Opinion of Souter, J.
																YASER ESAM HAMDI 
																and ESAM FOUAD 
																HAMDI, as
																next friend of 
																YASER ESAM HAMDI, 
																PETITION-
																ERS v. 
																DONALD H. 
																RUMSFELD, 
																SECRETARY
																OF DEFENSE, 
																et al.
																ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
[June 28, 2004]
Justice Souter, with whom Justice Ginsburg joins, concurring in part, dissenting in part, and concurring in the judgment.
According to Yaser Hamdi’s petition for writ of habeas corpus, brought on his behalf by his father, the Government of the United States is detaining him, an American citizen on American soil, with the explanation that he was seized on the field of battle in Afghanistan, having been on the enemy side. It is undisputed that the Government has not charged him with espionage, treason, or any other crime under domestic law. It is likewise undisputed that for one year and nine months, on the basis of an Executive designation of Hamdi as an “enemy combatant,” the Government denied him the right to send or receive any communication beyond the prison where he was held and, in particular, denied him access to counsel to represent him.1 The Government asserts a right to hold Hamdi under these conditions indefinitely, that is, until the Government determines that the United States is no longer threatened by the terrorism exemplified in the attacks of September 11, 2001.
																
																    In these 
																proceedings on 
																Hamdi’s 
																petition, he 
																seeks to 
																challenge the 
																facts claimed by 
																the Government 
																as the basis for 
																holding him as 
																an enemy 
																combatant. And 
																in this Court he 
																presses the 
																distinct 
																argument that 
																the Government’s 
																claim, even if 
																true, would not 
																implicate any 
																authority for 
																holding him that 
																would satisfy
																
																18 U.S.C. § 4001(a) 
																(Non-Detention 
																Act), which bars 
																imprisonment
																or detention of 
																a citizen 
																“except pursuant 
																to an Act of 
																Congress.”
The Government responds that Hamdi’s incommunicado imprisonment as an enemy combatant seized on the field of battle falls within the President’s power as Commander in Chief under the laws and usages of war, and is in any event authorized by two statutes. Accordingly, the Government contends that Hamdi has no basis for any challenge by petition for habeas except to his own status as an enemy combatant; and even that challenge may go no further than to enquire whether “some evidence” supports Hamdi’s designation, see Brief for Respondents 34—36; if there is “some evidence,” Hamdi should remain locked up at the discretion of the Executive. At the argument of this case, in fact, the Government went further and suggested that as long as a prisoner could challenge his enemy combatant designation when responding to interrogation during incommunicado detention he was accorded sufficient process to support his designation as an enemy combatant. See Tr. of Oral Arg. 40; id., at 42 (“[H]e has an opportunity to explain it in his own words” “[d]uring interrogation”). Since on either view judicial enquiry so limited would be virtually worthless as a way to contest detention, the Government’s concession of jurisdiction to hear Hamdi’s habeas claim is more theoretical than practical, leaving the assertion of Executive authority close to unconditional.
The plurality rejects any such limit on the exercise of habeas jurisdiction and so far I agree with its opinion. The plurality does, however, accept the Government’s position that if Hamdi’s designation as an enemy combatant is correct, his detention (at least as to some period) is authorized by an Act of Congress as required by §4001(a), that is, by the Authorization for Use of Military Force, 115 Stat. 224 (hereinafter Force Resolution). Ante, at 9—14. Here, I disagree and respectfully dissent. The Government has failed to demonstrate that the Force Resolution authorizes the detention complained of here even on the facts the Government claims. If the Government raises nothing further than the record now shows, the Non-Detention Act entitles Hamdi to be released.
I
The Government’s first response to Hamdi’s claim that holding him violates §4001(a), prohibiting detention of citizens “except pursuant to an Act of Congress,” is that the statute does not even apply to military wartime detentions, being beyond the sphere of domestic criminal law. Next, the Government says that even if that statute does apply, two Acts of Congress provide the authority §4001(a) demands: a general authorization to the Department of Defense to pay for detaining “prisoners of war” and “similar” persons, 10 U.S.C. § 956(5), and the Force Resolution, passed after the attacks of 2001. At the same time, the Government argues that in detaining Hamdi in the manner described, the President is in any event acting as Commander in Chief under Article II of the Constitution, which brings with it the right to invoke authority under the accepted customary rules for waging war. On the record in front of us, the Government has not made out a case on any theory.
II
The threshold issue is how broadly or narrowly to read the Non-Detention Act, the tone of which is severe: “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Should the severity of the Act be relieved when the Government’s stated factual justification for incommunicado detention is a war on terrorism, so that the Government may be said to act “pursuant” to congressional terms that fall short of explicit authority to imprison individuals? With one possible though important qualification, see infra, at 10—11, the answer has to be no. For a number of reasons, the prohibition within §4001(a) has to be read broadly to accord the statute a long reach and to impose a burden of justification on the Government.
First, the circumstances in which the Act was adopted point the way to this interpretation. The provision superseded a cold-war statute, the Emergency Detention Act of 1950 (formerly 50 U.S.C. § 811 et seq. (1970 ed.)), which had authorized the Attorney General, in time of emergency, to detain anyone reasonably thought likely to engage in espionage or sabotage. That statute was repealed in 1971 out of fear that it could authorize a repetition of the World War II internment of citizens of Japanese ancestry; Congress meant to preclude another episode like the one described in Korematsu v. United States, 323 U.S. 214 (1944). See H. R. Rep. No. 92—116, pp. 2, 4—5 (1971). While Congress might simply have struck the 1950 statute, in considering the repealer the point was made that the existing statute provided some express procedural protection, without which the Executive would seem to be subject to no statutory limits protecting individual liberty. See id., at 5 (mere repeal “might leave citizens subject to arbitrary executive action, with no clear demarcation of the limits of executive authority”); 117 Cong. Rec. 31544 (1971) (Emergency Detention Act “remains as the only existing barrier against the future exercise of executive power which resulted in” the Japanese internment); cf. id., at 31548 (in the absence of further procedural provisions, even §4001(a) “will virtually leave us stripped naked against the great power … which the President has”). It was in these circumstances that a proposed limit on Executive action was expanded to the inclusive scope of §4001(a) as enacted.
The fact that Congress intended to guard against a repetition of the World War II internments when it repealed the 1950 statute and gave us §4001(a) provides a powerful reason to think that §4001(a) was meant to require clear congressional authorization before any citizen can be placed in a cell. It is not merely that the legislative history shows that §4001(a) was thought necessary in anticipation of times just like the present, in which the safety of the country is threatened. To appreciate what is most significant, one must only recall that the internments of the 1940’s were accomplished by Executive action. Although an Act of Congress ratified and confirmed an Executive order authorizing the military to exclude individuals from defined areas and to accommodate those it might remove, see Ex parte Endo, 323 U.S. 283, 285—288 (1944), the statute said nothing whatever about the detention of those who might be removed, id., at 300—301; internment camps were creatures of the Executive, and confinement in them rested on assertion of Executive authority, see id., at 287—293. When, therefore, Congress repealed the 1950 Act and adopted §4001(a) for the purpose of avoiding another Korematsu, it intended to preclude reliance on vague congressional authority (for example, providing “accommodations” for those subject to removal) as authority for detention or imprisonment at the discretion of the Executive (maintaining detention camps of American citizens, for example). In requiring that any Executive detention be “pursuant to an Act of Congress,” then, Congress necessarily meant to require a congressional enactment that clearly authorized detention or imprisonment.
Second, when Congress passed §4001(a) it was acting in light of an interpretive regime that subjected enactments limiting liberty in wartime to the requirement of a clear statement and it presumably intended §4001(a) to be read accordingly. This need for clarity was unmistakably expressed in Ex parte Endo, supra, decided the same day as Korematsu. Endo began with a petition for habeas corpus by an interned citizen claiming to be loyal and law-abiding and thus “unlawfully detained.” 323 U.S., at 294. The petitioner was held entitled to habeas relief in an opinion that set out this principle for scrutinizing wartime statutes in derogation of customary liberty:
“In interpreting a wartime measure we must assume that [its] purpose was to allow for the greatest possible accommodation between … liberties and the exigencies of war. We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used.” Id., at 300.
Congress’s understanding of the need for clear authority before citizens are kept detained is itself therefore clear, and §4001(a) must be read to have teeth in its demand for congressional authorization.
Finally, even if history had spared us the cautionary example of the internments in World War II, even if there had been no Korematsu, and Endo had set out no principle of statutory interpretation, there would be a compelling reason to read §4001(a) to demand manifest authority to detain before detention is authorized. The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or some condition in between) is not well entrusted to the Executive Branch of Government, whose particular responsibility is to maintain security. For reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation’s entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory; the responsibility for security will naturally amplify the claim that security legitimately raises. A reasonable balance is more likely to be reached on the judgment of a different branch, just as Madison said in remarking that “the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other–that the private interest of every individual may be a sentinel over the public rights.” The Federalist No. 51, p. 349 (J. Cooke ed. 1961). Hence the need for an assessment by Congress before citizens are subject to lockup, and likewise the need for a clearly expressed congressional resolution of the competing claims.
III
Under this principle of reading §4001(a) robustly to require a clear statement of authorization to detain, none of the Government’s arguments suffices to justify Hamdi’s detention.
A
																
																    First, there 
																is the argument 
																that §4001(a) 
																does not even 
																apply to wartime 
																military 
																detentions, a 
																position resting 
																on the placement 
																of §4001(a) in 
																Title 18 of the 
																United States 
																Code, the 
																gathering of 
																federal criminal 
																law. The text of 
																the statute does 
																not, however, so 
																limit its reach, 
																and the 
																legislative 
																history of the 
																provision shows 
																its placement in 
																Title 18 was not 
																meant to render 
																the statute more 
																restricted than 
																its terms. The 
																draft of what is 
																now §4001(a) as 
																contained in the 
																original bill 
																prohibited only 
																imprisonment 
																unauthorized by 
																Title 18. See 
																H. R. Rep. No. 
																92—
																116, at 4. In 
																response to the 
																Department of 
																Justice’s 
																objection that 
																the original 
																draft seemed to 
																assume wrongly 
																that all 
																provisions for 
																the detention of 
																convicted 
																persons would be 
																contained in 
																Title 18, the 
																provision was 
																amended by 
																replacing a 
																reference to 
																that title with 
																the reference to 
																an “Act of 
																Congress.” 
																Id., at 3. 
																The Committee on 
																the Judiciary, 
																discussing this 
																change, stated 
																that “[limiting] 
																detention of 
																citizens … to 
																situations in 
																which … an Act 
																of Congres[s] 
																exists” would 
																“assure that no 
																detention camps 
																can be 
																established 
																without at least 
																the acquiescence 
																of the 
																Congress.” 
																Id., at 5. 
																See also 
																supra, 
																at 4—6. This 
																understanding, 
																that the amended 
																bill would sweep 
																beyond 
																imprisonment for 
																crime and apply 
																to Executive 
																detention in 
																furtherance of 
																wartime 
																security, was 
																emphasized in an 
																extended debate. 
																Representative 
																Ichord, chairman 
																of the House 
																Internal 
																Security 
																Committee and an 
																opponent of the 
																bill, feared 
																that the 
																redrafted 
																statute would 
																“deprive the 
																President of his 
																emergency powers 
																and his most 
																effective means 
																of coping with 
																sabotage and 
																espionage agents 
																in war-related 
																crises.” 117 
																Cong. Rec., at 
																31542. 
																Representative 
																Railsback, the 
																bill’s sponsor, 
																spoke of the 
																bill in absolute 
																terms: “[I]n 
																order to 
																prohibit 
																arbitrary 
																executive 
																action, [the 
																bill] assures 
																that no 
																detention of 
																citizens can be 
																undertaken by 
																the Executive 
																without the 
																prior consent of 
																Congress.” 
																Id., at 
																31551. This 
																legislative 
																history 
																indicates that 
																Congress was 
																aware that 
																§4001(a) would 
																limit the 
																Executive’s 
																power to detain 
																citizens in 
																wartime to 
																protect national 
																security, and it 
																is fair to say 
																that the 
																prohibition was 
																thus intended to 
																extend not only 
																to the exercise 
																of power to 
																vindicate the 
																interests 
																underlying 
																domestic 
																criminal law, 
																but to 
																statutorily 
																unauthorized 
																detention by the 
																Executive for 
																reasons of 
																security in 
																wartime, just as 
																Hamdi claims.2
B
Next, there is the Government’s claim, accepted by the Court, that the terms of the Force Resolution are adequate to authorize detention of an enemy combatant under the circumstances described,3 a claim the Government fails to support sufficiently to satisfy §4001(a) as read to require a clear statement of authority to detain. Since the Force Resolution was adopted one week after the attacks of September 11, 2001, it naturally speaks with some generality, but its focus is clear, and that is on the use of military power. It is fairly read to authorize the use of armies and weapons, whether against other armies or individual terrorists. But, like the statute discussed in Endo, it never so much as uses the word detention, and there is no reason to think Congress might have perceived any need to augment Executive power to deal with dangerous citizens within the United States, given the well-stocked statutory arsenal of defined criminal offenses covering the gamut of actions that a citizen sympathetic to terrorists might commit. See, e.g., 18 U.S.C. § 2339A (material support for various terrorist acts); §2339B (material support to a foreign terrorist organization); §2332a (use of a weapon of mass destruction, including conspiracy and attempt); §2332b(a)(1) (acts of terrorism “transcending national boundaries,” including threats, conspiracy, and attempt); 18 U.S.C. A. §2339C (Supp. 2004) (financing of certain terrorist acts); see also 18 U.S.C. § 3142(e) (pretrial detention). See generally Brief for Janet Reno et al. as Amici Curiae in Rumsfeld v. Padilla, O. T. 2003, No. 03—1027, pp. 14—19, and n. 17 (listing the tools available to the Executive to fight terrorism even without the power the Government claims here); Brief for Louis Henkin et al. as Amici Curiae in Rumsfeld v. Padilla, O. T. 2003, No. 03—1027, p. 23, n. 27.4
C
Even so, there is one argument for treating the Force Resolution as sufficiently clear to authorize detention of a citizen consistently with §4001(a). Assuming the argument to be sound, however, the Government is in no position to claim its advantage.
																
																    Because the 
																Force Resolution 
																authorizes the 
																use of military 
																force in acts of 
																war by the 
																United States, 
																the argument 
																goes, it is 
																reasonably clear 
																that the 
																military and its 
																Commander in 
																Chief are 
																authorized to 
																deal with enemy 
																belligerents 
																according to the 
																treaties and 
																customs known 
																collectively as 
																the laws of war. 
																Brief for 
																Respondents 20—
																22; see ante, 
																at 9—14 
																(accepting this 
																argument). 
																Accordingly, the 
																United States 
																may detain 
																captured 
																enemies, and 
																Ex parte 
																Quirin, 
																
																317 U.S. 1 
																(1942), may 
																perhaps be 
																claimed for the 
																proposition that 
																the American 
																citizenship of 
																such a captive 
																does not as such 
																limit the 
																Government’s 
																power to deal 
																with him under 
																the usages of 
																war. Id., 
																at 31, 37—38. 
																Thus, the 
																Government here 
																repeatedly 
																argues that 
																Hamdi’s 
																detention 
																amounts to 
																nothing more 
																than customary 
																detention of a 
																captive taken on 
																the field of 
																battle: if the 
																usages of war 
																are fairly 
																authorized by 
																the Force 
																Resolution, 
																Hamdi’s 
																detention is 
																authorized for 
																purposes of 
																§4001(a).
																
																    There is no 
																need, however, 
																to address the 
																merits of such 
																an argument in 
																all possible 
																circumstances. 
																For now it is 
																enough to 
																recognize that 
																the Government’s 
																stated legal 
																position in its 
																campaign against 
																the Taliban 
																(among whom 
																Hamdi was 
																allegedly 
																captured) is 
																apparently at 
																odds with
																its claim here 
																to be acting in 
																accordance with 
																custo-
																mary law of war 
																and hence to be 
																within the terms 
																of
																the Force 
																Resolution in 
																its detention of 
																Hamdi. In a 
																statement of its 
																legal position 
																cited in its 
																brief, the
																Government says 
																that “the Geneva 
																Convention 
																applies
																to the Taliban 
																detainees.” 
																Office of the 
																White House 
																Press Secretary, 
																Fact Sheet, 
																Status of 
																Detainees at 
																Guantanamo (Feb. 
																7, 2002), 
																www.whitehouse.gov/news/releases/2002/
																02/20020207—13.h 
																tml (as visited 
																June 18, 2004, 
																and available in 
																Clerk of Court’s 
																case file) 
																(hereinafter 
																White House 
																Press Release) 
																(cited in Brief 
																for Respondents 
																24, n. 9). Hamdi 
																presumably is 
																such a detainee, 
																since according 
																to the 
																Government’s own 
																account, he was 
																taken bearing 
																arms on the 
																Taliban side of 
																a field of 
																battle in 
																Afghanistan. He 
																would therefore 
																seem to qualify 
																for treatment as 
																a prisoner of 
																war under the 
																Third Geneva 
																Convention, to 
																which the United 
																States is a 
																party. Article 4 
																of the Geneva 
																Convention (III) 
																Relative to the 
																Treatment of 
																Prisoners of 
																War, Aug. 12, 
																1949, [1955] 6 
																U.S. T. 3316, 
																3320, 
																T. I. A. S. No. 
																3364.
By holding him incommunicado, however, the Government obviously has not been treating him as a prisoner of war, and in fact the Government claims that no Taliban detainee is entitled to prisoner of war status. See Brief for Respondents 24; White House Press Release. This treatment appears to be a violation of the Geneva Convention provision that even in cases of doubt, captives are entitled to be treated as prisoners of war “until such time as their status has been determined by a competent tribunal.” Art. 5, 6 U.S. T., at 3324. The Government answers that the President’s determination that Taliban detainees do not qualify as prisoners of war is conclusive as to Hamdi’s status and removes any doubt that would trigger application of the Convention’s tribunal requirement. See Brief for Respondents 24. But reliance on this categorical pronouncement to settle doubt is apparently at odds with the military regulation, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Reg. 190—8, §§1—5, 1—6 (1997), adopted to implement the Geneva Convention, and setting out a detailed procedure for a military tribunal to determine an individual’s status. See, e.g., id., §1—6 (“A competent tribunal shall be composed of three commissioned officers”; a “written record shall be made of proceedings”; “[p]roceedings shall be open” with certain exceptions; “[p]ersons whose status is to be determined shall be advised of their rights at the beginning of their hearings,” “allowed to attend all open sessions,” “allowed to call witnesses if reasonably available, and to question those witnesses called by the Tribunal,” and to “have a right to testify”; and a tribunal shall determine status by a “[p]reponderance of evidence”). One of the types of doubt these tribunals are meant to settle is whether a given individual may be, as Hamdi says he is, an “[i]nnocent civilian who should be immediately returned to his home or released.” Id., 1—6e(10)(c). The regulation, jointly promulgated by the Headquarters of the Departments of the Army, Navy, Air Force, and Marine Corps, provides that “[p]ersons who have been determined by a competent tribunal not to be entitled to prisoner of war status may not be executed, imprisoned, or otherwise penalized without further proceedings to determine what acts they have committed and what penalty should be imposed.” Id., §1—6g. The regulation also incorporates the Geneva Convention’s presumption that in cases of doubt, “persons shall enjoy the protection of the … Convention until such time as their status has been determined by a competent tribunal.” Id., §1—6a. Thus, there is reason to question whether the United States is acting in accordance with the laws of war it claims as authority.
Whether, or to what degree, the Government is in fact violating the Geneva Convention and is thus acting outside the customary usages of war are not matters I can resolve at this point. What I can say, though, is that the Government has not made out its claim that in detaining Hamdi in the manner described, it is acting in accord with the laws of war authorized to be applied against citizens by the Force Resolution. I conclude accordingly that the Government has failed to support the position that the Force Resolution authorizes the described detention of Hamdi for purposes of §4001(a).
																
																    It is worth 
																adding a further 
																reason for 
																requiring the 
																Government to 
																bear the burden 
																of clearly 
																justifying its 
																claim to be 
																exercising 
																recognized war 
																powers before 
																declaring 
																§4001(a) 
																satisfied. 
																Thirty-eight 
																days after 
																adopting the 
																Force 
																Resolution, 
																Congress passed 
																the statute 
																entitled Uniting 
																and 
																Strengthening 
																America by 
																Providing 
																Appropriate 
																Tools Required 
																to Intercept and 
																Obstruct 
																Terrorism Act of 
																2001 (USA 
																PATRIOT ACT), 
																115 Stat. 272; 
																that Act 
																authorized the 
																detention of 
																alien terrorists 
																for no more than 
																seven days in 
																the absence of 
																criminal charges 
																or deportation 
																proceedings,
																
																8 U.S.C. § 1226a(a)(5) 
																(2000 ed., Supp. 
																I). It is very 
																difficult to 
																believe that the 
																same Congress 
																that carefully 
																circumscribed 
																Executive power 
																over alien 
																terrorists on 
																home soil would 
																not have meant 
																to require the 
																Government to 
																justify clearly
																its detention of 
																an American 
																citizen held on 
																home soil 
																incommunicado.
D
Since the Government has given no reason either to deflect the application of §4001(a) or to hold it to be satisfied, I need to go no further; the Government hints of a constitutional challenge to the statute, but it presents none here. I will, however, stray across the line between statutory and constitutional territory just far enough to note the weakness of the Government’s mixed claim of inherent, extrastatutory authority under a combination of Article II of the Constitution and the usages of war. It is in fact in this connection that the Government developed its argument that the exercise of war powers justifies the detention, and what I have just said about its inadequacy applies here as well. Beyond that, it is instructive to recall Justice Jackson’s observation that the President is not Commander in Chief of the country, only of the military. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 643—644 (1952) (concurring opinion); see also id., at 637—638 (Presidential authority is “at its lowest ebb” where the President acts contrary to congressional will).
There may be room for one qualification to Justice Jackson’s statement, however: in a moment of genuine emergency, when the Government must act with no time for deliberation, the Executive may be able to detain a citizen if there is reason to fear he is an imminent threat to the safety of the Nation and its people (though I doubt there is any want of statutory authority, see supra, at 9—10). This case, however, does not present that question, because an emergency power of necessity must at least be limited by the emergency; Hamdi has been locked up for over two years. Cf. Ex parte Milligan, 4 Wall. 2, 127 (1866) (martial law justified only by “actual and present” necessity as in a genuine invasion that closes civilian courts).
Whether insisting on the careful scrutiny of emergency claims or on a vigorous reading of §4001(a), we are heirs to a tradition given voice 800 years ago by Magna Carta, which, on the barons’ insistence, confined executive power by “the law of the land.”
IV
																
Since this disposition does not command a majority of the Court, however, the need to give practical effect to the conclusions of eight members of the Court rejecting the Government’s position calls for me to join with the plurality in ordering remand on terms closest to those I would impose. See Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result). Although I think litigation of Hamdi’s status as an enemy combatant is unnecessary, the terms of the plurality’s remand will allow Hamdi to offer evidence that he is not an enemy combatant, and he should at the least have the benefit of that opportunity.
It should go without saying that in joining with the plurality to produce a judgment, I do not adopt the plurality’s resolution of constitutional issues that I would not reach. It is not that I could disagree with the plurality’s determinations (given the plurality’s view of the Force Resolution) that someone in Hamdi’s position is entitled at a minimum to notice of the Government’s claimed factual basis for holding him, and to a fair chance to rebut it before a neutral decision maker, see ante, at 26; nor, of course, could I disagree with the plurality’s affirmation of Hamdi’s right to counsel, see ante, at 32—33. On the other hand, I do not mean to imply agreement that the Government could claim an evidentiary presumption casting the burden of rebuttal on Hamdi, see ante, at 27, or that an opportunity to litigate before a military tribunal might obviate or truncate enquiry by a court on habeas, see ante, at 31—32.
Subject to these qualifications, I join with the plurality in a judgment of the Court vacating the Fourth Circuit’s judgment and remanding the case.
Notes
1. The Government has since February 2004 permitted Hamdi to consult with counsel as a matter of policy, but does not concede that it has an obligation to allow this. Brief for Respondents 9, 39—46.
2. Nor is it possible to distinguish between civilian and military authority to detain based on the congressional object of avoiding another Korematsu v. United States, 323 U.S. 214 (1944). See Brief for Respondents 21 (arguing that military detentions are exempt). Although a civilian agency authorized by Executive order ran the detention camps, the relocation and detention of American citizens was ordered by the military under authority of the President as Commander in Chief. See Ex parte Endo, 323 U.S. 283, 285—288 (1944). The World War II internment was thus ordered under the same Presidential power invoked here and the intent to bar a repetition goes to the action taken and authority claimed here.
3. As noted, supra, at 3, the Government argues that a required Act of Congress is to be found in a statutory authorization to spend money appropriated for the care of prisoners of war and of other, similar prisoners, 10 U.S.C. § 956(5). It is enough to say that this statute is an authorization to spend money if there are prisoners, not an authorization to imprison anyone to provide the occasion for spending money.
4. Even a brief examination of the reported cases in which the Government has chosen to proceed criminally against those who aided the Taliban shows the Government has found no shortage of offenses to allege. See United States v. Lindh, 212 F. Supp. 2d 541, 547 (ED Va. 2002); United States v. Khan, 309 F. Supp. 2d 789, 796 (ED Va. 2004).