Patrick OConnor Week 8 Reflection Response Question 6 The plurality apparently understands the detention of Hamdi as fitting within

the first category of executive action. That is, the plurality accepts the Government's contention that the Authorization of Military Force of September 18, 2001 authorizes the detention. Justice Souter's opinion rejects this contention, finding Hamdi's detention to be incompatible with the express or implied intention of Congress. Specifically, Souter argues that the AUMF does not satisfy 18 U.S.C. 4001's statutory authorization requirement. The principle point of disagreement between the two opinions seems to be the degree of specificity required by 4001. The plurality contends that the detainment of enemy combatants is an essential and necessary element of warfare and that, by authorizing the use of military force, Congress implicitly authorized the executive to detain enemy combatants. It rests on the apparent indisputability of this contention. Justice Souters opinion, conversely, contends that 4001 must be read to require an explicit and specific authorization for the detainment of citizens. Justice Souter supports this argument by comparing the instant exercise of executive power to the internment of citizens of Japanese ancestry during World War II, an exercise of executive power that 4001 purportedly sought to prevent. In the latter instance, the executive justified the internment policy as an action pursuant to Congresss authorization to exclude individuals from defined areas and to accommodate those it might remove. It follows that Congress, by enacting 18 U.S.C. 4001, sought to prevent the executive from detaining citizens under implied grants of authority. Additionally, Justice Souter argues that, to the extent that a statutory grant of authority must be interpreted, it must assumed that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used. Finally, Justice Souter notes that, because Congress had authorized other means by which to address the sort of threat posed by Hamdi (the well-stocked statutory arsenal of defined criminal offenses that such an individual might commit) and later limited the executives authority to detain non-citizens in the War on Terror (the Patriot Act), the AUMF simply cannot be read to authorize the Governments detainment of Hamdi. I find Justice Souters arguments convincing. Congress singled out detainment as a special type of restriction on an individuals liberty that cannot be authorized as a matter of executive discretion. That is, it held that it is for Congress, and not the executive, to decide whether the detainment of a citizen is necessary.

Given the fact that Hamdi was captured while apparently aiding the enemy, I believe the government acted within the first category of executive action during the initial period after his capture. The government would certainly be justified in holding Hamdi while it determined whether he was an American citizen and, perhaps, for the purposes of gaining intelligence that would be valuable to the war effort. However, after that period, the governments discretionary authority was most certainly curtailed by 18 U.S.C. 4001.