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

I. INTRODUCTION

In Hamdi v. Rumsfeld, (1) the United States Supreme Court held that a citizen detained by the Government as an enemy combatant is entitled under due process to a meaningful opportunity to contest the facts underlying his detention before a neutral decision-maker. (2) The Supreme Court examined whether the Executive possessed the power to indefinitely detain United States citizens captured abroad in the midst of the War on Terror and labeled "enemy combatants" without a hearing. (3) In finding that such a citizen-detainee was entitled to some form of impartial hearing pursuant to the Due Process Clause, the Court vacated and remanded the Fourth Circuit's decision allowing detention based on an extremely limited showing of evidence. (4)

This Note examines the four opinions in Hamdi and concludes that while the outcome of the case was correct, the plurality opinion authored by Justice O'Connor was inadequate, because the outlook for citizens detained in conjunction with the War on Terror in the future remains extremely murky and ambiguous. The Court failed to address several difficult issues raised by its holding. First, the Court declined to precisely define the term "enemy combatant." While the plurality opinion successfully established that the President was authorized to detain a citizen if it was sufficiently clear that he was in fact an enemy combatant, the opinion failed to precisely define the term. Second, the plurality opinion erroneously employed the Mathews balancing test to weigh the citizen's right to a due process hearing against the Government's interest in prosecuting a war unfettered by extraneous litigation. (5) This approach failed to recognize that a citizen's baseline right to a hearing may not be balanced away. Third, the Court declined to establish a clear set of procedures that must be followed prior to and during the hearing before the neutral decision-maker. Finally, it remains unclear whether a military tribunal will suffice for the required neutral decision-maker, a possibility that the plurality opinion mentioned but did not discuss. (6) Alternatively, the concept of a new federal terrorism court with built-in intelligence protections emerges as the better option for the role of the neutral decision-maker.

II. BACKGROUND

A. WARTIME DETENTION AND MILITARY TRIBUNALS PRIOR TO HAMDI--FROM THE CIVIL WAR TO WORLD WAR II

In the Civil War case Ex parte Milligan, a United States citizen was detained in a military prison and put on trial before a military tribunal on charges that he aided a Confederate military organization and conspired to obtain weapons and free Confederate prisoners. (7) Milligan was sentenced to death by the military tribunal for violating the laws of war. (8) He then filed a habeas corpus petition, alleging that the military tribunal was without jurisdiction to try him. (9) The Court, in establishing the open courts rule, held that Congress did not have the power to create military tribunals when state courts were open and available. (10) Thus, Milligan had been denied his right to a jury trial...