Detention Contention

Today the Supreme Court agreed to hear the Jose Padilla "enemy combatant" case. The Cato Institute's friend-of-the court brief, which gives you a good sense of the case's importance, is here, and my most recent column on the topic is here.

Comments

[thoreau]

Cue the chorus of "We're at war here people! Terrorists don't have rights!"

Then follow it up with "If he's a terrorist then punish him. This is about whether the government gets to label somebody as a terrorist without proving its case in court."

Then we'll get a chorus "How long will it take for some of you to realize that we're at war here! You want the Islamofascists to be able to kill us all while they await trial?"

Second verse: "I have no problem locking up terrorists. I just think that the government's accusations should always be subject to scrutiny and due process."

Modified chorus: "How long will it take for some of you to realize that we're at war here! You want the Islamofascists to be able to kill us all while they await trial? You must be one of those 'Libertarians for Dean' types!"

Third verse: "When did I ever say a word in praise of Democrats? Janet Reno was just as big an enemy of civil liberties as Ashcroft. I just think the government should have to prove its case before it imprisons people indefinitely. Without due process this is just ripe for abuse."

Chorus: "How long will it take for some of you to realize that we're at war here! You want the Islamofascists to be able to kill us all while they await trial?"

(second time)

Thank you folks, you've been a great audience!

[Les]

My toe is tapping! Gosh, you're a physicist AND composer! And all from a shack on on a pond. Amazing!

[Dan]

Thoreau's straw men notwithstanding, I think it's pretty universally accepted, even among people who favor vigilance in the war, that arresting *Americans* and jailing them without trial, charges, or evidence is a bad idea. Governments should not be allowed to arbitrarily jail their own people.

What many of us have no problem with is a zero-tolerance policy towards non-citizens suspected of terrorism. That doesn't apply to Padilla.

I have no prediction on how the SCOTUS will rule on this; in my opinion, what's been done to Padilla is unconstitutional, but (as the article notes) essentially identical actions have been taken by the government in the past without being stopped by the court.

[Les]

Dan,

So, (just clarifying, here) you think it's okay to hold, without charges, evidence, or access to a lawyer, a non-citizen SUSPECTED of terrorism, whereas someone like Tim McVeigh shouldn't have to endure such an infringment on his civil rights? Help me understand.

[Mo]

Where does the Constitution say that rights are reserved solely for citizens? I guess I was sick when they taught that in Government.

[thoreau]

To me it isn't a question of rights for citizens or non-citizens. It's a question of the government's powers.

If the government is under pressure to look like it's "doing something" it may be easy to trot a foreigner out, announce that they have "secret evidence" against him, assure us that he's very dangerous, and then send him away. I'd like some sort of process to find out whether he's actually the guy we need to find or not.

Remember, if they send an innocent man away and then close the investigation, that means a guilty man is still roaming free. I have no problem with cracking down on Islamo-fascists, I just want to make sure that the guys in custody are in fact Islamo-fascists.

I guess that makes me a weak-kneed liberal, because I don't accept the government's statements uncritically.

[crap-action-jackson]

Dan,
How long will it take for you to realize that we're at war here! You want the Islamofascists to be able to kill us all while they await trial?

[Equality 7-2521]

Mo,

Given that many of the framers were also slaveowners, I think it is safe to say that they did not intend the enumerated rights to apply to all people.

[Abdul]

Excuse me, please.
Where the white women at?

[Dan]

So, (just clarifying, here) you think it's okay to hold, without charges, evidence, or access to a lawyer, a non-citizen SUSPECTED of terrorism, whereas someone like Tim McVeigh shouldn't have to endure such an infringment on his civil rights?

"Someone like Jose Padilla", not "someone like Tim McVeigh" (who was arrested, charged, tried, and executed, in case you haven't been keep up on current events). But otherwise, yeah, that about sums it up.

Help me understand.

It's easy to understand; I don't think non-citizens deserve the same protection against the US Government that citizens do. Feel free to not live here, or to become a citizen, if that bothers you.

Where does the Constitution say that rights are reserved solely for citizens?

The answer to that question is the same as the answer to the question "where does the Constitution say that noncitizens have any rights at all whatsoever?". The answer is "nowhere"; it's a gray area.

The implication of the Constitution is that noncitizens do not have the same rights as citizens; otherwise war would be expressly unconstitutional, as it involves the execution of countless non-citizens, military and civilian alike, by the US Government, without any trial, charges, or suspicion of specific wrongdoing.

Similarly, the United States has repeatedly stationed troops in people's houses without their permission during various wars; the courts didn't make a peep, because it wasn't happening to US Citizens, but instead to Germans, French, etc.

Furthermore, during every war we've fought to date, we've taken prisoners of war and held them indefinitely without trial. Why were we able to do this? Answer: because they were noncitizens.

[Les]

"Someone like Jose Padilla", not "someone like Tim McVeigh" (who was arrested, charged, tried, and executed, in case you haven't been keep up on current events). But otherwise, yeah, that about sums it up."

They CAUGHT that guy?? RIGHT ON!! F-B-I! F-B-I!

No, but seriously folks, my point was what makes a non-citizen inherently more dangerous than a citizen?

"I don't think non-citizens deserve the same protection against the US Government that citizens do."

Good lord, why not? Does the government become more trustworthy or less prone to injustice or abuse when it comes to foreigners?

[Kevin Carson]

thoreau,

When Walter Cronkite was a newspaperman in Texas, according to his autobiography, the typical police response to unsolved (and politically visible) murders was much as you describe. The cops would pin the crime on a (usually nonwhite) drifter; a broken finger or two was enough to get a "confession." And the fact that the guy who really did it was still running around loose mattered less than the job security of the police chief and prosecutor.

[Portia]

Whatever happened to the phrase "amicus curiae"?

[Stephen Fetchet]

Here's the deal on Padilla.

He's a U.S. citizen, captured and held on U.S. soil. Maybe he gets a military tribunal - okay, that's fine under Ex Parte Quirin, the WWII case involving German saboteurs who landed in the U.S., some of whom were U.S. citizens.

Note however, that the saboteurs in Ex Parte Quirin did have access to the courts, in a manner like a petition for writ of habeas corpus, to determine whether their being held and tried by the military was proper.

Prior case law that informs the Ex Parte Quirin case raised the question of whether the president can suspend habeas corpus during wartime. Ex Parte Milligan answered that question in 1868, holding that President Lincoln didn't have the power to suspend habeas corpus to hold 36000 civilians who aided the Confederacy, unless the civil court system was non-functioning.

Read together, the two cases stand for the propositions:

1. Padilla can be held and tried and executed or jailed by the military, per some form of military justice which provides due process.

2. Because the President cannot suspend the habeas right without Congressional approval, Padilla has at least a right to file a petition for writ of habeas corpus.

I would suspect that the Supreme Court reverses the Second Circuit's holding in the case. That court held that the Congressional authorization for the use of force was insufficient under the Anti-Detention Act, therefore Padilla's detention was improper. While it was a colorable interpretation of the Act, it was not the strongest, most authoritative interpretation. In light of the fact that the Court is considering the Hamdi and Al Odah (Gauntanamo) cases at the same time, it's likely that they will decide Padilla on broader grounds than the Second Circuit's narrow holding would otherwise invite.

FYI, habeas corpus is called "the great writ". A person held by the government can petition for a writ of habeas as a means of contesting the propriety of the detention. A lot of other frankly crappy claims get sandwiched into the petitions, but the basic purpose of it is to attack a detention, or the conditions of detention. Courts have always and everywhere vindicated the rights of Americans within the sovereign territory of the United States to file habeas claims. A prisoner of war, like Yasir Esam Hamdi, seized in Afghanistan, may have lost this right due to his capture abroad in combat; he is analogous to the German POWs brought to camps in the U.S. during WWII - no habeas right, because they were POWs. However, he is an American, on American soil, so the Court may take note of that. As for Al Odah, and the 9th Circuit Gherebi case, the Gitmo detainees have advanced a dangerous notion of sovereignty as a way of supporting their claims - that any land occupied by the U.S. government is sovereign territory for habeas purposes. Those claims should fail.

[Jack]

Dan wrote: "The answer to that question is the same as the answer to the question 'where does the Constitution say that noncitizens have any rights at all whatsoever?'. The answer is 'nowhere'"

Have you ever been near an American civics class? According to a lengthy string of US Supreme Court decisions, citizens only enjoy superior rights when the Constitution specifically says "citizens". Where it reads "people" or "person", non-citizens living in the US enjoy the same rights as American citizens. (Of course, the Court could always change that, but it doesn't seem likely soon.)

[Mark Fox]

Here's a person held to answer for an infamous crime, without presentment or indictment, not in service in any regular or militia force.

Article V says the United States is not allowed to do this.

I enjoy the points of law, and the discussion of the difference between citizens and persons. Thanks for helping me learn, and I would like to hear a summary the state's case for justifying this detention.

But, still, Article V says, in apparently plain language, that this act is beyond the United States' authority.

I guess it reinforces: Those holding the guns hold the power.

[Mark Fox]

I forgot. We're at war here! The best way to defeat those Islamofascists is by emulating them. When they see that "The Great Satan" is just like they are, they'll either become allies, or commit suicide. Subtle, but brilliant.

[Les]

Walter,

I think you've confused this with the "Post Your Favorite Bumpter Sticker" forum.

[Les]

"bumper," that is.

[alma hadayn]

I think Jacob Sullum should be arrested and held indefinitely as an enemy combabtant in the war on drugs.

[david bowie]

Thoreau:

you got labeled with a "straw man". all you need to do is go for the "ad hominem" and you have the two insults that the righties here know. then you can have step. fetch and dan and andrew and the other "i'm not a neocon" types saying that "the innocent have nothing to fear". and tim mc veigh is totally different. and the militias are different. and that was before. and wahhhhh. and the free-speech free zones around the president are good because lefties are dangerous (look at the righties shooting at the white house when kliton was prez). and that righties argue with reason and we can see that because we watch tv on mute and we believe that because we're sheep. and oh my gawd. i think i wet myself. you conservative assholes belong in a world where your non principled ways of looking at things bite you in the ass. when prez hilary uses these same powers against your side, you'll call for revolution. fucking idiots. and the activist courts are bad unless it's my side. blah blah blah.

try the fish. tip your waitress. have a good night (what's left of it)

[mojo jojo]

The Constitution isn't about giving people "rights" anyway. It's about LIMITING the power of government. Rights aren't given, they are only taken away.

[Walter Wallis]

Do not wage war on the United States. Fuck with the bull, you get the horn.

[thoreau]

I am willing to yield to the legal knowledge of those who claim that the US gov't pretty much has the right, under the law as currently written and interpreted, to exercise very broad discretion when holding non-citizens (and some citizens). I have no doubt that the government has some pretty scary powers.

Great. Nothing we didn't already know.

Now, SHOULD the gov't have the unfettered discretion to detain indefinitely any non-citizen that it claims was captured in a war situation, or in a terrorism investigation, or whatever other provision would, under current law, trigger the gov't's inalienable right to put somebody in a gulag? Is that really such a good idea?

I'm not a big fan of robed philosopher-kings taking the commerce clause and turning it into a blank check, or discovering rights not even vaguely related to the text of the Constitution. If the only way to reverse those powers was an activist ruling then I might reluctantly agree with those libertoids who say "The necessity of reining in the robed demi-gods takes priority over reining in the gov't's inalienable right to put non-citizens in a gulag."

But it would seem to me that a fairly reasonable reading of the Bill of Rights would call into question the unfettered right of detention without trial. A judge wouldn't have to be a "robed demigod" to do this. He could simply act as an impartial upholder of the Constitution in a limited representative republic.

Again, I have no problem with the gov't holding a terrorist or real enemy combatant until he rots, citizen or not. But what if a non-citizen tries to say "Hey, wait, I wasn't an enemy combatant, I was turned in by an Afghan warlord who labeled me a Taliban after I refused to fight for him. I'm here because I ticked off somebody who's in the good graces of the US, I never participated in violence against Americans." I'd kind of like that guy to get a trial. I realize that the government's version of the story would say that the circumstances of his capture triggered all the provisos that justify indefinite detention. But who says the government is telling the truth?

[Jean Bart]

Well, the government is going to argue that under the "Quirin" doctrine, that Padilla doesn't have a case. In "Quirin" the U.S. government, pursuant to some congressional legislation, established a military tribunal, and tried and convicted a U.S. citizen in that tribunal. At least one of the spies/saboteurs was an American citizen, and the Supreme Court said tough shit. If a military tribunal, whose rules are set-up exsclusively by the Executive, can condemn an American citizen to death (if that person has been found to be an unlawful enemy combatant), surely he hold him indefinately.

[Jean Bart]

Stephen Fetchet,

The Executive branch in this case has not denied habeas review (indeed, that would be hard considering the fact that habeas suspension is a Congressional power); and to be blunt, the dissent's opinion in the Second Circuit was correct in stating that the Joint Resolution provided plenty of authorization for this sort of tribunal.

What is far more interesting is whether the Supreme Court allows Padilla (or Hamdi) to challenge their status as enemy combatants; indeed, the dissent in the Padilla case stated that this was the "real issue" at hand.

[Kevin Carson]

thoreau,

The problem with the law as "currently interpreted" by case law, is that it goes back to Quirin. The Quirin decision, lauded by today's neocons, was a product of the state-worshipping culture of the New Dealers and Cold War liberals (i.e., the grandfathers of the central tendency in today's neoconservatism). The Supreme Court that issued the Quirin decision was (almost) the same court that issued U.S. Curtiss-Wright and the sick chicken case. And all the decisions reflected the same culture of power worship.

There was a time, believe it or not, when most "conservatives" looked askance at such court-assisted power grabbing. But now the country is in the hands of a variety of "conservatives" whose main heroes are wartime dictators--"Great Presidents" like Lincoln, Wilson and FDR (and the honorary Churchill).

Personally, I'm of the opinion that a thousand bad precedents don't overrule the original understanding of the Constitution. I'd like to posthumously impeach John Marshall and overturn Gibbon v. Ogden (right before restoring the Articles of Confederation).

[John Hensley]

--
Where does the Constitution say that rights are reserved solely for citizens? I guess I was sick when they taught that in Government.
--

Perhaps. Padilla's case would fall under Congress's power to regulate captures on land, except that they have not enacted the regulations.