HAMDI et al. v.
RUMSFELD, SECRETARY OF DEFENSE, et Hamdi was captured in an active combat zone, no factual
al.
certiorari to the united states court of appeals for the
fourth circuit
No. 03-6696. Argued April 28, 2004--Decided June 28,
2004
For Petitioners Hamdi, et al.: Frank W. Dunham, Jr.
For Respondents Rumsfeld, et al.: Theodore Olson
After Congress passed a resolution--the Authorization for Use
of Military Force (AUMF)--empowering the President to "use all
necessary and appropriate force" against "nations,
organizations, or persons" that he determines "planned,
authorized, committed, or aided" in the September 11, 2001, al
Qaeda terrorist attacks, the President ordered the Armed Forces
to Afghanistan to subdue al Qaeda and quell the supporting
Taliban regime. Petitioner Hamdi, an American citizen whom the
Government has classified as an "enemy combatant" for
allegedly taking up arms with the Taliban during the conflict,
was captured in Afghanistan and presently is detained at a
naval brig in Charleston, S. C. Hamdi's father filed this habeas
petition on his behalf under 28 U. S. C. §2241, alleging, among
other things, that the Government holds his son in violation of
the Fifth and Fourteenth Amendments. Although the petition did
not elaborate on the factual circumstances of Hamdi's capture
and detention, his father has asserted in other documents in the
record that Hamdi went to Afghanistan to do "relief work" less
than two months before September 11 and could not have
received military training. The Government attached to its
response to the petition a declaration from Michael Mobbs
(Mobbs Declaration), a Defense Department official. The Mobbs
Declaration alleges various details regarding Hamdi's trip to
Afghanistan, his affiliation there with a Taliban unit during a
time when the Taliban was battling U. S allies, and his
subsequent surrender of an assault rifle. The District Court
found that the Mobbs Declaration, standing alone, did not
support Hamdi's detention and ordered the Government to turn
over numerous materials for in camera review. The Fourth
Circuit reversed, stressing that, because it was undisputed that
inquiry or evidentiary hearing allowing Hamdi to be heard or to
rebut the Government's assertions was necessary or proper.
Concluding that the factual averments in the Mobbs
Declaration, if accurate, provided a sufficient basis upon which
to conclude that the President had constitutionally detained
Hamdi, the court ordered the habeas petition dismissed. The
appeals court held that, assuming that express congressional
authorization of the detention was required by 18 U. S. C.
§4001(a)--which provides that "[n]o citizen shall be imprisoned
or otherwise detained by the United States except pursuant to
an Act of Congress"-- the AUMF's "necessary and appropriate
force" language provided the authorization for Hamdi's
detention. It also concluded that Hamdi is entitled only to a
limited judicial inquiry into his detention's legality under the war
powers of the political branches, and not to a searching review
of the factual determinations underlying his seizure.
Held: The judgment is vacated, and the case is remanded.
Justice O'Connor, joined by The Chief Justice , Justice
Kennedy, and Justice Breyer, concluded that although
Congress authorized the detention of combatants in the narrow
circumstances alleged in this case, due process demands that a
citizen held in the United States as an enemy combatant be
given a meaningful opportunity to contest the factual basis for
that detention before a neutral decisionmaker. Pp. 14-15.
Justice Souter, joined by Justice Ginsburg, concluded
that Hamdi's detention is unauthorized, but joined with the
plurality to conclude that on remand Hamdi should have a
meaningful opportunity to offer evidence that he is not an
enemy combatant. Pp. 2-3, 15.
O'Connor, J., announced the judgment of the Court and
delivered an opinion, in which Rehnquist, C. J., and Kennedy and
Breyer, JJ., joined. Souter, J., filed an opinion concurring in part,
dissenting in part, and concurring in the judgment, in which
Ginsburg, J., joined. Scalia, J., filed a dissenting opinion, in which
Stevens, J., joined. Thomas, J., filed a dissenting opinion.
YASER ESAM HAMDI and ESAM FOUAD HAMDI, as next
friend of YASER ESAM HAMDI, PETITIONERS v. DONALD
H. RUMSFELD, SECRETARY OF DEFENSE, et al.
 on writ of certiorari to the united states court of
appeals for the fourth circuit
[June 28, 2004]
Justice O'Connor announced the judgment of the Court
and delivered an opinion, in which The Chief Justice , Justice
Kennedy, and Justice Breyer join.
At this difficult time in our Nation's history, we are called
upon to consider the legality of the Government's detention of a
United States citizen on United States soil as an "enemy
combatant" and to address the process that is constitutionally
owed to one who seeks to challenge his classification as such.
The United States Court of Appeals for the Fourth Circuit held
that petitioner's detention was legally authorized and that he
was entitled to no further opportunity to challenge his enemy-
combatant label. We now vacate and remand. We hold that
although Congress authorized the detention of combatants in
the narrow circumstances alleged here, due process demands
that a citizen held in the United States as an enemy combatant
be given a meaningful opportunity to contest the factual basis
for that detention before a neutral decisionmaker.
I the petition that he has had no contact with his son since the
On September 11, 2001, the al Qaeda terrorist network
used hijacked commercial airliners to attack prominent targets
in the United States. Approximately 3,000 people were killed in
those attacks. One week later, in response to these "acts of
treacherous violence," Congress passed a resolution authorizing
the President to "use all necessary and appropriate force
against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks"
or "harbored such organizations or persons, in order to prevent
any future acts of international terrorism against the United
States by such nations, organizations or persons." Authorization
for Use of Military Force ("the AUMF"), 115 Stat. 224. Soon
thereafter, the President ordered United States Armed Forces to
Afghanistan, with a mission to subdue al Qaeda and quell the
Taliban regime that was known to support it.
This case arises out of the detention of a man whom the
Government alleges took up arms with the Taliban during this
conflict. His name is Yaser Esam Hamdi. Born an American
citizen in Louisiana in 1980, Hamdi moved with his family to
Saudi Arabia as a child. By 2001, the parties agree, he resided
in Afghanistan. At some point that year, he was seized by
members of the Northern Alliance, a coalition of military groups
opposed to the Taliban government, and eventually was turned
over to the United States military. The Government asserts that
it initially detained and interrogated Hamdi in Afghanistan
before transferring him to the United States Naval Base in
Guantanamo Bay in January 2002. In April 2002, upon learning
that Hamdi is an American citizen, authorities transferred him to
a naval brig in Norfolk, Virginia, where he remained until a
recent transfer to a brig in Charleston, South Carolina. The
Government contends that Hamdi is an "enemy combatant,"
and that this status justifies holding him in the United States
indefinitely--without formal charges or proceedings--unless and
until it makes the determination that access to counsel or
further process is warranted.
In June 2002, Hamdi's father, Esam Fouad Hamdi, filed the
present petition for a writ of habeas corpus under 28 U. S. C.
§2241 in the Eastern District of Virginia, naming as petitioners
his son and himself as next friend. The elder Hamdi alleges in
Government took custody of him in 2001, and that the
Government has held his son "without access to legal counsel or
notice of any charges pending against him." App. 103, 104. The
petition contends that Hamdi's detention was not legally
authorized. Id., at 105. It argues that, "[a]s an American citizen,
... Hamdi enjoys the full protections of the Constitution," and
that Hamdi's detention in the United States without charges,
access to an impartial tribunal, or assistance of counsel
"violated and continue[s] to violate the Fifth and Fourteenth
Amendments to the United States Constitution." Id., at 107. The
habeas petition asks that the court, among other things, (1)
appoint counsel for Hamdi; (2) order respondents to cease
interrogating him; (3) declare that he is being held in violation
of the Fifth and Fourteenth Amendments; (4) "[t]o the extent
Respondents contest any material factual allegations in this
Petition, schedule an evidentiary hearing, at which Petitioners
may adduce proof in support of their allegations"; and (5) order
that Hamdi be released from his "unlawful custody." Id., at 108-
109. Although his habeas petition provides no details with
regard to the factual circumstances surrounding his son's
capture and detention, Hamdi's father has asserted in
documents found elsewhere in the record that his son went to
Afghanistan to do "relief work," and that he had been in that
country less than two months before September 11, 2001, and
could not have received military training. Id., at 188-189. The
20-year-old was traveling on his own for the first time, his father
says, and "[b]ecause of his lack of experience, he was trapped
in Afghanistan once that military campaign began." Id., at 188-
189.
The District Court found that Hamdi's father was a proper
next friend, appointed the federal public defender as counsel for
the petitioners, and ordered that counsel be given access to
Hamdi. Id., at 113-116. The United States Court of Appeals for
the Fourth Circuit reversed that order, holding that the District
Court had failed to extend appropriate deference to the
Government's security and intelligence interests. 296 F. 3d 278,
279, 283 (2002). It directed the District Court to consider "the
most cautious procedures first," id., at 284, and to conduct a
deferential inquiry into Hamdi's status, id., at 283. It opined that
"if Hamdi is indeed an 'enemy combatant' who was captured
during hostilities in Afghanistan, the government's present
detention of him is a lawful one." Ibid.
On remand, the Government filed a response and a motion
to dismiss the petition. It attached to its response a declaration
from one Michael Mobbs (hereinafter "Mobbs Declaration"), who
identified himself as Special Advisor to the Under Secretary of
Defense for Policy. Mobbs indicated that in this position, he has
been "substantially involved with matters related to the
detention of enemy combatants in the current war against the
al Qaeda terrorists and those who support and harbor them
(including the Taliban)." App. 148. He expressed his
"familiar[ity]" with Department of Defense and United States
military policies and procedures applicable to the detention,
control, and transfer of al Qaeda and Taliban personnel, and
declared that "[b]ased upon my review of relevant records and
reports, I am also familiar with the facts and circumstances
related to the capture of ... Hamdi and his detention by U. S.
military forces." Ibid.
Mobbs then set forth what remains the sole evidentiary
support that the Government has provided to the courts for
Hamdi's detention. The declaration states that Hamdi "traveled
to Afghanistan" in July or August 2001, and that he thereafter
"affiliated with a Taliban military unit and received weapons
training." Ibid. It asserts that Hamdi "remained with his Taliban
unit following the attacks of September 11" and that, during the
time when Northern Alliance forces were "engaged in battle
with the Taliban," "Hamdi's Taliban unit surrendered" to those
forces, after which he "surrender[ed] his Kalishnikov assault
rifle" to them. Id., at 148-149. The Mobbs Declaration also
states that, because al Qaeda and the Taliban "were and are
hostile forces engaged in armed conflict with the armed forces
of the United States," "individuals associated with" those groups
"were and continue to be enemy combatants." Id., at 149.
Mobbs states that Hamdi was labeled an enemy combatant
"[b]ased upon his interviews and in light of his association with
the Taliban." Ibid. According to the declaration, a series of "U. S.
military screening team[s]" determined that Hamdi met "the
criteria for enemy combatants," and "a subsequent interview of
Hamdi has confirmed that he surrendered and gave his firearm
to Northern Alliance forces, which supports his classification as
an enemy combatant." Id., at 149-150.
After the Government submitted this declaration, the
Fourth Circuit directed the District Court to proceed in
accordance with its earlier ruling and, specifically, to " 'consider
the sufficiency of the Mobbs Declaration as an independent
matter before proceeding further.' " 316 F. 3d at 450, 462
(2003). The District Court found that the Mobbs Declaration fell
"far short" of supporting Hamdi's detention. App. 292. It
criticized the generic and hearsay nature of the affidavit, calling
it "little more than the government's 'say-so.' " Id., at 298. It
ordered the Government to turn over numerous materials for in
camera review, including copies of all of Hamdi's statements
and the notes taken from interviews with him that related to his
reasons for going to Afghanistan and his activities therein; a list
of all interrogators who had questioned Hamdi and their names
and addresses; statements by members of the Northern
Alliance regarding Hamdi's surrender and capture; a list of the
dates and locations of his capture and subsequent detentions;
and the names and titles of the United States Government
officials who made the determinations that Hamdi was an
enemy combatant and that he should be moved to a naval brig.
Id., at 185-186. The court indicated that all of these materials
were necessary for "meaningful judicial review" of whether
Hamdi's detention was legally authorized and whether Hamdi
had received sufficient process to satisfy the Due Process
Clause of the Constitution and relevant treaties or military
regulations. Id., at 291-292.
The Government sought to appeal the production order,
and the District Court certified the question of whether the
Mobbs Declaration, " 'standing alone, is sufficient as a matter of
law to allow meaningful judicial review of [Hamdi's]
classification as an enemy combatant.' " 316 F. 3d, at 462. The
Fourth Circuit reversed, but did not squarely answer the
certified question. It instead stressed that, because it was
"undisputed that Hamdi was captured in a zone of active
combat in a foreign theater of conflict," no factual inquiry or
evidentiary hearing allowing Hamdi to be heard or to rebut the
Government's assertions was necessary or proper. Id., at 459.
Concluding that the factual averments in the Mobbs
Declaration, "if accurate," provided a sufficient basis upon
which to conclude that the President had constitutionally
detained Hamdi pursuant to the President's war powers, it
ordered the habeas petition dismissed. Id., at 473. The Fourth
Circuit emphasized that the "vital purposes" of the detention of
uncharged enemy combatants--preventing those combatants
from rejoining the enemy while relieving the military of the
burden of litigating the circumstances of wartime captures
halfway around the globe--were interests "directly derived from
the war powers of Articles I and II." Id., at 465-466. In that
court's view, because "Article III contains nothing analogous to
the specific powers of war so carefully enumerated in Articles I
and II," id., at 463, separation of powers principles prohibited a
federal court from "delv[ing] further into Hamdi's status and
capture," id., at 473. Accordingly, the District Court's more
vigorous inquiry "went far beyond the acceptable scope of
review." Ibid.
On the more global question of whether legal authorization
exists for the detention of citizen enemy combatants at all, the
Fourth Circuit rejected Hamdi's arguments that 18 U. S. C.
§4001(a) and Article 5 of the Geneva Convention rendered any
such detentions unlawful. The court expressed doubt as to
Hamdi's argument that §4001(a), which provides that "[n]o
citizen shall be imprisoned or otherwise detained by the United
States except pursuant to an Act of Congress," required express
congressional authorization of detentions of this sort. But it held
that, in any event, such authorization was found in the post-
September 11 Authorization for Use of Military Force. 316 F. 3d,
at 467. Because "capturing and detaining enemy combatants is
an inherent part of warfare," the court held, "the 'necessary and
appropriate force' referenced in the congressional resolution
necessarily includes the capture and detention of any and all
hostile forces arrayed against our troops." Ibid.; see also id., at
467-468 (noting that Congress, in 10 U. S. C. §956(5), had
specifically authorized the expenditure of funds for keeping
prisoners of war and persons whose status was determined "to
be similar to prisoners of war," and concluding that this
appropriation measure also demonstrated that Congress had
"authorized [these individuals'] detention in the first instance").
The court likewise rejected Hamdi's Geneva Convention claim,
concluding that the convention is not self-executing and that,
even if it were, it would not preclude the Executive from
detaining Hamdi until the cessation of hostilities. 316 F. 3d, at
468-469.
Finally, the Fourth Circuit rejected Hamdi's contention that
its legal analyses with regard to the authorization for the
detention scheme and the process to which he was
constitutionally entitled should be altered by the fact that he is
an American citizen detained on American soil. Relying on Ex
parte Quirin, 317 U. S. 1 (1942), the court emphasized that
"[o]ne who takes up arms against the United States in a foreign
theater of war, regardless of his citizenship, may properly be
designated an enemy combatant and treated as such." 316
F.3d, at 475. "The privilege of citizenship," the court held,
"entitles Hamdi to a limited judicial inquiry into his detention,
but only to determine its legality under the war powers of the
political branches. At least where it is undisputed that he was
present in a zone of active combat operations, we are satisfied
that the Constitution does not entitle him to a searching review
of the factual determinations underlying his seizure there." Ibid.
The Fourth Circuit denied rehearing en banc, 337 F. 3d 335
(2003), and we granted certiorari. 540 U. S. __ (2004). We now
vacate the judgment below and remand.
II
The threshold question before us is whether the Executive
has the authority to detain citizens who qualify as "enemy
combatants." There is some debate as to the proper scope of
this term, and the Government has never provided any court
with the full criteria that it uses in classifying individuals as
such. It has made clear, however, that, for purposes of this
case, the "enemy combatant" that it is seeking to detain is an
individual who, it alleges, was " 'part of or supporting forces
hostile to the United States or coalition partners' " in
Afghanistan and who " 'engaged in an armed conflict against
the United States' " there. Brief for Respondents 3. We therefore
answer only the narrow question before us: whether the
detention of citizens falling within that definition is authorized.
The Government maintains that no explicit congressional
authorization is required, because the Executive possesses
plenary authority to detain pursuant to Article II of the
Constitution. We do not reach the question whether Article II
provides such authority, however, because we agree with the
Government's alternative position, that Congress has in fact
authorized Hamdi's detention, through the AUMF.
Our analysis on that point, set forth below, substantially
overlaps with our analysis of Hamdi's principal argument for the
illegality of his detention. He posits that his detention is
forbidden by 18 U. S. C. §4001(a). Section 4001(a) states that
"[n]o citizen shall be imprisoned or otherwise detained by the
United States except pursuant to an Act of Congress." Congress
passed §4001(a) in 1971 as part of a bill to repeal the
Emergency Detention Act of 1950, 50 U. S. C. §811 et seq.,
which provided procedures for executive detention, during
times of emergency, of individuals deemed likely to engage in
espionage or sabotage. Congress was particularly concerned
about the possibility that the Act could be used to reprise the
Japanese internment camps of World War II. H. R. Rep. No. 92-
116 (1971); id., at 4 ("The concentration camp implications of
the legislation render it abhorrent"). The Government again
presses two alternative positions. First, it argues that §4001(a),
in light of its legislative history and its location in Title 18,
applies only to "the control of civilian prisons and related
detentions," not to military detentions. Brief for Respondents
21. Second, it maintains that §4001(a) is satisfied, because
Hamdi is being detained "pursuant to an Act of Congress"--the
AUMF. Id., at 21-22. Again, because we conclude that the
Government's second assertion is correct, we do not address
the first. In other words, for the reasons that follow, we
conclude that the AUMF is explicit congressional authorization
for the detention of individuals in the narrow category we
describe (assuming, without deciding, that such authorization is
required), and that the AUMF satisfied §4001(a)'s requirement
that a detention be "pursuant to an Act of Congress" (assuming,
without deciding, that §4001(a) applies to military detentions).
The AUMF authorizes the President to use "all necessary
and appropriate force" against "nations, organizations, or
persons" associated with the September 11, 2001, terrorist
attacks. 115 Stat. 224. There can be no doubt that individuals
who fought against the United States in Afghanistan as part of
the Taliban, an organization known to have supported the al
Qaeda terrorist network responsible for those attacks, are
individuals Congress sought to target in passing the AUMF. We
conclude that detention of individuals falling into the limited
category we are considering, for the duration of the particular
conflict in which they were captured, is so fundamental and
accepted an incident to war as to be an exercise of the
"necessary and appropriate force" Congress has authorized the
President to use.
The capture and detention of lawful combatants and the
capture, detention, and trial of unlawful combatants, by
"universal agreement and practice," are "important incident[s]
of war." Ex parte Quirin, 317 U. S., at 28. The purpose of
detention is to prevent captured individuals from returning to
the field of battle and taking up arms once again. Naqvi,
Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572
(2002) ("[C]aptivity in war is 'neither revenge, nor punishment,
but solely protective custody, the only purpose of which is to
prevent the prisoners of war from further participation in the
war' " (quoting decision of Nuremberg Military Tribunal,
reprinted in 41 Am. J. Int'l L. 172, 229 (1947)); W. Winthrop,
Military Law and Precedents 788 (rev. 2d ed. 1920) ("The time
has long passed when 'no quarter' was the rule on the
battlefield ... . It is now recognized that 'Captivity is neither a
punishment nor an act of vengeance,' but 'merely a temporary
detention which is devoid of all penal character.' ... 'A prisoner
of war is no convict; his imprisonment is a simple war
measure.' " (citations omitted); cf. In re Territo, 156 F. 2d 142,
145 (CA9 1946) ("The object of capture is to prevent the
captured individual from serving the enemy. He is disarmed and
from then on must be removed as completely as practicable
from the front, treated humanely, and in time exchanged,
repatriated, or otherwise released" (footnotes omitted)).
There is no bar to this Nation's holding one of its own
citizens as an enemy combatant. In Quirin, one of the
detainees, Haupt, alleged that he was a naturalized United
States citizen. 317 U. S., at 20. We held that "[c]itizens who
associate themselves with the military arm of the enemy
government, and with its aid, guidance and direction enter this
country bent on hostile acts, are enemy belligerents within the
meaning of ... the law of war." Id., at 37-38. While Haupt was
tried for violations of the law of war, nothing in Quirin suggests
that his citizenship would have precluded his mere detention for
the duration of the relevant hostilities. See id., at 30-31. See
also Lieber Code, ¶ ;153, Instructions for the Government of
Armies of the United States in the Field, Gen. Order No. 100
(1863), reprinted in 2 Lieber, Miscellaneous Writings, p. 273
(contemplating, in code binding the Union Army during the Civil
War, that "captured rebels" would be treated "as prisoners of
war"). Nor can we see any reason for drawing such a line here.
A citizen, no less than an alien, can be "part of or supporting
forces hostile to the United States or coalition partners" and
"engaged in an armed conflict against the United States," Brief
for Respondents 3; such a citizen, if released, would pose the
same threat of returning to the front during the ongoing conflict.
In light of these principles, it is of no moment that the
AUMF does not use specific language of detention. Because
detention to prevent a combatant's return to the battlefield is a
fundamental incident of waging war, in permitting the use of
"necessary and appropriate force," Congress has clearly and
unmistakably authorized detention in the narrow circumstances
considered here.
Hamdi objects, nevertheless, that Congress has not
authorized the indefinite detention to which he is now subject.
The Government responds that "the detention of enemy
combatants during World War II was just as 'indefinite' while
that war was being fought." Id., at 16. We take Hamdi's
objection to be not to the lack of certainty regarding the date on
which the conflict will end, but to the substantial prospect of
perpetual detention. We recognize that the national security
underpinnings of the "war on terror," although crucially
important, are broad and malleable. As the Government
concedes, "given its unconventional nature, the current conflict
is unlikely to end with a formal cease-fire agreement." Ibid. The
prospect Hamdi raises is therefore not far-fetched. If the
Government does not consider this unconventional war won for
two generations, and if it maintains during that time that Hamdi
might, if released, rejoin forces fighting against the United
States, then the position it has taken throughout the litigation of
this case suggests that Hamdi's detention could last for the rest
of his life.
It is a clearly established principle of the law of war that
detention may last no longer than active hostilities. See Article
118 of the Geneva Convention (III) Relative to the Treatment of
Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3406, T.
I. A. S. No. 3364 ("Prisoners of war shall be released and
repatriated without delay after the cessation of active
hostilities"). See also Article 20 of the Hague Convention (II) on
Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1817
(as soon as possible after "conclusion of peace"); Hague
Convention (IV), supra, Oct. 18, 1907, 36 Stat. 2301("conclusion
of peace" (Art. 20)); Geneva Convention, supra, July 27, 1929,
47 Stat. 2055 (repatriation should be accomplished with the
least possible delay after conclusion of peace (Art. 75)); Praust,
Judicial Power to Determine the Status and Rights of Persons
Detained without Trial, 44 Harv. Int'l L. J. 503, 510-511 (2003)
(prisoners of war "can be detained during an armed conflict, but
the detaining country must release and repatriate them 'without
delay after the cessation of active hostilities,' unless they are
being lawfully prosecuted or have been lawfully convicted of
crimes and are serving sentences" (citing Arts. 118, 85, 99, 119,
129, Geneva Convention (III), 6 T. I .A. S., at 3384, 3392, 3406,
3418)).
Hamdi contends that the AUMF does not authorize
indefinite or perpetual detention. Certainly, we agree that
indefinite detention for the purpose of interrogation is not
authorized. Further, we understand Congress' grant of authority
for the use of "necessary and appropriate force" to include the
authority to detain for the duration of the relevant conflict, and
our understanding is based on longstanding law-of-war
principles. If the practical circumstances of a given conflict are
entirely unlike those of the conflicts that informed the
development of the law of war, that understanding may
unravel. But that is not the situation we face as of this date.
Active combat operations against Taliban fighters apparently
are ongoing in Afghanistan. See, e.g., Constable, U. S. Launches
New Operation in Afghanistan, Washington Post, Mar. 14, 2004,
p. A22 (reporting that 13,500 United States troops remain in
Afghanistan, including several thousand new arrivals); J.
Abizaid, Dept. of Defense, Gen. Abizaid Central Command
Operations Update Briefing, Apr. 30, 2004,
http://www.defenselink.mil/transcripts/2004/tr20040430-
1402.html (as visited June 8, 2004, and available in the Clerk of
Court's case file) (media briefing describing ongoing operations
in Afghanistan involving 20,000 United States troops). The
United States may detain, for the duration of these hostilities,
individuals legitimately determined to be Taliban combatants
who "engaged in an armed conflict against the United States." If
the record establishes that United States troops are still
involved in active combat in Afghanistan, those detentions are
part of the exercise of "necessary and appropriate force," and
therefore are authorized by the AUMF.
Ex parte Milligan, 4 Wall. 2, 125 (1866), does not
undermine our holding about the Government's authority to
seize enemy combatants, as we define that term today. In that
case, the Court made repeated reference to the fact that its
inquiry into whether the military tribunal had jurisdiction to try
and punish Milligan turned in large part on the fact that Milligan
was not a prisoner of war, but a resident of Indiana arrested
while at home there. Id., at 118, 131. That fact was central to its
conclusion. Had Milligan been captured while he was assisting
Confederate soldiers by carrying a rifle against Union troops on
a Confederate battlefield, the holding of the Court might well
have been different. The Court's repeated explanations that
Milligan was not a prisoner of war suggest that had these
different circumstances been present he could have been
detained under military authority for the duration of the conflict,
whether or not he was a citizen.1
Moreover, as Justice Scalia acknowledges, the Court in Ex
parte Quirin, 317 U. S. 1 (1942), dismissed the language of
Milligan that the petitioners had suggested prevented them
from being subject to military process. Post, at 17-18
(dissenting opinion). Clear in this rejection was a disavowal of
the New York State cases cited in Milligan, 4 Wall., at 128-129,
on which Justice Scalia relies. See id., at 128-129. Both Smith
v. Shaw, 12 Johns. *257 (N. Y. 1815), and M'Connell v. Hampton,
12 Johns. *234 (N. Y. 1815), were civil suits for false
imprisonment. Even accepting that these cases once could have
been viewed as standing for the sweeping proposition for which
Justice Scalia cites them--that the military does not have
authority to try an American citizen accused of spying against
his country during wartime--Quirin makes undeniably clear that
this is not the law today. Haupt, like the citizens in Smith and
M'Connell, was accused of being a spy. The Court in Quirin
found him "subject to trial and punishment by [a] military
tribunal[ ]" for those acts, and held that his citizenship did not
change this result. 317 U. S., at 31, 37-38.
Quirin was a unanimous opinion. It both postdates and
clarifies Milligan, providing us with the most apposite precedent
that we have on the question of whether citizens may be
detained in such circumstances. Brushing aside such
precedent--particularly when doing so gives rise to a host of
new questions never dealt with by this Court--is unjustified and
unwise.
To the extent that Justice Scalia accepts the precedential
value of Quirin, he argues that it cannot guide our inquiry here
because "[i]n Quirin it was uncontested that the petitioners
were members of enemy forces," while Hamdi challenges his
classification as an enemy combatant. Post, at 19. But it is
unclear why, in the paradigm outlined by Justice Scalia, such a
concession should have any relevance. Justice Scalia envisions
a system in which the only options are congressional
suspension of the writ of habeas corpus or prosecution for
treason or some other crime. Post, at 1. He does not explain
how his historical analysis supports the addition of a third
option--detention under some other process after concession of
enemy-combatant status--or why a concession should carry any
different effect than proof of enemy-combatant status in a
proceeding that comports with due process. To be clear, our
opinion only finds legislative authority to detain under the AUMF
once it is sufficiently clear that the individual is, in fact, an
enemy combatant; whether that is established by concession or
by some other process that verifies this fact with sufficient
certainty seems beside the point.
Further, Justice Scalia largely ignores the context of this
case: a United States citizen captured in a foreign combat zone.
Justice Scalia refers to only one case involving this factual
scenario--a case in which a United States citizen-POW (a
member of the Italian army) from World War II was seized on
the battlefield in Sicily and then held in the United States. The
court in that case held that the military detention of that United
States citizen was lawful. See In re Territo, 156 F. 2d, at 148.
Justice Scalia's treatment of that case--in a footnote--
suffers from the same defect as does his treatment of Quirin:
Because Justice Scalia finds the fact of battlefield capture
irrelevant, his distinction based on the fact that the petitioner
"conceded" enemy combatant status is beside the point. See
supra, at 15-16. Justice Scalia can point to no case or other
authority for the proposition that those captured on a foreign
battlefield (whether detained there or in U. S. territory) cannot
be detained outside the criminal process.
Moreover, Justice Scalia presumably would come to a
different result if Hamdi had been kept in Afghanistan or even
Guantanamo Bay. See post, at 25 (Scalia, J., dissenting). This
creates a perverse incentive. Military authorities faced with the
stark choice of submitting to the full-blown criminal process or
releasing a suspected enemy combatant captured on the
battlefield will simply keep citizen-detainees abroad. Indeed, the
Government transferred Hamdi from Guantanamo Bay to the
United States naval brig only after it learned that he might be
an American citizen. It is not at all clear why that should make a
determinative constitutional difference.
III
Even in cases in which the detention of enemy combatants
is legally authorized, there remains the question of what
process is constitutionally due to a citizen who disputes his
enemy-combatant status. Hamdi argues that he is owed a
meaningful and timely hearing and that "extra-judicial detention
[that] begins and ends with the submission of an affidavit based
on third-hand hearsay" does not comport with the Fifth and
Fourteenth Amendments. Brief for Petitioners 16. The
Government counters that any more process than was provided
below would be both unworkable and "constitutionally
intolerable." Brief for Respondents 46. Our resolution of this
dispute requires a careful examination both of the writ of
habeas corpus, which Hamdi now seeks to employ as a
mechanism of judicial review, and of the Due Process Clause,
which informs the procedural contours of that mechanism in
this instance.
A
Though they reach radically different conclusions on the
process that ought to attend the present proceeding, the parties
begin on common ground. All agree that, absent suspension,
the writ of habeas corpus remains available to every individual
detained within the United States. U. S. Const., Art. I, §9, cl. 2
("The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it"). Only in the rarest of
circumstances has Congress seen fit to suspend the writ. See,
e.g., Act of Mar. 3, 1863, ch. 81, §1, 12 Stat. 755; Act of April 20,
1871, ch. 22, §4, 17 Stat. 14. At all other times, it has remained
a critical check on the Executive, ensuring that it does not
detain individuals except in accordance with law. See INS v. St.
Cyr, 533 U. S. 289, 301 (2001). All agree suspension of the writ
has not occurred here. Thus, it is undisputed that Hamdi was
properly before an Article III court to challenge his detention
under 28 U. S. C. §2241. Brief for Respondents 12. Further, all
agree that §2241 and its companion provisions provide at least
a skeletal outline of the procedures to be afforded a petitioner
in federal habeas review. Most notably, §2243 provides that "the
person detained may, under oath, deny any of the facts set
forth in the return or allege any other material facts," and §2246
allows the taking of evidence in habeas proceedings by
deposition, affidavit, or interrogatories.
The simple outline of §2241 makes clear both that
Congress envisioned that habeas petitioners would have some
opportunity to present and rebut facts and that courts in cases
like this retain some ability to vary the ways in which they do so
as mandated by due process. The Government recognizes the
basic procedural protections required by the habeas statute, Id.,
at 37-38, but asks us to hold that, given both the flexibility of
the habeas mechanism and the circumstances presented in this
case, the presentation of the Mobbs Declaration to the habeas
court completed the required factual development. It suggests
two separate reasons for its position that no further process is
due.
B "[r]espect for separation of powers and the limited institutional
First, the Government urges the adoption of the Fourth
Circuit's holding below--that because it is "undisputed" that
Hamdi's seizure took place in a combat zone, the habeas
determination can be made purely as a matter of law, with no
further hearing or factfinding necessary. This argument is easily
rejected. As the dissenters from the denial of rehearing en banc
noted, the circumstances surrounding Hamdi's seizure cannot in
any way be characterized as "undisputed," as "those
circumstances are neither conceded in fact, nor susceptible to
concession in law, because Hamdi has not been permitted to
speak for himself or even through counsel as to those
circumstances." 337 F. 3d 335, 357 (CA4 2003) (Luttig, J.,
dissenting from denial of rehearing en banc); see also id., at
371-372 (Motz, J., dissenting from denial of rehearing en banc).
Further, the "facts" that constitute the alleged concession are
insufficient to support Hamdi's detention. Under the definition of
enemy combatant that we accept today as falling within the
scope of Congress' authorization, Hamdi would need to be "part
of or supporting forces hostile to the United States or coalition
partners" and "engaged in an armed conflict against the United
States" to justify his detention in the United States for the
duration of the relevant conflict. Brief for Respondents 3. The
habeas petition states only that "[w]hen seized by the United
States Government, Mr. Hamdi resided in Afghanistan." App.
104. An assertion that one resided in a country in which combat
operations are taking place is not a concession that one was
"captured in a zone of active combat operations in a foreign
theater of war," 316 F. 3d, at 459 (emphasis added), and
certainly is not a concession that one was "part of or supporting
forces hostile to the United States or coalition partners" and
"engaged in an armed conflict against the United States."
Accordingly, we reject any argument that Hamdi has made
concessions that eliminate any right to further process.
C
The Government's second argument requires closer
consideration. This is the argument that further factual
exploration is unwarranted and inappropriate in light of the
extraordinary constitutional interests at stake. Under the
Government's most extreme rendition of this argument,
capabilities of courts in matters of military decision-making in
connection with an ongoing conflict" ought to eliminate entirely
any individual process, restricting the courts to investigating
only whether legal authorization exists for the broader
detention scheme. Brief for Respondents 26. At most, the
Government argues, courts should review its determination that
a citizen is an enemy combatant under a very deferential "some
evidence" standard. Id., at 34 ("Under the some evidence
standard, the focus is exclusively on the factual basis supplied
by the Executive to support its own determination" (citing
Superintendent, Mass. Correctional Institution at Walpole v. Hill,
472 U. S. 445, 455-457 (1985) (explaining that the some
evidence standard "does not require" a "weighing of the
evidence," but rather calls for assessing "whether there is any
evidence in the record that could support the conclusion")).
Under this review, a court would assume the accuracy of the
Government's articulated basis for Hamdi's detention, as set
forth in the Mobbs Declaration, and assess only whether that
articulated basis was a legitimate one. Brief for Respondents
36; see also 316 F. 3d, at 473-474 (declining to address whether
the "some evidence" standard should govern the adjudication of
such claims, but noting that "[t]he factual averments in the
[Mobbs] affidavit, if accurate, are sufficient to confirm" the
legality of Hamdi's detention).
In response, Hamdi emphasizes that this Court consistently
has recognized that an individual challenging his detention may
not be held at the will of the Executive without recourse to
some proceeding before a neutral tribunal to determine whether
the Executive's asserted justifications for that detention have
basis in fact and warrant in law. See, e.g., Zadvydas v. Davis,
533 U. S. 678, 690 (2001); Addington v. Texas, 441 U. S. 418,
425-427 (1979). He argues that the Fourth Circuit
inappropriately "ceded power to the Executive during wartime
to define the conduct for which a citizen may be detained, judge
whether that citizen has engaged in the proscribed conduct,
and imprison that citizen indefinitely," Brief for Petitioners 21,
and that due process demands that he receive a hearing in
which he may challenge the Mobbs Declaration and adduce his
own counter evidence. The District Court, agreeing with Hamdi,
apparently believed that the appropriate process would
approach the process that accompanies a criminal trial. It
therefore disapproved of the hearsay nature of the Mobbs
Declaration and anticipated quite extensive discovery of various
military affairs. Anything less, it concluded, would not be
"meaningful judicial review." App. 291.
Both of these positions highlight legitimate concerns. And
both emphasize the tension that often exists between the
autonomy that the Government asserts is necessary in order to
pursue effectively a particular goal and the process that a
citizen contends he is due before he is deprived of a
constitutional right. The ordinary mechanism that we use for
balancing such serious competing interests, and for determining
the procedures that are necessary to ensure that a citizen is not
"deprived of life, liberty, or property, without due process of
law," U. S. Const., Amdt. 5, is the test that we articulated in
Mathews v. Eldridge, 424 U. S. 319 (1976). See, e.g., Heller v.
Doe, 509 U. S. 312, 330-331 (1993); Zinermon v. Burch, 494
U. S. 113, 127-128 (1990); United States v. Salerno, 481 U. S.
739, 746 (1987); Schall v. Martin, 467 U. S. 253, 274-275
(1984); Addington v. Texas, supra, at 425. Mathews dictates
that the process due in any given instance is determined by
weighing "the private interest that will be affected by the official
action" against the Government's asserted interest, "including
the function involved" and the burdens the Government would
face in providing greater process. 424 U. S., at 335. The
Mathews calculus then contemplates a judicious balancing of
these concerns, through an analysis of "the risk of an erroneous
deprivation" of the private interest if the process were reduced
and the "probable value, if any, of additional or substitute
safeguards." Ibid. We take each of these steps in turn.
1
It is beyond question that substantial interests lie on both
sides of the scale in this case. Hamdi's "private interest ...
affected by the official action," ibid., is the most elemental of
liberty interests--the interest in being free from physical
detention by one's own government. Foucha v. Louisiana, 504
U. S. 71, 80 (1992) ("Freedom from bodily restraint has always
been at the core of the liberty protected by the Due Process
Clause from arbitrary governmental action"); see also Parham v.
J. R., 442 U. S. 584, 600 (1979) (noting the "substantial liberty
interest in not being confined unnecessarily"). "In our society
liberty is the norm," and detention without trial "is the carefully
limited exception." Salerno, supra, at 755. "We have always
been careful not to 'minimize the importance and fundamental
nature' of the individual's right to liberty," Foucha, supra, at 80
(quoting Salerno, supra, at 750), and we will not do so today.
Nor is the weight on this side of the Mathews scale offset
by the circumstances of war or the accusation of treasonous
behavior, for "[i]t is clear that commitment for any purpose
constitutes a significant deprivation of liberty that requires due
process protection," Jones v. United States, 463 U. S. 354, 361
(1983) (emphasis added; internal quotation marks omitted), and
at this stage in the Mathews calculus, we consider the interest
of the erroneously detained individual. Carey v. Piphus, 435
U. S. 247, 259 (1978) ("Procedural due process rules are meant
to protect persons not from the deprivation, but from the
mistaken or unjustified deprivation of life, liberty, or property");
see also id., at 266 (noting "the importance to organized society
that procedural due process be observed," and emphasizing
that "the right to procedural due process is 'absolute' in the
sense that it does not depend upon the merits of a claimant's
substantive assertions"). Indeed, as amicus briefs from media
and relief organizations emphasize, the risk of erroneous
deprivation of a citizen's liberty in the absence of sufficient
process here is very real. See Brief for AmeriCares et al. as
Amici Curiae 13-22 (noting ways in which "[t]he nature of
humanitarian relief work and journalism present a significant
risk of mistaken military detentions"). Moreover, as critical as
the Government's interest may be in detaining those who
actually pose an immediate threat to the national security of
the United States during ongoing international conflict, history
and common sense teach us that an unchecked system of
detention carries the potential to become a means for
oppression and abuse of others who do not present that sort of
threat. See Ex parte Milligan, 4 Wall., at 125 ("[The Founders]
knew--the history of the world told them--the nation they were
founding, be its existence short or long, would be involved in
war; how often or how long continued, human foresight could
not tell; and that unlimited power, wherever lodged at such a
time, was especially hazardous to freemen"). Because we live in
a society in which "[m]ere public intolerance or animosity
cannot constitutionally justify the deprivation of a person's
physical liberty," O'Connor v. Donaldson, 422 U. S. 563, 575
(1975), our starting point for the Mathews v. Eldridge analysis is
unaltered by the allegations surrounding the particular detainee
or the organizations with which he is alleged to have
associated. We reaffirm today the fundamental nature of a
citizen's right to be free from involuntary confinement by his
own government without due process of law, and we weigh the
opposing governmental interests against the curtailment of
liberty that such confinement entails.
2 U. S. 144, 164-165 (1963) ("The imperative necessity for
On the other side of the scale are the weighty and
sensitive governmental interests in ensuring that those who
have in fact fought with the enemy during a war do not return
to battle against the United States. As discussed above, supra,
at 10, the law of war and the realities of combat may render
such detentions both necessary and appropriate, and our due
process analysis need not blink at those realities. Without
doubt, our Constitution recognizes that core strategic matters of
warmaking belong in the hands of those who are best
positioned and most politically accountable for making them.
Department of Navy v. Egan, 484 U. S. 518, 530 (1988) (noting
the reluctance of the courts "to intrude upon the authority of
the Executive in military and national security affairs");
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 587
(1952) (acknowledging "broad powers in military commanders
engaged in day-to-day fighting in a theater of war").
The Government also argues at some length that its
interests in reducing the process available to alleged enemy
combatants are heightened by the practical difficulties that
would accompany a system of trial-like process. In its view,
military officers who are engaged in the serious work of waging
battle would be unnecessarily and dangerously distracted by
litigation half a world away, and discovery into military
operations would both intrude on the sensitive secrets of
national defense and result in a futile search for evidence
buried under the rubble of war. Brief for Respondents 46-49. To
the extent that these burdens are triggered by heightened
procedures, they are properly taken into account in our due
process analysis.
3
Striking the proper constitutional balance here is of great
importance to the Nation during this period of ongoing combat.
But it is equally vital that our calculus not give short shrift to the
values that this country holds dear or to the privilege that is
American citizenship. It is during our most challenging and
uncertain moments that our Nation's commitment to due
process is most severely tested; and it is in those times that we
must preserve our commitment at home to the principles for
which we fight abroad. See Kennedy v. Mendoza-Martinez, 372
safeguarding these rights to procedural due process under the
gravest of emergencies has existed throughout our
constitutional history, for it is then, under the pressing
exigencies of crisis, that there is the greatest temptation to
dispense with guarantees which, it is feared, will inhibit
government action"); see also United States v. Robel, 389 U. S.
258, 264 (1967) ("It would indeed be ironic if, in the name of
national defense, we would sanction the subversion of one of
those liberties ... which makes the defense of the Nation
worthwhile").
 With due recognition of these competing concerns, we
believe that neither the process proposed by the Government
nor the process apparently envisioned by the District Court
below strikes the proper constitutional balance when a United
States citizen is detained in the United States as an enemy
combatant. That is, "the risk of erroneous deprivation" of a
detainee's liberty interest is unacceptably high under the
Government's proposed rule, while some of the "additional or
substitute procedural safeguards" suggested by the District
Court are unwarranted in light of their limited "probable value"
and the burdens they may impose on the military in such cases.
Mathews, 424 U. S., at 335.
We therefore hold that a citizen-detainee seeking to
challenge his classification as an enemy combatant must
receive notice of the factual basis for his classification, and a
fair opportunity to rebut the Government's factual assertions
before a neutral decisionmaker. See Cleveland Bd. of Ed. v.
Loudermill, 470 U. S. 532, 542 (1985) ("An essential principle of
due process is that a deprivation of life, liberty, or property 'be
preceded by notice and opportunity for hearing appropriate to
the nature of the case' " (quoting Mullane v. Central Hanover
Bank & Trust Co., 339 U. S. 306, 313 (1950)); Concrete Pipe &
Products of Cal., Inc. v. Construction Laborers Pension Trust for
Southern Cal., 508 U. S. 602, 617 (1993) ("due process requires
a 'neutral and detached judge in the first instance' " (quoting
Ward v. Monroeville, 409 U. S. 57, 61-62 (1972)). "For more than
a century the central meaning of procedural due process has
been clear: 'Parties whose rights are to be affected are entitled
to be heard; and in order that they may enjoy that right they
must first be notified.' It is equally fundamental that the right to
notice and an opportunity to be heard 'must be granted at a
meaningful time and in a meaningful manner.' " Fuentes v.
Shevin, 407 U. S. 67, 80 (1972) (quoting Baldwin v. Hale, 1 Wall.
223, 233 (1864); Armstrong v. Manzo, 380 U. S. 545, 552 (1965)
(other citations omitted)). These essential constitutional
promises may not be eroded.
At the same time, the exigencies of the circumstances may
demand that, aside from these core elements, enemy
combatant proceedings may be tailored to alleviate their
uncommon potential to burden the Executive at a time of
ongoing military conflict. Hearsay, for example, may need to be
accepted as the most reliable available evidence from the
Government in such a proceeding. Likewise, the Constitution
would not be offended by a presumption in favor of the
Government's evidence, so long as that presumption remained
a rebuttable one and fair opportunity for rebuttal were provided.
Thus, once the Government puts forth credible evidence that
the habeas petitioner meets the enemy-combatant criteria, the
onus could shift to the petitioner to rebut that evidence with
more persuasive evidence that he falls outside the criteria. A
burden-shifting scheme of this sort would meet the goal of
ensuring that the errant tourist, embedded journalist, or local
aid worker has a chance to prove military error while giving due
regard to the Executive once it has put forth meaningful support
for its conclusion that the detainee is in fact an enemy
combatant. In the words of Mathews, process of this sort would
sufficiently address the "risk of erroneous deprivation" of a
detainee's liberty interest while eliminating certain procedures
that have questionable additional value in light of the burden on
the Government. 424 U. S., at 335.2
We think it unlikely that this basic process will have the
dire impact on the central functions of warmaking that the
Government forecasts. The parties agree that initial captures on
the battlefield need not receive the process we have discussed
here; that process is due only when the determination is made
to continue to hold those who have been seized. The
Government has made clear in its briefing that documentation
regarding battlefield detainees already is kept in the ordinary
course of military affairs. Brief for Respondents 3-4. Any
factfinding imposition created by requiring a knowledgeable
affiant to summarize these records to an independent tribunal is
a minimal one. Likewise, arguments that military officers ought
not have to wage war under the threat of litigation lose much of
their steam when factual disputes at enemy-combatant
hearings are limited to the alleged combatant's acts. This focus
meddles little, if at all, in the strategy or conduct of war,
inquiring only into the appropriateness of continuing to detain
an individual claimed to have taken up arms against the United
States. While we accord the greatest respect and consideration
to the judgments of military authorities in matters relating to
the actual prosecution of a war, and recognize that the scope of
that discretion necessarily is wide, it does not infringe on the
core role of the military for the courts to exercise their own
time-honored and constitutionally mandated roles of reviewing
and resolving claims like those presented here. Cf. Korematsu v.
United States, 323 U. S. 214, 233-234 (1944) (Murphy, J.,
dissenting) ("[L]ike other claims conflicting with the asserted
constitutional rights of the individual, the military claim must
subject itself to the judicial process of having its reasonableness
determined and its conflicts with other interests reconciled");
Sterling v. Constantin, 287 U. S. 378, 401 (1932) ("What are the
allowable limits of military discretion, and whether or not they
have been overstepped in a particular case, are judicial
questions").
In sum, while the full protections that accompany
challenges to detentions in other settings may prove
unworkable and inappropriate in the enemy-combatant setting,
the threats to military operations posed by a basic system of
independent review are not so weighty as to trump a citizen's
core rights to challenge meaningfully the
Government's case and to be heard by an impartial
adjudicator.
D for his detention by his government, simply because the
In so holding, we necessarily reject the Government's
assertion that separation of powers principles mandate a
heavily circumscribed role for the courts in such circumstances.
Indeed, the position that the courts must forgo any examination
of the individual case and focus exclusively on the legality of
the broader detention scheme cannot be mandated by any
reasonable view of separation of powers, as this approach
serves only to condense power into a single branch of
government. We have long since made clear that a state of war
is not a blank check for the President when it comes to the
rights of the Nation's citizens. Youngstown Sheet & Tube, 343
U. S., at 587. Whatever power the United States Constitution
envisions for the Executive in its exchanges with other nations
or with enemy organizations in times of conflict, it most
assuredly envisions a role for all three branches when individual
liberties are at stake. Mistretta v. United States, 488 U. S. 361,
380 (1989) (it was "the central judgment of the Framers of the
Constitution that, within our political scheme, the separation of
governmental powers into three coordinate Branches is
essential to the preservation of liberty"); Home Building & Loan
Assn. v. Blaisdell, 290 U. S. 398, 426 (1934) (The war power "is
a power to wage war successfully, and thus it permits the
harnessing of the entire energies of the people in a supreme
cooperative effort to preserve the nation. But even the war
power does not remove constitutional limitations safeguarding
essential liberties"). Likewise, we have made clear that, unless
Congress acts to suspend it, the Great Writ of habeas corpus
allows the Judicial Branch to play a necessary role in
maintaining this delicate balance of governance, serving as an
important judicial check on the Executive's discretion in the
realm of detentions. See St. Cyr, 533 U. S., at 301 ("At its
historical core, the writ of habeas corpus has served as a means
of reviewing the legality of Executive detention, and it is in that
context that its protections have been strongest"). Thus, while
we do not question that our due process assessment must pay
keen attention to the particular burdens faced by the Executive
in the context of military action, it would turn our system of
checks and balances on its head to suggest that a citizen could
not make his way to court with a challenge to the factual basis
Executive opposes making available such a challenge. Absent
suspension of the writ by Congress, a citizen detained as an
enemy combatant is entitled to this process.
Because we conclude that due process demands some
system for a citizen detainee to refute his classification, the
proposed "some evidence" standard is inadequate. Any process
in which the Executive's factual assertions go wholly
unchallenged or are simply presumed correct without any
opportunity for the alleged combatant to demonstrate
otherwise falls constitutionally short. As the Government itself
has recognized, we have utilized the "some evidence" standard
in the past as a standard of review, not as a standard of proof.
Brief for Respondents 35. That is, it primarily has been
employed by courts in examining an administrative record
developed after an adversarial proceeding--one with process at
least of the sort that we today hold is constitutionally mandated
in the citizen enemy-combatant setting. See, e.g., St. Cyr,
supra; Hill, 472 U. S., at 455-457. This standard therefore is ill
suited to the situation in which a habeas petitioner has received
no prior proceedings before any tribunal and had no prior
opportunity to rebut the Executive's factual assertions before a
neutral decisionmaker.
Today we are faced only with such a case. Aside from
unspecified "screening" processes, Brief for Respondents 3-4,
and military interrogations in which the Government suggests
Hamdi could have contested his classification, Tr. of Oral Arg.
40, 42, Hamdi has received no process. An interrogation by
one's captor, however effective an intelligence-gathering tool,
hardly constitutes a constitutionally adequate factfinding before
a neutral decisionmaker. Compare Brief for Respondents 42-43
(discussing the "secure interrogation environment," and noting
that military interrogations require a controlled "interrogation
dynamic" and "a relationship of trust and dependency" and are
"a critical source" of "timely and effective intelligence") with
Concrete Pipe, 508 U. S., at 617-618 ("one is entitled as a
matter of due process of law to an adjudicator who is not in a
situation which would offer a possible temptation to the average
man as a judge . . . which might lead him not to hold the
balance nice, clear and true" (internal quotation marks
omitted). That even purportedly fair adjudicators "are
disqualified by their interest in the controversy to be decided is,
of course, the general rule." Tumey v. Ohio, 273 U. S. 510, 522
(1927). Plainly, the "process" Hamdi has received is not that to
which he is entitled under the Due Process Clause.
There remains the possibility that the standards we have
articulated could be met by an appropriately authorized and
properly constituted military tribunal. Indeed, it is notable that
military regulations already provide for such process in related
instances, dictating that tribunals be made available to
determine the status of enemy detainees who assert prisoner-
of-war status under the Geneva Convention. See Enemy
Prisoners of War, Retained Personnel, Civilian Internees and
Other Detainees, Army Regulation 190-8, §1-6 (1997). In the
absence of such process, however, a court that receives a
petition for a writ of habeas corpus from an alleged enemy
combatant must itself ensure that the minimum requirements of
due process are achieved. Both courts below recognized as
much, focusing their energies on the question of whether Hamdi
was due an opportunity to rebut the Government's case against
him. The Government, too, proceeded on this assumption,
presenting its affidavit and then seeking that it be evaluated
under a deferential standard of review based on burdens that it
alleged would accompany any greater process. As we have
discussed, a habeas court in a case such as this may accept
affidavit evidence like that contained in the Mobbs Declaration,
so long as it also permits the alleged combatant to present his
own factual case to rebut the Government's return. We
anticipate that a District Court would proceed with the caution
that we have indicated is necessary in this setting, engaging in
a factfinding process that is both prudent and incremental. We
have no reason to doubt that courts faced with these sensitive
matters will pay proper heed both to the matters of national
security that might arise in an individual case and to the
constitutional limitations safeguarding essential liberties that
remain vibrant even in times of security concerns.
IV
Hamdi asks us to hold that the Fourth Circuit also erred by
denying him immediate access to counsel upon his detention
and by disposing of the case without permitting him to meet
with an attorney. Brief for Petitioners 19. Since our grant of
certiorari in this case, Hamdi has been appointed counsel, with
whom he has met for consultation purposes on several
occasions, and with whom he is now being granted unmonitored
meetings. He unquestionably has the right to access to counsel
in connection with the proceedings on remand. No further
consideration of this issue is necessary at this stage of the case.
***
The judgment of the United States Court of Appeals for the
Fourth Circuit is vacated, and the case is remanded for further
proceedings.
It is so ordered.
YASER ESAM HAMDI and ESAM FOUAD HAMDI, as next
friend of YASER ESAM HAMDI, PETITIONERS v. DONALD
H. RUMSFELD, SECRETARY OF DEFENSE, et al.
 on writ of certiorari to the united states court of
appeals for the fourth circuit
[June 28, 2004]
Justice Scalia, with whom Justice Stevens joins,
dissenting.
Petitioner, a presumed American citizen, has been
imprisoned without charge or hearing in the Norfolk and
Charleston Naval Brigs for more than two years, on the
allegation that he is an enemy combatant who bore arms
against his country for the Taliban. His father claims to the
contrary, that he is an inexperienced aid worker caught in the
wrong place at the wrong time. This case brings into conflict the
competing demands of national security and our citizens'
constitutional right to personal liberty. Although I share the
Court's evident unease as it seeks to reconcile the two, I do not
agree with its resolution.
Where the Government accuses a citizen of waging war
against it, our constitutional tradition has been to prosecute him
in federal court for treason or some other crime. Where the
exigencies of war prevent that, the Constitution's Suspension
Clause, Art. I, §9, cl. 2, allows Congress to relax the usual
protections temporarily. Absent suspension, however, the
Executive's assertion of military exigency has not been thought
sufficient to permit detention without charge. No one contends
that the congressional Authorization for Use of Military Force, on
which the Government relies to justify its actions here, is an
implementation of the Suspension Clause. Accordingly, I would
reverse the decision below.
I citizen was deprived of liberty because of alleged criminal
The very core of liberty secured by our Anglo-Saxon
system of separated powers has been freedom from indefinite
imprisonment at the will of the Executive. Blackstone stated this
principle clearly:
"Of great importance to the public is the preservation of
this personal liberty: for if once it were left in the power of any,
the highest, magistrate to imprison arbitrarily whomever he or
his officers thought proper ... there would soon be an end of all
other rights and immunities. ... To bereave a man of life, or by
violence to confiscate his estate, without accusation or trial,
would be so gross and notorious an act of despotism, as must at
once convey the alarm of tyranny throughout the whole
kingdom. But confinement of the person, by secretly hurrying
him to gaol, where his sufferings are unknown or forgotten; is a
less public, a less striking, and therefore a more dangerous
engine of arbitrary government. ...
"To make imprisonment lawful, it must either be, by
process from the courts of judicature, or by warrant from some
legal officer, having authority to commit to prison; which
warrant must be in writing, under the hand and seal of the
magistrate, and express the causes of the commitment, in order
to be examined into (if necessary) upon a habeas corpus. If
there be no cause expressed, the gaoler is not bound to detain
the prisoner. For the law judges in this respect, ... that it is
unreasonable to send a prisoner, and not to signify withal the
crimes alleged against him." 1 W. Blackstone, Commentaries on
the Laws of England 132-133 (1765) (hereinafter Blackstone).
These words were well known to the Founders. Hamilton
quoted from this very passage in The Federalist No. 84, p. 444
(G. Carey & J. McClellan eds. 2001). The two ideas central to
Blackstone's understanding--due process as the right secured,
and habeas corpus as the instrument by which due process
could be insisted upon by a citizen illegally imprisoned--found
expression in the Constitution's Due Process and Suspension
Clauses. See Amdt. 5; Art. I, §9, cl. 2.
The gist of the Due Process Clause, as understood at the
founding and since, was to force the Government to follow
those common-law procedures traditionally deemed necessary
before depriving a person of life, liberty, or property. When a
conduct, those procedures typically required committal by a
magistrate followed by indictment and trial. See, e.g., 2 & 3
Phil. & M., c. 10 (1555); 3 J. Story, Commentaries on the
Constitution of the United States §1783, p. 661 (1833)
(hereinafter Story) (equating "due process of law" with "due
presentment or indictment, and being brought in to answer
thereto by due process of the common law"). The Due Process
Clause "in effect affirms the right of trial according to the
process and proceedings of the common law." Ibid. See also T.
Cooley, General Principles of Constitutional Law 224 (1880)
("When life and liberty are in question, there must in every
instance be judicial proceedings; and that requirement implies
an accusation, a hearing before an impartial tribunal, with
proper jurisdiction, and a conviction and judgment before the
punishment can be inflicted" (internal quotation marks
omitted)).
To be sure, certain types of permissible noncriminal
detention--that is, those not dependent upon the contention
that the citizen had committed a criminal act--did not require
the protections of criminal procedure. However, these fell into a
limited number of well-recognized exceptions--civil commitment
of the mentally ill, for example, and temporary detention in
quarantine of the infectious. See Opinion on the Writ of Habeas
Corpus, 97 Eng. Rep. 29, 36-37 (H. L. 1758) (Wilmot, J.). It is
unthinkable that the Executive could render otherwise criminal
grounds for detention noncriminal merely by disclaiming an
intent to prosecute, or by asserting that it was incapacitating
dangerous offenders rather than punishing wrongdoing. Cf.
Kansas v. Hendricks, 521 U. S. 346, 358 (1997) ("A finding of
dangerousness, standing alone, is ordinarily not a sufficient
ground upon which to justify indefinite involuntary
commitment").
These due process rights have historically been vindicated
by the writ of habeas corpus. In England before the founding,
the writ developed into a tool for challenging executive
confinement. It was not always effective. For example, in
Darnel's Case, 3 How. St. Tr. 1 (K. B. 1627), King Charles I
detained without charge several individuals for failing to assist
England's war against France and Spain. The prisoners sought
writs of habeas corpus, arguing that without specific charges,
"imprisonment shall not continue on for a time, but for ever;
and the subjects of this kingdom may be restrained of their
liberties perpetually." Id., at 8. The Attorney General replied that
the Crown's interest in protecting the realm justified
imprisonment in "a matter of state ... not ripe nor timely" for
the ordinary process of accusation and trial. Id., at 37. The court
denied relief, producing widespread outrage, and Parliament
responded with the Petition of Right, accepted by the King in
1628, which expressly prohibited imprisonment without formal
charges, see 3 Car. 1, c. 1, §§5, 10.
The struggle between subject and Crown continued, and
culminated in the Habeas Corpus Act of 1679, 31 Car. 2, c. 2,
described by Blackstone as a "second magna charta, and stable
bulwark of our liberties." 1 Blackstone 133. The Act governed all
persons "committed or detained ... for any crime." §3. In cases
other than felony or treason plainly expressed in the warrant of
commitment, the Act required release upon appropriate sureties
(unless the commitment was for a nonbailable offense). Ibid.
Where the commitment was for felony or high treason, the Act
did not require immediate release, but instead required the
Crown to commence criminal proceedings within a specified
time. §7. If the prisoner was not "indicted some Time in the next
Term," the judge was "required ... to set at Liberty the Prisoner
upon Bail" unless the King was unable to produce his witnesses.
Ibid. Able or no, if the prisoner was not brought to trial by the
next succeeding term, the Act provided that "he shall be
discharged from his Imprisonment." Ibid. English courts sat four
terms per year, see 3 Blackstone 275-277, so the practical
effect of this provision was that imprisonment without
indictment or trial for felony or high treason under §7 would not
exceed approximately three to six months.
The writ of habeas corpus was preserved in the
Constitution--the only common-law writ to be explicitly
mentioned. See Art. I, §9, cl. 2. Hamilton lauded "the
establishment of the writ of habeas corpus" in his Federalist
defense as a means to protect against "the practice of arbitrary
imprisonments ... in all ages, [one of] the favourite and most
formidable instruments of tyranny." The Federalist No. 84,
supra, at 444. Indeed, availability of the writ under the new
Constitution (along with the requirement of trial by jury in
criminal cases, see Art. III, §2, cl. 3) was his basis for arguing
that additional, explicit procedural protections were
unnecessary. See The Federalist No. 83, at 433.
II
The allegations here, of course, are no ordinary
accusations of criminal activity. Yaser Esam Hamdi has been
imprisoned because the Government believes he participated in
the waging of war against the United States. The relevant
question, then, is whether there is a different, special procedure
for imprisonment of a citizen accused of wrongdoing by aiding
the enemy in wartime.
A 315, 86 Eng. Rep. 461 (K. B. 1690); Trial of Parkyns, 13 How. St.
Justice O'Connor, writing for a plurality of this Court,
asserts that captured enemy combatants (other than those
suspected of war crimes) have traditionally been detained until
the cessation of hostilities and then released. Ante, at 10-11.
That is probably an accurate description of wartime practice
with respect to enemy aliens. The tradition with respect to
American citizens, however, has been quite different. Citizens
aiding the enemy have been treated as traitors subject to the
criminal process.
As early as 1350, England's Statute of Treasons made it a
crime to "levy War against our Lord the King in his Realm, or be
adherent to the King's Enemies in his Realm, giving to them Aid
and Comfort, in the Realm, or elsewhere." 25 Edw. 3, Stat. 5, c.
2. In his 1762 Discourse on High Treason, Sir Michael Foster
explained:
"With regard to Natural-born Subjects there can be no
Doubt. They owe Allegiance to the Crown at all Times and in all
Places.
.....
"The joining with Rebels in an Act of Rebellion, or with
Enemies in Acts of Hostility, will make a Man a Traitor: in the
one Case within the Clause of Levying War, in the other within
that of Adhering to the King's enemies.
.....
"States in Actual Hostility with Us, though no War be
solemnly Declared, are Enemies within the meaning of the Act.
And therefore in an Indictment on the Clause of Adhering to the
King's Enemies, it is sufficient to Aver that the Prince or State
Adhered to is an Enemy, without shewing any War
Proclaimed... . And if the Subject of a Foreign Prince in Amity
with Us, invadeth the Kingdom without Commission from his
Sovereign, He is an Enemy. And a Subject of England adhering
to Him is a Traitor within this Clause of the Act." A Report of
Some Proceedings on the Commission ... for the Trial of the
Rebels in the Year 1746 in the County of Surry, and of Other
Crown Cases, Introduction, §1, p. 183; Ch. 2, §8, p. 216; §12, p.
219.
Subjects accused of levying war against the King were
routinely prosecuted for treason. E.g., Harding's Case, 2 Ventris
Tr. 63 (K. B. 1696); Trial of Vaughan, 13 How. St. Tr. 485 (K. B.
1696); Trial of Downie, 24 How. St. Tr. 1 (1794). The Founders
inherited the understanding that a citizen's levying war against
the Government was to be punished criminally. The Constitution
provides: "Treason against the United States, shall consist only
in levying War against them, or in adhering to their Enemies,
giving them Aid and Comfort"; and establishes a heightened
proof requirement (two witnesses) in order to "convic[t]" of that
offense. Art. III, §3, cl. 1.
In more recent times, too, citizens have been charged and
tried in Article III courts for acts of war against the United
States, even when their noncitizen co-conspirators were not. For
example, two American citizens alleged to have participated
during World War I in a spying conspiracy on behalf of Germany
were tried in federal court. See United States v. Fricke, 259 F.
673 (SDNY 1919); United States v. Robinson, 259 F. 685 (SDNY
1919). A German member of the same conspiracy was
subjected to military process. See United States ex rel. Wessels
v. McDonald, 265 F. 754 (EDNY 1920). During World War II, the
famous German saboteurs of Ex parte Quirin, 317 U. S. 1
(1942), received military process, but the citizens who
associated with them (with the exception of one citizen-
saboteur, discussed below) were punished under the criminal
process. See Haupt v. United States, 330 U. S. 631 (1947); L.
Fisher, Nazi Saboteurs on Trial 80-84 (2003); see also Cramer v.
United States, 325 U. S. 1 (1945).
The modern treason statute is 18 U. S. C. §2381; it
basically tracks the language of the constitutional provision.
Other provisions of Title 18 criminalize various acts of
warmaking and adherence to the enemy. See, e.g., §32
(destruction of aircraft or aircraft facilities), §2332a (use of
weapons of mass destruction), §2332b (acts of terrorism
transcending national boundaries), §2339A (providing material
support to terrorists), §2339B (providing material support to
certain terrorist organizations), §2382 (misprision of treason),
§2383 (rebellion or insurrection), §2384 (seditious conspiracy),
§2390 (enlistment to serve in armed hostility against the United
States). See also 31 CFR §595.204 (2003) (prohibiting the
"making or receiving of any contribution of funds, goods, or
services" to terrorists); 50 U. S. C. §1705(b) (criminalizing
violations of 31 CFR §595.204). The only citizen other than
Hamdi known to be imprisoned in connection with military
hostilities in Afghanistan against the United States was
subjected to criminal process and convicted upon a guilty plea.
See United States v. Lindh, 212 F. Supp. 2d 541 (ED Va. 2002)
(denying motions for dismissal); Seelye, N. Y. Times, Oct. 5,
2002, p. A1, col. 5.
B Although this provision does not state that suspension must be
There are times when military exigency renders resort to
the traditional criminal process impracticable. English law
accommodated such exigencies by allowing legislative
suspension of the writ of habeas corpus for brief periods.
Blackstone explained:
"And yet sometimes, when the state is in real danger, even
this [i.e., executive detention] may be a necessary measure.
But the happiness of our constitution is, that it is not left to the
executive power to determine when the danger of the state is
so great, as to render this measure expedient. For the
parliament only, or legislative power, whenever it sees proper,
can authorize the crown, by suspending the habeas corpus act
for a short and limited time, to imprison suspected persons
without giving any reason for so doing... . In like manner this
experiment ought only to be tried in case of extreme
emergency; and in these the nation parts with it[s] liberty for a
while, in order to preserve it for ever." 1 Blackstone 132.
Where the Executive has not pursued the usual course of
charge, committal, and conviction, it has historically secured
the Legislature's explicit approval of a suspension. In England,
Parliament on numerous occasions passed temporary
suspensions in times of threatened invasion or rebellion. E.g., 1
W. & M., c. 7 (1688) (threatened return of James II); 7 & 8 Will.
3, c. 11 (1696) (same); 17 Geo. 2, c. 6 (1744) (threatened
French invasion); 19 Geo. 2, c. 1 (1746) (threatened rebellion in
Scotland); 17 Geo. 3, c. 9 (1777) (the American Revolution). Not
long after Massachusetts had adopted a clause in its
constitution explicitly providing for habeas corpus, see Mass.
Const. pt. 2, ch. 6, art. VII (1780), reprinted in 3 Federal and
State Constitutions, Colonial Charters and Other Organic Laws
1888, 1910 (F. Thorpe ed. 1909), it suspended the writ in order
to deal with Shay's Rebellion, see Act for Suspending the
Privilege of the Writ of Habeas Corpus, ch. 10, 1786 Mass. Acts
510.
Our Federal Constitution contains a provision explicitly
permitting suspension, but limiting the situations in which it
may be invoked: "The privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it." Art. I, §9, cl. 2.
effected by, or authorized by, a legislative act, it has been so
understood, consistent with English practice and the Clause's
placement in Article I. See Ex parte Bollman, 4 Cranch 75, 101
(1807); Ex parte Merryman, 17 F. Cas. 144, 151-152 (CD Md.
1861) (Taney, C. J., rejecting Lincoln's unauthorized suspension);
3 Story §1336, at 208-209.
The Suspension Clause was by design a safety valve, the
Constitution's only "express provision for exercise of
extraordinary authority because of a crisis," Youngstown Sheet
& Tube Co. v. Sawyer, 343 U. S. 579, 650 (1952) (Jackson, J.,
concurring). Very early in the Nation's history, President
Jefferson unsuccessfully sought a suspension of habeas corpus
to deal with Aaron Burr's conspiracy to overthrow the
Government. See 16 Annals of Congress 402-425 (1807). During
the Civil War, Congress passed its first Act authorizing Executive
suspension of the writ of habeas corpus, see Act of Mar. 3,
1863, 12 Stat. 755, to the relief of those many who thought
President Lincoln's unauthorized proclamations of suspension
(e.g., Proclamation No. 1, 13 Stat. 730 (1862)) unconstitutional.
Later Presidential proclamations of suspension relied upon the
congressional authorization, e.g., Proclamation No. 7, 13 Stat.
734 (1863). During Reconstruction, Congress passed the Ku
Klux Klan Act, which included a provision authorizing suspension
of the writ, invoked by President Grant in quelling a rebellion in
nine South Carolina counties. See Act of Apr. 20, 1871, ch. 22,
§4, 17 Stat. 14; A Proclamation [of Oct. 17, 1871], 7 Compilation
of the Messages and Papers of the Presidents 136-138 (J.
Richardson ed. 1899) (hereinafter Messages and Papers); id., at
138-139.
 Two later Acts of Congress provided broad suspension
authority to governors of U. S. possessions. The Philippine Civil
Government Act of 1902 provided that the Governor of the
Philippines could suspend the writ in case of rebellion,
insurrection, or invasion. Act of July 1, 1902, ch. 1369, §5, 32
Stat. 691. In 1905 the writ was suspended for nine months by
proclamation of the Governor. See Fisher v. Baker, 203 U. S.
174, 179-181 (1906). The Hawaiian Organic Act of 1900 likewise
provided that the Governor of Hawaii could suspend the writ in
case of rebellion or invasion (or threat thereof). Ch. 339, §67, 31
Stat. 153.
III
Of course the extensive historical evidence of criminal
convictions and habeas suspensions does not necessarily refute
the Government's position in this case. When the writ is
suspended, the Government is entirely free from judicial
oversight. It does not claim such total liberation here, but
argues that it need only produce what it calls "some evidence"
to satisfy a habeas court that a detained individual is an enemy
combatant. See Brief for Respondents 34. Even if suspension of
the writ on the one hand, and committal for criminal charges on
the other hand, have been the only traditional means of dealing
with citizens who levied war against their own country, it is
theoretically possible that the Constitution does not require a
choice between these alternatives.
I believe, however, that substantial evidence does refute
that possibility. First, the text of the 1679 Habeas Corpus Act
makes clear that indefinite imprisonment on reasonable
suspicion is not an available option of treatment for those
accused of aiding the enemy, absent a suspension of the writ. In
the United States, this Act was read as "enforc[ing] the common
law," Ex parte Watkins, 3 Pet. 193, 202 (1830), and shaped the
early understanding of the scope of the writ. As noted above,
see supra, at 5, §7 of the Act specifically addressed those
committed for high treason, and provided a remedy if they were
not indicted and tried by the second succeeding court term.
That remedy was not a bobtailed judicial inquiry into whether
there were reasonable grounds to believe the prisoner had
taken up arms against the King. Rather, if the prisoner was not
indicted and tried within the prescribed time, "he shall be
discharged from his Imprisonment." 31 Car. 2, c. 2, §7. The Act
does not contain any exception for wartime. That omission is
conspicuous, since §7 explicitly addresses the offense of "High
Treason," which often involved offenses of a military nature. See
cases cited supra, at 7.
Writings from the founding generation also suggest that,
without exception, the only constitutional alternatives are to
charge the crime or suspend the writ. In 1788, Thomas Jefferson
wrote to James Madison questioning the need for a Suspension
Clause in cases of rebellion in the proposed Constitution. His
letter illustrates the constraints under which the Founders
understood themselves to operate:
"Why suspend the Hab. corp. in insurrections and rebellions?
The parties who may be arrested may be charged instantly with
a well defined crime. Of course the judge will remand them. If
the publick safety requires that the government should have a
man imprisoned on less probable testimony in those than in
other emergencies; let him be taken and tried, retaken and
retried, while the necessity continues, only giving him redress
against the government for damages." 13 Papers of Thomas
Jefferson 442 (July 31, 1788) (J. Boyd ed. 1956).
A similar view was reflected in the 1807 House debates over
suspension during the armed uprising that came to be known as
Burr's conspiracy:
"With regard to those persons who may be implicated in the
conspiracy, if the writ of habeas corpus be not suspended, what
will be the consequence? When apprehended, they will be
brought before a court of justice, who will decide whether there
is any evidence that will justify their commitment for farther
prosecution. From the communication of the Executive, it
appeared there was sufficient evidence to authorize their
commitment. Several months would elapse before their final
trial, which would give time to collect evidence, and if this shall
be sufficient, they will not fail to receive the punishment
merited by their crimes, and inflicted by the laws of their
country." 16 Annals of Congress, at 405 (remarks of Rep.
Burwell).
The absence of military authority to imprison citizens
indefinitely in wartime--whether or not a probability of treason
had been established by means less than jury trial--was
confirmed by three cases decided during and immediately after
the War of 1812. In the first, In re Stacy, 10 Johns. *328 (N. Y.
1813), a citizen was taken into military custody on suspicion
that he was "carrying provisions and giving information to the
enemy." Id., at *330 (emphasis deleted). Stacy petitioned for a
writ of habeas corpus, and, after the defendant custodian
attempted to avoid complying, Chief Justice Kent ordered
attachment against him. Kent noted that the military was
"without any color of authority in any military tribunal to try a
citizen for that crime" and that it was "holding him in the closest
confinement, and contemning the civil authority of the state."
Id., at *333-*334.
Two other cases, later cited with approval by this Court in
Ex parte Milligan, 4 Wall. 2, 128-129 (1866), upheld verdicts for
false imprisonment against military officers. In Smith v. Shaw,
12 Johns. *257 (N. Y. 1815), the court affirmed an award of
damages for detention of a citizen on suspicion that he was,
among other things, "an enemy's spy in time of war." Id., at
*265. The court held that "[n]one of the offences charged
against Shaw were cognizable by a court-martial, except that
which related to his being a spy; and if he was an American
citizen, he could not be charged with such an offence. He might
be amenable to the civil authority for treason; but could not be
punished, under martial law, as a spy." Ibid. "If the defendant
was justifiable in doing what he did, every citizen of the United
States would, in time of war, be equally exposed to a like
exercise of military power and authority." Id., at *266. Finally, in
M'Connell v. Hampton, 12 Johns. *234 (N. Y. 1815), a jury
awarded $9,000 for false imprisonment after a military officer
confined a citizen on charges of treason; the judges on appeal
did not question the verdict but found the damages excessive,
in part because "it does not appear that [the defendant] ...
knew [the plaintiff] was a citizen." Id., at *238 (Spencer, J.). See
generally Wuerth, The President's Power to Detain "Enemy
Combatants": Modern Lessons from Mr. Madison's Forgotten
War, 98 Nw. U. L. Rev. (forthcoming 2004) (available in Clerk of
Court's case file).
President Lincoln, when he purported to suspend habeas
corpus without congressional authorization during the Civil War,
apparently did not doubt that suspension was required if the
prisoner was to be held without criminal trial. In his famous
message to Congress on July 4, 1861, he argued only that he
could suspend the writ, not that even without suspension, his
imprisonment of citizens without criminal trial was permitted.
See Special Session Message, 6 Messages and Papers 20-31.
Further evidence comes from this Court's decision in Ex
parte Milligan, supra. There, the Court issued the writ to an
American citizen who had been tried by military commission for
offenses that included conspiring to overthrow the Government,
seize munitions, and liberate prisoners of war. Id., at 6-7. The
Court rejected in no uncertain terms the Government's
assertion that military jurisdiction was proper "under the 'laws
and usages of war,' " id., at 121:
"It can serve no useful purpose to inquire what those laws
and usages are, whence they originated, where found, and on
whom they operate; they can never be applied to citizens in
states which have upheld the authority of the government, and
where the courts are open and their process unobstructed."
Ibid.1
Milligan is not exactly this case, of course, since the petitioner
was threatened with death, not merely imprisonment. But the
reasoning and conclusion of Milligan logically cover the present
case. The Government justifies imprisonment of Hamdi on
principles of the law of war and admits that, absent the war, it
would have no such authority. But if the law of war cannot be
applied to citizens where courts are open, then Hamdi's
imprisonment without criminal trial is no less unlawful than
Milligan's trial by military tribunal.
Milligan responded to the argument, repeated by the
Government in this case, that it is dangerous to leave suspected
traitors at large in time of war:
"If it was dangerous, in the distracted condition of affairs, to
leave Milligan unrestrained of his liberty, because he 'conspired
against the government, afforded aid and comfort to rebels, and
incited the people to insurrection,' the law said arrest him,
confine him closely, render him powerless to do further
mischief; and then present his case to the grand jury of the
district, with proofs of his guilt, and, if indicted, try him
according to the course of the common law. If this had been
done, the Constitution would have been vindicated, the law of
1863 enforced, and the securities for personal liberty preserved
and defended." Id., at 122.
Thus, criminal process was viewed as the primary means--and
the only means absent congressional action suspending the
writ--not only to punish traitors, but to incapacitate them.
The proposition that the Executive lacks indefinite wartime
detention authority over citizens is consistent with the
Founders' general mistrust of military power permanently at the
Executive's disposal. In the Founders' view, the "blessings of
liberty" were threatened by "those military establishments
which must gradually poison its very fountain." The Federalist
No. 45, p. 238 (J. Madison). No fewer than 10 issues of the
Federalist were devoted in whole or part to allaying fears of
oppression from the proposed Constitution's authorization of
standing armies in peacetime. Many safeguards in the
Constitution reflect these concerns. Congress's authority "[t]o
raise and support Armies" was hedged with the proviso that "no
Appropriation of Money to that Use shall be for a longer Term
than two Years." U. S. Const., Art. 1, §8, cl. 12. Except for the
actual command of military forces, all authorization for their
maintenance and all explicit authorization for their use is placed
in the control of Congress under Article I, rather than the
President under Article II. As Hamilton explained, the President's
military authority would be "much inferior" to that of the British
King:
"It would amount to nothing more than the supreme
command and direction of the military and naval forces, as first
general and admiral of the confederacy: while that of the British
king extends to the declaring of war, and to the raising and
regulating of fleets and armies; all which, by the constitution
under consideration, would appertain to the legislature." The
Federalist No. 69, p. 357.
A view of the Constitution that gives the Executive authority
to use military force rather than the force of law against citizens
on American soil flies in the face of the mistrust that
engendered these provisions.
IV
The Government argues that our more recent
jurisprudence ratifies its indefinite imprisonment of a citizen
within the territorial jurisdiction of federal courts. It places
primary reliance upon Ex parte Quirin, 317 U. S. 1 (1942), a
World War II case upholding the trial by military commission of
eight German saboteurs, one of whom, Hans Haupt, was a U. S.
citizen. The case was not this Court's finest hour. The Court
upheld the commission and denied relief in a brief per curiam
issued the day after oral argument concluded, see id., at 18-19,
unnumbered note; a week later the Government carried out the
commission's death sentence upon six saboteurs, including
Haupt. The Court eventually explained its reasoning in a written
opinion issued several months later.
Only three paragraphs of the Court's lengthy opinion dealt
with the particular circumstances of Haupt's case. See id., at 37-
38, 45-46. The Government argued that Haupt, like the other
petitioners, could be tried by military commission under the
laws of war. In agreeing with that contention, Quirin purported
to interpret the language of Milligan quoted above (the law of
war "can never be applied to citizens in states which have
upheld the authority of the government, and where the courts
are open and their process unobstructed") in the following
manner:
"Elsewhere in its opinion ... the Court was at pains to point out
that Milligan, a citizen twenty years resident in Indiana, who had
never been a resident of any of the states in rebellion, was not
an enemy belligerent either entitled to the status of a prisoner
of war or subject to the penalties imposed upon unlawful
belligerents. We construe the Court's statement as to the
inapplicability of the law of war to Milligan's case as having
particular reference to the facts before it. From them the Court
concluded that Milligan, not being a part of or associated with
the armed forces of the enemy, was a non-belligerent, not
subject to the law of war ... ." 317 U. S., at 45.
In my view this seeks to revise Milligan rather than describe it.
Milligan had involved (among other issues) two separate
questions: (1) whether the military trial of Milligan was justified
by the laws of war, and if not (2) whether the President's
suspension of the writ, pursuant to congressional authorization,
prevented the issuance of habeas corpus. The Court's
categorical language about the law of war's inapplicability to
citizens where the courts are open (with no exception
mentioned for citizens who were prisoners of war) was
contained in its discussion of the first point. See 4 Wall., at 121.
The factors pertaining to whether Milligan could reasonably be
considered a belligerent and prisoner of war, while mentioned
earlier in the opinion, see id., at 118, were made relevant and
brought to bear in the Court's later discussion, see id., at 131, of
whether Milligan came within the statutory provision that
effectively made an exception to Congress's authorized
suspension of the writ for (as the Court described it) "all parties,
not prisoners of war, resident in their respective jurisdictions, ...
who were citizens of states in which the administration of the
laws in the Federal tribunals was unimpaired," id., at 116.
Milligan thus understood was in accord with the traditional law
of habeas corpus I have described: Though treason often
occurred in wartime, there was, absent provision for special
treatment in a congressional suspension of the writ, no
exception to the right to trial by jury for citizens who could be
called "belligerents" or "prisoners of war."2
But even if Quirin gave a correct description of Milligan, or
made an irrevocable revision of it, Quirin would still not justify
denial of the writ here. In Quirin it was uncontested that the
petitioners were members of enemy forces. They were
"admitted enemy invaders," 317 U. S., at 47 (emphasis added),
and it was "undisputed" that they had landed in the United
States in service of German forces, id., at 20. The specific
holding of the Court was only that, "upon the conceded facts,"
the petitioners were "plainly within [the] boundaries" of military
jurisdiction, id., at 46 (emphasis added).3 But where those
jurisdictional facts are not conceded--where the petitioner
insists that he is not a belligerent--Quirin left the pre-existing
law in place: Absent suspension of the writ, a citizen held where
the courts are open is entitled either to criminal trial or to a
judicial decree requiring his release.4
V common-law requirement of committal for criminal prosecution
It follows from what I have said that Hamdi is entitled to a
habeas decree requiring his release unless (1) criminal
proceedings are promptly brought, or (2) Congress has
suspended the writ of habeas corpus. A suspension of the writ
could, of course, lay down conditions for continued detention,
similar to those that today's opinion prescribes under the Due
Process Clause. Cf. Act of Mar. 3, 1863, 12 Stat. 755. But there is
a world of difference between the people's representatives'
determining the need for that suspension (and prescribing the
conditions for it), and this Court's doing so.
The plurality finds justification for Hamdi's imprisonment in
the Authorization for Use of Military Force, 115 Stat. 224, which
provides:
"That the President is authorized to use all necessary and
appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11,
2001, or harbored such organizations or persons, in order to
prevent any future acts of international terrorism against the
United States by such nations, organizations or persons." §2(a).
This is not remotely a congressional suspension of the writ,
and no one claims that it is. Contrary to the plurality's view, I do
not think this statute even authorizes detention of a citizen with
the clarity necessary to satisfy the interpretive canon that
statutes should be construed so as to avoid grave constitutional
concerns, see Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Constr. Trades Council, 485 U. S. 568, 575 (1988);
with the clarity necessary to comport with cases such as Ex
parte Endo, 323 U. S. 283, 300 (1944), and Duncan v.
Kahanamoku, 327 U. S. 304, 314-316, 324 (1946); or with the
clarity necessary to overcome the statutory prescription that
"[n]o citizen shall be imprisoned or otherwise detained by the
United States except pursuant to an Act of Congress." 18
U. S. C. §4001(a).5 But even if it did, I would not permit it to
overcome Hamdi's entitlement to habeas corpus relief. The
Suspension Clause of the Constitution, which carefully
circumscribes the conditions under which the writ can be
withheld, would be a sham if it could be evaded by
congressional prescription of requirements other than the
that render the writ, though available, unavailing. If the
Suspension Clause does not guarantee the citizen that he will
either be tried or released, unless the conditions for suspending
the writ exist and the grave action of suspending the writ has
been taken; if it merely guarantees the citizen that he will not
be detained unless Congress by ordinary legislation says he can
be detained; it guarantees him very little indeed.
 It should not be thought, however, that the plurality's
evisceration of the Suspension Clause augments, principally,
the power of Congress. As usual, the major effect of its
constitutional improvisation is to increase the power of the
Court. Having found a congressional authorization for detention
of citizens where none clearly exists; and having discarded the
categorical procedural protection of the Suspension Clause; the
plurality then proceeds, under the guise of the Due Process
Clause, to prescribe what procedural protections it thinks
appropriate. It "weigh[s] the private interest ... against the
Government's asserted interest," ante, at 22 (internal quotation
marks omitted), and--just as though writing a new Constitution--
comes up with an unheard-of system in which the citizen rather
than the Government bears the burden of proof, testimony is by
hearsay rather than live witnesses, and the presiding officer
may well be a "neutral" military officer rather than judge and
jury. See ante, at 26-27. It claims authority to engage in this
sort of "judicious balancing" from Mathews v. Eldridge, 424 U. S.
319 (1976), a case involving ... the withdrawal of disability
benefits! Whatever the merits of this technique when newly
recognized property rights are at issue (and even there they are
questionable), it has no place where the Constitution and the
common law already supply an answer.
Having distorted the Suspension Clause, the plurality
finishes up by transmogrifying the Great Writ--disposing of the
present habeas petition by remanding for the District Court to
"engag[e] in a factfinding process that is both prudent and
incremental," ante, at 32. "In the absence of [the Executive's
prior provision of procedures that satisfy due process], ... a
court that receives a petition for a writ of habeas corpus from
an alleged enemy combatant must itself ensure that the
minimum requirements of due process are achieved." Ante, at
31-32. This judicial remediation of executive default is unheard
of. The role of habeas corpus is to determine the legality of
executive detention, not to supply the omitted process
necessary to make it legal. See Preiser v. Rodriguez, 411 U. S.
475, 484 (1973) ("[T]he essence of habeas corpus is an attack
by a person in custody upon the legality of that custody, and ...
the traditional function of the writ is to secure release from
illegal custody"); 1 Blackstone 132-133. It is not the habeas
court's function to make illegal detention legal by supplying a
process that the Government could have provided, but chose
not to. If Hamdi is being imprisoned in violation of the
Constitution (because without due process of law), then his
habeas petition should be granted; the Executive may then
hand him over to the criminal authorities, whose detention for
the purpose of prosecution will be lawful, or else must release
him.
There is a certain harmony of approach in the plurality's
making up for Congress's failure to invoke the Suspension
Clause and its making up for the Executive's failure to apply
what it says are needed procedures--an approach that reflects
what might be called a Mr. Fix-it Mentality. The plurality seems
to view it as its mission to Make Everything Come Out Right,
rather than merely to decree the consequences, as far as
individual rights are concerned, of the other two branches'
actions and omissions. Has the Legislature failed to suspend the
writ in the current dire emergency? Well, we will remedy that
failure by prescribing the reasonable conditions that a
suspension should have included. And has the Executive failed
to live up to those reasonable conditions? Well, we will
ourselves make that failure good, so that this dangerous fellow
(if he is dangerous) need not be set free. The problem with this
approach is not only that it steps out of the courts' modest and
limited role in a democratic society; but that by repeatedly
doing what it thinks the political branches ought to do it
encourages their lassitude and saps the vitality of government
by the people.
VI
Several limitations give my views in this matter a relatively
narrow compass. They apply only to citizens, accused of being
enemy combatants, who are detained within the territorial
jurisdiction of a federal court. This is not likely to be a numerous
group; currently we know of only two, Hamdi and Jose Padilla.
Where the citizen is captured outside and held outside the
United States, the constitutional requirements may be different.
Cf. Johnson v. Eisentrager, 339 U. S. 763, 769-771 (1950); Reid
v. Covert, 354 U. S. 1, 74-75 (1957) (Harlan, J., concurring in
result); Rasul v. Bush, ante, at 15-17 (Scalia, J., dissenting).
Moreover, even within the United States, the accused citizen-
enemy combatant may lawfully be detained once prosecution is
in progress or in contemplation. See, e.g., County of Riverside v.
McLaughlin, 500 U. S. 44 (1991) (brief detention pending
judicial determination after warrantless arrest); United States v.
Salerno, 481 U. S. 739 (1987) (pretrial detention under the Bail
Reform Act). The Government has been notably successful in
securing conviction, and hence long-term custody or execution,
of those who have waged war against the state.
I frankly do not know whether these tools are sufficient to
meet the Government's security needs, including the need to
obtain intelligence through interrogation. It is far beyond my
competence, or the Court's competence, to determine that. But
it is not beyond Congress's. If the situation demands it, the
Executive can ask Congress to authorize suspension of the writ--
which can be made subject to whatever conditions Congress
deems appropriate, including even the procedural novelties
invented by the plurality today. To be sure, suspension is limited
by the Constitution to cases of rebellion or invasion. But
whether the attacks of September 11, 2001, constitute an
"invasion," and whether those attacks still justify suspension
several years later, are questions for Congress rather than this
Court. See 3 Story §1336, at 208-209.6 If civil rights are to be
curtailed during wartime, it must be done openly and
democratically, as the Constitution requires, rather than by
silent erosion through an opinion of this Court.
***
The Founders well understood the difficult tradeoff
between safety and freedom. "Safety from external danger,"
Hamilton declared,
"is the most powerful director of national conduct. Even the
ardent love of liberty will, after a time, give way to its dictates.
The violent destruction of life and property incident to war; the
continual effort and alarm attendant on a state of continual
danger, will compel nations the most attached to liberty, to
resort for repose and security to institutions which have a
tendency to destroy their civil and political rights. To be more
safe, they, at length, become willing to run the risk of being less
free." The Federalist No. 8, p. 33.
The Founders warned us about the risk, and equipped us with
a Constitution designed to deal with it.
Many think it not only inevitable but entirely proper that
liberty give way to security in times of national crisis--that, at
the extremes of military exigency, inter arma silent leges.
Whatever the general merits of the view that war silences law
or modulates its voice, that view has no place in the
interpretation and application of a Constitution designed
precisely to confront war and, in a manner that accords with
democratic principles, to accommodate it. Because the Court
has proceeded to meet the current emergency in a manner the
Constitution does not envision, I respectfully dissent.
YASER ESAM HAMDI and ESAM FOUAD HAMDI, as next
friend of YASER ESAM HAMDI, PETITIONERS v. DONALD
H. RUMSFELD, SECRETARY OF DEFENSE, et al.
on writ of certiorari to the united states court of
appeals for the fourth circuit
[June 28, 2004]
Justice Thomas, dissenting.
The Executive Branch, acting pursuant to the powers
vested in the President by the Constitution and with explicit
congressional approval, has determined that Yaser Hamdi is an
enemy combatant and should be detained. This detention falls
squarely within the Federal Government's war powers, and we
lack the expertise and capacity to second-guess that decision.
As such, petitioners' habeas challenge should fail, and there is
no reason to remand the case. The plurality reaches a contrary
conclusion by failing adequately to consider basic principles of
the constitutional structure as it relates to national security and
foreign affairs and by using the balancing scheme of Mathews v.
Eldridge, 424 U. S. 319 (1976). I do not think that the Federal
Government's war powers can be balanced away by this Court.
Arguably, Congress could provide for additional procedural
protections, but until it does, we have no right to insist upon
them. But even if I were to agree with the general approach the
plurality takes, I could not accept the particulars. The plurality
utterly fails to account for the Government's compelling
interests and for our own institutional inability to weigh
competing concerns correctly. I respectfully dissent.
 I These structural advantages are most important in the
"It is 'obvious and unarguable' that no governmental
interest is more compelling than the security of the Nation."
Haig v. Agee, 453 U. S. 280, 307 (1981) (quoting Aptheker v.
Secretary of State, 378 U. S. 500, 509 (1964)). The national
security, after all, is the primary responsibility and purpose of
the Federal Government. See, e.g., Youngstown Sheet & Tube
Co. v. Sawyer, 343 U. S. 579, 662 (1952) (Clark, J., concurring in
judgment); The Federalist No. 23, pp. 146-147 (J. Cooke ed.
1961) (A. Hamilton) ("The principle purposes to be answered by
Union are these--The common defence of the members--the
preservation of the public peace as well against internal
convulsions as external attacks"). But because the Founders
understood that they could not foresee the myriad potential
threats to national security that might later arise, they chose to
create a Federal Government that necessarily possesses
sufficient power to handle any threat to the security of the
Nation. The power to protect the Nation
"ought to exist without limitation ... [b]ecause it is impossible
to foresee or define the extent and variety of national
exigencies, or the correspondent extent & variety of the means
which may be necessary to satisfy them. The circumstances
that endanger the safety of nations are infinite; and for this
reason no constitutional shackles can wisely be imposed on the
power to which the care of it is committed." Id., at 147.
See also The Federalist Nos. 34 and 41.
The Founders intended that the President have primary
responsibility--along with the necessary power--to protect the
national security and to conduct the Nation's foreign relations.
They did so principally because the structural advantages of a
unitary Executive are essential in these domains. "Energy in the
executive is a leading character in the definition of good
government. It is essential to the protection of the community
against foreign attacks." The Federalist No. 70, p. 471 (A.
Hamilton). The principle "ingredien[t]" for "energy in the
executive" is "unity." Id., at 472. This is because "[d]ecision,
activity, secrecy, and dispatch will generally characterise the
proceedings of one man, in a much more eminent degree, than
the proceedings of any greater number." Ibid.
national-security and foreign-affairs contexts. "Of all the cares
or concerns of government, the direction of war most peculiarly
demands those qualities which distinguish the exercise of power
by a single hand." The Federalist No. 74, p. 500 (A. Hamilton).
Also for these reasons, John Marshall explained that "[t]he
President is the sole organ of the nation in its external relations,
and its sole representative with foreign nations." 10 Annals of
Cong. 613 (1800); see id., at 613-614. To this end, the
Constitution vests in the President "[t]he executive Power,"
Art. II, §1, provides that he "shall be Commander in Chief of the"
armed forces, §2, and places in him the power to recognize
foreign governments, §3.
This Court has long recognized these features and has
accordingly held that the President has constitutional authority
to protect the national security and that this authority carries
with it broad discretion.
"If a war be made by invasion of a foreign nation, the
President is not only authorized but bound to resist force by
force. He does not initiate the war, but is bound to accept the
challenge without waiting for any special legislative authority... .
Whether the President in fulfilling his duties, as Commander in-
chief, in suppressing an insurrection, has met with such armed
hostile resistance ... is a question to be decided by him." Prize
Cases, 2 Black 635, 668, 670 (1863).
The Court has acknowledged that the President has the
authority to "employ [the Nation's Armed Forces] in the manner
he may deem most effectual to harass and conquer and subdue
the enemy." Fleming v. Page, 9 How. 603, 615 (1850). With
respect to foreign affairs as well, the Court has recognized the
President's independent authority and need to be free from
interference. See, e.g., United States v. Curtiss-Wright Export
Corp., 299 U. S. 304, 320 (1936) (explaining that the President
"has his confidential sources of information. He has his agents
in the form of diplomatic, consular and other officials. Secrecy in
respect of information gathered by them may be highly
necessary, and the premature disclosure of it productive of
harmful results"); Chicago & Southern Air Lines, Inc. v.
Waterman S. S. Corp., 333 U. S. 103, 111 (1948).
 Congress, to be sure, has a substantial and essential role in
both foreign affairs and national security. But it is crucial to
recognize that judicial interference in these domains destroys
the purpose of vesting primary responsibility in a unitary
Executive. I cannot improve on Justice Jackson's words,
speaking for the Court:
"The President, both as Commander-in-Chief and as the
Nation's organ for foreign affairs, has available intelligence
services whose reports are not and ought not to be published to
the world. It would be intolerable that courts, without the
relevant information, should review and perhaps nullify actions
of the Executive taken on information properly held secret. Nor
can courts sit in camera in order to be taken into executive
confidences. But even if courts could require full disclosure, the
very nature of executive decisions as to foreign policy is
political, not judicial. Such decisions are wholly confided by our
Constitution to the political departments of the government,
Executive and Legislative. They are delicate, complex, and
involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people
whose welfare they advance or imperil. They are decisions of a
kind for which the Judiciary has neither aptitude, facilities nor
responsibility and which has long been held to belong in the
domain of political power not subject to judicial intrusion or
inquiry." Ibid.
Several points, made forcefully by Justice Jackson, are worth
emphasizing. First, with respect to certain decisions relating to
national security and foreign affairs, the courts simply lack the
relevant information and expertise to second-guess
determinations made by the President based on information
properly withheld. Second, even if the courts could compel the
Executive to produce the necessary information, such decisions
are simply not amenable to judicial determination because
"[t]hey are delicate, complex, and involve large elements of
prophecy." Ibid. Third, the Court in Chicago & Southern Air Lines
and elsewhere has correctly recognized the primacy of the
political branches in the foreign-affairs and national-security
contexts.
For these institutional reasons and because "Congress
cannot anticipate and legislate with regard to every possible
action the President may find it necessary to take or every
possible situation in which he might act," it should come as no
surprise that "[s]uch failure of Congress ... does not, 'especially
... in the areas of foreign policy and national security,' imply
'congressional disapproval' of action taken by the Executive."
Dames & Moore v. Regan, 453 U. S. 654, 678 (1981) (quoting
Agee, 453 U. S., at 291). Rather, in these domains, the fact that
Congress has provided the President with broad authorities does
not imply--and the Judicial Branch should not infer--that
Congress intended to deprive him of particular powers not
specifically enumerated. See Dames & Moore, 453 U. S., at 678.
As far as the courts are concerned, "the enactment of
legislation closely related to the question of the President's
authority in a particular case which evinces legislative intent to
accord the President broad discretion may be considered to
'invite' 'measures on independent presidential responsibility.' "
Ibid. (quoting Youngstown, 343 U. S., at 637 (Jackson, J.,
concurring)).
Finally, and again for the same reasons, where "the
President acts pursuant to an express or implied authorization
from Congress, he exercises not only his powers but also those
delegated by Congress[, and i]n such a case the executive
action 'would be supported by the strongest of presumptions
and the widest latitude of judicial interpretation, and the burden
of persuasion would rest heavily upon any who might attack
it.' " Dames & Moore, supra, at 668 (quoting Youngstown, supra,
at 637 (Jackson, J., concurring)). That is why the Court has
explained, in a case analogous to this one, that "the detention[,]
ordered by the President in the declared exercise of his powers
as Commander in Chief of the Army in time of war and of grave
public danger[, is] not to be set aside by the courts without the
clear conviction that [it is] in conflict with the Constitution or
laws of Congress constitutionally enacted." Ex parte Quirin, 317
U. S. 1, 25 (1942). See also Ex parte Milligan, 4 Wall. 2, 133
(1866) (Chase, C. J., concurring in judgment) (stating that a
sentence imposed by a military commission "must not be set
aside except upon the clearest conviction that it cannot be
reconciled with the Constitution and the constitutional
legislation of Congress"). This deference extends to the
President's determination of all the factual predicates necessary
to conclude that a given action is appropriate. See Quirin,
supra, at 25 ("We are not here concerned with any question of
the guilt or innocence of petitioners"). See also Hirabayashi v.
United States, 320 U. S. 81, 93 (1943); Prize Cases, 2 Black, at
670; Martin v. Mott, 12 Wheat. 19, 29-30 (1827).
To be sure, the Court has at times held, in specific
circumstances, that the military acted beyond its warmaking
authority. But these cases are distinguishable in important
ways. In Ex parte Endo, 323 U. S. 283 (1944), the Court held
unlawful the detention of an admittedly law-abiding and loyal
American of Japanese ancestry. It did so because the
Government's asserted reason for the detention had nothing to
do with the congressional and executive authorities upon which
the Government relied. Those authorities permitted detention
for the purpose of preventing espionage and sabotage and thus
could not be pressed into service for detaining a loyal citizen.
See id., at 301-302. Further, the Court "stress[ed] the silence ...
of the [relevant] Act and the Executive Orders." Id., at 301
(emphasis added); see also id., at 301-304. The Court sensibly
held that the Government could not detain a loyal citizen
pursuant to executive and congressional authorities that could
not conceivably be implicated given the Government's factual
allegations. And in Youngstown, Justice Jackson emphasized that
"Congress ha[d] not left seizure of private property an open
field but ha[d] covered it by three statutory policies inconsistent
with th[e] seizure." 343 U. S., at 639 (concurring opinion). See
also Milligan, supra, at 134 (Chase, C. J., concurring in
judgment) (noting that the Government failed to comply with
statute directly on point).
I acknowledge that the question whether Hamdi's
executive detention is lawful is a question properly resolved by
the Judicial Branch, though the question comes to the Court
with the strongest presumptions in favor of the Government.
The plurality agrees that Hamdi's detention is lawful if he is an
enemy combatant. But the question whether Hamdi is actually
an enemy combatant is "of a kind for which the Judiciary has
neither aptitude, facilities nor responsibility and which has long
been held to belong in the domain of political power not subject
to judicial intrusion or inquiry." Chicago & Southern Air Lines,
333 U. S., at 111. That is, although it is appropriate for the
Court to determine the judicial question whether the President
has the asserted authority, see, e.g., Ex parte Endo, supra, we
lack the information and expertise to question whether Hamdi is
actually an enemy combatant, a question the resolution of
which is committed to other branches.1 In the words of then-
Judge Scalia:
"In Old Testament days, when judges ruled the people of Israel
and led them into battle, a court professing the belief that it
could order a halt to a military operation in foreign lands might
not have been a startling phenomenon. But in modern times,
and in a country where such governmental functions have been
committed to elected delegates of the people, such an assertion
of jurisdiction is extraordinary. The [C]ourt's decision today
reflects a willingness to extend judicial power into areas where
we do not know, and have no way of finding out, what serious
harm we may be doing." Ramirez de Arellano v. Weinberger,
745 F. 2d 1500, 1550-1551 (CADC 1984) (en banc) (dissenting
opinion) (footnote omitted).
See also id., at 1551, n. 1 (noting that "[e]ven the ancient
Israelites eventually realized the shortcomings of judicial
commanders-in-chief"). The decision whether someone is an
enemy combatant is, no doubt, "delicate, complex, and
involv[es] large elements of prophecy," Chicago & Southern Air
Lines, supra, at 111, which, incidentally might in part explain
why "the Government has never provided any court with the full
criteria that it uses in classifying individuals as such," ante, at 8.
See also infra, at 18-20 (discussing other military decisions).
II
"The war power of the national government is 'the power
to wage war successfully.' " Lichter v. United States, 334 U. S.
742, 767, n. 9 (1948) (quoting Hughes, War Powers Under the
Constitution, 42 A. B. A. Rep. 232, 238). It follows that this
power "is not limited to victories in the field, but carries with it
the inherent power to guard against the immediate renewal of
the conflict," In re Yamashita, 327 U. S. 1, 12 (1946); see also
Stewart v. Kahn, 11 Wall. 493, 507 (1871), and quite obviously
includes the ability to detain those (even United States citizens)
who fight against our troops or those of our allies, see, e.g.,
Quirin, 317 U. S., at 28-29, 30-31; id., at 37-39; Duncan v.
Kahanamoku, 327 U. S. 304, 313-314 (1946); W. Winthrop,
Military Law and Precedents 788 (2d ed. 1920); W. Whiting, War
Powers Under the Constitution of the United States 167 (43d ed.
1871); id., at 44-46 (noting that Civil War "rebels" may be
treated as foreign belligerents); see also ante, at 10-12.
Although the President very well may have inherent
authority to detain those arrayed against our troops, I agree
with the plurality that we need not decide that question
because Congress has authorized the President to do so. See
ante, at 9. The Authorization for Use of Military Force (AUMF),
115 Stat. 224, authorizes the President to "use all necessary
and appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or
aided the terrorist attacks" of September 11, 2001. Indeed, the
Court has previously concluded that language materially
identical to the AUMF authorizes the Executive to "make the
ordinary use of the soldiers ... ; that he may kill persons who
resist and, of course, that he may use the milder measure of
seizing [and detaining] the bodies of those whom he considers
to stand in the way of restoring peace." Moyer v. Peabody, 212
U. S. 78, 84 (1909).
The plurality, however, qualifies its recognition of the
President's authority to detain enemy combatants in the war on
terrorism in ways that are at odds with our precedent. Thus, the
plurality relies primarily on Article 118 of the Geneva
Convention (III) Relative to the Treatment of Prisoners of War,
Aug. 12, 1949, [1955] 6 U. S. T. 3406, T. I. A. S. No. 3364, for the
proposition that "[i]t is a clearly established principle of the law
of war that detention may last no longer than active hostilities."
Ante, at 12-13. It then appears to limit the President's authority
to detain by requiring that the record establis[h] that United
States troops are still involved in active combat in Afghanistan
because, in that case, detention would be "part of the exercise
of 'necessary and appropriate force.' " Ante, at 14. But I do not
believe that we may diminish the Federal Government's war
powers by reference to a treaty and certainly not to a treaty
that does not apply. See n. 6, infra. Further, we are bound by
the political branches' determination that the United States is at
war. See, e.g., Ludecke v. Watkins, 335 U. S. 160, 167-170
(1948); Prize Cases, 2 Black, at 670; Mott, 12 Wheat., at 30.
And, in any case, the power to detain does not end with the
cessation of formal hostilities. See, e.g., Madsen v. Kinsella, 343
U. S. 341, 360 (1952); Johnson v. Eisentrager, 339 U. S. 763, 786
(1950); cf. Moyer, supra, at 85.
Accordingly, the President's action here is "supported by
the strongest of presumptions and the widest latitude of judicial
interpretation." Dames & Moore, 453 U. S., at 668 (internal
quotation marks omitted).2 The question becomes whether the
Federal Government (rather than the President acting alone)
has power to detain Hamdi as an enemy combatant. More
precisely, we must determine whether the Government may
detain Hamdi given the procedures that were used.
III
I agree with the plurality that the Federal Government has
power to detain those that the Executive Branch determines to
be enemy combatants. See ante, at 10. But I do not think that
the plurality has adequately explained the breadth of the
President's authority to detain enemy combatants, an authority
that includes making virtually conclusive factual findings. In my
view, the structural considerations discussed above, as
recognized in our precedent, demonstrate that we lack the
capacity and responsibility to second-guess this determination.
This makes complete sense once the process that is due
Hamdi is made clear. As an initial matter, it is possible that the
Due Process Clause requires only "that our Government must
proceed according to the 'law of the land'--that is, according to
written constitutional and statutory provisions." In re Winship,
397 U. S. 358, 382 (1970) (Black, J., dissenting). I need not go
this far today because the Court has already explained the
nature of due process in this context.
In a case strikingly similar to this one, the Court addressed
a Governor's authority to detain for an extended period a
person the executive believed to be responsible, in part, for a
local insurrection. Justice Holmes wrote for a unanimous Court:
"When it comes to a decision by the head of the State upon a
matter involving its life, the ordinary rights of individuals must
yield to what he deems the necessities of the moment. Public
danger warrants the substitution of executive process for
judicial process. This was admitted with regard to killing men in
the actual clash of arms, and we think it obvious, although it
was disputed, that the same is true of temporary detention to
prevent apprehended harm." Moyer, 212 U. S., at 85 (citation
omitted; emphasis added).
The Court answered Moyer's claim that he had been denied
due process by emphasizing that
"it is familiar that what is due process of law depends on
circumstances. It varies with the subject-matter and the
necessities of the situation. Thus summary proceedings suffice
for taxes, and executive decisions for exclusion from the
country... . Such arrests are not necessarily for punishment, but
are by way of precaution to prevent the exercise of hostile
power." Id., at 84-85 (citations omitted).
In this context, due process requires nothing more than a
good-faith executive determination.3 To be clear: The Court has
held that an executive, acting pursuant to statutory and
constitutional authority may, consistent with the Due Process
Clause, unilaterally decide to detain an individual if the
executive deems this necessary for the public safety even if he
is mistaken.
Moyer is not an exceptional case. In Luther v. Borden, 7
How. 1 (1849), the Court discussed the President's
constitutional and statutory authority, in response to a request
from a state legislature or executive, " 'to call forth such
number of the militia of any other State or States, as may be
applied for, as he may judge sufficient to suppress [an]
insurrection.' " Id., at 43 (quoting Act of Feb. 28, 1795). The
Court explained that courts could not review the President's
decision to recognize one of the competing legislatures or
executives. See 7 How., at 43. If a court could second-guess this
determination, "it would become the duty of the court (provided
it came to the conclusion that the President had decided
incorrectly) to discharge those who were arrested or detained
by the troops in the service of the United States." Ibid. "If the
judicial power extends so far," the Court concluded, "the
guarantee contained in the Constitution of the United States
[referring to Art. IV, §4] is a guarantee of anarchy, and not of
order." Ibid. The Court clearly contemplated that the President
had authority to detain as he deemed necessary, and such
detentions evidently comported with the Due Process Clause as
long as the President correctly decided to call forth the militia, a
question the Court said it could not review.
The Court also addressed the natural concern that placing
"this power in the President is dangerous to liberty, and may be
abused." Id., at 44. The Court noted that "[a]ll power may be
abused if placed in unworthy hands," and explained that "it
would be difficult ... to point out any other hands in which this
power would be more safe, and at the same time equally
effectual." Ibid. Putting that aside, the Court emphasized that
this power "is conferred upon him by the Constitution and laws
of the United States, and must therefore be respected and
enforced in its judicial tribunals." Ibid. Finally, the Court
explained that if the President abused this power "it would be in
the power of Congress to apply the proper remedy. But the
courts must administer the law as they find it." Id., at 45.
Almost 140 years later, in United States v. Salerno, 481 U.
S. 739, 748 (1987), the Court explained that the Due Process
Clause "lays down [no] categorical imperative." The Court
continued:
"We have repeatedly held that the Government's regulatory
interest in community safety can, in appropriate circumstances,
outweigh an individual's liberty interest. For example, in times
of war or insurrection, when society's interest is at its peak, the
Government may detain individuals whom the Government
believes to be dangerous." Ibid.
The Court cited Ludecke v. Watkins, 335 U. S. 160 (1948), for
this latter proposition even though Ludecke actually involved
detention of enemy aliens. See also Selective Draft Law Cases,
245 U. S. 366 (1918); Jacobson v. Massachusetts, 197 U. S. 11,
27-29 (1905) (upholding legislated mass vaccinations and
approving of forced quarantines of Americans even if they show
no signs of illness); cf. Kansas v. Hendricks, 521 U. S. 346
(1997); Juragua Iron Co. v. United States, 212 U. S. 297 (1909).
The Government's asserted authority to detain an
individual that the President has determined to be an enemy
combatant, at least while hostilities continue, comports with the
Due Process Clause. As these cases also show, the Executive's
decision that a detention is necessary to protect the public need
not and should not be subjected to judicial second-guessing.
Indeed, at least in the context of enemy-combatant
determinations, this would defeat the unity, secrecy, and
dispatch that the Founders believed to be so important to the
warmaking function. See Part I, supra.
I therefore cannot agree with Justice Scalia's conclusion
that the Government must choose between using standard
criminal processes and suspending the writ. See ante, at 26
(dissenting opinion). Justice Scalia relies heavily upon Ex parte
Milligan, 4 Wall. 2 (1866), see ante, at 14-16, 17-20, and three
cases decided by New York state courts in the wake of the War
of 1812, see ante, at 13-14. I admit that Milligan supports his
position. But because the Executive Branch there, unlike here,
did not follow a specific statutory mechanism provided by
Congress, the Court did not need to reach the broader question
of Congress' power, and its discussion on this point was
arguably dicta, see 4 Wall., at 122, as four Justices believed, see
id., at 132, 134-136 (Chase, C. J., joined by Wayne, Swayne, and
Miller, JJ., concurring in judgment).
More importantly, the Court referred frequently and
pervasively to the criminal nature of the proceedings instituted
against Milligan. In fact, this feature serves to distinguish the
state cases as well. See In re Stacy, 10 Johns. *328, *334 (N. Y.
1813) ("A military commander is here assuming criminal
jurisdiction over a private citizen" (emphasis added)); Smith v.
Shaw, 12 Johns. *257, *265 (N. Y. 1815) (Shaw "might be
amenable to the civil authority for treason; but could not be
punished, under martial law, as a spy" (emphasis added));
M'Connell v. Hampton, 12 Johns. *234 (N. Y. 1815) (same for
treason).
Although I do acknowledge that the reasoning of these
cases might apply beyond criminal punishment, the
punishment-nonpunishment distinction harmonizes all of the
precedent. And, subsequent cases have at least implicitly
distinguished Milligan in just this way. See, e.g., Moyer, 212
U. S., at 84-85 ("Such arrests are not necessarily for
punishment, but are by way of precaution"). Finally, Quirin
overruled Milligan to the extent that those cases are
inconsistent. See Quirin, 317 U. S., at 45 (limiting Milligan to its
facts). Because the Government does not detain Hamdi in order
to punish him, as the plurality acknowledges, see ante, at 10-
11, Milligan and the New York cases do not control.
Justice Scalia also finds support in a letter Thomas
Jefferson wrote to James Madison. See ante, at 12. I agree that
this provides some evidence for his position. But I think this
plainly insufficient to rebut the authorities upon which I have
relied. In any event, I do not believe that Justice Scalia's
evidence leads to the necessary "clear conviction that [the
detention is] in conflict with the Constitution or laws of Congress
constitutionally enacted," Quirin, supra, at 25, to justify
nullifying the President's wartime action.
Finally, Justice Scalia's position raises an additional
concern. Justice Scalia apparently does not disagree that the
Federal Government has all power necessary to protect the
Nation. If criminal processes do not suffice, however, Justice
Scalia would require Congress to suspend the writ. See ante, at
26. But the fact that the writ may not be suspended "unless
when in Cases of Rebellion or Invasion the public Safety may
require it," Art. I, §9, cl. 2, poses two related problems. First, this
condition might not obtain here or during many other
emergencies during which this detention authority might be
necessary. Congress would then have to choose between acting
unconstitutionally4 and depriving the President of the tools he
needs to protect the Nation. Second, I do not see how
suspension would make constitutional otherwise
unconstitutional detentions ordered by the President. It simply
removes a remedy. Justice Scalia's position might therefore
require one or both of the political branches to act
unconstitutionally in order to protect the Nation. But the power
to protect the Nation must be the power to do so lawfully.
Accordingly, I conclude that the Government's detention of
Hamdi as an enemy combatant does not violate the
Constitution. By detaining Hamdi, the President, in the
prosecution of a war and authorized by Congress, has acted well
within his authority. Hamdi thereby received all the process to
which he was due under the circumstances. I therefore believe
that this is no occasion to balance the competing interests, as
the plurality unconvincingly attempts to do.
IV
Although I do not agree with the plurality that the
balancing approach of Mathews v. Eldridge, 424 U. S. 319
(1976), is the appropriate analytical tool with which to analyze
this case,5 I cannot help but explain that the plurality misapplies
its chosen framework, one that if applied correctly would
probably lead to the result I have reached. The plurality devotes
two paragraphs to its discussion of the Government's interest,
though much of those two paragraphs explain why the
Government's concerns are misplaced. See ante, at 24-25. But:
"It is 'obvious and unarguable' that no governmental interest is
more compelling than the security of the Nation." Agee, 453
U. S., at 307 (quoting Aptheker, 378 U. S., at 509). In Moyer, the
Court recognized the paramount importance of the Governor's
interest in the tranquility of a Colorado town. At issue here is
the far more significant interest of the security of the Nation.
The Government seeks to further that interest by detaining an
enemy soldier not only to prevent him from rejoining the
ongoing fight. Rather, as the Government explains, detention
can serve to gather critical intelligence regarding the intentions
and capabilities of our adversaries, a function that the
Government avers has become all the more important in the
war on terrorism. See Brief for Respondents 15; App. 347-351.
Additional process, the Government explains, will destroy
the intelligence gathering function. Brief for Respondents 43-45.
It also does seem quite likely that, under the process envisioned
by the plurality, various military officials will have to take time
to litigate this matter. And though the plurality does not say so,
a meaningful ability to challenge the Government's factual
allegations will probably require the Government to divulge
highly classified information to the purported enemy
combatant, who might then upon release return to the fight
armed with our most closely held secrets.
The plurality manages to avoid these problems by
discounting or entirely ignoring them. After spending a few
sentences putatively describing the Government's interests, the
plurality simply assures the Government that the alleged
burdens "are properly taken into account in our due process
analysis." Ante, at 25. The plurality also announces that "the
risk of erroneous deprivation of a detainee's liberty interest is
unacceptably high under the Government's proposed rule."
Ante, at 26 (internal quotation marks omitted). But there is no
particular reason to believe that the federal courts have the
relevant information and expertise to make this judgment. And
for the reasons discussed in Part I, supra, there is every reason
to think that courts cannot and should not make these
decisions.
The plurality next opines that "[w]e think it unlikely that
this basic process will have the dire impact on the central
functions of warmaking that the Government forecasts." Ante,
at 27. Apparently by limiting hearings "to the alleged
combatant's acts," such hearings "meddl[e] little, if at all, in the
strategy or conduct of war." Ante, at 28. Of course, the meaning
of the combatant's acts may become clear only after quite
invasive and extensive inquiry. And again, the federal courts are
simply not situated to make these judgments.
Ultimately, the plurality's dismissive treatment of the
Government's asserted interests arises from its apparent belief
that enemy-combatant determinations are not part of "the
actual prosecution of a war," ibid., or one of the "central
functions of warmaking," ante, at 27. This seems wrong: Taking
and holding enemy combatants is a quintessential aspect of the
prosecution of war. See, e.g., ante, at 10-11; Quirin, 317 U. S.,
at 28. Moreover, this highlights serious difficulties in applying
the plurality's balancing approach here. First, in the war context,
we know neither the strength of the Government's interests nor
the costs of imposing additional process.
Second, it is at least difficult to explain why the result
should be different for other military operations that the
plurality would ostensibly recognize as "central functions of
warmaking." As the plurality recounts:
"Parties whose rights are to be affected are entitled to be
heard; and in order that they may enjoy that right they must
first be notified. It is equally fundamental that the right to notice
and an opportunity to be heard must be granted at a
meaningful time and in a meaningful manner." Ante, at 26
(internal quotation marks omitted).
See also ibid. ("notice" of the Government's factual assertions
and "a fair opportunity to rebut [those] assertions before a
neutral decisionmaker" are essential elements of due process).
Because a decision to bomb a particular target might extinguish
life interests, the plurality's analysis seems to require notice to
potential targets. To take one more example, in November
2002, a Central Intelligence Agency (CIA) Predator drone fired a
Hellfire missile at a vehicle in Yemen carrying an al Qaeda
leader, a citizen of the United States, and four others. See
Priest, CIA Killed U. S. Citizen In Yemen Missile Strike,
Washington Post, Nov. 8, 2002, p. A1. It is not clear whether the
CIA knew that an American was in the vehicle. But the
plurality's due process would seem to require notice and
opportunity to respond here as well. Cf. Tennessee v. Garner,
471 U. S. 1 (1985). I offer these examples not because I think
the plurality would demand additional process in these
situations but because it clearly would not. The result here
should be the same.
I realize that many military operations are, in some sense,
necessary. But many, if not most, are merely expedient, and I
see no principled distinction between the military operation the
plurality condemns today (the holding of an enemy combatant
based on the process given Hamdi) from a variety of other
military operations. In truth, I doubt that there is any sensible,
bright-line distinction. It could be argued that bombings and
missile strikes are an inherent part of war, and as long as our
forces do not violate the laws of war, it is of no constitutional
moment that civilians might be killed. But this does not serve to
distinguish this case because it is also consistent with the laws
of war to detain enemy combatants exactly as the Government
has detained Hamdi.6 This, in fact, bolsters my argument in Part
III to the extent that the laws of war show that the power to
detain is part of a sovereign's war powers.
Undeniably, Hamdi has been deprived of a serious interest,
one actually protected by the Due Process Clause. Against this,
however, is the Government's overriding interest in protecting
the Nation. If a deprivation of liberty can be justified by the
need to protect a town, the protection of the Nation, a fortiori,
justifies it.
I acknowledge that under the plurality's approach, it might,
at times, be appropriate to give detainees access to counsel
and notice of the factual basis for the Government's
determination. See ante, at 25-27. But properly accounting for
the Government's interests also requires concluding that access
to counsel and to the factual basis would not always be
warranted. Though common sense suffices, the Government
thoroughly explains that counsel would often destroy the
intelligence gathering function. See Brief for Respondents 42-
43. See also App. 347-351 (affidavit of Col. D. Woolfolk). Equally
obvious is the Government's interest in not fighting the war in
its own courts, see, e.g., Johnson v. Eisentrager, 339 U. S., at
779, and protecting classified information, see, e.g.,
Department of Navy v. Egan, 484 U. S. 518, 527 (1988)
(President's "authority to classify and control access to
information bearing on national security and to determine" who
gets access "flows primarily from [the Commander-in-Chief
Clause] and exists quite apart from any explicit congressional
grant"); Agee, 453 U. S., at 307 (upholding revocation of former
CIA employee's passport in large part by reference to the
Government's need "to protect the secrecy of [its] foreign
intelligence operations").7
***
For these reasons, I would affirm the judgment of the Court
of Appeals.
YASER ESAM HAMDI and ESAM FOUAD HAMDI, as next
friend of YASER ESAM HAMDI, PETITIONERS v. DONALD
H. RUMSFELD, SECRETARY OF DEFENSE, et al.
on writ of certiorari to the united states court of
appeals for the fourth circuit
[June 28, 2004]
Justice Souter, with whom Justice Ginsburg joins,
concurring in part, dissenting in part, and concurring in the
judgment.
According to Yaser Hamdi's petition for writ of habeas
corpus, brought on his behalf by his father, the Government of
the United States is detaining him, an American citizen on
American soil, with the explanation that he was seized on the
field of battle in Afghanistan, having been on the enemy side. It
is undisputed that the Government has not charged him with
espionage, treason, or any other crime under domestic law. It is
likewise undisputed that for one year and nine months, on the
basis of an Executive designation of Hamdi as an "enemy
combatant," the Government denied him the right to send or
receive any communication beyond the prison where he was
held and, in particular, denied him access to counsel to
represent him.1 The Government asserts a right to hold Hamdi
under these conditions indefinitely, that is, until the
Government determines that the United States is no longer
threatened by the terrorism exemplified in the attacks of
September 11, 2001.
In these proceedings on Hamdi's petition, he seeks to
challenge the facts claimed by the Government as the basis for
holding him as an enemy combatant. And in this Court he
presses the distinct argument that the Government's claim,
even if true, would not implicate any authority for holding him
that would satisfy 18 U. S. C. §4001(a) (Non-Detention Act),
which bars imprisonment
or detention of a citizen "except pursuant to an Act of
Congress."
The Government responds that Hamdi's incommunicado
imprisonment as an enemy combatant seized on the field of
battle falls within the President's power as Commander in Chief
under the laws and usages of war, and is in any event
authorized by two statutes. Accordingly, the Government
contends that Hamdi has no basis for any challenge by petition
for habeas except to his own status as an enemy combatant;
and even that challenge may go no further than to enquire
whether "some evidence" supports Hamdi's designation, see
Brief for Respondents 34-36; if there is "some evidence," Hamdi
should remain locked up at the discretion of the Executive. At
the argument of this case, in fact, the Government went further
and suggested that as long as a prisoner could challenge his
enemy combatant designation when responding to interrogation
during incommunicado detention he was accorded sufficient
process to support his designation as an enemy combatant. See
Tr. of Oral Arg. 40; id., at 42 ("[H]e has an opportunity to explain
it in his own words" "[d]uring interrogation"). Since on either
view judicial enquiry so limited would be virtually worthless as a
way to contest detention, the Government's concession of
jurisdiction to hear Hamdi's habeas claim is more theoretical
than practical, leaving the assertion of Executive authority close
to unconditional.
The plurality rejects any such limit on the exercise of
habeas jurisdiction and so far I agree with its opinion. The
plurality does, however, accept the Government's position that
if Hamdi's designation as an enemy combatant is correct, his
detention (at least as to some period) is authorized by an Act of
Congress as required by §4001(a), that is, by the Authorization
for Use of Military Force, 115 Stat. 224 (hereinafter Force
Resolution). Ante, at 9-14. Here, I disagree and respectfully
dissent. The Government has failed to demonstrate that the
Force Resolution authorizes the detention complained of here
even on the facts the Government claims. If the Government
raises nothing further than the record now shows, the Non-
Detention Act entitles Hamdi to be released.
I
The Government's first response to Hamdi's claim that
holding him violates §4001(a), prohibiting detention of citizens
"except pursuant to an Act of Congress," is that the statute
does not even apply to military wartime detentions, being
beyond the sphere of domestic criminal law. Next, the
Government says that even if that statute does apply, two Acts
of Congress provide the authority §4001(a) demands: a general
authorization to the Department of Defense to pay for detaining
"prisoners of war" and "similar" persons, 10 U. S. C. §956(5),
and the Force Resolution, passed after the attacks of 2001. At
the same time, the Government argues that in detaining Hamdi
in the manner described, the President is in any event acting as
Commander in Chief under Article II of the Constitution, which
brings with it the right to invoke authority under the accepted
customary rules for waging war. On the record in front of us, the
Government has not made out a case on any theory.
II
The threshold issue is how broadly or narrowly to read the
Non-Detention Act, the tone of which is severe: "No citizen shall
be imprisoned or otherwise detained by the United States
except pursuant to an Act of Congress." Should the severity of
the Act be relieved when the Government's stated factual
justification for incommunicado detention is a war on terrorism,
so that the Government may be said to act "pursuant" to
congressional terms that fall short of explicit authority to
imprison individuals? With one possible though important
qualification, see infra, at 10-11, the answer has to be no. For a
number of reasons, the prohibition within §4001(a) has to be
read broadly to accord the statute a long reach and to impose a
burden of justification on the Government.
 First, the circumstances in which the Act was adopted point
the way to this interpretation. The provision superseded a cold-
war statute, the Emergency Detention Act of 1950 (formerly 50
U. S. C. §811 et seq. (1970 ed.)), which had authorized the
Attorney General, in time of emergency, to detain anyone
reasonably thought likely to engage in espionage or sabotage.
That statute was repealed in 1971 out of fear that it could
authorize a repetition of the World War II internment of citizens
of Japanese ancestry; Congress meant to preclude another
episode like the one described in Korematsu v. United States,
323 U. S. 214 (1944). See H. R. Rep. No. 92-116, pp. 2, 4-5
(1971). While Congress might simply have struck the 1950
statute, in considering the repealer the point was made that the
existing statute provided some express procedural protection,
without which the Executive would seem to be subject to no
statutory limits protecting individual liberty. See id., at 5 (mere
repeal "might leave citizens subject to arbitrary executive
action, with no clear demarcation of the limits of executive
authority"); 117 Cong. Rec. 31544 (1971) (Emergency Detention
Act "remains as the only existing barrier against the future
exercise of executive power which resulted in" the Japanese
internment); cf. id., at 31548 (in the absence of further
procedural provisions, even §4001(a) "will virtually leave us
stripped naked against the great power ... which the President
has"). It was in these circumstances that a proposed limit on
Executive action was expanded to the inclusive scope of
§4001(a) as enacted.
The fact that Congress intended to guard against a
repetition of the World War II internments when it repealed the
1950 statute and gave us §4001(a) provides a powerful reason
to think that §4001(a) was meant to require clear congressional
authorization before any citizen can be placed in a cell. It is not
merely that the legislative history shows that §4001(a) was
thought necessary in anticipation of times just like the present,
in which the safety of the country is threatened. To appreciate
what is most significant, one must only recall that the
internments of the 1940's were accomplished by Executive
action. Although an Act of Congress ratified and confirmed an
Executive order authorizing the military to exclude individuals
from defined areas and to accommodate those it might remove,
see Ex parte Endo, 323 U. S. 283, 285-288 (1944), the statute
said nothing whatever about the detention of those who might
be removed, id., at 300-301; internment camps were creatures
of the Executive, and confinement in them rested on assertion
of Executive authority, see id., at 287-293. When, therefore,
Congress repealed the 1950 Act and adopted §4001(a) for the
purpose of avoiding another Korematsu, it intended to preclude
reliance on vague congressional authority (for example,
providing "accommodations" for those subject to removal) as
authority for detention or imprisonment at the discretion of the
Executive (maintaining detention camps of American citizens,
for example). In requiring that any Executive detention be
"pursuant to an Act of Congress," then, Congress necessarily
meant to require a congressional enactment that clearly
authorized detention or imprisonment.
Second, when Congress passed §4001(a) it was acting in
light of an interpretive regime that subjected enactments
limiting liberty in wartime to the requirement of a clear
statement and it presumably intended §4001(a) to be read
accordingly. This need for clarity was unmistakably expressed in
Ex parte Endo, supra, decided the same day as Korematsu.
Endo began with a petition for habeas corpus by an interned
citizen claiming to be loyal and law-abiding and thus "unlawfully
detained." 323 U. S., at 294. The petitioner was held entitled to
habeas relief in an opinion that set out this principle for
scrutinizing wartime statutes in derogation of customary liberty:
"In interpreting a wartime measure we must assume that [its]
purpose was to allow for the greatest possible accommodation
between ... liberties and the exigencies of war. We must
assume, when asked to find implied powers in a grant of
legislative or executive authority, that the law makers intended
to place no greater restraint on the citizen than was clearly and
unmistakably indicated by the language they used." Id., at 300.
Congress's understanding of the need for clear authority
before citizens are kept detained is itself therefore clear, and
§4001(a) must be read to have teeth in its demand for
congressional authorization.
Finally, even if history had spared us the cautionary
example of the internments in World War II, even if there had
been no Korematsu, and Endo had set out no principle of
statutory interpretation, there would be a compelling reason to
read §4001(a) to demand manifest authority to detain before
detention is authorized. The defining character of American
constitutional government is its constant tension between
security and liberty, serving both by partial helpings of each. In
a government of separated powers, deciding finally on what is a
reasonable degree of guaranteed liberty whether in peace or
war (or some condition in between) is not well entrusted to the
Executive Branch of Government, whose particular
responsibility is to maintain security. For reasons of inescapable
human nature, the branch of the Government asked to counter
a serious threat is not the branch on which to rest the Nation's
entire reliance in striking the balance between the will to win
and the cost in liberty on the way to victory; the responsibility
for security will naturally amplify the claim that security
legitimately raises. A reasonable balance is more likely to be
reached on the judgment of a different branch, just as Madison
said in remarking that "the constant aim is to divide and
arrange the several offices in such a manner as that each may
be a check on the other--that the private interest of every
individual may be a sentinel over the public rights." The
Federalist No. 51, p. 349 (J. Cooke ed. 1961). Hence the need for
an assessment by Congress before citizens are subject to
lockup, and likewise the need for a clearly expressed
congressional resolution of the competing claims.
III
Under this principle of reading §4001(a) robustly to require
a clear statement of authorization to detain, none of the
Government's arguments suffices to justify Hamdi's detention.
A for reasons of security in wartime, just as Hamdi claims.2
First, there is the argument that §4001(a) does not even
apply to wartime military detentions, a position resting on the
placement of §4001(a) in Title 18 of the United States Code, the
gathering of federal criminal law. The text of the statute does
not, however, so limit its reach, and the legislative history of the
provision shows its placement in Title 18 was not meant to
render the statute more restricted than its terms. The draft of
what is now §4001(a) as contained in the original bill prohibited
only imprisonment unauthorized by Title 18. See H. R. Rep. No.
92-
116, at 4. In response to the Department of Justice's objection
that the original draft seemed to assume wrongly that all
provisions for the detention of convicted persons would be
contained in Title 18, the provision was amended by replacing a
reference to that title with the reference to an "Act of
Congress." Id., at 3. The Committee on the Judiciary, discussing
this change, stated that "[limiting] detention of citizens ... to
situations in which ... an Act of Congres[s] exists" would "assure
that no detention camps can be established without at least the
acquiescence of the Congress." Id., at 5. See also supra, at 4-6.
This understanding, that the amended bill would sweep beyond
imprisonment for crime and apply to Executive detention in
furtherance of wartime security, was emphasized in an
extended debate. Representative Ichord, chairman of the House
Internal Security Committee and an opponent of the bill, feared
that the redrafted statute would "deprive the President of his
emergency powers and his most effective means of coping with
sabotage and espionage agents in war-related crises." 117
Cong. Rec., at 31542. Representative Railsback, the bill's
sponsor, spoke of the bill in absolute terms: "[I]n order to
prohibit arbitrary executive action, [the bill] assures that no
detention of citizens can be undertaken by the Executive
without the prior consent of Congress." Id., at 31551. This
legislative history indicates that Congress was aware that
§4001(a) would limit the Executive's power to detain citizens in
wartime to protect national security, and it is fair to say that the
prohibition was thus intended to extend not only to the exercise
of power to vindicate the interests underlying domestic criminal
law, but to statutorily unauthorized detention by the Executive
B
Next, there is the Government's claim, accepted by the
Court, that the terms of the Force Resolution are adequate to
authorize detention of an enemy combatant under the
circumstances described,3 a claim the Government fails to
support sufficiently to satisfy §4001(a) as read to require a clear
statement of authority to detain. Since the Force Resolution was
adopted one week after the attacks of September 11, 2001, it
naturally speaks with some generality, but its focus is clear, and
that is on the use of military power. It is fairly read to authorize
the use of armies and weapons, whether against other armies
or individual terrorists. But, like the statute discussed in Endo, it
never so much as uses the word detention, and there is no
reason to think Congress might have perceived any need to
augment Executive power to deal with dangerous citizens within
the United States, given the well-stocked statutory arsenal of
defined criminal offenses covering the gamut of actions that a
citizen sympathetic to terrorists might commit. See, e.g., 18
U. S. C. §2339A (material support for various terrorist acts);
§2339B (material support to a foreign terrorist organization);
§2332a (use of a weapon of mass destruction, including
conspiracy and attempt); §2332b(a)(1) (acts of terrorism
"transcending national boundaries," including threats,
conspiracy, and attempt); 18 U. S. C. A. §2339C (Supp. 2004)
(financing of certain terrorist acts); see also 18 U. S. C. §3142(e)
(pretrial detention). See generally Brief for Janet Reno et al. as
Amici Curiae in Rumsfeld v. Padilla, O. T. 2003, No. 03-1027,
pp. 14-19, and n. 17 (listing the tools available to the Executive
to fight terrorism even without the power the Government
claims here); Brief for Louis Henkin et al. as Amici Curiae in
Rumsfeld v. Padilla, O. T. 2003, No. 03-1027, p. 23, n. 27.4
C Taliban side of a field of battle in Afghanistan. He would
Even so, there is one argument for treating the Force
Resolution as sufficiently clear to authorize detention of a
citizen consistently with §4001(a). Assuming the argument to be
sound, however, the Government is in no position to claim its
advantage.
Because the Force Resolution authorizes the use of military
force in acts of war by the United States, the argument goes, it
is reasonably clear that the military and its Commander in Chief
are authorized to deal with enemy belligerents according to the
treaties and customs known collectively as the laws of war. Brief
for Respondents 20-
22; see ante, at 9-14 (accepting this argument). Accordingly,
the United States may detain captured enemies, and Ex parte
Quirin, 317 U. S. 1 (1942), may perhaps be claimed for the
proposition that the American citizenship of such a captive does
not as such limit the Government's power to deal with him
under the usages of war. Id., at 31, 37-38. Thus, the
Government here repeatedly argues that Hamdi's detention
amounts to nothing more than customary detention of a captive
taken on the field of battle: if the usages of war are fairly
authorized by the Force Resolution, Hamdi's detention is
authorized for purposes of §4001(a).
There is no need, however, to address the merits of such
an argument in all possible circumstances. For now it is enough
to recognize that the Government's stated legal position in its
campaign against the Taliban (among whom Hamdi was
allegedly captured) is apparently at odds with its claim here to
be acting in accordance with customary law of war and hence to
be within the terms of the Force Resolution in its detention of
Hamdi. In a statement of its legal position cited in its brief, the
Government says that "the Geneva Convention applies to the
Taliban detainees." Office of the White House Press Secretary,
Fact Sheet, Status of Detainees at Guantanamo (Feb. 7, 2002),
www.whitehouse.gov/news/releases/2002/
02/20020207-13.html (as visited June 18, 2004, and available in
Clerk of Court's case file) (hereinafter White House Press
Release) (cited in Brief for Respondents 24, n. 9). Hamdi
presumably is such a detainee, since according to the
Government's own account, he was taken bearing arms on the
therefore seem to qualify for treatment as a prisoner of war
under the Third Geneva Convention, to which the United States
is a party. Article 4 of the Geneva Convention (III) Relative to the
Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T.
3316, 3320, T. I. A. S. No. 3364.
By holding him incommunicado, however, the Government
obviously has not been treating him as a prisoner of war, and in
fact the Government claims that no Taliban detainee is entitled
to prisoner of war status. See Brief for Respondents 24; White
House Press Release. This treatment appears to be a violation of
the Geneva Convention provision that even in cases of doubt,
captives are entitled to be treated as prisoners of war "until
such time as their status has been determined by a competent
tribunal." Art. 5, 6 U. S. T., at 3324. The Government answers
that the President's determination that Taliban detainees do not
qualify as prisoners of war is conclusive as to Hamdi's status
and removes any doubt that would trigger application of the
Convention's tribunal requirement. See Brief for Respondents
24. But reliance on this categorical pronouncement to settle
doubt is apparently at odds with the military regulation, Enemy
Prisoners of War, Retained Personnel, Civilian Internees and
Other Detainees, Army Reg. 190-8, §§1-5, 1-6 (1997), adopted
to implement the Geneva Convention, and setting out a detailed
procedure for a military tribunal to determine an individual's
status. See, e.g., id., §1-6 ("A competent tribunal shall be
composed of three commissioned officers"; a "written record
shall be made of proceedings"; "[p]roceedings shall be open"
with certain exceptions; "[p]ersons whose status is to be
determined shall be advised of their rights at the beginning of
their hearings," "allowed to attend all open sessions," "allowed
to call witnesses if reasonably available, and to question those
witnesses called by the Tribunal," and to "have a right to
testify"; and a tribunal shall determine status by a
"[p]reponderance of evidence"). One of the types of doubt these
tribunals are meant to settle is whether a given individual may
be, as Hamdi says he is, an "[i]nnocent civilian who should be
immediately returned to his home or released." Id., 1-6e(10)(c).
The regulation, jointly promulgated by the Headquarters of the
Departments of the Army, Navy, Air Force, and Marine Corps,
provides that "[p]ersons who have been determined by a
competent tribunal not to be entitled to prisoner of war status
may not be executed, imprisoned, or otherwise penalized
without further proceedings to determine what acts they have
committed and what penalty should be imposed." Id., §1-6g.
The regulation also incorporates the Geneva Convention's
presumption that in cases of doubt, "persons shall enjoy the
protection of the ... Convention until such time as their status
has been determined by a competent tribunal." Id., §1-6a. Thus,
there is reason to question whether the United States is acting
in accordance with the laws of war it claims as authority.
Whether, or to what degree, the Government is in fact
violating the Geneva Convention and is thus acting outside the
customary usages of war are not matters I can resolve at this
point. What I can say, though, is that the Government has not
made out its claim that in detaining Hamdi in the manner
described, it is acting in accord with the laws of war authorized
to be applied against citizens by the Force Resolution. I
conclude accordingly that the Government has failed to support
the position that the Force Resolution authorizes the described
detention of Hamdi for purposes of §4001(a).
It is worth adding a further reason for requiring the
Government to bear the burden of clearly justifying its claim to
be exercising recognized war powers before declaring §4001(a)
satisfied. Thirty-eight days after adopting the Force Resolution,
Congress passed the statute entitled Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT), 115
Stat. 272; that Act authorized the detention of alien terrorists
for no more than seven days in the absence of criminal charges
or deportation proceedings, 8 U. S. C. §1226a(a)(5) (2000 ed.,
Supp. I). It is very difficult to believe that the same Congress
that carefully circumscribed Executive power over alien
terrorists on home soil would not have meant to require the
Government to justify clearly
its detention of an American citizen held on home soil
incommunicado.
D
Since the Government has given no reason either to
deflect the application of §4001(a) or to hold it to be satisfied, I
need to go no further; the Government hints of a constitutional
challenge to the statute, but it presents none here. I will,
however, stray across the line between statutory and
constitutional territory just far enough to note the weakness of
the Government's mixed claim of inherent, extrastatutory
authority under a combination of Article II of the Constitution
and the usages of war. It is in fact in this connection that the
Government developed its argument that the exercise of war
powers justifies the detention, and what I have just said about
its inadequacy applies here as well. Beyond that, it is instructive
to recall Justice Jackson's observation that the President is not
Commander in Chief of the country, only of the military.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 643-644
(1952) (concurring opinion); see also id., at 637-638
(Presidential authority is "at its lowest ebb" where the President
acts contrary to congressional will).
There may be room for one qualification to Justice
Jackson's statement, however: in a moment of genuine
emergency, when the Government must act with no time for
deliberation, the Executive may be able to detain a citizen if
there is reason to fear he is an imminent threat to the safety of
the Nation and its people (though I doubt there is any want of
statutory authority, see supra, at 9-10). This case, however,
does not present that question, because an emergency power
of necessity must at least be limited by the emergency; Hamdi
has been locked up for over two years. Cf. Ex parte Milligan, 4
Wall. 2, 127 (1866) (martial law justified only by "actual and
present" necessity as in a genuine invasion that closes civilian
courts).
Whether insisting on the careful scrutiny of emergency
claims or on a vigorous reading of §4001(a), we are heirs to a
tradition given voice 800 years ago by Magna Carta, which, on
the barons' insistence, confined executive power by "the law of
the land."
IV
Because I find Hamdi's detention forbidden by §4001(a)
and unauthorized by the Force Resolution, I would not reach any
questions of what process he may be due in litigating disputed
issues in a proceeding under the habeas statute or prior to the
habeas enquiry itself. For me, it suffices that the Government
has failed to justify holding him in the absence of a further Act
of Congress, criminal charges, a showing that the detention
conforms to the laws of war, or a demonstration that §4001(a) is
unconstitutional. I would therefore vacate the judgment of the
Court of Appeals and remand for proceedings consistent with
this view.
Since this disposition does not command a majority of the
Court, however, the need to give practical effect to the
conclusions of eight members of the Court rejecting the
Government's position calls for me to join with the plurality in
ordering remand on terms closest to those I would impose. See
Screws v. United States, 325 U. S. 91, 134 (1945) (Rutledge, J.,
concurring in result). Although I think litigation of Hamdi's status
as an enemy combatant is unnecessary, the terms of the
plurality's remand will allow Hamdi to offer evidence that he is
not an enemy combatant, and he should at the least have the
benefit of that opportunity.
It should go without saying that in joining with the plurality
to produce a judgment, I do not adopt the plurality's resolution
of constitutional issues that I would not reach. It is not that I
could disagree with the plurality's determinations (given the
plurality's view of the Force Resolution) that someone in
Hamdi's position is entitled at a minimum to notice of the
Government's claimed factual basis for holding him, and to a
fair chance to rebut it before a neutral decision maker, see ante,
at 26; nor, of course, could I disagree with the plurality's
affirmation of Hamdi's right to counsel, see ante, at 32-33. On
the other hand, I do not mean to imply agreement that the
Government could claim an evidentiary presumption casting the
burden of rebuttal on Hamdi, see ante, at 27, or that an
opportunity to litigate before a military tribunal might obviate or
truncate enquiry by a court on habeas, see ante, at 31-32.
Subject to these qualifications, I join with the plurality in a
judgment of the Court vacating the Fourth Circuit's judgment
and remanding the case.
FOOTNOTES
Footnote 1
Here the basis asserted for detention by the military is that
Hamdi was carrying a weapon against American troops on a
foreign battlefield; that is, that he was an enemy combatant.
The legal category of enemy combatant has not been
elaborated upon in great detail. The permissible bounds of the
category will be defined by the lower courts as subsequent
cases are presented to them.
Footnote 2
Because we hold that Hamdi is constitutionally entitled to the
process described above, we need not address at this time
whether any treaty guarantees him similar access to a tribunal
for a determination of his status.
FOOTNOTES
Footnote 1
As I shall discuss presently, see infra, at 17-19, the Court
purported to limit this language in Ex parte Quirin, 317 U. S. 1,
45 (1942). Whatever Quirin's effect on Milligan's precedential
value, however, it cannot undermine its value as an indicator of
original meaning. Cf. Reid v. Covert, 354 U. S. 1, 30 (1957)
(plurality opinion) (Milligan remains "one of the great landmarks
in this Court's history").
Footnote 2
Without bothering to respond to this analysis, the plurality
states that Milligan "turned in large part" upon the defendant's
lack of prisoner-of-war status, and that the Milligan Court
explicitly and repeatedly said so. See ante, at 14. Neither is
true. To the extent, however, that prisoner-of-war status was
relevant in Milligan, it was only because prisoners of war
received different statutory treatment under the conditional
suspension then in effect.
Footnote 3
The only two Court of Appeals cases from World War II cited
by the Government in which citizens were detained without trial
likewise involved petitioners who were conceded to have been
members of enemy forces. See In re Territo, 156 F. 2d 142, 143-
145 (CA9 1946); Colepaugh v. Looney, 235 F. 2d 429, 432 (CA10
1956). The plurality complains that Territo is the only case I
have identified in which "a United States citizen [was] captured
in a foreign combat zone," ante, at 16. Indeed it is; such cases
must surely be rare. But given the constitutional tradition I have
described, the burden is not upon me to find cases in which the
writ was granted to citizens in this country who had been
captured on foreign battlefields; it is upon those who would
carve out an exception for such citizens (as the plurality's
complaint suggests it would) to find a single case (other than
one where enemy status was admitted) in which habeas was
denied.
Footnote 4
The plurality's assertion that Quirin somehow "clarifies"
Milligan, ante, at 15, is simply false. As I discuss supra, at 17-
19, the Quirin Court propounded a mistaken understanding of
Milligan; but nonetheless its holding was limited to "the case
presented by the present record," and to "the conceded facts,"
and thus avoided conflict with the earlier case. See 317 U. S., at
45-46 (emphasis added). The plurality, ignoring this expressed
limitation, thinks it "beside the point" whether belligerency is
conceded or found "by some other process" (not necessarily a
jury trial) "that verifies this fact with sufficient certainty." Ante,
at 16. But the whole point of the procedural guarantees in the
Bill of Rights is to limit the methods by which the Government
can determine facts that the citizen disputes and on which the
citizen's liberty depends. The plurality's claim that Quirin's one-
paragraph discussion of Milligan provides a "[c]lear . . .
disavowal" of two false imprisonment cases from the War of
1812, ante, at 15, thus defies logic; unlike the plaintiffs in those
cases, Haupt was concededly a member of an enemy force.
The Government also cites Moyer v. Peabody, 212 U. S. 78
(1909), a suit for damages against the Governor of Colorado, for
violation of due process in detaining the alleged ringleader of a
rebellion quelled by the state militia after the Governor's
declaration of a state of insurrection and (he contended)
suspension of the writ "as incident thereto." Ex parte Moyer, 35
Colo. 154, 157, 91 P. 738, 740 (1905). But the holding of Moyer
v. Peabody (even assuming it is transferable from state-militia
detention after state suspension to federal standing-army
detention without suspension) is simply that "[s]o long as such
arrests [were] made in good faith and in the honest belief that
they [were] needed in order to head the insurrection off," 212
U. S., at 85, an action in damages could not lie. This "good-
faith" analysis is a forebear of our modern doctrine of qualified
immunity. Cf. Scheuer v. Rhodes, 416 U. S. 232, 247-248 (1974)
(understanding Moyer in this way). Moreover, the detention at
issue in Moyer lasted about two and a half months, see 212
U. S., at 85, roughly the length of time permissible under the
1679 Habeas Corpus Act, see supra, at 4-5.
In addition to Moyer v. Peabody, Justice Thomas relies
upon Luther v. Borden, 7 How. 1 (1849), a case in which the
state legislature had imposed martial law--a step even more
drastic than suspension of the writ. See post, at 13-14
(dissenting opinion). But martial law has not been imposed
here, and in any case is limited to "the theatre of active military
operations, where war really prevails," and where therefore the
courts are closed. Ex parte Milligan, 4 Wall. 2, 127 (1866); see
also id., at 129-130 (distinguishing Luther).

Footnote 5
The plurality rejects any need for "specific language of
detention" on the ground that detention of alleged combatants
is a "fundamental incident of waging war." Ante, at 12. Its
authorities do not support that holding in the context of the
present case. Some are irrelevant because they do not address
the detention of American citizens. E.g., Naqvi, Doubtful
Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002).
The plurality's assertion that detentions of citizen and alien
combatants are equally authorized has no basis in law or
common sense. Citizens and noncitizens, even if equally
dangerous, are not similarly situated. See, e.g., Milligan, supra;
Johnson v. Eisentrager, 339 U. S. 763 (1950); Rev. Stat. 4067, 50
U. S. C. §21 (Alien Enemy Act). That captivity may be consistent
with the principles of international law does not prove that it
also complies with the restrictions that the Constitution places
on the American Government's treatment of its own citizens. Of
the authorities cited by the plurality that do deal with detention
of citizens, Quirin and Territo have already been discussed and
rejected. See supra, at 19-20, and n. 3. The remaining
authorities pertain to U. S. detention of citizens during the Civil
War, and are irrelevant for two reasons: (1) the Lieber Code was
issued following a congressional authorization of suspension of
the writ, see Instructions for the Government of Armies of the
United States in the Field, Gen. Order No. 100 (1863), reprinted
in 2 Lieber, Miscellaneous Writings, p. 246; Act of Mar. 3, 1863,
12 Stat. 755, §§1, 2; and (2) citizens of the Confederacy, while
citizens of the United States, were also regarded as citizens of a
hostile power.
Footnote 6
Justice Thomas worries that the constitutional conditions for
suspension of the writ will not exist "during many ...
emergencies during which ... detention authority might be
necessary," post, at 16. It is difficult to imagine situations in
which security is so seriously threatened as to justify indefinite
imprisonment without trial, and yet the constitutional conditions
of rebellion or invasion are not met.
FOOTNOTES
Footnote 1
Although I have emphasized national-security concerns, the
President's foreign-affairs responsibilities are also squarely
implicated by this case. The Government avers that Northern
Alliance forces captured Hamdi, and the District Court
demanded that the Government turn over information relating
to statements made by members of the Northern Alliance. See
316 F. 3d 450, 462 (CA4 2003).
Footnote 2
It could be argued that the habeas statutes are evidence of
congressional intent that enemy combatants are entitled to
challenge the factual basis for the Government's determination.
See, e.g., 28 U. S. C. §§2243, 2246. But factual development is
needed only to the extent necessary to resolve the legal
challenge to the detention. See, e.g., Walker v. Johnston, 312
U. S. 275, 284 (1941).
Footnote 3
Indeed, it is not even clear that the Court required good faith.
See Moyer, 212 U. S., at 85 ("It is not alleged that [the
Governor's] judgment was not honest, if that be material, or
that [Moyer] was detained after fears of the insurrection were at
an end").
Footnote 4
I agree with Justice Scalia that this Court could not review
Congress' decision to suspend the writ. See ante, at 26.
Footnote 5
Evidently, neither do the parties, who do not cite Mathews
even once.
Footnote 6
Hamdi's detention comports with the laws of war, including
the Geneva Convention (III) Relative to the Treatment of
Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3406, T. I. A. S.
No. 3364. See Brief for Respondents 22-24.

Footnote 7
These observations cast still more doubt on the
appropriateness and usefulness of Mathews v. Eldridge, 424
U. S. 319 (1976), in this context. It is, for example, difficult to
see how the plurality can insist that Hamdi unquestionably has
the right to access to counsel in connection with the
proceedings on remand, when new information could become
available to the Government showing that such access would
pose a grave risk to national security. In that event, would the
Government need to hold a hearing before depriving Hamdi of
his newly acquired right to counsel even if that hearing would
itself pose a grave threat?
FOOTNOTES
Footnote 1
The Government has since February 2004 permitted Hamdi to
consult with counsel as a matter of policy, but does not concede
that it has an obligation to allow this. Brief for Respondents 9,
39-46.
Footnote 2
Nor is it possible to distinguish between civilian and military
authority to detain based on the congressional object of
avoiding another Korematsu v. United States, 323 U. S. 214
(1944). See Brief for Respondents 21 (arguing that military
detentions are exempt). Although a civilian agency authorized
by Executive order ran the detention camps, the relocation and
detention of American citizens was ordered by the military
under authority of the President as Commander in Chief. See Ex
parte Endo, 323 U. S. 283, 285-288 (1944). The World War II
internment was thus ordered under the same Presidential power
invoked here and the intent to bar a repetition goes to the
action taken and authority claimed here.
Footnote 3
As noted, supra, at 3, the Government argues that a required
Act of Congress is to be found in a statutory authorization to
spend money appropriated for the care of prisoners of war and
of other, similar prisoners, 10 U. S. C. §956(5). It is enough to
say that this statute is an authorization to spend money if there
are prisoners, not an authorization to imprison anyone to
provide the occasion for spending money.
Footnote 4
Even a brief examination of the reported cases in which the
Government has chosen to proceed criminally against those
who aided the Taliban shows the Government has found no
shortage of offenses to allege. See United States v. Lindh, 212
F. Supp. 2d 541, 547 (ED Va. 2002); United States v. Khan, 309
F. Supp. 2d 789, 796 (ED Va. 2004).
U.S. Supreme Court
UNITED STATES v. VERDUGO-URQUIDEZ, 494 U.S. 259
(1990)
494 U.S. 259
UNITED STATES v. VERDUGO-URQUIDEZ
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 88-1353.
Argued November 7, 1989
Decided February 28, 1990
After the Government obtained an arrest warrant for
respondent - a Mexican citizen and resident believed to be a
leader of an organization that smuggles narcotics into this
country - he was apprehended by Mexican police and
transported here, where he was arrested. Following his arrest,
Drug Enforcement Administration (DEA) agents, working with
Mexican officials, searched his Mexican residences and seized
certain documents. The District Court granted his motion to
suppress the evidence, concluding that the Fourth Amendment -
which protects "the people" against unreasonable searches and
seizures - applied to the searches, and that the DEA agents had
failed to justify searching the premises without a warrant. The
Court of Appeals affirmed. Citing Reid v. Covert, 354 U.S. 1 -
which held that American citizens tried abroad by United States
military officials were entitled to Fifth and Sixth Amendment
protections - the court concluded that the Constitution imposes
substantive constraints on the Federal Government, even when
it operates abroad. Relying on INS v. Lopez-Mendoza, 468 U.S.
1032 - where a majority assumed that illegal aliens in the
United States have Fourth Amendment rights - the court
observed that it would be odd to acknowledge that respondent
was entitled to trial-related rights guaranteed by the Fifth and
Sixth Amendments, but not to Fourth Amendment protection.
Held:
The Fourth Amendment does not apply to the search and
seizure by United States agents of property owned by a
nonresident alien and located in a foreign country. Pp. 264-275.
(a) If there were a constitutional violation in this case, it
occurred solely in Mexico, since a Fourth Amendment violation
is fully accomplished at the time of an unreasonable
governmental intrusion whether or not the evidence seized is
sought for use in a criminal trial. Thus, the Fourth Amendment
functions differently from the Fifth Amendment, whose privilege
against self-incrimination is a fundamental trial right of criminal
defendants. P. 264.
(b) The Fourth Amendment phrase "the people" seems to be a
term of art used in select parts of the Constitution and contrasts
with the words "person" and "accused" used in Articles of the
Fifth and Sixth Amendments regulating criminal procedures.
This suggests that "the people" [494 U.S. 259, 260] refers to a
class of persons who are part of a national community or who
have otherwise developed sufficient connection with this
country to be considered part of that community. Pp. 264-266.
(c) The Fourth Amendment's drafting history shows that its
purpose was to protect the people of the United States against
arbitrary action by their own Government and not to restrain
the Federal Government's actions against aliens outside United
States territory. Nor is there any indication that the Amendment
was understood by the Framers' contemporaries to apply to
United States activities directed against aliens in foreign
territory or in international waters. Pp. 266-268.
(d) The view that every constitutional provision applies
wherever the Government exercises its power is contrary to this
Court's decisions in the Insular Cases, which held that not all
constitutional provisions apply to governmental activity even in
territories where the United States has sovereign power. See, e.
g., Balzac v. Porto Rico, 258 U.S. 298 . Indeed, the claim that
extraterritorial aliens are entitled to rights under the Fifth
Amendment - which speaks in the relatively universal term of
"person" - has been emphatically rejected. Johnson v.
Eisentrager, 339 U.S. 763, 784 . Pp. 268-269.
(e) Respondent's reliance on Reid, supra, is misplaced, since
that case stands only for the proposition that United States
citizens stationed abroad could invoke the protection of the Fifth
and Sixth Amendments. Similarly, those cases in which aliens
have been determined to enjoy certain constitutional rights
establish only that aliens receive such protections when they
have come within the territory of, and have developed
substantial connections with, this country. See, e. g., Plyler v.
Doe, 457 U.S. 202, 212 . Respondent, however, is an alien with
no previous significant voluntary connection with the United
States, and his legal but involuntary presence here does not
indicate any substantial connection with this country. The Court
of Appeals' reliance on INS v. Lopez-Mendoza, supra, is also
misplaced, since that case assumed that, but did not expressly
address the question whether, the Fourth Amendment applies
to illegal aliens in the United States. Even assuming such aliens
- who are in this country voluntarily and presumably have
accepted some societal obligations - would be entitled to Fourth
Amendment protections, their situation differs from that of
respondent, who had no voluntary connection with this country
that might place him among "the people." This Court's decisions
expressly according differing protection to aliens than to
citizens also undermine respondent's claim that treating aliens
differently under the Fourth Amendment violates the equal
protection component of the Fifth Amendment. Pp. 269-273.
(f) The Court of Appeals' rule would have significant and
deleterious consequences for the United States in conducting
activities beyond its [494 U.S. 259, 261] borders. The rule
would apply not only to law enforcement operations abroad, but
also to other foreign operations - such as Armed Forces actions -
which might result in "searches and seizures." Under the rule,
aliens with no attachment to this country might bring actions for
damages to remedy claimed violations of the Fourth
Amendment in foreign countries or in international waters, and
Members of the Executive and Legislative Branches would be
plunged into a sea of uncertainty as to what might be
reasonable in the way of searches and seizures conducted
abroad. Any restrictions on searches and seizures incident to
American action abroad must be imposed by the political
branches through diplomatic understanding, treaty, or
legislation. Pp. 273-275.
856 F.2d 1214, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. KENNEDY,
J., filed a concurring opinion, post, p. 275. STEVENS, J., filed an
opinion concurring in the judgment, post, p. 279. BRENNAN, J.,
filed a dissenting opinion, in which MARSHALL, J., joined, post, p.
279. BLACKMUN, J., filed a dissenting opinion, post, p. 297.
Lawrence S. Robbins argued the cause for the United States.
With him on the briefs were Solicitor General Starr, Assistant
Attorney General Dennis, and Deputy Solicitor General Bryson.
Michael Pancer argued the cause for respondent. With him on
the brief were Charles L. Goldberg and Patrick Q. Hall. *
[ Footnote * ] Kent S. Scheidegger filed a brief for the Criminal
Justice Legal Foundation as amicus curiae urging reversal.
John A. Powell, Paul L. Hoffman, and David D. Cole filed a brief
for the American Civil Liberties Union et al. as amici curiae
urging affirmance.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The question presented by this case is whether the Fourth
Amendment applies to the search and seizure by United States
agents of property that is owned by a nonresident alien and
located in a foreign country. We hold that it does not. [494 U.S.
259, 262]
Respondent Rene Martin Verdugo-Urquidez is a citizen and
resident of Mexico. He is believed by the United States Drug
Enforcement Agency (DEA) to be one of the leaders of a large
and violent organization in Mexico that smuggles narcotics into
the United States. Based on a complaint charging respondent
with various narcotics-related offenses, the Government
obtained a warrant for his arrest on August 3, 1985. In January
1986, Mexican police officers, after discussions with United
States marshals, apprehended Verdugo-Urquidez in Mexico and
transported him to the United States Border Patrol station in
Calexico, California. There, United States marshals arrested
respondent and eventually moved him to a correctional center
in San Diego, California, where he remains incarcerated pending
trial.
Following respondent's arrest, Terry Bowen, a DEA agent
assigned to the Calexico DEA office, decided to arrange for
searches of Verdugo-Urquidez's Mexican residences located in
Mexicali and San Felipe. Bowen believed that the searches
would reveal evidence related to respondent's alleged narcotics
trafficking activities and his involvement in the kidnaping and
torture-murder of DEA Special Agent Enrique Camarena Salazar
(for which respondent subsequently has been convicted in a
separate prosecution. See United States v. Verdugo-Urquidez,
No. CR-87-422-ER (CD Cal., Nov. 22, 1988)). Bowen telephoned
Walter White, the Assistant Special Agent in charge of the DEA
office in Mexico City, and asked him to seek authorization for
the search from the Director General of the Mexican Federal
Judicial Police (MFJP). After several attempts to reach high
ranking Mexican officials, White eventually contacted the
Director General, who authorized the searches and promised
the cooperation of Mexican authorities. Thereafter, DEA agents
working in concert with officers of the MFJP searched
respondent's properties in Mexicali and San Felipe and seized
certain documents. In particular, the search of the Mexicali
residence uncovered a tally sheet, which the Government [494
U.S. 259, 263] believes reflects the quantities of marijuana
smuggled by Verdugo-Urquidez into the United States.
The District Court granted respondent's motion to suppress
evidence seized during the searches, concluding that the Fourth
Amendment applied to the searches and that the DEA agents
had failed to justify searching respondent's premises without a
warrant. A divided panel of the Court of Appeals for the Ninth
Circuit affirmed. 856 F.2d 1214 (1988). It cited this Court's
decision in Reid v. Covert, 354 U.S. 1 (1957), which held that
American citizens tried by United States military authorities in a
foreign country were entitled to the protections of the Fifth and
Sixth Amendments, and concluded that "[t]he Constitution
imposes substantive constraints on the federal government,
even when it operates abroad." 856 F.2d, at 1218. Relying on
our decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984),
where a majority of Justices assumed that illegal aliens in the
United States have Fourth Amendment rights, the Ninth Circuit
majority found it "difficult to conclude that Verdugo-Urquidez
lacks these same protections." 856 F.2d, at 1223. It also
observed that persons in respondent's position enjoy certain
trial-related rights, and reasoned that "[i]t would be odd indeed
to acknowledge that Verdugo-Urquidez is entitled to due
process under the fifth amendment, and to a fair trial under the
sixth amendment, . . . and deny him the protection from
unreasonable searches and seizures afforded under the fourth
amendment." Id., at 1224. Having concluded that the Fourth
Amendment applied to the searches of respondent's properties,
the court went on to decide that the searches violated the
Constitution because the DEA agents failed to procure a search
warrant. Although recognizing that "an American search warrant
would be of no legal validity in Mexico," the majority deemed it
sufficient that a warrant would have "substantial constitutional
value in this country." because it would reflect a magistrate's
determination [494 U.S. 259, 264] that there existed probable
cause to search and would define the scope of the search. Id.,
at 1230.
The dissenting judge argued that this Court's statement in
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318
(1936), that "[n]either the Constitution nor the laws passed in
pursuance of it have any force in foreign territory unless in
respect of our own citizens," foreclosed any claim by
respondent to Fourth Amendment rights. More broadly, he
viewed the Constitution as a "compact" among the people of
the United States, and the protections of the Fourth Amendment
were expressly limited to "the people." We granted certiorari,
490 U.S. 1019 (1989).
Before analyzing the scope of the Fourth Amendment, we
think it significant to note that it operates in a different manner
than the Fifth Amendment, which is not at issue in this case.
The privilege against self-incrimination guaranteed by the Fifth
Amendment is a fundamental trial right of criminal defendants.
See Malloy v. Hogan, 378 U.S. 1 (1964). Although conduct by
law enforcement officials prior to trial may ultimately impair
that right, a constitutional violation occurs only at trial. Kastigar
v. United States, 406 U.S. 441, 453 (1972). The Fourth
Amendment functions differently. It prohibits "unreasonable
searches and seizures" whether or not the evidence is sought to
be used in a criminal trial, and a violation of the Amendment is
"fully accomplished" at the time of an unreasonable
governmental intrusion. United States v. Calandra, 414 U.S.
338, 354 (1974); United States v. Leon, 468 U.S. 897, 906
(1984). For purposes of this case, therefore, if there were a
constitutional violation, it occurred solely in Mexico. Whether
evidence obtained from respondent's Mexican residences
should be excluded at trial in the United States is a remedial
question separate from the existence vel non of the
constitutional violation. Calandra, supra, at 354; Leon, supra, at
906.
The Fourth Amendment provides: [494 U.S. 259, 265]
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized."
That text, by contrast with the Fifth and Sixth Amendments,
extends its reach only to "the people." Contrary to the
suggestion of amici curiae that the Framers used this phrase
"simply to avoid [an] awkward rhetorical redundancy," Brief for
American Civil Liberties Union et al. as Amici Curiae 12, n. 4,
"the people" seems to have been a term of art employed in
select parts of the Constitution. The Preamble declares that the
Constitution is ordained and established by "the people of the
United States." The Second Amendment protects "the right of
the people to keep and bear Arms," and the Ninth and Tenth
Amendments provide that certain rights and powers are
retained by and reserved to "the people." See also U.S. Const.,
Amdt. 1 ("Congress shall make no law . . . abridging . . . the
right of the people peaceably to assemble") (emphasis added);
Art. I, 2, cl. 1 ("The House of Representatives shall be composed
of Members chosen every second Year by the people of the
several States") (emphasis added). While this textual exegesis
is by no means conclusive, it suggests that "the people"
protected by the Fourth Amendment, and by the First and
Second Amendments, and to whom rights and powers are
reserved in the Ninth and Tenth Amendments, refers to a class
of persons who are part of a national community or who have
otherwise developed sufficient connection with this country to
be considered part of that community. See United States ex rel.
Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is
not entitled to First Amendment rights, because "[h]e does not
become one of the people to whom these things are secured by
our Constitution by an attempt to enter forbidden by law"). The
language of these Amendments contrasts with the words [494
U.S. 259, 266] "person" and "accused" used in the Fifth and
Sixth Amendments regulating procedure in criminal cases.
What we know of the history of the drafting of the Fourth
Amendment also suggests that its purpose was to restrict
searches and seizures which might be conducted by the United
States in domestic matters. The Framers originally decided not
to include a provision like the Fourth Amendment, because they
believed the National Government lacked power to conduct
searches and seizures. See C. Warren, The Making of the
Constitution 508-509 (1928); The Federalist No. 84, p. 513 (C.
Rossiter ed. 1961) (A. Hamilton); 1 Annals of Cong. 437 (1789)
(statement of J. Madison). Many disputed the original view that
the Federal Government possessed only narrow delegated
powers over domestic affairs, however, and ultimately felt an
Amendment prohibiting unreasonable searches and seizures
was necessary. Madison, for example, argued that "there is a
clause granting to Congress the power to make all laws which
shall be necessary and proper for carrying into execution all of
the powers vested in the Government of the United States," and
that general warrants might be considered "necessary" for the
purpose of collecting revenue. Id., at 438. The driving force
behind the adoption of the Amendment, as suggested by
Madison's advocacy, was widespread hostility among the former
colonists to the issuance of writs of assistance empowering
revenue officers to search suspected places for smuggled
goods, and general search warrants permitting the search of
private houses, often to uncover papers that might be used to
convict persons of libel. See Boyd v. United States, 116 U.S.
616, 625 -626 (1886). The available historical data show,
therefore, that the purpose of the Fourth Amendment was to
protect the people of the United States against arbitrary action
by their own Government; it was never suggested that the
provision was intended to restrain the actions of the Federal
Government against aliens outside of the United States territory.
[494 U.S. 259, 267]
There is likewise no indication that the Fourth Amendment
was understood by contemporaries of the Framers to apply to
activities of the United States directed against aliens in foreign
territory or in international waters. Only seven years after the
ratification of the Amendment, French interference with
American commercial vessels engaged in neutral trade
triggered what came to be known as the "undeclared war" with
France. In an Act to "protect the Commerce of the United
States" in 1798, Congress authorized President Adams to
"instruct the commanders of the public armed vessels which
are, or which shall be employed in the service of the United
States, to subdue, seize and take any armed French vessel,
which shall be found within the jurisdictional limits of the United
States, or elsewhere, on the high seas." 1 of An Act Further to
Protect the Commerce of the United States, ch. 68, 1 Stat. 578.
This public naval force consisted of only 45 vessels, so Congress
also gave the President power to grant to the owners of private
armed ships and vessels of the United States "special
commissions," which would allow them "the same license and
authority for the subduing, seizing and capturing any armed
French vessel, and for the recapture of the vessels, goods and
effects of the people of the United States, as the public armed
vessels of the United States may by law have." 2, 1 Stat. 579;
see U.S. Const., Art. I, 8, cl. 11 (Congress has power to grant
letters of marque and reprisal). Under the latter provision, 365
private armed vessels were commissioned before March 1,
1799, see G. Allen, Our Naval War with France 59 (1967);
together, these enactments resulted in scores of seizures of
foreign vessels under congressional authority. See M. Palmer,
Stoddert's War: Naval Operations During the Quasi-War with
France, 1798-1801, p. 235 (1987). See also An Act Further to
Suspend the Commercial Intercourse Between the United States
and France, ch. 2, 1 Stat. 613. Some commanders were held
liable by this Court for unlawful seizures because their actions
were beyond the scope of the congressional [494 U.S. 259, 268]
 grant of authority, see, e. g., Little v. Barreme, 2 Cranch 170,
177-178 (1804); cf. Talbot v. Seeman, 1 Cranch 1, 31 (1801)
(seizure of neutral ship lawful where American captain had
probable cause to believe vessel was French), but it was never
suggested that the Fourth Amendment restrained the authority
of Congress or of United States agents to conduct operations
such as this.
The global view taken by the Court of Appeals of the
application of the Constitution is also contrary to this Court's
decisions in the Insular Cases, which held that not every
constitutional provision applies to governmental activity even
where the United States has sovereign power. See, e. g., Balzac
v. Porto Rico, 258 U.S. 298 (1922) (Sixth Amendment right to
jury trial inapplicable in Puerto Rico); Ocampo v. United States,
234 U.S. 91 (1914) (Fifth Amendment grand jury provision
inapplicable in Philippines); Dorr v. United States, 195 U.S. 138
(1904) (jury trial provision inapplicable in Philippines); Hawaii v.
Mankichi, 190 U.S. 197 (1903) (provisions on indictment by
grand jury and jury trial inapplicable in Hawaii); Downes v.
Bidwell, 182 U.S. 244 (1901) (Revenue Clauses of Constitution
inapplicable to Puerto Rico). In Dorr, we declared the general
rule that in an unincorporated territory - one not clearly
destined for statehood - Congress was not required to adopt "a
system of laws which shall include the right of trial by jury, and
that the Constitution does not, without legislation and of its own
force, carry such right to territory so situated." 195 U.S., at 149
(emphasis added). Only "fundamental" constitutional rights are
guaranteed to inhabitants of those territories. Id., at 148;
Balzac, supra, at 312-313; see Examining Board of Engineers,
Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 599 ,
n. 30 (1976). If that is true with respect to territories ultimately
governed by Congress, respondent's claim that the protections
of the Fourth Amendment extend to aliens in foreign nations is
even weaker. And certainly, it is not open to us in light of the
Insular Cases to endorse the [494 U.S. 259, 269] view that
every constitutional provision applies wherever the United
States Government exercises its power.
Indeed, we have rejected the claim that aliens are entitled to
Fifth Amendment rights outside the sovereign territory of the
United States. In Johnson v. Eisentrager, 339 U.S. 763 (1950),
the Court held that enemy aliens arrested in China and
imprisoned in Germany after World War II could not obtain writs
of habeas corpus in our federal courts on the ground that their
convictions for war crimes had violated the Fifth Amendment
and other constitutional provisions. The Eisentrager opinion
acknowledged that in some cases constitutional provisions
extend beyond the citizenry; "[t]he alien . . . has been accorded
a generous and ascending scale of rights as he increases his
identity with our society." Id., at 770. But our rejection of
extraterritorial application of the Fifth Amendment was
emphatic:
"Such extraterritorial application of organic law would have
been so significant an innovation in the practice of governments
that, if intended or apprehended, it could scarcely have failed to
excite contemporary comment. Not one word can be cited. No
decision of this Court supports such a view. Cf. Downes v.
Bidwell, 182 U.S. 244 [(1901)]. None of the learned
commentators on our Constitution has even hinted at it. The
practice of every modern government is opposed to it." Id., at
784.
If such is true of the Fifth Amendment, which speaks in the
relatively universal term of "person," it would seem even more
true with respect to the Fourth Amendment, which applies only
to "the people."
To support his all-encompassing view of the Fourth
Amendment, respondent points to language from the plurality
opinion in Reid v. Covert, 354 U.S. 1 (1957). Reid involved an
attempt by Congress to subject the wives of American
servicemen to trial by military tribunals without the protection
of the Fifth and Sixth Amendments. The Court held that it was
unconstitutional to apply the Uniform Code of Military [494 U.S.
259, 270] Justice to the trials of the American women for
capital crimes. Four Justices "reject[ed] the idea that when the
United States acts against citizens abroad it can do so free of
the Bill of Rights." Id., at 5 (emphasis added). The plurality went
on to say:
"The United States is entirely a creature of the Constitution.
Its power and authority have no other source. It can only act in
accordance with all the limitations imposed by the Constitution.
When the Government reaches out to punish a citizen who is
abroad, the shield which the Bill of Rights and other parts of the
Constitution provide to protect his life and liberty should not be
stripped away just because he happens to be in another land."
Id., at 5-6 (emphasis added; footnote omitted).
Respondent urges that we interpret this discussion to mean
that federal officials are constrained by the Fourth Amendment
wherever and against whomever they act. But the holding of
Reid stands for no such sweeping proposition: it decided that
United States citizens stationed abroad could invoke the
protection of the Fifth and Sixth Amendments. The concurrences
by Justices Frankfurter and Harlan in Reid resolved the case on
much narrower grounds than the plurality and declined even to
hold that United States citizens were entitled to the full range of
constitutional protections in all overseas criminal prosecutions.
See id., at 75 (Harlan, J., concurring in result) ("I agree with my
brother FRANKFURTER that . . . we have before us a question
analogous, ultimately, to issues of due process; one can say, in
fact, that the question of which specific safeguards of the
Constitution are appropriately to be applied in a particular
context overseas can be reduced to the issue of what process is
`due' a defendant in the particular circumstances of a particular
case"). Since respondent is not a United States citizen, he can
derive no comfort from the Reid holding.
Verdugo-Urquidez also relies on a series of cases in which we
have held that aliens enjoy certain constitutional rights. [494
U.S. 259, 271] See, e. g., Plyler v. Doe, 457 U.S. 202, 211 -212
(1982) (illegal aliens protected by Equal Protection Clause);
Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953) (resident
alien is a "person" within the meaning of the Fifth Amendment);
Bridges v. Wixon, 326 U.S. 135, 148 (1945) (resident aliens have
First Amendment rights); Russian Volunteer Fleet v. United
States, 282 U.S. 481 (1931) (Just Compensation Clause of Fifth
Amendment); Wong Wing v. United States, 163 U.S. 228, 238
(1896) (resident aliens entitled to Fifth and Sixth Amendment
rights); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)
(Fourteenth Amendment protects resident aliens). These cases,
however, establish only that aliens receive constitutional
protections when they have come within the territory of the
United States and developed substantial connections with this
country. See, e. g., Plyler, supra, at 212 (The provisions of the
Fourteenth Amendment "`are universal in their application, to
all persons within the territorial jurisdiction . . .'") (quoting Yick
Wo, supra, at 369); Kwong Hai Chew, supra, at 596, n. 5("The
Bill of Rights is a futile authority for the alien seeking admission
for the first time to these shores. But once an alien lawfully
enters and resides in this country he becomes invested with the
rights guaranteed by the Constitution to all people within our
borders") (quoting Bridges, supra, at 161 (concurring opinion)
(emphasis added)). Respondent is an alien who has had no
previous significant voluntary connection with the United
States, so these cases avail him not.
JUSTICE STEVENS' concurrence in the judgment takes the view
that even though the search took place in Mexico, it is
nonetheless governed by the requirements of the Fourth
Amendment because respondent was "lawfully present in the
United States . . . even though he was brought and held here
against his will." Post, at 279. But this sort of presence - lawful
but involuntary - is not of the sort to indicate any substantial
connection with our country. The extent to which respondent
might claim the protection of the Fourth Amendment [494 U.S.
259, 272] if the duration of his stay in the United States were
to be prolonged - by a prison sentence, for example - we need
not decide. When the search of his house in Mexico took place,
he had been present in the United States for only a matter of
days. We do not think the applicability of the Fourth
Amendment to the search of premises in Mexico should turn on
the fortuitous circumstance of whether the custodian of its
nonresident alien owner had or had not transported him to the
United States at the time the search was made.
The Court of Appeals found some support for its holding in our
decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), where
a majority of Justices assumed that the Fourth Amendment
applied to illegal aliens in the United States. We cannot fault the
Court of Appeals for placing some reliance on the case, but our
decision did not expressly address the proposition gleaned by
the court below. The question presented for decision in Lopez-
Mendoza was limited to whether the Fourth Amendment's
exclusionary rule should be extended to civil deportation
proceedings; it did not encompass whether the protections of
the Fourth Amendment extend to illegal aliens in this country.
The Court often grants certiorari to decide particular legal
issues while assuming without deciding the validity of
antecedent propositions, compare, e. g., Maine v. Thiboutot,
448 U.S. 1 (1980) (assuming State is a "person" within the
meaning of 42 U.S.C. 1983), with Will v. Michigan Dept. of State
Police, 491 U.S. 58 (1989) (State is not a "person"), and such
assumptions - even on jurisdictional issues - are not binding in
future cases that directly raise the questions. Id., at 63, n. 4;
Hagans v. Lavine, 415 U.S. 528, 535 , n. 5 (1974). Our
statements in Lopez-Mendoza are therefore not dispositive of
how the Court would rule on a Fourth Amendment claim by
illegal aliens in the United States if such a claim were squarely
before us. Even assuming such aliens would be entitled to
Fourth Amendment protections, their situation is [494 U.S. 259,
273] different from respondent's. The illegal aliens in Lopez-
Mendoza were in the United States voluntarily and presumably
had accepted some societal obligations; but respondent had no
voluntary connection with this country that might place him
among "the people" of the United States.
Respondent also contends that to treat aliens differently from
citizens with respect to the Fourth Amendment somehow
violates the equal protection component of the Fifth
Amendment to the United States Constitution. He relies on
Graham v. Richardson, 403 U.S. 365 (1971), and Foley v.
Connelie, 435 U.S. 291 (1978), for this proposition. But the very
cases previously cited with respect to the protection extended
by the Constitution to aliens undermine this claim. They are
constitutional decisions of this Court expressly according
differing protection to aliens than to citizens, based on our
conclusion that the particular provisions in question were not
intended to extend to aliens in the same degree as to citizens.
Cf. Mathews v. Diaz, 426 U.S. 67, 79 -80 (1976) ("In the exercise
of its broad power over naturalization and immigration,
Congress regularly makes rules that would be unacceptable if
applied to citizens").
Not only are history and case law against respondent, but as
pointed out in Johnson v. Eisentrager, 393 U.S. 763 (1950), the
result of accepting his claim would have significant and
deleterious consequences for the United States in conducting
activities beyond its boundaries. The rule adopted by the Court
of Appeals would apply not only to law enforcement operations
abroad, but also to other foreign policy operations which might
result in "searches or seizures." The United States frequently
employs Armed Forces outside this country - over 200 times in
our history - for the protection of American citizens or national
security. Congressional Research Service, Instances of Use of
United States Armed Forces Abroad, 1798-1989 (E. Collier ed.
1989). Application of the Fourth Amendment to those
circumstances could significantly disrupt the ability of the
political [494 U.S. 259, 274] branches to respond to foreign
situations involving our national interest. Were respondent to
prevail, aliens with no attachment to this country might well
bring actions for damages to remedy claimed violations of the
Fourth Amendment in foreign countries or in international
waters. See Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971); cf. Tennessee v. Garner, 471 U.S. 1 (1985);
Graham v. Connor, 490 U.S. 386 (1989). Perhaps a Bivens action
might be unavailable in some or all of these situations due to
"`special factors counselling hesitation,'" see Chappell v.
Wallace, 462 U.S. 296, 298 (1983) (quoting Bivens, supra, at
396), but the Government would still be faced with case-by-case
adjudications concerning the availability of such an action. And
even were Bivens deemed wholly inapplicable in cases of
foreign activity, that would not obviate the problems attending
the application of the Fourth Amendment abroad to aliens. The
Members of the Executive and Legislative Branches are sworn
to uphold the Constitution, and they presumably desire to follow
its commands. But the Court of Appeals' global view of its
applicability would plunge them into a sea of uncertainty as to
what might be reasonable in the way of searches and seizures
conducted abroad. Indeed, the Court of Appeals held that
absent exigent circumstances, United States agents could not
effect a "search or seizure" for law enforcement purposes in a
foreign country without first obtaining a warrant - which would
be a dead letter outside the United States - from a magistrate in
this country. Even if no warrant were required, American agents
would have to articulate specific facts giving them probable
cause to undertake a search or seizure if they wished to comply
with the Fourth Amendment as conceived by the Court of
Appeals.
 We think that the text of the Fourth Amendment, its history,
and our cases discussing the application of the Constitution to
aliens and extraterritorially require rejection of respondent's
claim. At the time of the search, he was a citizen and resident of
Mexico with no voluntary attachment to the [494 U.S. 259, 275]
United States, and the place searched was located in Mexico.
Under these circumstances, the Fourth Amendment has no
application.
For better or for worse, we live in a world of nation-states in
which our Government must be able to "functio[n] effectively in
the company of sovereign nations." Perez v. Brownell, 356 U.S.
44, 57 (1958). Some who violate our laws may live outside our
borders under a regime quite different from that which obtains
in this country. Situations threatening to important American
interests may arise halfway around the globe, situations which
in the view of the political branches of our Government require
an American response with armed force. If there are to be
restrictions on searches and seizures which occur incident to
such American action, they must be imposed by the political
branches through diplomatic understanding, treaty, or
legislation.
The judgment of the Court of Appeals is accordingly
Reversed.
JUSTICE KENNEDY, concurring.
I agree that no violation of the Fourth Amendment has
occurred and that we must reverse the judgment of the Court of
Appeals. Although some explanation of my views is appropriate
given the difficulties of this case, I do not believe they depart in
fundamental respects from the opinion of the Court, which I
join.
In cases involving the extraterritorial application of the
Constitution, we have taken care to state whether the person
claiming its protection is a citizen, see, e. g., Reid v. Covert, 354
U.S. 1 (1957), or an alien, see, e. g., Johnson v. Eisentrager, 339
U.S. 763 (1950). The distinction between citizens and aliens
follows from the undoubted proposition that the Constitution
does not create, nor do general principles of law create, any
juridical relation between our country and some undefined,
limitless class of noncitizens who are beyond our territory. We
should note, however, that the absence of [494 U.S. 259, 276]
this relation does not depend on the idea that only a limited
class of persons ratified the instrument that formed our
Government. Though it must be beyond dispute that persons
outside the United States did not and could not assent to the
Constitution, that is quite irrelevant to any construction of the
powers conferred or the limitations imposed by it. As Justice
Story explained in his Commentaries:
"A government may originate in the voluntary compact or
assent of the people of several states, or of a people never
before united, and yet when adopted and ratified by them, be
no longer a matter resting in compact; but become an executed
government or constitution, a fundamental law, and not a mere
league. But the difficulty in asserting it to be a compact
between the people of each state, and all the people of the
other states is, that the constitution itself contains no such
expression, and no such designation of parties." 1
Commentaries on the Constitution 365, p. 335 (1833) (footnote
omitted).
The force of the Constitution is not confined because it was
brought into being by certain persons who gave their immediate
assent to its terms.
For somewhat similar reasons, I cannot place any weight on
the reference to "the people" in the Fourth Amendment as a
source of restricting its protections. With respect, I submit these
words do not detract from its force or its reach. Given the
history of our Nation's concern over warrantless and
unreasonable searches, explicit recognition of "the right of the
people" to Fourth Amendment protection may be interpreted to
underscore the importance of the right, rather than to restrict
the category of persons who may assert it. The restrictions that
the United States must observe with reference to aliens beyond
its territory or jurisdiction depend, as a consequence, on
general principles of interpretation, not on an inquiry as to who
formed the Constitution or a construction that some rights are
mentioned as being those of "the people." [494 U.S. 259, 277]
I take it to be correct, as the plurality opinion in Reid v. Covert
sets forth, that the Government may act only as the
Constitution authorizes, whether the actions in question are
foreign or domestic. See 354 U.S., at 6 . But this principle is only
a first step in resolving this case. The question before us then
becomes what constitutional standards apply when the
Government acts, in reference to an alien, within its sphere of
foreign operations. We have not overruled either In re Ross, 140
U.S. 453 (1891), or the so-called Insular Cases (i. e., Downes v.
Bidwell, 182 U.S. 244 (1901); Hawaii v. Mankichi, 190 U.S. 197
(1903); Dorr v. United States, 195 U.S. 138 (1904); Balzac v.
Porto Rico, 258 U.S. 298 (1922). These authorities, as well as
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318
(1936), stand for the proposition that we must interpret
constitutional protections in light of the undoubted power of the
United States to take actions to assert its legitimate power and
authority abroad. Justice Harlan made this observation in his
opinion concurring in the judgment in Reid v. Covert:
"I cannot agree with the suggestion that every provision of the
Constitution must always be deemed automatically applicable
to American citizens in every part of the world. For Ross and the
Insular Cases do stand for an important proposition, one which
seems to me a wise and necessary gloss on our Constitution.
The proposition is, of course, not that the Constitution `does not
apply' overseas, but that there are provisions in the Constitution
which do not necessarily apply in all circumstances in every
foreign place. In other words, it seems to me that the basic
teaching of Ross and the Insular Cases is that there is no rigid
and abstract rule that Congress, as a condition precedent to
exercising power over Americans overseas, must exercise it
subject to all the guarantees of the Constitution, no matter what
the conditions and considerations are that would make
adherence to a [494 U.S. 259, 278] specific guarantee
altogether impracticable and anomalous." 354 U.S., at 74 .
The conditions and considerations of this case would make
adherence to the Fourth Amendment's warrant requirement
impracticable and anomalous. Just as the Constitution in the
Insular Cases did not require Congress to implement all
constitutional guarantees in its territories because of their
"wholly dissimilar traditions and institutions," the Constitution
does not require United States agents to obtain a warrant when
searching the foreign home of a nonresident alien. If the search
had occurred in a residence within the United States, I have
little doubt that the full protections of the Fourth Amendment
would apply. But that is not this case. The absence of local
judges or magistrates available to issue warrants, the differing
and perhaps unascertainable conceptions of reasonableness
and privacy that prevail abroad, and the need to cooperate with
foreign officials all indicate that the Fourth Amendment's
warrant requirement should not apply in Mexico as it does in
this country. For this reason, in addition to the other persuasive
justifications stated by the Court, I agree that no violation of the
Fourth Amendment has occurred in the case before us. The
rights of a citizen, as to whom the United States has continuing
obligations, are not presented by this case.
I do not mean to imply, and the Court has not decided, that
persons in the position of the respondent have no constitutional
protection. The United States is prosecuting a foreign national in
a court established under Article III, and all of the trial
proceedings are governed by the Constitution. All would agree,
for instance, that the dictates of the Due Process Clause of the
Fifth Amendment protect the defendant. Indeed, as Justice
Harlan put it, "the question of which specific safeguards . . . are
appropriately to be applied in a particular context . . . can be
reduced to the issue of what process is `due' a defendant in the
particular circumstances of a particular case." Reid, supra, at
75. Nothing approaching a violation of due process has occurred
in this case. [494 U.S. 259, 279]
JUSTICE STEVENS, concurring in the judgment.
In my opinion aliens who are lawfully present in the United
States are among those "people" who are entitled to the
protection of the Bill of Rights, including the Fourth Amendment.
Respondent is surely such a person even though he was
brought and held here against his will. I therefore cannot join
the Court's sweeping opinion. * I do agree, however, with the
Government's submission that the search conducted by the
United States agents with the approval and cooperation of the
Mexican authorities was not "unreasonable" as that term is used
in the first Clause of the Amendment. I do not believe the
Warrant Clause has any application to searches of noncitizens'
homes in foreign jurisdictions because American magistrates
have no power to authorize such searches. I therefore concur in
the Court's judgment.
[ Footnote * ] The Court's interesting historical discussion is
simply irrelevant to the question whether an alien lawfully
within the sovereign territory of the United States is entitled to
the protection of our laws. Nor is comment on illegal aliens'
entitlement to the protections of the Fourth Amendment
necessary to resolve this case.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.
Today the Court holds that although foreign nationals must
abide by our laws even when in their own countries, our
Government need not abide by the Fourth Amendment when it
investigates them for violations of our laws. I respectfully
dissent.
I Amendment does not travel with them. This cannot be. At the
Particularly in the past decade, our Government has sought,
successfully, to hold foreign nationals criminally liable under
federal laws for conduct committed entirely beyond the
territorial limits of the United States that nevertheless has
effects [494 U.S. 259, 280] in this country. Foreign nationals
must now take care not to violate our drug laws, 1 our antitrust
laws, 2 our securities laws, 3 and a host of other federal
criminal statutes. 4 The [494 U.S. 259, 281] enormous
expansion of federal criminal jurisdiction outside our Nation's
boundaries has led one commentator to suggest that our
country's three largest exports are now "rock music, blue jeans,
and United States law." Grundman, The New Imperialism: The
Extraterritorial Application of United States Law, 14 Int'l Law.
257, 257 (1980).
The Constitution is the source of Congress' authority to
criminalize conduct, whether here or abroad, and of the
Executive's authority to investigate and prosecute such
conduct. But the same Constitution also prescribes limits on our
Government's authority to investigate, prosecute, and punish
criminal conduct, whether foreign or domestic. As a plurality of
the Court noted in Reid v. Covert, 354 U.S. 1, 5 -6 (1957): "The
United States is entirely a creature of the Constitution. Its power
and authority have no other source. It can only act in
accordance with all the limitations imposed by the
Constitution." (Footnotes omitted.) See also ante, at 277
(KENNEDY, J., concurring) ("[T]he Government may act only as
the Constitution authorizes, whether the actions in question are
foreign or domestic"). In particular, the Fourth Amendment
provides:
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated; and no Warrants shall issue but
upon probable cause, supported by [494 U.S. 259, 282] Oath
or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."
The Court today creates an antilogy: the Constitution
authorizes our Government to enforce our criminal laws abroad,
but when Government agents exercise this authority, the Fourth
very least, the Fourth Amendment is an unavoidable correlative
of the Government's power to enforce the criminal law.
A
The Fourth Amendment guarantees the right of "the people"
to be free from unreasonable searches and seizures and
provides that a warrant shall issue only upon presentation of an
oath or affirmation demonstrating probable cause and
particularly describing the place to be searched and the persons
or things to be seized. According to the majority, the term "the
people" refers to "a class of persons who are part of a national
community or who have otherwise developed sufficient
connection with this country to be considered part of that
community." Ante, at 265. The Court admits that "the people"
extends beyond the citizenry, but leaves the precise contours of
its "sufficient connection" test unclear. At one point the majority
hints that aliens are protected by the Fourth Amendment only
when they come within the United States and develop
"substantial connections" with our country. Ante, at 271. At
other junctures, the Court suggests that an alien's presence in
the United States must be voluntary 5 and that the alien must
have "accepted some societal [494 U.S. 259, 283] obligations."
6 Ante, at 273. At yet other points, the majority implies that
respondent would be protected by the Fourth Amendment if the
place searched were in the United States. 7 Ante, at 266, 274-
275.
What the majority ignores, however, is the most obvious
connection between Verdugo-Urquidez and the United States:
he was investigated and is being prosecuted for violations of
United States law and may well spend the rest of his life in a
United States prison. The "sufficient connection" is supplied not
by Verdugo-Urquidez, but by the Government. [494 U.S. 259,
284] Respondent is entitled to the protections of the Fourth
Amendment because our Government, by investigating him and
attempting to hold him accountable under United States
criminal laws, has treated him as a member of our community
for purposes of enforcing our laws. He has become, quite
literally, one of the governed. Fundamental fairness and the
ideals underlying our Bill of Rights compel the conclusion that
when we impose "societal obligations," ante, at 273, such as
the obligation to comply with our criminal laws, on foreign
nationals, we in turn are obliged to respect certain correlative
rights, among them the Fourth Amendment.
By concluding that respondent is not one of "the people"
protected by the Fourth Amendment, the majority disregards
basic notions of mutuality. If we expect aliens to obey our laws,
aliens should be able to expect that we will obey our
Constitution when we investigate, prosecute, and punish them.
We have recognized this fundamental principle of mutuality
since the time of the Framers. James Madison, universally
recognized as the primary architect of the Bill of Rights,
emphasized the importance of mutuality when he spoke out
against the Alien and Sedition Acts less than a decade after the
adoption of the Fourth Amendment:
"[I]t does not follow, because aliens are not parties to the
Constitution, as citizens are parties to it, that, whilst they
actually conform to it, they have no right to its protection.
Aliens are not more parties to the laws than they are parties to
the Constitution; yet it will not be disputed that, as they owe, on
one hand, a temporary obedience, they are entitled, in return,
to their protection and advantage." Madison's Report on the
Virginia Resolutions (1800), reprinted in 4 Elliot's Debates 556
(2d ed. 1836).
Mutuality is essential to ensure the fundamental fairness that
underlies our Bill of Rights. Foreign nationals investigated and
prosecuted for alleged violations of United States criminal laws
are just as vulnerable to oppressive Government [494 U.S. 259,
285] behavior as are United States citizens investigated and
prosecuted for the same alleged violations. Indeed, in a case
such as this where the Government claims the existence of an
international criminal conspiracy, citizens and foreign nationals
may be codefendants, charged under the same statutes for the
same conduct and facing the same penalties if convicted. They
may have been investigated by the same agents pursuant to
the same enforcement authority. When our Government holds
these codefendants to the same standards of conduct, the
Fourth Amendment, which protects the citizen from
unreasonable searches and seizures, should protect the foreign
national as well.
Mutuality also serves to inculcate the values of law and order.
By respecting the rights of foreign nationals, we encourage
other nations to respect the rights of our citizens. Moreover, as
our Nation becomes increasingly concerned about the domestic
effects of international crime, we cannot forget that the
behavior of our law enforcement agents abroad sends a
powerful message about the rule of law to individuals
everywhere. As Justice Brandeis warned in Olmstead v. United
States, 277 U.S. 438 (1928):
"If the Government becomes a lawbreaker, it breeds contempt
for law; it invites every man to become a law unto himself; it
invites anarchy. To declare that in the administration of the
criminal law the end justifies the means . . . would bring terrible
retribution. Against that pernicious doctrine, this Court should
resolutely set its face." Id., at 485 (dissenting opinion).
This principle is no different when the United States applies its
rules of conduct to foreign nationals. If we seek respect for law
and order, we must observe these principles ourselves.
Lawlessness breeds lawlessness.
Finally, when United States agents conduct unreasonable
searches, whether at home or abroad, they disregard our
Nation's values. For over 200 years, our country has considered
itself the world's foremost protector of liberties. The [494 U.S.
259, 286] privacy and sanctity of the home have been primary
tenets of our moral, philosophical, and judicial beliefs. 8 Our
national interest is defined by those values and by the need to
preserve our own just institutions. We take pride in our
commitment to a Government that cannot, on mere whim,
break down doors and invade the most personal of places. We
exhort other nations to follow our example. How can we explain
to others - and to ourselves - that these long cherished ideals
are suddenly of no consequence when the door being broken
belongs to a foreigner?
The majority today brushes aside the principles of mutuality
and fundamental fairness that are central to our Nation's
constitutional conscience. The Court articulates a "sufficient
connection" test but then refuses to discuss the underlying
principles upon which any interpretation of that test must rest. I
believe that by placing respondent among those governed by
federal criminal laws and investigating him for violations of
those laws, the Government has made him a part of our
community for purposes of the Fourth Amendment.
B Thus, the Framers of the Bill of Rights did not purport to
In its effort to establish that respondent does not have
sufficient connection to the United States to be considered one
of "the people" protected by the Fourth Amendment, the Court
relies on the text of the Amendment, historical evidence, and
cases refusing to apply certain constitutional provisions outside
the United States. None of these, however, justifies the
majority's cramped interpretation of the Fourth Amendment's
applicability. [494 U.S. 259, 287]
The majority looks to various constitutional provisions and
suggests that "`the people' seems to have been a term of art."
Ante, at 265. But the majority admits that its "textual exegesis
is by no means conclusive." Ibid. 9 One Member of the majority
even states that he "cannot place any weight on the reference
to `the people' in the Fourth Amendment as a source of
restricting its protections." Ante, at 276 (KENNEDY, J.,
concurring). The majority suggests a restrictive interpretation of
those with "sufficient connection" to this country to be
considered among "the people," but the term "the people" is
better understood as a rhetorical counterpoint to "the
Government," such that rights that were reserved to "the
people" were to protect all those subject to "the Government."
Cf. New Jersey v. T. L. O., 469 U.S. 325, 335 (1985) ("[T]he Court
has long spoken of the Fourth Amendment's strictures as
restraints imposed upon `governmental action'"). "The people"
are "the governed."
In drafting both the Constitution and the Bill of Rights, the
Framers strove to create a form of Government decidedly
different from their British heritage. Whereas the British
Parliament was unconstrained, the Framers intended to create a
Government of limited powers. See B. Bailyn, The Ideological
Origins of the American Revolution 182 (1967); 1 The Complete
Anti-Federalist 65 (H. Storing ed. 1981). The colonists
considered the British Government dangerously omnipotent.
After all, the British declaration of rights in [494 U.S. 259, 288]
1688 had been enacted not by the people, but by Parliament.
The Federalist No. 84, p. 439 (M. Beloff ed. 1987). Americans
vehemently attacked the notion that rights were matters of
"`favor and grace,'" given to the people from the Government.
B. Bailyn, supra, at 187 (quoting John Dickinson).
"create" rights. Rather, they designed the Bill of Rights to
prohibit our Government from infringing rights and liberties
presumed to be pre-existing. See e. g., U.S. Const., Amdt. 9
("The enumeration in the Constitution of certain rights, shall not
be construed to deny or disparage others retained by the
people"). The Fourth Amendment, for example, does not create
a new right of security against unreasonable searches and
seizures. It states that "[t]he right of the people to be secure in
their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . . ."
The focus of the Fourth Amendment is on what the Government
can and cannot do, and how it may act, not on against whom
these actions may be taken. Bestowing rights and delineating
protected groups would have been inconsistent with the
Drafters' fundamental conception of a Bill of Rights as a
limitation on the Government's conduct with respect to all
whom it seeks to govern. It is thus extremely unlikely that the
Framers intended the narrow construction of the term "the
people" presented today by the majority.
The drafting history of the Fourth Amendment also does not
support the majority's interpretation of "the people." First, the
Drafters chose not to limit the right against unreasonable
searches and seizures in more specific ways. They could have
limited the right to "citizens," "freemen," "residents," or "the
American people." The conventions called to ratify the
Constitution in New York and Virginia, for example, each
recommended an amendment stating, "That every freeman has
a right to be secure from all unreasonable searches and
seizures . . . ." W. Cuddihy, Search and Seizure [494 U.S. 259,
289] in Great Britain and the American Colonies, pt. 2, p. 571,
n. 129, 574, n. 134 (1974). But the Drafters of the Fourth
Amendment rejected this limitation and instead provided
broadly for "[t]he right of the people to be secure in their
persons, houses, papers, and effects." Second, historical
materials contain no evidence that the Drafters intended to limit
the availability of the right expressed in the Fourth Amendment.
10 The Amendment was introduced on the floor of Congress,
considered by Committee, debated by the House of
Representatives and the Senate, and submitted to the 13 States
for approval. Throughout that entire process, no speaker or
commentator, pro or con, referred to the term "the people" as a
limitation. [494 U.S. 259, 290]
The Court also relies on a series of cases dealing with the
application of criminal procedural protections outside of the
United States to conclude that "not every constitutional
provision applies to governmental activity even where the
United States has sovereign power." Ante, at 268. None of these
cases, however, purports to read the phrase "the people" as
limiting the protections of the Fourth Amendment to those with
"sufficient connection" to the United States, and thus none
gives content to the majority's analysis. The cases shed no light
on the question whether respondent - a citizen of a nonenemy
nation being tried in a United States federal court - is one of
"the people" protected by the Fourth Amendment.
The majority mischaracterizes Johnson v. Eisentrager, 339 U.S.
763 (1950), as having "rejected the claim that aliens are
entitled to Fifth Amendment rights outside the sovereign
territory of the United States." Ante, at 269. In Johnson, 21
German nationals were convicted of engaging in continued
military activity against the United States after the surrender of
Germany and before the surrender of Japan in World War II. The
Court held that "the Constitution does not confer a right of
personal security or an immunity from military trial and
punishment upon an alien enemy engaged in the hostile service
of a government at war with the United States." 339 U.S., at
785 (emphasis added). As the Court wrote:
"It is war that exposes the relative vulnerability of the alien's
status. The security and protection enjoyed while the nation of
his allegiance remains in amity with the United States are
greatly impaired when his nation takes up arms against us. . . .
But disabilities this country lays upon the alien who becomes
also an enemy are imposed temporarily as an incident of war
and not as an incident of alienage." Id., at 771-772. [494 U.S.
259, 291]
The Court rejected the German nationals' efforts to obtain
writs of habeas corpus not because they were foreign nationals,
but because they were enemy soldiers.
The Insular Cases, Balzac v. Porto Rico, 258 U.S. 298 (1922),
Ocampo v. United States, 234 U.S. 91 (1914), Dorr v. United
States, 195 U.S. 138 (1904), and Hawaii v. Mankichi, 190 U.S.
197 (1903), are likewise inapposite. The Insular Cases all
concerned whether accused persons enjoyed the protections of
certain rights in criminal prosecutions brought by territorial
authorities in territorial courts. These cases were limited to their
facts long ago, see Reid v. Covert, 354 U.S., at 14 (plurality
opinion) ("[I]t is our judgment that neither the cases nor their
reasoning should be given any further expansion"), and they are
of no analytical value when a criminal defendant seeks to
invoke the Fourth Amendment in a prosecution by the Federal
Government in a federal court. 11
C
The majority's rejection of respondent's claim to Fourth
Amendment protection is apparently motivated by its fear that
application of the Amendment to law enforcement searches
against foreign nationals overseas "could significantly disrupt
the ability of the political branches to respond to foreign
situations involving our national interest." Ante, at 273-274. The
majority's doomsday scenario - that American Armed Forces
conducting a mission to protect our national security with no
law enforcement objective "would have to articulate specific
facts giving them probable cause to undertake a search or
seizure," ante, at 274 - is fanciful. Verdugo-Urquidez is
protected by the Fourth Amendment [494 U.S. 259, 292]
because our Government, by investigating and prosecuting him,
has made him one of "the governed." See supra, at 284, 287.
Accepting respondent as one of "the governed," however,
hardly requires the Court to accept enemy aliens in wartime as
among "the governed" entitled to invoke the protection of the
Fourth Amendment. See Johnson v. Eisentrager, supra.
Moreover, with respect to non-law-enforcement activities not
directed against enemy aliens in wartime but nevertheless
implicating national security, doctrinal exceptions to the general
requirements of a warrant and probable cause likely would be
applicable more frequently abroad, thus lessening the purported
tension between the Fourth Amendment's strictures and the
Executive's foreign affairs power. Many situations involving
sensitive operations abroad likely would involve exigent
circumstances such that the warrant requirement would be
excused. Cf. Warden v. Hayden, 387 U.S. 294, 298 (1967).
Therefore, the Government's conduct would be assessed only
under the reasonableness standard, the application of which
depends on context. See United States v. Montoya de
Hernandez, 473 U.S. 531, 537 (1985) ("What is reasonable
depends upon all of the circumstances surrounding the search
or seizure and the nature of the search or seizure itself").
In addition, where the precise contours of a "reasonable"
search and seizure are unclear, the Executive Branch will not be
"plunge[d] . . . into a sea of uncertainty," ante, at 274, that will
impair materially its ability to conduct foreign affairs. Doctrines
such as official immunity have long protected Government
agents from any undue chill on the exercise of lawful discretion.
See, e. g., Butz v. Economou, 438 U.S. 478 (1978). Similarly, the
Court has recognized that there may be certain situations in
which the offensive use of constitutional rights should be
limited. Cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388, 396 (1971) (precluding suits for damages for
violations of the Fourth Amendment where there are "special
factors [494 U.S. 259, 293] counselling hesitation"). In most
cases implicating foreign policy concerns in which the
reasonableness of an overseas search or seizure is unclear,
application of the Fourth Amendment will not interfere with the
Executive's traditional prerogative in foreign affairs because a
court will have occasion to decide the constitutionality of such a
search only if the Executive decides to bring a criminal
prosecution and introduce evidence seized abroad. When the
Executive decides to conduct a search as part of an ongoing
criminal investigation, fails to get a warrant, and then seeks to
introduce the fruits of that search at trial, however, the courts
must enforce the Constitution.
II
Because the Fourth Amendment governs the search of
respondent's Mexican residences, the District Court properly
suppressed the evidence found in that search because the
officers conducting the search did not obtain a warrant. 12 I
cannot agree with JUSTICE BLACKMUN and JUSTICE STEVENS
that the Warrant Clause has no application to searches [494
U.S. 259, 294] of noncitizens' homes in foreign jurisdictions
because American magistrates lack the power to authorize such
searches. 13 See post, at 297 (BLACKMUN, J., dissenting); ante
at 279 (STEVENS, J., concurring in judgment). The Warrant
Clause would serve the same primary functions abroad as it
does domestically, and I see no reason to distinguish between
foreign and domestic searches.
The primary purpose of the warrant requirement is its
assurance of neutrality. As Justice Jackson stated for [494 U.S.
259, 295] the Court in Johnson v. United States 333 U.S. 10, 13
-14 (1948) (footnotes omitted):
"The point of the Fourth Amendment, which often is not
grasped by zealous officers, is not that it denies law
enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in
requiring that those inferences be drawn by a neutral and
detached magistrate instead of being judged by the officer
engaged in the often competitive enterprise of ferreting out
crime. Any assumption that evidence sufficient to support a
magistrate's disinterested determination to issue a search
warrant will justify the officers in making a search without a
warrant would reduce the Amendment to a nullity and leave the
people's homes secure only in the discretion of police officers. .
. . When the right of privacy must reasonably yield to the right
of search is, as a rule, to be decided by a judicial officer, not by
a policeman or government enforcement agent."
See also Welsh v. Wisconsin, 466 U.S. 740, 748 -749, and n.
10(1984); Coolidge v. New Hampshire, 403 U.S. 443, 449
(1971). A warrant also defines the scope of a search and limits
the discretion of the inspecting officers. See New York v. Burger,
482 U.S. 691, 703 (1987); Marron v. United States, 275 U.S.
192, 196 (1927). These purposes would be served no less in the
foreign than in the domestic context.
The Warrant Clause cannot be ignored simply because
Congress has not given any United States magistrate authority
to issue search warrants for foreign searches. See Fed. Rule
Crim. Proc. 41(a). Congress cannot define the contours of the
Constitution. If the Warrant Clause applies, Congress cannot
excise the Clause from the Constitution by failing to provide a
means for United States agents to obtain a warrant. See Best v.
United States, 184 F.2d 131. 138 (CA1 1950) ("Obviously,
Congress may not nullify the guarantees of the Fourth
Amendment by the simple expedient of [494 U.S. 259, 296]
not empowering any judicial officer to act on an application for
a warrant"), cert. denied, 340 U.S. 939 (1951).
Nor is the Warrant Clause inapplicable merely because a
warrant from a United States magistrate could not "authorize" a
search in a foreign country. Although this may be true as a
matter of international law, it is irrelevant to our interpretation
of the Fourth Amendment. As a matter of United States
constitutional law, a warrant serves the same primary function
overseas as it does domestically: it assures that a neutral
magistrate has authorized the search and limited its scope. The
need to protect those suspected of criminal activity from the
unbridled discretion of investigating officers is no less important
abroad than at home. 14
III
When our Government conducts a law enforcement search
against a foreign national outside of the United States and its
territories, it must comply with the Fourth Amendment. Absent
exigent circumstances or consent, it must obtain a [494 U.S.
259, 297] search warrant from a United States court. When we
tell the world that we expect all people, wherever they may be,
to abide by our laws, we cannot in the same breath tell the
world that our law enforcement officers need not do the same.
Because we cannot expect others to respect our laws until we
respect our Constitution, I respectfully dissent.
Footnotes
[ Footnote 1 ] Federal drug enforcement statutes written
broadly enough to permit extraterritorial application include
laws proscribing the manufacture, distribution, or possession
with intent to manufacture or distribute of controlled substances
on board vessels, see 46 U.S.C. App. 1903(h) (1982 ed., Supp.
V) ("This section is intended to reach acts . . . committed
outside the territorial jurisdiction of the United States"), the
possession, manufacture, or distribution of a controlled
substance for purposes of unlawful importation, see 21 U.S.C.
959(c) (same), and conspiracy to violate federal narcotics laws,
see Chua Han Mow v. United States, 730 F.2d 1308, 1311-1312
(CA9 1984) (applying 21 U.S.C. 846 and 963 to conduct by a
Malaysian citizen in Malaysia), cert. denied, 470 U.S. 1031
(1985).
[ Footnote 2 ] The Sherman Act defines "person" to include
foreign corporations, 15 U.S.C. 7, and has been applied to
certain conduct beyond the territorial limits of the United States
by foreign corporations and nationals for at least 45 years. See
United States v. Aluminum Co. of America, 148 F.2d 416, 443-
444 (CA2 1945).
[ Footnote 3 ] Foreign corporations may be liable under 10(b)
of the Securities Exchange Act of 1934, 15 U.S.C. 78j(b), for
transactions that occur outside the United States if the
transactions involve stock registered and listed on a national
securities exchange and the alleged conduct is "detrimental to
the interests of American investors." Schoenbaum v. Firstbrook,
405 F.2d 200, 208 (CA2), rev'd on rehearing on other grounds,
405 F.2d 215 (CA2 1968) (en banc), cert. denied, 395 U.S. 906
(1969).
[ Footnote 4 ] See, e. g., 18 U.S.C. 32(b) (violence against an
individual aboard or destruction of any "civil aircraft registered
in a country other than the United States while such aircraft is
in flight"); 111 (assaulting, resisting, or impeding certain officers
or employees); 115 (influencing, impeding, or retaliating against
a federal official by threatening or injuring a family member);
1114, 1117 (murder, attempted murder, and conspiracy to
murder certain federal officers and employees); 1201(a)(5)
(kidnaping of federal officers and employees listed in 1114);
1201 (e) (kidnaping of "an internationally protected person," if
the alleged offender is found in the United States, "irrespective
of the place where the offense was committed or the nationality
of the victim or the alleged offender"); 1203 (hostage taking
outside the United States, if the offender or the person seized is
a United States national, if the offender is found in the United
States, or if "the governmental organization sought to be
compelled is the Government of the United States"); 1546
(fraud and [494 U.S. 259, 281] misuse of visas, permits, and
other immigration documents); 2331 (terrorist acts abroad
against United States nationals); 49 U.S.C. App. 1472(n) (1982
ed. and Supp. V) (aircraft piracy outside the special aircraft
jurisdiction of the United States, if the offender is found in the
United States). Foreign nationals may also be criminally liable
for numerous federal crimes falling within the "special maritime
and territorial jurisdiction of the United States," which includes
"[a]ny place outside the jurisdiction of any nation with respect
to an offense by or against a national of the United States." 18
U.S.C. 7(7). Finally, broad construction of federal conspiracy
statutes may permit prosecution of foreign nationals who have
had no direct contact with anyone or anything in the United
States. See Ford v. United States, 273 U.S. 593, 619 -620
(1927).
[ Footnote 5 ] None of the cases cited by the majority, ante, at
271, requires an alien's connections to the United States to be
"voluntary" before the alien can claim the benefits of the
Constitution. Indeed, Mathews v. Diaz, 426 U.S. 67, 77 (1976),
explicitly rejects the notion that an individual's connections to
the United States must be voluntary or sustained to qualify for
constitutional protection. Furthermore, even if a voluntariness
requirement were sensible in cases guaranteeing certain
governmental benefits to illegal aliens, e. g., Plyler v. Doe, 457
U.S. 202 (1982) [494 U.S. 259, 283] (holding that States
cannot deny to illegal aliens the free public education they
provide to citizens and legally documented aliens), it is not a
sensible requirement when our Government chooses to impose
our criminal laws on others.
[ Footnote 6 ] In this discussion, the Court implicitly suggests
that the Fourth Amendment may not protect illegal aliens in the
United States. Ante, at 273. Numerous lower courts, however,
have held that illegal aliens in the United States are protected
by the Fourth Amendment, and not a single lower court has held
to the contrary. See, e. g., Benitez-Mendez v. INS, 760 F.2d 907
(CA9 1985); United States v. Rodriguez, 532 F.2d 834, 838 (CA2
1976); Au Yi Lau v. INS, 144 U.S. App. D.C. 147, 156, 445 F.2d
217, 225, cert. denied, 404 U.S. 864 (1971); Yam Sang Kwai v.
INS, 133 U.S. App. D.C. 369, 372, 411 F.2d 683, 686, cert.
denied, 396 U.S. 877 (1969).
[ Footnote 7 ] The Fourth Amendment contains no express or
implied territorial limitations, and the majority does not hold
that the Fourth Amendment is inapplicable to searches outside
the United States and its territories. It holds that respondent is
not protected by the Fourth Amendment because he is not one
of "the people." Indeed, the majority's analysis implies that a
foreign national who had "developed sufficient connection with
this country to be considered part of [our] community" would be
protected by the Fourth Amendment regardless of the location
of the search. Certainly nothing in the Court's opinion questions
the validity of the rule, accepted by every Court of Appeals to
have considered the question, that the Fourth Amendment
applies to searches conducted by the United States Government
against United States citizens abroad. See, e. g., United States
v. Conroy, 589 F.2d 1258, 1264 (CA5), cert. denied, 444 U.S.
831 (1979); United States v. Rose, 570 F.2d 1358, 1362 (CA9
1978). A warrantless, unreasonable search and seizure is no
less a violation of the Fourth Amendment because it occurs in
Mexicali, Mexico, rather than Calexico, California.
[ Footnote 8 ] President John Adams traced the origins of our
independence from England to James Otis' impassioned
argument in 1761 against the British writs of assistance, which
allowed revenue officers to search American homes wherever
and whenever they wanted. Otis argued that "[a] man's house
is his castle," 2 Works of John Adams 524 (C. Adams ed. 1850),
and Adams declared that "[t]hen and there the child
Independence was born." 10 Works of John Adams 248 (C.
Adams ed. 1856).
[ Footnote 9 ] The majority places an unsupportable reliance
on the fact that the Drafters used "the people" in the Fourth
Amendment while using "person" and "accused" in the Fifth and
Sixth Amendments respectively, see ante, at 265-266. The
Drafters purposely did not use the term "accused." As the
majority recognizes, ante, at 264, the Fourth Amendment is
violated at the time of an unreasonable governmental intrusion,
even if the victim of unreasonable governmental action is never
formally "accused" of any wrongdoing. The majority's
suggestion that the Drafters could have used "person" ignores
the fact that the Fourth Amendment then would have begun
quite awkwardly: "The right of persons to be secure in their
persons . . . ."
[ Footnote 10 ] The only historical evidence the majority sets
forth in support of its restrictive interpretation of the Fourth
Amendment involves the seizure of French vessels during an
"undeclared war" with France in 1798 and 1799. Because
opinions in two Supreme Court cases, Little v. Barreme, 2
Cranch 170(1804), and Talbot v. Seeman, 1 Cranch 1 (1801),
"never suggested that the Fourth Amendment restrained the
authority of congress or of United States agents to conduct
operations such as this," ante, at 268, the majority deduces that
those alive when the Fourth Amendment was adopted did not
believe it protected foreign nationals. Relying on the absence of
any discussion of the Fourth Amendment in these decisions,
however, runs directly contrary to the majority's admonition
that the Court only truly decides that which it "expressly
address[es]." Ante, at 272 (discussing INS v. Lopez-Mendoza,
468 U.S. 1032 (1984). Moreover, the Court in Little found that
the American commander had violated the statute authorizing
seizures, thus rendering any discussion of the constitutional
question superfluous. See, e. g., Ashwander v. TVA, 297 U.S.
288, 347 (1936) (Brandeis, J., concurring). And in Talbot, the
vessel's owners opposed the seizure on purely factual grounds,
claiming the vessel was not French. Furthermore, although
neither Little nor Talbot expressly mentions the Fourth
Amendment, both opinions adopt a "probable cause" standard,
suggesting that the Court may have either applied or been
informed by the Fourth Amendment's standards of conduct.
Little, supra, at 179; Talbot, supra, at 31-32 (declaring that
"where there is probable cause to believe the vessel met with at
sea is in the condition of one liable to capture, it is lawful to
take her, and subject her to the examination and adjudication of
the courts").
[ Footnote 11 ] The last of the Insular Cases cited by the
majority, Downes v. Bidwell, 182 U.S. 244 (1901), is equally
irrelevant. In Downes, the Court held that Puerto Rico was not
part of "the United States" with respect to the constitutional
provision that "all Duties, Imposts and Excises shall be uniform
throughout the United States," U.S. Const., Art. I, 8, cl. 1. 182
U.S., at 249 . Unlike the Uniform Duties Clause, the Fourth
Amendment contains no express territorial limitations. See n. 7,
supra.
[ Footnote 12 ] The District Court found no exigent
circumstances that would justify a warrantless search. After
respondent's arrest in Mexico, he was transported to the United
States and held in custody in southern California. Only after
respondent was in custody in the United States did the Drug
Enforcement Administration (DEA) begin preparations for a
search of his Mexican residences. On the night respondent was
arrested, DEA Agent Terry Bowen contacted DEA Special Agent
Walter White in Mexico to seek his assistance in conducting the
search. Special Agent White contacted Mexican officials the
next morning and at 1 p.m. authorized Agent Bowen to conduct
the search. A team of DEA agents then drove to Mexico, met
with Mexican officials, and arrived at the first of respondent's
two residences after dark. 856 F.2d 1214, 1226 (CA9 1988). The
search did not begin until approximately 10 p.m. the day after
respondent was taken into custody. App. to Pet. for Cert. 101a.
In all that time, particularly when respondent and Agent Bowen
were both in the United States and Agent Bowen was awaiting
further communications from Special Agent White, DEA agents
could easily have sought a warrant from a United States
Magistrate.
[ Footnote 13 ] JUSTICE STEVENS concurs in the judgment
because he believes that the search in this case "was not
`unreasonable' as that term is used in the first Clause of the
Amendment." Ante, at 279. I do not understand why JUSTICE
STEVENS reaches the reasonableness question in the first
instance rather than remanding that issue to the Court of
Appeals. The District Court found that, even if a warrant were
not required for this search, the search was nevertheless
unreasonable. The court found that the search was
unconstitutionally general in its scope, as the agents were not
limited by any precise written or oral descriptions of the type of
documentary evidence sought. App. to Pet. for Cert. 102a.
Furthermore, the Government demonstrated no specific exigent
circumstances that would justify the increased intrusiveness of
searching respondent's residences between 10 p.m. and 4 a.m.,
rather than during the day. Id., at 101a. Finally, the DEA agents
who conducted the search did not prepare contemporaneous
inventories of the items seized or leave receipts to inform the
residents of the search and the items seized. Id., at 102a.
Because the Court of Appeals found that the search violated the
Warrant Clause, it never reviewed the District Court's
alternative holding that the search was unreasonable even if no
warrant were required. Thus, even if I agreed with JUSTICE
STEVENS that the Warrant Clause did not apply in this case, I
would remand to the Court of Appeals for consideration of
whether the search was unreasonable. Barring a detailed review
of the record, I think it is inappropriate to draw any conclusion
about the reasonableness of the Government's conduct,
particularly when the conclusion reached contradicts the
specific findings of the District Court.
JUSTICE KENNEDY rejects application of the Warrant Clause
not because of the identity of the individual seeking protection,
but because of the location of the search. See ante, at 278
(concurring opinion) ("[T]he Fourth Amendment's warrant
requirement should not apply in Mexico as it does in this
country"). JUSTICE KENNEDY, however, never explains why the
Reasonableness Clause, as opposed to the Warrant Clause,
would not apply to searches abroad.
[ Footnote 14 ] The United States Government has already
recognized the importance of these constitutional requirements
by adopting a warrant requirement for certain foreign searches.
Department of the Army regulations state that the Army must
seek a "judicial warrant" from a United States court whenever
the Army seeks to intercept the wire or oral communications of
a person not subject to the Uniform Code of Military Justice
outside of the United States and its territories. Army Regulation
190-53 µ 2-2(b) (1986). Any request for a judicial warrant must
be supported by sufficient facts to meet the probable-cause
standard applied to interceptions of wire or oral
communications in the United States, 18 U.S.C. 2518(3). Army
Regulation 190-53 µ 2-2(b). If the foreign country in which the
interception will occur has certain requirements that must be
met before other nations can intercept wire or oral
communications, an American judicial warrant will not alone
authorize the interception under international law. Nevertheless,
the Army has recognized that an order from a United States
court is necessary under domestic law. By its own regulations,
the United States Government has conceded that although an
American warrant might be a "dead letter" in a foreign country,
a warrant procedure in an American court plays a vital and
indispensable role in circumscribing the discretion of agents of
the Federal Government.
JUSTICE BLACKMUN, dissenting.
I cannot accept the Court of Appeals' conclusion, echoed in
some portions of JUSTICE BRENNAN'S dissent, that the Fourth
Amendment governs every action by an American official that
can be characterized as a search or seizure. American agents
acting abroad generally do not purport to exercise sovereign
authority over the foreign nationals with whom they come in
contact. The relationship between these agents and foreign
nationals is therefore fundamentally different from the
relationship between United States officials and individuals
residing within this country.
I am inclined to agree with JUSTICE BRENNAN, however, that
when a foreign national is held accountable for purported
violations of United States criminal laws, he has effectively been
treated as one of "the governed" and therefore is entitled to
Fourth Amendment protections. Although the Government's
exercise of power abroad does not ordinarily implicate the
Fourth Amendment, the enforcement of domestic criminal law
seems to me to be the paradigmatic exercise of sovereignty
over those who are compelled to obey. In any event, as JUSTICE
STEVENS notes, ante, at 279, respondent was lawfully (though
involuntarily) within this country at the time the search
occurred. Under these circumstances I believe that respondent
is entitled to invoke protections of the Fourth Amendment. I
agree with the Government, however, that an American
magistrate's lack of power to authorize a search abroad renders
the Warrant Clause inapplicable to the search of a noncitizen's
residence outside this country.
The Fourth Amendment nevertheless requires that the search
be "reasonable." And when the purpose of a search is [494 U.S.
259, 298] the procurement of evidence for a criminal
prosecution, we have consistently held that the search, to be
reasonable, must be based upon probable cause. Neither the
District Court nor the Court of Appeals addressed the issue of
probable cause, and I do not believe that a reliable
determination could be made on the basis of the record before
us. I therefore would vacate the judgment of the Court of
Appeals and remand the case for further proceedings. [494 U.S.
259, 299]