Judges From Another Planet
This is just beyond belief:
Bite me.
Look, let's come back to Planet Sanity, shall we? Consider regular, garden-variety LEGAL combatants (they shouldn't call Padilla an "enemy combatant", he's properly an "illegal combatant).
Tell me, when, in the history of the world, have ordinary prisoners of war EVER had access to lawyers and the legal system?
When? NEVER!
The notion is absurd, as they are not under the jurisdiction of civilian law.
Nor should they be!
And tell me, when, in the history of the world, did people fret over how long a war might last, because it might mean keeping the POWs detained past their bed times?
When? NEVER!
So surely, illegal combatants aren't to be treated more leniently? How could that make sense? Where did this idea that prisoners of war of any kind must be charged with crimes? Just because the war might be indefinite? No war was ever held on a definite timetable, people!!!
That's the fantasy: evil Bushitler is going to start putting away people he dislikes forever, if he can do it to Padilla... So they imagine they're on the front lines of some important civil rights battle, which is more important for them to win than the real battle against the actual people trying to slaughter us by the millions.
Well suppose the power to detain IS abused. Then guess what, the President will be impeached and the problem solved. That's how it's meant to happen.
Those who plead Constitutional Rights are being violated should go read it, and find out the Constitution explicitly allows for the suspension of the Writ of Habeus Corpus when the public safety requires it, such as in the case of insurrection, invasion, or rebellion. Which means, in layspeak, they can lock you up and throw away the key and forget about you forever: because the Founders knew that sometimes that's necessary to preserve the Constitution for everyone else, and checks are put in to stop an overzealous President, which DON'T however include the ACLU eviscerating the power of the President!
So before I hear a peep from anyone, I want to know if they think every war we ever fought was violating the "Constitutional Rights" of ORDINARY combatants that were held indefinitely, and without access to lawyers, and without being charged with any crime.
See, holding POWs is not a criminal matter! They're being detained for our safety, not because they committed a crime!
In Padilla's case, and those like him, the "crimes" of being an illegal combatant are ON TOP of that, and it would be perverse in the extreme to have privileges descent upon them that they otherwise would never have had they been ordinary combatants!
His citizenship status and location of capture should be completely irrelevant.
WASHINGTON - A federal judge ordered the Bush administration Monday to either charge terrorism suspect Jose Padilla with a crime or release him after more than 2 1/2 years in custody.Proud? Proud?
U.S. District Judge Henry Floyd in Spartanburg, S.C., said the government can not hold Padilla indefinitely as an "enemy combatant," a designation President Bush gave him in 2002.
"The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant," Floyd wrote in a 23-page opinion that was a stern rebuke to the government. He gave the administration 45 days to take action.
"We think that this is a wonderful decision," said Padilla's attorney, Andy Patel, as Padilla waited on another line. "It is one of those moments that all Americans should be proud of."
Bite me.
"If everything you say about Jose Padilla is true, prove it," said Denyse Williams, executive director of the American Civil Liberties Union (news - web sites) in South Carolina, which has filed a brief in support of Padilla's attorneys. "Everybody says the war on terror could last a lifetime. If they can do it to him, they can do it to others."That's right -- they CAN, and they SHOULD!
Look, let's come back to Planet Sanity, shall we? Consider regular, garden-variety LEGAL combatants (they shouldn't call Padilla an "enemy combatant", he's properly an "illegal combatant).
Tell me, when, in the history of the world, have ordinary prisoners of war EVER had access to lawyers and the legal system?
When? NEVER!
The notion is absurd, as they are not under the jurisdiction of civilian law.
Nor should they be!
And tell me, when, in the history of the world, did people fret over how long a war might last, because it might mean keeping the POWs detained past their bed times?
When? NEVER!
So surely, illegal combatants aren't to be treated more leniently? How could that make sense? Where did this idea that prisoners of war of any kind must be charged with crimes? Just because the war might be indefinite? No war was ever held on a definite timetable, people!!!
David Salmons from the U.S. Solicitor General's Office countered at the time that the president has the right to detain any enemy combatant while the United States is fighting al-Qaida. But he added there's no risk that the president may round up citizens and detain them.Duh.
That's the fantasy: evil Bushitler is going to start putting away people he dislikes forever, if he can do it to Padilla... So they imagine they're on the front lines of some important civil rights battle, which is more important for them to win than the real battle against the actual people trying to slaughter us by the millions.
Well suppose the power to detain IS abused. Then guess what, the President will be impeached and the problem solved. That's how it's meant to happen.
Those who plead Constitutional Rights are being violated should go read it, and find out the Constitution explicitly allows for the suspension of the Writ of Habeus Corpus when the public safety requires it, such as in the case of insurrection, invasion, or rebellion. Which means, in layspeak, they can lock you up and throw away the key and forget about you forever: because the Founders knew that sometimes that's necessary to preserve the Constitution for everyone else, and checks are put in to stop an overzealous President, which DON'T however include the ACLU eviscerating the power of the President!
So before I hear a peep from anyone, I want to know if they think every war we ever fought was violating the "Constitutional Rights" of ORDINARY combatants that were held indefinitely, and without access to lawyers, and without being charged with any crime.
See, holding POWs is not a criminal matter! They're being detained for our safety, not because they committed a crime!
In Padilla's case, and those like him, the "crimes" of being an illegal combatant are ON TOP of that, and it would be perverse in the extreme to have privileges descent upon them that they otherwise would never have had they been ordinary combatants!
His citizenship status and location of capture should be completely irrelevant.
posted by RDS at 6:46 PM
7 Comments:
I just read the Constitution, and the president doesn't have the authority to suspend habeas corpus rights, only the Congress does.
Congress should pass such legislation, directing it at Americans who are members of al-Qaeda or its affiliates. Write your Congressman.
But the decision was good law. It's just that the president and the Congress haven't been exercising the power very well.
Yes, absolutely, the authority resides with Congress and not the President, and I meant only to indicate that the possibility existed.
I believe this Padilla decision is going to be reversed because it goes counter to the Supreme Court's opinion in hamdi v. Rumsfeld, of which pages 7-17 are very illuminating.
A careful reading of the Constitution -- and we all want the Constitution to be followed -- as found by the Supreme Court, is that as a citizen, and absent the outright suspension of habeus corpus by the government (which it can do, but hasn't...yet), "due process of law" is required to examine the merits of the petition of the detained citizen.
BUT, "due process" does NOT equate to full access to civilian courts! The Supreme Court majority opined that all that is required is a simple hearing, even by a military tribunal, and even with a presumption in favor of the government's case, simply to determine if the government's categorization of the person as a hostile agent is reasonable and not a case of mistaken identity, or of a journalist, for example, in the "wrong place, wrong time."
All Padilla should get is such a hearing -- not formal "charges" as many (including Judge Floyd) are calling for.
It's only AFTER hostilities cease, and all normal POWs get released, does the issue of criminal behavior due to his status as a citizen come into play, with the possibility of charges of Treason or Sedition coming into play THEN.
The likes of Judge Floyd seem not to believe we are in a war, even with a Congressional Authorization. Technicalities, such as location of capture, should be irrelevant.
If one is afraid of abuses, we have checks: Congress can revoke the Force Authorization, essentially "ending" the hostilities, and forcing the government's hand at that point to release or charge all detainees.
Or if it's really abused, the President can, and will, be impeached.
I follow your reasoning, but I disagree. "Due process of law" means that detentions are reviewable by the courts, as you say. Also, as you say, the courts review such detentions on their legal merits, and Floyd found the merits of Padilla's detention lacking.
And you also say that there are checks in place, which is very correct. One of those checks, however, is the court system, and the ability of citizens to appeal detentions before the courts.
Now, since it is enshrined in US law that a citizen cannot be detained without charge, and the Authorization for the Use of Military Force did not modify or nullify that law, then it cannot be argued that that law is now not in force in the United States.
I also don't think that the president has the inherent authority to unilaterally determine an American citizen to be beyond the protections of the law.
Judge Floyd writes that the president can seek habeas corpus suspension authority from the Congress, but hasn't done so. Thus, he must be charged or released.
It's not that the detention of Padilla is unconstitutional in all cases. It's just that Congress hasn't delegated the authority to the president to detain him. Thus, there isn't proper legal authority to keep him. An oversight for which I blame Congress and Bush, not Judge Floyd.
Padilla could be kept in detention WITHOUT CHARGE if Congress passed the appropriate legislation, and I think that would probably be a good thing.
I appreciate these comments, but your statement "Now, since it is enshrined in US law that a citizen cannot be detained without charge," is not consistent with the majority opinion of the Supreme Court as expressed in Hamdi v. Rumsfeld, in which, on page 11, they clearly and unequivocally state:
"There is no bar to this Nation's holding one of its own citizens as an enemy combatant."
They support this assertion with case law such as Quirin and In re Territo. Such detention is a war measure, and not punitive, and thus not subject to "charges". Criminal behavior is incidental.
Would it not be perverse if citizens could be enemy soldiers, and if captured, had to only be held on criminal charges, that might have them being released after (possibly) short terms before the termination of hostilities? That makes no sense.
Floyd is clearly ruling contrary to the recent Hamdi decision, and all precedent in the law. He should have ruled simply that a habeus hearing be held -- and should not have demanded that formal charges be brought. (Ruling on the habeus petition itself is out of his jurisdiction, as a military panel would suffice, according to the Supreme Court, and he was not following the guidelines for that they had outlined anyway.)
Again, I refer to pages 7-17 of Hamdi for the current highest law of the land in this regard and an in-depth discussion.
Now, it's certainly true, and I agree with you, that the other branches of government could have, and should have, done more to fulfill their responsibilities to keep this mess from having come up in the first place!
I will stress however that you are correct in saying that the government's position -- that it can simply hold someone with no review of any sort indefinitely -- is untenable (absent explicit suspension of habeus rights, which hasn't happened).
But the review required is not the same as a trial. That is where Floyd erred.
Stygius,
It's really great to get such informed, thought-out comments! I think I understand the crux of the matter now: while we agree the authority to hold Padilla can exist, the question is one of the proper procedure required.
Your view, it seems, is that Congress can, but hasn't, given explicit authority to detain citizens in wartime. From such a position, one must logically agree wih Judge Floyd.
My opinion is that the Use of Force resolution includes by extension the power to detain, but I can see that someone could disagree, especially in light of the transfer out of civilian courts.
But as I said, at this point I can't claim that as a fact, but just as my opinion on a murky matter, and we'll have to see how the real judges finally resolve this!
I admit to being perturbed that the government has not worked hard to develop proper procedures to handle such cases in the future; I had imagined that by now they would have done so, given the difficulties of Moussaoui, Padilla, and Hamdi.
Attempting to rely on technicalities is no way to run a war effort!
I'm curious what has happened to Jose Padilla since all this? Has Congress done anything?
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