if set free. Congress had, therefore, clearly authorized detention by the Force Resolution. Id. at 518-519.
However, she continued, indefinite detention for purposes of interrogation was certainly not authorized and it raised the question of what process is constitutionally due to a citizen who disputes the enemy combatant status assigned him. Hamdi, 542 U.S. at 521, 524.
Justice O'Connor concluded that such a citizen must be given Fifth Amendment rights to contest his classification, including notice and the opportunity to be heard by a neutral decision maker. Hamdi, 542 U.S. at 533 (citing Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). Accordingly, her holding was that the Bill of Rights of the United States Constitution must be applied despite authority granted by the AUMF.
She stated that:
- It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.
- Any process in which the Executive's factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short. Hamdi, 542 U.S. at 532, 537.
Under Hamdi, accordingly, the Constitution of the United States must be followed.
The AUMF resolution, if indeed it is construed as replacing FISA, gives no support to Defendants here. Even if that Resolution superceded all other statutory law, Defendants have violated the Constitutional rights of their citizens including the First Amendment, Fourth Amendment, and the Separation of Powers doctrine. [*40]
