Yet, Congress has in fact authorized Hamdi's detention, through the post-September 11 Authorization for Use of Military Force. With his father, Hamdi fought for due process, which in effect "affirms the right of trial according to the process and proceedings of the common law." Although designated an enemy combatant, the Court found that "the privilege of citizenship entitles Hamdi to a limited judicial inquiry into his detention" to challenge such a classification and rebut the Government's accusation. The Court ordered Hamdi's release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus.

An interesting note to this case was Justice Scalia and Justice Stevens' alliance in forming a dissenting opinion. Justice Scalia and Justice Stevens, who have rarely seem to concur on many of the well know cases, agreed that Hamdi's petition, to have full judicial relief, should have been granted.

Here are some interesting excerpts from Justice Scalia's dissenting opinion:
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…

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…

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... 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… 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

Rasul v. Bush
Al Odah v. United States
6 to 3
The petitioners in these cases, 2 Australians and 12 Kuwaitis captured abroad during the hostilities, are being held in military custody at the Guantanamo Bay, Cuba, Naval Base. Since early 2002, the U.S. military has held them, along with approximately 640 other non-Americans captured abroad. The petitioners filed suits under federal law challenging the legality of their detention. They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. These two cases question whether United States courts have jurisdiction to consider the legality of the detention of foreign nationals captured abroad and held at Guantanamo Bay.

The Court of Appeals' earlier decision that aliens detained outside United States sovereign territory may not invoke habeas relief was dramatically reversed by the Supreme Court. Non-U.S. citizens held at the base are entitled to invoke the federal courts' §2241 authority and the District Court must hear the petitioners' claims for judicial relief.

Rumsfeld, Secretary of Defense v. Padilla
5 to 4
This case didn't travel far in the Supreme Court, shot down by technicalities before the real issue could even be discussed. The President issued an order to Secretary of Defense Rumsfeld designating Padilla an "enemy combatant" and directing that he be detained in military custody.

A Court of Appeals' earlier decision reversed this order, stating that the President did not have the authority to detain Padilla militarily, that neither the President's Commander-in-Chief power nor the AUMF authorizes military detentions of American citizens captured on American soil. In view of that, the court granted the writ of habeas corpus and directed the Secretary to release Padilla from military custody within 30 days. The Bush administration immediately filed an appeal with the U.S. Supreme Court.

The Supreme Court addressed two questions: (1) did Padilla properly file his habeas petition in the Southern District of New York; and (2) did the President possess authority to detain Padilla militarily. The Court held that the habeas petition was not filed correctly, due to jurisdiction and respondent faults, so did not decide on the second question.

Padilla's lawyers have recently re-filed a complaint with the U.S. District Court in Charleston, South Carolina. The case is expected to make it way back to the Supreme Court at some future date.

* 18 U. S. C. §4001(a). Section 4001(a) states that "no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."

If this clause sounds familiar, that's because it's part of the bill Congress passed in 1971 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. The Emergency Detention Act of 1950 was issued to justify the internment of Japanese civilians in World War II. And so we see that we are reliving our past by these monumental court cases, if only by the persistent defending of the repeal.