The President Knows an Enemy Combatant When He Sees One

Jacob Sullum | September 9, 2005

The U.S. Court of Appeals for the 4th Circuit today upheld the federal government's indefinite detention of suspected terrorist Jose Padilla without charge or trial. Overturning a federal judge's ruling that Padilla's detention was unlawful, the 4th Circuit concluded that it was permitted by the authorization of force that Congress approved in response to the September 11 attacks. Throughout its opinion, the court assumes all the facts are as the government alleges: that Padilla, a U.S. citizen, trained with Al Qaeda in Afghanistan, where he carried a weapon during the U.S. invasion; that he met with Qaeda bigwig Khalid Sheikh Mohammad in Pakistan; and that he returned to the U.S. with the intent of carrying out terrorist attacks. Those may indeed be the facts, but how do we know?

If, as the 4th Circuit seems to be saying, the president now has the unilateral, unreviewable authority to lock up anyone he deems an "enemy combatant" and throw away the key, what guarantee do we have against mistakes (or worse) by the executive branch? When this president or one of his successors locks up more Americans as intolerable threats to national security, based on nothing more than his own say-so, how can we be confident his judgment is both honest and accurate?

Here, by the way, is "the full text" of President Bush's memorandum declaring Padilla an enemy combatant, as presented in the 4th Circuit's opinion:

THE WHITE HOUSE

WASHINGTON

FOR OFFICIAL USE ONLY

TO THE SECRETARY OF DEFENSE:

Based on the information available to me from all sources,
REDACTED

In accordance with the Constitution and consistent with the laws of the United States, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40); I, GEORGE W. BUSH, as President of the United States and Commander in Chief of the U.S. armed forces, hereby DETERMINE for the United States of America that:

(1) Jose Padilla, who is under the control of the Department of Justice and who is a U.S. citizen, is, and at the time he entered the United States in May 2002 was, an enemy combatant;

(2) Mr. Padilla is closely associated with al Qaeda, an international terrorist organization with which the United States is at war;

(3) Mr. Padilla engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism that had the aim to cause injury to or adverse effects on the United States;

(4) Mr. Padilla possesses intelligence, including intelligence about personnel and activities of al Qaeda, that, if communicated to the U.S., would aid U.S. efforts to prevent attacks by al Qaeda on the United States or its armed forces, other governmental personnel, or citizens;

(5) Mr. Padilla represents a continuing, present and grave danger to the national security of the United States, and detention of Mr. Padilla is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens;

(6) it is in the interest of the United States that the Secretary of Defense detain Mr. Padilla as an enemy combatant; and

(7) it is REDACTED consistent with U.S. law and the laws of war for the Secretary of Defense to detain Mr. Padilla as enemy combatant.

Accordingly, you are directed to receive Mr. Padilla from the Department of Justice and to detain him as an enemy combatant.

DATE: June 9, 2002

Signature
/George Bush/

If you're wondering why your neighbor, your cousin, or that Middle Eastern guy at work suddenly disappeared, it's because REDACTED.

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|9.9.05 @ 2:53PM|#

This is scary because...

Never mind. Some people on this forum won't see the danger until it's too late.

|9.9.05 @ 2:57PM|#

Are you suggesting that Bush will start tossing all his political opponents in prison??

|9.9.05 @ 3:02PM|#

Are you suggesting that Bush will start tossing all his political opponents in prison?

It's not whether Bush (or any future president) would or wouldn't, but what is to stop him from doing so. A ruling like this removes judicial review from "enemy combatants". So the real question is if some president did, down the road, put some of his political opponents in prison, what could be done about it?

|9.9.05 @ 3:03PM|#

The only issue the 4th Circuit considered was whether the President had the power to designate Padilla an enemy combatant. The court was not asked to determine what sort of procedural safeguards are necessary to determine whether the underlying facts to justify indefinite detention are indeed true. Indeed, Padilla actually stipulated the facts regarding his associations with al Qaeda and the Taliban, because for the issues presented on appeal, they were for the most part irrelevant.

Someone please read the opinion, and tell me, as far as the issues presented on appeal, how the 4th Circuit got it wrong.

Baylen|9.9.05 @ 3:03PM|#

Bush is just jealous that, as he notes in point #4, "Mr. Padilla possesses intelligence."

|9.9.05 @ 3:04PM|#

"Enemy combatant" is the new "counter-revolutionary".

|9.9.05 @ 3:21PM|#

For the hardcore Bush lovers who see no problem with this, just remember: these powers were not given to George W. Bush, but to the President. And sooner or later, the president is going to be a Democrat who is a thousand times worse than you think Clinton or Kerry could ever dream of being. And it will be President Carter Kerry Clinton who will have the power to declare people enemy combatants and lock them up without trial.

Still don't see a problem here?

|9.9.05 @ 3:29PM|#

|9.9.05 @ 3:30PM|#

Daniel -

You can start with pointing out the authority in the Constitution for the Federal government to declare someone an enemy combatant and therefore not covered by the Constitution or BOR.

(crickets)

Anyone going to answer Daniel's question, instead of tossing out strawmen? I think it's a good one.

And someone PLEASE explain the day when ANY president is going to label "political enemies"as "enemy combatants".

Warren|9.9.05 @ 3:34PM|#

FUCK FUCK FUCK. Looks like I picked the wrong day to give up barbiturates. I know I've got a bottle of rot-gut around here somewhere though.

|9.9.05 @ 3:35PM|#

(7) it is REDACTED consistent with U.S. law and the laws of war for the Secretary of Defense to detain Mr. Padilla as enemy combatant.

I happen to have seen the redacted portion of this determination:

(7) it is not at all consistent with U.S. law and the laws of war for the Secretary of Defense to detain Mr. Padilla as enemy combatant.

Bush was just covering his constitutional butt with that last one.

|9.9.05 @ 3:41PM|#

Jennifer: Fortunately with Bush's new powers, there will never be another Democrat America-hating president. So your alarmist scenario is just another strawman.

|9.9.05 @ 3:43PM|#

Haven't read the full opionion yet, but two important points:

1) This case was argued before a three-judge panel (Luttig and Traxler were appointed by Republican administrations, not sure about Michael). Either party can request a re-hearing by the full court -- fourteen judges.

2) This case will doubtlessly be appealed to SCOTUS sooner or later.

"Still don't see a problem here?"

Even as someone who generally supports the Bush administration in its foreign policy/anti-terrorism efforts, I do have a problem with this ruling. For those defending this decision, where in the constitution does it grant the president the power to declare a U.S. citizen an "enemy combatant" and deprive him of his right to due process?

I have zero sympathy for Padilla, who apparently is a traitor and an enemy of this country. If convicted he should be executed or locked away for good. But as a U.S. citizen he is entitled to due process and a fair trial.

Rodney|9.9.05 @ 3:45PM|#

Shit Luther, using this logic (or lack thereof) the Government should immediately round up all of those Right Wing zealots who've attended "Survivalist" training for the day when "That thar big war wit' ZOG finally goes down."?

|9.9.05 @ 3:48PM|#

JF: And someone PLEASE explain the day when ANY president is going to label "political enemies"as "enemy combatants"

Okay, let's put it this way, my right to the Freedom of Speach protects me from retribution on any revolutionary statements I make that MAY incite others to act in treason against the established government. Because of the actions of other I, by default, become head of a revolutionary army (a mullah if you want a comparison) and thence become an "enemy combatant". It is a very short domino trip for the open mind.

|9.9.05 @ 3:49PM|#

Haven't read the full opionion yet, but two important points:

1) This case was argued before a three-judge panel (Michael and Traxler were appointed by Clinton, Luttig by Bush the elder). Either party can request a re-hearing by the full court -- thirteen judges (9r, 4D).

2) This case will doubtlessly be appealed to SCOTUS sooner or later.

|9.9.05 @ 3:52PM|#

(CORRECTION to earlier post. *&^%$#@! Reason Server)

Haven't read the full opionion yet, but two important points:

1) This case was argued before a three-judge panel (Michael and Traxler were appointed by Clinton, Luttig by Bush the elder). Either party can request a re-hearing by the full court -- thirteen judges (9R, 4D).

2) This case will doubtlessly be appealed to SCOTUS sooner or later.

|9.9.05 @ 3:53PM|#

Kwix:

No, it isn't. Maybe after a few beers tonight some of what you said may actually make some sense.

|9.9.05 @ 3:55PM|#

And someone PLEASE explain the day when ANY president is going to label "political enemies"as "enemy combatant

Well, before I do that I need to explain the day the cops in a major city announced they would confiscate every weapon in town before evicting the entire population from their homes, and then explain the day free-speech regulations were suspended in the name of campaign finance reform, and then explain the day that personal fat became a public health issue, and then explain the day the cops in another major city announced that they would be doing warrantless, random searches of passengers who choose to ride public transportation.

But of course, only a paranoid fool would think ANY of that could happen here in America, the Land of the Free.

|9.9.05 @ 3:57PM|#

But as a U.S. citizen he is entitled to due process and a fair trial.

I agree, but I would give a somewhat different emphasis: It's not even a matter of what rights Padilla is entitled to. It's really a matter of what powers the authorities are entitled to.

Screw it. You clearly get the point here. A lot of other people don't. Stalin had a word for people who have no clue that they're defending something vile: Useful idiots.

|9.9.05 @ 4:06PM|#

Jennifer:

So what's your plan? Sitting around on an internet message board hasn't done much so far. Is there a Plan B?

I don't like most of this stuff any more than the rest of you, but the "chicken little" routine sometimes gets tiresome.

Here's what most of what I hear on this thread sounds like:

The 4th Circuit Court ruled that the law Congress passed giving the President the right to detain enemy combatants was actually a law passed by Congress. Babies are going to be born with two head, airplanes are going to fall out of the sky, and everyone subscribing to Reason is about to be herded up and taken to re-education camps.

quasibill -

Even though it's a strawman (with the nice assumption built in that declaring someone an enemy combatant must be unconstitutional) I'll address your point.

As Commander in Chief the President has wide latitude to prosecute military endeavors when authorized by Congress (whether there ought to be a formal declaration of war as opposed to a joint resolution upon which the 4th Circuit relied is another issue). Of course the President's authority to act is limited in several respects, international law like the Geneva Conventions, and yes, other provisions of the Constitution, the most relevant provision being the Fifth Amendment which says that no person can be deprived of life, liberty of property without due process of law.

The Fourth Circuit considered only the first point, whether the 9/11 joint resolution authorized the President to label American citizens, captured on American soil for - loosely speaking - aiding al Qaeda.

The issue the Fourth Circuit did not decide, and to this point is still quite murkey, is what sort of procedural protections (due process) Padilla is entitled to now that he has been deprived of his liberty. The fact that Padilla stipulated the underlying facts surrounding his detention makes this apparent as the ultimate purpose that due process serves is determining whether someone is guilty of the actions for which he is accused.

Maybe the panel made the right decision, maybe it didn't. But at the very least it would be nice if people actually addressed Luttig's opinion on its own terms, rather than resorting to strawmen.

|9.9.05 @ 4:09PM|#

Jf-

I don't have a plan for this. But I wanted to make the point that a lot of what would sound like paranoid dystopian fantasy twenty years ago is now just regular American life.

Are we only allowed to point out probelms if we also know how to solve them?

|9.9.05 @ 4:15PM|#

No, Jennifer, I don't mean to say that we can't point out problems. I'm saying that if we are so far down the slippery slope that we are so close to anyone being able to be declared an "enemy combatant" by the President for any reason, the time for talking is long past. You and I agree (I think) that the slippery slope exists, I just don't think it's as steep as you do.

And Thoreau, you sure can be an arrogant prick. I assume that you meant what you said, which is that Bush, every member of Congress that gave Bush this power, AND the members of the Fourth Circuit who reversed the lower courts Padilla decision, are acting in a manner than can only be described as "vile", with a sideways comparison to Stalin tossed in for good measure? That's how I read you.

jf, would you care to dig up some language from any bill passed by Congress that contains language authorizing the president to declare anybody an "enemy combatant?"

You'll be digging for an awful long time, because no such language was ever passed. Congress gave the president the authority to conduct military operations to keep our country safe. Bush claims that declaring American citizens captured on American soil to be "illegal enemy combatants," and then hold them indefinitely without trial, is inherent in the presidents warmaking/national defense powers.

Which is sort of an odd thing to claim, as such power has never before been exercized by a president or any other officer of the United States.

|9.9.05 @ 4:19PM|#

REDACTED.

And the Reason server REDACTED.

|9.9.05 @ 4:23PM|#

"And someone PLEASE explain the day when ANY president is going to label 'political enemies'as 'enemy combatants'."

In other words, we don't need any checks or balances from the judicial branch, because we can trust that no president will misuse the enemy combatant designation against his political enemies.

Tell it to Clement Vallandigham.

|9.9.05 @ 4:26PM|#

jf-

If we don't need a judiciary to review allegations made against US citizens captured on US soil, why not do away with them?

The answer is obvious: Such a thing would be vile. I stand by my assertion that the removal of due process protection for US citizens on US soil is vile, and that anybody who goes along with it is contributing to something vile.

|9.9.05 @ 4:29PM|#

joe:

I'm guessing you haven't read the Authorization for Use of Military Force Joint Resolution. Here's the relevant passage:

"In General.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Now, in Hamdi, Justice O'Connor wrote for the four justice plurality partially joined by 2 other justices, that Congress had indeed intended by this wording to authorize Hamdi's detention. The Hamdi decision was the basis for the latest Padilla decision, and in fact the Fourth Circuit ruled that the AUMF applies even more to Padilla than it did to Hamdi.

Some lawyer-type here can correct whatever errors I've made in representing the cases, but I'm sure my conclusion is rock-solid. Maybe not palatable, but it's correct.

|9.9.05 @ 4:36PM|#

thoreau:

Well, when you put it like that it's hard to disagree. However, seeing as how Padilla did take up arms against U.S. forces in Afghanistan, fled to Pakistan, then re-entered the U.S. in order to blow up apartment buildings in Chicago, I can't compare him with any U.S. citizen picked up on U.S. soil. Frankly, the only reasons he's still alive are because we don't execute traitors anymore, and he has (or had) intelligence that may prove useful.

Would you rather the Constitution be followed and he be put to death for treason?

the President is authorized to use all necessary and appropriate force

So letting the President decide who needs to be locked up, and providing no evidence except for his say-so, is "necessary and appropriate?"

|9.9.05 @ 4:38PM|#

Padilla did take up arms against U.S. forces in Afghanistan, fled to Pakistan, then re-entered the U.S. in order to blow up apartment buildings in Chicago,

If he did indeed do this, then surely there must be enough evidence for a trial. So what's wrong with having one?

"In other words, we don't need any checks or balances from the judicial branch."

This is a text book example of how checks and balances work. Congress passed a joint resolution authorizing the President, as Commander in Chief, to take certain actions. The President, as he intepreted the authorization, believed that it gave him the power to label people like Jose Padilla enemy combatants and to detain them as long as hostilities are ongoing. The judiciary, with ultimate authority to interpret the law, approved of the President's intepretation of this particular joint resolution (emphasis to "this particular joint resolution"). This is how checks and balances work, as opposed to ending up with the result that libertarians would prefer. Again, please dispense with the strawmen.

|9.9.05 @ 4:39PM|#

Like I said, jf, you will find no language that refers to designating and holding indefinately American citizens under the cirsumstances of Hamdi's detention. That's why you and the President are reduced to trying to shoehorn this novel power, which is expressly forbidden by the Fourth Amendment, under the word "all."

None of the other remarkably-similar authorization of force resolutions in our nation's history, which have also included the phrase "all necessary and appropriate force," have been interpretted to allow the president to violate the law.

|9.9.05 @ 4:41PM|#

"the only reasons he's still alive are because we don't execute traitors anymore"

Sure we do, or at least, we could.

But that would require having enough evidence to prove your case at trial.

|9.9.05 @ 4:43PM|#

Would you rather the Constitution be followed and he be put to death for treason?

I'm not terribly concerned about what happens to Padilla. I'm concerned about what sorts of powers are asserted and how they're exercised and under what procedures. That's why we have a written Constitution, a Bill of Rights, 3 branches of government, checks and balances, free elections, and all sorts of other good things. Because a free society doesn't just depend on the final outcome of a particular case. It's about checks and balances.

If a jury of Padilla's peers finds him guilty beyond a reasonable doubt and sentences him to a harsh punishment after a free, open, and adversarial trial, so be it. If, however, his fate is determined without those safeguards, we are all less free than before.

I can't believe that this is a controversial notion on a libertarian forum.

|9.9.05 @ 4:47PM|#

So activist judges once again ignored the Constitution to get the result they wanted politically. Luttig is guaranteed that Supreme Court seat now. Maybe he'll get to cast a vote in favor of affirming his own circuit court decision.

There goes the last of the Constitution. It had a good run while it lasted.

|9.9.05 @ 4:48PM|#

Daniel-

The Congress did indeed pass a law. The Executive Branch did indeed act in (apparent) accordance with it. The Judiciary did indeed say that the interpretation of the law is correct. Bully for them.

What the courts did not consider is the actual evidence against a US citizen. That evidence may very well prove that Padilla is a terrorist and traitor. If so, then there should be no problem presenting it in a trial and proving him guilty beyond a reasonable doubt.

And if the evidence does not prove that point, wouldn't it be better to have the trial so the mistake can be identified and remedied?

And this isn't just me talking about my preferred libertarian outcomes. It's written in the Bill of Rights.

|9.9.05 @ 4:51PM|#

joe:

I'm not defending the President. I'm arguing against this wall of stubbornness regarding the legality of what's going on with Padilla.

And I'd expect you to show a little more sense than to complain about the government "trying to shoehorn this novel power, which is expressly forbidden by the Fourth Amendment", Mr. "Public Use means Public Benefit".

"If he did indeed do this, then surely there must be enough evidence for a trial. So what's wrong with having one?"

Again, because the issue, at least as far as the Fourth Circuit was concerned, was not whether Padilla was guilty of the underlying actions, or even what obligations the executive and/or the judiciary must meet in order to make such a determination and deprive Padilla of his liberty.

Additionally, and beyond the technical legal points, it is not a controversial notion that the President has the power to detain some people indefinitely without trial or even anything resembling a trial. Of course this is most often the case in times of war, where the military detains enemy POWs indefinitely. Or to put it another way, I don't think anyone would argue with the fact that German POWs in WWII, did not need to be charged individually with sufficiently drafted crimes and be given a hearing to determine whether indeed they committed those crimes.

The issue becomes, as always, where do we draw the line between the clear cut example of an enemy POW fighting for a state belligerent captured in a combat zone and someone charged with tax evasion. This, of course, is not an easy question to answer, but we'd all be better off if people of sincere beliefs and good intentions had a serious discussion about it.

|9.9.05 @ 4:54PM|#

Again, because the issue, at least as far as the Fourth Circuit was concerned, was not whether Padilla was guilty of the underlying actions, or even what obligations the executive and/or the judiciary must meet in order to make such a determination and deprive Padilla of his liberty.

Glad to hear that the judiciary is no longer concerning itself with such trivial matters as guilt, innocence, and the Bill of Rights!

|9.9.05 @ 4:58PM|#

Jeeze, I realize it's Friday, but is anyone even trying anymore?

From the Constitution, section 3, clause 1:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Emphasis added.

From the Padilla decision:

Recognizing the hurdle to his position represented by the Supreme Court's decision in Hamdi, Padilla principally argues that his case does not fall within the "narrow circumstances" considered by the Court in that case because, although he too stood alongside Taliban forces in Afghanistan, he was seized on American soil, whereas Hamdi was captured on a foreign battlefield.

He admitted it in open court, just like the Constitution requires.

There is nothing legal about holding a US Citizen indefinitely, without charge, and without any ability to challenge the charges that have been made against him. No act of congress authorizes that. If he did all of these things, prove it. If you can't prove it, let him go. The South Carolina judge got it right and the appelate judges got it wrong IMO, and I'll be interested to see if the full circuit and/or the Supremes review this one.

|9.9.05 @ 5:01PM|#

"Would you rather the Constitution be followed...?"

Yes.

|9.9.05 @ 5:02PM|#

jf-

Fine. Then empanel a jury of his peers, hold the damn trial, show them the statements, let him contest it, show how weak his defense it, get the verdict, and hang him properly.

|9.9.05 @ 5:08PM|#

I mean, if his guilt is so obvious, why go through all these legal gymnastics when you could just hold the trial and get it over with?

Unless, of course, the goal is to set precedents that remove the need for trials in the future.

But that would be paranoid thinking, wouldn't it?

|9.9.05 @ 5:12PM|#

Not at all, thoreau, not at all...

|9.9.05 @ 5:15PM|#

"Glad to hear that the judiciary is no longer concerning itself with such trivial matters as guilt, innocence, and the Bill of Rights!"

To say that courts do not consider all constitutional issues that might possibly arise in a particular case all at once (emphasis on "all at once") is not to say they never will. I didn't think this was a particularly esoteric concept. Down the road, when the issue is ripe for adjudication, Padilla will be able to adjudicate that particular issue. If at that point, the result is not to your liking, then I'll be happy to entertain your thoughts on how we're living in a fascist police state. But for now, because I thought this was a thread about this particular decision, I'll address it on its own terms.

|9.9.05 @ 5:18PM|#

jf -

"He admitted it in open court, just like the Constitution requires."

He did not admit it in open court. The point was only stipulated for purposes of the appeal.

|9.9.05 @ 5:23PM|#

thoreau:

I've heard people say that Bush was this governor who like to execute people in as great of numbers and as little of time as possible. Now, people are complaining because he DOESN'T want to execute Padilla. I'm getting confused.

|9.9.05 @ 5:25PM|#

Daniel:

That must be one of those technical points that, as a non-lawyer-type, if it's true I'll never understand.

"Your honor, my defense is that I did this, but I should be let go on a technicality. Now, that last sentence doesn't actually mean that I did it, mind you."

|9.9.05 @ 5:26PM|#

jf-

Nobody is complaining about the lack of an execution. You know full well that we're complaining about process and the removal of an important judicial check. There's a right way and a wrong way to do things. If he is so obviously a traitor then charge him and try him. Stop the gymnastics of "Oh, we don't actually need trials because..."

And I know somebody will say that the mere fact that there was a court ruling proves that the judiciary is involved. True, except that the judiciary isn't deciding matters of guilt or innocence for this particular guy. They're trying to decide whether to set a precedent for not holding trials in the future. The trial to end all terrorism trials, if you will.

That's hardly due process.

|9.9.05 @ 5:29PM|#

"I've heard people say that Bush was this governor who like to execute people in as great of numbers and as little of time as possible. Now, people are complaining because he DOESN'T want to execute Padilla. I'm getting confused."

Classic red herring, jf. The argument is about denying American citizens the right to a trial. Don't muddy the waters/change the subject now that your argument has holes.
IF Padilla is that guilty, prove it in court, and move on.

|9.9.05 @ 5:33PM|#

I'm normally not a big fan of purity tests, but the Padilla case is where I draw the line. This case is so fundamental that if you don't think Padilla should be put on trial before a jury of his peers then you need to hand in your libertarian decoder ring.

That's right, folks, thoreau has laid down a purity test: Our judicial system must be better than Egypt, Russia, or Zimbabwe. Now somebody can explain why my exacting standards are the reason libertarians never make any electoral gains.

Phil|9.9.05 @ 5:35PM|#

To say that courts do not consider all constitutional issues that might possibly arise in a particular case all at once (emphasis on "all at once") is not to say they never will. I didn't think this was a particularly esoteric concept. Down the road, when the issue is ripe for adjudication, Padilla will be able to adjudicate that particular issue.

"Sentence first, then the trial!" -- Alice Through The Looking-Glass, Lewis Carroll

|9.9.05 @ 5:35PM|#

jqm:

You got me. Sorry about that.

thoreau:

You've an excellent point. I let joe get me off track with the traitor thing, and the thread moved away from the original topic. I still stand by the fact that this decision was decided, at least by the judges, in accordance with Hamdi, and until someone repeals the AUMF, or the Supreme Court invalidates it in regard to indefinite detention (not likely, after Hamdi).

|9.9.05 @ 5:42PM|#

thoreau:

I'm going to ask a really REALLY dumb question, because I honestly don't know the answer:

Is the taking up of arms against U.S. forces a criminal act actually covered by statute? Who has jurisdiction over the prosecution of Mr. Padilla? Does it matter that he committed crimes against the United States while in a foreign jurisdiction, and then tried to use his return to the U.S. to commit more crimes as a defense against his indefinite detention?

Answers to these questions could change my mind. I haven't seen them answered yet.

And I really don't want to turn in my decoder ring.

|9.9.05 @ 5:43PM|#

Ok, that was 3 dumb questions.

|9.9.05 @ 5:45PM|#

oops. 18 U.S.C. �2381 covers treason, it's just rarely used. He could also be prosecuted under the UCMJ, though. How do we determine which one?

|9.9.05 @ 5:46PM|#

"Now somebody can explain why my exacting standards are the reason libertarians never make any electoral gains."

Probably because enough people are willing to leave some things to the discretion of the executive, notwithstanding its constitutionality. While I agree with you that Padilla should be in the hands of the Justice Department rather than DOD - both as a legal matter (in the positivist sense) and as a philosophic matter - I think our political system is strong enough to ensure that should the ultimate results in the Padilla case not turn out to my liking, it would be an exception based on a hard case rather than a precedent that the government would start using to deny trials to drug dealers because "they're with the terrorists." It's ultimately the political system - of which the Constitution is one component, albeit an important one - that separates us from Egypt, Russia or Zimbabwe.

|9.9.05 @ 5:48PM|#

jf-

I don't know what the statutes say. What I'm most concerned about is the basics of the process here. If he did what he's accused of doing then he should get the maximum punishment under the applicable statutes. But he needs to be convicted in accordance with our Constitution.

Is that so hard to get across?

|9.9.05 @ 5:53PM|#

thoreau:

It's not hard to get across at all, and I agree with your concerns about the process. The problem is, the process has already been determined by the Supreme Court, and I'm not sure of a way around that. We all know that the Constitution is being shredded daily before our eyes, but I'm not sure that this case is anywhere near the "tipping point" that is going to drag us into a police state. Yes, we must maintain eternal vigilence against the encroachment of our liberties by the state, but I draw the line when it comes to anyone shooting at American troops in a war zone, particularly when that "anyone" is a U.S. citizen.

|9.9.05 @ 5:55PM|#

Yes, we must maintain eternal vigilence against the encroachment of our liberties by the state, but I draw the line when it comes to anyone shooting at American troops in a war zone, particularly when that "anyone" is a U.S. citizen.

I draw the same line. If somebody does that then charge him with treason, present the evidence, let the jury deliberate, and if he's as guilty as you claim he is they'll no doubt return a guilty verdict.

Really, what's so difficult about that?

|9.9.05 @ 5:56PM|#

|9.9.05 @ 6:05PM|#

As far as Supreme Court rulings, even if the SCOTUS gives a blank check and allows these abuses of power, nobody's under any obligation to cash the blank check. They can still decide to charge him.

They probably won't, of course. They'll point to the Supreme Court as a way of diverting attention from their own, unconscionable decision to cash the blank check.

I agree with you on both counts. Having found points of agreement, all I can conclude with is that you can (and probably will) call me a mindless sheep, but I don't feel threatened for myself, family, or neighbors by the narrowly tailored Padilla decision, nor the narrowly tailored Hamdi decision. Kelo and Raich scare me a whole lot more.

A lot of you don't seem to understand that there's a war going on...

...and that there are a lot of dangerous people in the world, and we need to stop them. And you may not like the President, but he is our President. ...and if he didn't know what he was doing, then he wouldn't be in charge.

...And, anyway, a lot of you seem to be doing a lot of work tryin' to figure out who's guilty of what and why, when you should be thinkin' about who you can trust. I don't know about Jose Padilla, but I know we can trust the President--I mean, he speaks with a drawl and everything.

|9.9.05 @ 6:07PM|#

Isn't the right to a jury trial a constitutional right?

|9.9.05 @ 6:10PM|#

Realist:

Argh, I couldn't stay away from this thread...

You mean by the Sixth Amendment?

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Emphasis added.

I guess we should try him in Afghanistan.

Note: this would satisfy the Constitution (to the best of my limited legal knowledge), if he is indeed subject to a criminal trial.

I wonder if this guy will be locked up as an enemy combatant?

http://opednews.com/articles/opedne_jackson__050909_physician_who_told_o.htm

|9.9.05 @ 6:11PM|#

Dammit, the bold inside the italics never works. The emphasized part was "by an impartial jury of the State and district wherein the crime shall have been committed".

|9.9.05 @ 6:15PM|#

"Isn't the right to a jury trial a constitutional right?"

The Sixth Amendment says, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury..."

You have a right to a trial in a criminal prosecution. To this point Padilla has not been charged with a crime, and therefore is not subject to criminal prosecution. Although not an expert on this subject, I imagine that the courts will have to determine whether due process requires that he be charged with a crime. If the answer is yes, he will be entitled to a jury trial.

|9.9.05 @ 6:18PM|#

"I guess we should try him in Afghanistan."

I'm not sure if you're being facetious, but State refers to a state or territory (i.e. US District Court for the District of Puerto Rico) of the United States, and not "State" in the sense that Afghanistan or France are "states."

|9.9.05 @ 6:24PM|#

Almost everyone here seems to have missed the point (admittedly the Court didn't help by relegating it to a footnote):

"For purposes of Padilla's summary judgment motion, the
parties have stipulated to the facts as set forth by the
government. J.A. 30-31. It is only on these facts that we
consider whether the President has the authority to detain Padilla."

In short, the reason that the Court assumed that the things Bush said about Padilla were true is that Padialla himself *for purposes of the summary judgment motion* conceded them. That's the whole idea of summary judgment: it s purpose is not to weigh the facts but to determine whether *granting agreed-on facts* (and the "agreement" may of course be only for the purposes of the motion) one party or the other is entitled to judgment as a matter of law.

So the answer to Jacob's "Those may indeed be the facts, but how do we know?" is that we don't need to know as long as Padialla stipulates to them.

|9.9.05 @ 6:44PM|#

If we are gonna quote amendments, then maybe the 5th is a good one too...

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...nor be deprived of life, liberty, or property, without due process of law.."

Last I checked due process meant being charged and tried. Since due process was based on the Magna Carta which states :
"No Freeman shall be taken, or imprisoned, or be disseized of his Freehold, or liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his peers, or by the Law of the Land"

I don't see how due process wouldn't entail charging and trying him.

|9.9.05 @ 6:53PM|#

I don't feel threatened for myself, family, or neighbors by the narrowly tailored Padilla decision

...yet.

You're not a sheep, you just weigh things with a different time horizon.

|9.9.05 @ 7:23PM|#

"No Freeman shall be taken, or imprisoned, or be disseized of his Freehold, or liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his peers, or by the Law of the Land"

When's the last time we exiled someone? I mean, assuming the person were tried, and convicted couldn't we just kick 'em out of the country?

...If we tried and convicted Michael Brown of somethin', couldn't we just exile him?

Sock puppet Wackoblog replies: "...What makes you think that we're capable of keeping anyone out of the country?"

Sock puppet Shultz says: "I'd just like to see him get busted by his own department for tryin' to cross from Juarez."

|9.9.05 @ 7:54PM|#

David T wins the thread.

|9.9.05 @ 10:41PM|#

"A lot of you don't seem to understand that there's a war going on..."

An undeclared, perpetual war against no specific group.

"...and that there are a lot of dangerous people in the world, and we need to stop them."

We're trying. They're called the Neocons.

There are a few more, but most don't bother us much when we aren't over there overthrowing their democracy and installing a brutal puppet (Iran 1953 - 1979), providing 'security' to a repressive regime in exchange for access to resources (Saudis), putting our military into their sacred land (again, Saudis; imagine the Taliban putting bases in Florida and New York), and so on.

"And you may not like the President, but he is our President."

It's not about liking him. It's about the power of the government and the rights of the citizens.

"...and if he didn't know what he was doing, then he wouldn't be in charge."

Nice Britney Spears imitation.

He's not in charge because he knows what he's doing. If you don't see that from his appointment of an unqualified guy as FEMA director, who was the college roommate of the previous FEMA director, who was Bush's campaign manager and also unqualified, in order for the former FEMA director to start a consulting business in which he got his clients nice treatment from the new FEMA director, his ex-roommate who he'd brought in...

He's not in charge because he knows what he's doing.

"...And, anyway, a lot of you seem to be doing a lot of work tryin' to figure out who's guilty of what and why, when you should be thinkin' about who you can trust."

No, we should be thinking about our legal rights.

"I don't know about Jose Padilla, but I know we can trust the President--I mean, he speaks with a drawl and everything."

So your post is sarcastic?

(BTW, disclaimer, I'm very opposed to libertarians, but we have common ground on this).

|9.10.05 @ 1:08AM|#

Actually, the easy way to deal with this is to declare al-Q the legal equivalent of a foreign army and then subject Mr. Padillia to proceedings to strip him of U.S. citizenship for "enlisting" in it. Proof that he accepted a mission on behalf of them anywhere in the world should be prima facia evidence, but the gov't should have to prove its case to a jury.

That can all be done with due process and then he can be sent to gitmo where he belongs.

That will solve the real problem, which is how to convict him for a terrorist act he wasn't really caught in the act for ....

|9.10.05 @ 7:07AM|#

Can't wait 'til President Clinton II starts locking up right wing paramilitary wackos-- maybe then the "jack-booted thugs" meme will revive on the right. As it is, there is clearly nothing that Bush supporters cannot swallow. Tell me where in the Constitution it says that a US citizen on US soil can be detained without evidence, opportunity to confront witnesses, conviction in open court, or even a charge being filed against them, and hell-- I will agree with the court here. Of course, back when the Constitution was written, there were no threats to the country, so we probably should just shitcan the whole outdated thing, now that we are faced with real danger the likes of which the Founders could not have imagined-- they only faced a massive, mostly enemy native population, pirates, and the most powerful nation on earth (who kept armies on the US borders). Chickenshits.

|9.10.05 @ 9:51AM|#

Daniel:

Well, you can call proper constitutional interpretation "a strawman", but you can also call a cow pattie a rose.

You still haven't pointed to the power in the Constitution to declare someone an "enemy combatant" and strip them of ANY rights absent due process.

If you need a hint (you obviously do) read Scalia's opinion in the enemy combatant cases. He hit the nail on the head - the Constitution does provide for stripping people of their rights by executive decree - but there is a very formal process which must be followed - suspension of habeas corpus. Obviously, such a move would have major political fallout for whoever did it. Which is why no politician is willing to go the proper route. And why spineless state worshippers think there is nothing wrong with this decision - because it makes their fascist dreams more difficult to achieve...

|9.10.05 @ 9:55AM|#

Craig-

I can assure you that Tom Crick was being sarcastic. Either that or he suffered a head injury and has a whole new personality.

Tom-

You forgot to mention that he clears brush on his estate...um, I mean ranch. So clearly he's one of us ordinary folk!

Jeff-

Darn good points!

|9.10.05 @ 10:03AM|#

"Additionally, and beyond the technical legal points, it is not a controversial notion that the President has the power to detain some people indefinitely without trial or even anything resembling a trial"

I think many of the founders would have found exactly that propisition controversial.

You know, due process was sort of important. But it makes it hard for an imperial presidency, so of course those who worship the state will have no problem. Because of course, the state is a god, and can't do anything evil. Because you can vote on it! Hahaha.

Sorry. can't help but laugh at those who worship at the altar of democracy. Considering the Constitution only provided for one half of one branch of government to be democratically chosen, I always find it amazing that people think that the Constitution is primarily about empowering democracy...

|9.10.05 @ 10:31AM|#

quasibill-

The people who worship this President are only fans of democracy when it suits their agenda. After the 2000 election, when Bush failed to capture a popular plurality, some of the Bush-worshippers took it as a badge of honor: After all, most of the population is composed of those decadent city folk!

And then when their idol won 52% or whatever in 2004, they took that slim margin as some resounding mandate.

The bottom line is that there are people who march lock-step behind this President and have no qualms if he gets unchecked power to do whatever he wants. Democracy is bad when it thwarts the Dear Leader and good when it supports the Dear Leader. Nothing more and nothing less.

I'm scared for the future of our country. Libertarians are used to seeing the power of the state grow, and the sky hasn't exactly fallen. But indefinite detention without evidence, charges, or trial is a whole new chapter. We're moving into territory that skirts dangerously close to Stalinist.

(Notice that I make a point of comparing dangerous trends to Communist despots, not a certain German despot who shall not be named. That German despot's name is so over-used that people just kind of blow if off and declare the conversation over when you use it. Commies, on the hand, are used much less frequently in comparisons. Such comparisons have power, and right-wingers are particularly incensed by Communist comparisons. So I'm going to say that we are marching in a Communist direction.)

|9.10.05 @ 11:40AM|#

You know what i think?

Ahh, never mind, all this due process talk has my head spinning!

Excuse me while I go submit to my annual random drug test.

|9.10.05 @ 1:37PM|#

The Padilla case separates the libertarians from those I'd like to call "Conservatarians". The conservatarians are those Republicans who are in favor of limited government, for themselves and when it suits their purposes. As an example conservatarians talk big talk about free markets and reducing or eliminating government regulation, until of course you mention legalizing drugs and prostitution, at which point the conservatarians start bloviating about how having the government interfere with those activities is acceptable while having the government regulate big business is a bad thing.

When it comes to civil rights the conservatarians firmly believe that civil rights are something granted to the citizenry by the government and are a good thing in limited quantities. However as soon as you use those civil rights to do something that the conservatarians don't like, such as criticize the president the conservatarians worship then your civil rights are forfeit. And of course the civil rights of anyone who the state deems an enemy and who doesn't share the political beliefs of the conservatarians such as Daniel or ass-licking sellout and Bushite Grover Norquist are immediately forfeit via executive fiat.

|9.10.05 @ 1:44PM|#

"So your post is sarcastic?"

...One hundred percent! I know, with all the propaganda victims out there, it's hard to tell the boneheads from the people who are making fun of the boneheads!

; )

|9.10.05 @ 3:22PM|#

Mr. Jamison-

And good luck getting those conservatarians to criticize defense contracts awarded without competitive bidding.

|9.10.05 @ 6:36PM|#

"I think many of the founders would have found exactly that propisition [detaining people indefinitely] controversial."

That's kinda silly. The Founders themselves did it during the Revolutionary War. It's called "taking soldiers captive."

|9.10.05 @ 9:13PM|#

jf, if you're still reading,

"And I'd expect you to show a little more sense than to complain about the government "trying to shoehorn this novel power, which is expressly forbidden by the Fourth Amendment", Mr. "Public Use means Public Benefit"."

FYI, the appearance of the word "novel" in my comment is neither a typo, nor a cut-n-paste error. The concept "Public Use equals Public Benefit" as it pertains to the Takings Clause, and more specifically, that Economic Development is a sufficient public use, dates back at least to the mid-1800s, and more accurately to before the founding of the Republic. I could find you case after case after case, going back decades and centuries, that demonstrate that point.

On the other hand, you will find no cases prior to last year stating that the president's war powers entitle him to seize American citizens and hold them indefinitely without recourse to the courts. Do you know why that is? Because such a claim is novel, unprecedented, and completely unsupported by either written law or case law.

You might as well argue that the "all necessary force" language allows him to shoot random people in the head - that too is against the law, has never been accepted as a war power that accrues to the president, and is not referenced in the legislation the president points to.

|9.10.05 @ 9:15PM|#

Which is to say, yes, the president's war powers empower him to do things that wouldn't be kosher in other circumstances, but no, the indefinite detention of American citizens captured off the battlefield, without a trial, is not among those things.

|9.10.05 @ 9:31PM|#

the indefinite detention of American citizens captured off the battlefield

joe-

Didn't you get the memo? We are under a siege of indefinite duration. The whole country is a battlefield.

So the government can do whatever it wants. And it's all perfectly consistent with precedent.

You did get the memo, didn't you?

|9.10.05 @ 10:30PM|#

Joe,

"On the other hand, you will find no cases prior to last year stating that the president's war powers entitle him to seize American citizens and hold them indefinitely without recourse to the courts. Do you know why that is? Because such a claim is novel, unprecedented, and completely unsupported by either written law or case law."

So then, technically, it was not a war power that allowed FDR to intern most of the Japanese population of the west coast? And to confiscate the property at pennies on the dollar? Did that constitute "Public Use"? Does it make any practical difference what precise technical legal argument was made?

Really, why is Dearborn, MI, not half-empty??

|9.10.05 @ 10:54PM|#

So, are we now defending Padilla's detention on the grounds that FDR would be worse?

|9.11.05 @ 12:44AM|#

quasibill -

My original post was a response to Mr. Sollum's argument implicating the due process issue when it had nothing to do with what the Fourth Circuit was called on to consider. To address your follow up point directly, you cite to Scalia's opinion which, in my opinion, doesn't square with Quirin, where such detentions (and later executions) were authorized.

On the power of the President to detain people indefinitely, you should take the time to actually read the rest of the post, instead of doing your best Michael Moore impersonation by truncating quotes and missing the point entirely. To be clear, in SOME situations it's not controversial - it would be nice if you actually adressed the situation I actually described - and in most others it would be. As I said, it's difficult to determine where to draw the line. We don't get any closer to doing that with shrill voices coming from the background.

|9.11.05 @ 7:20AM|#

As I said, it's difficult to determine where to draw the line.

Read "All the Laws But One" by Rehnquist (yes, that Rehnquist). He argued that as long as the courts are open and functioning (i.e. ordinary civil society can function because there aren't enemy tanks in the streets or whatever) then US citizens arrested on US soil should be tried in court.

He also lamented that the power of the courts to enforce that notion is limited by the fact that the people with the guns are all in the executive branch, not the judicial branch. And many Presidents have decided to refuse court orders.

|9.11.05 @ 11:30AM|#

Thoreau,

I'm not defending Bush's decision, I was responding to Joe's comments about detention being "unprecedented.". For the record, I'm entirely against doing these kinds of things to U.S. citizens. Bush is absolutely wrong to have proceeded this way. That such detentions are not unprecedented makes it all the more dangerous that the courts seem to be upholding Padilla's.

I think there must be due process that involves an actual court. There are ways he could have done this that are consistent with pre 9/11 U.S. law. I suggested one in my post of September 10, 2005 01:08 AM.

|9.12.05 @ 12:16AM|#

You might as well argue that the "all necessary force" language allows him to shoot random people in the head - that too is against the law, has never been accepted as a war power that accrues to the president, and is not referenced in the legislation the president points to.

Maybe, maybe not. Had Padilla been killed on the battlefield (where he admits he was), that would have been ok, no? But indefinitely detaining him is somehow worse. This whole post is about to roll off the screen, so I'm probably just getting the last word before the thread is locked, and I'm not sure I have a point, either.

I guess I'm saying what I said. You guys say it's ok if soldiers kill Padilla while he's fighting us, but it's not ok if we detain him while we figure out what exactly to do with him. I just don't agree.

|9.12.05 @ 2:52AM|#

I agree with Daniel that a lot of people are doing a cruddy job of distinguishing Padilla's case from Quirin. Either deal with it as precedent, or say it should be junked -- but you can't pretend this detention stuff has never happened.

As an aside, I thought it was cute that in the district court's opinion (on Padilla), the judge distinguished Quirin partly by saying that WWII had a "definite ending date." I guess everyone knew that in 1942.

|9.12.05 @ 8:13AM|#

jf-

1) Killings on the battlefield are generally understood to be necessary: A battlefield is a kill or be killed place. But if a guy is captured off the battlefield, killing is no longer a necessity and due process is no longer an impossible luxury.

2) There's nothing wrong with detaining a guy while the government decides what to do with him. The Framers came up with a phrase that means "decide what to do with him." It's called "due process." And they specified who would be involved in that decision: The Congress would craft the applicable laws, the executive branch would capture people suspected of fighting against us, and the courts would hear the evidence and make the final decision.

There's a reason why the Framers didn't put all of those decisions in the hands of a single branch of government. If you're not sure what it is, here's a hint: Go talk to an immigrant from China or the Middle East.

|9.12.05 @ 9:20AM|#

thoreau

As the Supreme Court has seen it, Congress DID craft a law giving the President the power to do what he has done. We can dance this dance for years, but until the Supreme Court says differently, you're confusing what you think should be legal with what is actually legal.

I look forward to the Supreme Court making a decision on the Padilla case, hopefully agreeing that Congress has to think a little more before giving ANY president "all necessary powers".

|9.12.05 @ 10:01AM|#

jf-

It may very well be consistent with the statutes, but it is not consistent with the Bill of Rights.

|9.12.05 @ 2:07PM|#

I asked you before, jf, to show me where any Congressional statute authorized the president to do this, and you couldn't. You quoted me the paragraph with the phrase "all necessary force," but it didn't include word one about whether locking people up indefinitely without trial was covered. You just said it was, because the president wanted it to be. Don't give him the "consistent with the statutes" point, thoreau, because there is no statute for it to be consistent with.

And yes, jf, soldiers on the battlefield are allowed to do things to enemies they encounter on the battlefield that soldiers, or nonsoldiers, are not allowed to do with individuals they encounter off the battlefield. This is why murderers still holding bloody knives get trials, and soldiers ducking behind walls get burts of rifle fire.

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