           Vacated by Supreme Court, June 28, 2004




                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


YASER ESAM HAMDI; ESAM FOUAD           
HAMDI, as next friend of Yaser
Esam Hamdi,
              Petitioners-Appellees,
                 v.
DONALD RUMSFELD; W. R. PAULETTE,
Commander,
           Respondents-Appellants.
RUTH WEDGWOOD, Professor of Law,
Yale University Law School, and
Edward B. Burling Professor of
International Law and Diplomacy,
Johns Hopkins University; SAMUEL
ESTREICHER, Professor of Law, New
York University School of Law;                      No. 02-7338
RONALD ROTUNDA, George Mason
University Foundation Professor of
Law, George Mason University
School of Law; DOUGLAS W. KMIEC,
Dean & St. Thomas More Professor
of Law, Catholic University; DAVID
B. RIVKIN, JR.; LEE A. CASEY; DARIN
R. BARTRAM;
          Amici Curiae in support of
                         Appellants.
CENTER FOR CONSTITUTIONAL RIGHTS;
RICHARD L. ABEL, Connell Professor
of Law, University of California at
Los Angeles; WILLIAM J. ACEVES,
                                       
2                       HAMDI v. RUMSFELD


Professor of Law, California           
Western School of Law; BRUCE A.
ACKERMAN, Sterling Professor of
Law & Political Science, Yale
University; LEE A. ALBERT,
Professor of Law, University at
Buffalo Law School, The State
University of New York; BARBARA
BADER ALDAVE, Loran L. Stewart
Professor of Corporate Law,
University of Oregon School of
Law; ALICIA ALVAREZ, Clinical
Associate Professor of Law, DePaul
University School of Law; DIANE
MARIE AMANN, Professor of Law,
University of California, Davis,
School of Law; MICHELLE J.
ANDERSON, Associate Professor of       
Law, Villanova University School
of Law; FRAN ANSLEY, Professor of
Law, University of Tennessee
College of Law; ELVIA R. ARRIOLA,
Associate Professor of Law,
Northern Illinois University College
of Law; FRANK ASKIN, Professor of
Law and Robert Knowlton Scholar,
Rutgers School of Law at Newark;
MILNER S. BALL, Caldwell Professor
of Constitutional Law, University of
Georgia School of Law; JON BAUER,
Clinical Professor of Law and
Director, Asylum & Human Rights
Clinic University of Connecticut
School of Law; PAUL SCHIFF
BERMAN, Associate Professor,
                                       
                         HAMDI v. RUMSFELD   3


University of Connecticut School of     
Law; CYNTHIA BOWMAN, Professor
of Law, Northwestern University
School of Law; MARK S. BRODIN,
Professor of Law, Boston College
Law School; BARTRAM S. BROWN,
Professor of Law, Chicago-Kent
College of Law, Illinois Institute of
Technology; SUE BRYANT, Director
of Clinical Education and Associate
Professor of Law, CUNY School of
Law; BURTON CAINE, Professor of
Law, Temple University School of
Law; EMILY CALHOUN, Professor of
Law, University of Colorado School
of Law; ANUPAM CHANDER, Acting
Professor of Law, University of
California, Davis, School of Law;       
ERWIN CHEMERINSKY, Sydney M.
Irmas Professor of Public Interest
Law, Legal Ethics and Political
Science, University of Southern
California Law School; PAUL G.
CHEVIGNY, Joel S. and Anne B.
Ehrenkranz Professor of Law, New
York University Law School; PAUL
CHILL, Clinical Professor of Law,
University of Connecticut School of
Law; GABRIEL J. CHIN, Rufus King
Professor of Law, University of
Cincinnati College of Law; CAROL
CHOMSKY, Associate Professor of
Law, University of Minnesota Law
School; MARGARET CHON, Associate
                                        
4                       HAMDI v. RUMSFELD


Professor of Law, Seattle University   
School of Law; MARJORIE COHN,
Associate Professor of Law,
Thomas Jefferson School of Law,
San Diego; ROBIN MORRIS COLLIN,
Professor of Law, University of
Oregon School of Law; DENNIS E.
CURTIS, Clinical Professor of Law,
Yale Law School; ERIN DALY,
Associate Professor of Law,
Widener University; MICHAEL H.
DAVIS, Professor of Law, Cleveland
State University; MICHAEL DEUTSCH,
Adjunct Professor of Law,
Northwestern University School of
Law; LAURA DICKINSON, Associate
Professor, University of Connecticut
School of Law; ROBERT DINERSTEIN,      
Associate Dean and Professor of
Law, American University,
Washington College of Law; JANE
DOLKART, Associate Professor of
Law, Dedman School of Law,
Southern Methodist University;
SHARON DOLOVICH, Acting Professor
of Law, University of California at
Los Angeles; DOUGLAS L. DONOHO,
Professor of Law, Nova
Southeastern University, Shepard
Broad Law Center; DOLORES
DONOVAN, Professor of Law,
University of San Francisco School
of Law; MARY L. DUDZIAK, Judge
Edward J. and Ruey L. Guirado
                                       
                          HAMDI v. RUMSFELD   5


Professor of Law and History,             
University of Southern California
Law School; Visiting Research
Scholar, Woodrow Wilson School
of Public and International Affairs,
Princeton University; PAMELA
EDWARDS, Assistant Professor of
Law, CUNY School of Law; NANCY
EHRENREICH, Associate Professor of
Law, University of Denver College
of Law; ROSA EHRENREICH BROOKS,
Associate Professor of Law,
University of Virginia School of
Law; J. SOFFIYAH ELIJAH, Clinical
Instructor, Criminal Justice Institute,
Harvard Law School; SUSAN J.
FEATHERS, Esq., Director, Public
Service Program, University of            
Pennsylvania Law School; MARVIN
FEIN, Associate Professor,
University of Pittsburgh School of
Law; TODD D. FERNOW, Professor of
Law, Director, Criminal Clinic,
University of Connecticut School of
Law; SALLY FRANK, Professor of
Law, Drake University School of
Law; KATHERINE FRANKE, Professor
of Law, Columbia University; ERIC
M. FREEDMAN, Professor of Law,
Hofstra University School of Law;
NIELS W. FRENZEN, Clinical
Assistant Professor of Law,
University of Southern California;
CRAIG B. FUTTERMAN, Assistant
Clinical Professor of Law,
                                          
6                      HAMDI v. RUMSFELD


University of Chicago Law School;     
KRISTIN BOOTH GLEN, Dean and
Professor of Law, CUNY School of
Law; BRIAN GLICK, Associate
Clinical Professor of Law, Fordham
Law School; HOWARD A.
GLICKSTEIN, Dean and Professor of
Law, Touro Law School; PHYLLIS
GOLDFARB, Professor of Law,
Boston College Law School; BOB
GOLTEN, Director, International
Human Rights Advocacy Center,
University of Denver; CARLOS E.
GONZALEZ, Associate Professor of
Law, Rutgers School of Law -
Newark; Visiting Associate
Professor of Law, Santa Clara
University School of Law; KENNETH     
W. GRAHAM, JR., Professor of Law,
University of California at Los
Angeles; ARIELA GROSS, Professor of
Law & History, The Law School,
University of Southern California;
LOUISE HALPER, Professor of Law,
Washington & Lee University
School of Law; JOEL F. HANDLER,
Richard C. Maxwell Professor of
Law and Professor of Policy
Studies, School of Public Policy
and Social Research, University of
California at Los Angeles; SIDNEY
L. HARRING, Professor of Law,
CUNY Law School; VIRGINIA
HENCH, Associate Professor of
                                      
                        HAMDI v. RUMSFELD   7


Criminal Law & Procedure & Civil       
Rights, University of Hawaii -
Manoa; KATHY HESSLER, Professor,
Case Western Reserve University
School of Law; JUDITH L. HOLMES,
Assistant Professor of Legal
Studies, University of Massachusetts
- Amherst; WYTHE W. HOLT, JR.,
University Research Professor of
Law, University of Alabama School
of Law; JOAN HOWARTH, Professor
of Law, University of Nevada, Las
Vegas; MARSHA HUIE, Professor of
Law, The University of Tulsa
College of Law; ERIC S. JANUS,         
Professor of Law, William Mitchell
College of Law; PAULA C. JOHNSON,
Associate Professor of Law,
Syracuse University College of
Law; JOSE R. JUAREZ, JR., Professor
of Law, St. Mary’s University
School of Law; DAVID KAIRYS,
James E. Beasley Professor of Law,
Beasley School of Law, Temple
University; YALE KAMISAR, Clarence
Darrow Distinguished University
Professor of Law, University of
Michigan; JERRY KANG, Professor of
Law, University of California at
                                       
8                      HAMDI v. RUMSFELD


Los Angeles; LEWIS R. KATZ, John      
C. Hutchins Professor of Law, Case
Western Reserve University Law
School; EILEEN KAUFMAN, Professor
of Law, Touro Law School;
MICHAEL J. KELLY, Assistant
Professor, Creighton University
School of Law; RANETA LAWSON
MACK, Professor of Law, Creighton
University School of Law; DAVID P.
LEONARD, Professor of Law and
William M. Rains Fellow, Loyola
Law School, Los Angeles; JOHN
LEUBSDORF, Professor of Law,
Rutgers Law School-Newark;
MARTIN L. LEVY, Professor,
Thurgood Marshall School of Law,      
Texas Southern University; JULES
LOBEL, Professor of Law, University
of Pittsburgh Law School; DAVID
LUBAN, Frederick Haas Professor of
Law and Philosophy, Georgetown
University Law Center; BETH LYON,
Assistant Professor of Law,
Villanova University School of
Law; HOLLY MAGUIGAN, Professor of
Clinical Law, New York University
School of Law; SAMUEL A.
MARCOSSON, Associate Professor,
Louis D. Brandeis School of Law,
University of Louisville; GARY M.
MAVEAL, Associate Professor
                                      
                        HAMDI v. RUMSFELD   9


of Law, University of Detroit Mercy    
School of Law; ROBERT F.
MEAGHER, Emeritus Professor,
Fletcher School of Law and
Diplomacy, Tufts University;
CARLIN MEYER, Professor of Law,
New York Law School; JONATHAN
M. MILLER, Professor of Law,
Southwestern University School of
Law; MARGARET E. MONTOYA,
Professor of Law, University of
New Mexico School of Law;
BEVERLY MORAN, Professor of Law,
Professor of Sociology, Vanderbilt
University School of Law; DAVID A.
MORAN, Assistant Professor of Law,
Wayne State University Law
School; MARY-BETH MOYLAN,              
Instructor of Law, University of the
Pacific, McGeorge School of Law;
MILLARD A. MURPHY, Esq., Clinical
Instructor, Prison Law Clinic,
University of California, Davis,
School of Law; KENNETH B. NUNN,
Professor of Law, Fredric G. Levin
College of Law, University of
Florida; JAMES P. OGILVY, Associate
Professor of Law, Columbus School
of Law, The Catholic University of
America; NANCY K. OTA, Professor
of Law, Albany Law School; MARC
R. POIRIER, Professor of Law, Seton
Hall Law School; JAMES POPE,
Professor of Law and
                                       
10                      HAMDI v. RUMSFELD


Sidney Reitman Scholar, Rutgers        
University School of Law; DEBORAH
W. POST, Professor of Law, Touro
Law School; WILLIAM QUIGLEY,
Professor of Law and Director of
the Loyola Law Clinic & the Gillis
Long Poverty Law Center, Loyola
Law School; MARGARET JANE RADIN,
Wm. Benjamin Scott and Luna M.
Scott Professor of Law, Stanford
Law School; MARTHA RAYNER,
Associate Clinical Professor of Law,
Fordham University School of Law;
JUDITH RESNICK, Arthur Liman
Professor of Law, Yale Law School;
PAULA R. RHODES, Associate
Professor of Law, Director, LLM in
American and Comparative Law           
Program, University of Denver
College of Law; HENRY J.
RICHARDSON, III, Peter J. Liacouras
Professor of Law, Temple Law
School; ANNELISE RILES, Professor
of Law and Professor of
Anthropology, Cornell University;
TONI ROBINSON, Professor of Law,
Quinnipiac School of Law;
FLORENCE WAGMAN ROISMAN,
Professor of Law and Paul Beam
Fellow, Indiana University School
of Law-Indianapolis; KERMIT
ROOSEVELT, Assistant Professor,
University of Pennsylvania Law
School; TANINA ROSTAIN,
                                       
                        HAMDI v. RUMSFELD   11


Associate Professor, New York Law      
School; JED RUBENFELD, Robert R.
Slaughter Professor of Law, Yale
University; DAVID RUDOVSKY, Senior
Fellow, University of Pennsylvania
Law School; LEILA NADYA SADAT,
Professor of Law, Washington
University in St. Louis; NATSU
TAYLOR SAITO, Professor of Law,
Georgia State University College of
Law; ROBERT F. SEIBEL, Professor of
Law, CUNY Law School; FRANKLIN
SIEGEL, City University of New
York School of Law; ROBERT A.
SEDLER, Distinguished Professor of
Law and Gibbs Chair in Civil
Rights and Civil Liberties, Wayne
State University; MARCI SEVILLE,       
Associate Professor of Law and
Director, Women’s Employment
Rights Clinic, Golden Gate
University School of Law; MARJORIE
SILVER, Professor, Touro Law
Center; EILEEN SILVERSTEIN,
Zephaniah Swift Professor of Law,
University of Connecticut; DAVID
SLOSS, Assistant Professor of Law,
Saint Louis University School of
Law; RONALD C. SLYE, Associate
Professor, Seattle University School
of Law; LLOYD B. SNYDER,
Professor of Law, Cleveland State
University; ANDREJ THOMAS STARKIS,
Assistant Professor of Law,
                                       
12                     HAMDI v. RUMSFELD


Massachusetts School of Law;          
NORMAN STEIN, Douglas Arant
Professor of Law, University of
Alabama School of Law; JOAN
STEINMAN, Distinguished Professor
of Law, Chicago-Kent College of
Law; ROBERT N. STRASSFELD,
Professor of Law, Case Western
Reserve University School of Law;
ROBERT L. TSAI, Assistant Professor
of Law, University of Oregon
School of Law; BETH VAN SCHAACK,
Assistant Professor, Santa Clara
University School of Law; DEBORAH
M. WEISSMAN, Associate Professor
of Law and Director of Clinical
Programs, University of North         
Carolina School of Law; CHARLES
E. WILSON, Associate Professor of
Law, The Ohio State University
College of Law; RICHARD J. WILSON,
Professor, Washington College of
Law, American University; ADAM
WINKLER, Acting Professor of Law,
University of California at Los
Angeles; STEPHEN WIZNER, William
O. Douglas Clinical Professor of
Law and Supervising Attorney, Yale
Law School; MARK E. WOJCIK,
Associate Professor of Law, The
John Marshall Law School,
Chicago; FRANK H. WU,
                                      
                        HAMDI v. RUMSFELD   13


Professor of Law, Howard               
University; CLIFF ZIMMERMAN,
Clinical Associate Professor of Law,
Northwestern University; NATIONAL
LAWYERS’ GUILD, Heidi Boghosian,
Executive Director; NATIONAL
IMMIGRATION PROJECT OF THE
NATIONAL LAWYERS GUILD, Dan
Kesselbrenner, Executive Director;
NATIONAL LAWYERS GUILD NEW
YORK CHAPTER, Dana Biberman,
President; HUMAN RIGHTS WATCH,
James Ross, Senior Legal Counsel;
SOUTHERN POVERTY LAW CENTER,
Rhonda Brownstein, Legal Director;
UNITARIAN UNIVERSALIST SERVICE
COMMITTEE, Denise Moorehead,           
Deputy Director of Program;
PUERTO RICO LEGAL DEFENSE AND
EDUCATION FUND, INCORPORATED,
Foster Maer, Acting Legal Director;
NATIONAL COALITION TO PROTECT
POLITICAL FREEDOM, Kit Gage,
President; FIRST AMENDMENT
FOUNDATION, Kit Gage, Director;
NATIONAL LAWYER’S GUILD/MAURICE
& JANE SUGAR LAW CENTER FOR
ECONOMIC & SOCIAL JUSTICE, Julie
Hurwitz, Executive Director; CIVIL
LIBERTIES MONITORING PROJECT, Jared
Rossman, President; ASSOCIATION OF
LEGAL AID ATTORNEYS, U.A.W.
                                       
14                     HAMDI v. RUMSFELD


LOCAL 2325, Michael Letwin, Esq.,     
President; PARTNERSHIP FOR CIVIL
JUSTICE, Mara Verheyden-Hilliard,
co-founder; TRIAL LAWYERS FOR
PUBLIC JUSTICE, Rebecca Epstein,
Staff Attorney; FREEDOM SOCIALIST
PARTY, Val Carlson; JEWISH
ALLIANCE FOR LAW AND SOCIAL
ACTION, Andrew M. Fischer; THE
INNOCENCE PROJECT AT THE BENJAMIN
N. CARDOZO SCHOOL OF LAW, Nina
Morrison, Esq., Executive Director;
ELLA BAKER CENTER FOR HUMAN
RIGHTS, Van Jones, National
Executive Director; AMERICAN          
FRIENDS SERVICE COMMITTEE, Mary
Ellen McNish, General Secretary;
REBER BOULT, Esq., Albuquerque,
New Mexico; HUNTER GRAY; JOHN
MAGE, Esq., New York, New York;
DOUGLAS N. MASTERS, Esq.,
Chicago, Illinois; LAURA BETH
NIELSEN, Research Fellow, American
Bar Foundation; LEONARD
WEINGLASS, Esq., New York, New
York; CAMILLE WHITWORTH, Esq.,
Austin, Texas; MITCHELL
ZIMMERMAN, Esq., Co-Coordinator,
Law Professors for the Rule
                                      
                         HAMDI v. RUMSFELD                         15


of Law; NATIONAL ASSOCIATION OF        
CRIMINAL DEFENSE LAWYERS;
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION; ACLU FOUNDATION OF         
VIRGINIA,
           Amici Curiae in support
                       of Appellees.
                                       
                         Filed: July 9, 2003



                              ORDER

   Appellees filed a petition for rehearing and suggestion for rehear-
ing en banc.

  The panel voted to deny panel rehearing.

   A member of the Court requested a poll on the petition for rehear-
ing en banc, and a majority of the judges in active service voted to
deny rehearing en banc. Judges Luttig, Motz, King, and Gregory
voted to grant rehearing en banc. Chief Judge Wilkins, and Judges
Widener, Wilkinson, Niemeyer, Williams, Michael, Traxler, and
Shedd voted to deny rehearing en banc.

   Judge Wilkinson filed an opinion, concurring in the denial of
rehearing en banc. Judge Traxler filed an opinion, concurring in the
denial of rehearing en banc. Judge Luttig filed an opinion, dissenting
from the denial of rehearing en banc. Judge Motz filed an opinion,
dissenting from the denial of rehearing en banc.

   The Court denies the petition for rehearing and suggestion for
rehearing en banc. The mandate shall issue forthwith.

  Entered at the direction of Judge Wilkinson for the Court.
16                         HAMDI v. RUMSFELD
WILKINSON, Circuit Judge, concurring in the denial of rehearing en
banc:

   I concur in the denial of the rehearing en banc. The panel opinion
written by Chief Judge Wilkins, Judge Traxler, and myself has
already properly resolved this case. See Hamdi v. Rumsfeld, 316 F.3d
450 (4th Cir. 2003). I thus offer only these few comments in response
to the dissent of my good colleague Judge Motz.

   Hamdi is being held according to the time-honored laws and cus-
toms of war. There is nothing illegal about that. The option to detain
those captured in a zone of armed combat for the duration of hostili-
ties belongs indisputably to the Commander in Chief. Art. II, Sec. II.
And the question is essentially whether the United States can capture
and detain prisoners of war without subjecting the factual circum-
stances surrounding foreign battlefield seizures to extensive in-court
review.1 The answer to this is now — and always has been — yes.
In giving prisoners of war the right to litigate their detentions in
American courts, the dissent would install a more restrictive regime
on the executive branch after September 11 than existed before. I
regret that my colleague does not even quote the provisions of Article
I and Article II which delegate the conduct of war to the coordinate
  1
   The government does not concede that Hamdi is a prisoner of war, but
rather asserts that he is an unlawful combatant. For the purposes of this
case, the distinction is irrelevant because the decision to detain until the
cessation of hostilities belongs to the executive in either case. See
Hamdi, 316 F.3d at 469.
   The panel earlier expressed doubt that the timing of a cessation of hos-
tilities was even justiciable. Hamdi v. Rumsfeld, 316 F.3d at 476 (quoting
Ludecke v. Watkins, 335 U.S. 160, 169 (1948) ("Whether and when it
would be open to this Court to find that a war though merely formally
kept alive had in fact ended, is a question too fraught with gravity even
to be adequately formulated when not compelled.")). It would be an
intrusive venture into international relations for an inferior federal court
to declare a cessation of hostilities and order a combatant’s release when
an American military presence remained in the theater of combat and
when the status of combatants, their terms of release, and the mutuality
of exchanges may all remain subjects for negotiation and diplomacy. See
Ludecke, 335 U.S. at 169; The Three Friends, 166 U.S. 1, 63 (1897); The
Prize Cases, 67 U.S. 635, 670 (1862).
                          HAMDI v. RUMSFELD                           17
branches of our government. For the course on which my dissenting
colleague is embarked will trespass, increment by increment, upon
those powers, to the detriment of the judiciary’s own obligation to
respect the proper limits and boundaries of its role.

    To claim, as my colleague does here, that there was no meaningful
judicial review of Hamdi’s detention is incorrect. There was extensive
review of every legal challenge to Hamdi’s detention. The dissent
wishes to proceed further and litigate precisely why petitioner was
seized and whether the military capture can be justified. The conduct
of war, however, involves innumerable discretionary decisions made
by our armed forces in the field every day. Many of them have life
or death consequences. To subject these discretionary decisions made
in the course of foreign combat operations to the prospect of domestic
litigation would be an unprecedented step. Doing so would ignore the
fundamentals of Article I and II — namely that they entrust to our
armed forces the capacity to make the necessary and traditional judg-
ments attendant to armed warfare, and that among these judgments is
the capture and detention of prisoners of war. See The Prize Cases,
67 U.S. 635, 670 (1862).

   Hamdi’s own filings make clear that he was seized in a zone of
active combat operations. Hamdi’s petition notes that "[w]hen seized
by the United States Government, Mr. Hamdi resided in Afghani-
stan." See Petition for Habeas Corpus, p. 2. In their traverse, petition-
ers state that the petition does not "implicate Respondents’ initial
detention of Petitioner Hamdi in Afghanistan." See Traverse and
Response to Respondent’s Motion to Dismiss, p. 2. And outside the
legal arena, petitioner Esam Fouad Hamdi, in a letter to Senator Pat-
rick J. Leahy, stated that they were "not challenging the battlefield
determination, decision to detain individuals in the theater of com-
bat." See Letter to Senator Patrick J. Leahy, August 5, 2002. Even the
district court, while ordering a more intrusive examination of the cir-
cumstances of Hamdi’s capture, noted that "[p]etitioners concede that
Hamdi’s initial detention in a foreign land during a period of ongoing
hostilities is not subject, for obvious reasons, to a due process chal-
lenge." See Order of August 16, 2002, p. 8.2 Our review of the peti-
tion was undertaken in light of this undisputed fact.
  2
   The above submissions were repeatedly reinforced by Hamdi’s coun-
sel in open court. See, e.g., "Hamdi[,] as far as I know, is the only
18                         HAMDI v. RUMSFELD
   With respect, the dissent’s demand for further factual inquiries
raises many more questions than it answers. The dissent notes
vaguely that it wants a non-hearsay basis for petitioner’s detention
and that the Mobbs Declaration must be probed for every incomplete-
ness or inconsistency. Post at 58. While the dissent appears to
acknowledge that the district court production order went too far, its
specific criticisms of the Mobbs Declaration suggest otherwise. This
desire to have courts wade further and further into the supervision of
armed warfare ignores the undertow of judicial process, the capacity
of litigation to draw us into the review of military judgments step by
step.

   The dissent declines to acknowledge the perils in its path, and we
are left to guess at how it would proceed. Opposing affidavits would
not likely satisfy the dissent, for they would leave the court to weigh

[American citizen] out of all the detainees that were gathered up on the
battlefield in Afghanistan." (Tr. of Oct. 28, 2000 oral argument at 37);
Hamdi’s counsel describing as "correct" the district judge’s statement
that "this man was in a fighting situation. . . . He was where the fight
was." (Tr. of Aug. 13, 2002 district court proceedings at 70-71). Indeed,
as Judge Traxler’s thoughtful opinion indicates, the record is replete with
admissions that Hamdi was captured in Afghanistan during hostilities,
references that are fully consistent with the panel opinion and that make
the locus of Hamdi’s seizure susceptible to little more than metaphysical
doubt. The fact that the panel may not have specifically quoted all such
references in its opinion in no way implies that it rejected their validity.
  The dissent makes the contention that Hamdi’s father as next friend is
incapable of making representations on Hamdi’s behalf. Post at 62. But
the cases my colleague cites in no way involved the constitutional princi-
ples implicated by a foreign battlefield capture. See White v. Joyce, 158
U.S. 128 (1895); Kingsbury v. Buckner, 134 U.S. 650 (1890); Stolte v.
Larkin, 110 F.2d 226, 233 (8th Cir. 1940). In seeking to deny effect to
the filings of the next friend in this case, the dissent’s approach would
abrogate yet once again the separation of powers by endowing those
deemed enemy combatants with rights comparable to those enjoyed by
ordinary civil or criminal litigants. And in decrying this reasoning as
"dizzyingly circular", see post at 62 n.1, the dissent again makes clear
that nothing less than a full judicial exploration of the circumstances of
petitioner’s capture will suffice.
                          HAMDI v. RUMSFELD                            19
one protestation against the other with little means of doing so. Ex
parte, in camera review would set disputes in motion over the scope
of redaction and create a whole new set of secrecy issues surrounding
Hamdi’s case. Ex parte, in camera submissions would likely please
no one — neither the government required to hand over potentially
sensitive materials, nor Hamdi who would be denied the chance to
contest an ex parte review of them, nor the public who would be left
in the dark about the real basis for resolving Hamdi’s case. My dis-
senting colleague also laments the absence of "first-hand knowledge
of Hamdi’s conduct or status in Afghanistan." See post at 65. The dis-
sent is plainly unwilling to trust the judgment of those actually fight-
ing the war that Hamdi was properly seized. What further steps
should the judiciary then be prepared to take? What kind of hearings?
What role for counsel? What kind of showings? What sort of wit-
nesses? The district court struggled with these questions to ill effect.
See Hamdi, 316 F.3d at 470-71; Hamdi v. Rumsfeld, 243 F. Supp. 2d
527 (E.D.Va. 2002).

    My colleague’s desire for more and more information signals not
the end of a constitutionally intrusive inquiry, but the beginning. To
start down this road of litigating what Hamdi was actually doing
among the enemy or to what extent he was aiding the enemy is to
bump right up against the war powers of Articles I and II. Judges are
ill equipped to serve as final and ultimate arbiters of the degree to
which litigation should be permitted to burden foreign military opera-
tions. The ingredients essential to military success — its planning,
tactics, and intelligence — are beyond our ken, and the courtroom is
a poor vantage point for the breadth of comprehension that is required
to conduct a military campaign on foreign soil.

   Because I think it both unreasonable and unfair to expect either
judges or attorneys to discard a lifetime of honed instinct, I suspect
that in time, if the course of the dissent is followed, the norms of the
criminal justice process would come to govern the review of battle-
field detentions in federal court. The prospect of such extended litiga-
tion would operate to inhibit our armed forces in taking the steps they
need to win a war. The specter of hindsight in the courtroom would
haunt decision-making in the field. At a minimum, if rules are to be
prescribed for litigating something as sensitive as the soundness of
battlefield detentions in Article III courts, then the prescription should
20                        HAMDI v. RUMSFELD
come from Congress or the Executive — the branches of government
charged by our Constitution with the conduct of foreign war. I cannot
conceive of the courts on their own motion — without the considered
input of the political branches — devising a set of procedures allow-
ing prisoners of war to hold American commanders accountable in
federal court. If any illustration of the difficulties and hazards of such
a judicial enterprise were needed, the history of Hamdi’s case should
more than suffice.

   My colleague also interprets a series of World War II-era Supreme
Court cases as invitations for the judiciary to involve itself in an
exacting review of decisions made on foreign battlefields. Post at 60-
61. My colleague’s overreading of these decisions misses their funda-
mental import: they are replete with warnings that the judiciary must
stay its hand when reviewing an exercise of the Commander-in-Chief
powers during wartime. Ex parte Quirin, for example, holds without
reservation that detentions "ordered by the President in the declared
exercise of his powers as Commander in Chief of the Army in time
of war and of grave public danger" should not "be set aside by the
courts without the clear conviction that they are in conflict with the
Constitution or laws of Congress constitutionally enacted." 317 U.S.
1, 25 (1942). Likewise, Johnson v. Eisentrager emphasized that
"[e]xecutive power over enemy aliens" — the enemy combatants at
issue in that case — "undelayed and unhampered by litigation, has
been deemed, throughout our history, essential to war-time security."
339 U.S. 763, 774 (1950); see also id. at 778-79 (detailing the crip-
pling complications that would arise from allowing searching judicial
review of the petitioners’ detention). And In re Yamashita noted that
the military tribunals challenged in that case were "not subject to judi-
cial review merely because they have made a wrong decision on dis-
puted facts." 327 U.S. 1, 8 (1946). "Such great war powers may be
abused, no doubt, but that is a bad reason for having judges supervise
their exercise, whatever the legal formulas within which such supervi-
sion would nominally be confined." Ludecke v. Watkins, 335 U.S.
160, 172 (1948). These cases are caution signals to the judiciary, not
green lights.

   I seriously doubt that any mistake was made in Hamdi’s case. But
the Supreme Court in Ex parte Quirin, Johnson v. Eisentrager, and
In re Yamashita was fully aware that war was a messy business, that
                           HAMDI v. RUMSFELD                            21
mistakes could be made, but that close judicial review was nonethe-
less costly and constitutionally proscribed. And the panel in this case
did not seek to move further than the precise case before it. See
Hamdi, 316 F.3d at 465. To compare this battlefield capture to the
domestic arrest in Padilla v. Bush is to compare apples and oranges.
Moreover, the recharacterizations of the holding in the dissent are
manifestly far afield. The panel did not suggest that its holding would
apply to any part of the world where American troops might happen
to be present. There is not the slightest resemblance of a foreign bat-
tlefield detention to the roundly and properly discredited mass arrest
and detention of Japanese-Americans in California in Korematsu.
These attempts to recharacterize the holding of the panel find no sup-
port in the opinion’s text itself.

   Finally, although both the panel opinion and the dissent have noted
the evidentiary shortcomings of the Mobbs Declaration, there is a
value to having the United States state under oath its reasons for the
detention of an American citizen, even one captured during the course
of armed combat.3 To go further, however, would be folly. It is pre-
cisely at the point of armed combat abroad that the government’s
detention interests in gathering vital intelligence, in preventing detain-
ees from rejoining the enemy and in stemming the diversion of mili-
tary resources abroad into litigation at home are at their zenith. It
diminishes these interests to inquire whether the judiciary deems them
"legitimate," "substantial," or "compelling," for they are grounded in
the wording of Articles I and II themselves. The federal judiciary
plays a vital role in securing our rights. But the other branches of gov-
  3
   My colleague Judge Luttig’s dissent attempts to straddle the issue by
taking sides with both parties. On the one hand, it asserts that "the panel
found itself simply unwilling to allow petitioner Hamdi to challenge the
facts supporting his designation by the Executive as an enemy comba-
tant." Post at 42. On the other hand, it argues that it is likely that "the
facts recited in Special Advisor Mobbs’ affidavit, as to which there is not
even hint of fabrication, are sufficient to satisfy the constitutionally
appropriate standard." Post at 57. In all events, the panel had before it
the straightforward situation where petitioners’ filings repeatedly corrob-
orated the government’s assertions that the locus of Hamdi’s capture was
a zone of active combat operations abroad. Unsurprisingly, the panel
addressed the case on the basis of what was before it.
22                         HAMDI v. RUMSFELD
ernment also play their part in securing the blessings of our liberty.
In this case, the paramount right is that of the citizens of our country
to have their democracy’s most vital, life-or-death decisions made by
those whom the Constitution charges with that task.

     In sum, this petition was properly dismissed.

TRAXLER, Circuit Judge, concurring in the denial of rehearing en
banc:

   In their dissents from the denial of rehearing, my colleagues have
appreciated the nature and magnitude of the competing interests at
stake here. However, because I believe that their opinions at times
have unfairly and inaccurately characterized the panel opinion, I
regrettably find myself drawn to offer a few comments in response.1

                                   I.

   Each of my dissenting colleagues argues that the panel erred in
premising its decision on the "admission" that Yaser Esam Hamdi
was captured within the boundaries of Afghanistan. Judge Luttig
questions whether any such admission was made, at least in the peti-
tion, and Judge Luttig and Judge Motz both believe that any such
admission should be ineffective because it was made by Hamdi’s
father, Esam Fouad Hamdi, acting as Yaser Esam Hamdi’s "next
friend," and not directly by Yaser Esam Hamdi.

                                   A.

   I begin with Judge Luttig’s charge that the panel opinion "is unper-
suasive, because of its exclusive reliance upon a mistaken character-
ization of the circumstances of Hamdi’s seizure as ‘undisputed’"
because they were not, in his view, "conceded in fact." As an initial
premise, I would point out that the panel decision does not character-
ize all the circumstances of Hamdi’s seizure as being undisputed.
Rather, it characterizes one circumstance of Hamdi’s seizure as undis-
  1
    Because Judge Wilkinson has already written eloquently, and primar-
ily, in response to Judge Motz’s dissent, I focus my comments chiefly on
matters raised by Judge Luttig.
                          HAMDI v. RUMSFELD                            23
puted — his presence in Afghanistan while active military operations
were being waged by the United States military against the governing
Taliban regime. Hamdi’s reason for being in Afghanistan at the time
he was seized and the question as to whether he was indeed actively
engaged as an enemy to our forces and this country are very much in
dispute. The government asserts that Hamdi was in Afghanistan bear-
ing arms as a Taliban soldier when he was seized; Hamdi’s father
asserts that Hamdi was only temporarily residing in Afghanistan
while engaged in relief work when he was apprehended. Thus, the
panel opinion’s observation is in reality limited to the simple fact that
"Hamdi was captured in a zone of active combat in a foreign theater
of conflict." Hamdi, 316 F.3d at 459.2

   As to this more narrow point of disagreement, Judge Luttig cor-
rectly observes that the habeas petition does not explicitly state that
"Hamdi was captured in a zone of active combat in a foreign theater
of conflict." Id. However, from this single pleading omission, Judge
Luttig inexplicably leaps to the conclusion that the remaining petition
allegations are ambiguous on the question (or, worse, that we should
ignore them) and, even more inexplicably, to the belief that when
responding to a dissent to a denial for rehearing en banc, the panel has
somehow forfeited a right to point to any other pleading or represen-
tation filed or otherwise made by the petitioner that supports the
observation, unremarkable when made, that Hamdi was indeed in
Afghanistan when captured.

  First, the petition’s failure to affirmatively state that Hamdi was
captured in a foreign combat zone did not and still does not compel
me to ignore the other allegations that are present, nor does it cause
me to consider that the place of Hamdi’s capture is a matter of dis-
pute. As Judge Wilkinson has pointed out, the petition alleges that
  2
   See also Hamdi, 316 F.3d at 460 (noting that the petitioner "ac-
knowledg[ed] that Hamdi was seized in Afghanistan during a time of
active military hostilities") (emphasis added); id. at 461 (noting that it
was "undisputed that Hamdi was captured in Afghanistan during a time
of armed hostilities there") (emphasis added); id. at 474 (noting that
"Hamdi’s petition places him squarely within the zone of active combat")
(emphasis added); id. at 476 (noting that "it is undisputed that [Hamdi]
was captured in a zone of active combat operations").
24                        HAMDI v. RUMSFELD
"[w]hen seized by the United States Government, Mr. Hamdi resided
in Afghanistan." J.A. 9.3 Were this the only allegation made, I sup-
pose I could speculate about whether Hamdi had traveled from his
"reside[nce] in Afghanistan" to another country "when [and where he
was] seized by the United States Government," but I need not do so.
Id. Significantly, the one statement quoted above is not the only alle-
gation made; the petition provides a great deal more information than
that. It avers that, following the terrorist attacks on September 11,
2001, "the United States initiated military action against the Taliban
Government in Afghanistan," and that, "in the course of the military
campaign, . . ., the United States provided military assistance to the
Northern Alliance." J.A. 10. As a result of this military assistance in
Afghanistan, the petition states that

      the United States obtained access to individuals held by var-
      ious factions of the Northern Alliance. On information and
      belief, Mr. Hamdi was captured or transferred into the cus-
      tody of the United States in the Fall of 2001.

J.A. 10. It goes on to allege that "[o]n or about January 11, 2002, the
United States military began transporting prisoners captured in
Afghanistan to Camp X-Ray at the United States Naval Base in Guan-
tanamo Bay, Cuba," and that on or about that same date, "the United
States military transferred Yaser Esam Hamdi to Camp X-Ray, Guan-
tanamo Bay." J.A. 11.

   When we authored the panel opinion, I did not consider these peti-
tion allegations to be ambiguous, nor do I today. A plain reading of
the submission to us made clear that Esam Fouad Hamdi, as next
friend to Yaser Esam Hamdi and as his father, based his claims in
large part on the fact that Yaser was seized in Afghanistan in the
course of the United States military operations within that country.
His contention was that the United States military should release
Yaser because he was not in Afghanistan to fight us or our allies and,
  3
    According to later representations made by his father, Hamdi left
"Saudi Arabia for Pakistan and then Afghanistan on July 15, 2001 to do
relief work in those countries," and became "trapped in Afghanistan once
the military campaign began." J.A. 153.
                          HAMDI v. RUMSFELD                            25
therefore, was not properly being held as an "enemy combatant" by
our military forces.

   There was not then and there is not now any reason to be troubled
by the lack of an explicit allegation in the petition that Hamdi was
seized in a zone of active combat in a foreign theater of conflict,
because any possible question about whether the petition was incom-
plete or uncertain in its intent to allege that Hamdi was actually one
of the prisoners captured and detained in Afghanistan would have
been eliminated by Hamdi’s Traverse and Response to the govern-
ment’s motion to dismiss, in which the petitioner engages in his own
characterization of the substance of the factual allegations and the
claims contained within the petition.

   There, the petitioner unequivocally represents that the "claim [does
not] implicate Respondents’ initial detention of Petitioner Hamdi in
Afghanistan," but "challenges only his current indefinite imprison-
ment in the United States Naval Brig in Norfolk, Virginia" and that,
because petitioner did not contest the initial detention of Hamdi in
Afghanistan, "Hamdi’s claims have no practical consequences for the
conduct of the military overseas." J.A. 64-65.4 I do not see how the
petitioner could be any clearer. He acknowledged that "[a]ccording to
both the Petition and the Mobbs Declaration, Petitioner Hamdi was
captured by the Northern Alliance and transferred into the custody of
the United States in the Fall of 2001 or late 2001," J.A. 67 (emphasis
added), represented that "[i]n January 2002, Respondents transported
Petitioner Hamdi from Afghanistan to Guantanamo Bay, Cuba," J.A.
  4
    We have also been challenged for our alleged "altered and para-
phrased rendition" of the petition’s allegation concerning the location of
Hamdi’s seizure. We did interpret the petition as alleging that "‘Hamdi
was captured or transferred into the custody of the United States in the
Fall of 2001’ in Afghanistan." Hamdi, 316 F.3d at 460 (emphasis added);
see J.A. 10. But, even if we assume that the petition was ambiguous on
this point, we did not "suppl[y] a geographical location of [Hamdi’s] sei-
zure and detention" nor "imput[e] a representation as to this location to
the next friend," as charged by Judge Luttig; the next friend supplied the
geographical location. Any ambiguity as to whether Hamdi was captured
or transferred to the United States military in Afghanistan was likewise
cleared up by the next friend’s own characterization of his claim.
26                         HAMDI v. RUMSFELD
69, and complained that Hamdi was being punished by his "isolat[ion]
from others similarly situated in Afghanistan and Guantanamo Bay,
Cuba." J.A. 71.5

   Additionally, as Judge Motz has observed in her dissent, we had
been presented in the Joint Appendix with a letter written by Hamdi’s
father to United States Senator Patrick Leahy (which petitioner had
submitted to the district court). In the letter, Hamdi’s father stated that
Yaser had "left our home in Saudi Arabia for Pakistan and then
Afghanistan on July 15, 2001 to do relief work in those countries,"
"was trapped in Afghanistan once the military campaign began," and
"was caught up in a local dragnet of non-Afghans in Mazar-e-Sharif
in Afghanistan in November 2001" along with John Walker Lindh.
J.A. 153. He was then "kept in [an] Afghanistan jail for 2-3 months
prior to being moved to Guantanamo Bay where he stayed for 2
months before they confirmed that he [was] an American citizen, then
they moved him to the Norfolk jail." J.A. 154. At no time was it ever
hypothesized that Hamdi might not have been in Afghanistan when
he was seized. Indeed, it was affirmatively represented that Hamdi
  5
    Consistent arguments were also made to this court. For example,
Hamdi argued that no deference was due the Respondents because, inter
alia, "Hamdi’s claims do not challenge the conduct of foreign policy,
military decision-making, or even the propriety of his initial detention in
Afghanistan," but instead challenge "the legality of his indefinite deten-
tion in a Norfolk naval brig without due process." Appellees’ Brief at 27.
Later, it was again represented that "Hamdi’s claims do not require
review of Respondents’ prosecution of the war effort. As noted earlier,
Hamdi’s claims do not seek judicial review of the Executive Branch’s
conduct overseas." Appellees’ Brief at 40. At yet another point, Hamdi
argued that the "Respondents [had] mischaracteriz[ed] Hamdi’s claims as
an effort to ‘second-guess[ ] the military determination’ of his enemy
combatant status," representing that "[o]n the contrary, the underlying
claims in this case are designed to test the legality of Hamdi’s imprison-
ment in a naval brig in Norfolk, Virginia, not a military determination
made overseas. . . ." Appellees’ Brief at 44. And, during oral argument,
Hamdi again clarified that he was not challenging the legality of his ini-
tial seizure and detention in Afghanistan as an enemy combatant, but
rather was only asserting that as one moves away from a foreign battle-
field to the United States where civil courts are open and functioning, the
deference due to the military’s battlefield decision decreases.
                          HAMDI v. RUMSFELD                          27
was "caught at the same time Mr. John Walker Lindh was caught" in
Afghanistan, but that he was "not [being] treated the same way," and
was not properly determined to be "an enemy combatant." J.A. 154.6

   In keeping with affirmative representations made to the court, at no
time did anyone on either side of this controversy aver or allege that
Hamdi was anywhere other than Afghanistan when he was captured
or detained by the Northern Alliance or when he was turned over to
the United States military. Judge Luttig has not pointed to a single
contrary allegation. Nor did Hamdi’s most capable counsel "gratu-
itously or foolishly concede that his seizure occurred in a foreign zone
of combat," as Judge Luttig might have us believe. The case has at
all times been litigated by counsel based on the consistent position of
Hamdi’s father that his son was in Afghanistan and was captured
there by our military, but that he was not there as an enemy comba-
tant. Even in his petition for rehearing and rehearing en banc, Esam
Hamdi did not assert that Yaser was somewhere other than in Afghan-
istan when seized; on the contrary, the petition affirmatively acknowl-
edges that Hamdi’s presence in Afghanistan is indeed an "undisputed"
fact. The petition seeks a remand in order to allow Yaser Hamdi the
opportunity to meet with counsel and contradict the government’s
assertion that he was in a zone of combat operations within the coun-
try of Afghanistan. Again, the petition seeks to litigate the factual
question of why Hamdi was in Afghanistan when he was seized and,
more precisely, whether he was actively engaged as an enemy to our
forces, not whether he was in Afghanistan during wartime.

   I cannot base a decision in so momentous a case on the theoretical
possibility that the general allegations in the petition — that the
United States obtained access to Hamdi and other prisoners in the
custody of the Northern Alliance in Afghanistan and transferred these
prisoners "captured in Afghanistan" to Guantanamo Bay — are wrong
and do not apply to Hamdi’s situation. Indeed, it would be ludicrous
for us to somehow presume that they were not intended to be
believed. Nor do I know of any precedent that would prompt us here
to ignore the factual representations made by the petitioner and coun-
  6
   See United States v. Lindh, 227 F.Supp.2d 565 (E.D. Va. 2002);
United States v. Lindh, 212 F.Supp.2d 541 (E.D. Va. 2002); United
States v. Lindh, 198 F.Supp.2d 739 (E.D. Va. 2002).
28                        HAMDI v. RUMSFELD
sel in support of the petition. Because the government moved to dis-
miss the petition, I have assumed the factual allegations of the petition
to be true and, for that matter, have accepted the petitioner’s in-court
representations regarding how they were intended to be interpreted.
I am unfamiliar with any principle that would require us to assume
that the factual allegations and in-court representations made by the
petitioner and the government are false, and none has been cited to
me. Indeed, it would seem inappropriate for us to impute such strange
intentions to Hamdi’s father and his counsel. Cf. S. Cross Overseas
Agencies v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 428 n.8
(3d Cir. 1999) (employing a "reasonable reading of the complaint" to
supply an allegation not expressly made by the plaintiffs).

   Petitioner’s position has remained quite constant throughout this
appeal — that, because Hamdi is an American citizen by birth, he was
entitled to meet with appointed counsel in order to contest the factual
basis underlying the military’s designation of him as an enemy com-
batant, as opposed to a peaceful resident, in Afghanistan — once he
was removed from the battlefield. We found this position untenable,
holding (for a great many reasons which I need not reiterate here) that
when an American citizen is captured in an enemy country where we
are engaged in active hostilities, we will require no more legal justifi-
cation than what the government voluntarily provided to us in this
case. I am still of the belief that this is the proper and legal course of
analysis. And I reject, with little hesitation, this bemusing attempt to
rewrite the case history and the substance of the habeas claim placed
before us.

                                   B.

   I likewise disagree with Judge Luttig’s belief, shared by Judge
Motz, that Hamdi’s capture in Afghanistan is not "susceptible to con-
cession in law because Hamdi has not been permitted to speak for
himself or even through counsel as to those circumstances." I am also
cited to no authority for the proposition that we should ignore or dis-
believe the petitioner’s allegations that Hamdi was taken into military
custody in Afghanistan during the combat operations being waged
there at the time (whether made expressly in the petition, by implica-
tion from its allegations, or by virtue of the petitioner’s representa-
                           HAMDI v. RUMSFELD                            29
tions as to the intended meaning of the allegations) merely because
the allegations were not personally written by Yaser Hamdi.

   Indeed, a next friend does have the power to admit facts on behalf
of the real party in interest, subject to the supervision of the court. See
Hall v. Hague, 34 F.R.D. 449, 450 (D. Md. 1964). Were it otherwise,
a next friend might be compelled to contest every fact which might
be relevant, thereby creating unnecessary trouble and expense for the
parties and the court. See id. at 449-50. Or, the mere filing of a next
friend petition challenging civil disabilities might compel the lifting
of such disabilities so that the real party in interest might participate
fully in the litigation. The latter possibility is particularly ominous in
a case such as this, as it would enable an alleged enemy combatant
to disrupt, with no showing whatsoever, safeguards that the Executive
has determined are necessary to protect vital national security interests.7
In sum, I do not believe the panel erred in construing the petition to
admit that Hamdi was captured in Afghanistan and in giving effect to
that admission.

                                    C.

   This brings me, regrettably, to Judge Luttig’s accusation that Judge
Wilkinson and I have "attempt[ed] to save the panel opinion by mar-
shaling for the first time today additional support, beyond that relied
upon by the panel, for the panel’s conclusion that it has been con-
ceded that Hamdi was seized in a foreign combat zone." In a series
of charges, Judge Luttig complains that Judge Wilkinson’s concur-
rence "makes reference not only to the next friend petition upon
which the panel solely relied, . . . but also to the new materials cited
by the government in its response to the petition for rehearing in sup-
  7
    The cases cited by Judge Motz do not compel a contrary conclusion.
See White v. Miller, 158 U.S. 128, 146 (1895); Kinsbury v. Buckner, 134
U.S. 650, 680 (1890); Stolte v. Larkin, 110 F.2d 226, 233 (8th Cir. 1940).
The cases do not translate to a holding that the court, as opposed to the
next friend, is charged with the duty to rewrite a claim brought by a next
friend on behalf of a military detainee so as to assure its survival. Here,
there is no reason to believe that rights are being bargained away or that
a factual mistake is being made. There is surely no doubt as to the nature
of the claim before us.
30                        HAMDI v. RUMSFELD
port of the court’s conclusion that the location of seizure has been
conceded, [including] Petitioner’s Traverse and Response to Respon-
dent’s Motion to Dismiss filed in the district court. . . .", charges that
this is but another example of "the trend in our court to attempt ‘to
add to, subtract from, or recharacterize the facts recited and relied
upon in a challenged panel opinion,’" and presumes that our reliance
upon petitioner’s representations made about his petition is but an
improper attempt to "shore up" our joint panel opinion because the
panel now "senses . . . analytical softness of its opinion."

   First, I can state without hesitation that I have no "sense" that our
decision is analytically soft at all. On the contrary, the dissent’s fail-
ure to point to a single allegation or statement in the record of this
case that creates a dispute as to where Hamdi was when he was seized
or detained by our allies or our own military forces should end the
discussion.

   Second, Judge Luttig appears to have forgotten his characterization
of our panel opinion as a "challenged panel opinion," albeit chal-
lenged in the form of the dissents written by Judge Luttig and Judge
Motz to the full court’s vote not to rehear the case en banc. Judge Lut-
tig’s criticism appears to be premised upon a belief that when panel
members write in response to a dissent to a denial of rehearing en
banc, it is improper for them to refer to anything in the original record
which was not specifically referenced in the panel decision, as this
would amount to "supply[ing] . . . important new facts or reasoning"
not susceptible to appellate review. Such "additional support," Judge
Luttig asserts, became "irrelevan[t] as a matter of law given that they
were not relied upon in the panel opinion."

   Obviously, any response by a panel, unanimous at the time the
decision was rendered, to a dissent from a denial of rehearing en banc
might be construed as an act of bolstering or "shor[ing] up" the pub-
lished opinion in some sense. Otherwise, there would be nothing to
say. Yet, I find no reason to remain silent when our opinion is being
misinterpreted. I am confident that neither Judge Wilkinson nor I
have informally "modif[ied]" the panel decision which we, along with
Judge Wilkins, so painstakingly authored together. It is not my
opinion-writing practice to recite every source of information con-
tained within a joint appendix, nor every source directly relied upon
                           HAMDI v. RUMSFELD                             31
in arguments. Indeed, there is rarely, if ever, a need to clutter an opin-
ion with record support for uncontroversial statements that the parties
have not contested in their pleadings, responses, briefs, or arguments.

   In any event, I see no need to modify the panel opinion because we
have pointed to no "important new facts or reasoning." We observed
in the panel opinion that the habeas petition before us for disposition
placed Hamdi in an enemy country when he was seized and detained
by our military forces as an enemy combatant. In response to Judge
Luttig’s charge that the language of the petition does not place Hamdi
in Afghanistan at the point of seizure, Judge Wilkinson and I have
only gone so far as to point out that any question as to whether we
have properly characterized the claims can be laid to rest by petition-
er’s own characterization of those allegations. Neither of us has
pointed to anything that has not at all times been a part of the record
and entirely consistent with the petition’s allegations outlined above.8
  8
    For this reason, I also think it misleading to characterize the Traverse
and Leahy letter as "new materials cited by the government in response
to the petition for rehearing in support of the court’s conclusion that the
location of seizure has been conceded." These materials have been in the
district court record and in the Joint Appendix since the inception of the
appeal, and have been referred to by the parties throughout this litigation.
There is nothing "new" about them.
   With specific regard to Esam Hamdi’s letter to Senator Leahy, we are
additionally confronted by Judge Motz’s view that it was improperly "ig-
nored" by us and Judge Luttig’s belief that it should have been ignored
because it is "obviously irrelevant" to the issue. We considered every-
thing submitted by the parties in the Joint Appendix and all of the argu-
ments when authoring our joint opinion. We did not ignore the Leahy
letter or find it to be "obviously irrelevant." The letter was presented to
the district court by Hamdi’s counsel, along with several other docu-
ments. The panel did not expressly cite to the letter to support the obser-
vation that Yaser Esam Hamdi was captured in a combat zone. But, like
the Traverse (and other representations made below and at oral argument
before this court), the Leahy letter was perfectly consistent with the unre-
markable observation which we drew from the allegations of the petition
before us and as they had been represented to us, i.e., that Hamdi was
indeed in Afghanistan when he was seized. It certainly did not raise any
ambiguity in the petition concerning Hamdi’s location when he was
seized.
32                        HAMDI v. RUMSFELD
                                   II.

   I turn next to Judge Luttig and Judge Motz’s shared belief that we
have placed undue significance on the fact that Hamdi was seized in
a foreign combat zone in evaluating the legal sufficiency of the
Mobbs Declaration and, by doing so, have somehow paved the way
for widespread deprivation of the individual constitutional rights of
our citizens.

   First, we have not pulled the significance of this simple fact from
thin air. It is grounded in the time-honored rule of law in wartime —
that all persons residing in an enemy country during hostilities are
deemed to be enemies, regardless of nationality. See Juragua Iron Co.
v. United States, 212 U.S. 297, 305-06 (1909). "[U]nder the recog-
nized rules governing the conduct of a war between two nations, . . .
all persons, whatever their nationality, who reside[ ] [in the enemy
country [are], pending such war, to be deemed enemies of the United
States and all of its people." Id.; see also Lamar v. Browne, 92 U.S.
187, 194 (1875); Young v. United States, 97 U.S. 39, 60 (1877). This
is not to say that all persons residing within the enemy country are in
fact enemies, or specifically that Hamdi was necessarily an enemy
combatant merely because he was in Afghanistan during a conflict
between the United States and the Afghan government. But, signifi-
cant consequences necessarily attached to Hamdi’s presence in
Afghanistan; his individual rights stood in tension with the Execu-
tive’s wartime powers under Article II. Consequently, the Judiciary
became compelled, by the nature of war and by dint of the separation
of powers we are required to safeguard and honor, to give deference
to the Executive to determine who within a hostile country is friend
and who is foe.9
  9
    In his petition for rehearing and rehearing en banc, petitioner argued
it could only be said to be undisputed that Hamdi was in a zone of active
combat operations if the entire country of Afghanistan is such a zone at
the time of capture. I have no problem with this view. The United States
is in a sanctioned military operation designed to oust from power the
governing regime of the country of Afghanistan. Just as we "are ill-
positioned to police the military’s distinction between those in the arena
of combat who should be detained and those who should not," Hamdi,
316 F.3d at 474, we are ill-positioned to question the military’s determi-
nation that any particular area of a country with whom we are at war is
or is not an "active combat zone."
                          HAMDI v. RUMSFELD                            33
   Second, Judge Motz and Judge Luttig’s collective fear that our rec-
ognition of this time-honored principle might result in innocent jour-
nalists or unwitting tourists falling victim to unreviewable military
detentions anywhere in the world can be easily laid to rest. Judge
Motz, for example, asserts that our decision would allow "any of the
‘embedded’ American journalists covering the war in Iraq or any
member of a humanitarian organization working in Afghanistan, [to]
be imprisoned indefinitely" by our military, that "any American citi-
zen seized in a part of the world where American troops are present
— e.g., the former Yugoslavia, the Philippines, or Korea — could be
imprisoned indefinitely, merely by asserting that the area is a zone of
active combat," and the even more extreme "fear that the panel may
also have opened the door to the indefinite detention, without access
to a lawyer or the courts, of any American citizen, even one captured
on American soil, who the Executive designates an ‘enemy comba-
tant,’ as long as the Executive asserts that the area in which the citizen
was detained was an ‘active combat zone,’ and the detainee, deprived
of access to courts and counsel, cannot dispute this fact." Judge Luttig
also points to "[t]he embedded journalist or even the unwitting tour-
ist" who "could be seized and detained in a foreign combat zone."
And, he too claims that such a likelihood would be "far from infinites-
imal where the theater is global, not circumscribed, and the engage-
ment is an unconventional war against terrorists, not a conventional
war against an identifiable nation state."

   Although effective in stirring emotion, our colleagues’ expressed
fears are grounded in conclusions not reached or even predicted by
the panel decision. Our decision does not speak to the issue of
whether an "enemy combatant" may challenge the government’s
claim that the former Yugoslavia, the Philippines, or Korea is a zone
of active military operations for purposes of the President’s exercise
of his Article II war powers. Rather, it addresses only the appropriate
level of deference to be observed when the President exercised his
power to detain an American citizen found within the boundaries of
Afghanistan during our military efforts to overthrow its governing
regime. Nor does it sanction indefinite detention, but rather contem-
plates detention for the duration of such hostilities.

  In short, my colleagues’ collective desire (albeit undertaken for
much different reasons) to redefine the case before us has caused
34                        HAMDI v. RUMSFELD
them to lose their focus on our holding. Afghanistan is an identifiable
nation state and Hamdi was in a conventional war situation. Every
resident within Afghanistan (including Hamdi as was explicitly
alleged) was in law an enemy, until determined by the Executive to
be a friend. As Judge Wilkinson aptly observed, war is a messy busi-
ness and mistakes can be made. American journalists and American
tourists who venture into a country with whom we are at war without
the approval of our military, or who fail to return to this country in
time of war, necessarily expose themselves to many risks, including
this one. But the circumstances of armed conflict against a foreign
government in a foreign land require the deference we have shown
the Executive in the making of military decisions.

                                  III.

   Despite their common criticism of our observation that Hamdi was
captured in Afghanistan — and our belief that Hamdi’s capture in
Afghanistan guides our inquiry as to whether the Mobbs Declaration
is sufficient to justify Hamdi’s detention as an enemy combatant —
our colleagues differ significantly in their opinions as to what kind of
review is appropriate.

   Judge Motz would hold that the Mobbs Declaration is insufficient
to justify Hamdi’s enemy combatant designation. And, although she
disagrees that Hamdi’s capture in Afghanistan is undisputed, in the
end it really matters not to Judge Motz whether Hamdi was seized in
Afghanistan. As Judge Wilkinson has noted, Judge Motz believes it
proper for the Judiciary to litigate precisely why Yaser Hamdi was
seized and whether the military capture can be justified regardless of
where the seizure occurred. In short, Judge Motz "would require a
greater showing from the Executive before [she] would permit an
American citizen, held in the United States, to be imprisoned indefi-
nitely, without ever being afforded the opportunity to appear in court,
contest the allegations against him, or consult with a lawyer." For the
reasons expressed by Judge Wilkinson, I, of course, disagree.

   Judge Luttig also contests our observation that Hamdi was present
in Afghanistan when he was captured, but only pays lip service to
Judge Motz’s belief that we would have to give Hamdi access to
counsel and a direct voice in an Article III court in order to determine
                           HAMDI v. RUMSFELD                            35
his place of seizure. Unlike Judge Motz, it appears that Judge Luttig
would in practice not give Hamdi a voice to either concede or dispute
the place of seizure. Rather, Judge Luttig "believe[s]" he would adopt
at most a "some evidence" standard as the appropriate level of defer-
ence due and "would likely conclude, as argued by the United States,
that the facts recited in [the Mobbs’ Declaration] are sufficient" to sat-
isfy it. In other words, it seems Judge Luttig would hold that the
Mobbs Declaration is sufficient to justify Hamdi’s enemy combatant
designation regardless of whether Hamdi admitted his presence in
Afghanistan or flatly disputed it.

   From this, I can only assume that Judge Luttig is really dissatisfied
not because we have refused to give Hamdi a voice to raise a dispute
as to his place of seizure, but because we evaluated the legal suffi-
ciency of the government’s response within the context of Hamdi’s
capture in Afghanistan. Thus, Judge Luttig charges, by "refus[ing] to
rest decision on the proffer made by the President of the United
States" and instead "rest[ing] decision on a putative concession by the
detainee," we have "all but eviscerate[d] the President’s Article II
power to determine who are and who are not enemies of the United
States during times of war." He accuses us of "disown[ing] [our]
promise to the Executive to accord him the substantial deference to
which he is constitutionally entitled for his wartime decisions as to
who constitute enemies of the United States," and predicts that our
rule "will henceforth . . . cast the Judiciary as ultimate arbiter, in each
and every instance, of whether the Executive has properly so classi-
fied a detainee." "[I]n every instance in which the [habeas] petitioner
refrains from affirmative concession that he was seized in a foreign
combat zone," Judge Luttig laments, "counsel must now be provided
and judicial review had of the Executive’s determination that one is
an enemy combatant." Such hyperbole is not only unwarranted, it is
plainly wrong.

   Judge Luttig’s first misrepresentation lies in his characterization of
our opinion as holding that "more is ‘unnecessary to a meaningful
judicial review’ of a challenge to an Executive’s enemy combatant
designation than a concession of seizure in a foreign combat zone."
We have held no such thing, nor can such be fairly read from our
opinion. The inaccuracy of this "paraphrased rendition" of our hold-
ing is readily apparent. The language quoted by Judge Luttig from the
36                         HAMDI v. RUMSFELD
panel opinion is excised from the following passage from our opinion
which follows an extensive discussion of the contents of the Mobbs
Declaration and the practical problems of active judicial supervision
of combat operations overseas:

     [B]ecause Hamdi was indisputably seized in an active com-
     bat zone abroad, we will not require the government to fill
     what the district court regarded as gaps in the Mobbs affida-
     vit. The factual averments in the affidavit, if accurate, are
     sufficient to confirm that Hamdi’s detention conforms with
     a legitimate exercise of the war powers given the executive
     by Article II, Section 2 of the Constitution and . . . is consis-
     tent with the Constitution and laws of Congress. Asking the
     executive to provide more detailed factual assertions would
     be to wade further into the conduct of war than we consider
     appropriate and is unnecessary to a meaningful judicial
     review of this question.

Id. at 473 (emphasis added) (citations omitted). Obviously, we did not
hold that Hamdi’s concession of seizure in a foreign combat zone ren-
dered further judicial inquiry into an enemy combatant designation
unnecessary. For the constitutional and practical reasons extensively
discussed in the opinion, we held that Hamdi’s presence in a war zone
when seized rendered judicial inquiry beyond the legal sufficiency of
the government’s response unnecessary to a meaningful judicial
review.

   Indeed, we expressed no opinion as to whether the Mobbs Declara-
tion was more than sufficient or just enough to ensure meaningful
judicial review of the Executive’s detention of an American citizen in
an enemy country as an enemy combatant. The submission of the
Mobbs Declaration was not directed by the Judiciary. Rather, the gov-
ernment voluntarily opted to provide, under oath, a level of informa-
tion it believed to be legally sufficient to justify detention of an
American citizen captured during the course of armed conflict in a
foreign theater of battle, and asked us to respect the balance of powers
and accept it as sufficient to warrant dismissal of the petition before
us. And, we did indeed accept the Executive’s voluntary proffer as
sufficient. We took care not to make grand pronouncements as to
what we might do in a different case, and even went so far as to
                          HAMDI v. RUMSFELD                           37
expressly discourage any propensity on the part of others to view our
decision as moving beyond the set of circumstances before us. Judge
Luttig decries what he believes to be a "Pyrrhic victory" for the gov-
ernment, but it has lost nothing. Even if we assume that the govern-
ment sought such a broad holding, the most that can be said is that
they did not get all they wanted and must seek it elsewhere.

   Judge Luttig’s second misrepresentation comes in the form of the
prediction that, as a result of our opinion, "in every instance in which
the [habeas] petitioner refrains from affirmative concession that he
was seized in a foreign combat zone," "counsel must now be provided
and judicial review had of the Executive’s determination that one is
an enemy combatant." Our opinion says no such thing. We held that
the Mobbs Declaration was sufficient to allow meaningful judicial
review of Hamdi’s detention because he was within a hostile country
when captured. We did not predict what would constitute meaningful
judicial review of the detention of an United States citizen in cases
in which the place of seizure is unknown or alleged to be within a
country with whom we are not actively at war. Although we left open
the possibility that the place of seizure might require further factual
inquiry depending upon what representations the government pro-
vided, we did not hold that extended judicial review of the Execu-
tive’s determination that one is an enemy combatant would become
appropriate merely because a dispute existed as to the place of cap-
ture. Nor for that matter, did we even hold that the Mobbs Declaration
would have been insufficient had the place of capture been in dispute
in this case. Our opinion dealt, as it should, with the precise situation
before us.

                                  IV.

   Finally, while I fully recognize that we have not gone as far as
Judge Luttig would have us go, I take umbrage at his charge that this
panel, as a result of "decisional paralysis," has "retreated" from its
constitutional duty to decide this case based upon the facts presented
and, instead, has fabricated a fact to ease our task. Nothing could be
further from the truth. The government makes no such charge, no
doubt cognizant that, in accordance with time-honored principles of
constitutional decision-making, we have gone no further than neces-
sary to resolve the delicate balance of constitutional interests before
38                         HAMDI v. RUMSFELD
us. See Poe v. Ullman, 367 U.S. 497, 503 (1961) ("The best teaching
of this Court’s experience admonishes us not to entertain constitu-
tional questions in advance of strictest necessity.") (quoting Parker v.
County of Los Angeles, 338 U.S. 327, 333 (1947)); Ashwander v. Ten-
nessee Valley Authority, 297 U.S. 288, 346 (1936) (Brandeis, J., con-
curring) ("The Court will not ‘anticipate a question of constitutional
law in advance of the necessity of deciding it.’") (quoting Liverpool,
N.Y. & Phila. Steamship Co. v. Emigration Commissioners, 113 U.S.
33, 39 (1885)); id. ("The Court will not ‘formulate a rule of constitu-
tional law broader than is required by the precise facts to which it is
to be applied.’"). Burton v. United States, 196 U.S. 283, 295 (1905)
("It is not the habit of the court to decide questions of a constitutional
nature unless absolutely necessary to a decision of the case."). Nor,
for that matter, does the petitioner, who argues not that Yaser’s pres-
ence in Afghanistan was a matter of dispute, but only that we should
not as a legal matter rely upon the allegations of the petition and the
representations of the petitioner for the premise that Yaser was in an
active combat zone within that country.

   Nor is it fair to say that we "retreated to ground that . . . neither
party attempted to defend." The government has recognized the sig-
nificance of the place of capture from the outset of this case, arguing
to us that "[t]he military determination at issue in this case — the
decision to detain someone who was armed with an assault rifle when
he surrendered in a combat zone as part of an enemy unit — directly
implicates the national defense, not to mention the safety of American
soldiers still stationed in the zone of conflict, and falls at the heart of
the military’s ability to conduct war." Respondents’ Brief at 27. So
has the petitioner, who has repeatedly disclaimed any intent to chal-
lenge a battlefield seizure in Afghanistan, but only Hamdi’s current
detention in the United States.

   This case was presented to us on appeal from the district court’s
order finding that the Mobbs Declaration was insufficient to allow
meaningful judicial review of Hamdi’s classification as an enemy
combatant. We held that the Mobbs Declaration provided by the gov-
ernment in response to the habeas petition was sufficient to uphold
Hamdi’s detention as an enemy combatant under the President’s war-
time powers. We have upheld the President’s Article II power as
Commander in Chief of the armed forces to defend this country from
                           HAMDI v. RUMSFELD                             39
its enemies and to determine who are and who are not enemies of the
United States within countries where we are engaged in active hostili-
ties.

   Yaser Hamdi’s status as an American citizen entitles him to peti-
tion the Judiciary personally, or by next friend if he cannot for rea-
sons of national security, for habeas relief and thereby to demand a
response from the Executive as to why the detention is an acceptable
utilization of his Article II powers. In the exercise of our Article III
powers, we review that response and may consider any legal argu-
ments as to why the detention does not comport with a lawful exercise
of war powers. Because Hamdi was within a country with whom we
were fighting when he was seized, principles of separation of powers
and practicalities of armed conflict dictate that we defer to the Execu-
tive’s determination as to who is foe and who is not. Hamdi may test
the legal basis for his detention. But, beyond that, Hamdi may be
held, not indefinitely, but for the duration of active hostilities just like
other non-citizen detainees captured in an enemy country by our mili-
tary forces making a battlefield determination that the person detained
was there to take up arms against our soldiers. And, in the holding
most overlooked but most directly applicable to the claim as it was
filed and argued before us, Hamdi’s transfer by the military from the
enemy country to Guantanamo Bay and then to the United States did
not result in a greater right to challenge his designation.

   In the end, Judge Luttig complains not because we accepted the
Mobbs Declaration as sufficient and, thereby, granted the President
the deference he sought from us. Rather, he complains because we
have not forecast a similar level of deference in other contexts by
adopting a global standard of review for all Executive detentions
undertaken in the "war against terror." But, in order to reach this
broader holding, he must attempt to find fault with our observation
that Hamdi was in Afghanistan when seized, and he must character-
ize, however inaccurately, our opinion as resting solely upon that
observation.

   The impropriety of reaching beyond this case to decide another is,
in my view, quite obvious. Judge Luttig opines that he would proba-
bly adopt the "some evidence" standard advanced by the government
and hold that the Mobbs Declaration would be sufficient even in the
40                         HAMDI v. RUMSFELD
face of a factual dispute as to whether Hamdi was in Afghanistan.
That question, however, does not merely raise a single difficult issue,
as posited by Judge Luttig, as to what the global standard should be
for this and other cases. Rather, it raises many difficult issues related
to the President’s Article II wartime powers and how they will ulti-
mately be interpreted in an age of terror. And, no matter how interest-
ing such questions may be, they are simply not before us. We are not
dealing with the President’s designation of Hamdi as an enemy com-
batant because he is a terrorist in the "war against terror" declared
after the tragic events of September 11, 2001. Had Hamdi’s petition
been grounded in an allegation that he was seized in France under the
auspices of the "war against terror," and had the military agreed to
that allegation and designated him an enemy combatant, then we
would have a much different case. Had Hamdi’s petition been
grounded in an allegation that he was seized in the United States
under the auspices of the "war against terror," and the government
agreed, then we would have a case not unlike Padilla v. Bush.10 In
both hypothetical situations, we might well be called upon to weigh
other important national security interests. Whereas we would not
likely face the dilemma of pulling military commanders out of the
theater of war to testify in a court of law, for example, we would
likely encounter such issues as whether France or the United States
is a "zone of active military operations" and, if not, whether such sei-
zures in a noncombat country can be a valid exercise of the Execu-
tive’s Article II war power.

   I need express no opinion on such issues because they are not
before us. As the government’s response to the petition makes clear,
we are dealing with the President’s designation of Hamdi as an enemy
combatant in the war against Afghanistan with the stated goal of oust-
ing the Taliban regime in order to end its support for Al Qaida and
other terrorist networks. The conflict in Afghanistan is certainly
related to the global conflict referred to as the "war against terror," but
it is unquestionably a military conflict that falls quite neatly within
our historical concepts of war. The questions Judge Luttig wishes to
address might include some of the more novel, complex, and interest-
ing ones a court could be called upon to contemplate, but no matter
  10
   See Padilla v. Bush, 243 F.Supp.2d 42 (S.D.N.Y. 2003); Padilla v.
Bush, 233 F.Supp.2d 564 (S.D.N.Y. 2002).
                          HAMDI v. RUMSFELD                          41
how much we might like to deal with them, they are not before us.
We should not reach beyond this case to decide them.

LUTTIG, Circuit Judge, dissenting from denial of rehearing en banc:

   As should be true under a rule of law, the reasoning underlying our
resolution of the important issue presented by this appeal has implica-
tions beyond the particular dispute before us. In this instance, those
implications are for no less commanding constitutional interests than
the President’s power to conduct war and the right of our citizens to
be free from governmental restraint except upon lawful justification.

   As my colleagues have recognized, the panel’s opinion resolving
the important issue presented by this suit is unpersuasive, because of
its exclusive reliance upon a mistaken characterization of the circum-
stances of Hamdi’s seizure as "undisputed," when those circum-
stances are neither conceded in fact, nor susceptible to concession in
law, because Hamdi has not been permitted to speak for himself or
even through counsel as to those circumstances. That the panel opin-
ion is unpersuasive is borne out by no less significant a fact than that
the panel itself, as evidenced by the two separate concurrences today,
cannot even now agree as to either the proper interpretation or
defense of its opinion.

   Additionally, beyond the opinion’s unpersuasiveness, its refusal to
rest decision on the proffer made by the President of the United
States, and its insistence instead upon resting decision on a putative
concession by the detainee, has yielded reasoning that all but eviscer-
ates the President’s Article II power to determine who are and who
are not enemies of the United States during times of war.

   Because of the facial unpersuasiveness of the court’s opinion, and
because the opinion of law that resolves the issue raised in this appeal
is of even greater constitutional importance than the result reached by
that opinion, I would grant the requested rehearing en banc. I believe
that the significance of the issue that has been presented calls for an
opinion from this court that directly addresses that issue and resolves
it unambiguously and convincingly (however broadly or narrowly),
based upon the facts as they appear in the record and the arguments
as they have been well made by the parties.
42                        HAMDI v. RUMSFELD
                                   I.

   On the central question presented in this case, it is evident that the
panel found itself simply unwilling to allow petitioner Hamdi to chal-
lenge the facts supporting his designation by the Executive as an
enemy combatant, under any standard of review urged by those who
appeared on behalf of Hamdi. However, the panel was equally unwill-
ing either to adopt the "some evidence" standard and accept as suffi-
cient under that standard the facts offered by the government as
justification for Hamdi’s seizure or to hold that the Judiciary is with-
out all authority to review the President’s designation of an individual
as an enemy combatant, as alternatively urged by the government.
Faced with this decisional paralysis, the panel retreated to ground that
not only neither party attempted to defend, but that is transparently
indefensible — holding that Hamdi cannot challenge, and the court
cannot question, the facts proffered by the government in support of
Hamdi’s particular seizure and detention as an enemy combatant, for
the asserted reason that Hamdi has conceded that he was seized in a
foreign combat zone.

                                   A.

   In resting its decision on this factually and legally untenable
ground, the panel reneged on the promises it hastily made to the par-
ties at the litigation’s inception.

   It promised the citizen seized by the government "meaningful judi-
cial review" of his claim that he was not an enemy combatant, point-
edly refusing to "embrac[e] a sweeping proposition — namely that,
with no meaningful judicial review, any American citizen alleged to
be an enemy combatant could be detained indefinitely without
charges or counsel on the government’s say-so." Hamdi v. Rumsfeld,
296 F.3d 278, 283 (4th Cir. 2002) ("Hamdi II"). But it ultimately pro-
vided that citizen a review that actually entailed absolutely no judicial
inquiry into the facts on the basis of which the government designated
that citizen as an enemy combatant.

   One could hardly be faulted for wondering why, as the panel held,
more is "unnecessary to a meaningful judicial review" of a challenge
to an Executive’s enemy combatant designation than a concession of
                          HAMDI v. RUMSFELD                          43
seizure in a foreign combat zone. Under even an exceedingly deferen-
tial standard of review, such, though it is relevant to, would hardly
seem dispositive of whether one has been legitimately classified as an
enemy combatant. The embedded journalist or even the unwitting
tourist could be seized and detained in a foreign combat zone. Indeed,
the likelihood that such could occur is far from infinitesimal where
the theater is global, not circumscribed, and the engagement is an
unconventional war against terrorists, not a conventional war against
an identifiable nation state. But surely we would not conclude that
that journalist or tourist (who could be expected to readily admit to
his seizure in the foreign combat zone) had received meaningful judi-
cial review of his claim that he was not an enemy combatant, if that
claim received no judicial scrutiny at all merely because he stipulated
that he was seized in that foreign combat zone. It is undoubtedly for
these reasons that the Executive neither designated Hamdi an enemy
combatant on the basis of his mere seizure in a foreign combat zone
nor defends its designation in this court on such basis.

   But as the panel disowned its promise to the detainee to provide
him meaningful judicial review, so also did it disown its promise to
the Executive to accord him the substantial deference to which he is
constitutionally entitled for his wartime decisions as to who constitute
enemies of the United States. The panel promised the Executive that
the Judiciary would not sit in full review of his judgments as to who
is an enemy combatant of the United States, but it adopted a rule that
will henceforth do just that, cast the Judiciary as ultimate arbiter, in
each and every instance, of whether the Executive has properly so
classified a detainee.

   Upon a moment’s reflection, it is apparent that the rule of law that
was fashioned by the panel professedly in the name of deference to
the Executive, and that now binds us, is, in application, a rule of no
deference at all. For counsel must now be provided and judicial
review had of the Executive’s determination that one is an enemy
combatant in every instance in which the petitioner but refrains from
affirmative concession that he was seized in a foreign combat zone.
The Executive’s undeniably important interests in the prohibition of
access to detained enemy combatants for reasons of national security
and in the conduct of war free from fear that it will be summoned to
court to answer to the Judiciary for its enemy designations, thus, are
44                        HAMDI v. RUMSFELD
uncomfortably protected by little more than the hope (vain after the
court’s opinion, if not before) that the habeas petitioner will gratu-
itously or foolishly concede that his seizure occurred in a foreign zone
of combat.

   That the government’s victory is but thinly guised defeat could not
be better confirmed than by the arguments that have already been
made in opposition to, and in support of, the panel’s opinion by the
parties to this dispute. Thus, those appearing on behalf of Hamdi
argue, to no surprise and in compelling understatement, that the panel
fundamentally erred for the reason that, "it cannot fairly be stated that
it is ‘undisputed’ that Hamdi was captured within a zone of active
combat operations in a foreign country" "[b]ecause Hamdi was denied
the opportunity to meet with counsel, and was refused the opportunity
to dispute the facts put forth by [the government] — including asser-
tions as to where he was captured and what the circumstances were
at the time." Appellee’s Petition for Rehearing and Suggestion for
Rehearing in Banc, at 12-13. The obvious remedy for this error being,
they reasonably claim, a remand for further factual development on
the issue, with allowance for participation by Hamdi himself.

   And the government, as expected, rejoins that "the type of evidenti-
ary proceeding that appellees seek would raise precisely the same
problems concerning judicial oversight of military operations over-
seas that the panel properly concluded is not only unwise, but unau-
thorized under our constitutional scheme." Answer for Respondents-
Appellants to Petition for Rehearing and Suggestion for Rehearing en
Banc, at 11.

     A more Pyrrhic victory would be hard to conceive.

   In sum, then, because of its unwillingness to confront head-on the
admittedly difficult issue presented by this appeal, decide upon the
standard of review required by the Constitution, and resolve the case
by application of that standard to the facts proffered in justification
for the Executive’s designation of Hamdi as an enemy combatant of
the United States, the panel succeeded in securing neither the guaran-
tees of the Bill of Rights nor the powers committed to the Executive
by Article II of the Constitution.
                           HAMDI v. RUMSFELD                             45
                                    B.

   These breaches perhaps could be excused if the panel had divined
an unassailable narrower ground for decision than that foreshadowed
by either of its bold promises. However, its decision cannot be
excused on this basis, because the ground upon which the panel rested
its decision is anything but unassailable. For it simply is not "undis-
puted" that Hamdi was seized in a foreign combat zone.

   For its repeated assertions that this circumstance is conceded, see
Hamdi v. Rumsfeld, 316 F.3d 450, 459, 461, 465, 473, 475, 476 (4th
Cir. 2003) ("Hamdi III"), the panel relied solely on the petition filed
by Hamdi’s father as next friend. See id. at 460; id. at 461 (stating that
the Mobbs affidavit "confirms the material factual allegations in
Hamdi’s petition"); id. at 474 ("Hamdi’s petition places him squarely
within the zone of active combat and assures that he is indeed being
held in accordance with the Constitution. . . ."). As the panel wrote,

     [i]n this case, there are two allegations that are crucial to our
     analysis. First, Hamdi’s petition alleges that he was a resi-
     dent of and seized in Afghanistan . . . . Second, the Govern-
     ment’s response asserts that Hamdi is being detained
     pursuant to the Commander-in-Chief’s Article II war pow-
     ers and that the circumstances underlying Hamdi’s deten-
     tions, as reflected primarily in the Mobbs declaration,
     establish that Hamdi’s detention is lawful.

Id. at 471 (emphasis added). Thus, the panel opinion quite clearly
rests on the petition alone for the court’s conclusion that seizure in a
combat zone was "undisputed."

   But the next friend petition says no such thing as the panel held
that it does. It states that, "[w]hen seized by the United States Govern-
ment, Mr. Hamdi resided in Afghanistan." J.A. 9 (emphasis added).
Of course, it is a non sequitur to conclude from the representation that
Hamdi resided in Afghanistan at the time of his seizure, that he was
also seized in a foreign zone of active combat. In the end, it is obvious
that the panel simply missed the critical import of this distinction
between residency on one hand, and seizure or capture on the other,
even though it recognized — at least in passing — the distinction
46                        HAMDI v. RUMSFELD
between the two. As it said, though incorrectly as to the latter,
"Hamdi’s petition alleges that he was a resident of and seized in
Afghanistan. . . ." Hamdi III, 316 F.3d at 471 (emphasis added).

   Insistence that the distinction be drawn between acknowledgment
of residency and concession of seizure in a combat zone is not to be
clever. I have no reason to believe that Hamdi was not in a combat
zone at the time of his seizure, and, to the extent relevant, I believe
that he was. But, as a court of law, we cannot impute a concession
of this circumstance of seizure from an innocuous acknowledgment
of residency in a country in which combat was underway. Such is not
credible.

   No more so can other statements that appear in the next friend peti-
tion and relied upon by the panel be fairly taken as concession that
Hamdi was actually seized in a foreign combat zone, as opposed to
acknowledgment merely that he was a resident of a country in which
there was ongoing combat at the time of seizure. The panel recites
that,

     [a]ccording to the petition, "[i]n the course of the military
     campaign, and as part of their effort to overthrow the Tali-
     ban, the United States provided military assistance to the
     Northern Alliance, a loosely-knit coalition of military
     groups opposed to the Taliban Government," and thereby
     "obtained access to individuals held by various factions of
     the Northern Alliance."

Hamdi III, 316 F.3d at 460. The panel apparently viewed the quoted
petition passages similarly as conceding seizure in a foreign combat
zone. But a careful reading of these passages reveals that neither is
such a concession fairly inferable from them. Most obviously, neither
passage says anything at all about Hamdi. But, additionally, even if
they had, there is no reason to presume that every person who was
held by the Northern Alliance (assuming, for the moment, that Hamdi
falls within that class) was captured in Afghanistan during the course
of combat operations. Of course, this may have been the case. But it
also may not have been.

  The final statement in the next friend petition that the panel quoted,
and on which it seemingly relied, was at once materially abbreviated
                           HAMDI v. RUMSFELD                             47
by the panel and materially supplemented. The materiality of both the
omission and the addition is apparent when the actual quotation from
the petition is read side-by-side with the panel’s altered and para-
phrased rendition of that quotation. The petition actually reads as fol-
lows:

     On information and belief, Mr. Hamdi was captured or
     transferred into the custody of the United States in the Fall
     of 2001.

J.A. 10. In its opinion, however, the panel relates the statement in this
way:

     The petition further alleges that "Hamdi was captured or
     transferred into the custody of the United States in the Fall
     of 2001" in Afghanistan. . . .

Hamdi III, 316 F.3d at 460 (emphasis added). Thus, terribly signifi-
cantly given that the panel’s opinion rests on the "undisputed" nature
of the circumstance, the panel supplies a geographical location of sei-
zure and detention that the statement in the petition just does not con-
tain, imputing a representation as to this location to the next friend.
And though it should not be necessary to put a finer point on it than
this, even had the petition statement actually contained the geographi-
cal location of seizure and detention that the panel thought, the state-
ment would not support the conclusion that the situs of seizure was
conceded. For, even with this significant alteration, the statement
would only admit that Hamdi was either "captured or transferred into
custody," not necessarily one as opposed to the other.

   In fact, upon reading the petition, it is actually apparent that it scru-
pulously avoids any admission as to the precise geographical point of
seizure, likely because such was unknown to Hamdi’s father, who
filed the petition. See J.A. 11 (Petition: "On or about January 11,
2002, the United States military began transporting prisoners captured
in Afghanistan to Camp X-Ray at the United States Naval Base in
Guantanamo Bay, Cuba. . . . On or about January 11, 2002, the pre-
cise date unknown to Petitioners but known to Respondents, the
United States military transferred Yaser Esam Hamdi to Camp X-
Ray, Guantanamo Bay, where he was held until April 2002.").
48                        HAMDI v. RUMSFELD
   Because the panel opinion relies exclusively upon the next friend
petition for its conclusion that Hamdi was conceded to have been
seized in a foreign combat zone, and because none of the statements
in that petition either concede or can be fairly read to concede seizure
in such a location, the panel’s opinion, which in turn rests exclusively
upon such a concession, is unconvincing.

                                   C.

   Sensing the vulnerability of the panel’s opinion, the concurrences
in the denial of rehearing en banc (Judges Wilkinson and Traxler)
attempt to save the panel opinion by marshaling for the first time
today additional support, beyond that relied upon by the panel, for the
panel’s conclusion that it has been conceded that Hamdi was seized
in a foreign combat zone. Thus, for example, Judge Wilkinson main-
tains, "Hamdi’s own filings make clear that he was seized in a zone
of active combat operations," ante at 17 (emphasis added), by which
he makes reference not only to the next friend petition upon which the
panel solely relied, see, e.g., Hamdi III, 316 F.3d at 460; id. at 461
(stating that the Mobbs Declaration "confirms the material factual
allegations in Hamdi’s petition"); id. at 471 ("Hamdi’s petition alleges
that he was a resident of and seized in Afghanistan. . . ."); id. at 474
("Hamdi’s petition places him squarely within the zone of active com-
bat. . . ."), but also to the new materials cited by the government in
its response to the petition for rehearing, in support of the court’s con-
clusion that the location of seizure has been conceded. In particular,
excepting a letter that is admittedly "outside the legal arena" and thus
obviously irrelevant, Judge Wilkinson cites to Petitioner’s Traverse
and Response to Respondent’s Motion to Dismiss filed in the district
court and a statement by the district court. Ante at 17.

   I have previously expressed my concern about the trend in our
court to attempt "to add to, subtract from, or recharacterize the facts
recited and relied upon in a challenged panel opinion, or even to fine-
tune, if not fundamentally reshape, the legal analysis undertaken by
the original panel, in the course of opinions respecting the denial of
rehearing en banc." Jones v. Buchanan, 325 F.3d 520, 538-40 (4th
Cir. 2003) (Luttig, J., dissenting) (citing cases). Without repeating in
full the reasons for this concern here, such attempted modifications
are unfair to the litigants, because the parties (and the public) are
                         HAMDI v. RUMSFELD                          49
bound by the panel opinion as it was written and issued, and they may
obtain further review only of the issued panel opinion, without regard
to modifications suggested by a concurrence in denial of en banc
rehearing. In other words, they are bound by the only opinion of law
in the case, not by the hypothetical opinion represented by the combi-
nation of the original panel opinion and purported modifications made
during proceedings appealing for en banc reconsideration. This is not
to say that explanatory concurrences in denials of rehearing en banc
should never be written by the author of the challenged opinion or by
judges who joined in that opinion; it is only to say that when such an
opinion would add significant factual or legal support for the judg-
ment reached, the appropriate course is for the panel to modify its
opinion formally so as to supply the important new facts or reasoning
in an opinion that then becomes the precedent for the court which
may be appealed by the parties to the Supreme Court of the United
States.

   But putting this concern to one side, the very fact that the concur-
rences have felt need to offer up the additional support that they have
is confirmation that the panel at least now senses the analytical soft-
ness of its opinion. There would otherwise be no reason to attempt to
shore up that opinion with these additional materials, which the panel
fully considered originally and rejected as not providing any support
for its conclusion that the location of seizure was "undisputed."

   In any event, apart from their irrelevancy now as a matter of law
given that they were not relied upon in the panel opinion, these addi-
tional materials, as the panel originally concluded, do not any more
prove an affirmative concession that Hamdi was captured in a foreign
combat zone, than do the statements contained in the petition filed by
the next friend — even if, in combination with that sole filing relied
upon by the panel, they render the case slightly closer.

  Judge Wilkinson quotes from a traverse filed in the district court
which reads that the petitioner’s claim does not "implicate Respon-
dents’ initial detention of Petitioner Hamdi in Afghanistan." J.A. 64.
Much like the acknowledgment of Hamdi’s place of residence, the
observation that Hamdi’s claim does not implicate his initial detention
does not, and certainly should not in a court, say anything about
where he was originally seized — at least not necessarily. As does the
50                        HAMDI v. RUMSFELD
law, these parties themselves distinguish between seizure and deten-
tion throughout their submissions. If there were any doubt as to the
inappropriateness of drawing such an irrebuttable inference as to
place of seizure from place of detention in this instance, it should be
put to rest by the fact that that very same traverse filing states that
"[p]etitioner in no way concedes that Respondents’ factual assertions
are true." J.A. 65 n.1. Indeed, it even specifically states that "informa-
tion about Petitioner Hamdi prior to his transfer to the custody of [the
government] is based on the hearsay of unknown members of the
Northern Alliance." Id. The other materials with which the concur-
rences now attempts to support the panel’s opinion suffer from the
same flaw, as they too speak only as to the place of detention, not the
place of seizure.

   Thus, neither the panel nor even the concurrences after the fact,
adduce a single statement from Hamdi’s petition or any other filing
in this case in which there appears a concession that Hamdi was cap-
tured or seized in a foreign zone of active combat operations. A single
example suffices to show the extent of the reach attempted by the
panel. The concurrences now cite even to a defense counsel’s single
word of agreement with a statement made by the district court that
Hamdi was "in a fighting situation." Ante at 17-18 n.2 (citing Tr. of
Aug. 13, 2002 district court proceedings). Not only is this single word
of agreement with this statement made by the district court ambiguous
on its face, it is followed by defense counsel’s statement — omitted
by the concurrences — that "what is the problem with all of that, of
course, is that we have absolutely no detail with regard to the circum-
stances under which he was initially captured. . . . We don’t know
what happened." J.A. 394.

                                   D.

   But more important than the substantive content of any of these
several oblique references marshaled by the concurrences in en banc
denial is their source. These statements, however they are interpreted,
are not from Hamdi or from counsel acting on his behalf. They are
from Hamdi’s father, acting as next friend, who, it has been repre-
sented to us, has not even had any contact with his son since the latter
was seized over a year ago. As Judge Motz recognizes, even an unam-
biguous concession as to the location of Hamdi’s seizure in such a
                           HAMDI v. RUMSFELD                              51
third party submission cannot, as a legal matter, bind Hamdi to a fact
that in turn is deemed dispositive of his claim for freedom.

   In no sense, then, is the place of Hamdi’s seizure "undisputed" by
the parties to this suit. An opinion that rests exclusively on the prem-
ise of a stipulated agreement as to this circumstance of seizure, as
does the panel’s, is simply unconvincing. And it is rendered no more
convincing, even if it is thought more palatable, by the fact that rest-
ing decision on this ground permits superficial distinguishment on
fact (though not in principle) of the case in which a citizen seized on
American soil is denominated an enemy combatant, see Hamdi III,
316 F.3d at 465 (citing and distinguishing Padilla v. Bush, 233 F.
Supp. 2d 564 (S.D.N.Y. 2002)), which case the panel feared might
unavoidably be reached by a decision on the issue as presented and
under the facts as proffered.

                                     E.

   Judge Traxler writes extensively in defense of the panel opinion,
although, beyond embracing the materials newly cited by Judge Wil-
kinson, he does little more than repeat at length the panel’s reasoning
(where needed, embroidering upon that opinion for himself), and
quote liberally from this and Judge Motz’s opinion. But the juxtaposi-
tion of the particular defenses that he chooses to make, with their
obvious responses, all but confirms to the careful reader the short-
comings in the panel’s opinion. It is undoubtedly for this reason that
Judge Traxler’s co-panelists, who, with him, jointly authored the orig-
inal opinion, do not align themselves with him today.

                                     1.

   To begin with the most significant, Judge Traxler, though writing
to bolster the panel’s conclusion that the place of seizure in a foreign
combat zone was in fact conceded in the next friend petition, actually
ends up admitting that the petition itself does not explicitly concede
seizure in such a zone. See, e.g., ante at 23-24 ("Judge Luttig cor-
rectly observes that the habeas petition does not explicitly state that
‘Hamdi was captured in a zone of active combat in a foreign theater
of conflict.’"); id. at 23 (stating that "the petition[ ] fail[s] to affirma-
tively state that Hamdi was captured in a foreign combat zone"). This
52                        HAMDI v. RUMSFELD
is an admission of no small consequence, of course, for the panel
relied entirely upon the existence of such a concession of capture in
a foreign combat zone in the petition, and the opinion plainly
regarded this concession as having been made explicitly and unequiv-
ocally. Certainly, until today, the reader would have never thought
otherwise. Nowhere, for instance, is there even the slightest sugges-
tion that the panel regarded this dispositive concession as merely "im-
plicit." And there certainly is no mention of any inferential steps of
which one would expect explanation before a dispositive concession
is implied by a court.

   By this candid admission alone, Judge Traxler has made out the
case against the panel’s opinion better than have either Judge Motz
or myself. For if, as Judge Traxler says, this is a "momentous" case,
then he has now confirmed that it was dismissed on the basis of a con-
cession believed by the panel (though disputed by the parties) to have
been made only "implicitly," and at that, by a third party to the action
who not only had had no contact whatsoever with the petitioner him-
self, but who even disavowed that he could speak to the facts except
upon information and belief.

   Unwittingly compounding further the analytical problems that
beset the panel’s opinion as it is written, Judge Traxler next attempts
to marshal for the first time support for what was the panel’s
assumed, but wholly unsupported, holding that a next friend may con-
cede facts sufficient to conclude a litigation when the detainee is inac-
cessible to the next friend by reason of the respondent’s own actions.
All that need be said as to this effort is that, after now critically
addressing himself as a single judge to the proposition that the panel
originally uncritically assumed, Judge Traxler is able to cite only a
single case and that of a district court almost forty years ago. See ante
at 29 (citing Hall v. Hague, 34 F.R.D. 449 (D. Md. 1964)). And not
even that case holds that a next friend may concede the facts that will
lead to the dismissal of the plaintiff’s suit in circumstances anywhere
approaching those presented by this case. Thus, on this score as well,
has Judge Traxler made the case for dissent better than have either
Judge Motz or myself.

   Judge Wilkinson, to his credit, recognizes as much, and attempts
to salvage the panel opinion on this critical point by asserting that "or-
                          HAMDI v. RUMSFELD                           53
dinary civil [and] criminal litigants" cannot be bound by next friend
concessions, but that Hamdi must be so bound, for the reason that he
allegedly was seized in a foreign zone of active combat operations.
See ante at 17-18 n.2. But in attempting the salvage, Judge Wilkinson
himself comes very close (although he does not realize it) to outright
conceding the indefensibility of the point, because the binding charac-
ter of a next friend concession obviously does not turn upon whether
the concession is or is not made on behalf of an individual allegedly
seized abroad, or even an individual seized abroad in a foreign theater
of battle. Nor does the separation of powers have anything to do with
this necessary legal fact. And even if the binding character of a next
friend concession somehow did turn upon the location of the petition-
er’s seizure, the principle would cut in precisely the opposite direction
from that believed by Judge Wilkinson: the alleged concession might
be binding upon one seized domestically with whom the next friend
is in unfettered contact, but presumptively would never be binding
upon one seized abroad and held incommunicado.

   In tacit recognition that these belated arguments as to the fact of
concession and the legal acceptability of third-party fact concessions
ring hollow, Judge Traxler (notably speaking only for himself) sug-
gests finally that the panel would have reached the same outcome in
this case even had it not concluded that the place of seizure was
undisputed. See ante at 37 ("Nor for that matter, did we even hold that
the Mobbs Declaration would have been insufficient had the place of
capture been in dispute in this case."). I do not know quite how to
respond to this statement, because I am in no position to say that, irre-
spective of what the panel wrote, it would not have decided the case
differently had it concluded that the location of seizure was disputed.
All that I, the parties, and the public can do is reason inferentially
from the opinion for the court, which the panel did write. And based
upon that opinion, while Judge Traxler may now in hindsight charac-
terize the supposed concession by Hamdi’s next friend as insignifi-
cant, the panel opinion he co-authored treats it as anything but. The
opinion well speaks for itself in rebuttal to this suggestion. Said the
panel, in emphasized words that Judge Traxler would have us over-
look today, the concession of seizure in a combat zone made in the
petition is "crucial to our analysis." Hamdi III, 316 F.3d at 471.

  Thus, while Judge Traxler may now want to say that the panel
would decide the case no differently absent a concession, he is faced
54                        HAMDI v. RUMSFELD
with self-contradiction to so maintain, given that the opinion he co-
authored went out of its way to denominate as "crucial" to its analysis
the concession that it mistakenly believed was made. The unavoidable
inference to be drawn from such a characterization of fact disposi-
tively relied upon is not, as Judge Traxler would now have it, that
absent that fact, the disposition would still be the same, but rather,
that the disposition reached on the strength of that fact quite likely
would be different if the fact were otherwise.

                                   2.

   Unable to shore up the foundation of the panel’s opinion, that
Hamdi’s next friend conceded that Hamdi was seized in a zone of
active combat operations and bound Hamdi to that fact, Judge Traxler
attempts to shift the focus away from the panel’s opinion and the ulti-
mate legal issue entirely, by erecting and then attacking a series of
straw man arguments he ascribes to this dissent. Thus, he suggests
that I argue that the facts alleged in the petition should be taken as
false, ante at 27-28, and that I am "attempt[ing] to rewrite the case
history and the substance of the habeas claim," ante at 28. Of course,
I make no such arguments. I make the simple point that the petition
does not affirmatively concede capture in a foreign combat zone, a
fact that Judge Traxler now admits, see ante at 23.

   Judge Traxler next argues that I have unfairly stated that neither
party has attempted to defend the significance of the place of capture,
ante at 37-38. Again, I make no such statement. What I have stated
is that neither party assigned any legal significance to the argument
relied on by the panel that the locus of capture was "undisputed."
(And, given the record as I have recited it herein, it is unsurprising
that they did not.) But to remove the source of my objection from all
doubt, and as I explain more fully below, it is not the panel’s reliance
on the place of capture that troubles me. Rather, it is the panel’s inde-
fensible reliance on an assumed concession by the petitioner, as
opposed to a proffer by the government, to establish this "fact."

   In his final attempt to shift the focus to a criticism that I have not
made, but to which response is easier, Judge Traxler asserts that I am
criticizing the panel for issuing a narrow, as opposed to a broad, hold-
ing. See ante at 37. As I have quite clearly said, however, the panel’s
                          HAMDI v. RUMSFELD                          55
error in my view was not in its search for a narrower ground, but
rather in the unpersuasiveness of the putatively narrower ground on
which it ultimately relied — a concession by Hamdi as to the place
of his seizure. Not only is this narrower ground of concession factu-
ally unpersuasive, it is also unpersuasive as a matter of law, for the
reasons Judge Motz and I have set forth.

                                   3.

   When all is said and done, then, Judge Traxler’s writing today both
confirms the vulnerabilities inherent in the panel’s opinion he seeks
to defend and puts the lie to the panel’s assertion that, by grounding
its decision on the reputed concession by Hamdi’s next friend, it both
provided Hamdi meaningful judicial review and protected the Presi-
dent’s Article II powers to determine who and who are not enemies
of the United States.

   As to the former, not only does he admit that there is no such
explicit concession as the panel believed, but he is forced as well to
acknowledge that there is not even legal support for the panel’s unex-
amined supposition that a next friend can actually concede a disposi-
tive fact without even the petitioner’s knowledge. As to the latter, his
analytical admissions betray well that Hamdi was not provided the
meaningful judicial review that he was promised. And, through his
attempt to discount the importance of the supposed concession to the
panel’s disposition, he only draws attention to the pivotal importance
of that supposed concession and thereby to the trifling deference the
panel accorded the President of the United States in his determina-
tions of who constitute enemies of our Country. A more forceful
explanation of the grounds for dissent I could not make.

                                  II.

   Because of the overarching importance of the opinion of law that
resolves the issue presented by this appeal, because of the panel opin-
ion’s dismissiveness of the substantial interests at stake in this case
for both citizen and government, and because of the analytical vulner-
ability of the court’s opinion as it stands, I believe that both the
United States and the petitioner would be served by reconsideration
by our full court.
56                        HAMDI v. RUMSFELD
   Upon reconsideration, we should decide the critical issue of the
appropriate standard that is to govern the Judiciary’s review of an
individual’s challenge to an Executive designation of enemy comba-
tant status, the indecision of which by the panel I believe fails to serve
the substantial interests of not only the parties but also the public in
the resolution of this issue. Having decided the governing standard,
we should decide the issue of whether that standard has been satisfied
in this case by the government’s proffer of the facts contained in the
Michael H. Mobbs affidavit, the like indecision of which by the panel
also, I believe, fails to serve the parties and the public.

                                   III.

   Although I reserve ultimate judgment because of the difficulty of
the issue and because I write in dissent from the request to rehear the
case and therefore without the benefit of argument, I believe, as to the
standard of review, that the government may be correct that

     [p]roper respect for separation of powers and the limited
     role and capabilities of courts in matters of national security
     may well limit the courts to the consideration of legal
     attacks on detention of the type considered in [Ex parte]
     Quirin[, 317 U.S. 1 (1942)] and [In re] Territo, [156 F.2d
     142 (9th Cir. 1946),] and raised by the petition in this case.
     At most, however[ ] . . . a court’s proper role in a habeas
     proceeding such as this would be to confirm that there is a
     factual basis supporting the military’s determination that a
     detainee is indeed an enemy combatant.

Br. of Respondents-Appellants at 28 (internal citation omitted); see
also id. at 36 ("[T]o prevail under a constitutionally appropriate stan-
dard, the government would at most need to provide some factual
basis for supporting the military’s determination that Hamdi is an
enemy combatant."). That is, I believe that the President of the United
States may well be entitled under the Constitution to receive from the
Judiciary the deference afforded by a standard selected from those
along this continuum, when, in exercise of the powers conferred upon
him by Article II of the Constitution, he designates a person as an
enemy combatant against this Nation.
                           HAMDI v. RUMSFELD                              57
   As to the application of the standard to the facts proffered by the
government in support of the Executive’s designation of Hamdi as an
enemy combatant, I reserve ultimate judgment for the same reasons.
I am prepared to say, however, that I would likely conclude, as argued
by the United States, that the facts recited in Special Advisor Mobbs’
affidavit, as to which there is not even hint of fabrication, are suffi-
cient to satisfy the constitutionally appropriate standard for the Presi-
dent’s designation of an enemy of the United States.

   This affidavit states that Hamdi traveled to Afghanistan in the sum-
mer of 2001, where he promptly affiliated with a Taliban military unit
and received weapons training. It further states that during a battle
between the Taliban and the Northern Alliance later that year,
Hamdi’s Taliban unit surrendered to Northern Alliance forces. It con-
tinues that Hamdi was directed to surrender his Kalishnikov assault
rifle (i.e., AK-47) to Northern Alliance forces and was subsequently
imprisoned. The affidavit represents that, while in prison, Hamdi was
determined by the United States military screening team to meet the
criteria for enemy combatants over whom the United States was tak-
ing control. And finally, the affidavit relates that in January 2002, a
Detainee Review and Screening Team established by the Commander
of the United States Central Command reviewed Hamdi’s record and
determined again that he met the criteria established by the Secretary
of Defense for individuals over whom United States forces should
take control and transfer to Guantanamo Bay.

   In addition to these declarations made under penalty of perjury by
the appointed representative of the government, the President of the
United States, through his Solicitor General, has represented to this
court that in his judgment Hamdi is indeed an enemy combatant,
detention of whom is warranted in the interests of national security.

   The panel’s contrary holding notwithstanding, I suspect that more
than this would be unnecessary to affirm the President’s decision to
designate Hamdi an enemy of the United States.

   In all events, I believe that it is the obligation of this court to decide
these issues that have been presented to us by the United States and
by one of its citizens. At times, judicial avoidance of the difficult and
58                        HAMDI v. RUMSFELD
the politically charged is the more prudent and the more faithful to the
judicial role, both. This is a case in which it is neither.

                              **********

   For the reasons set forth, I would grant the suggestion for rehearing
en banc. Accordingly, I respectfully dissent from the court’s denial of
that suggestion.

DIANA GRIBBON MOTZ, Circuit Judge, dissenting from denial of
rehearing en banc:

  For more than a year, a United States citizen, Yaser Esam Hamdi,
has been labeled an enemy combatant and held in solitary confine-
ment in a Norfolk, Virginia naval brig. He has not been charged with
a crime, let alone convicted of one. The Executive will not state
when, if ever, he will be released. Nor has the Executive allowed
Hamdi to appear in court, consult with counsel, or communicate in
any way with the outside world.

   Precedent dictates that we must tolerate some abrogation of consti-
tutional rights if Hamdi is, in fact, an enemy combatant. However, a
panel of this court has held that a short hearsay declaration by Mr.
Michael Mobbs — an unelected, otherwise unknown, government
"advisor," — "standing alone" (subject to no challenge by Hamdi or
court-ordered verification) is "sufficient as a matter of law to allow
meaningful judicial review" and approval of the Executive’s designa-
tion of Hamdi as an enemy combatant. See Hamdi v. Rumsfeld, 316
F.3d 450 (4th Cir. 2003). I cannot agree.

   To justify forfeiture of a citizen’s constitutional rights, the Execu-
tive must establish enemy combatant status with more than hearsay.
In holding to the contrary, the panel allows appropriate deference to
the Executive’s authority in matters of war to eradicate the Judiciary’s
own Constitutional role: protection of the individual freedoms guaran-
teed all citizens. With respect, I believe the panel has seriously erred,
and I dissent from the court’s refusal to rehear this case en banc.

                                   I.

   The panel’s decision marks the first time in our history that a fed-
eral court has approved the elimination of protections afforded a citi-
                          HAMDI v. RUMSFELD                           59
zen by the Constitution solely on the basis of the Executive’s
designation of that citizen as an enemy combatant, without testing the
accuracy of the designation. Neither the Constitution nor controlling
precedent sanction this holding.

   The rights provided in the Constitution to each American citizen
include the right to due process of law and to petition for a writ of
habeas corpus. U.S. Const. amend. V; art. I, § 9. Unquestionably, the
availability of habeas relief extends to detention pursuant to the Exec-
utive’s military authority. See, e.g., Ex parte Milligan, 71 U.S. (4
Wall.) 2, 120-21 (1866); Duncan v. Kahanamoku, 327 U.S. 304
(1946). Just as clearly, the responsibility for ensuring that individuals
detained by the Executive receive the due process guarantees of the
Constitution, including the right to petition for habeas corpus, rests
with the courts. See In re Yamashita, 327 U.S. 1, 9 (1946). As the
Supreme Court has explained, "the allowable limits of military discre-
tion, and whether or not they have been overstepped in a particular
case, are judicial questions," Sterling v. Constantin, 287 U.S. 378, 401
(1932); see Duncan, 327 U.S. at 322-23; and the "government must
always be accountable to the judiciary for a man’s imprisonment."
Fay v. Noia, 372 U.S. 391, 402 (1963), overruled on other grounds,
Coleman v. Thompson, 501 U.S. 722 (1991).

   The panel acknowledges as much, conceding that "[t]he duty of the
judicial branch to protect our individual freedoms does not simply
cease whenever our military forces are committed by the political
branches to armed conflict" and that "detention of United States citi-
zens must be subject to judicial review." Hamdi, 316 F.3d at 464. Fur-
ther, the panel recognizes that Hamdi, "an American citizen currently
detained on American soil," is entitled to petition for a writ of habeas
corpus and that habeas proceedings "naturally contemplate[ ] the
prospect of factual development." Id. at 470, 473. The panel even rec-
ognizes the inadequacy of the sole "evidence" the Executive has prof-
fered to support its enemy combatant designation of Hamdi — the
Mobbs declaration — for it admits that "a capable attorney could
challenge the hearsay nature of the Mobbs declaration and probe each
and every paragraph for incompleteness or inconsistency." Id. at 473.
Yet, the panel concludes that "no . . . factual inquiry on our part is
necessary or proper" and that "Hamdi is not entitled to challenge the
facts presented in the Mobbs declaration." Id. at 473, 476.
60                        HAMDI v. RUMSFELD
   The panel suggests that this conclusion accords with precedent. See
id. at 475 ("this same issue arose in Quirin . . . the Quirin principle
applies here"). In fact the Supreme Court has never held that a person
designated by the Executive as an enemy combatant cannot challenge
that designation or that a court cannot require the Executive to sub-
stantiate it. In the case on which the majority relies, Ex Parte Quirin,
317 U. S. 1 (1942), the Court did hold that for a violation of the laws
of war, even an American citizen could be treated as an "enemy com-
batant" and held without the full array of Constitutional rights, but
only because the citizen, after consultation with legal counsel, stipu-
lated to the facts supporting the enemy combatant designation.

   Thus, in Quirin, a German-born soldier, who claimed to be an
American citizen, stipulated that after receiving payment by the Ger-
man government and instruction by the "German High Command to
destroy war industries and war facilities in the United States," he and
six other German soldiers secretly landed in the United States during
World War II with "a supply of explosives." Id. at 20-21. Only after
finding that these "conceded facts" demonstrated "plainly" that the
soldiers were within the "boundaries of the jurisdiction of military tri-
bunals," did the Supreme Court reject their contention that they could
not be tried by a military commission. Id. at 46. Critical to the case
at hand, the Court first expressly rejected the Executive’s argument
that the soldiers, "must be denied access to the courts because they
are enemy aliens who have entered our territory." Id. at 24-25.
Instead, each of the soldiers was permitted, with the assistance of
counsel, to file his own (not a next friend) petition for a writ of habeas
corpus, which the courts reviewed to ensure that each soldier was in
fact an enemy combatant. Id.

   None of the few other Supreme Court cases addressing the rights
of enemy combatants involved American citizens. But even when
dealing with the claims of German and Japanese citizens detained by
military authorities outside the United States during World War II, the
Court has never suggested that an enemy combatant is without
recourse to challenge that designation in court. On the contrary, the
Court has held that a resident alien — who, the Court specifically
noted, has far less status than those, like Hamdi, who enjoy the "high
privilege" of citizenship — can challenge the Executive’s designation
of him as an enemy. Johnson v. Eisentrager, 339 U.S. 763, 770, 775
                          HAMDI v. RUMSFELD                            61
(1950) (internal quotation marks and citation omitted). As the Court
explained: "Courts will entertain his plea for freedom from Executive
custody only to ascertain the existence of a state of war and whether
he is an alien enemy." Id. at 775 (emphasis added); see also id. at
784-85; Ludecke v. Watkins, 335 U.S. 160, 171 n.17 (1948) (noting
that "whether the person restrained is in fact an alien enemy . . . may
also be reviewed by the courts"); Yamashita, 327 U.S. at 8 (noting
that "[t]he courts may inquire whether the detention complained of is
within the authority of those detaining the petitioner" and "the Execu-
tive branch of the government could not, unless there was a suspen-
sion of the writ, withdraw from the courts the duty and power" to
inquire whether the "Constitution or laws of the United States with-
hold authority" from a military tribunal).

   Moreover, the Supreme Court has upheld the Executive’s designa-
tion of a person as an enemy alien or enemy combatant only when
presented with facts supporting this designation — facts stipulated by
the petitioner with the advice of counsel, as in Quirin, or facts proved
by the prosecution at a military trial in which the petitioner was
afforded counsel, as in Yamashita. In the case at hand, no facts have
been presented to support the Executive’s designation. The Executive
has not permitted Hamdi to consult with counsel or challenge the alle-
gations contained in the Mobbs declaration. And Hamdi has certainly
not stipulated to anything. Denied the most basic procedural protec-
tions, Hamdi could not possibly mount a challenge to the Executive’s
designation of him as an enemy combatant. Yet in Eisentrager, Lud-
ecke, and Yamashita the Supreme Court has explained that even
aliens are entitled to precisely this right. Thus, far from supporting the
panel’s position, controlling precedent prohibits its approach.

                                   II.

   Without any acknowledgment of its break with precedent, the panel
embarks on a perilous new course — approving the Executive’s des-
ignation of enemy combatant status not on the basis of facts stipulated
or proven, but solely on the basis of an unknown Executive advisor’s
declaration, which the panel itself concedes is subject to challenge as
"incomplete[ ]" and "inconsisten[t]" hearsay. Hamdi, 316 F.3d at 473.
My good colleagues’ opinion, although well-intentioned and replete
with compelling declarations of separation-of-powers principles with
62                          HAMDI v. RUMSFELD
which no one would quarrel, utterly fails to set forth an adequate
rationale for its breathtaking holding.

   Indeed, the panel offers only a single justification for its unprece-
dented decision to permit the Executive to support its designation of
Hamdi as an enemy combatant with pure hearsay: Hamdi’s capture in
a "zone of active combat" was assertedly "undisputed." See Hamdi,
316 F.3d at 459 ("Because it is undisputed that Hamdi was captured
in a zone of active combat in a foreign theater of conflict, we hold the
submitted declaration is . . . sufficient." (emphasis added)); id. at 476
("Hamdi is not entitled to challenge the facts presented in the Mobbs
declaration," because he "has been designated an enemy combatant
and it is undisputed that he was captured in a zone of active combat
operations abroad." (emphasis added)). According to the panel, this
apparently all-important fact is "undisputed" because "Hamdi’s peti-
tion places him squarely within the zone of active combat." Id. at 474;
see also id. at 460-61.

   This is a thin reed on which to rest abrogation of constitutional
rights, and one that collapses entirely upon examination. For Hamdi
has never been given the opportunity to dispute any facts. The "facts"
as to the place of Hamdi’s "capture" could only be "undisputed" by
reliance on a facially innocuous statement in a petition filed by
Hamdi’s father, as his "next friend." Thus, the panel determines that
a petition filed by a next friend on behalf of, but without access to or
consultation with, the petitioner constitutes a binding admission by
the petitioner that results in the forfeiture of the petitioner’s constitu-
tional rights. This holding flatly contravenes venerable Supreme
Court precedent. The Court long ago held that "a next friend or guard-
ian ad litem cannot, by admissions or stipulations, surrender the rights
of" the represented party. Kingsbury v. Buckner, 134 U.S. 650, 680
(1890); see also White v. Miller, 158 U.S. 128, 146 (1895) (same);
Stolte v. Larkin, 110 F.2d 226, 233 (8th Cir. 1940) (collecting cases).1
  1
   Judge Wilkinson contends in his concurrence to the order denying
rehearing en banc that these cases do not apply to Hamdi because he is
an enemy combatant who is not entitled to rights "enjoyed by ordinary
civil or criminal litigants." See ante at 17-18 n.2. This reasoning is dizzy-
ingly circular. The panel relied heavily on an admission of Hamdi’s next
                            HAMDI v. RUMSFELD                             63
   Just as importantly, even if the statement in his father’s petition
that "[w]hen seized," Hamdi "resided in Afghanistan," J.A. 9, some-

friend (who had no opportunity to consult with Hamdi) to find Hamdi an
enemy combatant. Now, Judge Wilkinson maintains that because Hamdi
is an enemy combatant, White and Kingsbury do not apply, and Hamdi
is bound by his next friend’s assertedly critical admission. Id. Thus,
Judge Wilkinson seeks to use the panel’s conclusion (that Hamdi is an
enemy combatant) to justify the panel’s improper reliance on an admis-
sion of Hamdi’s next friend, which provides the very basis for that con-
clusion. In sum, according to Judge Wilkinson, because Hamdi’s next
friend made a purportedly devastating admission, Hamdi forfeits all
rights to challenge that admission, and ultimately all constitutional rights.
Surely this does not constitute the "meaningful judicial review" that the
panel promised. See Hamdi, 316 F.3d at 462, 473.
   Nor does the district court opinion, Hall v. Hague, 34 F.R.D. 449 (D.
Md. 1964), relied on by Judge Traxler in his concurrence, ante at 29,
offer support for the panel’s startling approach. In Hall, a district judge
merely determined that the guardian ad litem of a minor could admit cer-
tain housekeeping matters prior to trial, on the understanding that "[a]t
the trial, the judge will be able to tell if any unjustified admissions have
been made and take appropriate action." Id. at 449-50 (internal quotation
marks and citation omitted) (emphasis added). This is a long way from
holding, as the panel does (ignoring Kingsbury and White), that a state-
ment in a petition filed by Hamdi’s next friend constitutes an admission
by Hamdi providing the basis for denial of his constitutional rights and
indefinite imprisonment, without the benefit of any trial. Indeed, Judge
Traxler’s assertion that "there is no reason to believe that [Hamdi’s]
rights are being bargained away or that a factual mistake is being made,"
in the next friend petition, ante at 29 n.7, ignores the obvious. How could
there be any "reason to believe that rights are being bargained away or
that a factual mistake is being made" when the only person who could
offer such a reason or contest a factual mistake — Yaser Esam Hamdi
— has never been given the chance to do so? By keeping Hamdi impris-
oned incommunicado, the Executive has denied him this opportunity.
Thus, we simply have no idea whether his "rights are being bargained
away" or "a factual mistake is being made." It is precisely to avoid
resolving an individual’s fate on such uncertain grounds that the
Supreme Court has held that a next friend petition "cannot be excepted
to for insufficiency, nor can any admission . . . be binding." White, 158
U.S. at 146.
64                          HAMDI v. RUMSFELD
how translated into Hamdi’s admission that he was captured "in a
zone of active combat," Hamdi, 316 F.3d at 459, this should not ren-
der the Executive’s designation of enemy combatant status irrebutt-
able. The ramifications of such a holding are chilling. Pursuant to the
panel’s decision, for example, any of the "embedded" American jour-
nalists covering the war in Iraq or any member of a humanitarian
organization working in Afghanistan,2 could be imprisoned indefi-
nitely without being charged with a crime or provided access to coun-
sel if the Executive designated that person an "enemy combatant."
Indeed, under the panel’s holding, any American citizen seized in a
part of the world where American troops are present — e.g., the for-
mer Yugoslavia, the Philippines, or Korea — could be imprisoned
indefinitely without being charged with a crime or afforded legal
counsel, if the Executive asserted that the area was a zone of active
combat.3 Thus, the only basis for relying on a hearsay declaration to
approve the Executive’s designation of Hamdi as an enemy comba-
tant, i.e., Hamdi’s assertedly "undisputed capture[ ] in a zone of active
combat," is in truth a chimera and certainly provides no justification
for the panel’s extraordinary holding.
  2
     I note that in a letter to Senator Patrick Leahy, contained in the record,
but ignored by the panel, Hamdi’s father, in fact, states that his son went
to Afghanistan less than two months before September 11, 2001 to do
"relief work," was "trapped in Afghanistan once that military campaign
began," could not have received military training, and was never an
enemy combatant. J.A. 153-54.
   3
     I find puzzling the contention that the panel opinion "does not speak
to the issue of whether an ‘enemy combatant’ may challenge the govern-
ment’s claim that the former Yugoslavia, the Philippines, or Korea is a
zone of active military operations," ante at 36-37. First, no basis is pro-
vided for distinguishing between the "troops . . . still on the ground in
Afghanistan," Hamdi, 316 F.3d at 476, and American troops "on the
ground" in the former Yugoslavia, the Philippines, or Korea. Moreover,
in suggesting that a person detained in one of those countries might be
able to challenge the Executive’s designation of that country as a zone
of active military operations, the concurrence necessarily implies that the
question of what constitutes such a zone is justiciable — a conclusion
seemingly at odds not only with the panel opinion, see 316 F.3d at 476
(dismissing Hamdi’s contention that hostilities in Afghanistan had
ended), but also with the concurrence itself. See ante at 32 n.9.
                          HAMDI v. RUMSFELD                          65
   Nor, as the panel implicitly acknowledges, does the two-page, nine
paragraph Mobbs declaration by itself, provide such justification. The
panel’s assessment of the Mobbs declaration is entirely accurate; that
declaration could indeed be easily and successfully "challenge[d]" as
"hearsay," and "probe[d]" for "incompleteness or inconsistency."
Hamdi, 316 F.3d at 473.4 The declaration contains no indicia of reli-
ability except for Mr. Mobbs’ oath — which seems of minimal value
given that Mr. Mobbs does not claim any personal knowledge of the
facts surrounding Hamdi’s capture and incarceration. Rather Mr.
Mobbs states that his "familiar[ity]" with "the facts and circum-
stances" surrounding Hamdi’s capture, is "[b]ased upon" his review
of undisclosed and unenumerated "relevant records and reports." J.A.
61. In fact, Mr. Mobbs himself did not (perhaps could not) make the
determination that Hamdi is an "enemy combatant." Instead, Mr.
Mobbs can merely declare that, according to "records and reports,"
"Hamdi was determined by the U.S. military screening team to meet
the criteria for enemy combatants." J.A. 62. The Mobbs declaration
does not even state what, if any, evidence this "U.S. military screen-
ing team" relied on in making that determination or whether Mr.
Mobbs himself conducted any independent review of this evidence.
Indeed, the declaration’s statement that Northern Alliance troops ini-
tially captured Hamdi suggests that even the U.S. military does not
have any first-hand knowledge of Hamdi’s conduct or status in
Afghanistan.

   In sum, the record provides no credible evidence supporting the
Executive’s designation of Hamdi as an enemy combatant. Accord-
ingly, a court has no basis upon which to perform its constitutional
duty "‘to examine’" the "‘validity’" of the "‘reason’" for Hamdi’s
"‘commitment.’" See Ex parte Merryman, 17 F. Cas. 144, 150 (No.
9,847) (C.C. Md. 1861) (noting "‘the absolute necessity of expressing
upon every commitment the reason for which it is made, [and] that
the court, upon a habeas corpus, may examine into its validity’"
(quoting 3 Blackstone, Commentaries 133, 134)). Thus, although the
panel steadfastly maintains that it engages in a "meaningful judicial
  4
   The panel twice details the statements made in the Mobbs declaration,
Hamdi, 316 F.3d at 461 and 472, and the Executive forcefully contends
that the declaration meets the "some evidence" standard, but the panel
carefully refrains from so holding. Id. at 474.
66                         HAMDI v. RUMSFELD
review," see Hamdi, 316 F.3d at 462, 473, its rubberstamp of the
Executive’s unsupported designation lacks both the procedural and
substantive content of such review.5

   At the same time, I hasten to note that the total inadequacy of the
Executive’s proffer and the panel’s review here does not provide
license for a searching judicial inquiry into the factual circumstances
of every detainee’s capture, or require compliance with a production
order as demanding as that called for by the district court.6 Such an
approach could hamper the Executive’s ability to wage war, as the
panel explains at length. See Hamdi, 316 F.3d at 469-473. But the
possibility, no matter how real, that an improperly conducted judicial
inquiry could impair the Executive’s ability to wage war cannot, as
the panel seems to believe, provide a justification for holding that the
Executive can indefinitely detain an American citizen (even one cap-
tured in a zone of active hostilities) without producing any credible
evidence that the citizen is an "enemy combatant." The Constitution
  5
     Moreover, while I applaud the panel’s attempt to confine its holding
to the facts at hand, without effect on the rights of citizens captured on
American territory, see Hamdi, 316 F.3d at 465, similar attempts to con-
strain judicial holdings have proved unavailing. As Justice Jackson
recounted, despite the Supreme Court’s careful efforts to limit the scope
of its holding in Hirabayashi v. United States, 320 U.S. 81 (1943), to the
specific facts of that case, see id. at 101-02, 105, the Court later deter-
mined that Hirabayashi dictated the holding in Korematsu v. United
States, 323 U.S. 214, 218 (1944). See id. at 247 (Jackson, J., dissenting)
("The Court is now saying that in Hirabayashi we did decide the very
things we there said we were not deciding."). I fear that the panel may
also have opened the door to the indefinite detention, without access to
a lawyer or the courts, of any American citizen, even one captured on
American soil, who the Executive designates an "enemy combatant," as
long as the Executive asserts that the area in which the citizen was
detained was an "active combat zone," and the detainee, deprived of
access to courts and counsel, cannot dispute this fact.
   6
     Although I agree with the panel that the district court’s production
order required too much, the experienced district judge should be com-
mended nonetheless. For, during wartime and in the face of opposition
by representatives of a President enjoying record popular support, the
district judge has courageously attempted to provide the meaningful judi-
cial review that the Constitution mandates, however unpopular the case.
                          HAMDI v. RUMSFELD                           67
gives Congress, not the Executive and not the courts, the power to
suspend the writ of habeas corpus when the public safety requires it.
U.S. Const. art. I, § 9. Absent a suspension of the writ, the Constitu-
tion demands that we strike the proper balance between ensuring the
Executive’s ability to wage war effectively and protecting the individ-
ual rights guaranteed to all American citizens. See Yamashita, 327
U.S. at 8. Without such a balance, our system of ordered liberty will
indeed ring hollow.

   Thus, in contrast to the panel’s holding, which effectively trans-
forms the asserted "fact" of being captured in a zone of active hostili-
ties into an irrebuttable presumption of "enemy combatant" status,7 a
court could regard such a "fact" as creating a rebuttable presumption,
thereby shifting the burden to Hamdi (and others like him) to estab-
lish that he was not an "enemy combatant." The burden of persuasion
would then be on Hamdi, with the aid of counsel, to proffer affirma-
tive evidence of his "non-combatant" status. This would seem to be
the course dictated by precedent.

   Alternatively, if the Executive produced the "relevant records and
reports" on which Mr. Mobbs relied in making his declaration, a court
might be able to assure itself of the legitimacy of the Executive’s des-
ignation. (Of course, the possibility that the "relevant records" per-
taining to Hamdi’s detention might contain no evidence that he was
an "enemy combatant" is precisely the reason why judicial review is
necessary.) The Department of Defense has obviously already com-
  7
    Notwithstanding Judge Traxler’s contention, nineteenth and early
twentieth century takings cases do not support the panel’s de facto cre-
ation of this irrebuttable presumption to justify Hamdi’s indefinite
imprisonment. Cf. ante at 32. Those cases, upholding the wartime
destruction or seizure without compensation of property outside the
United States, including property owned by U.S. citizens, do broadly
note that "[i]n war, all residents of [an] enemy country are enemies."
Lamar v. Browne, 92 U.S. 187, 194 (1875). But no liberty rights of U.S.
citizens were at issue in any of those cases or their progeny. See, e.g.,
Juragua Iron Co. v. United States, 212 U.S. 297, 305-306 (1909);
Lamar, 92 U.S. at 194. Indeed, the Supreme Court has never held that
an American citizen becomes an "enemy" and can be deprived of his lib-
erty rights solely by virtue of residing in an enemy country during war-
time.
68                         HAMDI v. RUMSFELD
piled and collected these records. Producing them for judicial review,
ex parte and in camera if necessary, would not in any way hamper
the Executive’s ability to wage war. Indeed, the Executive has appar-
ently already made similar productions in other cases. See Padilla v.
Bush, 233 F. Supp. 2d 564, 608 (S.D.N.Y. 2002); United States v.
Lindh, 212 F. Supp. 2d 541 (E.D. Va. 2002). Such evidence might
suffice to substantiate the Executive’s designation.8

   But in all events, the Executive must offer more than hearsay to
support that designation; and so in answer to the question certified to
us — "[w]hether the Mobbs Declaration, standing alone, is sufficient
as a matter of law to allow a meaningful judicial review of Yasser
Esam Hamdi’s classification as an enemy combatant?" — the answer
must be, "No."

                                    III.

   In conclusion, I must note that I have no doubt that, in this time of
great challenge for our Nation, the Executive has acted in good faith
when designating Hamdi an enemy combatant. Under our Constitu-
tion, however, it is the responsibility of the courts to ensure that
American citizens are not deprived of liberty without due process of
law, regardless of the personal belief of any individual judge concern-
ing the integrity of the Executive. As the Framers well understood,
the Executive branch must be subjected to checks on its power if indi-
vidual liberties are to be preserved. See Duncan, 327 U.S. at 322-23;
see also United States v. Robel, 389 U.S. 258, 264 (1967).

   But one need not refer back to the time of the Framers to under-
stand that courts must be vigilant in guarding Constitutional free-
doms, perhaps never more so than in time of war. We must not forget
  8
   In Padilla, now certified for interlocutory appeal to the Second Cir-
cuit, the district court ruled that it would apply the "some evidence" stan-
dard suggested by the Executive, once Padilla — with the assistance of
counsel — "presents any facts he may wish to present to the court"
regarding his designation as an enemy combatant. Padilla, 233 F. Supp.
2d at 608, 610; Padilla v. Rumsfeld, 2003 WL 1858157 (S.D.N.Y. April
9, 2003) (granting government’s motion to certify orders in case for
interlocutory appeal).
                          HAMDI v. RUMSFELD                            69
the lesson of Korematsu, a case in which the Supreme Court sanc-
tioned the military internment of thousands of American citizens of
Japanese ancestry during World War II. See 323 U.S. at 219. In its
deference to an Executive report that, like the Mobbs declaration, was
filed by a member of the Executive associated with the military and
which purported to explain the Executive’s actions, the Court upheld
the Executive’s conviction of Korematsu for simply remaining in his
home, in violation of the military internment order. See id. at 215-16.

    Of course, history has long since rejected the Korematsu holding.
Indeed, Congress itself has specifically repudiated Korematsu, recog-
nizing that "a grave injustice was done to" those "of Japanese ancestry
by th[e] actions . . . carried out without adequate security reasons and
. . . motivated largely by racial prejudice, wartime hysteria, and a fail-
ure of political leadership." 50 App. U.S.C.A. § 1989a(a) (West
1990). But in truth, here, as in Korematsu, the Executive has failed
to proffer any real evidence to justify its action. When presented with
no basis for reviewing the Executive’s designation that an American
citizen is an enemy combatant, other than the assurance of a Defense
Department "advisor" that someone in the United States military
made this determination, a court must demand more. Cf. Korematsu,
323 U.S. at 245 (Jackson, J., dissenting) ("So the Court, having no
real evidence before it, has no choice but to accept General DeWitt’s
own unsworn, self-serving statement, untested by any cross-
examination.").

   The Executive’s treatment of Hamdi threatens the freedoms we all
cherish, but the panel’s opinion sustaining the Executive’s action con-
stitutes an even greater and "more subtle blow to liberty." Id. at 245-
46 (Jackson, J., dissenting). For although the incommunicado impris-
onment of Hamdi will hopefully terminate some day, the panel opin-
ion rationalizing this imprisonment will live on. As Justice Jackson
warned, when the Executive "overstep[s] the bounds of constitutional-
ity, . . . it is an incident," but when a court "review[s] and approve[s],
that passing incident becomes the doctrine." Id. at 246.

  Courts have no higher duty than protection of the individual free-
doms guaranteed by our Constitution. This is especially true in time
of war, when our carefully crafted system of checks and balances
must accommodate the vital needs of national security while guarding
70                         HAMDI v. RUMSFELD
the liberties the Constitution promises all citizens. See id. at 234
(Murphy, J., dissenting) ("Individuals must not be left impoverished
of their constitutional rights on a plea of military necessity that has
neither substance nor support."). I believe that our court has failed in
this case to carry out this most important responsibility. I would
require a greater showing from the Executive before I would permit
an American citizen, held in the United States, to be imprisoned
indefinitely, without ever being afforded the opportunity to appear in
court, contest the allegations against him, or consult with a lawyer.

  It is for all of these reasons that I respectfully dissent from the
court’s denial of rehearing en banc.9

  9
    Contrary to Judge Wilkinson’s suggestion in his concurrence, I do not
question that Articles I and II delegate decisions as to the conduct of war
and national defense to the Executive and Legislative branches of our
government, and that we owe deference to those decisions. But deference
to the political branches does not compel the Judiciary to abdicate its
own duty to protect the individual liberties guaranteed all citizens. My
disagreement with the panel decision is that Hamdi has not received the
meaningful judicial review to which the panel acknowledges he is enti-
tled. Such review is possible only if the Executive is required to substan-
tiate its contentions that Hamdi is an enemy combatant with more than
a declaration that the panel concedes is hearsay, inconsistent and incom-
plete. Even in the darkest days of World War II, after the devastating
attack on Pearl Harbor, the Supreme Court recognized a greater role for
the courts in safeguarding individual liberties than the panel now pro-
vides Hamdi. See, e.g., Quirin, 317 U.S. at 46. After all, "[i]mplicit in
the term ‘national defense’ is the notion of defending those values and
ideals which set the Nation apart." Robel, 389 U.S. at 264. I regret that
in the name of deference to the political branches’ preeminence in mat-
ters of war, the panel permits the subversion of the very liberties that
make defense of this Country worthwhile.
