Full opinion text
ORDER Appellees filed a petition for rehearing and suggestion for rehearing en banc. The panel voted to deny panel rehearing. A member of the Court requested a poll on the petition for rehearing 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.
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 ease. 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 customs of war. There is nothing illegal about that. The option to detain those captured in a zone of armed combat for the duration of hostilities 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 circumstances surrounding foreign battlefield seizures to extensive in-court review. The answer to this is now — and always has been — yes. In giving prisoners of war the right to litigate their detentions in Ameri-ean 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 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 judgments 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, 2 Black 635, 17 L.Ed. 459 (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 Afghanistan.” See Petition for Habeas Corpus, p. 2. In their traverse, petitioners 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 Patrick J. Leahy, stated that they were “not challenging the battlefield determination, decision to detain individuals in the theater of combat.” See Letter to Senator Patrick J. Leahy, August 5, 2002. Even the district court, while ordering a more intrusive examination of the circumstances of Hamdi’s capture, noted that “[petitioners 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 challenge.” See Order of August 16, 2002, p. 8. Our review of the petition was undertaken in light of this undisputed fact. 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 incompleteness or inconsistency. Post at 368. While the dissent appears to acknowledgé 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 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 dissenting colleague also laments the absence of “first-hand knowledge of Hamdi’s conduct or status in Afghanistan.” See post at 373. The dissent is plainly unwilling to trust the judgment of those actually fighting 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 witnesses? 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 operations. 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 battlefield detentions in federal court. The prospect of such extended litigation 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 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 allowing 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 369-371. My colleague’s overreading of these decisions misses their fundamental 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, 63 S.Ct. 2, 87 L.Ed. 3 (1942). Likewise, Johnson v. Eisentrager emphasized that “[ejxecutive 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, 70 S.Ct. 936, 94 L.Ed. 1255 (1950); see also id. at 778-79, 70 S.Ct. 936 (detailing the crippling 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 judicial review merely because they have made a wrong decision on disputed facts.” 327 U.S. 1, 8, 66 S.Ct. 340, 90 L.Ed. 499 (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 supervision would nominally be confined.” Ludecke v. Watkins, 335 U.S. 160, 172, 68 S.Ct. 1429, 92 L.Ed. 1881 (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 mistakes could be made, but that close judicial review was nonetheless 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. Rumsfeld is to compare apples and oranges. Moreover, the rechar-acterizations 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 battlefield 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 support in the opinion’s text itself. Finally, although both the panel opinion and the dissent have noted the evidentia-ry 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. To go further, however, would be folly. It is precisely at the point of armed combat abroad that the government’s detention interests in gathering vital intelligence, in preventing detainees from rejoining the enemy and in stemming the diversion of military 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 government 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. . 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 hostilities was even justiciable. Hamdi v. Rumsfeld, 316 F.3d at 476 (quoting Ludecke v. Watkins, 335 U.S. 160, 169, 68 S.Ct. 1429, 92 L.Ed. 1881 (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, 68 S.Ct. 1429; The Three Friends, 166 U.S. 1, 63, 17 S.Ct. 495, 41 L.Ed. 897 (1897); The Prize Cases, 67 U.S. 635, 670, 2 Black 635, 17 L.Ed. 459 (1862). . The above submissions were repeatedly reinforced by Hamdi's counsel in open court. See, e.g., "Hamdi[,] as far as I know, is the only [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 Ham-di's father as next friend is incapable of making representations on Hamdi’s behalf. Post at 371. But the cases my colleague cites in no way involved the constitutional principles implicated by a foreign battlefield capture. See White v. Miller, 158 U.S. 128, 15 S.Ct. 788, 39 L.Ed. 921 (1895); Kingsbury v. Buckner, 134 U.S. 650, 10 S.Ct. 638, 33 L.Ed. 1047 (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 371 n.l, the dissent again makes clear that nothing less than a full judicial exploration of the circumstances of petitioner’s capture will suffice. . 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 combatant.” Post at 358. 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 367. In all events, the panel had before it the straightforward situation where petitioners' filings repeatedly corroborated the government's assertions that the locus of Ham-di's capture was a zone of active combat operations abroad. Unsurprisingly, the panel addressed the case on the basis of what was before it.
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. 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 petition, 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 unpersuasive, because of its exclusive reliance upon a mistaken characterization 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 characterize all the circumstances of Hamdi’s seizure as being undisputed. Rather, it characterizes one circumstance of Hamdi’s seizure as undisputed — 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 bearing 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. As to this more narrow point of disagreement, Judge Luttig correctly 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 representation filed or otherwise made by the petitioner that supports the observation, unremarkable when made, that Ham-di 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 dispute. As Judge Wilkinson has pointed out, the petition alleges that “[w]hen seized by the United States Government, Mr. Hamdi resided in Afghanistan.” J.A. 9. Were this the only allegation made, I suppose I could speculate about whether Hamdi had traveled from his “residence] 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 allegation 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 various factions of the Northern Alliance. 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. It goes on to allege that “[o]n or about January 11, 2002, the United States military began transporting prisoners captured in Aghanistan to Camp X-Ray at the United States Naval Base in Guantanamo Bay, Cuba,” and that on or about that same date, “the United States military transferred Yaser Esam. Hamdi to Camp X-Ray, Guantanamo Bay.” J.A. 11. When we authored the panel opinion, I did not consider these petition 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 Aghanistan 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 Aghanistan to fight us or our allies and, 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 incomplete 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 government’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 imprisonment 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. I do not see how the petitioner could be any clearer. He acknowledged that “According 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. 69, and complained that Hamdi was being punished by his “isolation] from others similarly situated in Afghanistan and Guantanamo Bay, Cuba.” J.A. 71. 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 Ma-zar-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 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. 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 “gratuitously 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 combatant. Even in his petition for rehearing and rehearing en banc, Esam Hamdi did not assert that Yaser was somewhere other than in Afghanistan when seized; on the contrary, the petition affirmatively acknowledges 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 country 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 ” to Guantanamo Bay — -are wrong and do not apply to Ham-di’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 counsel in support of the petition. Because the government moved to dismiss 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 combatant, 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 justification 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 concession 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 disbelieve 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 implication from its allegations, or by virtue of the petitioner’s representations 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. 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 “attempted] 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.” In a series of charges, Judge Lut-tig complains that Judge Wilkinson’s concurrence “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 support of the court’s conclusion that the location of seizure has been conceded, [including] Petitioner’s Traverse and Response to Respondent’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 failure 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 challenged 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 Luttig’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 published 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 contained within a joint appendix, nor every source directly relied upon in arguments. Indeed, there is rarely, if ever, a need to clutter an opinion 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 petitioner’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. 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, 29 S.Ct. 385, 53 L.Ed. 520 (1909).“[U]nder the recognized 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, 23 L.Ed. 650 (1875); Young v. United States, 97 U.S. 39, 60, 24 L.Ed. 992 (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, significant consequences necessarily attached to Hamdi’s presence in Afghanistan; his individual rights stood in tension with the Executive’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. Second, Judge Motz and Judge Luttig’s collective fear that our recognition of this time-honored principle might result in innocent journalists 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 citizen 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 me 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.” Judge Luttig also points to “[t]he embedded journalist or even the unwitting tourist” who “could be seized and detained in a foreign combat zone.” And, he too claims that such a likelihood would be “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.” 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 contemplates 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 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 business 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 Ham-di’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 indefinitely, 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 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 “believefs]” he would adopt at most a “some evidence” standard as the appropriate level of deference due and “would likely conclude, as argued by the United States, that the facts recited in [the Mobbs’ Declaration] are sufficient” to satisfy 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 sufficiency of the government’s response within the context of Hamdi’s capture in Afghanistan. Thus, Judge Luttig charges, by “refusing] to rest decision on the proffer made by the President of the United States” and instead “resting] 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 classified 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 holding is readily apparent. The language quoted by Judge Luttig from the 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: [Bjecause Hamdi was indisputably seized in an active combat zone abroad, we will not require the government to fill what the district court regarded as gaps in the Mobbs affidavit. 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 consistent 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. 316 F.3d at 473 (emphasis added) (citations omitted). Obviously, we did not hold that Hamdi’s concession of seizure in a foreign combat zone rendered 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 Declaration 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 government voluntarily opted to provide, under oath, a level of information 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 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 government, but it has lost nothing. Even if we assume that the government 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 provided, we did not hold that extended judicial review of the Executive’s determination that one is an enemy combatant would become appropriate merely because a dispute existed as to the place of capture. 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 “deci-sional 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 necessary to resolve the delicate balance of constitutional interests before us. See Poe v. Ullman, 367 U.S. 497, 503, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (“The best teaching of this Court’s experience admonishes us not to entertain constitutional questions in advance of strictest necessity”) (quoting Parker v. County of Los Angeles, 338 U.S. 327, 333, 70 S.Ct. 161, 94 L.Ed. 144 (1949)); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (“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, 5 S.Ct. 352, 28 L.Ed. 899 (1885)); id. (“The Court will not ‘formulate a rule of constitutional 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, 25 S.Ct. 243, 49 L.Ed. 482 (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 presence 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 significance 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 challenge a battlefield seizure in Afghanistan, but only Ham-di’s current detention in the United States. This ease 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 Ham-di’s classification as an enemy combatant. We held that the Mobbs Declaration provided by the government in response to the habeas petition was sufficient to uphold Hamdi’s detention as an enemy combatant under the President’s wartime powers. We have upheld the President’s Article II power as Commander in Chief of the armed forces to defend this country from its enemies and to determine who are and who are not enemies of the United States within countries where we are engaged in active hostilities. Yaser Hamdi’s status as an American citizen entitles him to petition the Judiciary personally, or by next friend if he cannot for reasons 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 arguments 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 Executive’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 military 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 characterize, 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 probably adopt the “some evidence” standard advanced by the government and hold that the Mobbs Declaration would be sufficient even in the 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 ultimately be interpreted in an age of terror. And, no matter how interesting such questions may be, they are simply not before us. We are not dealing with the President’s designation of Hamdi as an enemy combatant 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. Rumsfeld. 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 seizures in a noncombat country can be a valid exercise of the Executive’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 ousting the Taliban regime in order to end its support for A1 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 interesting ones a court could be called upon to contemplate, but no matter how much we might like to deal with them, they are not before us. We should not reach beyond this case to decide them. . Because Judge Wilkinson has already written eloquently, and primarily, in response to Judge Motz’s dissent, I focus my comments chiefly on matters raised by Judge Luttig. . See also Hamdi, 316 F.3d at 460 (noting that the petitioner "acknowledged] 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”). . 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. . We have also been challenged for our alleged "altered and paraphrased 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] seizure and detention” nor "im-put[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. . 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 detention 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 imprisonment in a naval brig in Norfolk, Virginia, not a military determination made overseas....” Ap-pellees' Brief at 44. And, during oral argument, Hamdi again clarified that he was not challenging the legality of his initial seizure and detention in Afghanistan as an enemy combatant, but rather was only asserting that as one moves away from a foreign battlefield to the United States where civil courts are open and functioning, the deference due to the military’s battlefield decision decreases. . 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). . The cases cited by Judge Motz do not compel a contrary conclusion. See White v. Miller, 158 U.S. 128, 146, 15 S.Ct. 788, 39 L.Ed. 921 (1895); Kingsbury v. Buckner, 134 U.S. 650, 680, 10 S.Ct. 638, 33 L.Ed. 1047 (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,