of Hamdi v. Rumsfeld

We were discussing the case of Hamdi v. Rumsfeld in my "war crime and terror" class today. This was one of the few instances where I feel NYU (and american law schools in general) sets itself apart from lets say, NUS law school.

Hamdi was basically a case about an "enemy combatant" who was picked up in Afghanistan, accused of fighting for the Taliban, incarcerated at Gitmo, and then, upon realising that he was an American citizen, was transferred to a naval brig in USA. A writ of Habeas Corpus (an application asking the court to compel any detaining authority to bring the person before the court to answer accusations relating to his detention) was filed by his father as his friend (a legal concept, meaning someone who can bring the suit on behalf of him). I will save the talk on how it went procedurally, save that it eventually made its way into the Supreme Court. The judgment was a plurality judgment, meaning that there was no majority in terms of its legal reasoning, but that there was a majority in terms of its result. There were 4 separate judgments rendered, and the tutor divided us into 4 different groups to present and defend the judgments. It was rather coincidental that I was assigned to one of the dissents, which adopted a policy that is very similar to Singapore law post Chng Suan Tze and the amendments to the ISA (a story too long to be recounted here. If you don't already know it and wish to know, drop me a comment or something!).

So basically, Justice Thomas deferred to the Executive and said that it was a matter of institutional competence. As long as the Executive made a good faith determination, it was sufficient and that Due Process was met if the detention was made by law. Both Justice Thomas and the plurality agreed that the Authorisation of the Use of Military Force (AUMF) was an "act of Congress" that was sufficient to form an exception to the Non-Detention Act (NDA). The writ of Habeas Corpus was not suspended; rather, the writ does not demand the same standard of review. It is sufficient that the President acted within the confines of the law as authorised by the Congress in ordering the detention.

The plurality basically held the same thing, but differed on the standard of review. They adopted a balancing test, balancing the rights of the individual, the ends of the Executive action, and the likelihood of an error in detention.

Justice Souter in a concurring and dissenting opinion stated that Due Process requires that the Executive proved in fact that the detention was made on accurate factual grounds. He also averred that the AUMF was not sufficient to override the NDA as it did not explicitly authorise detention.

Justice Scalia, in a dissent, took a different approach, in that he held that Hamdi, as a US citizen, either be tried as a criminal in a regular criminal trial (possibly for treason), or that the writ of Habeas Corpus be suspended, because this is in effect depriving an American citizen of his liberty.

So why did i lay out all the opinions? It is for you guys to guess which 2 opinions are the most popular. Unsurprisingly, my US classmates either chose Justice Souter's or Justice Scalia's approach. The debate was very heated, with soundbites being thrown across the classrooms, and hypotheticals raised to poke holes in someone's assertion. Soundbites like "if Scalia doesn't want to make law, why does he still sit on the bench then?" challenged not just the judgment but the whole worldview of those 9 justices on the bench. It was one of the rare few classes, indeed of my entire law school life so far, where there was not a single moment of silence. Everybody had something to say. Even international students like myself could tell them things that they have never heard of before, like "subjective determination", and a state of Emergency and how it can lead to a suspension of life and liberty rights etc.

Interestingly, only 2 people agreed with the plurality opinion, and thats myself and another French student. Perhaps it comes without a surprise that nobody chose Justice Thomas' opinion. People were too wary of "subjective determination" after 8 years of murky and dark secrets within the previous administration, and frankly, it is understandable. Those who have read the John Yoo memo (defining what torture is) would know how far the previous administration would go to justify their actions. The uniquely Singapore context would also warn us that this approach is liable to be made used of in dealing with political opposition.

But that is besides the point. It was perhaps much more fascinating to witness the fierce debate that erupted today on points of law, policy, morality, and constitutional intent. It shows that the way to get US law students heated up is to engage them in a debate on constitutional law. I wonder what it would take for Singapore law students. Perhaps a threat to raise class participation to 70% of the final grade?