hamdi et al rumsfeld secretary defense et argued april decided june counsel record petitioners hamdi et al frank dunham federal public defender alexandria va respondents rumsfeld et al theodore olson solicitor general washington dc congress passed resolution authorization use military force aumf empowering president use necessary appropriate force nations organizations persons determines planned authorized committed aided september al qaeda terrorist attacks president ordered armed forces afghanistan subdue al qaeda quell supporting taliban regime petitioner hamdi american citizen government classified enemy combatant allegedly taking arms taliban conflict captured afghanistan presently detained naval brig charleston hamdi father filed habeas petition behalf alleging among things government holds son violation fifth fourteenth amendments although petition elaborate factual circumstances hamdi capture detention father asserted documents record hamdi went afghanistan relief work less two months september received military training government attached response petition declaration michael mobbs mobbs declaration defense department official mobbs declaration alleges various details regarding hamdi trip afghanistan affiliation taliban unit time taliban battling allies subsequent surrender assault rifle district found mobbs declaration standing alone support hamdi detention ordered government turn numerous materials camera review fourth circuit reversed stressing undisputed hamdi captured active combat zone factual inquiry evidentiary hearing allowing hamdi heard rebut government assertions necessary proper concluding factual averments mobbs declaration accurate provided sufficient basis upon conclude president constitutionally detained hamdi ordered habeas petition dismissed appeals held assuming express congressional authorization detention required provides citizen shall imprisoned otherwise detained except pursuant act congress aumf necessary appropriate force language provided authorization hamdi detention also concluded hamdi entitled limited judicial inquiry detention legality war powers political branches searching review factual determinations underlying seizure held judgment vacated case remanded justice joined chief justice justice kennedy justice breyer concluded although congress authorized detention combatants narrow circumstances alleged case due process demands citizen held enemy combatant given meaningful opportunity contest factual basis detention neutral decisionmaker pp justice souter joined justice ginsburg concluded hamdi detention unauthorized joined plurality conclude remand hamdi meaningful opportunity offer evidence enemy combatant pp announced judgment delivered opinion rehnquist kennedy breyer joined souter filed opinion concurring part dissenting part concurring judgment ginsburg joined scalia filed dissenting opinion stevens joined thomas filed dissenting opinion yaser esam hamdi esam fouad hamdi next friend yaser esam hamdi ers donald rumsfeld secretary defense et al writ certiorari appeals fourth circuit june justice announced judgment delivered opinion chief justice justice kennedy justice breyer join difficult time nation history called upon consider legality government detention citizen soil enemy combatant address process constitutionally owed one seeks challenge classification appeals fourth circuit held petitioner detention legally authorized entitled opportunity challenge label vacate remand hold although congress authorized detention combatants narrow circumstances alleged due process demands citizen held enemy combatant given meaningful opportunity contest factual basis detention neutral decisionmaker september al qaeda terrorist network used hijacked commercial airliners attack prominent targets approximately people killed attacks one week later response acts treacherous violence congress passed resolution authorizing president use necessary appropriate force nations organizations persons determines planned authorized committed aided terrorist attacks harbored organizations persons order prevent future acts international terrorism nations organizations persons authorization use military force aumf stat soon thereafter president ordered armed forces afghanistan mission subdue al qaeda quell taliban regime known support case arises detention man government alleges took arms taliban conflict name yaser esam hamdi born american citizen louisiana hamdi moved family saudi arabia child parties agree resided afghanistan point year seized members northern alliance coalition military groups opposed taliban government eventually turned military government asserts initially detained interrogated hamdi afghanistan transferring naval base guantanamo bay january april upon learning hamdi american citizen authorities transferred naval brig norfolk virginia remained recent transfer brig charleston south carolina government contends hamdi enemy combatant status justifies holding indefinitely without formal charges proceedings unless makes determination access counsel process warranted june hamdi father esam fouad hamdi filed present petition writ habeas corpus eastern district virginia naming petitioners son next friend elder hamdi alleges petition contact son since government took custody government held son without access legal counsel notice charges pending app petition contends hamdi detention legally authorized argues american citizen hamdi enjoys full protections constitution hamdi detention without charges access impartial tribunal assistance counsel violated continue violate fifth fourteenth amendments constitution habeas petition asks among things appoint counsel hamdi order respondents cease interrogating declare held violation fifth fourteenth amendments extent respondents contest material factual allegations petition schedule evidentiary hearing petitioners may adduce proof support allegations order hamdi released unlawful custody although habeas petition provides details regard factual circumstances surrounding son capture detention hamdi father asserted documents found elsewhere record son went afghanistan relief work country less two months september received military training traveling first time father says ecause lack experience trapped afghanistan military campaign began district found hamdi father proper next friend appointed federal public defender counsel petitioners ordered counsel given access hamdi appeals fourth circuit reversed order holding district failed extend appropriate deference government security intelligence interests directed district consider cautious procedures first conduct deferential inquiry hamdi status opined hamdi indeed combatant captured hostilities afghanistan government present detention lawful one ibid remand government filed response motion dismiss petition attached response declaration one michael mobbs hereinafter mobbs declaration identified special advisor secretary defense policy mobbs indicated position substantially involved matters related detention enemy combatants current war al qaeda terrorists support harbor including taliban app expressed familiar ity department defense military policies procedures applicable detention control transfer al qaeda taliban personnel declared ased upon review relevant records reports also familiar facts circumstances related capture hamdi detention military forces ibid mobbs set forth remains sole evidentiary support government provided courts hamdi detention declaration hamdi traveled afghanistan july august thereafter affiliated taliban military unit received weapons training ibid asserts hamdi remained taliban unit following attacks september time northern alliance forces engaged battle taliban hamdi taliban unit surrendered forces surrender ed kalishnikov assault rifle mobbs declaration also al qaeda taliban hostile forces engaged armed conflict armed forces individuals associated groups continue enemy combatants mobbs hamdi labeled enemy combatant ased upon interviews light association taliban ibid according declaration series military screening team determined hamdi met criteria enemy combatants subsequent interview hamdi confirmed surrendered gave firearm northern alliance forces supports classification enemy combatant government submitted declaration fourth circuit directed district proceed accordance earlier ruling specifically sufficiency mobbs declaration independent matter proceeding district found mobbs declaration fell far short supporting hamdi detention app criticized generic hearsay nature affidavit calling little government ordered government turn numerous materials camera review including copies hamdi statements notes taken interviews related reasons going afghanistan activities therein list interrogators questioned hamdi names addresses statements members northern alliance regarding hamdi surrender capture list dates locations capture subsequent detentions names titles government officials made determinations hamdi enemy combatant moved naval brig indicated materials necessary meaningful judicial review whether hamdi detention legally authorized whether hamdi received sufficient process satisfy due process clause constitution relevant treaties military regulations government sought appeal production order district certified question whether mobbs declaration alone sufficient matter law allow meaningful judicial review hamdi classification enemy combatant fourth circuit reversed squarely answer certified question instead stressed undisputed hamdi captured zone active combat foreign theater conflict factual inquiry evidentiary hearing allowing hamdi heard rebut government assertions necessary proper concluding factual averments mobbs declaration accurate provided sufficient basis upon conclude president constitutionally detained hamdi pursuant president war powers ordered habeas petition dismissed fourth circuit emphasized vital purposes detention uncharged enemy combatants preventing combatants rejoining enemy relieving military burden litigating circumstances wartime captures halfway around globe interests directly derived war powers articles ii view article iii contains nothing analogous specific powers war carefully enumerated articles ii separation powers principles prohibited federal delv ing hamdi status capture accordingly district vigorous inquiry went far beyond acceptable scope review ibid global question whether legal authorization exists detention citizen enemy combatants fourth circuit rejected hamdi arguments article geneva convention rendered detentions unlawful expressed doubt hamdi argument provides citizen shall imprisoned otherwise detained except pursuant act congress required express congressional authorization detentions sort held event authorization found authorization use military force capturing detaining enemy combatants inherent part warfare held appropriate force referenced congressional resolution necessarily includes capture detention hostile forces arrayed troops ibid see also noting congress specifically authorized expenditure funds keeping prisoners war persons whose status determined similar prisoners war concluding appropriation measure also demonstrated congress authorized individuals detention first instance likewise rejected hamdi geneva convention claim concluding convention even preclude executive detaining hamdi cessation hostilities finally fourth circuit rejected hamdi contention legal analyses regard authorization detention scheme process constitutionally entitled altered fact american citizen detained american soil relying ex parte quirin emphasized ne takes arms foreign theater war regardless citizenship may properly designated enemy combatant treated privilege citizenship held entitles hamdi limited judicial inquiry detention determine legality war powers political branches least undisputed present zone active combat operations satisfied constitution entitle searching review factual determinations underlying seizure ibid fourth circuit denied rehearing en banc granted certiorari vacate judgment remand ii threshold question us whether executive authority detain citizens qualify enemy combatants debate proper scope term government never provided full criteria uses classifying individuals made clear however purposes case enemy combatant seeking detain individual alleges supporting forces hostile coalition afghanistan armed conflict brief respondents therefore answer narrow question us whether detention citizens falling within definition authorized government maintains explicit congressional authorization required executive possesses plenary authority detain pursuant article ii constitution reach question whether article ii provides authority however agree government alternative position congress fact authorized hamdi detention aumf analysis point set forth substantially overlaps analysis hamdi principal argument illegality detention posits detention forbidden section citizen shall imprisoned otherwise detained except pursuant act congress congress passed part bill repeal emergency detention act et provided procedures executive detention times emergency individuals deemed likely engage espionage sabotage congress particularly concerned possibility act used reprise japanese internment camps world war ii concentration camp implications legislation render abhorrent government presses two alternative positions first argues light legislative history location title applies control civilian prisons related detentions military detentions brief respondents second maintains satisfied hamdi detained pursuant act congress aumf conclude government second assertion correct address first words reasons follow conclude aumf explicit congressional authorization detention individuals narrow category describe assuming without deciding authorization required aumf satisfied requirement detention pursuant act congress assuming without deciding applies military detentions aumf authorizes president use necessary appropriate force nations organizations persons associated september terrorist attacks stat doubt individuals fought afghanistan part taliban organization known supported al qaeda terrorist network responsible attacks individuals congress sought target passing aumf conclude detention individuals falling limited category considering duration particular conflict captured fundamental accepted incident war exercise necessary appropriate force congress authorized president use capture detention lawful combatants capture detention trial unlawful combatants universal agreement practice important incident war ex parte quirin purpose detention prevent captured individuals returning field battle taking arms naqvi doubtful status rev red cross aptivity war revenge punishment solely protective custody purpose prevent prisoners war participation quoting decision nuremberg military tribunal reprinted winthrop military law precedents rev ed time long passed quarter rule battlefield recognized neither punishment act vengeance temporary detention devoid penal character prisoner war convict imprisonment simple war measure citations omitted cf territo object capture prevent captured individual serving enemy disarmed must removed completely practicable front treated humanely time exchanged repatriated otherwise released footnotes omitted bar nation holding one citizens enemy combatant quirin one detainees haupt alleged naturalized citizen held itizens associate military arm enemy government aid guidance direction enter country bent hostile acts enemy belligerents within meaning law war haupt tried violations law war nothing quirin suggests citizenship precluded mere detention duration relevant hostilities see see also lieber code instructions government armies field order reprinted lieber miscellaneous writings contemplating code binding union army civil war captured rebels treated prisoners war see reason drawing line citizen less alien part supporting forces hostile coalition partners engaged armed conflict brief respondents citizen released pose threat returning front ongoing conflict light principles moment aumf use specific language detention detention prevent combatant return battlefield fundamental incident waging war permitting use necessary appropriate force congress clearly unmistakably authorized detention narrow circumstances considered hamdi objects nevertheless congress authorized indefinite detention subject government responds detention enemy combatants world war ii war fought take hamdi objection lack certainty regarding date conflict end substantial prospect perpetual detention recognize national security underpinnings war terror although crucially important broad malleable government concedes given unconventional nature current conflict unlikely end formal agreement ibid prospect hamdi raises therefore government consider unconventional war two generations maintains time hamdi might released rejoin forces fighting position taken throughout litigation case suggests hamdi detention last rest life clearly established principle law war detention may last longer active hostilities see article geneva convention iii relative treatment prisoners war prisoners war shall released repatriated without delay cessation active hostilities see also article hague convention ii laws customs war land july stat soon possible conclusion peace hague convention iv supra stat conclusion peace art geneva convention supra july stat repatriation accomplished least possible delay conclusion peace art praust judicial power determine status rights persons detained without trial harv prisoners war detained armed conflict detaining country must release repatriate delay cessation active hostilities unless lawfully prosecuted lawfully convicted crimes serving sentences citing arts geneva convention iii hamdi contends aumf authorize indefinite perpetual detention certainly agree indefinite detention purpose interrogation authorized understand congress grant authority use necessary appropriate force include authority detain duration relevant conflict understanding based longstanding principles practical circumstances given conflict entirely unlike conflicts informed development law war understanding may unravel situation face date active combat operations taliban fighters apparently ongoing afghanistan see constable launches new operation afghanistan washington post mar reporting troops remain afghanistan including several thousand new arrivals abizaid dept defense abizaid central command operations update briefing apr http visited june available clerk case file media briefing describing ongoing operations afghanistan involving troops may detain duration hostilities individuals legitimately determined taliban combatants engaged armed conflict record establishes troops still involved active combat afghanistan detentions part exercise necessary appropriate force therefore authorized aumf ex parte milligan wall undermine holding government authority seize enemy combatants define term today case made repeated reference fact inquiry whether military tribunal jurisdiction try punish milligan turned large part fact milligan prisoner war resident indiana arrested home fact central conclusion milligan captured assisting confederate soldiers carrying rifle union troops confederate battlefield holding might well different repeated explanations milligan prisoner war suggest different circumstances present detained military authority duration conflict whether moreover justice scalia acknowledges ex parte quirin dismissed language milligan petitioners suggested prevented subject military process post dissenting opinion clear rejection disavowal new york state cases cited milligan justice scalia relies see smith shaw johns hampton johns civil suits false imprisonment even accepting cases viewed standing sweeping proposition justice scalia cites military authority try american citizen accused spying country wartime quirin makes undeniably clear law today haupt like citizens smith accused spy quirin found subject trial punishment military tribunal acts held citizenship change result quirin unanimous opinion postdates clarifies milligan providing us apposite precedent question whether citizens may detained circumstances brushing aside precedent particularly gives rise host new questions never dealt unjustified unwise extent justice scalia accepts precedential value quirin argues guide inquiry quirin uncontested petitioners members enemy forces hamdi challenges classification enemy combatant post unclear paradigm outlined justice scalia concession relevance justice scalia envisions system options congressional suspension writ habeas corpus prosecution treason crime post explain historical analysis supports addition third option detention process concession status concession carry different effect proof status proceeding comports due process clear opinion finds legislative authority detain aumf sufficiently clear individual fact enemy combatant whether established concession process verifies fact sufficient certainty seems beside point justice scalia largely ignores context case citizen captured foreign combat zone justice scalia refers one case involving factual scenario case member italian army world war ii seized battlefield sicily held case held military detention citizen lawful see territo justice scalia treatment case suffers defect treatment quirin justice scalia finds fact battlefield capture irrelevant distinction based fact petitioner conceded enemy combatant status beside point see supra justice scalia point case authority proposition captured foreign battlefield whether detained territory detained outside criminal process moreover justice scalia presumably come different result hamdi kept afghanistan even guantanamo bay see post scalia dissenting creates perverse incentive military authorities faced stark choice submitting criminal process releasing suspected enemy combatant captured battlefield simply keep abroad indeed government transferred hamdi guantanamo bay naval brig learned might american citizen clear make determinative constitutional difference iii even cases detention enemy combatants legally authorized remains question process constitutionally due citizen disputes status hamdi argues owed meaningful timely hearing detention begins ends submission affidavit based hearsay comport fifth fourteenth amendments brief petitioners government counters process provided unworkable constitutionally intolerable brief respondents resolution dispute requires careful examination writ habeas corpus hamdi seeks employ mechanism judicial review due process clause informs procedural contours mechanism instance though reach radically different conclusions process attend present proceeding parties begin common ground agree absent suspension writ habeas corpus remains available every individual detained within art cl privilege writ habeas corpus shall suspended unless cases rebellion invasion public safety may require rarest circumstances congress seen fit suspend writ see act mar ch stat act april ch stat times remained critical check executive ensuring detain individuals except accordance law see ins cyr agree suspension writ occurred thus undisputed hamdi properly article iii challenge detention brief respondents agree companion provisions provide least skeletal outline procedures afforded petitioner federal habeas review notably provides person detained may oath deny facts set forth return allege material facts allows taking evidence habeas proceedings deposition affidavit interrogatories simple outline makes clear congress envisioned habeas petitioners opportunity present rebut facts courts cases like retain ability vary ways mandated due process government recognizes basic procedural protections required habeas statute asks us hold given flexibility habeas mechanism circumstances presented case presentation mobbs declaration habeas completed required factual development suggests two separate reasons position process due first government urges adoption fourth circuit holding undisputed hamdi seizure took place combat zone habeas determination made purely matter law hearing factfinding necessary argument easily rejected dissenters denial rehearing en banc noted circumstances surrounding hamdi seizure way characterized undisputed circumstances neither conceded fact susceptible concession law hamdi permitted speak even counsel circumstances luttig dissenting denial rehearing en banc see also motz dissenting denial rehearing en banc facts constitute alleged concession insufficient support hamdi detention definition enemy combatant accept today falling within scope congress authorization hamdi need part supporting forces hostile coalition partners engaged armed conflict justify detention duration relevant conflict brief respondents habeas petition hen seized government hamdi resided afghanistan app assertion one resided country combat operations taking place concession one captured zone active combat operations foreign theater war emphasis added certainly concession one part supporting forces hostile coalition partners engaged armed conflict accordingly reject argument hamdi made concessions eliminate right process government second argument requires closer consideration argument factual exploration unwarranted inappropriate light extraordinary constitutional interests stake government extreme rendition argument espect separation powers limited institutional capabilities courts matters military connection ongoing conflict eliminate entirely individual process restricting courts investigating whether legal authorization exists broader detention scheme brief respondents government argues courts review determination citizen enemy combatant deferential evidence standard evidence standard focus exclusively factual basis supplied executive support determination citing superintendent mass correctional institution walpole hill explaining evidence standard require weighing evidence rather calls assessing whether evidence record support conclusion review assume accuracy government articulated basis hamdi detention set forth mobbs declaration assess whether articulated basis legitimate one brief respondents see also declining address whether evidence standard govern adjudication claims noting factual averments mobbs affidavit accurate sufficient confirm legality hamdi detention response hamdi emphasizes consistently recognized individual challenging detention may held executive without recourse proceeding neutral tribunal determine whether executive asserted justifications detention basis fact warrant law see zadvydas davis addington texas argues fourth circuit inappropriately ceded power executive wartime define conduct citizen may detained judge whether citizen engaged proscribed conduct imprison citizen indefinitely brief petitioners due process demands receive hearing may challenge mobbs declaration adduce counter evidence district agreeing hamdi apparently believed appropriate process approach process accompanies criminal trial therefore disapproved hearsay nature mobbs declaration anticipated quite extensive discovery various military affairs anything less concluded meaningful judicial review app positions highlight legitimate concerns emphasize tension often exists autonomy government asserts necessary order pursue effectively particular goal process citizen contends due deprived constitutional right ordinary mechanism use balancing serious competing interests determining procedures necessary ensure citizen deprived life liberty property without due process law amdt test articulated mathews eldridge see heller doe zinermon burch salerno schall martin addington texas supra mathews dictates process due given instance determined weighing private interest affected official action government asserted interest including function involved burdens government face providing greater process mathews calculus contemplates judicious balancing concerns analysis risk erroneous deprivation private interest process reduced probable value additional substitute safeguards ibid take steps turn beyond question substantial interests lie sides scale case hamdi private interest affected official action elemental liberty interests interest free physical detention one government foucha louisiana freedom bodily restraint always core liberty protected due process clause arbitrary governmental action see also parham noting substantial liberty interest confined unnecessarily society liberty norm detention without trial carefully limited exception salerno supra always careful importance fundamental nature individual right liberty foucha supra quoting salerno supra today weight side mathews scale offset circumstances war accusation treasonous behavior clear commitment purpose constitutes significant deprivation liberty requires due process protection jones emphasis added internal quotation marks omitted stage mathews calculus consider interest erroneously detained individual carey piphus procedural due process rules meant protect persons deprivation mistaken unjustified deprivation life liberty property see also noting importance organized society procedural due process observed emphasizing right procedural due process sense depend upon merits claimant substantive assertions indeed amicus briefs media relief organizations emphasize risk erroneous deprivation citizen liberty absence sufficient process real see brief americares et al amici curiae noting ways nature humanitarian relief work journalism present significant risk mistaken military detentions moreover critical government interest may detaining actually pose immediate threat national security ongoing international conflict history common sense teach us unchecked system detention carries potential become means oppression abuse others present sort threat see ex parte milligan founders knew history world told nation founding existence short long involved war often long continued human foresight tell unlimited power wherever lodged time especially hazardous freemen live society ere public intolerance animosity constitutionally justify deprivation person physical liberty donaldson starting point mathews eldridge analysis unaltered allegations surrounding particular detainee organizations alleged associated reaffirm today fundamental nature citizen right free involuntary confinement government without due process law weigh opposing governmental interests curtailment liberty confinement entails side scale weighty sensitive governmental interests ensuring fact fought enemy war return battle discussed supra law war realities combat may render detentions necessary appropriate due process analysis need blink realities without doubt constitution recognizes core strategic matters warmaking belong hands best positioned politically accountable making department navy egan noting reluctance courts intrude upon authority executive military national security affairs youngstown sheet tube sawyer acknowledging broad powers military commanders engaged fighting theater war government also argues length interests reducing process available alleged enemy combatants heightened practical difficulties accompany system process view military officers engaged serious work waging battle unnecessarily dangerously distracted litigation half world away discovery military operations intrude sensitive secrets national defense result futile search evidence buried rubble war brief respondents extent burdens triggered heightened procedures properly taken account due process analysis striking proper constitutional balance great importance nation period ongoing combat equally vital calculus give short shrift values country holds dear privilege american citizenship challenging uncertain moments nation commitment due process severely tested times must preserve commitment home principles fight abroad see kennedy imperative necessity safeguarding rights procedural due process gravest emergencies existed throughout constitutional history pressing exigencies crisis greatest temptation dispense guarantees feared inhibit government action see also robel indeed ironic name national defense sanction subversion one liberties makes defense nation worthwhile due recognition competing concerns believe neither process proposed government process apparently envisioned district strikes proper constitutional balance citizen detained enemy combatant risk erroneous deprivation detainee liberty interest unacceptably high government proposed rule additional substitute procedural safeguards suggested district unwarranted light limited probable value burdens may impose military cases mathews therefore hold seeking challenge classification enemy combatant must receive notice factual basis classification fair opportunity rebut government factual assertions neutral decisionmaker see cleveland bd ed loudermill essential principle due process deprivation life liberty property preceded notice opportunity hearing appropriate nature quoting mullane central hanover bank trust concrete pipe products construction laborers pension trust southern due process requires detached judge first quoting ward monroeville century central meaning procedural due process clear whose rights affected entitled heard order may enjoy right must first notified equally fundamental right notice opportunity heard granted meaningful time meaningful manner fuentes shevin quoting baldwin hale wall armstrong manzo citations omitted essential constitutional promises may eroded time exigencies circumstances may demand aside core elements enemy combatant proceedings may tailored alleviate uncommon potential burden executive time ongoing military conflict hearsay example may need accepted reliable available evidence government proceeding likewise constitution offended presumption favor government evidence long presumption remained rebuttable one fair opportunity rebuttal provided thus government puts forth credible evidence habeas petitioner meets criteria onus shift petitioner rebut evidence persuasive evidence falls outside criteria scheme sort meet goal ensuring errant tourist embedded journalist local aid worker chance prove military error giving due regard executive put forth meaningful support conclusion detainee fact enemy combatant words mathews process sort sufficiently address risk erroneous deprivation detainee liberty interest eliminating certain procedures questionable additional value light burden government think unlikely basic process dire impact central functions warmaking government forecasts parties agree initial captures battlefield need receive process discussed process due determination made continue hold seized government made clear briefing documentation regarding battlefield detainees already kept ordinary course military affairs brief respondents factfinding imposition created requiring knowledgeable affiant summarize records independent tribunal minimal one likewise arguments military officers wage war threat litigation lose much steam factual disputes hearings limited alleged combatant acts focus meddles little strategy conduct war inquiring appropriateness continuing detain individual claimed taken arms accord greatest respect consideration judgments military authorities matters relating actual prosecution war recognize scope discretion necessarily wide infringe core role military courts exercise constitutionally mandated roles reviewing resolving claims like presented cf korematsu murphy dissenting ike claims conflicting asserted constitutional rights individual military claim must subject judicial process reasonableness determined conflicts interests reconciled sterling constantin allowable limits military discretion whether overstepped particular case judicial questions sum full protections accompany challenges detentions settings may prove unworkable inappropriate setting threats military operations posed basic system independent review weighty trump citizen core rights challenge meaningfully government case heard impartial adjudicator holding necessarily reject government assertion separation powers principles mandate heavily circumscribed role courts circumstances indeed position courts must forgo examination individual case focus exclusively legality broader detention scheme mandated reasonable view separation powers approach serves condense power single branch government long since made clear state war blank check president comes rights nation citizens youngstown sheet tube central judgment framers constitution within political scheme separation governmental powers three coordinate branches essential preservation liberty home building loan assn blaisdell war power power wage war successfully thus permits harnessing entire energies people cooperative effort preserve nation even war power remove constitutional limitations safeguarding essential liberties likewise made clear unless congress acts suspend great writ habeas corpus allows judicial branch play necessary role maintaining delicate balance governance serving important judicial check executive discretion realm detentions see cyr historical core writ habeas corpus served means reviewing legality executive detention context protections strongest thus question due process assessment must pay keen attention particular burdens faced executive context military action turn system checks balances head suggest citizen make way challenge factual basis detention government simply executive opposes making available challenge absent suspension writ congress citizen detained enemy combatant entitled process conclude due process demands system citizen detainee refute classification proposed evidence standard inadequate process executive factual assertions go wholly unchallenged simply presumed correct without opportunity alleged combatant demonstrate otherwise falls constitutionally short government recognized utilized evidence standard past standard review standard proof brief respondents primarily employed courts examining administrative record developed adversarial proceeding one process least sort today hold constitutionally mandated citizen setting see cyr supra hill standard therefore ill suited situation habeas petitioner received prior proceedings tribunal prior opportunity rebut executive factual assertions neutral decisionmaker today faced case aside unspecified screening processes brief respondents military interrogations government suggests hamdi contested classification tr oral arg hamdi received process interrogation one captor however effective tool hardly constitutes constitutionally adequate factfinding neutral decisionmaker compare brief respondents discussing secure interrogation environment noting military interrogations require controlled interrogation dynamic relationship trust dependency critical source timely effective intelligence concrete pipe plainly process hamdi received entitled due process clause remains possibility standards articulated met appropriately authorized properly constituted military tribunal indeed notable military regulations already provide process related instances dictating tribunals made available determine status enemy detainees assert status geneva convention see enemy prisoners war retained personnel civilian internees detainees army regulation absence process however receives petition writ habeas corpus alleged enemy combatant must ensure minimum requirements due process achieved courts recognized much focusing energies question whether hamdi due opportunity rebut government case government proceeded assumption presenting affidavit seeking evaluated deferential standard review based burdens alleged accompany greater process discussed habeas case may accept affidavit evidence like contained mobbs declaration long also permits alleged combatant present factual case rebut government return anticipate district proceed caution indicated necessary setting engaging factfinding process prudent incremental reason doubt courts faced sensitive matters pay proper heed matters national security might arise individual case constitutional limitations safeguarding essential liberties remain vibrant even times security concerns iv hamdi asks us hold fourth circuit also erred denying immediate access counsel upon detention disposing case without permitting meet attorney brief petitioners since grant certiorari case hamdi appointed counsel met consultation purposes several occasions granted unmonitored meetings unquestionably right access counsel connection proceedings remand consideration issue necessary stage case judgment appeals fourth circuit vacated case remanded proceedings ordered yaser esam hamdi esam fouad hamdi next friend yaser esam hamdi ers donald rumsfeld secretary defense et al writ certiorari appeals fourth circuit june justice scalia justice stevens joins dissenting petitioner presumed american citizen imprisoned without charge hearing norfolk charleston naval brigs two years allegation enemy combatant bore arms country taliban father claims contrary inexperienced aid worker caught wrong place wrong time case brings conflict competing demands national security citizens constitutional right personal liberty although share evident unease seeks reconcile two agree resolution government accuses citizen waging war constitutional tradition prosecute federal treason crime exigencies war prevent constitution suspension clause art cl allows congress relax usual protections temporarily absent suspension however executive assertion military exigency thought sufficient permit detention without charge one contends congressional authorization use military force government relies justify actions implementation suspension clause accordingly reverse decision core liberty secured system separated powers freedom indefinite imprisonment executive blackstone stated principle clearly great importance public preservation personal liberty left power highest magistrate imprison arbitrarily whomever officers thought proper soon end rights immunities bereave man life violence confiscate estate without accusation trial gross notorious act despotism must convey alarm tyranny throughout whole kingdom confinement person secretly hurrying gaol sufferings unknown forgotten less public less striking therefore dangerous engine arbitrary government make imprisonment lawful must either process courts judicature warrant legal officer authority commit prison warrant must writing hand seal magistrate express causes commitment order examined necessary upon habeas corpus cause expressed gaoler bound detain prisoner law judges respect unreasonable send prisoner signify withal crimes alleged blackstone commentaries laws england hereinafter blackstone words well known founders hamilton quoted passage federalist carey mcclellan eds two ideas central blackstone understanding due process right secured habeas corpus instrument due process insisted upon citizen illegally imprisoned found expression constitution due process suspension clauses see amdt art cl gist due process clause understood founding since force government follow procedures traditionally deemed necessary depriving person life liberty property citizen deprived liberty alleged criminal conduct procedures typically required committal magistrate followed indictment trial see phil story commentaries constitution hereinafter story equating due process law due presentment indictment brought answer thereto due process common law due process clause effect affirms right trial according process proceedings common law ibid see also cooley general principles constitutional law life liberty question must every instance judicial proceedings requirement implies accusation hearing impartial tribunal proper jurisdiction conviction judgment punishment inflicted internal quotation marks omitted sure certain types permissible noncriminal detention dependent upon contention citizen committed criminal act require protections criminal procedure however fell limited number exceptions civil commitment mentally ill example temporary detention quarantine infectious see opinion writ habeas corpus eng wilmot unthinkable executive render otherwise criminal grounds detention noncriminal merely disclaiming intent prosecute asserting incapacitating dangerous offenders rather punishing wrongdoing cf kansas hendricks finding dangerousness standing alone ordinarily sufficient ground upon justify indefinite involuntary commitment due process rights historically vindicated writ habeas corpus england founding writ developed tool challenging executive confinement always effective example darnel case tr king charles detained without charge several individuals failing assist england war france spain prisoners sought writs habeas corpus arguing without specific charges imprisonment shall continue time ever subjects kingdom may restrained liberties perpetually attorney general replied crown interest protecting realm justified imprisonment matter state ripe timely ordinary process accusation trial denied relief producing widespread outrage parliament responded petition right accepted king expressly prohibited imprisonment without formal charges see car struggle subject crown continued culminated habeas corpus act car described blackstone second magna charta stable bulwark liberties blackstone act governed persons committed detained crime cases felony treason plainly expressed warrant commitment act required release upon appropriate sureties unless commitment nonbailable offense ibid commitment felony high treason act require immediate release instead required crown commence criminal proceedings within specified time prisoner indicted time next term judge required set liberty prisoner upon bail unless king unable produce witnesses ibid able prisoner brought trial next succeeding term act provided shall discharged imprisonment ibid english courts sat four terms per year see blackstone practical effect provision imprisonment without indictment trial felony high treason exceed approximately three six months writ habeas corpus preserved constitution writ explicitly mentioned see art cl hamilton lauded establishment writ habeas corpus federalist defense means protect practice arbitrary imprisonments ages one favourite formidable instruments tyranny federalist supra indeed availability writ new constitution along requirement trial jury criminal cases see art iii cl basis arguing additional explicit procedural protections unnecessary see federalist ii allegations course ordinary accusations criminal activity yaser esam hamdi imprisoned government believes participated waging war relevant question whether different special procedure imprisonment citizen accused wrongdoing aiding enemy wartime justice writing plurality asserts captured enemy combatants suspected war crimes traditionally detained cessation hostilities released ante probably accurate description wartime practice respect enemy aliens tradition respect american citizens however quite different citizens aiding enemy treated traitors subject criminal process early england statute treasons made crime levy war lord king realm adherent king enemies realm giving aid comfort realm elsewhere edw stat discourse high treason sir michael foster explained regard subjects doubt owe allegiance crown times places joining rebels act rebellion enemies acts hostility make man traitor one case within clause levying war within adhering king enemies actual hostility us though war solemnly declared enemies within meaning act therefore indictment clause adhering king enemies sufficient aver prince state adhered enemy without shewing war proclaimed subject foreign prince amity us invadeth kingdom without commission sovereign enemy subject england adhering traitor within clause act report proceedings commission trial rebels year county surry crown cases introduction ch subjects accused levying war king routinely prosecuted treason harding case ventris eng trial parkyns tr trial vaughan tr trial downie tr founders inherited understanding citizen levying war government punished criminally constitution provides treason shall consist levying war adhering enemies giving aid comfort establishes heightened proof requirement two witnesses order convic offense art iii cl recent times citizens charged tried article iii courts acts war even noncitizen example two american citizens alleged participated world war spying conspiracy behalf germany tried federal see fricke sdny robinson sdny german member conspiracy subjected military process see ex rel wessels mcdonald edny world war ii famous german saboteurs ex parte quirin received military process citizens associated exception one discussed punished criminal process see haupt fisher nazi saboteurs trial see also cramer modern treason statute basically tracks language constitutional provision provisions title criminalize various acts warmaking adherence enemy see destruction aircraft aircraft facilities use weapons mass destruction acts terrorism transcending national boundaries providing material support terrorists providing material support certain terrorist organizations misprision treason rebellion insurrection seditious conspiracy enlistment serve armed hostility see also cfr prohibiting making receiving contribution funds goods services terrorists criminalizing violations cfr citizen hamdi known imprisoned connection military hostilities afghanistan subjected criminal process convicted upon guilty plea see lindh supp ed denying motions dismissal seelye times times military exigency renders resort traditional criminal process impracticable english law accommodated exigencies allowing legislative suspension writ habeas corpus brief periods blackstone explained yet sometimes state real danger even executive detention may necessary measure happiness constitution left executive power determine danger state great render measure expedient parliament legislative power whenever sees proper authorize crown suspending habeas corpus act short limited time imprison suspected persons without giving reason like manner experiment tried case extreme emergency nation parts liberty order preserve ever blackstone executive pursued usual course charge committal conviction historically secured legislature explicit approval suspension england parliament numerous occasions passed temporary suspensions times threatened invasion rebellion threatened return james ii geo threatened french invasion geo threatened rebellion scotland geo american revolution long massachusetts adopted clause constitution explicitly providing habeas corpus see mass const pt ch art vii reprinted federal state constitutions colonial charters organic laws thorpe ed suspended writ order deal shay rebellion see act suspending privilege writ habeas corpus ch mass acts federal constitution contains provision explicitly permitting suspension limiting situations may invoked privilege writ habeas corpus shall suspended unless cases rebellion invasion public safety may require art cl although provision state suspension must effected authorized legislative act understood consistent english practice clause placement article see ex parte bollman cranch ex parte merryman cas cd md taney rejecting lincoln unauthorized suspension story suspension clause design safety valve constitution express provision exercise extraordinary authority crisis youngstown sheet tube sawyer jackson concurring early nation history president jefferson unsuccessfully sought suspension habeas corpus deal aaron burr conspiracy overthrow government see annals congress civil war congress passed first act authorizing executive suspension writ habeas corpus see act mar stat relief many thought president lincoln unauthorized proclamations suspension proclamation stat unconstitutional later presidential proclamations suspension relied upon congressional authorization proclamation stat reconstruction congress passed ku klux klan act included provision authorizing suspension writ invoked president grant quelling rebellion nine south carolina counties see act apr ch stat proclamation compilation messages papers presidents richardson ed hereinafter messages papers two later acts congress provided broad suspension authority governors possessions philippine civil government act provided governor philippines suspend writ case rebellion insurrection invasion act july ch stat writ suspended nine months proclamation governor see fisher baker hawaiian organic act likewise provided governor hawaii suspend writ case rebellion invasion threat thereof ch stat iii course extensive historical evidence criminal convictions habeas suspensions necessarily refute government position case writ suspended government entirely free judicial oversight claim total liberation argues need produce calls evidence satisfy habeas detained individual enemy combatant see brief respondents even suspension writ one hand committal criminal charges hand traditional means dealing citizens levied war country theoretically possible constitution require choice alternatives believe however substantial evidence refute possibility first text habeas corpus act makes clear indefinite imprisonment reasonable suspicion available option treatment accused aiding enemy absent suspension writ act read enforc ing common law ex parte watkins pet shaped early understanding scope writ noted see supra act specifically addressed committed high treason provided remedy indicted tried second succeeding term remedy bobtailed judicial inquiry whether reasonable grounds believe prisoner taken arms king rather prisoner indicted tried within prescribed time shall discharged imprisonment car act contain exception wartime omission conspicuous since explicitly addresses offense high treason often involved offenses military nature see cases cited supra writings founding generation also suggest without exception constitutional alternatives charge crime suspend writ thomas jefferson wrote james madison questioning need suspension clause cases rebellion proposed constitution letter illustrates constraints founders understood operate suspend hab insurrections rebellions parties may arrested may charged instantly well defined crime course judge remand publick safety requires government man imprisoned less probable testimony emergencies let taken tried retaken retried necessity continues giving redress government damages papers thomas jefferson july boyd ed similar view reflected house debates suspension armed uprising came known burr conspiracy regard persons may implicated conspiracy writ habeas corpus suspended consequence apprehended brought justice decide whether evidence justify commitment farther prosecution communication executive appeared sufficient evidence authorize commitment several months elapse final trial give time collect evidence shall sufficient fail receive punishment merited crimes inflicted laws country annals congress remarks burwell absence military authority imprison citizens indefinitely wartime whether probability treason established means less jury trial confirmed three cases decided immediately war first stacy johns citizen taken military custody suspicion carrying provisions giving information enemy emphasis deleted stacy petitioned writ habeas corpus defendant custodian attempted avoid complying chief justice kent ordered attachment kent noted military without color authority military tribunal try citizen crime holding closest confinement contemning civil authority state two cases later cited approval ex parte milligan wall upheld verdicts false imprisonment military officers smith shaw johns affirmed award damages detention citizen suspicion among things enemy spy time war held one offences charged shaw cognizable except related spy american citizen charged offence might amenable civil authority treason punished martial law spy ibid defendant justifiable every citizen time war equally exposed like exercise military power authority finally hampton johns jury awarded false imprisonment military officer confined citizen charges treason judges appeal question verdict found damages excessive part appear defendant knew plaintiff citizen spencer see generally wuerth president power detain enemy combatants modern lessons madison forgotten war nw rev forthcoming available clerk case file president lincoln purported suspend habeas corpus without congressional authorization civil war apparently doubt suspension required prisoner held without criminal trial famous message congress july argued suspend writ even without suspension imprisonment citizens without criminal trial permitted see special session message messages papers evidence comes decision ex parte milligan supra issued writ american citizen tried military commission offenses included conspiring overthrow government seize munitions liberate prisoners war rejected uncertain terms government assertion military jurisdiction proper usages war serve useful purpose inquire laws usages whence originated found operate never applied citizens upheld authority government courts open process unobstructed milligan exactly case course since petitioner threatened death merely imprisonment reasoning conclusion milligan logically cover present case government justifies imprisonment hamdi principles law war admits absent war authority law war applied citizens courts open hamdi imprisonment without criminal trial less unlawful milligan trial military tribunal milligan responded argument repeated government case dangerous leave suspected traitors large time war dangerous distracted condition affairs leave milligan unrestrained liberty government afforded aid comfort rebels incited people insurrection law said arrest confine closely render powerless mischief present case grand jury district proofs guilt indicted try according course common law done constitution vindicated law enforced securities personal liberty preserved defended thus criminal process viewed primary means means absent congressional action suspending writ punish traitors incapacitate proposition executive lacks indefinite wartime detention authority citizens consistent founders general mistrust military power permanently executive disposal founders view blessings liberty threatened military establishments must gradually poison fountain federalist madison fewer issues federalist devoted whole part allaying fears oppression proposed constitution authorization standing armies peacetime many safeguards constitution reflect concerns congress authority raise support armies hedged proviso appropriation money use shall longer term two years art cl except actual command military forces authorization maintenance explicit authorization use placed control congress article rather president article ii hamilton explained president military authority much inferior british king amount nothing command direction military naval forces first general admiral confederacy british king extends declaring war raising regulating fleets armies constitution consideration appertain legislature federalist view constitution gives executive authority use military force rather force law citizens american soil flies face mistrust engendered provisions iv government argues recent jurisprudence ratifies indefinite imprisonment citizen within territorial jurisdiction federal courts places primary reliance upon ex parte quirin world war ii case upholding trial military commission eight german saboteurs one hans haupt citizen case finest hour upheld commission denied relief brief per curiam issued day oral argument concluded see unnumbered note week later government carried commission death sentence upon six saboteurs including haupt eventually explained reasoning written opinion issued several months later three paragraphs lengthy opinion dealt particular circumstances haupt case see government argued haupt like petitioners tried military commission laws war agreeing contention quirin purported interpret language milligan quoted law war never applied citizens upheld authority government courts open process unobstructed following manner elsewhere opinion pains point milligan citizen twenty years resident indiana never resident rebellion enemy belligerent either entitled status prisoner war subject penalties imposed upon unlawful belligerents construe statement inapplicability law war milligan case particular reference facts concluded milligan part associated armed forces enemy subject law war view seeks revise milligan rather describe milligan involved among issues two separate questions whether military trial milligan justified laws war whether president suspension writ pursuant congressional authorization prevented issuance habeas corpus categorical language law war inapplicability citizens courts open exception mentioned citizens prisoners war contained discussion first point see factors pertaining whether milligan reasonably considered belligerent prisoner war mentioned earlier opinion see made relevant brought bear later discussion see whether milligan came within statutory provision effectively made exception congress authorized suspension writ described parties prisoners war resident respective jurisdictions citizens administration laws federal tribunals unimpaired milligan thus understood accord traditional law habeas corpus described though treason often occurred wartime absent provision special treatment congressional suspension writ exception right trial jury citizens called belligerents prisoners war even quirin gave correct description milligan made irrevocable revision quirin still justify denial writ quirin uncontested petitioners members enemy forces admitted enemy invaders emphasis added undisputed landed service german forces specific holding upon conceded facts petitioners plainly within boundaries military jurisdiction emphasis added jurisdictional facts conceded petitioner insists belligerent quirin left law place absent suspension writ citizen held courts open entitled either criminal trial judicial decree requiring follows said hamdi entitled habeas decree requiring release unless criminal proceedings promptly brought congress suspended writ habeas corpus suspension writ course lay conditions continued detention similar today opinion prescribes due process clause cf act mar stat world difference people representatives determining need suspension prescribing conditions plurality finds justification hamdi imprisonment authorization use military force stat provides president authorized use necessary appropriate force nations organizations persons determines planned authorized committed aided terrorist attacks occurred september harbored organizations persons order prevent future acts international terrorism nations organizations persons remotely congressional suspension writ one claims contrary plurality view think statute even authorizes detention citizen clarity necessary satisfy interpretive canon statutes construed avoid grave constitutional concerns see edward debartolo florida gulf coast building constr trades council clarity necessary comport cases ex parte endo duncan kahanamoku clarity necessary overcome statutory prescription citizen shall imprisoned otherwise detained except pursuant act congress even permit overcome hamdi entitlement habeas corpus relief suspension clause constitution carefully circumscribes conditions writ withheld sham evaded congressional prescription requirements requirement committal criminal prosecution render writ though available unavailing suspension clause guarantee citizen either tried released unless conditions suspending writ exist grave action suspending writ taken merely guarantees citizen detained unless congress ordinary legislation says detained guarantees little indeed thought however plurality evisceration suspension clause augments principally power congress usual major effect constitutional improvisation increase power found congressional authorization detention citizens none clearly exists discarded categorical procedural protection suspension clause plurality proceeds guise due process clause prescribe procedural protections thinks appropriate weigh private interest government asserted interest ante internal quotation marks omitted though writing new constitution comes system citizen rather government bears burden proof testimony hearsay rather live witnesses presiding officer may well neutral military officer rather judge jury see ante claims authority engage sort judicious balancing mathews eldridge case involving withdrawal disability benefits whatever merits technique newly recognized property rights issue even questionable place constitution common law already supply answer distorted suspension clause plurality finishes transmogrifying great writ disposing present habeas petition remanding district engag factfinding process prudent incremental ante absence executive prior provision procedures satisfy due process receives petition writ habeas corpus alleged enemy combatant must ensure minimum requirements due process achieved ante judicial remediation executive default unheard role habeas corpus determine legality executive detention supply omitted process necessary make legal see preiser rodriguez essence habeas corpus attack person custody upon legality custody traditional function writ secure release illegal custody blackstone habeas function make illegal detention legal supplying process government provided chose hamdi imprisoned violation constitution without due process law habeas petition granted executive may hand criminal authorities whose detention purpose prosecution lawful else must release certain harmony approach plurality making congress failure invoke suspension clause making executive failure apply says needed procedures approach reflects might called mentality plurality seems view mission make everything come right rather merely decree consequences far individual rights concerned two branches actions omissions legislature failed suspend writ current dire emergency well remedy failure prescribing reasonable conditions suspension included executive failed live reasonable conditions well make failure good dangerous fellow dangerous need set free problem approach steps courts modest limited role democratic society repeatedly thinks political branches encourages lassitude saps vitality government people vi several limitations give views matter relatively narrow compass apply citizens accused enemy combatants detained within territorial jurisdiction federal likely numerous group currently know two hamdi jose padilla citizen captured outside held outside constitutional requirements may different cf johnson eisentrager reid covert harlan concurring result rasul bush ante scalia dissenting moreover even within accused combatant may lawfully detained prosecution progress contemplation see county riverside mclaughlin brief detention pending judicial determination warrantless arrest salerno pretrial detention bail reform act government notably successful securing conviction hence custody execution waged war state frankly know whether tools sufficient meet government security needs including need obtain intelligence interrogation far beyond competence competence determine beyond congress situation demands executive ask congress authorize suspension writ made subject whatever conditions congress deems appropriate including even procedural novelties invented plurality today sure suspension limited constitution cases rebellion invasion whether attacks september constitute invasion whether attacks still justify suspension several years later questions congress rather see story civil rights curtailed wartime must done openly democratically constitution requires rather silent erosion opinion founders well understood difficult tradeoff safety freedom safety external danger hamilton declared powerful director national conduct even ardent love liberty time give way dictates violent destruction life property incident war continual effort alarm attendant state continual danger compel nations attached liberty resort repose security institutions tendency destroy civil political rights safe length become willing run risk less free federalist founders warned us risk equipped us constitution designed deal many think inevitable entirely proper liberty give way security times national crisis extremes military exigency inter arma silent leges whatever general merits view war silences law modulates voice view place interpretation application constitution designed precisely confront war manner accords democratic principles accommodate proceeded meet current emergency manner constitution envision respectfully dissent yaser esam hamdi esam fouad hamdi next friend yaser esam hamdi ers donald rumsfeld secretary defense et al writ certiorari appeals fourth circuit june justice thomas dissenting executive branch acting pursuant powers vested president constitution explicit congressional approval determined yaser hamdi enemy combatant detained detention falls squarely within federal government war powers lack expertise capacity decision petitioners habeas challenge fail reason remand case plurality reaches contrary conclusion failing adequately consider basic principles constitutional structure relates national security foreign affairs using balancing scheme mathews eldridge think federal government war powers balanced away arguably congress provide additional procedural protections right insist upon even agree general approach plurality takes accept particulars plurality utterly fails account government compelling interests institutional inability weigh competing concerns correctly respectfully dissent unarguable governmental interest compelling security nation haig agee quoting aptheker secretary state national security primary responsibility purpose federal government see youngstown sheet tube sawyer clark concurring judgment federalist pp cooke ed hamilton principle purposes answered union common defence members preservation public peace well internal convulsions external attacks founders understood foresee myriad potential threats national security might later arise chose create federal government necessarily possesses sufficient power handle threat security nation power protect nation exist without limitation ecause impossible foresee define extent variety national exigencies correspondent extent variety means may necessary satisfy circumstances endanger safety nations infinite reason constitutional shackles wisely imposed power care committed see also federalist nos founders intended president primary responsibility along necessary power protect national security conduct nation foreign relations principally structural advantages unitary executive essential domains energy executive leading character definition good government essential protection community foreign attacks federalist hamilton principle ingredien energy executive unity ecision activity secrecy dispatch generally characterise proceedings one man much eminent degree proceedings greater number ibid structural advantages important contexts cares concerns government direction war peculiarly demands qualities distinguish exercise power single hand federalist hamilton also reasons john marshall explained president sole organ nation external relations sole representative foreign nations annals cong see end constitution vests president executive power art ii provides shall commander chief armed forces places power recognize foreign governments long recognized features accordingly held president constitutional authority protect national security authority carries broad discretion war made invasion foreign nation president authorized bound resist force force initiate war bound accept challenge without waiting special legislative authority whether president fulfilling duties commander suppressing insurrection met armed hostile resistance question decided prize cases black acknowledged president authority employ nation armed forces manner may deem effectual harass conquer subdue enemy fleming page respect foreign affairs well recognized president independent authority need free interference see export explaining president confidential sources information agents form diplomatic consular officials secrecy respect information gathered may highly necessary premature disclosure productive harmful results chicago southern air lines waterman congress sure substantial essential role foreign affairs national security crucial recognize judicial interference domains destroys purpose vesting primary responsibility unitary executive improve justice jackson words speaking president nation organ foreign affairs available intelligence services whose reports published world intolerable courts without relevant information review perhaps nullify actions executive taken information properly held secret courts sit camera order taken executive confidences even courts require full disclosure nature executive decisions foreign policy political judicial decisions wholly confided constitution political departments government executive legislative delicate complex involve large elements prophecy undertaken directly responsible people whose welfare advance imperil decisions kind judiciary neither aptitude facilities responsibility long held belong domain political power subject judicial intrusion inquiry ibid several points made forcefully justice jackson worth emphasizing first respect certain decisions relating national security foreign affairs courts simply lack relevant information expertise determinations made president based information properly withheld second even courts compel executive produce necessary information decisions simply amenable judicial determination hey delicate complex involve large elements prophecy ibid third chicago southern air lines elsewhere correctly recognized primacy political branches contexts institutional reasons congress anticipate legislate regard every possible action president may find necessary take every possible situation might act come surprise uch failure congress areas foreign policy national security imply disapproval action taken executive dames moore regan quoting agee rather domains fact congress provided president broad authorities imply judicial branch infer congress intended deprive particular powers specifically enumerated see dames moore far courts concerned enactment legislation closely related question president authority particular case evinces legislative intent accord president broad discretion may considered independent presidential responsibility ibid quoting youngstown jackson concurring finally reasons president acts pursuant express implied authorization congress exercises powers also delegated congress case executive action supported strongest presumptions widest latitude judicial interpretation burden persuasion rest heavily upon might attack dames moore supra quoting youngstown supra jackson concurring explained case analogous one detention ordered president declared exercise powers commander chief army time war grave public danger set aside courts without clear conviction conflict constitution laws congress constitutionally enacted ex parte quirin see also ex parte milligan wall chase concurring judgment stating sentence imposed military commission must set aside except upon clearest conviction reconciled constitution constitutional legislation congress deference extends president determination factual predicates necessary conclude given action appropriate see quirin supra concerned question guilt innocence petitioners see also hirabayashi prize cases black martin mott wheat sure times held specific circumstances military acted beyond warmaking authority cases distinguishable important ways ex parte endo held unlawful detention admittedly loyal american japanese ancestry government asserted reason detention nothing congressional executive authorities upon government relied authorities permitted detention purpose preventing espionage sabotage thus pressed service detaining loyal citizen see stress ed silence relevant act executive orders emphasis added see also sensibly held government detain loyal citizen pursuant executive congressional authorities conceivably implicated given government factual allegations youngstown justice jackson emphasized congress ha left seizure private property open field ha covered three statutory policies inconsistent th seizure concurring opinion see also milligan supra chase concurring judgment noting government failed comply statute directly point acknowledge question whether hamdi executive detention lawful question properly resolved judicial branch though question comes strongest presumptions favor government plurality agrees hamdi detention lawful enemy combatant question whether hamdi actually enemy combatant kind judiciary neither aptitude facilities responsibility long held belong domain political power subject judicial intrusion inquiry chicago southern air lines although appropriate determine judicial question whether president asserted authority see ex parte endo supra lack information expertise question whether hamdi actually enemy combatant question resolution committed words scalia old testament days judges ruled people israel led battle professing belief order halt military operation foreign lands might startling phenomenon modern times country governmental functions committed elected delegates people assertion jurisdiction extraordinary ourt decision today reflects willingness extend judicial power areas know way finding serious harm may ramirez de arellano weinberger cadc en banc dissenting opinion omitted see also noting ven ancient israelites eventually realized shortcomings judicial decision whether someone enemy combatant doubt delicate complex involv es large elements prophecy chicago southern air lines supra incidentally might part explain government never provided full criteria uses classifying individuals ante see also infra discussing military decisions ii war power national government power wage war successfully lichter quoting hughes war powers constitution follows power limited victories field carries inherent power guard immediate renewal conflict yamashita see also stewart kahn wall quite obviously includes ability detain even citizens fight troops allies see quirin winthrop military law precedents ed whiting war powers constitution ed noting civil war rebels may treated foreign belligerents see also ante although president well may inherent authority detain arrayed troops agree plurality need decide question congress authorized president see ante authorization use military force aumf stat authorizes president use necessary appropriate force nations organizations persons determines planned authorized committed aided terrorist attacks september indeed previously concluded language materially identical aumf authorizes executive make ordinary use soldiers may kill persons resist course may use milder measure seizing detaining bodies considers stand way restoring peace moyer peabody plurality however qualifies recognition president authority detain enemy combatants war terrorism ways odds precedent thus plurality relies primarily article geneva convention iii relative treatment prisoners war proposition clearly established principle law war detention may last longer active hostilities ante appears limit president authority detain requiring record establis troops still involved active combat afghanistan case detention part exercise appropriate force ante believe may diminish federal government war powers reference treaty certainly treaty apply see infra bound political branches determination war see ludecke watkins prize cases black mott case power detain end cessation formal hostilities see madsen kinsella johnson eisentrager cf moyer supra accordingly president action supported strongest presumptions widest latitude judicial interpretation dames moore internal quotation marks omitted question becomes whether federal government rather president acting alone power detain hamdi enemy combatant precisely must determine whether government may detain hamdi given procedures used iii agree plurality federal government power detain executive branch determines enemy combatants see ante think plurality adequately explained breadth president authority detain enemy combatants authority includes making virtually conclusive factual findings view structural considerations discussed recognized precedent demonstrate lack capacity responsibility determination makes complete sense process due hamdi made clear initial matter possible due process clause requires government must proceed according land according written constitutional statutory provisions winship black dissenting need go far today already explained nature due process context case strikingly similar one addressed governor authority detain extended period person executive believed responsible part local insurrection justice holmes wrote unanimous comes decision head state upon matter involving life ordinary rights individuals must yield deems necessities moment public danger warrants substitution executive process judicial process admitted regard killing men actual clash arms think obvious although disputed true temporary detention prevent apprehended harm moyer citation omitted emphasis added answered moyer claim denied due process emphasizing familiar due process law depends circumstances varies necessities situation thus summary proceedings suffice taxes executive decisions exclusion country arrests necessarily punishment way precaution prevent exercise hostile power citations omitted context due process requires nothing executive clear held executive acting pursuant statutory constitutional authority may consistent due process clause unilaterally decide detain individual executive deems necessary public safety even mistaken moyer exceptional case luther borden discussed president constitutional statutory authority response request state legislature executive call forth number militia state may applied may judge sufficient suppress insurrection quoting act explained courts review president decision recognize one competing legislatures executives see determination become duty provided came conclusion president decided incorrectly discharge arrested detained troops service ibid judicial power extends far concluded guarantee contained constitution referring art iv guarantee anarchy order ibid clearly contemplated president authority detain deemed necessary detentions evidently comported due process clause long president correctly decided call forth militia question said review also addressed natural concern placing power president dangerous liberty may abused noted power may abused placed unworthy hands explained difficult point hands power safe time equally effectual ibid putting aside emphasized power conferred upon constitution laws must therefore respected enforced judicial tribunals ibid finally explained president abused power power congress apply proper remedy courts must administer law find almost years later salerno explained due process clause lays categorical imperative continued repeatedly held government regulatory interest community safety appropriate circumstances outweigh individual liberty interest example times war insurrection society interest peak government may detain individuals government believes dangerous ibid cited ludecke watkins latter proposition even though ludecke actually involved detention enemy aliens see also selective draft law cases jacobson massachusetts upholding legislated mass vaccinations approving forced quarantines americans even show signs illness cf kansas hendricks juragua iron government asserted authority detain individual president determined enemy combatant least hostilities continue comports due process clause cases also show executive decision detention necessary protect public need subjected judicial indeed least context determinations defeat unity secrecy dispatch founders believed important warmaking function see part supra therefore agree justice scalia conclusion government must choose using standard criminal processes suspending writ see ante dissenting opinion justice scalia relies heavily upon ex parte milligan wall see ante three cases decided new york state courts wake war see ante admit milligan supports position executive branch unlike follow specific statutory mechanism provided congress need reach broader question congress power discussion point arguably dicta see four justices believed see chase joined wayne swayne miller concurring judgment importantly referred frequently pervasively criminal nature proceedings instituted milligan fact feature serves distinguish state cases well see stacy johns military commander assuming criminal jurisdiction private citizen emphasis added smith shaw johns shaw might amenable civil authority treason punished martial law spy emphasis added hampton johns treason although acknowledge reasoning cases might apply beyond criminal punishment distinction harmonizes precedent subsequent cases least implicitly distinguished milligan way see moyer arrests necessarily punishment way precaution finally quirin overruled milligan extent cases inconsistent see quirin limiting milligan facts government detain hamdi order punish plurality acknowledges see ante milligan new york cases control justice scalia also finds support letter thomas jefferson wrote james madison see ante agree provides evidence position think plainly insufficient rebut authorities upon relied event believe justice scalia evidence leads necessary clear conviction detention conflict constitution laws congress constitutionally enacted quirin supra justify nullifying president wartime action finally justice scalia position raises additional concern justice scalia apparently disagree federal government power necessary protect nation criminal processes suffice however justice scalia require congress suspend writ see ante fact writ may suspended unless cases rebellion invasion public safety may require art cl poses two related problems first condition might obtain many emergencies detention authority might necessary congress choose acting depriving president tools needs protect nation second see suspension make constitutional otherwise unconstitutional detentions ordered president simply removes remedy justice scalia position might therefore require one political branches act unconstitutionally order protect nation power protect nation must power lawfully accordingly conclude government detention hamdi enemy combatant violate constitution detaining hamdi president prosecution war authorized congress acted well within authority hamdi thereby received process due circumstances therefore believe occasion balance competing interests plurality unconvincingly attempts iv although agree plurality balancing approach mathews eldridge appropriate analytical tool analyze help explain plurality misapplies chosen framework one applied correctly probably lead result reached plurality devotes two paragraphs discussion government interest though much two paragraphs explain government concerns misplaced see ante unarguable governmental interest compelling security nation agee quoting aptheker moyer recognized paramount importance governor interest tranquility colorado town issue far significant interest security nation government seeks interest detaining enemy soldier prevent rejoining ongoing fight rather government explains detention serve gather critical intelligence regarding intentions capabilities adversaries function government avers become important war terrorism see brief respondents app additional process government explains destroy intelligence gathering function brief respondents also seem quite likely process envisioned plurality various military officials take time litigate matter though plurality say meaningful ability challenge government factual allegations probably require government divulge highly classified information purported enemy combatant might upon release return fight armed closely held secrets plurality manages avoid problems discounting entirely ignoring spending sentences putatively describing government interests plurality simply assures government alleged burdens properly taken account due process analysis ante plurality also announces risk erroneous deprivation detainee liberty interest unacceptably high government proposed rule ante internal quotation marks omitted particular reason believe federal courts relevant information expertise make judgment reasons discussed part supra every reason think courts make decisions plurality next opines think unlikely basic process dire impact central functions warmaking government forecasts ante apparently limiting hearings alleged combatant acts hearings meddl little strategy conduct war ante course meaning combatant acts may become clear quite invasive extensive inquiry federal courts simply situated make judgments ultimately plurality dismissive treatment government asserted interests arises apparent belief determinations part actual prosecution war one central functions warmaking ante seems wrong taking holding enemy combatants quintessential aspect prosecution war see ante quirin moreover highlights serious difficulties applying plurality balancing approach first war context know neither strength government interests costs imposing additional process second least difficult explain result different military operations plurality ostensibly recognize central functions warmaking plurality recounts parties whose rights affected entitled heard order may enjoy right must first notified equally fundamental right notice opportunity heard must granted meaningful time meaningful manner ante internal quotation marks omitted see also ibid notice government factual assertions fair opportunity rebut assertions neutral decisionmaker essential elements due process decision bomb particular target might extinguish life interests plurality analysis seems require notice potential targets take one example november central intelligence agency cia predator drone fired hellfire missile vehicle yemen carrying al qaeda leader citizen four others see priest cia killed citizen yemen missile strike washington post clear whether cia knew american vehicle plurality due process seem require notice opportunity respond well cf tennessee garner offer examples think plurality demand additional process situations clearly result realize many military operations sense necessary many merely expedient see principled distinction military operation plurality condemns today holding enemy combatant based process given hamdi variety military operations truth doubt sensible distinction argued bombings missile strikes inherent part war long forces violate laws war constitutional moment civilians might killed serve distinguish case also consistent laws war detain enemy combatants exactly government detained fact bolsters argument part iii extent laws war show power detain part sovereign war powers undeniably hamdi deprived serious interest one actually protected due process clause however government overriding interest protecting nation deprivation liberty justified need protect town protection nation fortiori justifies acknowledge plurality approach might times appropriate give detainees access counsel notice factual basis government determination see ante properly accounting government interests also requires concluding access counsel factual basis always warranted though common sense suffices government thoroughly explains counsel often destroy intelligence gathering function see brief respondents see also app affidavit woolfolk equally obvious government interest fighting war courts see johnson eisentrager president authority classify control access information bearing national security determine gets access flows primarily clause exists quite apart explicit congressional grant agee upholding revocation former cia employee passport large part reference government need protect secrecy foreign intelligence operations reasons affirm judgment appeals yaser esam hamdi esam fouad hamdi next friend yaser esam hamdi ers donald rumsfeld secretary defense et al writ certiorari appeals fourth circuit june justice souter justice ginsburg joins concurring part dissenting part concurring judgment according yaser hamdi petition writ habeas corpus brought behalf father government detaining american citizen american soil explanation seized field battle afghanistan enemy side undisputed government charged espionage treason crime domestic law likewise undisputed one year nine months basis executive designation hamdi enemy combatant government denied right send receive communication beyond prison held particular denied access counsel represent government asserts right hold hamdi conditions indefinitely government determines longer threatened terrorism exemplified attacks september proceedings hamdi petition seeks challenge facts claimed government basis holding enemy combatant presses distinct argument government claim even true implicate authority holding satisfy act bars imprisonment detention citizen except pursuant act congress government responds hamdi incommunicado imprisonment enemy combatant seized field battle falls within president power commander chief laws usages war event authorized two statutes accordingly government contends hamdi basis challenge petition habeas except status enemy combatant even challenge may go enquire whether evidence supports hamdi designation see brief respondents evidence hamdi remain locked discretion executive argument case fact government went suggested long prisoner challenge enemy combatant designation responding interrogation incommunicado detention accorded sufficient process support designation enemy combatant see tr oral arg opportunity explain words uring interrogation since either view judicial enquiry limited virtually worthless way contest detention government concession jurisdiction hear hamdi habeas claim theoretical practical leaving assertion executive authority close unconditional plurality rejects limit exercise habeas jurisdiction far agree opinion plurality however accept government position hamdi designation enemy combatant correct detention least period authorized act congress required authorization use military force stat hereinafter force resolution ante disagree respectfully dissent government failed demonstrate force resolution authorizes detention complained even facts government claims government raises nothing record shows act entitles hamdi released government first response hamdi claim holding violates prohibiting detention citizens except pursuant act congress statute even apply military wartime detentions beyond sphere domestic criminal law next government says even statute apply two acts congress provide authority demands general authorization department defense pay detaining prisoners war similar persons force resolution passed attacks time government argues detaining hamdi manner described president event acting commander chief article ii constitution brings right invoke authority accepted customary rules waging war record front us government made case theory ii threshold issue broadly narrowly read act tone severe citizen shall imprisoned otherwise detained except pursuant act congress severity act relieved government stated factual justification incommunicado detention war terrorism government may said act pursuant congressional terms fall short explicit authority imprison individuals one possible though important qualification see infra answer number reasons prohibition within read broadly accord statute long reach impose burden justification government first circumstances act adopted point way interpretation provision superseded statute emergency detention act formerly et seq ed authorized attorney general time emergency detain anyone reasonably thought likely engage espionage sabotage statute repealed fear authorize repetition world war ii internment citizens japanese ancestry congress meant preclude another episode like one described korematsu see pp congress might simply struck statute considering repealer point made existing statute provided express procedural protection without executive seem subject statutory limits protecting individual liberty see mere repeal might leave citizens subject arbitrary executive action clear demarcation limits executive authority cong rec emergency detention act remains existing barrier future exercise executive power resulted japanese internment cf absence procedural provisions even virtually leave us stripped naked great power president circumstances proposed limit executive action expanded inclusive scope enacted fact congress intended guard repetition world war ii internments repealed statute gave us provides powerful reason think meant require clear congressional authorization citizen placed cell merely legislative history shows thought necessary anticipation times like present safety country threatened appreciate significant one must recall internments accomplished executive action although act congress ratified confirmed executive order authorizing military exclude individuals defined areas accommodate might remove see ex parte endo statute said nothing whatever detention might removed internment camps creatures executive confinement rested assertion executive authority see therefore congress repealed act adopted purpose avoiding another korematsu intended preclude reliance vague congressional authority example providing accommodations subject removal authority detention imprisonment discretion executive maintaining detention camps american citizens example requiring executive detention pursuant act congress congress necessarily meant require congressional enactment clearly authorized detention imprisonment second congress passed acting light interpretive regime subjected enactments limiting liberty wartime requirement clear statement presumably intended read accordingly need clarity unmistakably expressed ex parte endo supra decided day korematsu endo began petition habeas corpus interned citizen claiming loyal thus unlawfully detained petitioner held entitled habeas relief opinion set principle scrutinizing wartime statutes derogation customary liberty interpreting wartime measure must assume purpose allow greatest possible accommodation liberties exigencies war must assume asked find implied powers grant legislative executive authority law makers intended place greater restraint citizen clearly unmistakably indicated language used congress understanding need clear authority citizens kept detained therefore clear must read teeth demand congressional authorization finally even history spared us cautionary example internments world war ii even korematsu endo set principle statutory interpretation compelling reason read demand manifest authority detain detention authorized defining character american constitutional government constant tension security liberty serving partial helpings government separated powers deciding finally reasonable degree guaranteed liberty whether peace war condition well entrusted executive branch government whose particular responsibility maintain security reasons inescapable human nature branch government asked counter serious threat branch rest nation entire reliance striking balance win cost liberty way victory responsibility security naturally amplify claim security legitimately raises reasonable balance likely reached judgment different branch madison said remarking constant aim divide arrange several offices manner may check private interest every individual may sentinel public rights federalist cooke ed hence need assessment congress citizens subject lockup likewise need clearly expressed congressional resolution competing claims iii principle reading robustly require clear statement authorization detain none government arguments suffices justify hamdi detention first argument even apply wartime military detentions position resting placement title code gathering federal criminal law text statute however limit reach legislative history provision shows placement title meant render statute restricted terms draft contained original bill prohibited imprisonment unauthorized title see response department justice objection original draft seemed assume wrongly provisions detention convicted persons contained title provision amended replacing reference title reference act congress committee judiciary discussing change stated limiting detention citizens situations act congres exists assure detention camps established without least acquiescence congress see also supra understanding amended bill sweep beyond imprisonment crime apply executive detention furtherance wartime security emphasized extended debate representative ichord chairman house internal security committee opponent bill feared redrafted statute deprive president emergency powers effective means coping sabotage espionage agents crises cong representative railsback bill sponsor spoke bill absolute terms order prohibit arbitrary executive action bill assures detention citizens undertaken executive without prior consent congress legislative history indicates congress aware limit executive power detain citizens wartime protect national security fair say prohibition thus intended extend exercise power vindicate interests underlying domestic criminal law statutorily unauthorized detention executive reasons security wartime hamdi next government claim accepted terms force resolution adequate authorize detention enemy combatant circumstances claim government fails support sufficiently satisfy read require clear statement authority detain since force resolution adopted one week attacks september naturally speaks generality focus clear use military power fairly read authorize use armies weapons whether armies individual terrorists like statute discussed endo never much uses word detention reason think congress might perceived need augment executive power deal dangerous citizens within given statutory arsenal defined criminal offenses covering gamut actions citizen sympathetic terrorists might commit see material support various terrorist acts material support foreign terrorist organization use weapon mass destruction including conspiracy attempt acts terrorism transcending national boundaries including threats conspiracy attempt supp financing certain terrorist acts see also pretrial detention see generally brief janet reno et al amici curiae rumsfeld padilla pp listing tools available executive fight terrorism even without power government claims brief louis henkin et al amici curiae rumsfeld padilla even one argument treating force resolution sufficiently clear authorize detention citizen consistently assuming argument sound however government position claim advantage force resolution authorizes use military force acts war argument goes reasonably clear military commander chief authorized deal enemy belligerents according treaties customs known collectively laws war brief respondents see ante accepting argument accordingly may detain captured enemies ex parte quirin may perhaps claimed proposition american citizenship captive limit government power deal usages war thus government repeatedly argues hamdi detention amounts nothing customary detention captive taken field battle usages war fairly authorized force resolution hamdi detention authorized purposes need however address merits argument possible circumstances enough recognize government stated legal position campaign taliban among hamdi allegedly captured apparently odds claim acting accordance mary law war hence within terms force resolution detention hamdi statement legal position cited brief government says geneva convention applies taliban detainees office white house press secretary fact sheet status detainees guantanamo visited june available clerk case file hereinafter white house press release cited brief respondents hamdi presumably detainee since according government account taken bearing arms taliban side field battle afghanistan therefore seem qualify treatment prisoner war third geneva convention party article geneva convention iii relative treatment prisoners war holding incommunicado however government obviously treating prisoner war fact government claims taliban detainee entitled prisoner war status see brief respondents white house press release treatment appears violation geneva convention provision even cases doubt captives entitled treated prisoners war time status determined competent tribunal art government answers president determination taliban detainees qualify prisoners war conclusive hamdi status removes doubt trigger application convention tribunal requirement see brief respondents reliance categorical pronouncement settle doubt apparently odds military regulation enemy prisoners war retained personnel civilian internees detainees army reg adopted implement geneva convention setting detailed procedure military tribunal determine individual status see competent tribunal shall composed three commissioned officers written record shall made proceedings roceedings shall open certain exceptions ersons whose status determined shall advised rights beginning hearings allowed attend open sessions allowed call witnesses reasonably available question witnesses called tribunal right testify tribunal shall determine status reponderance evidence one types doubt tribunals meant settle whether given individual may hamdi says nnocent civilian immediately returned home released regulation jointly promulgated headquarters departments army navy air force marine corps provides ersons determined competent tribunal entitled prisoner war status may executed imprisoned otherwise penalized without proceedings determine acts committed penalty imposed regulation also incorporates geneva convention presumption cases doubt persons shall enjoy protection convention time status determined competent tribunal thus reason question whether acting accordance laws war claims authority whether degree government fact violating geneva convention thus acting outside customary usages war matters resolve point say though government made claim detaining hamdi manner described acting accord laws war authorized applied citizens force resolution conclude accordingly government failed support position force resolution authorizes described detention hamdi purposes worth adding reason requiring government bear burden clearly justifying claim exercising recognized war powers declaring satisfied days adopting force resolution congress passed statute entitled uniting strengthening america providing appropriate tools required intercept obstruct terrorism act usa patriot act stat act authorized detention alien terrorists seven days absence criminal charges deportation proceedings supp difficult believe congress carefully circumscribed executive power alien terrorists home soil meant require government justify clearly detention american citizen held home soil incommunicado since government given reason either deflect application hold satisfied need go government hints constitutional challenge statute presents none however stray across line statutory constitutional territory far enough note weakness government mixed claim inherent extrastatutory authority combination article ii constitution usages war fact connection government developed argument exercise war powers justifies detention said inadequacy applies well beyond instructive recall justice jackson observation president commander chief country military youngstown sheet tube sawyer concurring opinion see also presidential authority lowest ebb president acts contrary congressional may room one qualification justice jackson statement however moment genuine emergency government must act time deliberation executive may able detain citizen reason fear imminent threat safety nation people though doubt want statutory authority see supra case however present question emergency power necessity must least limited emergency hamdi locked two years cf ex parte milligan wall martial law justified actual present necessity genuine invasion closes civilian courts whether insisting careful scrutiny emergency claims vigorous reading heirs tradition given voice years ago magna carta barons insistence confined executive power law land iv find hamdi detention forbidden unauthorized force resolution reach questions process may due litigating disputed issues proceeding habeas statute prior habeas enquiry suffices government failed justify holding absence act congress criminal charges showing detention conforms laws war demonstration unconstitutional therefore vacate judgment appeals remand proceedings consistent view since disposition command majority however need give practical effect conclusions eight members rejecting government position calls join plurality ordering remand terms closest impose see screws rutledge concurring result although think litigation hamdi status enemy combatant unnecessary terms plurality remand allow hamdi offer evidence enemy combatant least benefit opportunity go without saying joining plurality produce judgment adopt plurality resolution constitutional issues reach disagree plurality determinations given plurality view force resolution someone hamdi position entitled minimum notice government claimed factual basis holding fair chance rebut neutral decision maker see ante course disagree plurality affirmation hamdi right counsel see ante hand mean imply agreement government claim evidentiary presumption casting burden rebuttal hamdi see ante opportunity litigate military tribunal might obviate truncate enquiry habeas see ante subject qualifications join plurality judgment vacating fourth circuit judgment remanding case footnotes basis asserted detention military hamdi carrying weapon american troops foreign battlefield enemy combatant legal category enemy combatant elaborated upon great detail permissible bounds category defined lower courts subsequent cases presented hold hamdi constitutionally entitled process described need address time whether treaty guarantees similar access tribunal determination status footnotes shall discuss presently see infra purported limit language ex parte quirin whatever quirin effect milligan precedential value however undermine value indicator original meaning cf reid covert plurality opinion milligan remains one great landmarks history without bothering respond analysis plurality milligan turned large part upon defendant lack status milligan explicitly repeatedly said see ante neither true extent however status relevant milligan prisoners war received different statutory treatment conditional suspension effect two appeals cases world war ii cited government citizens detained without trial likewise involved petitioners conceded members enemy forces see territo colepaugh looney plurality complains territo case identified citizen captured foreign combat zone ante indeed cases must surely rare given constitutional tradition described burden upon find cases writ granted citizens country captured foreign battlefields upon carve exception citizens plurality complaint suggests find single case one enemy status admitted habeas denied plurality assertion quirin somehow clarifies milligan ante simply false discuss supra quirin propounded mistaken understanding milligan nonetheless holding limited case presented present record conceded facts thus avoided conflict earlier case see emphasis added plurality ignoring expressed limitation thinks beside point whether belligerency conceded found process necessarily jury trial verifies fact sufficient certainty ante whole point procedural guarantees bill rights limit methods government determine facts citizen disputes citizen liberty depends plurality claim quirin discussion milligan provides lear disavowal two false imprisonment cases war ante thus defies logic unlike plaintiffs cases haupt concededly member enemy force government also cites moyer peabody suit damages governor colorado violation due process detaining alleged ringleader rebellion quelled state militia governor declaration state insurrection contended suspension writ incident thereto ex parte moyer holding moyer peabody even assuming transferable detention state suspension federal detention without suspension simply long arrests made good faith honest belief needed order head insurrection action damages lie analysis forebear modern doctrine qualified immunity cf scheuer rhodes understanding moyer way moreover detention issue moyer lasted two half months see roughly length time permissible habeas corpus act see supra addition moyer peabody justice thomas relies upon luther borden case state legislature imposed martial law step even drastic suspension writ see post dissenting opinion martial law imposed case limited theatre active military operations war really prevails therefore courts closed ex parte milligan wall see also distinguishing luther plurality rejects need specific language detention ground detention alleged combatants fundamental incident waging war ante authorities support holding context present case irrelevant address detention american citizens naqvi doubtful status rev red cross plurality assertion detentions citizen alien combatants equally authorized basis law common sense citizens noncitizens even equally dangerous similarly situated see milligan supra johnson eisentrager rev stat alien enemy act captivity may consistent principles international law prove also complies restrictions constitution places american government treatment citizens authorities cited plurality deal detention citizens quirin territo already discussed rejected see supra remaining authorities pertain detention citizens civil war irrelevant two reasons lieber code issued following congressional authorization suspension writ see instructions government armies field order reprinted lieber miscellaneous writings act mar stat citizens confederacy citizens also regarded citizens hostile power justice thomas worries constitutional conditions suspension writ exist many emergencies detention authority might necessary post difficult imagine situations security seriously threatened justify indefinite imprisonment without trial yet constitutional conditions rebellion invasion met footnotes although emphasized concerns president responsibilities also squarely implicated case government avers northern alliance forces captured hamdi district demanded government turn information relating statements made members northern alliance see argued habeas statutes evidence congressional intent enemy combatants entitled challenge factual basis government determination see factual development needed extent necessary resolve legal challenge detention see walker johnston indeed even clear required good faith see moyer alleged governor judgment honest material moyer detained fears insurrection end agree justice scalia review congress decision suspend writ see ante evidently neither parties cite mathews even hamdi detention comports laws war including geneva convention iii relative treatment prisoners war see brief respondents observations cast still doubt appropriateness usefulness mathews eldridge context example difficult see plurality insist hamdi unquestionably right access counsel connection proceedings remand new information become available government showing access pose grave risk national security event government need hold hearing depriving hamdi newly acquired right counsel even hearing pose grave threat footnotes government since february permitted hamdi consult counsel matter policy concede obligation allow brief respondents possible distinguish civilian military authority detain based congressional object avoiding another korematsu see brief respondents arguing military detentions exempt although civilian agency authorized executive order ran detention camps relocation detention american citizens ordered military authority president commander chief see ex parte endo world war ii internment thus ordered presidential power invoked intent bar repetition goes action taken authority claimed noted supra government argues required act congress found statutory authorization spend money appropriated care prisoners war similar prisoners enough say statute authorization spend money prisoners authorization imprison anyone provide occasion spending money even brief examination reported cases government chosen proceed criminally aided taliban shows government found shortage offenses allege see lindh supp ed khan supp ed