Yasser Esam Hamdi
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Yaser Esam Hamdi (born September 26, 1980) is a former American citizen who was captured in
Afghanistan Afghanistan, officially the Islamic Emirate of Afghanistan,; prs, امارت اسلامی افغانستان is a landlocked country located at the crossroads of Central Asia and South Asia. Referred to as the Heart of Asia, it is bordere ...
in 2001. The United States government claims that he was fighting with the
Taliban The Taliban (; ps, طالبان, ṭālibān, lit=students or 'seekers'), which also refers to itself by its state (polity), state name, the Islamic Emirate of Afghanistan, is a Deobandi Islamic fundamentalism, Islamic fundamentalist, m ...
against U.S. and
Afghan Northern Alliance The Northern Alliance, officially known as the United Islamic National Front for the Salvation of Afghanistan ( prs, جبهه متحد اسلامی ملی برای نجات افغانستان ''Jabha-yi Muttahid-i Islāmi-yi Millī barāyi Nijāt ...
forces. He was declared an "
illegal enemy combatant An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is a person who directly engages in armed conflict in violation of the laws of war and therefore is claimed not to be protected by the Geneva Conventions. The Internati ...
" by the Bush administration and detained for almost three years without charge. On October 9, 2004, on the condition that he renounce his U.S. citizenship and commit to travel prohibitions and other conditions, the government released him and deported him to Saudi Arabia, where he had been raised. Hamdi was initially detained at Camp X-Ray at Guantanamo Bay,
Cuba Cuba ( , ), officially the Republic of Cuba ( es, República de Cuba, links=no ), is an island country comprising the island of Cuba, as well as Isla de la Juventud and several minor archipelagos. Cuba is located where the northern Caribbea ...
, along with eventually hundreds of other detainees. After officials learned that he was a U.S. citizen, Hamdi was transferred to military jails in
Virginia Virginia, officially the Commonwealth of Virginia, is a state in the Mid-Atlantic and Southeastern regions of the United States, between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth ar ...
and
South Carolina )''Animis opibusque parati'' ( for, , Latin, Prepared in mind and resources, links=no) , anthem = " Carolina";" South Carolina On My Mind" , Former = Province of South Carolina , seat = Columbia , LargestCity = Charleston , LargestMetro = ...
. He continued to be detained without trial or legal representation. Critics of his imprisonment claimed his
civil rights Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life of ...
were violated and that he was denied
due process of law Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pers ...
under the
U.S. Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
. They said his imprisonment without formal charges and denial of
right to counsel In criminal law, the right to counsel means a defendant has a legal right to have the assistance of counsel (i.e., lawyers) and, if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal exp ...
was illegal. On June 28, 2004, in ''
Hamdi v. Rumsfeld ''Hamdi v. Rumsfeld'', 542 U.S. 507 (2004), is a United States Supreme Court case in which the Court recognized the power of the U.S. government to detain enemy combatants, including U.S. citizens, but ruled that detainees who are U.S. citizens m ...
'', the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
upheld the U.S. government's ability to detain him indefinitely as an enemy combatant, but granted him some due process rights and the ability to contest his enemy combatant status. It said he had the right as a U.S. citizen to due process under ''
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'': to confront his accusers and contest the grounds of detention in an impartial forum.


Early years

According to his
birth certificate A birth certificate is a vital record that documents the birth of a person. The term "birth certificate" can refer to either the original document certifying the circumstances of the birth or to a certified copy of or representation of the ensuin ...
, Hamdi was born to immigrant parents from
Saudi Arabia Saudi Arabia, officially the Kingdom of Saudi Arabia (KSA), is a country in Western Asia. It covers the bulk of the Arabian Peninsula, and has a land area of about , making it the fifth-largest country in Asia, the second-largest in the A ...
in
Baton Rouge Baton Rouge ( ; ) is a city in and the capital of the U.S. state of Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-sma ...
,
Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is borde ...
, on September 26, 1980. As a child, he moved with his parents from the United States back to Saudi Arabia, where he grew up. The ''
Charleston Post and Courier Charleston most commonly refers to: * Charleston, South Carolina * Charleston, West Virginia, the state capital * Charleston (dance) Charleston may also refer to: Places Australia * Charleston, South Australia Canada * Charleston, Newfoundlan ...
'' reported that Hamdi ran away from home during the summer of 2001, when he was 20 years old, and trained at a
Taliban The Taliban (; ps, طالبان, ṭālibān, lit=students or 'seekers'), which also refers to itself by its state (polity), state name, the Islamic Emirate of Afghanistan, is a Deobandi Islamic fundamentalism, Islamic fundamentalist, m ...
camp. His family said that he spent only a few weeks at the camp, "where he quickly became disillusioned". He was caught up in the fighting and chaos after the United States invaded Afghanistan.


Afghanistan

In late November 2001, after the
United States invasion of Afghanistan In late 2001, the United States and its close allies invaded Afghanistan and toppled the Taliban government. The invasion's aims were to dismantle al-Qaeda, which had executed the September 11 attacks, and to deny it a safe base of operatio ...
, Hamdi was captured by Afghan
Northern Alliance The Northern Alliance, officially known as the United Islamic National Front for the Salvation of Afghanistan ( prs, جبهه متحد اسلامی ملی برای نجات افغانستان ''Jabha-yi Muttahid-i Islāmi-yi Millī barāyi Nijāt ...
forces in
Kunduz , native_name_lang = prs , other_name = , settlement_type = City , image_skyline = Kunduz River valley.jpg , imagesize = 300 , image_alt = , image_caption = , image_ ...
,
Afghanistan Afghanistan, officially the Islamic Emirate of Afghanistan,; prs, امارت اسلامی افغانستان is a landlocked country located at the crossroads of Central Asia and South Asia. Referred to as the Heart of Asia, it is bordere ...
, along with hundreds of surrendering
Taliban The Taliban (; ps, طالبان, ṭālibān, lit=students or 'seekers'), which also refers to itself by its state (polity), state name, the Islamic Emirate of Afghanistan, is a Deobandi Islamic fundamentalism, Islamic fundamentalist, m ...
fighters. All the men were sent to the Qala-e-Jangi prison complex near
Mazar-i-Sharif , official_name = , settlement_type = City , image_skyline = , pushpin_map = Afghanistan#Bactria#West Asia , pushpin_label = Mazar-i-Sharif , pushpin ...
. Among the surrendering Taliban forces,
Afghan Arabs Afghan Arabs (also known as Arab-Afghans) are Arab and other Muslim Islamist mujahideen who came to Afghanistan during and following the Soviet–Afghan War to help fellow Muslims fight Soviets and pro-Soviet Afghans. Estimates of the volunte ...
instigated a prison riot by detonating grenades they had concealed in their clothing, attacking Northern Alliance guards and seizing weapons. The prison uprising (known as the
Battle of Qala-i-Jangi The Battle of Qala-i-Jangi (sometimes also referred to as the "Battle of Mazar-i-Sharif") was a six-day military engagement following an uprising of prisoners-of-war on November 25, 2001. The battle took place between November 25 and December 1 ...
) was quashed after a three-day battle, which included heavy air support from U.S.
AC-130 gunship The Lockheed AC-130 gunship is a heavily armed, long-endurance, ground-attack variant of the C-130 Hercules transport, fixed-wing aircraft. It carries a wide array of ground-attack weapons that are integrated with sophisticated sensors, naviga ...
s and
Black Hawk Black Hawk and Blackhawk may refer to: Animals * Black Hawk (horse), a Morgan horse that lived from 1833 to 1856 * Common black hawk, ''Buteogallus anthracinus'' * Cuban black hawk, ''Buteogallus gundlachii'' * Great black hawk, ''Buteogallus ur ...
helicopters. One American (
Johnny Micheal Spann Johnny Micheal "Mike" Spann (March 1, 1969 – November 25, 2001) was an American paramilitary officer in the Central Intelligence Agency's Special Activities Division. Spann was the first American killed in action, killed in combat during th ...
) was killed and nine were injured, along with about 50 Northern Alliance soldiers. Between 200 and 400 Taliban prisoners were killed during the prison uprising. Two prisoners who were American citizens, Hamdi and
John Walker Lindh John Philip Walker Lindh (born February 9, 1981) is an American convicted felon who was captured as an enemy combatant during the United States' invasion of Afghanistan in November 2001. He was detained at Qala-i-Jangi fortress, used as a priso ...
, were among the survivors. Hamdi surrendered on the second day of fighting with a group of 73 surviving prisoners, after Coalition forces began flooding the underground basements where the remaining prisoners had hidden themselves. The United States officer Matthew Campbell approached him, demanding to know his origin, to which Hamdi replied "I was born in America...
Baton Rouge Baton Rouge ( ; ) is a city in and the capital of the U.S. state of Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-sma ...
, Louisiana, you know it, yeah?" Worthington, Andy, ''The Guantanamo Files: The Stories of the 774 Detainees in America's Illegal Prison,''
Pluto Press Pluto Press is a British independent book publisher based in London, founded in 1969. Originally, it was the publishing arm of the International Socialists (today known as the Socialist Workers Party), until it changed hands and was replaced ...
. , 2007
The United States transported Hamdi to the
Guantanamo Bay detention camp The Guantanamo Bay detention camp ( es, Centro de detención de la bahía de Guantánamo) is a United States military prison located within Guantanamo Bay Naval Base, also referred to as Guantánamo, GTMO, and Gitmo (), on the coast of Guant ...
and detained him there starting February 11, 2002. On April 5, the government transferred Hamdi to a jail at
Naval Station Norfolk Naval Station Norfolk is a United States Navy base in Norfolk, Virginia, that is the headquarters and home port of the U.S. Navy's Fleet Forces Command. The installation occupies about of waterfront space and of pier and wharf space of the Hamp ...
in Virginia. Armed with a federal appeals court finding, the Bush administration refused Hamdi a lawyer until December 2003.
The Pentagon The Pentagon is the headquarters building of the United States Department of Defense. It was constructed on an accelerated schedule during World War II. As a symbol of the U.S. military, the phrase ''The Pentagon'' is often used as a metony ...
announced then that Hamdi would be allowed access to legal counsel because his "intelligence value" had been exhausted and that giving him a lawyer would not harm national security. The announcement said the decision "should not be treated as a precedent" for other cases in which the government had designated U.S. citizens as "illegal enemy combatants". ( José Padilla was then the only other U.S. citizen known to be imprisoned by the U.S. government as an "illegal enemy combatant"). After the decision, Frank Dunham, Hamdi's lawyer, was finally able to meet with him in February 2004, more than two years after he was incarcerated. Under Pentagon guidelines, military observers attended and recorded their meetings. Dunham was not allowed to discuss with Hamdi the conditions of his confinement. By this time, he had been transferred to the Navy Brig in
Charleston Charleston most commonly refers to: * Charleston, South Carolina * Charleston, West Virginia, the state capital * Charleston (dance) Charleston may also refer to: Places Australia * Charleston, South Australia Canada * Charleston, Newfoundlan ...
, South Carolina. After the initial meeting, Hamdi was allowed to have confidential discussions with his attorneys without military observers, or video or audio taping in the room. Hamdi's father petitioned a federal court for Hamdi's rights to know the crime(s) he is accused of, and to receive a fair trial before imprisonment. In January 2004, the
U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
agreed to hear Hamdi's case (''
Hamdi v. Rumsfeld ''Hamdi v. Rumsfeld'', 542 U.S. 507 (2004), is a United States Supreme Court case in which the Court recognized the power of the U.S. government to detain enemy combatants, including U.S. citizens, but ruled that detainees who are U.S. citizens m ...
''). It ruled that U.S. citizens were entitled to the basic rights of
due process Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pers ...
protections, and rejected the administration's claim that its war-making powers overrode
constitutional A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princip ...
liberties Liberty is the ability to do as one pleases, or a right or immunity enjoyed by prescription or by grant (i.e. privilege). It is a synonym for the word freedom. In modern politics, liberty is understood as the state of being free within society fr ...
.


2002 memos

On August 1, 2002, the
Office of Legal Counsel The Office of Legal Counsel (OLC) is an office in the United States Department of Justice that assists the Attorney General's position as legal adviser to the President and all executive branch agencies. It drafts legal opinions of the Attorney ...
of the Department of Justice issued a memo signed by
Jay S. Bybee Jay Scott Bybee (born October 27, 1953) is an American lawyer and jurist serving as a Senior Status, senior United States federal judge, United States circuit judge of the United States Court of Appeals for the Ninth Circuit. He has published num ...
to
John A. Rizzo John Anthony Rizzo (October 6, 1947August 6, 2021) was an American attorney who worked as a lawyer in the Central Intelligence Agency for 34 years. He was the deputy counsel or acting general counsel of the CIA for the first nine years of the Wa ...
, Acting
General Counsel A general counsel, also known as chief counsel or chief legal officer (CLO), is the chief in-house lawyer for a company or a governmental department. In a company, the person holding the position typically reports directly to the CEO, and their ...
of the
Central Intelligence Agency The Central Intelligence Agency (CIA ), known informally as the Agency and historically as the Company, is a civilian foreign intelligence service of the federal government of the United States, officially tasked with gathering, processing, ...
regarding authorized interrogation and detention techniques for the detainees in the
war on terror The war on terror, officially the Global War on Terrorism (GWOT), is an ongoing international Counterterrorism, counterterrorism military campaign initiated by the United States following the September 11 attacks. The main targets of the campa ...
. It approved ten "
enhanced interrogation "Enhanced interrogation techniques" or "enhanced interrogation" is a euphemism for the program of systematic torture of detainees by the Central Intelligence Agency (CIA), the Defense Intelligence Agency (DIA) and various components of the U.S. Ar ...
" techniques including
waterboarding Waterboarding is a form of torture in which water torture, water is poured over a cloth covering the face and breathing passages of an immobilized captive, causing the person to experience the sensation of drowning. In the most common method ...
. Shortly after September 26, 2002, numerous senior government political appointees of the Bush Administration flew to see the conditions of detention for Mohammed al-Kahtani and two United States citizens then held as enemy combatants: Jose Padilla and Hamdi, as a result of legal challenges to the government's detention policy. The officials included the following: *
David Addington David Spears Addington (born January 22, 1957) is an American lawyer who was legal counsel (2001–2005) and chief of staff (2005–2009) to Vice President Dick Cheney. He was the vice president of domestic and economic policy studies at the Heri ...
, legal counsel to Vice-President
Dick Cheney Richard Bruce Cheney ( ; born January 30, 1941) is an American politician and businessman who served as the 46th vice president of the United States from 2001 to 2009 under President George W. Bush. He is currently the oldest living former U ...
; *
Alberto Gonzales Alberto R. Gonzales (born August 4, 1955) is an American lawyer who served as the 80th United States Attorney General, appointed in February 2005 by President George W. Bush, becoming the highest-ranking Hispanic American in executive governme ...
,
White House Counsel The White House counsel is a senior staff appointee of the president of the United States whose role is to advise the president on all legal issues concerning the president and their administration. The White House counsel also oversees the Of ...
and later U.S. Attorney General; *
John A. Rizzo John Anthony Rizzo (October 6, 1947August 6, 2021) was an American attorney who worked as a lawyer in the Central Intelligence Agency for 34 years. He was the deputy counsel or acting general counsel of the CIA for the first nine years of the Wa ...
, Acting General Counsel of the
CIA The Central Intelligence Agency (CIA ), known informally as the Agency and historically as the Company, is a civilian intelligence agency, foreign intelligence service of the federal government of the United States, officially tasked with gat ...
; *
William Haynes II William James "Jim" Haynes II (born March 30, 1958) is an American lawyer and was General Counsel of the Department of Defense during much of 43rd President George W. Bush's administration and his war on terror. Haynes resigned as general counsel ...
,
General Counsel of the Department of Defense The General Counsel of the Department of Defense is the general counsel, chief legal officer of the United States Department of Defense, Department of Defense (DoD), advising both the United States Secretary of Defense, Secretary and United States ...
; *
Jack Goldsmith Jack Landman Goldsmith III (born September 26, 1962) is an American legal scholar. He is a professor at Harvard Law School who has written extensively in the fields of international law, civil procedure, federal courts, conflict of laws, and nat ...
, legal adviser to Haynes in the Office of General Counsel, DOD; *
Alice S. Fisher Alice Stevens Fisher (born January 27, 1967) is an American lawyer and partner at the Washington, D.C. office of Latham & Watkins LLP. Fisher served as Deputy United States Assistant Attorney General for the Criminal Division from 2001 to 2003 a ...
, Deputy Assistant Attorney General in the Criminal Division, Department of Justice (DOJ), with responsibility for counter-terrorism efforts; and *
Patrick F. Philbin Patrick F. Philbin is an American lawyer who served as Deputy Counsel to the President and Deputy Assistant to the President in the Office of White House Counsel in the Donald J. Trump administration. He previously served in the Department of Ju ...
, Deputy Assistant Attorney General, Office of Legal Counsel, DOJ, who had helped develop policy related to Bush's use of military commissions to review detainees' cases; They first flew to
Camp Delta Camp Delta is a permanent American detainment camp at Guantanamo Bay that replaced the temporary facilities of Camp X-Ray. Its first facilities were built between 27 February and mid-April 2002 by Navy Seabees, Marine Engineers, and workers f ...
at Guantanamo to see the detainee al-Kahtani. They traveled next to
Charleston Charleston most commonly refers to: * Charleston, South Carolina * Charleston, West Virginia, the state capital * Charleston (dance) Charleston may also refer to: Places Australia * Charleston, South Australia Canada * Charleston, Newfoundlan ...
, South Carolina, to view Padilla, held at the Naval Brig, and finally to
Norfolk Norfolk () is a ceremonial and non-metropolitan county in East Anglia in England. It borders Lincolnshire to the north-west, Cambridgeshire to the west and south-west, and Suffolk to the south. Its northern and eastern boundaries are the No ...
,
Virginia Virginia, officially the Commonwealth of Virginia, is a state in the Mid-Atlantic and Southeastern regions of the United States, between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth ar ...
, to view Hamdi, who was still being detained at that Naval brig. Mayer, Jane, '' The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals'', 2008. p. 199 Upon seeing Hamdi curled up in
fetal position Fetal position (British English: also foetal) is the positioning of the body of a prenatal fetus as it develops. In this position, the back is curved, the head is bowed, and the limbs are bent and drawn up to the torso. A compact position is ...
in his cell, Goldsmith wrote, "it seemed unnecessary to hold a twenty-two year old foot soldier in a remote wing of a run-down prison in a tiny cell, isolated from almost all human contact, and with no access to a lawyer". In 2008, 91 pages of memos drafted in 2002 by officers at the Naval Consolidated Brig, Charleston, were made public under an FOIA petition. As reported by news outlets, the emails and memos described the officers' concerns for the sanity of the detainees due to the conditions of their confinements at the time, which included extended solitary confinement. The memos indicate that officers were concerned at the time that the isolation and lack of stimuli was severely affecting the mental health of Hamdi, Padilla and Ali Saleh Kahlah al-Marri, another U.S. detainee.


U.S. Supreme Court ''amici curiæ'' briefs

Twelve U.S. Supreme Court '' amici curiæ'' briefs were filed in the ''Hamdi'' case, including nine on behalf of Hamdi and three in support of the government. Supporters of the U.S. government's position included the
American Center for Law and Justice The American Center for Law & Justice (ACLJ) is a politically conservative, Christian-based legal organization in the United States. It is headquartered in Washington, D.C., and associated with Regent University School of Law in Virginia Beach, V ...
; Citizens for the Common Defence; filing jointly, the Washington Legal Foundation, U.S. Representatives
Joe Barton Joseph Linus Barton (born September 15, 1949) is an American politician who represented in the U.S. House of Representatives from 1985 to 2019. The district included Arlington, part of Fort Worth, and several small towns and rural areas south ...
(R–Tex.), Walter Jones (R–N.C.), and
Lamar Smith Lamar Seeligson Smith (born November 19, 1947) is an American politician and lobbyist who served in the United States House of Representatives for for 16 terms, a district including most of the wealthier sections of San Antonio and Austin, as w ...
(R–Tex.), and Allied Educational Foundatio

and, also filing jointly, the Center for American Unity, Friends of Immigration Law Enforcement, National Center on Citizenship and Immigration, and U.S. Representatives
Dana Rohrabacher Dana Tyrone Rohrabacher (; born June 21, 1947) is a former American politician who served in the U.S. House of Representatives from 1989 to 2019. A Republican, he represented for the last three terms of his House tenure. Rohrabacher ran for re- ...
(R–Calif.), Lamar Smith,
Tom Tancredo Thomas Gerard Tancredo (; born December 20, 1945) is an American politician from Colorado, who represented the state's sixth congressional district in the United States House of Representatives from 1999 to 2009 as a Republican. He ran for Presi ...
(R–Colo.),
Roscoe Bartlett Roscoe Gardner Bartlett Jr. (born June 3, 1926) is an American politician who was U.S. Representative for , serving from 1993 to 2013. He is a member of the Republican Party and was a member of the Tea Party Caucus. At the end of his tenure in ...
(R–Md.),
Mac Collins Michael Allen "Mac" Collins (October 15, 1944 – November 20, 2018) was an American businessman and politician. He was a Republican member of the United States House of Representatives from 1993 to 2005, representing (previously from 1993 to ...
(R–Ga.),
Joe Barton Joseph Linus Barton (born September 15, 1949) is an American politician who represented in the U.S. House of Representatives from 1985 to 2019. The district included Arlington, part of Fort Worth, and several small towns and rural areas south ...
, and Jimmy Duncan (R–Tenn.). Some government supporters argued that he had renounced his citizenship by virtue of enlisting in a foreign army. The Center for American Unity's brief argued that Hamdi was never a United States citizen, despite his birth in the United States. They argued that the policy of
birthright citizenship ''Jus soli'' ( , , ; meaning "right of soil"), commonly referred to as birthright citizenship, is the right of anyone born in the territory of a state to nationality or citizenship. ''Jus soli'' was part of the English common law, in contras ...
is based on a flawed interpretation of the Fourteenth Amendment. On the other side, the
American Bar Association The American Bar Association (ABA) is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. Founded in 1878, the ABA's most important stated activities are the setting of acad ...
;
American Civil Liberties Union The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
,
American Jewish Committee The American Jewish Committee (AJC) is a Jewish advocacy group established on November 11, 1906. It is one of the oldest Jewish advocacy organizations and, according to ''The New York Times'', is "widely regarded as the dean of American Jewish org ...
, Trial Lawyers for Public Justice, and
Union for Reform Judaism The Union for Reform Judaism (URJ), known as the Union of American Hebrew Congregations (UAHC) until 2003, founded in 1873 by Rabbi Isaac Mayer Wise, is the congregational arm of Reform Judaism in North America. The other two arms established ...
filing jointly; the
Cato Institute The Cato Institute is an American libertarian think tank headquartered in Washington, D.C. It was founded in 1977 by Ed Crane, Murray Rothbard, and Charles Koch, chairman of the board and chief executive officer of Koch Industries.Koch Indust ...
; Experts on the Law of War; Certain Former Prisoners of War; Global Rights; Hon. Nathaniel R. Jones, Hon.
Abner J. Mikva Abner Joseph Mikva (January 21, 1926 – July 4, 2016) was an American politician, federal judge, lawyer and law professor. He was a member of the Democratic Party. Mikva served in the United States House of Representatives representing Illinois ...
, Hon. William A. Norris, Hon. H. Lee Sarokin, Hon. Herbert J. Stern, Hon. Harold R. Tyler, Jr., Scott Greathead, Robert M. Pennoyer, and Barbara Paul Robinson filing jointly; International Humanitarian Organizations and Associations of International Journalists filing jointly; and a group of international law professors filing jointly submitted ''amici curiæ'' briefs to the court on behalf of Hamdi. Opponents of the U.S. government's detention without trial of U.S. citizens argued that the practice violated numerous constitutional safeguards and protections, as well as international conventions to which the United States is a signatory.


U.S. Supreme Court decision

On June 28, 2004, the Supreme Court issued a decision repudiating the U.S. government's unilateral assertion of executive authority to suspend constitutional protections of individual liberty. "An interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate fact-finding before a neutral decision-maker", wrote Justice
Sandra Day O'Connor Sandra Day O'Connor (born March 26, 1930) is an American retired attorney and politician who served as the first female associate justice of the Supreme Court of the United States from 1981 to 2006. She was both the first woman nominated and th ...
. The U.S. Supreme Court opinion reasserted the
rule of law The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
in American society: "It is during our most challenging and uncertain moments that our nation's commitment to
due process Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pers ...
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." She added that the Court had "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". The Supreme Court decision in ''Hamdi'' did not say that the government could not detain enemy combatants; it can detain enemy combatants for the length of hostilities. However, they must be given some sort of due process to determine their status as an enemy combatant. Although the
United States Congress The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washing ...
has recognized the
Combatant Status Review Tribunal The Combatant Status Review Tribunals (CSRT) were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were esta ...
, the Pentagon's administrative procedure, the Supreme Court did not recognize it as due process.


Legal significance

The Hamdi decision reaffirmed the importance of
separation of powers Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
among the branches of the government, and, in particular, the role of the
judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
in reviewing actions of the
executive branch The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a State (polity), state. In poli ...
infringing the rights of citizens even in emergencies. After the
American Civil War The American Civil War (April 12, 1861 – May 26, 1865; also known by other names) was a civil war in the United States. It was fought between the Union ("the North") and the Confederacy ("the South"), the latter formed by states th ...
, the Supreme Court prohibited military detention of noncombatant Americans without appeal or writ of
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
as long as courts were functioning; the difference with this case being that the Supreme Court waited until the war was over to decide the case. A 1948 federal law condemned the detention of Japanese-Americans without
legal recourse A legal recourse is an action that can be taken by an individual or a corporation to attempt to remedy a legal difficulty. * A lawsuit if the issue is a matter of civil law * Contracts that require mediation or arbitration before a dispute can go ...
during
World War II World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
; it prohibited the imprisonment of American citizens except pursuant to an act of Congress. The Bush administration claimed that U.S. law does not apply to "illegal enemy combatants" and that it asserted the right to decide which U.S. citizens are "enemy combatants", ineligible for protection of their rights as enshrined in the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
. Some legal scholars hailed the Supreme Court decision as the most important
civil rights Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life of ...
opinion in a half-century. They said that it was a dramatic reversal of the sweeping authority asserted by President Bush since the
September 11, 2001 attacks The September 11 attacks, commonly known as 9/11, were four coordinated suicide terrorist attacks carried out by al-Qaeda against the United States on Tuesday, September 11, 2001. That morning, nineteen terrorists hijacked four commercial ...
. Other scholars, however, believe the Supreme Court imprudently enhanced the Executive's power. The Supreme Court allowed the Executive to unilaterally determine that Hamdi was an enemy combatant. Further, the Supreme Court determined that the Executive was not required to provide any process when making the enemy combatant classification. The Supreme Court's only requirement was that a person classified as an enemy combatant must be provided with minimal due process. In effect, this allowed the Executive branch to lower the due process requirements on an American citizen, solely because the Executive branch claimed he was an enemy combatant. Assessing the Hamdi decision, Habeas Corpus scholar Jared Perkins noted "By ratifying in part and 'fixing' (as Justice Scalia put it) in part the executive's action against Hamdi, the plurality participated with the executive in the usurpation of Congress's power to define the curtailment of the public's liberties. Removing this power (and, more importantly, this responsibility) from the representatives of the people seriously undermines those structural protections that Madison and others saw as the fundamental barrier to tyranny. "


Release

After agreeing to renounce his U.S. citizenship, Hamdi was released on October 9, 2004, without being charged and was deported to Saudi Arabia. He had to promise to comply with strict travel restrictions, which prohibited him from traveling to the United States,
Israel Israel (; he, יִשְׂרָאֵל, ; ar, إِسْرَائِيل, ), officially the State of Israel ( he, מְדִינַת יִשְׂרָאֵל, label=none, translit=Medīnat Yīsrāʾēl; ), is a country in Western Asia. It is situated ...
, the
West Bank The West Bank ( ar, الضفة الغربية, translit=aḍ-Ḍiffah al-Ġarbiyyah; he, הגדה המערבית, translit=HaGadah HaMaʽaravit, also referred to by some Israelis as ) is a landlocked territory near the coast of the Mediter ...
and
Gaza Strip The Gaza Strip (;The New Oxford Dictionary of English (1998) – p.761 "Gaza Strip /'gɑːzə/ a strip of territory under the control of the Palestinian National Authority and Hamas, on the SE Mediterranean coast including the town of Gaza.. ...
,
Syria Syria ( ar, سُورِيَا or سُورِيَة, translit=Sūriyā), officially the Syrian Arab Republic ( ar, الجمهورية العربية السورية, al-Jumhūrīyah al-ʻArabīyah as-Sūrīyah), is a Western Asian country loc ...
,
Iraq Iraq,; ku, عێراق, translit=Êraq officially the Republic of Iraq, '; ku, کۆماری عێراق, translit=Komarî Êraq is a country in Western Asia. It is bordered by Turkey to Iraq–Turkey border, the north, Iran to Iran–Iraq ...
,
Afghanistan Afghanistan, officially the Islamic Emirate of Afghanistan,; prs, امارت اسلامی افغانستان is a landlocked country located at the crossroads of Central Asia and South Asia. Referred to as the Heart of Asia, it is bordere ...
, and
Pakistan Pakistan ( ur, ), officially the Islamic Republic of Pakistan ( ur, , label=none), is a country in South Asia. It is the world's List of countries and dependencies by population, fifth-most populous country, with a population of almost 24 ...
. Hamdi was required to notify Saudi Arabian officials if he ever plans to leave the kingdom. He had to promise not to sue the U.S. government over his captivity. Saudi Arabia subsequently imprisoned Hamdi in
Dammam Dammam ( ar, الدمّام ') is the fifth-most populous city in Saudi Arabia after Riyadh, Jeddah, Mecca, and Medina. It is the capital of the Eastern Province. With a total population of 1,252,523 as of 2020. The judicial and administrative ...
for eight years and
Ha'ir ''Ha'ir'' (, lit ''The City'') is a weekly local newspaper published in Tel Aviv, Israel. The tabloid-sized newspaper was first published in October 1980. Since April 2005 when there was a major shakeup in the business structure of newspaper's p ...
for seven years; he is due to be released in 2022. At Ha'ir he became a media specialist with the prisoner-run enterprise. Although Hamdi renounced his U.S. citizenship, it is unclear whether the renunciation counts as "voluntary", as required by the Supreme Court's decisions in ''
Afroyim v. Rusk ''Afroyim v. Rusk'', 387 U.S. 253 (1967), was a List of landmark court decisions in the United States, landmark decision of the Supreme Court of the United States, which ruled that citizenship in the United States, citizens of the United States ...
'' and ''
Vance v. Terrazas ''Vance v. Terrazas'', 444 U.S. 252 (1980), was a United States Supreme Court decision that established that a United States citizen cannot have his or her citizenship taken away unless he or she has acted with an intent to give up that citizens ...
.''
U.S. Department of State The United States Department of State (DOS), or State Department, is an United States federal executive departments, executive department of the Federal government of the United States, U.S. federal government responsible for the country's fore ...
regulations hold that formal renunciations are valid only if made before a U.S. consular or diplomatic officer outside the United States.


See also

*
John Walker Lindh John Philip Walker Lindh (born February 9, 1981) is an American convicted felon who was captured as an enemy combatant during the United States' invasion of Afghanistan in November 2001. He was detained at Qala-i-Jangi fortress, used as a priso ...
* José Padilla


References


External links


Kuwaiti Family Committee
is a site with details about the Kuwaiti detainees.

(Findlaw)
''Hamdi v. Rumsfeld''U.S. Supreme Court Brief Resource Center, U.S. Supreme Court ''Amici Curiæ'' Briefs
(Jenner and Block Law Firm)

Cornell Law School * ttp://www.jenner.com/files/tbl_s69NewsDocumentOrder/FileUpload500/379/03-6696_decision_hamdi.pdf US Supreme Court decision, Hamdi et al. v. Rumsfeld, Secretary of Defense, et al.(PDF) (Jenner and Block law firm)
Hamdi v. Rumsfeld
, Duke Law School

U.S. Department of State {{DEFAULTSORT:Hamdi, Yaser Esam 1980 births Living people American Islamists American people of Saudi Arabian descent American Taliban Guantanamo detainees known to have been released People deported from the United States People from Baton Rouge, Louisiana Former United States citizens