Separation of Powers

Hamdi v. Rumsfeld (2004)

  • May 17 2018

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Whether the president can indefinitely detain a United States citizen captured overseas as an enemy combatant and hold him without access to judicial due process.


In 1980, Yaser Esam Hamdi was born to Saudi Arabian citizens who were visiting the United States on a temporary work visa. Although born in Louisiana, as an infant, Hamdi went with his family to Saudi Arabia, where he was granted Saudi citizenship. Hamdi next returned to the United States twenty years later as a detained enemy combatant.

Hamdi’s father claimed that two months before the terrorist attacks on September 11, 2001, the younger Hamdi went to Afghanistan to do relief work. Family admitted that he spent at least a few weeks at a Taliban training camp, however. After the terrorist attacks, the Afgan Northern Alliance captured Hamdi during a battle near Konduz, Afghanistan, and turned him over to the United States military. According to the Northern Alliance, upon his capture they found him with Taliban combat forces and in possession of an AK-47 rifle. The U.S. military imprisoned him at Guantanamo Bay, Cuba, and eventually transferred him to a military brig in Norfolk, Virginia, after learning he was born in the United States.

Once Hamdi was in Virginia, his father challenged his enemy combatant status in the federal judiciary. In 2002 he filed a writ of habeas corpus, claiming his son was being held indefinitely without formal charges, without access to an attorney, and in violation of his rights to due process under the Fifth and Fourteenth amendments.

Courts Below

On June 11, 2002, the U.S. District Court of the Eastern District of Virginia reviewed the habeas corpus petition, recognized Hamdi’s father as legally able to represent Hamdi, and ordered Hamdi to have unmonitored access to a federal public defender.

The Fourth Circuit reversed this order and remanded the case back to the district court, stating that the courts must defer to the executive branch on cases involving national security. The Fourth Circuit ruled that the courts may not make decisions about an American designated as an enemy combatant without respecting the executive’s national security decisions. See the opinion here:

Hamdi v. Rumsfeld, 296 F.3d 278 4th Cir. 2002

Upon the case’s return to the district court, Michael Mobbs, special advisor to the under-secretary of defense for policy, submitted a declaration in which he detailed Hamdi’s history as an active enemy combatant who engaged in battle with the Taliban against Northern Alliance forces. He argued that these actions justified Hamdi’s detention. The district court found that the Mobbs Declaration provided insufficient evidence to detain Hamdi indefinitely and ordered the respondents to submit additional materials to the court. See the opinion here:

Hamdi v. Rumsfeld, 243 F. Supp.2d 527 E.D. Va. 2002

In 2003 the Fourth Circuit again reversed the district court’s ruling and dismissed the district court’s request for additional evidence from the government about Hamdi’s status as an enemy combatant. The circuit court held that under the Authorization for Use of Military Force AUMF the President is granted the necessary authority “to use all necessary and appropriate force against” individuals or groups suspected of aiding the terrorist attack on September 11, 2001. See the opinion here:

Hamdi v. Rumsfeld, 316 F.3d 450 4th Cir. 2003

On July 9, 2003, the Fourth Circuit denied a rehearing before all the judges of the circuit court finding yet again that under the laws and customs of war, Hamdi’s detention was legal. See the opinion here:

Hamdi v. Rumsfeld, 337 F. 3d 335 4th Cir. 2003

Hamdi appealed the Fourth Circuit’s decision to the Supreme Court in 2004. The Court ruled that the U.S. government can indeed detain enemy combatants, including American citizens, but as citizens they have the right to due process and may challenge their designation as enemy combatants. See the opinion here:

Hamdi v. Rumsfeld, 124 S.Ct. 2633 2004

Although the case was remanded for further proceedings, the government released Hamdi without charge and deported him to Saudi Arabia.

Questions before the Supreme Court

  1. “Does the Constitution permit Executive officials to detain an American citizen indefinitely in military custody in the United States, hold him essentially incommunicado and deny him access to counsel, with no opportunity to question the factual basis for his detention before any impartial tribunal, on the sole ground that he was seized abroad in a theater of the War on Terrorism and declared by the Executive to be an ‘enemy combatant’?
  2. Is the indefinite detention of an American citizen seized abroad but held in the United States solely on the assertion of Executive officials that he is an ‘enemy combatant’ permissible under applicable congressional statutes and treaty provisions?
  3. In a habeas corpus proceeding challenging the indefinite detention of an American citizen seized abroad, detained in the United States, and declared by Executive officials to be an ‘enemy combatant,’ does the separation of powers doctrine preclude a federal court from following ordinary statutory procedures and conducting an inquiry into the factual basis for the Executive branch’s asserted justification of the detention?”

CCJ Filed an amicus curiae brief in support of the U.S. government in the Supreme Court


The Citizenship Clause of the 14th Amendment is central to this case because in general, the United States Constitution affords constitutional rights protections only to citizens of the United States. The clause reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the united states and of the State wherein they reside.” Hamdi was born to foreign nationals who were temporarily visiting the United States, and so the question is whether the Citizenship Clause requires the government to treat such individuals as citizens with full rights protections.

Although Hamdi was born in the United States, the text of the Citizenship Clause requires both birth in the United States and jurisdictional allegiance to the United States in order to have citizenship rights. The Supreme Court’s reading in the case United States v. Won Kim Ark 1898 needs to be narrowed to conform to this original understanding of the Citizenship Clause. Also, the erroneous, overly broad reading is incompatible with the theory of government by consent as understood by the Founders and Framers of the Constitution.

Originally, citizenship was understood to require a person’s birth on U.S. soil and their complete consent to the jurisdiction of the United States i.e., not owing allegiance to another sovereign. Indeed, there are two separate clauses in the Citizenship Clause that reflect this understanding. The common misconception that merely being born on U.S. soil equates to a conferral of citizenship either ignores the second clause or considers it redundant. It is a well-established doctrine of legal interpretation that legal texts are not to be interpreted to create redundancy. Both the 1866 Civil Rights Act, from which the 14th Amendment’s Citizenship Clause was derived, as well as the debates on the 14th Amendment itself, reveal that “subject to the jurisdiction” meant complete, total, and singular subjection to the jurisdiction of the United States. Indeed, in the Slaughterhouse cases of 1872, the “subject to jurisdiction” clause excluded “citizens or subjects of foreign States born within the United States.” Hamdi’s parents were merely visiting the United States, they had no intention of staying, and they and their infant son owed their allegiance and were at least partially subject to the jurisdiction of Saudi Arabia, since they were neither permanent residents nor citizens of the United States.

The Supreme Court in Wong Kim Ark changed its earlier interpretation of citizenship, with Justice Horace Gray writing in his majority opinion, “[A] child born in the United States, of parents of Chinese descent, who at the time of his birth were subjects of the emperor of China, but have a permanent domicile and residence in the United States,” has citizenship based on their birth in the United States. This was incorrect.

Justice Gray failed to take into consideration the difference between complete political jurisdiction and partial territorial jurisdiction. In his dissent in Wong Kim Ark, Chief Justice Melville Fuller defined the difference between the two types of allegiance as “the one, natural and perpetual; the other, [is] local and temporary.” In other words, complete jurisdiction subjects the individual to pay taxes, owe allegiance to the sovereign power, and so on. Partial or territorial jurisdiction, on the other hand, would merely subject the individual to certain territorial laws, such as those regulating vehicle traffic or violent crime. The Citizenship Clause requires the individual’s allegiance to be complete in order to bestow upon that individual the benefits of citizenship. Justice Gray’s interpretation of the Citizenship Clause is inconsistent with America’s founding principles.

Further, American political theory rests on the understanding that governments are instituted among particular peoples to secure themselves certain unalienable rights. Such governments are grounded in the consent of the governed. This consent must be present, either explicitly or tacitly, and it must continue in the ongoing decision of whether to embrace others within the social compact of a particular people. Further, it must be reciprocal, with the rest of the people accepting the individuals into the community. Neither Hamdi nor his parents exhibited this consent to enter into the social or political compact. Indeed, mere birthright citizenship is consistent more with feudalism and an unwilling subjection to monarchical rule, not the principle of voluntary consent enshrined in the republican theory of the American founding.

Hamdi’s parents had no intention of becoming citizens of the United States. They were subject to territorial jurisdiction only, and only for the duration of their temporary stay. Also, conferring citizenship on Hamdi would be inconsistent with the American political theory of government by consent. Citizenship should not include those who are born to foreign nationals who are merely visiting the United States. The Court should correct the interpretation set in Wong Kim Ark and restore the Citizenship Clause of the Fourteenth Amendment to its original intent.

Final Outcome

The Supreme Court rejected CCJ’s argument, ruling instead that Hamdi was a United States citizen and thus had a right to due process of law in the American legal system. He was permitted to challenge his enemy combatant status and detention. After the Court’s ruling, however, the government released Hamdi without charge and deported him to Saudi Arabia.