Judicial Notebook

This spring, the U.S. Supreme Court will hear arguments in Hamdi v. Rumsfeld (No. 03-6696), a case that raises questions about the appropriate role of the courts in reviewing an executive branch decision to designate a person as an enemy combatant in military matters. The case stems from the post-9/11 U.S. detention of thousands of "enemy combatants" associated with terrorist cells.

One of them, Yaser Esam Hamdi, a U.S. citizen by birth, was detained briefly in Afghanistan and Guantanamo Bay, Cuba, before being transferred to his current detention facility at the Norfolk Naval Station Brig in Norfolk, Va.

The government detained Hamdi without charging him with criminal conduct and also barred contact with legal counsel. While these practices are a departure from constitutional criminal procedures, they are consistent with a Supreme Court precedent providing that certain persons captured during hostilities may be detained as enemy combatants pursuant to the laws of war and subsequently tried by military commissions rather than the federal courts (Ex parte Quirin, 1942).

The case for detention

One challenge to Hamdi's detention was that it violated the U.S. Constitution and federal law because he was not an enemy combatant. The government responded to this challenge by arguing that federal courts may not review military determinations that an individual is an enemy combatant.

A three-member panel of the Fourth Circuit Court of Appeals ruled in favor of the military (Hamdi v. Rumsfeld, 316 F.3d 450 [2003]). While acknowledging that detentions of U.S. citizens are subject to judicial review, the court held that the military's decision warranted substantial deference because "the judiciary is not at liberty to eviscerate detention interests" within the executive branch's power. The court ruled that the government had adequately supported its designation of Hamdi as an "enemy combatant" by producing a single hearsay affidavit of a government official putting Hamdi in that category.

The Fourth Circuit's decision was not without controversy. While many supported the decision, other judges in the Fourth Circuit disagreed, arguing that the court's deference "marks the first time in our history that a federal court has approved the elimination of protections afforded a citizen 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." (Hamdi v. Rumsfeld, 337 F.3d 335 [2003] [Motz, J. dissenting from denial of en banc review]).

The Supreme Court's upcoming resolution of the issue will likely put to rest an issue left open by earlier courts: While Ex parte Quirin established that enemy combatants can be detained indefinitely and tried by military tribunals without the benefit of criminal constitutional procedures, that case did not explicitly speak to whether the courts had a role in reviewing executive designations of individuals as enemy combatants.

Questions for psychology

The Hamdi case and other related cases that the Supreme Court will hear this spring (Rasul v. Bush [No. 03-334], Al Odah v. U.S. [No. 03-343] and Rumsfeld v. Padilla [No. 03-1027]) raise questions about the appropriate role of the judiciary in reviewing post-9/11 military decisions by the executive branch. The legal issues presented in these cases raise a number of important questions of interest to psychological scientists.

First, there is a large body of psychological research exploring decision-making under uncertainty and the assessment of risk, including the perception of "dreaded" and "unknown" threats and the roles of emotion and prejudice in threat perception (see generally "The Perception of Risk" [Earthscan Publications, 2000], by Paul Slovic, and "Judgment Under Uncertainty: Heuristics and Biases" [Cambridge University Press, 1982], edited by Daniel Kahneman et al.).

This research can inform the general question of how decision-makers determine whether and how to act based on a complex balancing of the nature of the risk, its perceived likelihood, and the advantages and disadvantages of the available courses of action. Importantly, the relative abilities of the executive branch and the judiciary to engage in this risk-assessment process can and should be compared.

Second, psychological theory about the role of accountability in decision-making may also inform this debate. A growing literature has examined whether and under what conditions accountability influences decision-making (see the 1999 review by Jennifer S. Lerner and Philip E. Tetlock in Psychological Bulletin [Vol. 125, No. 2]).

For example, research shows that accountability--when decision-makers expect to account for their decisions, perceive their reviewing audience as legitimate and expect a review to be focused on their decision-making processes--may result in improved decision-making. Further research might explore the role of rigorous judicial review in providing these expectations of accountability, focusing in particular on whether and how the courts can provide accountability in a way that improves the likelihood of quality executive decision-making.

Judicial Notebook is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).