Judicial Review of Administrative or Military Proceedings.

To the extent that constitutional rights are involved, due pro-cess of law imports a judicial review of the action of administrative or executive officers. This proposition is undisputed so far as questions of law are concerned, but the extent to which the courts should and will go in reviewing determinations of fact has been a highly controversial issue. In St. Joseph Stock Yards Co. v. United States,487 the Court held that, upon review of an order of the Secretary of Agriculture establishing maximum rates for services rendered by a stockyard company, due process required that the court exercise its independent judgment upon the facts to determine whether the rates were confiscatory.488 Subsequent cases sustaining rate orders of the Federal Power Commission have not dealt explicitly with this point.489 The Court has said simply that a person assailing such an order “carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences.”490

There has been a division on the Court with regard to what extent, if at all, proceedings before military tribunals should be reviewed by the courts for the purpose of determining compliance with the Due Process Clause. In In re Yamashita,491 the majority denied a petition for certiorari and petitions for writs of habeas corpus to review the conviction of a Japanese war criminal by a military commission sitting in the Philippine Islands. It held that, because the military commission, in admitting evidence to which objection had been made, had not violated any act of Congress, a treaty, or a military command defining its authority, its ruling on evidence and on the mode of conducting the proceedings were not reviewable by the courts. And, in Johnson v. Eisentrager,492 the Court overruled a lower court decision that, in reliance upon the dissenting opinion in Yamashita, had held that the Due Process Clause required that the legality of the conviction of enemy alien belligerents by military tribunals should be tested by the writ of habeas corpus.

Failure of the Executive Branch to provide for any type of proceeding for prisoners alleged to be “enemy combatants,” whether in a military tribunal or a federal court, was at issue in Hamdi v. Rumsfeld.493 During a military action in Afghanistan,494 a United States citizen, Yaser Hamdi, was taken prisoner. The Executive Branch argued that it had authority to hold such an “enemy combatant” while providing him with limited recourse to the federal courts. The Court agreed that the President was authorized to detain a United States citizen seized in Afghanistan.495 However, the Court ruled that the government may not detain the petitioner indefinitely for purposes of interrogation, but must give him the opportunity to offer evidence that he is not an enemy combatant. At a minimum, the petitioner must be given notice of the asserted factual basis for holding him, must be given a fair chance to rebut that evidence before a neutral decision-maker, and must be allowed to consult an attorney.496

Without dissent, in Hiatt v. Brown,497 the Court reversed the judgment of a lower court that had discharged a prisoner serving a sentence imposed by a court-martial because of errors that had deprived the prisoner of due process of law. The Court held that the court below had erred in extending its review, for the purpose of determining compliance with the Due Process Clause, to such matters as the propositions of law set forth in the staff judge advocate’s report, the sufficiency of the evidence to sustain conviction, the adequacy of the pre-trial investigation, and the competence of the law member and defense counsel. In summary, Justice Clark wrote: “In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision.”498 Similarly, in Burns v. Wilson,499 the Court denied a petition for the writ to review a conviction by a military tribunal on the Island of Guam in which the petitioners asserted that their imprisonment resulted from proceedings that violated their constitutional rights. Four Justices, with whom Justice Minton concurred, maintained that judicial review is limited to determining whether the military tribunal, or court-martial, had given fair consideration to each of petitioners’ allegations, and does not embrace an opportunity “to prove de novo” what petitioners had “failed to prove in the military courts.” According to Justice Minton, however, if the military court had jurisdiction, its action is not reviewable.

Footnotes

487
298 U.S. 38 (1936). back
488
298 U.S. at 51–54. Justices Brandeis, Stone, and Cardozo, although concurring in the result, took exception to this proposition. back
489
FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944); FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586 (1941). back
490
FPC v. Hope Natural Gas Co., 320 U.S. 591, 602 (1944). back
491
327 U.S. 1 (1946). back
492
339 U.S. 763 (1950). Justices Douglas, Black, and Burton dissented. back
493
542 U.S. 507 (2004). back
494
In response to the September 11, 2001 terrorist attacks on New York City’s World Trade Center and the Pentagon in Washington, D.C., Congress passed the “Authorization for Use of Military Force,” Pub. L. 107–40, which served as the basis for military action against the Taliban government of Afghanistan and the al Qaeda forces that were harbored there. back
495
There was no opinion of the Court in Hamdi. Rather, a plurality opinion, authored by Justice O’Connor (joined by Chief Justice Rehnquist, Justice Kennedy and Justice Breyer) relied on the “Authorization for Use of Military Force” passed by Congress to support the detention. Justice Thomas also found that the Executive Branch had the power to detain the petitioner, but he based his conclusion on Article II of the Constitution. back
496
542 U.S. at 533, 539 (2004). Although only a plurality of the Court voted for both continued detention of the petitioner and for providing these due process rights, four other Justices would have extended due process at least this far. Justice Souter, joined by Justice Ginsberg, while rejecting the argument that Congress had authorized such detention, agreed with the plurality as to the requirement of providing minimal due process. Id. at 553 (concurring in part, dissenting in part, and concurring in judgement). Justice Scalia, joined by Justice Stevens, denied that such congressional authorization was possible without a suspension of the writ of habeas corpus, and thus would have required a criminal prosecution of the petitioner. Id. at 554 (dissenting). back
497
339 U.S. 103 (1950). back
498
339 U.S. at 111. back
499
346 U.S. 137 (1953). back