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For the last three years, the Bush administration has taken the position that the Constitutional rights of American citizens can be suspended by executive authority; and, for three years, the administration has avoided the Supreme Court's judgment of that position in the case of Jose Padilla. Its action in the Padilla case signals the administration's intention to avoid the Supreme Court's judgment on the merits of its position for the foreseeable future. The administration's public presentation of its rationale for that position appeals to our fears. For an important interpretation of what is involved in the Padilla case, see: Lewis Z. Koch,"Dirty Bomber? Dirty Justice," Bulletin of Atomic Scientists, January/February 2004, 59-68. Thanks to Rick Perlstein for the tip.
You said:
"If that were the case with regard to the Global War Against Violent Extremism (I think that's what we're calling it these days) then Congress could declare a state of war and give the President the relevant powers. That's their job."
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Do you mean Congress could do something like authorize the President 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."
Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
Since the Quasi-war with France, various Indian Wars, and all wars subsequent to WWII such declarations of authority to use military force are considered the equivalent of a "declaration of war" (though their international law effect and particularly the activation of treaties the U.S. is signatory to is somewhat different). Indeed, they are seen as the equivalent of a declaration of war in the War Powers Resolution .
Jonathan Dresner -
11/27/2005
Mr. Lederer, the reason I haven't bothered responding is that it's an irrelevancy and a reductio ad absurdum fallacy at best: the Civil War was fought between well-defined states, with uniformed and organized armies.
If that were the case with regard to the Global War Against Violent Extremism (I think that's what we're calling it these days) then Congress could declare a state of war and give the President the relevant powers. That's their job.
Ralph E. Luker -
11/27/2005
Mr. Lederer, Every statement about the case cannot replicate all of the facts and allegations in the case. A murderer's or a rapist's civil rights as an American citizen would still be his. You hold onto your fears. I'll hold onto my civil liberties.
John H. Lederer -
11/27/2005
The point is simply thrown in to demonstrate the absurdity of routinely requiring a civilian court to determine whether someone is a enemy combatant.
Suppose there were 300,000 confederate soldiers captured during the civil war -- each of them a putative "U.S. citizen", given Union arguments about secession. To give each of them a civilian trial would require 12 jurors x 300,000 , or 2.4 million jurors- an appreciable amount of man power even assuming short trials. To that of course one might add the necessity of witnesses ("Yes I saw the defendant. He was third from the left in Pickett's Division on July 3rd at Gettysburg, wearing butternut clothes. I particulary noted him because he was running, yelling, and thrusting his rifle, which had a long shiny bayonet on the end, at me.")
The point is that armed organized conflict is something not amenable to normal civilian processes.
The counter argument would be that Padilla, even if he had been previously observed on the battlefield under arms, was not "on the battle field" at O'Hare airport. However, the Haupt case suggests that this is not a material difference.
My objection to the statement of the case in the entry on Cliopatria is that the only identification of Padilla is as an American citizen. The determinative fact that he actively waged war against us is omitted from the summary.
This omission, of course creates an appeal to emotion -- we can all identify with " American citizens" and be concerned about whether this might happen to us. Few if any of us, however, can identify with carrying arms against the U.S. The emotional argument made by the omission is ironic given the entry's objection to "appeals to our fears".
William Hopwood -
11/27/2005
"...It comes down to a question of trust: do you trust the government enough to give it the authority to take away your liberty without review? Some of us don't."
Arguments such as that either ignore or unrealistically downplay the special conditions caused by the existence of a state of war and the extraordinary national security burden resulting therefrom. In that connection, the late Chief Justice Rehnquist quoted Justice Jackson from the latter's dissent in Korematsu as having said: "in the very nature of things, military decisions are not susceptible of intelligent judicial appraisal." Rehnquist added in his own words, "But it surely does not follow from this that a court must therefore invalidate measures based on military judgments...Judicial inquiry, with its restrictive rules of evidence, orientation towards resolution of factual disputes in individual cases, and long delays, is ill-suited to determine an issue such as 'military necessity.'" [All the Laws but One--Civil Liberties in Wartime--p.205].
"...Sometimes the historical record seems to say that secrecy was useful; more often, though it seems to say that it was just a thin veneer of public ignorance and served no purpose than to gratify the egos of those involved."
A rather cynical observation. However, I don't believe it can be disputed that normal trial procedures with their rules of discovery, extensive delays, publicity, and the testimony of witnesses would have a chilling effect on the measures used and sources relied upon to gather military intelligence.
Ralph E. Luker -
11/27/2005
Yes, Commander Hopwood. They would be called civilians.
William Hopwood -
11/27/2005
It appears as if Mr. Luker may have misinterpreted Mr. Lederer's last paragraph. As I see it, Mr. Lederer's reference to Union "manpower" is used as in this dictionary definition of the word, namely "men available to a particular group, or required for a particular task." Union soldiers would not have been available as jurors but such duties would necessarily have to have been fulfilled by the remaining available Union population not then serving in the military.
Ralph E. Luker -
11/27/2005
Rethink your concluding paragraph, Mr. Lederer. It simply makes no sense.
If United States citizens captured in armed rebellion against the United States had to be tried by civilian courts, that would not engage _any_ Union soldiers as jurors. I think you got carried away by the illogic of your argument.
John H. Lederer -
11/26/2005
Something is not quite right in the framing of this question.
It leaves out a two crucial facts: Padilla was a person who was a member of the military of a foreign entity (granted an irreegular one) and carried arms against the United States. He was apprehended entering the United States on a mission for that power.
Those facts are critical, for it is the excutive's decision, reviewed by the courts, that he is an "enemy combatant" that fits him within prior Supreme Court precedent. Enemy combatants, even if U.S. Citizens may be detained and tried by military courts (the pertinent case is the Qurin case in which the SUpreme Court heard the appeal of a U.S. Citizen named Haupt, a member of the German Armed Forces in WWII, who had been sent on a mission to the U.S. to blow up facilities.
A fair discussion of Padilla has to state that he was determined, administratively, and by the courts, to be an enemy combatant, for it is that status that makes him detainable by the military.
Note that Padilla's case has already been to the U.S. Supreme Court once on the question of which court should hear his habeas petition.
I suppose in theory if enemy combatants who were U.S. Citizens could not be detained without civilian trial, most of the manopower of the Union would have been tied up as juries during the Civil War, trying the hundred of thousands of "U.S. citizens" captured by the military during the war.
David Silbey -
11/26/2005
Mr. Hopwood would reply to Dr. Dresner's comments, but I'm afraid that he has been declared an enemy combatant by the government and jailed in an undisclosed location.
Jonathan Dresner -
11/26/2005
(1) That a federal judge in Manhattan and a Fourth Circuit Court of appeals had previously held that the President has the right to detain an enemy combatant, even a U.S. citizen, invoking the precedent upheld by the Supreme Court in the Hamdi decision;
Judges are sometimes wrong. That's why we have appeals courts. And reversals. And fury over "judicial activism" (though I think judicial passivity and unwarranted deference to the other branches is at least as much of a problem in cases like this) Also a Congress which has yet to actually speak to this issue.
(3) missing from the debate over Padilla's "civil rights" has been "any discussion of the rights of the rest of us--namely the right to be protected against enemy attack";
Well, it's a balancing act, of course, but to say that it's been missing from the debate is a slur (against people like yourself who bring up the question incessantly, if nothing else). It comes down to a question of trust: do you trust the government enough to give it the authority to take away your liberty without review? Some of us don't.
and (4) the protection of intelligence sources and methods could be compromised by ordinary legal processes to the detriment of national security in cases such as Padilla's.
Could. The track record (I'm talking well beyond the Bush administration here) on things like this is mixed, to be sure. Sometimes the historical record seems to say that secrecy was useful; more often, though it seems to say that it was just a thin veneer of public ignorance and served no purpose than to gratify the egos of those involved.
William Hopwood -
11/26/2005
For another view than that cited by Mr. Luker, I suggest the main editorial in today's (November 25) Wall Street Journal, "Padilla in Court."
The WSJ makes several main points: (1) That a federal judge in Manhattan and a Fourth Circuit Court of appeals had previously held that the President has the right to detain an enemy combatant, even a U.S. citizen, invoking the precedent upheld by the Supreme Court in the Hamdi decision;
(2) that Padilla has become a "civil liberties martyr of the press and the ACLU" and a "a symbol--not of the sort of threat we are up against in the war on terror, but as a victim of the U.S.government";
(3) missing from the debate over Padilla's "civil rights" has been "any discussion of the rights of the rest of us--namely the right to be protected against enemy attack";
and (4) the protection of intelligence sources and methods could be compromised by ordinary legal processes to the detriment of national security in cases such as Padilla's.
