Round-em-up Roundup


Slate's Dahlia Lithwick reports from the Supreme Court on the cases of Yaser Hamdi and Jose Padilla, which may determine the boundaries of the president's authority to detain enemy combatants. Or rather, "enemy combatants," since the central question is whether it's incumbent on the executive to show in court that the detainee really is an enemy combatant.

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  1. Certainly, Padilla should have a trial, and it seems clear that the law and American tradition demand it, but the “end of America” rhetoric is always overheated. By the same standard, America would already have ended 60 years ago with Japanese internment, or really, before it ever started because of slavery, or 30 years ago because of Nixon’s price controls or at nearly any other point for countless reasons. There is no magic line that once crossed cannot be uncrossed, and laws will always be followed to the extent that the people demand that they be followed, and broken to the extent that people allow it.

  2. JB,

    Thanks for the clarification on who caught Hamdi. My opinion was not due to the AK-47; people in Afghanistan as well as the Northwest Frontier areas of Pakistan carry them routinely and that may be the way of life there.

    Everyone seems to agree on Padilla case. Does anyone think the Supreme court may NOT have jurisdiction over what happened in Afghanistan during the war? That’s what the Wall Street Journal editorial indicated.

  3. zorel,

    Well, the issue now is that he is in the U.S., and he is an American citizen; the case Johnson v. Eisentrager (1950) deals directly with the issue of where and where not the U.S. courts have jurisdiction. In that case some Germans convicted by a U.S. military court in China filed a habeas corpus petition with the U.S. courts; the US Supreme Court said essentially two factors weighed against them granting jurisdiction: (1) there was no real connection with the U.S. in the case (they had never been to the U.S., nor imprisoned there, etc.), and (2) they felt that the policy of allowing such a contest in “war time” was unwise (especially since these people were “enemy aliens” who had fought against the U.S. – rather than being merely non-combatant enemy aliens). The former of these is clearly not applicable here; the latter may be.

    The citation for the case is 339 U.S. 763; and you can find it on FindLaw.

  4. It should be noted that there is no principled definition of the terms “enemy combatant,” POW, etc. They are just terms people throw about to sound either “ominous” or “thoughtful” or etc. Indeed, if one looks at the executive order authorizing the detentions, essentially an enemy combatant is anyone the Bush people think he is. There is similar legal doctrine – BTW – in France and Britain.

  5. I wonder whether the court will make a distinction between the two guys. Hamdi was caught in a war zone (apparently fighting for the enemy); while Padilla was arrested on his home soil.

    I can’t see how they can lockup Padilla without charging him in a court of law.

  6. I recognize that this might flag me as narrow minded, but, to me, you can call a foreign national anything you want. I’ll let the threat of tit-for-tat check overreach for non citizens.

    A friggin’ US citizen can NOT be treated this way by the US government, though. Due process is non negotiable for citizens. Allowing the prosecution to decide who gets to mount a defence and who doesn’t seems lunatic to me.

  7. zorel,

    No one really knows if that story is true; he was captured by the Northern Allaince, and as they had a monetary incentive to capture any adult with an AK-47, Hamdi may be simply an innocent person swept up into their net. I do not claim that Hamdi was working for UNICEF; I do think that at least some investigation into the factual predicates of his detention is warranted however.

  8. zorel,

    BTW, having an AK-47 in Afghanistan – something the Bush administration has continually made into something important – is not really all that important. This is the “wild west” as a friend from the JTF 2 has told me.

  9. I listened to part of the Padilla proceedings last night when CSPAN aired the audio recording. I heard a small portion of the gov’t’s case, and then the presentation of Padilla’s lawyer. She made no mention of Hamdi, so I assume the cases are being handled separately.

    Padilla’s lawyer steered clear of the most fundamental question: Nowhere in the Constitution does it say that a citizen captured in the US can be held indefinitely at the whim of the executive without trial. She instead argued that if such a thing is permissible Congress will have to enact a law, and she assured the court that if they rule as she asks the Congress will undoubtedly enact a gulag statute, thereby making indefinite detention perfectly legit.

    In other words “All we really ask is that the legislative branch be involved in the trashing of the Constitution. It’s improper for the President to trash the Constitution all by himself.”

    Nobody addressed the basic issue: The Constitution bars the gov’t from holding people indefinitely without trial at the whim of the executive.

    Really, I think this is the most important case to ever go before the Supreme Court. We’re finally at the breaking point, and the gov’t is asserting the power to hold anybody it wants without trial or charges. You can say what you will about how the circumstances of Padilla’s case legitimize the action, but the whole point is that your assessment required you to review some evidence and reach that conclusion, and my point is that when somebody is being detained then at some point there should be some sort of appeal or review or trial or whatever.

    If the gov’t is allowed to have gulag power then this will no longer be America. Call me paranoid, but that sort of power is simply too great to grant to the government: The power of indefinite detention without appeal or trial. If they are allowed to have that power then this will no longer be a free country, it will instead be a country where your freedom is contingent on the whim of the President. I’m not predicting a massive gulag initially, but it will surely come to that over time. Maybe not under this administration, but eventually.

    This is really the most desperate moment for freedom in America.

  10. Unfortunately, the Supreme Court doesn’t have the best track record when it comes to preventing government from eviscerating the Constitution. The power to suppress political speech is too great a power to give to the government, but the SC handed that over without a second thought. As always, I’m hoping the Constitution prevails, but I’m not holding out much hope.

  11. In other words “All we really ask is that the legislative branch be involved in the trashing of the Constitution. It’s improper for the President to trash the Constitution all by himself.”

    Shades of Alan Dershowitz’s “torture warrant” proposal! aka “If we’re going to violate the Fifth Amendment, you’ve got to let us lawyers in on the action.”

    If the gov’t is allowed to have gulag power then this will no longer be America.

    Agreed. Makes a nice “Libertarians for Kerry” litmus test too. If JFK2 will NOT unambiguously declare that he rejects the Bush Administration’s thesis in the case, he’s not the alternative we need.

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