posted
Eric, and Dag, thanks for the details. I much prefer fact than fighting. Under the rules listed above this is much better than I feared, but I still have a few problems.
Most conversations about this have in the past gone,
Q: "Why are we locking people up with out trial." A: "Because he was going to bomb Chicago." Q: "How do we know that?" A: "The people locking him up tell us so."
In truth that this ruling states is, "he has commited acts of violence in the past against his government." This is called treason.
So why go to this trouble when we could have just as easilly arrested him for committing Treason. There are three possible answers.
1) Someone in the Government really wanted the power to inprison people at their whim. This is very unlikely, and there is no evidence of such a conspiracy. THAT DOES NOT RULE OUT THAT THIS COULD BE USED AS A PRECEDENT FOR SUCH MISUSE OF POWER IN THE FUTURE! Do I think President Bush would arrest a Democratic challenger? No. Do I think some future president might try to get rid of his opponents this way? Yes.
2) There are sources of information that would be divulged if this went to trial. But we have arrested spies in the past. There are ways to keep such sources and such procedings secure. We did it during the entire Cold War with few problems.
3) Padilla is a source of information himself. Once he is sent to prison, there is no legal way to extract that information from him using the quasi-legal/quasi-torture tactics that the intelligence community has used in the past. Hence lock him up not to stop this attack, but to get information to stop other attacks.
The problem is that once he is so designated, he remains an Enemy Combatant until the end of the war, or until a beaurocrat realizes that a)his usefulness as a source of information is ended, and b)that beaurocrat has the power to tranfer him to a normal prison and redesignate him as a Traitor.
This is what I beleive was behind the Enemy Combatant designation, that and the belief that if it were made acceptable by the public, other US Citizens who plaid traitorous acts could be interrogated without the usual protections of the law in order to save US citizens from further attacks. A noble ends, but I don't believe they justify the means.
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I understand the distinction between punishment and detention, although I think that applies to many criminals. We keep some of them behind bars to keep them from hurting people as well.
I have trouble with the German soldier analogy. US citizens shooting US soldiers, or planting bombs, or spying on military plans during WWII would have been guilty of crimes and tried. Even in e parte Quirin the court held that the defendants did not hold US citizenship (even in the case of Haupt, whose parents were naturalized citizens, the government held that "on attaining his majority he elected to maintain German allegiance and citizenship or in any case that he has by his conduct renounced or abandoned his United States citizenship."
"Enemy combatants" aren't "citizens" of Al-Qaeda. Padilla was arrested on US soil and is a US citizen.
Also the declared war with Germany is a wholly different animal than the "war" on terror. Which, as I have said is vague and can be stretched to mean almost anything? Are we giving the executive branch war powers forever?
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posted
So I went to Ornery looking for the "Freakonomics" column, but it wasn't there. Instead, there was a Katrina column, which I read. In it, OSC said:
quote:Of course none of these people really think President Bush could have predicted or prepared any better than he did. There are agencies that are supposed to prepare, and they did their job up to any reasonable standard. Only idiots would really believe that any part of this disaster or its aftermath was the fault of the President.
which reminded me that this bit was left hanging.
I said, in response to something DarkKnight said (in the first quote):
quote:
quote:So you are saying that the Presidnet should have unlimited power to do anything that he (or she) sees fit to prevent these things from happening? If the President has total responsibility for all levels of handling a crisis, then he must be in absolute charge of all levels. States should have no say in anything that happens, the President will have absolute authority over every aspect of life. We would have to live in a total dictatorship for this to work the way you said. It's like saying if a newly hired custodian at a school commits a terrible act against a child, we blame the Superintendent, and take action against the Superintendent because that office is ultimately responsible while not bothering to look at the school, Human Resources, and other departments and see what action must be taken there to prevent future occurences.
I wasn't aware that anyone was saying that the President has total responsibility or that the problems here were because he didn't have enough power. I know my complaints center around the poor use that the President put to the considerable power he does have.
The errors in execution were numerous and it will obviously take some investigation to figure out who exactly screwed which pooch. There are some clear federal foulups, like the inability to establish communications for nearly 5 days after the hurricane hit.
However, what I'm making an issue of is not problems in execution but rather the general lack of planning and preparedness on a federal level. The federal Department of Homeland Security was not at all prepared to handle something like this. And yet, having it prepared is both well within the President's powers and was an explicit promise he made to the American people. Many of the grave flaws in the response here were in communication and coordination, whcih fall directly into the responsiblities of DHS and FEMA. The President had everything he needed to ensure that these agencies were ready for their roles here.
Or maybe you disagree. What extra powers did the President need to appoint someone comptetent to the head of FEMA? What extra powers did he need to have DHS and FEMA develop working relationships and plans with the various local authorities in potential trouble spots? How about having them train enough to prepared for such things as setting up communication systems in a devestated area or coordinating federal and state and city resources?
These are exactly the same things we're going to need in the event of a terrorist attack. But they are obviously not there now. It makes me wonder, other than invading two countries, one involved, one not, and curtailing civil rights, what exactly the Bush administration has been doing to deal with terrorist threats? What are their plans and what have their actions been? Because it's clear the readiness and preparedness they showed in response to New Orleans were greatly deficient.
and now I wonder, DarkKnight or others, whether there seems to be any validity to my statements or if I'm just the idiot that OSC said I was.
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posted
Not sure why we are talking about Katrina on this thread rather than on one of the many Katrina threads - but I'm game.
According to the Congressional Research Service (a nonpartisan office that works for the entire Congress) Governor Blanco followed all the necessary steps to request federal aid and, under the Stafford Act, the federal government had the authority needed to provide that aid.
quote: I wasn't aware that anyone was saying that the President has total responsibility or that the problems here were because he didn't have enough power. I know my complaints center around the poor use that the President put to the considerable power he does have.
The problems did not stem from the President. The problems stemmed from local and state government, LA Dept of Homeland Security NOT taking the right steps or following any of their own plans. Your complaints are misplaced.
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quote: However, what I'm making an issue of is not problems in execution but rather the general lack of planning and preparedness on a federal level.
The problems started at the local and state level. They were completely unprepared, and did nothing to help the problem. The Federal level could do nothing without the local and state levels acting first. and now back to what this thread should be about...
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Forget the current political situation, for now. Forget Hamdi and Padilla. Forget the War on Terror.
On behalf of an enemy fighting a war against Country C, Person X engages in combat against Country C. Country C captures Person X.
There are only four real options for how Country C can unilaterally (i.e., not taking into account prisoner exchanges or other concessions by the enemy) deal with Person X:
1. Kill or permanently incapacitate Person X. 2. Keep Person X in custody as long as hostilities last. 3. Keep Person X in custody longer than hostilities last. 4. Keep Person X in custody shorter than hostilities last.
If you object to #2 on the basis that hostilities may last a very long time, then that means you must favor #4.
However, unilaterally releasing prisoners so they can rejoin the fight against Country C does not make sense, assuming Country C wants to win the war. Therefore, I do not see #4 as a viable option.
If, in the abstract, you see #4 as making sense, then there's really no point in discussing the issue further, and we will have to agree to disagree.
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posted
Options 2, 3, and 4 do not preclude giving Person X a fair trial, particularly when Person X is entitled to one under the laws of Country C.
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Define "engage in combat". Are we talking about blowing up bridges? Disclosing classified information? Making a contribution to a "terrorist" organization? Some have claimed that war protests are treasonous. Who decides?
Certainly some of the above are already against the law and some should not be. If people break the law they are tried and, if convicted, detained. If we think the laws are insufficient, we have a constitutional remedy for that.
Again, are we allowing the executive branch to suspend habeas corpus forever?
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posted
Quick caveat, which doesn't change my outrage over this decision: 2, 3, and 4 do not generally require fair trials. They require at most a hearing for citizens of the country one is at war with.
I mention it only because my outrage is based on the precise level of due process being denied to Hamdi and Padilla, so the proper amount of due process is important when analyzing this.
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Remember, we're talking in the abstract here, and not about Hamdi, Padilla, or any particular war.
Assume Person X in the example has committed no crime. Exactly what would you hold a trial for?
The mere fact that you suggest a trial shows that you're still not understanding the basic distinction between detaining an enemy combatant and punishing someone for a crime. An enemy combatant does not need to be charged with a crime, because it's possible for an enemy combatant to have acted entirely legally. And where there is no crime, there can be no charge, no trial, and no sentencing.
If you take the position that a detention can only be legitimate if there is a trial and sentencing, then it is impossible to detain enemy combatants who have followed the rules of war. They must be released to continue fighting against Country C.
Is that your position?
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posted
I am talking hypothetically. My question is, what has he (or anyone else - give me some examples) done that makes him an enemy combatant? How do we know he's an enemy combatant if he (or she) hasn't done anything? Somebody's say so. Who?
Must go now. On my way to DC for the protest. Look forward to your response on Monday.
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posted
Trying to be more clear. What legal actions are we keeping someone from performing by detaining them?
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posted
I understand the distinction just fine; I'm simply narrowing your example to make it relevant. I said "particularly when Person X is entitled to one under the laws of Country C." For example, if Person X is a citizen of Country C and the laws of Country C state that a person cannot be detained without charges or hearing/trial, then no, Person X cannot be detained indefinitely. On the other hand, if Person X is not entitled to a hearing/trial under the laws of Country C, then naturally Person X should not expect to receive one.
It depends entirely on the relationship between Person X and Country C (citizen? Landed immigrant? Foreign citizen?) and the laws of Country C. Since your example is so broad that neither of these things is specified, your question cannot have a simple yes/no answer.
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quote: If you take the position that a detention can only be legitimate if there is a trial and sentencing, then it is impossible to detain enemy combatants who have followed the rules of war.
Nope. Because then they're prisoners of war. But identifying someone as an enemy combatant who has not properly identified themselves, and thus violated the Geneva Conventions, is the tricky part.
What you're missing, EJS, is that "enemy combatants" are called enemy combatants precisely because they do not qualify as prisoners of war. But we have no real way to determine whether a U.S. citizen can be called an "enemy combatant;" presumably a trial should be required.
Posts: 37449 | Registered: May 1999
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posted
> What legal actions are we keeping someone from > performing by detaining them?
Well, for one example: In a war, it is not illegal for combatants on either side to shoot at each other during combat. That's why we don't put soldiers on trial for murder when they shoot enemy soldiers in battle.
However, even if enemy soldiers shooting at your troops is not illegal, you want them to stop doing it. So if you capture them, you detain them, rather than turn them loose to start shooting at your men again.
Have fun at your protest. I doubt you'll ever be back to read my response, though, because if the government can detain someone like Padilla indefinitely as an enemy combatant, then they'll probably do that to you, too. Posts: 99 | Registered: Nov 2003
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Prisoners of war are a subset of enemy combatants. The subset is defined by adherence to certain rules.
If indefinite detention for the duration of hostilities is acceptable for prisoners of war -- who do follow the rules -- then surely it must be acceptable for enemy combatants who do not follow the rules.
Or is it your position that prisoners of war are entitled to fewer rights than enemy combatants who do not qualify as prisoners of war?
So, if I'm in uniform and carrying a gun while guarding a bridge, and your troops surround me and I surrender, then I'm a prisoner of war and you can put me in a POW camp until the war is over, even if I surrendered without firing a shot.
But under the exact same circumstances, if I'm not wearing a uniform, then I don't qualify for POW status. I'm an enemy combatant. Should I be charged with something and given a trial? What should I be charged with - failure to wear a uniform? What's the maximum sentence for that? With time off for good behavior, can I get out before the war is over?
Look, the first question boils down to this: can an enemy combatant (POW or not) be held until hostilities are over?
Once we have answered that question, we can move on to the question of what kind of process is necessary to determine whether someone is an enemy combatant, and whether citizenship status should make a difference. But until that first question is answered, there's no point in discussing the second, because if enemy combatants can't be held indefinitely, no process is enough.
Posts: 99 | Registered: Nov 2003
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quote: Prisoners of war are a subset of enemy combatants.
Not unless "enemy combatants" are being defined quite differently.
quote: But under the exact same circumstances, if I'm not wearing a uniform, then I don't qualify for POW status. I'm an enemy combatant. Should I be charged with something and given a trial?
If you're using that hypothetical, here's one for you: you're standing on a bridge with no uniform. A bunch of soldiers wishing to use the bridge rush up, capture you, and throw you in jail indefinitely. What is your recourse for complaint?
I don't think anyone is arguing that enemy combatants cannot be detained for some period. The argument hinges around whether people merely accused of being enemy combatants are entitled to legal protection.
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posted
> Not unless "enemy combatants" are being defined > quite differently.
Let me see... Plain meaning of the words? Someone who is both and enemy and a combatant. Are you claiming that prisoners of war are not enemies, or that they are not combatants?
Perhaps you're confusing "unlawful combatant" with "enemy combatant." "Unlawful combatants" and "prisoners of war" are mutually exclusive sets, but "enemy combatants" covers both cases. See http://en.wikipedia.org/wiki/Combatant for an explanation.
Now that we've cleared that up...
> The argument hinges around whether people > merely accused of being enemy combatants are > entitled to legal protection.
I don't think the argument hinges there at all. As I said earlier in this thread:
quote:The U.S. Supreme Court has ruled that U.S. citizens designated as enemy combatants can be held indefinitely, but that they must be given a meaningful opportunity before a neutral decisionmaker to contest that designation.
I don't think anyone here is arguing that if there's a genuine issue as to whether someone is actually an enemy combatant, there should be no legal recourse.
But we do have people arguing that at least some enemy combatants should be put on trial instead of detained indefinitely.
Posts: 99 | Registered: Nov 2003
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quote: But we do have people arguing that at least some enemy combatants should be put on trial instead of detained indefinitely.
No, see, that's where I think you're wrong. I think most people here object to the presumption that the people involved -- who have not had trials -- are enemy combatants.
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posted
And let me make it clear that, though I am generally a Bush supporter, I do not agree with the Bush administration's stance in the Hamdi case, which was that there was no need for an independent determination of the designation of a U.S. citizen as an enemy combatant. In fact, I'm somewhat sympathetic to Scalia's dissent, which argued that a habeas corpus proceeding was appropriate and that he should be released unless criminal proceedings were started or Congress suspended the writ of habeas corpus.
However, I also believe there's a legitimate argument to be made for holding enemy combatants -- citizens or not -- for the duration of hostilities. Trial and conviction for a crime might still allow the enemy combatant to go free before the end of hostilities, enabling him to rejoin the fight. Trials also might require the government to choose between publicly disclosing intelligence sources still needed in the ongoing conflict, and failing to make a sufficient case for conviction.
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posted
> No, see, that's where I think you're wrong. I > think most people here object to the > presumption that the people involved -- who > have not had trials -- are enemy combatants.
And my first post on this topic was to try to clear up the wrong idea some people have that if the Bush administration labels a U.S. citizen an enemy combatant, the citizen can't contest that designation.
If you believe that, you are wrong. If anyone believes that, they are wrong, too.
quote: Well, for one example: In a war, it is not illegal for combatants on either side to shoot at each other during combat. That's why we don't put soldiers on trial for murder when they shoot enemy soldiers in battle.
However, even if enemy soldiers shooting at your troops is not illegal, you want them to stop doing it. So if you capture them, you detain them, rather than turn them loose to start shooting at your men again.
So if I go trotting up to my nearest military base and start blasting away at soldiers, I'm not breaking any law?
BTW, the protest was amazing .
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quote: It also concluded that Hamdi is entitled only to a limited judicial inquiry into his detention’s legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure.
Tell me how you would contest an assertion that you were an "enemy combatant" without being entitled to a "review of the factual determinations underlying (your) seizure."
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posted
I would like to say that this is the first discussion about this topic I have had where I really learned something about this, something that I didn't already know from being s soldier.
I may not agree with some of the points made here, but I think that it is a good thing that the level of discourse has not escalated..at least not yet.
Eric, while I may not agree with all your points, and as TomD mentioned I see some serious holes in it, thank you for responding with actual logic rather than just attacking people who disagree with you as somehow un-American or traitors.
Yes, I have seen people make both accusation, sadly.
I think I understand where you are coming from, and I find that I agree with more of what you are saying than I do with most people who argue your side of this issue.
I know I was amazed by how dishonest the signs were, not to mention how incoherent most of the protestors I tried to get into discussions with were.
Posts: 26071 | Registered: Oct 2003
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> So if I go trotting up to my nearest military > base and start blasting away at soldiers, I'm > not breaking any law?
Not if you're an enemy soldier. It's why Germany doesn't put American soldiers from WWII on trial for murder for killing German soldiers. It's why we didn't try German soldiers for killing American troops.
There are laws and rules about war, and one of them is that people who are acting properly within the rules of war are not committing crimes, even if the act would be a crime when not committed by someone acting within the rules of war.
Look, it's a very simple concept to understand, and the fact that you don't seem to understand it puzzles me.
TomDavidson,
You need to read more carefully. What you've quoted is a description of the holding of the appeals court -- and that holding was vacated by the Supreme Court. If you read a little further, you will find:
quote:Justice O’Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. Pp. 14—15.
Justice Souter, joined by Justice Ginsburg, concluded that Hamdi’s detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant. Pp. 2—3, 15.
That's six justices in favor of a meaningful opportunity to offer evidence that he is not an enemy combatant, and last time I counted, that was enough to form a majority of the Supreme Court.
Right or wrong, it's the current law of the land, folks. Feel free to argue whether that's the standard that should be used, but please don't argue any more that citizens can be locked up as enemy combatants without any chance to dispute that designation.
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posted
When Scalia and Stevens agree on something, it's worth taking notice. From the link to their dissent on the page linked above:
quote:Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below.
quote:The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.
quote:Thus, criminal process was viewed as the primary means–and the only means absent congressional action suspending the writ–not only to punish traitors, but to incapacitate them.
quote:A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions.
quote:there is a world of difference between the people’s representatives’ determining the need for that suspension (and prescribing the conditions for it), and this Court’s doing so.
quote:As usual, the major effect of its constitutional improvisation is to increase the power of the Court. (I couldn't resist throwing this one in. )...It claims authority to engage in this sort of “judicious balancing” from Mathews v. Eldridge, 424 U.S. 319 (1976), a case involving … the withdrawal of disability benefits! Whatever the merits of this technique when newly recognized property rights are at issue (and even there they are questionable), it has no place where the Constitution and the common law already supply an answer.
quote:Moreover, even within the United States, the accused citizen-enemy combatant may lawfully be detained once prosecution is in progress or in contemplation. See, e.g., County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (brief detention pending judicial determination after warrantless arrest); United States v. Salerno, 481 U.S. 739 (1987) (pretrial detention under the Bail Reform Act). The Government has been notably successful in securing conviction, and hence long-term custody or execution, of those who have waged war against the state.
quote:I frankly do not know whether these tools are sufficient to meet the Government’s security needs, including the need to obtain intelligence through interrogation. It is far beyond my competence, or the Court’s competence, to determine that. But it is not beyond Congress’s. If the situation demands it, the Executive can ask Congress to authorize suspension of the writ–which can be made subject to whatever conditions Congress deems appropriate, including even the procedural novelties invented by the plurality today. To be sure, suspension is limited by the Constitution to cases of rebellion or invasion. But whether the attacks of September 11, 2001, constitute an “invasion,” and whether those attacks still justify suspension several years later, are questions for Congress rather than this Court. See 3 Story §1336, at 208—209.6 If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court.
quote:“Safety from external danger,” Hamilton declared, “is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free.” The Federalist No. 8, p. 33.
The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.
By the way, Scalia is one of the most widely misunderstood jurists; this decision encapsulates a lot of his judicial philosophy, including why "textualism" is a wholly inadequate name for it.
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posted
You know, in reading those quotes, I'm leaning even more toward Scalia's point of view. When Scalia and Thomas disagree (which is more often than you might think), I generally find myself agreeing with Thomas. But in this case I think Scalia may have the better argument.
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> So if I go trotting up to my nearest military > base and start blasting away at soldiers, I'm > not breaking any law?
Not if you're an enemy soldier. It's why Germany doesn't put American soldiers from WWII on trial for murder for killing German soldiers. It's why we didn't try German soldiers for killing American troops.
There are laws and rules about war, and one of them is that people who are acting properly within the rules of war are not committing crimes, even if the act would be a crime when not committed by someone acting within the rules of war.
I'm not talking about German soldiers in WWII; I'm talking about U.S. citizens, subject to U.S. laws. We don't have a declaration of war against a country here. There is nothing temporary or emergency about this. Now, for the foreseeable future, "meaningful opportunities" (whatever that means) can replace trials on the say-so of the executive branch. Where is the separation of powers?
I'm puzzled that you cannot understand that this is a serious erosion of our constitution.
quote: When Scalia and Stevens agree on something, it's worth taking notice.
As it is when Dagonee and I agree on something.
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You keep bringing in extraneous information so that you never have to answer whether or not you believe enemy combatants can be held for the duration of hostilities.
So, let me ask it in a way you can answer with a simple yes or no.
If World War II were still going on today (which would still make it shorter than the Hundred Years War), do you believe that it would be legitimate for the U.S. to detain German and Japanese POWs indefinitely without charging them with a crime?
> I'm puzzled that you cannot understand that > this is a serious erosion of our constitution.
Well, since I'm leaning toward Scalia's viewpoint (which is that citizens should be either charged with a crime or released, unless Congress explicitly suspends the writ of habeas corpus), I think you underestimate the seriousness with which I take this issue. But I am also capable of seeing a legitimate argument on the other side.
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posted
It isn't extraneus information. It is entirely relevant to what has actually happened. You keep stretching a hypothetical to outlandish lenghts.
If WWII were still going on today (which it isn't) and were a declared war (which is not the situation)I imagine that there would be the possibility of POW exchange (as was the case in the long-term wars of Europe and even in the Civil War here. Even if for some reason that were not possible, I would rather that the US incurred the danger of releasing those soldiers back to their countries than become a country full of the detention and internment camps needed to detain all these prisoners.
So I guess the "simple answer" would be "no".
For example, in a situation much closer to reality than your hypothetical, the policy of internment in Northern Ireland was a bad thing as was the internment of citizens of Japanese descent during WWII.
Now, will you answer my question with a yes or no? Do you think the President or the military should be able to imprison US citizens on his (or her) say so?
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quote:Now, will you answer my question with a yes or no? Do you think the President or the military should be able to imprison US citizens on his (or her) say so?
To be fair, EJS hasn't advocated this. He seems to have recognized the necessity for at least the protection outlined in Hamdi, which requires some sort of judicial oversight.
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posted
I didn't say he advocated it. He has been pretty clear that he doesn't. What I am concerned with is learning what exact safeguards are in place to insure our constitutional right to a trial. Padilla seems to have further eroded these.
How is the ruling in Padilla different from a suspension of habeas corpus? I'm sure there are diferrences - I want to know what those are.
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posted
> So I guess the "simple answer" would be "no".
Thanks for answering. Since I would answer that question "yes," it shows a fundamental point of disagreement between us -- one which cannot really be argued more than we already have.
> Do you think the President or the military > should be able to imprison US citizens on his > (or her) say so?
Yes.
Now, before you condemn me as someone unconcerned with civil liberties, let me point out that you left out the word "indefinitely" from your question. If that word were there, I would answer "no."
I believe there may be circumstances where detaining U.S. citizens for a short period of time would be reasonable, just on the military's or the President's say-so. For example, if the military captures people on the battlefield, the determination as to whether they are U.S. citizens and whether they were actually enemy combatants or merely bystanders does not need to be made immediately while the military is still under fire from the enemy. Holding them for a reasonable amount of time until their status can be determined seems acceptable to me. A "no" answer to your question would require some sort of judicial determination on the battlefield before anyone claiming U.S. citizenship could be captured and held.
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quote:How is the ruling in Padilla different from a suspension of habeas corpus?
Padilla follows Hamdi, pretty much to the letter.
Read Scalia's dissent in Hamdi (linked above) for a full description of the differences and similarities. He says it better than I can.
Posts: 26071 | Registered: Oct 2003
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posted
That makes a certain amount of sense and I agree. We may differ on what is a "short" or "reasonable" period of time. I want the period of time defined. There is no foreseeable end to the "War on Terror", so claiming that we are in "battlefield" conditions for the duration of it gives the military and the executive branch too much power.
Am I making sense so far?
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quote:We may differ on what is a "short" or "reasonable" period of time. I want the period of time defined. There is no foreseeable end to the "War on Terror", so claiming that we are in "battlefield" conditions for the duration of it gives the military and the executive branch too much power.
I see two completely different time periods being talked about here.
1. The period for which the military can hold a U.S. citizen as an enemy combatant before allowing the citizen to contest that designation before a neutral authority.
2. The period for which the military can hold a U.S. citizen as an enemy combatant if the neutral authority determines that designation is accurate.
For #1, with the detainee in custody outside of an active combat zone, I think the reasonable length is very short -- a matter of only a few days at most (although the detainee can ask for a delay if more time is needed to prepare to show that the detainee is not an enemy combatant.)
In an active combat zone, transfering the detainee ouside of the zone may take a while, so I'd be more flexible on the time frame.
As for #2, well, I think it's reasonable to hold enemy combatants for the duration of hostilities. You do not.
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posted
I'm still curious as to how you're going to define "neutral authority" with a straight face.
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On a related topic, here are two paragraphs from a letter written by a Captain of the 504th Parachute Infantry to Senator McCain. I've selected these only to make a larger moral point, mind you, and not because I think they're immediately relevant to this determination:
quote: Some do not see the need for this work. Some argue that since our actions are not as horrifying as Al Qaeda’s, we should not be concerned. When did Al Qaeda become any type of standard by which we measure the morality of the United States? We are America, and our actions should be held to a higher standard, the ideals expressed in documents such as the Declaration of Independence and the Constitution.
Others argue that clear standards will limit the President’s ability to wage the War on Terror. Since clear standards only limit interrogation techniques, it is reasonable for me to assume that supporters of this argument desire to use coercion to acquire information from detainees. This is morally inconsistent with the Constitution and justice in war. It is unacceptable.
posted
Tom, since what everyone is asking for is review before a "neutral authority," I'm wondering what you're getting at.
If you don't consider judges neutral, then the problem isn't solved by criminal proceedings, either.
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A couple more questions as to how this applies to the current situation.
What is a "neutral authority"? Why can't we use the courts for this? Again, for US citizens, what can they do that is dangerous that isn't also against the law? Padilla (for example) was planning to blow up a plane. This is a criminal act for a US citizen while it may not be for citizen of a country with whom we are at war.
quote: For #1, with the detainee in custody outside of an active combat zone, I think the reasonable length is very short -- a matter of only a few days at most (although the detainee can ask for a delay if more time is needed to prepare to show that the detainee is not an enemy combatant.)
In an active combat zone, transfering the detainee ouside of the zone may take a while, so I'd be more flexible on the time frame.
Are we doing that? Is it only taking a few days for the people we have detained?
quote:As for #2, well, I think it's reasonable to hold enemy combatants for the duration of hostilities. You do not.
Not when we have only the military or the President deciding whether they are enemy combatants. Especially not when the "duration of hostilities" is endless. The "war on terror" is a different thing than the war with Germany and Japan. If we give up these protections, we may be giving them up forever.
Do you understand that this is a different situation than German soldiers on a battlefield in WWII?
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quote: Tom, since what everyone is asking for is review before a "neutral authority," I'm wondering what you're getting at.
If you don't consider judges neutral, then the problem isn't solved by criminal proceedings, either.
I consider a "neutral authority" much more likely to be possible in an atmosphere of openness, with general evidentiary procedure followed. Do you think military tribunals are acceptably "neutral" for a determination which could, as Erik advocates, result in detaining individuals indefinitely when engaged in a war against a hypothetical?
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posted
It seems to me Erik has been advocating the Hamdi methodology, which guarantees a certain level of due process protections. Remember, Padilla is following Hamdi - that's why it reached the Circuit Court of Appeals.
Here's what the Hamdi decision says about the use of military tribunals:
quote:There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. See Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190—8, §1—6 (1997). In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved. Both courts below recognized as much, focusing their energies on the question of whether Hamdi was due an opportunity to rebut the Government’s case against him. The Government, too, proceeded on this assumption, presenting its affidavit and then seeking that it be evaluated under a deferential standard of review based on burdens that it alleged would accompany any greater process. As we have discussed, a habeas court in a case such as this may accept affidavit evidence like that contained in the Mobbs Declaration, so long as it also permits the alleged combatant to present his own factual case to rebut the Government’s return. We anticipate that a District Court would proceed with the caution that we have indicated is necessary in this setting, engaging in a factfinding process that is both prudent and incremental. We have no reason to doubt that courts faced with these sensitive matters will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns.
This will, by its nature, require following "general evidentiary procedure."
As of now, in the citizen context, these are being adjudicated in courts. If and when the tribunals are used, there will still be access to appeals courts.
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quote:As for #2, well, I think it's reasonable to hold enemy combatants for the duration of hostilities. You do not. -------------------------------------------------- Not when we have only the military or the President deciding whether they are enemy combatants.
If you look at #2, it specifically says "if the neutral authority determines that designation is accurate." So your objection does not apply.
As for what a neutral authority is, right now that means federal courts. The Supreme Court did leave open the possibility that some form of military tribunal could serve that function:
quote:There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention.
Of course, the same objection TomDavidson raises ("Do you think military tribunals are acceptably "neutral" for a determination which could, as Erik advocates, result in detaining individuals indefinitely when engaged in a war against a hypothetical?") also applies against military tribunals determining POW status in accordance with the Geneva Conventions.
While mistakes and/or bad faith are always possible, I don't think our military actually wants to indefinitely detain people who are not enemy combatants.
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posted
Thanks, Eric. I'm good with Federal Courts. A military tribunal is a different thing. I'm looking for separation of powers. I don't think our military want to detain people either. But we have specific protections in place whether we need them right now or not.
I don't want to see these protections eroded.
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