Judicial Review of Administrative Proceedings

Procedural Due Process

In 1855, the Court first attempted to assess its standards for judging what was due process. At issue was the constitutionality of summary proceedings under a distress warrant to levy on the lands of a government debtor. The Court first ascertained that Congress was not free to make any process "due process." "To what principles, then are we to resort to ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceedings existing in the common and statute law of England, before the emigration of our ancestors and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country." A survey of history disclosed that the law in England seemed always to have contained a summary method for recovering debts owned the Crown not unlike the law in question. Thus, "tested by the common and statute law of England prior to the emigration of our ancestors, and by the laws of many of the States at the time of the adoption of this amendment, the proceedings authorized by the act of 1820 cannot be denied to be due process of law…"411

This formal approach to the meaning of due process could obviously have limited both Congress and the state legislatures in the development of procedures unknown to English law. But when California's abandonment of indictment by grand jury was challenged, the Court refused to be limited by the fact that such proceeding was the English practice and that Coke had indicated that it was a proceeding required as "the law of the land." The meaning of the Court in Murray's Lessee s was "that a process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law." To hold that only historical, traditional procedures can constitute due process, the Court said, "would be to deny every quality of the law but its age, and to render it incapable of progress or improvement."412 Therefore, in observing the due process guarantee, it was concluded, the Court must look "not [to] particular forms of procedures, but [to] the very substance of individual rights to life, liberty, and property." The due process clause prescribed "the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions… It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law."413

411 Murray's Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272, 276-77, 280 (1856). A similar approach was followed in Fourteenth Amendment due process interpretation in Davidson v. City of New Orleans, 96 U.S. 97 (1878), and Munn v. Illinois, 94 U.S. 113 (1877).

412 Hurtado v. California, 110 U.S. 516, 528-29 (1884).

413 110 U.S. at 531-32, 535, 537. This flexible approach has been the one followed by the Court. E.g., Twining v. New Jersey, 211 U.S. 78 (1908); Powell v. Alabama, 287 U.S. 45 (1932); Palko v. Connecticut, 302 U.S. 319 (1937); Snyder v. Massachusetts, 291 U.S. 97 (1934).

Generally.—The phrase "due process of law" does not necessarily imply a proceeding in a court or a plenary suit and trial by jury in every case where personal or property rights are involved.414 "In all cases, that kind of procedure is due process of law which is suitable and proper to the nature of the case, and sanctioned by the established customs and usages of the courts."415 What is unfair in one situation may be fair in another.416 "The precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is challenged, the balance of hurt complained of and good accomplished—these are some of the considerations that must enter into the judicial judgment."417

414 Davidson v. City of New Orleans, 96 U.S. 97, 102 (1878); Public Clearing House v. Coyne, 194 U.S. 497, 508 (1904).

415 Ex parte Wall, 107 U.S. 265, 289 (1883).

416 Compare Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856), with Ng Fung Ho v. White, 259 U.S. 276 (1922).

Administrative Proceedings: A Fair Hearing.—With respect to action taken by administrative agencies, the Court has held that the demands of due process do not require a hearing at the initial stage, or at any particular point in the proceeding, so long as a hearing is held before the final order becomes effective.418 In Bowles v. Willingham,419 the Court sustained orders fixing maximum rents issued without a hearing at any stage, saying "where Congress has provided for judicial review after the regulations or orders have been made effective it has done all that due process under the war emergency requires." But where, after consideration of charges brought against an employer by a complaining union, the National Labor Relations Board undertook to void an agreement between an employer and another independent union, the latter was entitled to notice and an opportunity to participate in the proceedings.420 Although a taxpayer must be afforded a fair opportunity for hearing in connection with the collection of taxes,421 collection by distraint of personal property is lawful if the taxpayer is allowed a hearing thereafter.422

When the Constitution requires a hearing it requires a fair one, held before a tribunal which meets currently prevailing standards of impartiality.423 A party must be given an opportunity not only to present evidence, but also to know the claims of the opposing party and to meet them. Those who are brought into contest with the Government in a quasi-judicial proceeding aimed at control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon the proposal before the final command is issued.424 But a variance between the charges and findings will not invalidate administrative proceedings where the record shows that at no time during the hearing was there any misunderstanding as to the basis of the complaint.425 The mere admission of evidence which would be inadmissible in judicial proceedings does not vitiate the order of an administrative agency.426 A provision that such a body shall not be controlled by rules of evidence does not, however, justify orders without a foundation in evidence having rational probative force. Hearsay may be received in an administrative hearing and may constitute by itself substantial evidence in support of an agency determination, provided that there are present factors which assure the underlying reliability and probative value of the evidence and, at least in the case at hand, where the claimant before the agency had the opportunity to subpoena the witnesses and cross-examine them with regard to the evidence.427 While the Court has recognized that in some circumstances a "fair hearing" implies a right to oral argument,428 it has refused to lay down a general rule that would cover all cases.429

417 Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 163 (1951) (Justice Frankfurter concurring).

418 Opp Cotton Mills v. Administrator, 312 U.S. 126, 152, 153 (1941).

419 321 U.S. 503, 521 (1944).

420 Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938).

421 Central of Georgia Ry. v. Wright, 207 U.S. 127 (1907); Lipke v. Lederer, 259 U.S. 557 (1922).

422 Phillips v. Commissioner, 283 U.S. 589 (1931). Cf. Springer v. United States, 102 U.S. 586, 593 (1881); Passavant v. United States, 148 U.S. 214 (1893). The collection of taxes is, however, very nearly a wholly unique area. See Perez v. Ledesma, 401 U.S. 82, 127 n.17 (1971) (Justice Brennan concurring in part and dissenting in part). On the limitations on private prejudgment collection, see Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).

423 Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950). But see Arnett v. Kennedy, 416 U.S. 134, 170 n.5 (Justice Powell), 196-99 (Justice White) (1974) (hearing before probably-partial officer at pretermination stage).

424 Margan v. United States, 304 U.S. 1, 18-19 (1938). The Court has experienced some difficulty with application of this principle to administrative hearings and subsequent review in selective service cases. Compare Gonzales v. United States, 348 U.S. 407 (1955) (conscientious objector contesting his classification before appeals board must be furnished copy of recommendation submitted by Department of Justice; only by being appraised of the arguments and conclusions upon which recommendations were based would he be enabled to present his case effectively), with United States v. Nugent, 346 U.S. 1 (1953) (in auxiliary hearing which culminated in Justice Department's report and recommendation, it is sufficient that registrant be provided with resume of adverse evidence in FBI report because the "imperative needs of mobilization and national vigilance" mandate a minimum of "litigious interruption"), and Gonzales v. United States, 364 U.S. 59 (1960) (five-to-four decision finding no due process violation when petitioner (1) at departmental proceedings was not permitted to rebut statements attributed to him by his local board, because the statements were in his file and he had opportunity to rebut both before hearing officer and appeal board, nor (2) at trial was denied access to hearing officer's notes and report, because he failed to show any need and did have Department recommendations).

425 NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 349-50 (1938).

426 Western Chem. Co. v. United States, 271 U.S. 268 (1926). See also United States v. Abilene & So. Ry., 265 U.S. 274, 288 (1924).

427 Richardson v. Perales, 402 U.S. 389 (1971).

428 Londoner v. Denver, 210 U.S. 373 (1908).

429 FCC v. WJR, 337 U.S. 265, 274-77 (1949). See also Inland Empire Council v. Millis, 325 U.S. 697, 710 (1945). See Administrative Procedure Act, 60 Stat. 237 (1946), 5 U.S.C §§ 1001-1011. Cf. Link v. Wabash R.R., 370 U.S. 626, 637, 646 (1962), wherein the majority rejected Justice Black's dissenting thesis that the dismissal with prejudice of a damage suit without notice to the client and grounded upon the dilatory tactics of his attorney, and the latter's failure to appear at a pre-trial conference, amounted to a taking of property without due process of law.

In the light of the historically unquestioned power of a commanding officer summarily to exclude civilians from the area of his command, and applicable Navy regulations which confirm this authority, together with a stipulation in the contract between a restaurant concessionaire and the Naval Gun Factory forbidding employment on the premises of any person not meeting security requirements, due process was not denied by the summary exclusion on security grounds of the concessionaire's cook, without hearing or advice as to the basis for the exclusion. The Fifth Amendment does not require a trial-type hearing in every conceivable case of governmental impairment of private interest.430 Since the Civil Rights Commission acts solely as an investigative and fact-finding agency and makes no adjudications, the Court, in Hannah v. Larche,431 upheld supplementary rules of procedure adopted by the Commission, independently of statutory authorization, under which state electoral officials and others accused of discrimination and summoned to appear at its hearings, are not apprised of the identity of their accusers, and witnesses, including the former, are not accorded a right to confront and cross-examine witnesses or accusers testifying at such hearings. Such procedural rights, the Court maintained, have not been granted by grand juries, congressional committees, or administrative agencies conducting purely fact-finding investigations in no way determining private rights.

430 Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 900-01 (1961). Four dissenters, Justices Brennan, Black, Douglas, and Chief Justice Warren, emphasized the inconsistency between the Court's acknowledgment that the cook had a right not to have her entry badge taken away for arbitrary reasons, and its rejection of her right to be told in detail the reasons for such action. The case has subsequently been cited as involving an "extraordinary situation." Boddie v. Connecticut, 401 U.S. 371, 379 (1971); Goldberg v. Kelly, 397 U.S. 254, 264 n.10 (1970).

Manifesting a disposition to adjudicate on non-constitutional grounds dismissals of employees under the Federal Loyalty Program, the Court, in Peters v. Hobby, 349 U.S. 331 (1955), invalidated, as in excess of its delegated authority, a finding of reasonable doubt as to the loyalty of the petitioner by a Loyalty Review Board which, on its own initiative, reopened his case after he had twice been cleared by his Agency Loyalty Board, and arrived at its conclusion on the basis of adverse information not offered under oath and supplied by informants, not all of whom were known to the Review Board and none of whom was disclosed to petitioner for cross-examination by him. The Board was found not to possess any power to review on its own initiative. Concurring, Justices Douglas and Black condemned as irreconcilable with due process and fair play the use of faceless informers whom the petitioner is unable to confront and cross-examine.

In Cole v. Young, 351 U.S. 536 (1956), also decided on the basis of statutory interpretation, there is an intimation that grave due process issues would be raised by the application to federal employees, not occupying sensitive positions, of a measure which authorized, in the interest of national security, summary suspensions and unreviewable dismissals of allegedly disloyal employees by agency heads. In Service v. Dulles, 354 U.S. 363 (1957), and Vitarelli v. Seaton, 359 U.S. 535 (1959), the Court nullified dismissals for security reasons by invoking an established rule of administrative law to the effect that an administrator must comply with procedures outlined in applicable agency regulations, notwithstanding that such regulations conform to more rigorous substantive and procedural standards than are required by Congress or that the agency action is discretionary in nature. In both of the last cited decisions, dismissals of employees as security risks were set aside by reason of the failure of the employing agency to conform the dismissal to its established security regulations. See Accardi v. Shaughnessy, 347 U.S. 260 (1954).

Again avoiding constitutional issues, the Court, in Greene v. McElroy, 360 U.S. 474 (1959), invalidated the security clearance procedure required of defense contractors by the Defense Department as being unauthorized either by law or presidential order. However, the Court suggested that it would condemn, on grounds of denial of due process, any enactment or Executive Order which sanctioned a comparable department security clearance program, under which a defense contractor's employee could have his security clearance revoked without a hearing at which he had the right to confront and cross-examine witnesses. Justices Frankfurter, Harlan, and Whittaker concurred without passing on the validity of such procedure, if authorized. Justice Clark dissented. See also the dissenting opinions of Justices Douglas and Black in Beard v. Stahr, 370 U.S. 41, 43 (1962), and in Williams v. Zuckert, 371 U.S. 531, 533 (1963).

431 363 U.S. 420, 493, 499 (1960). Justices Douglas and Black dissented on the ground that when the Commission summons a person accused of violating a federal election law with a view to ascertaining whether the accusation may be sustained, it acts in lieu of a grand jury or a committing magistrate, and therefore should be obligated to afford witnesses the procedural protection herein denied. Congress subsequently amended the law to require that any person who is defamed, degraded, or incriminated by evidence or testimony presented to the Commission be afforded the opportunity to appear and be heard in executive session, with a reasonable number of additional witnesses requested by him, before the Commission can make public such evidence or testimony. Further, any such person, before the evidence or testimony is released, must be afforded an opportunity to appear publicly to state his side and to file verified statements with the Commission which it must release with any report or other document containing defaming, degrading, or incriminating evidence or testimony. Pub. L. No. 91-521, § 4, 84 Stat. 1357 (1970), 42 U.S.C. § 1975a(e). Cf. Jenkins v. McKeithen, 395 U.S. 411 (1969).

Aliens: Entry and Deportation.—The Court has frequently said that Congress exercises “sovereign” or “plenary” power over the substance of immigration law, and this power is at its greatest when it comes to exclusion of aliens.21 To aliens who have never been naturalized or acquired any domicile or residence in the United States, the decision of an executive or administrative officer, acting within powers expressly conferred by Congress, with regard to whether or not they shall be permitted to enter the country, is due process of law.432 Since the status of a resident alien returning from abroad is equivalent to that of an entering alien, his exclusion by the Attorney General without a hearing, on the basis of secret, undisclosed information, also is deemed consistent with due process.433 The complete authority of Congress in the matter of admission of aliens justifies delegation of power to executive officers to enforce the exclusion of aliens afflicted with contagious diseases by imposing upon the owner of the vessel bringing any such alien into the country a money penalty, collectible before and as a condition of the grant of clearance.434 If the person seeking admission claims American citizenship, the decision of the Secretary of Labor may be made final, but it must be made after a fair hearing, however summary, and must find adequate support in the evidence. A decision based upon a record from which relevant and probative evidence has been omitted is not a fair hearing.435 Where the statute made the decision of an immigration inspector final unless an appeal was taken to the Secretary of the Treasury, a person who failed to take such an appeal did not, by an allegation of citizenship, acquire a right to a judicial hearing on habeas corpus.436

21 See discussion under Art. I, § 8, cl. 4, "The Power of Congress to Exclude Aliens."

432 United States v. Ju Toy, 198 U.S. 253, 263 (1905). See also The Japanese Immigrant Case, 189 U.S. 86, 100 (1903). Cf. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950).

433 Shaughnessy v. United States ex rel. Mezel, 345 U.S. 206 (1953). The long continued detention on Ellis Island of a non-deportable alien does not change his status or give rise to any right of judicial review. In dissent, Justices Black and Douglas maintained that the protracted confinement on Ellis Island without a hearing could not be reconciled with due process. Also dissenting, Justices Frankfurter and Jackson contended that when indefinite commitment on Ellis Island becomes the means of enforcing exclusion, due process requires that a hearing precede such deprivation of liberty.

Cf. Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953), wherein the Court, after acknowledging that resident aliens held for deportation are entitled to procedural due process, ruled that as a matter of law the Attorney General must accord notice of the charges and a hearing to a resident alien seaman who is sought to be "expelled" upon his return from a voyage overseas. The Knauff case was distinguished on the ground that the seaman's status was not that of an entrant, but rather that of a resident alien. And see Leng May Ma v. Barber, 357 U.S. 185 (1958).

434 Oceanic Navig. Co. v. Stranahan, 214 U.S. 320 (1909).

435 Kwock Jan Fat v. White, 253 U.S. 454, 457 (1920). See also Chin Yow v. United States, 208 U.S. 8 (1908).

436 United States v. Sing Tuck, 194 U.S. 161 (1904). See also Quon Quon Poy v. Johnson, 273 U.S. 352, 358 (1927).

Procedural due process rights are more in evidence when it comes to deportation or other proceedings brought against aliens already within the country. Deportation proceedings are not criminal prosecutions within the meaning of the Bill of Rights.437 The authority to deport is drawn from the power of Congress to regulate the entrance of aliens and impose conditions upon their continued liberty to reside within the United States. Findings of fact reached by executive officers after a fair, though summary deportation hearing may be made conclusive.438 In Wong Yang Sung v. McGrath,439 however, the Court intimated that a hearing before a tribunal which did not meet the standards of impartiality embodied in the Administrative Procedure Act440 might not satisfy the requirements of due process of law. To avoid such constitutional doubts, the Court construed the law to disqualify immigration inspectors as presiding officers in deportation proceedings. Except in time of war, deportation without a fair hearing or on charges unsupported by any evidence is a denial of due process which may be corrected on habeas corpus.441 In contrast with the decision in United States v. Ju Toy442 that a person seeking entrance to the United States was not entitled to a judicial hearing on his claim of citizenship, a person arrested and held for deportation is entitled to a day in court if he denies that he is an alien.443 Because aliens within the United States are protected by due process, Congress must give "clear indication" of an intent to authorize indefinite detention of illegal aliens, and probably must also cite "special justification," as, e.g., for "suspected terrorists."444 In Demore v. Kim,22 however, the Court indicated that its holding in Zadvydas was quite limited. Upholding detention of permanent resident aliens without bond pending a determination of removability, the Court reaffirmed Congress’ broad powers over aliens. “[W]hen the Government deals with deportable aliens, the Due Process Clause does not require it to employ the least burdensome means to accomplish its goal.”23 A closely divided Court has ruled that in time of war the deportation of an enemy alien may be ordered summarily by executive action; due process of law does not require the courts to determine the sufficiency of any hearing which is gratuitously afforded to the alien.445

437 Harisiades v. Shaughnessy, 342 U.S. 580 (1952). But this fact does not mean that a person may be deported on the basis of judgment reached on the civil standard of proof, that is, by a preponderance of the evidence. Rather, the Court has held, a deportation order may only be entered if it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true. Woodby v. INS, 385 U.S. 276 (1966). Woodby, and similar rulings, were the result of statutory interpretation and were not constitutionally compelled. Vance v. Terrazas, 444 U.S. 252, 266-67 (1980).

438 Zakonaite v. Wolf, 226 U.S. 272 (1912). See Jay v. Boyd, 351 U.S. 345 (1956), wherein the Court emphasized that suspension of deportation is not a matter of right, but of grace, like probation or parole, and accordingly an alien is not entitled to a hearing which contemplates full disclosure of the considerations, specifically, information of a confidential nature pertaining to national security, which induced administrative officers to deny suspension. In four dissenting opinions, Chief Justice Warren, together with Justices Black, Frankfurter, and Douglas, found irreconcilable with a fair hearing and due process the delegation by the Attorney General of his discretion to an inferior officer and the vesting of the latter with power to deny a suspension on the basis of undisclosed evidence which may amount to no more than uncorroborated hearsay.

439 339 U.S. 33 (1950). See also Kimm v. Rosenberg, 363 U.S. 405, 408, 410, 415 (1960), wherein the Court ruled that when, at a hearing on his petition for suspension of a deportation order, an alien invoked the Fifth Amendment in response to questions as to Communist Party membership, and contended that the burden of proving such affiliation was on the Government, it was incumbent on the alien to supply the information inasmuch as the Government had no statutory discretion to suspend deportation of a Communist. Justices Douglas, Black, Brennan, and Chief Justice Warren dissented on the ground that exercise of the privilege is a neutral act, supporting neither innocence nor guilt and may not be utilized as evidence of dubious character. Justice Brennan also thought the Government was requiring the alien to prove non-membership when no one had intimated that he was a Communist.

440 5 U.S.C. §§ 551 et seq.

441 Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106 (1927). See also Mahler v. Eby, 264 U.S. 32, 41 (1924).

Although in Heikkila v. Barber, 345 U.S. 229 (1953), the Court held that a deportation order under the Immigration Act of 1917 might be challenged only by habeas corpus, in Shaughnessy v. Pedreiro, 349 U.S. 48 (1955), it established that, under the Immigration Act of 1952, 8 U.S.C. § 1101, the validity of a deportation order also may be contested in an action for declaratory judgment and injunctive relief. Also, a collateral challenge must be permitted to the use of a deportation proceeding as an element of a criminal offense where effective judicial review of the deportation order has been denied. United States v. Mendoza-Lopez, 481 U.S. 828 (1987).

442 198 U.S. 253 (1905).

443 Ng Fung Ho v. White, 259 U.S. 276, 281 (1922).

444 Zadvydas v. Davis, 533 U.S. 678, 691 (2001) (construing a statute so as to avoid a "serious constitutional threat" (id. at 699), and recognizing a "presumptively reasonable" detention period of six months for removable aliens).

22 538 U.S. 510 (2003). The goal of detention in Zadvydas had been found to be “no longer practically attainable,” and detention therefore “no longer [bore] a reasonable relation to the purpose for which the individual was committed.” 538 U.S. at 527.

23 538 U.S. at 528. There was disagreement among the Justices as to whether existing procedures afforded the alien an opportunity for individualized determination of danger to society and risk of flight.

445 Ludecke v. Watkins, 335 U.S. 160 (1948). Three of the four dissenting Justices, Douglas, Murphy, and Rutledge, argued that even an enemy alien could not be deported without a fair hearing.

Judicial Review of Administrative Proceedings.—To the extent that constitutional rights are involved, due process of law imports a judicial review of the action of administrative or executive officers. This proposition is undisputed so far as questions of law are concerned, but the extent to which the courts should and will go in reviewing determinations of fact has been a highly controversial issue. In St. Joseph Stock Yards Co. v. United States,446 the Court held that upon review of an order of the Secretary of Agriculture establishing maximum rates for services rendered by a stockyard company, due process required that the court exercise its independent judgment upon the facts to determine whether the rates were confiscatory.447 Subsequent cases sustaining rate orders of the Federal Power Commission have not dealt explicitly with this point.448 The Court has said simply that a person assailing such an order "carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences."449

446 298 U.S. 38 (1936).

447 298 U.S. at 51-54. Justices Brandeis, Stone, and Cardozo, while concurring in the result, took exception to this proposition.

448 FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942); FPC v. Hope Gas Co., 320 U.S. 591 (1944).

449 FPC v. Hope Gas Co., 320 U.S. 591, 602 (1944).

There has been a division of opinion in the Supreme Court with regard to what extent, if at all, proceedings before military tribunals should be reviewed by the courts for the purpose of determining compliance with the due process clause. In In re Yamashita,450 the majority denied a petition for certiorari and petitions for writs of habeas corpus to review the conviction of a Japanese war criminal by a military commission sitting in the Philippine Islands. It held that since the military commission, in admitting evidence to which objection was made, had not violated any act of Congress, a treaty, or a military command defining its authority, its ruling on evidence and on the mode of conducting the proceedings were not reviewable by the courts. Again, in Johnson v. Eisentrager,451 the Court overruled a lower court decision, which in reliance upon the dissenting opinion in the Yamashita case, had held that the due process clause required that the legality of the conviction of enemy alien belligerents by military tribunals should be tested by the writ of habeas corpus.

Failure of the Executive Branch to provide for any type of proceeding for prisoners alleged to be “enemy combatants,” whether in a military tribunal or a federal court, was at issue in Hamdi v. Rumsfeld.24 During a military action in Afghanistan,25 a United States citizen, Yaser Hamdi, was taken prisoner. The Executive Branch argued that it had authority to detain Hamdi as an “enemy combatant,” and to deny him meaningful access to the federal courts. The Court agreed that the President was authorized to detain a United States citizen seized in Afghanistan.26 However, the Court ruled that the Government may not detain the petitioner indefinitely for purposes of interrogation, but must give him the opportunity to offer evidence that he is not an enemy combatant. At a minimum, the petitioner must be given notice of the asserted factual basis for holding him, must be given a fair chance to rebut that evidence before a neutral decision maker, and must be allowed to consult an attorney.27

Without dissent, the Court, in Hiatt v. Brown,452 reversed the judgment of a lower court which had discharged a prisoner serving a sentence imposed by a court-martial because of errors whereby the prisoner had been deprived of due process of law. The Court held that the court below had erred in extending its review, for the purpose of determining compliance with the due process clause, to such matters as the propositions of law set forth in the staff judge advocate's report, the sufficiency of the evidence to sustain conviction, the adequacy of the pre-trial investigation, and the competence of the law member and defense counsel. In summary, Justice Clark wrote: "In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision."453 Similarly, in Burns v. Wilson,454 the Court denied a petition for the writ to review a conviction by a military tribunal on the Island of Guam wherein the petitioners asserted that their imprisonment resulted from proceedings violative of their basic constitutional rights. Four Justices, with whom Justice Minton concurred, maintained that judicial review is limited to determining whether the military tribunal, or court-martial, had given fair consideration to each of petitioners' allegations, and does not embrace an opportunity "to prove de novo" what petitioners had "failed to prove in the military courts." According to Justice Minton, however, if the military court had jurisdiction, its action is not reviewable.

450 327 U.S. 1 (1946).

451 339 U.S. 763 (1950). Justices Douglas, Black, and Burton dissented.

24 542 U.S. 507 (2004).

25 In response to the September 11, 2001, terrorist attacks on New York City’s World Trade Center and the Pentagon in Washington, D.C., Congress passed the “Authorization for Use of Military Force, Pub. L. 107–40, 115 Stat. 224 (2001), which served as the basis for military action against the Taliban government of Afghanistan and the al Qaeda forces that were harbored there.

26 There was no opinion of the Court in Hamdi. Rather, a plurality opinion, authored by Justice O’Connor (joined by Chief Justice Rehnquist, Justice Kennedy and Justice Breyer) relied on the statutory “Authorization for Use of Military Force” to support the detention. Justice Thomas also found that the Executive Branch had the power to detain the petitioner, but he based his conclusion on Article II of the Constitution.

27 542 U.S. 533, 539 (2004). Although only a plurality of the Court voted for both continued detention of the petitioner and for providing these due process rights, four other Justices would have extended due process at least this far. Justice Souter, joined by Justice Ginsberg, while rejecting the argument that Congress had authorized such detention, agreed with the plurality as to the requirement of providing minimal due process. Id. at 553 (concurring in part, dissenting in part, and concurring in judgement). Justice Scalia, joined by Justice Stevens, denied that such congressional authorization was possible without a suspension of the writ of habeas corpus, and thus would have required a criminal prosecution of the petitioner. Id. at 554 (dissenting).

452 339 U.S. 103 (1950).

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