 Stat. 2055 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Paust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Int’l L. J. 503, 510-511 (2003) (prisoners of war “can be detained during an armed conflict, but the detaining country must release and repatriate them ‘without delay after the cessation of active hostilities,’ unless they are *521 being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences” (citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 U. S. T., at 3384, 3392, 3406, 3418)).

Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. See, e. g., Constable, U. S. Launches New Operation in Afghanistan, Washington Post, Mar. 14, 2004, p. A22 (reporting that 13,500 United States troops remain in Afghanistan, including several thousand new arrivals); Dept. of Defense, News Transcript, Gen. J. Abizaid Central Command Operations Update Briefing, Apr. 30, 2004, http://www.defenselink.mil/transcripts/2004/tr20040430-1402.html (as visited June 8, 2004, and available in Clerk of Court’s case file) (media briefing describing ongoing operations in Afghanistan involving 20,000 United States troops). The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.

Ex parte Milligan, 4 Wall. 2, 125 (1866), does not undermine our holding about the Government’s authority to seize *522 enemy combatants, as we define that term today. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. Id., at 118, 131. That fact was central to its conclusion. Had Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different. The Court’s repeated explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present he could have been detained under military authority for the duration of the conflict, whether or not he was a citizen.[1]

Moreover, as JUSTICE SCALIA acknowledges, the Court in Ex parte Quirin, 317 U. S. 1 (1942), dismissed the language of Milligan that the petitioners had suggested prevented them from being subject to military process. Post, at 570 (dissenting opinion). Clear in this rejection was a disavowal of the New York State cases cited in Milligan, 4 Wall., at 128-129, on which JUSTICE SCALIA relies. See ibid. Both Smith v. Shaw, 12 Johns. *257 (N. Y. 1815), and M’Connell v. Hampton, 12 Johns. *234 (N. Y. 1815), were civil suits for false imprisonment. Even accepting that these cases once could have been viewed as standing for the sweeping proposition for which JUSTICE SCALIA cites them—that the military does not have authority to try an American citizen accused of spying against his country during wartime—Quirin makes undeniably clear that this is not the law today. *523 Haupt, like the citizens in Smith and M’Connell, was accused of being a spy. The Court in Quirin found him “subject to trial and punishment by [a] military tribuna[l]” for those acts, and held that his citizenship did not change this result. 317 U. S., at 31, 37-38.

Quirin was a unanimous opinion. It both postdates and clarifies Milligan, providing us with the most apposite precedent that we have on the question of whether citizens may be detained in such circumstances. Brushing aside such precedent—particularly when doing so gives rise to a host of new questions never dealt with by this Court—is unjustified and unwise.

To the extent that JUSTICE SCALIA accepts the precedential value of Quirin, he argues that it cannot guide our inquiry here because “[i]n Quirin it was uncontested that the petitioners were members of enemy forces,” while Hamdi challenges his classification as an enemy combatant. Post, at 571. But it is unclear why, in the paradigm outlined by JUSTICE SCALIA, such a concession should have any relevance. JUSTICE SCALIA envisions a system in which the only options are congressional suspension of the writ of habeas corpus or prosecution for treason or some other crime. Post, at 554. He does not explain how his historical analysis supports the addition of a third option—detention under some other process after concession of enemy-combatant status—or why a concession should carry any different effect than proof of enemy-combatant status in a proceeding that comports with due process. To be clear, our opinion only finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant; whether that is established by concession or by some other process that verifies this fact with sufficient certainty seems beside the point.

Further, JUSTICE SCALIA largely ignores the context of this case: a United States citizen captured in a foreign combat zone. JUSTICE SCALIA refers to only one case involving *524 this factual scenario — a case in which a United States citizen-prisoner of war (a member of the Italian army) from World War II was seized on the battlefield in Sicily and then held in the United States. The court in that case held that the military detention of that United States citizen was lawful. See In re Territo, 156 F. 2d, at 148.

JUSTICE SCALIA’S treatment of that case—in a footnote—suffers from the same defect as does his treatment of Quirin: Because JUSTICE SCALIA finds the fact of battlefield capture irrelevant, his distinction based on the fact that the petitioner “conceded” enemy-combatant status is beside the point. See supra, at 523. JUSTICE SCALIA can point to no case or other authority for the proposition that those captured on a foreign battlefield (whether detained there or in U. S. territory) cannot be detained outside the criminal process.

Moreover, JUSTICE SCALIA presumably would come to a different result if Hamdi had been kept in Afghanistan or even Guantanamo Bay. See post, at 577. This creates a perverse incentive. Military authorities faced with the stark choice of submitting to the full-blown criminal process or releasing a suspected enemy combatant captured on the battlefield will simply keep citizen-detainees abroad. Indeed, the Government transferred Hamdi from Guantanamo Bay to the United States naval brig only after it learned that he might be an American citizen. It is not at all clear why that should make a determinative constitutional difference.

III

Even in cases in which the detention of enemy combatants is legally authorized, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status. Hamdi argues that he is owed a meaningful and timely hearing and that “extra-judicial detention [that] begins and ends with the submission of an affidavit based on third-hand hearsay” does not comport with *525 the Fifth and Fourteenth Amendments. Brief for Petitioners 16. The Government counters that any more process than was provided below would be both unworkable and “constitutionally intolerable.” Brief for Respondents 46. Our resolution of this dispute requires a careful examination both of the writ of habeas corpus, which Hamdi now seeks to employ as a mechanism of judicial review, and of the Due Process Clause, which informs the procedural contours of that mechanism in this instance.

A

Though they reach radically different conclusions on the process that ought to attend the present proceeding, the parties begin on common ground. All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States. 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”). Only in the rarest of circumstances has Congress seen fit to suspend the writ. See, e. g., Act of Mar. 3, 1863, ch. 81, § 1, 12 Stat. 755; Act of Apr. 20, 1871, ch. 22, § 4, 17 Stat. 14. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law. See INS v. St. Cyr, 533 U. S. 289, 301 (2001). All agree suspension of the writ has not occurred here. Thus, it is undisputed that Hamdi was properly before an Article III court to challenge his detention under 28 U. S. C. § 2241. Brief for Respondents 12. Further, all agree that § 2241 and its companion provisions provide at least a skeletal outline of the procedures to be afforded a petitioner in federal habeas review. Most notably, § 2243 provides that “the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts,” and § 2246 allows the taking of evidence in habeas proceedings by deposition, affidavit, or interrogatories.

*526 The simple outline of § 2241 makes clear both that Congress envisioned that habeas petitioners would have some opportunity to present and rebut facts and that courts in cases like this retain some ability to vary the ways in which they do so as mandated by due process. The Government recognizes the basic procedural protections required by the habeas statute, id., at 37-38, but asks us to hold that, given both the flexibility of the habeas mechanism and the circumstances presented in this case, the presentation of the Mobbs Declaration to the habeas court completed the required factual development. It suggests two separate reasons for its position that no further process is due.

B

First, the Government urges the adoption of the Fourth Circuit’s holding below—that because it is “undisputed” that Hamdi’s seizure took place in a combat zone, the habeas determination can be made purely as a matter of law, with no further hearing or factfinding necessary. This argument is easily rejected. As the dissenters from the denial of rehearing en banc noted, the circumstances surrounding Hamdi’s seizure cannot in any way be characterized as “undisputed,” as “those circumstances are neither conceded in fact, nor susceptible to concession in law, because Hamdi has not been permitted to speak for himself or even through counsel as to those circumstances.” 337 F. 3d, at 357 (opinion of Luttig, J.); see also id., at 371-372 (opinion of Motz, J.). Further, the “facts” that constitute the alleged concession are insufficient to support Hamdi’s detention. Under the definition of enemy combatant that we accept today as falling within the scope of Congress’ authorization, Hamdi would need to be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States” to justify his detention in the United States for the duration of the relevant conflict. Brief for Respondents 3. The habeas petition states only that *527 “[w]hen seized by the United States Government, Mr. Hamdi resided in Afghanistan.” App. 104. An assertion that one resided in a country in which combat operations are taking place is not a concession that one was “captured in a zone of active combat” operations in a foreign theater of war, 316 F. 3d, at 459 (emphasis added), and certainly is not a concession that one was “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States.” Accordingly, we reject any argument that Hamdi has made concessions that eliminate any right to further process.

C

The Government’s second argument requires closer consideration. This is the argument that further factual exploration is unwarranted and inappropriate in light of the extraordinary constitutional interests at stake. Under the Government’s most extreme rendition of this argument, “[r]espect for separation of powers and the limited institutional capabilities of courts in matters of military decision-making in connection with an ongoing conflict” ought to eliminate entirely any individual process, restricting the courts to investigating only whether legal authorization exists for the broader detention scheme. Brief for Respondents 26. At most, the Government argues, courts should review its determination that a citizen is an enemy combatant under a very deferential “some evidence” standard. Id., at 34 (“Under the some evidence standard, the focus is exclusively on the factual basis supplied by the Executive to support its own determination” (citing Superintendent, Mass. Correctional Institution at Walpole v. Hill, 472 U. S. 445, 455-457 (1985) (explaining that the some evidence standard “does not require” a “weighing of the evidence,” but rather calls for assessing “whether there is any evidence in the record that could support the conclusion”))). Under this review, a court would assume the accuracy of the Government’s articulated *528 basis for Hamdi’s detention, as set forth in the Mobbs Declaration, and assess only whether that articulated basis was a legitimate one. Brief for Respondents 36; see also 316 F. 3d, at 473-474 (declining to address whether the “some evidence” standard should govern the adjudication of such claims, but noting that “[t]he factual averments in the [Mobbs] affidavit, if accurate, are sufficient to confirm” the legality of Hamdi’s detention).

In response, Hamdi emphasizes that this Court consistently has recognized that an individual challenging his detention may not be held at the will of the Executive without recourse to some proceeding before a neutral tribunal to determine whether the Executive’s asserted justifications for that detention have basis in fact and warrant in law. See, e. g., Zadvydas v. Davis, 533 U. S. 678, 690 (2001); Addington v. Texas, 441 U. S. 418, 425-427 (1979). He argues that the Fourth Circuit inappropriately “ceded power to the Executive during wartime to define the conduct for which a citizen may be detained, judge whether that citizen has engaged in the proscribed conduct, and imprison that citizen indefinitely,” Brief for Petitioners 21, and that due process demands that he receive a hearing in which he may challenge the Mobbs Declaration and adduce his own counter evidence. The District Court, agreeing with Hamdi, apparently believed that the appropriate process would approach the process that accompanies a criminal trial. It therefore disapproved of the hearsay nature of the Mobbs Declaration and anticipated quite extensive discovery of various military affairs. Anything less, it concluded, would not be “meaningful judicial review.” App. 291.

Both of these positions highlight legitimate concerns. And both emphasize the tension that often exists between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before he is deprived of a constitutional right. The ordinary mechanism that we use *529 for balancing such serious competing interests, and for determining the procedures that are necessary to ensure that a citizen is not “deprived of life, liberty, or property, without due process of law,” U. S. Const., Amdt. 5, is the test that we articulated in Mathews v. Eldridge, 424 U. S. 319 (1976). See, e. g., Heller v. Doe, 509 U. S. 312, 330-331 (1993); Zinermon v. Burch, 494 U. S. 113, 127-128 (1990); United States v. Salerno, 481 U. S. 739, 746 (1987); Schall v. Martin, 467 U. S. 253, 274-275 (1984); Addington v. Texas, supra, at 425. Mathews dictates that the process due in any given instance is determined by weighing “the private interest that will be affected by the official action” against the Government’s asserted interest, “including the function involved” and the burdens the Government would face in providing greater process. 424 U. S., at 335. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of “the risk of an erroneous deprivation” of the private interest if the process were reduced and the “probable value, if any, of additional or substitute procedural safeguards.” Ibid. We take each of these steps in turn.

1

It is beyond question that substantial interests lie on both sides of the scale in this case. Hamdi’s “private interest … affected by the official action,” ibid., is the most elemental of liberty interests—the interest in being free from physical detention by one’s own government. Foucha v. Louisiana, 504 U. S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action”); see also Parham v. J. R., 442 U. S. 584, 600 (1979) (noting the “substantial liberty interest in not being confined unnecessarily”). “In our society liberty is the norm,” and detention without trial “is the carefully limited exception.” Salerno, supra, at 755. “We have always been careful not to ‘minimize the importance and fundamental nature’ of the individual’s *530 right to liberty,” Foucha, supra, at 80 (quoting Salerno, supra, at 750), and we will not do so today.

Nor is the weight on this side of the Mathews scale offset by the circumstances of war or the accusation of treasonous behavior, for “[i]t is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection,” Jones v. United States, 463 U. S. 354, 361 (1983) (emphasis added; internal quotation marks omitted), and at this stage in the Mathews calculus, we consider the interest of the erroneously detained individual. Carey v. Piphus, 435 U. S. 247, 259 (1978) (“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property”); see also id., at 266 (noting “the importance to organized society that procedural due process be observed,” and emphasizing that “the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions”). Indeed, as amicus briefs from media and relief organizations emphasize, the risk of erroneous deprivation of a citizen’s liberty in the absence of sufficient process here is very real. See Brief for AmeriCares et al. as Amici Curiae 13-22 (noting ways in which “[t]he nature of humanitarian relief work and journalism present a significant risk of mistaken military detentions”). Moreover, as critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. See Ex parte Milligan, 4 Wall., at 125 (“[The Founders] knew—the history of the world told them—the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, *531 was especially hazardous to freemen”). Because we live in a society in which “[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty,” O’Connor v. Donaldson, 422 U. S. 563, 575 (1975), our starting point for the Mathews v. Eldridge analysis is unaltered by the allegations surrounding the particular detainee or the organizations with which he is alleged to have associated. We reaffirm today the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails.

2

On the other side of the scale are the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States. As discussed above, supra, at 518, the law of war and the realities of combat may render such detentions both necessary and appropriate, and our due process analysis need not blink at those realities. Without doubt, our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them. Department of Navy v. Egan, 484 U. S. 518, 530 (1988) (noting the reluctance of the courts “to intrude upon the authority of the Executive in military and national security affairs”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 587 (1952) (acknowledging “broad powers in military commanders engaged in day-to-day fighting in a theater of war”).

The Government also argues at some length that its interests in reducing the process available to alleged enemy combatants are heightened by the practical difficulties that would accompany a system of trial-like process. In its view, military officers who are engaged in the serious work of waging *532 battle would be unnecessarily and dangerously distracted by litigation half a world away, and discovery into military operations would both intrude on the sensitive secrets of national defense and result in a futile search for evidence buried under the rubble of war. Brief for Respondents 46-49. To the extent that these burdens are triggered by heightened procedures, they are properly taken into account in our due process analysis.

3

Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 164-165 (1963) (“The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action”); see also United States v. Robel, 389 U. S. 258, 264 (1967) (“It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile”).

With due recognition of these competing concerns, we believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. That is, “the risk of an erroneous deprivation” *533 of a detainee’s liberty interest is unacceptably high under the Government’s proposed rule, while some of the “additional or substitute procedural safeguards” suggested by the District Court are unwarranted in light of their limited “probable value” and the burdens they may impose on the military in such cases. Mathews, 424 U. S., at 335.

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532, 542 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case’” (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602, 617 (1993) (“due process requires a ‘neutral and detached judge in the first instance’” (quoting Ward v. Monroeville, 409 U. S. 57, 61-62 (1972))). “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’” Fuentes v. Shevin, 407 U. S. 67, 80 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864); Armstrong v. Manzo, 380 U. S. 545, 552 (1965) (other citations omitted)). These essential constitutional promises may not be eroded.

At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy-combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be *534 accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant. In the words of Mathews, process of this sort would sufficiently address the “risk of an erroneous deprivation” of a detainee’s liberty interest while eliminating certain procedures that have questionable additional value in light of the burden on the Government. 424 U. S., at 335.[2]

We think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the Government forecasts. The parties agree that initial captures on the battlefield need not receive the process we have discussed here; that process is due only when the determination is made to continue to hold those who have been seized. The Government has made clear in its briefing that documentation regarding battlefield detainees already is kept in the ordinary course of military affairs. Brief for Respondents 3-4. Any factfinding imposition created by requiring a knowledgeable affiant to summarize these records to an independent tribunal is a minimal one. Likewise, arguments *535 that military officers ought not have to wage war under the threat of litigation lose much of their steam when factual disputes at enemy-combatant hearings are limited to the alleged combatant’s acts. This focus meddles little, if at all, in the strategy or conduct of war, inquiring only into the appropriateness of continuing to detain an individual claimed to have taken up arms against the United States. While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here. Cf. Korematsu v. United States, 323 U. S. 214, 233-234 (1944) (Murphy, J., dissenting) (“[L]ike other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled”); Sterling v. Constantin, 287 U. S. 378, 401 (1932) (“What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions”).

In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.

D

In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination *536 of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet & Tube, 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U. S. 361, 380 (1989) (it was “the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty”); Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 426 (1934) (The war power “is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties”). Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions. See St. Cyr, 533 U. S., at 301 (“At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest”). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court *537 with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.

Because we conclude that due process demands some system for a citizen detainee to refute his classification, the proposed “some evidence” standard is inadequate. Any process in which the Executive’s factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short. As the Government itself has recognized, we have utilized the “some evidence” standard in the past as a standard of review, not as a standard of proof. Brief for Respondents 35. That is, it primarily has been employed by courts in examining an administrative record developed after an adversarial proceeding—one with process at least of the sort that we today hold is constitutionally mandated in the citizen enemy-combatant setting. See, e. g., St. Cyr, supra; Hill, 472 U. S., at 455-457. This standard therefore is ill suited to the situation in which a habeas petitioner has received no prior proceedings before any tribunal and had no prior opportunity to rebut the Executive’s factual assertions before a neutral decisionmaker.

Today we are faced only with such a case. Aside from unspecified “screening” processes, Brief for Respondents 3-4, and military interrogations in which the Government suggests Hamdi could have contested his classification, Tr. of Oral Arg. 40, 42, Hamdi has received no process. An interrogation by one’s captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker. Compare Brief for Respondents 42-43 (discussing the “secure interrogation environment,” and noting that military interrogations require a controlled “interrogation dynamic” and “a relationship of trust and dependency” and are “a critical source” of *538 “timely and effective intelligence”) with Concrete Pipe, 508 U. S., at 617-618 (“[O]ne is entitled as a matter of due process of law to an adjudicator who is not in a situation which would offer a possible temptation to the average man as a judge … which might lead him not to hold the balance nice, clear and true” (internal quotation marks omitted)). That even purportedly fair adjudicators “are disqualified by their interest in the controversy to be decided is, of course, the general rule.” Tumey v. Ohio, 273 U. S. 510, 522 (1927). Plainly, the “process” Hamdi has received is not that to which he is entitled under the Due Process Clause.

There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. See Headquarters Depts. of Army, Navy, Air Force, and Marine Corps, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190-8, ch. 1, § 1-6 (1997). In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved. Both courts below recognized as much, focusing their energies on the question of whether Hamdi was due an opportunity to rebut the Government’s case against him. The Government, too, proceeded on this assumption, presenting its affidavit and then seeking that it be evaluated under a deferential standard of review based on burdens that it alleged would accompany any greater process. As we have discussed, a habeas court in a case such as this may accept affidavit evidence like that contained in the Mobbs Declaration, so long as it also permits the alleged combatant to present his own factual case to rebut the Government’s return. We anticipate *539 that a District Court would proceed with the caution that we have indicated is necessary in this setting, engaging in a factfinding process that is both prudent and incremental. We have no reason to doubt that courts faced with these sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns.

IV

Hamdi asks us to hold that the Fourth Circuit also erred by denying him immediate access to counsel upon his detention and by disposing of the case without permitting him to meet with an attorney. Brief for Petitioners 19. Since our grant of certiorari in this case, Hamdi has been appointed counsel, with whom he has met for consultation purposes on several occasions, and with whom he is now being granted unmonitored meetings. He unquestionably has the right to access to counsel in connection with the proceedings on remand. No further consideration of this issue is necessary at this stage of the case.

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The judgment of the United States Court of Appeals for the Fourth Circuit is vacated, and the case is remanded for further proceedings.

It is so ordered.

-------------------------------------------------------------------------------- FOOTNOTES — O’CONNOR, J. (plurality) --------------------------------------------------------------------------------

[1] Here the basis asserted for detention by the military is that Hamdi was carrying a weapon against American troops on a foreign battlefield; that is, that he was an enemy combatant. The legal category of enemy combatant has not been elaborated upon in great detail. The permissible bounds of the category will be defined by the lower courts as subsequent cases are presented to them.

[2] Because we hold that Hamdi is constitutionally entitled to the process described above, we need not address at this time whether any treaty guarantees him similar access to a tribunal for a determination of his status.

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SOUTER, J., with whom GINSBURG, J., joins, concurring in part, dissenting in part, and concurring in the judgment.

JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, concurring in part, dissenting in part, and concurring in the judgment.

According to Yaser Hamdi’s petition for writ of habeas corpus, brought on his behalf by his father, the Government of the United States is detaining him, an American citizen on American soil, with the explanation that he was seized on the field of battle in Afghanistan, having been on the enemy side. It is undisputed that the Government has not charged *540 him with espionage, treason, or any other crime under domestic law. It is likewise undisputed that for one year and nine months, on the basis of an Executive designation of Hamdi as an “enemy combatant,” the Government denied him the right to send or receive any communication beyond the prison where he was held and, in particular, denied him access to counsel to represent him.[1] The Government asserts a right to hold Hamdi under these conditions indefinitely, that is, until the Government determines that the United States is no longer threatened by the terrorism exemplified in the attacks of September 11, 2001.

In these proceedings on Hamdi’s petition, he seeks to challenge the facts claimed by the Government as the basis for holding him as an enemy combatant. And in this Court he presses the distinct argument that the Government’s claim, even if true, would not implicate any authority for holding him that would satisfy 18 U. S. C. § 4001(a) (Non- Detention Act), which bars imprisonment or detention of a citizen “except pursuant to an Act of Congress.”

The Government responds that Hamdi’s incommunicado imprisonment as an enemy combatant seized on the field of battle falls within the President’s power as Commander in Chief under the laws and usages of war, and is in any event authorized by two statutes. Accordingly, the Government contends that Hamdi has no basis for any challenge by petition for habeas except to his own status as an enemy combatant; and even that challenge may go no further than to enquire whether “some evidence” supports Hamdi’s designation, see Brief for Respondents 34-36; if there is “some evidence,” Hamdi should remain locked up at the discretion of the Executive. At the argument of this case, in fact, the Government went further and suggested that as long as a prisoner could challenge his enemy combatant designation *541 when responding to interrogation during incommunicado detention he was accorded sufficient process to support his designation as an enemy combatant. See Tr. of Oral Arg. 40; id., at 42 (“[H]e has an opportunity to explain it in his own words” “[d]uring interrogation”). Since on either view judicial enquiry so limited would be virtually worthless as a way to contest detention, the Government’s concession of jurisdiction to hear Hamdi’s habeas claim is more theoretical than practical, leaving the assertion of Executive authority close to unconditional.

The plurality rejects any such limit on the exercise of habeas jurisdiction and so far I agree with its opinion. The plurality does, however, accept the Government’s position that if Hamdi’s designation as an enemy combatant is correct, his detention (at least as to some period) is authorized by an Act of Congress as required by § 4001(a), that is, by the Authorization for Use of Military Force, 115 Stat. 224 (hereinafter Force Resolution). Ante, at 517-521. Here, I disagree and respectfully dissent. The Government has failed to demonstrate that the Force Resolution authorizes the detention complained of here even on the facts the Government claims. If the Government raises nothing further than the record now shows, the Non-Detention Act entitles Hamdi to be released.

[Parts I through IV of Justice Souter’s opinion are omitted except the closing paragraphs. His argument: the Non-Detention Act, 18 U. S. C. § 4001(a) — “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress” — was passed to prevent a repetition of the Japanese-American internment and must be read to require a clear statement; the Force Resolution (the AUMF) is not one; and the Government, which was holding Hamdi incommunicado rather than as a prisoner of war under the Geneva Convention, had not shown it was acting within the laws of war. He would hold the detention unauthorized. Because that view does not command a majority, he joins the plurality’s judgment so that Hamdi can at least contest the factual basis for his detention.]

It should go without saying that in joining with the plurality to produce a judgment, I do not adopt the plurality’s resolution of constitutional issues that I would not reach. It is not that I could disagree with the plurality’s determinations (given the plurality’s view of the Force Resolution) that someone in Hamdi’s position is entitled at a minimum to notice of the Government’s claimed factual basis for holding him, and to a fair chance to rebut it before a neutral decisionmaker, see ante, at 533; nor, of course, could I disagree with the plurality’s affirmation of Hamdi’s right to counsel, see ante, at 539. On the other hand, I do not mean to imply agreement that the Government could claim an evidentiary presumption casting the burden of rebuttal on *554 Hamdi, see ante, at 534, or that an opportunity to litigate before a military tribunal might obviate or truncate enquiry by a court on habeas, see ante, at 538.

Subject to these qualifications, I join with the plurality in a judgment of the Court vacating the Fourth Circuit’s judgment and remanding the case.

================================================================================ DISSENTING OPINION OF SCALIA, J. ================================================================================

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[Scalia, J., dissenting — the opening and the start of Part II are given; the rest is summarized in brackets.]

SCALIA, J., with whom STEVENS, J., joins, dissenting.

JUSTICE SCALIA, with whom JUSTICE STEVENS joins, dissenting.

Petitioner Yaser Hamdi, a presumed American citizen, has been imprisoned without charge or hearing in the Norfolk and Charleston Naval Brigs for more than two years, on the allegation that he is an enemy combatant who bore arms against his country for the Taliban. His father claims to the contrary, that he is an inexperienced aid worker caught in the wrong place at the wrong time. This case brings into conflict the competing demands of national security and our citizens’ constitutional right to personal liberty. Although I share the plurality’s evident unease as it seeks to reconcile the two, I do not agree with its resolution.

Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, § 9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the judgment below.

[Part I of Justice Scalia’s dissent, a history of the right to be free from executive detention without charge — Blackstone, the Habeas Corpus Act of 1679, and the writ’s place in the Constitution — is omitted.]

II

The allegations here, of course, are no ordinary accusations of criminal activity. Yaser Esam Hamdi has been imprisoned because the Government believes he participated in the waging of war against the United States. The relevant question, then, is whether there is a different, special procedure for imprisonment of a citizen accused of wrongdoing by aiding the enemy in wartime.

A

JUSTICE O’CONNOR, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained *559 until the cessation of hostilities and then released. Ante, at 518-519. That is probably an accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process.

[The rest of Justice Scalia’s dissent, including its account of treason prosecutions in England and the United States and its footnotes, is omitted. His conclusion: where the Government accuses a citizen of waging war against it, the Constitution offers two routes — prosecute him for treason or another crime in the ordinary courts, or have Congress suspend the writ of habeas corpus. Absent either, he must be released.]

================================================================================ DISSENTING OPINION OF THOMAS, J. ================================================================================

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[Thomas, J., dissenting — the opening is given; the rest is summarized in brackets.]

THOMAS, J., dissenting.

JUSTICE THOMAS, dissenting.

The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners’ habeas challenge should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs and by using the balancing scheme of Mathews v. Eldridge, 424 U.S. 319 (1976). I do not think that the Federal Government’s war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I could not accept the particulars. The plurality utterly fails to account for the Government’s compelling interests and for our own institutional inability to weigh competing concerns correctly. I respectfully dissent.

[The rest of Justice Thomas’s dissent is omitted. He argues that the detention falls within the President’s war powers, which the Founders gave the Executive because only a unitary executive can act with the necessary speed and secrecy; that the courts lack the competence to second-guess the Executive’s determination; and that the plurality’s Mathews balance, if it applied at all, should come out for the Government.]

================================================================================ END OF 542 U.S. 507 (2004) ================================================================================

Notes & Questions

1. A judgment without a Court. Four Justices say the AUMF authorizes the detention and due process requires notice and a hearing. Two say the detention is not authorized at all but join to produce a judgment. Two say the only lawful courses were criminal prosecution or suspension of the writ. One says the courts should stay out. State what, precisely, is binding after this case — and then ask what a district judge on remand is supposed to do with it. Souter’s Part IV, explaining why he joins an opinion he rejects, is the most candid account you will read of what it costs to produce a judgment on a fractured bench.

2. Mathews v. Eldridge, moved. The plurality takes a three-factor balance built for terminating disability benefits — private interest, risk of erroneous deprivation, government’s interest — and runs indefinite military detention of a citizen through it. At 529 it says the process due is determined by weighing those things. Is that framework capable of producing a floor? Thomas thinks the plurality struck its own balance wrongly; Scalia thinks the exercise was illegitimate from the start, because the Constitution already specifies the procedure for holding a citizen: charge him, or suspend the writ. Which objection is stronger, and are they compatible?

3. The sentence, and the sentence after it. At 533: “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” Then the concession — hearsay may be accepted, a presumption may run in the Government’s favour, and “an appropriately authorized and properly constituted military tribunal” might be the neutral decisionmaker. Work out how much process is actually left after those three moves, and ask whether a military tribunal reviewing a military detention satisfies the word “neutral.”

4. Quirin, used and misused. The Government’s principal authority was Quirin, and you have read it. Quirin held that an unlawful belligerent, citizenship notwithstanding, may be tried by military commission for a law-of-war offence; it expressly declined to mark the outer bounds of commission jurisdiction and said nothing about detention without trial. The plurality leans on it anyway. Does the inference from “may be tried” to “may be detained indefinitely without trial” hold? Scalia says Quirin “was not this Court’s finest hour.” Say why, and say whether it matters to the argument.

5. Where the authorization comes from. The plurality does not rest on inherent executive power. It rests on the AUMF, read to incorporate longstanding law-of-war practice — detention until the end of hostilities. Then it notices the problem out loud: this conflict may not end in a way that releases anyone. If the authority is statutory, Congress can withdraw it; if the duration is “the end of hostilities” and hostilities have no end, what has Congress authorized? Connect this to Module 5 and Youngstown: the President here is in Jackson’s category one, and a citizen is still held for years. Ask what category one is worth as a protection.

6. The line everyone quotes, and what it is doing. “[A] state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” It is rhetorically the high point of the opinion and analytically the least load-bearing sentence in it — the holding is the three procedural requirements and the three concessions that follow. Notice the gap between what a case is remembered for and what it decides. That gap is worth watching in every case in this Module, and Milligan is the other example.