Constitutional Confusion

I'm seeing lots of commenters at LGF totally miss the point about this Padilla ruling.

Over and over, they're saying basically, "well, I don't like Padilla, but he's a citizen, the Constitutiona applies, so he needs to be either charged or released."
This is nonsensical. It's a complete non-sequitor to even think about "charging" him with anything. The issue has nothing at all to do with criminal law. He was not detained for being a criminal. It's completely incidental if his actions happen to have broken any laws.

No, the point is he can be considered a belligerent in a war, and is thus detainable anywhere he's captured, for the duration of the hostilities.

He surely has no more "rights" to the full criminal justice system than any other POW.

Now here's where people say, "but but but, it's wrong to hold someone indefinitely without charges!" And again I say, that's how it always is with POWs, isn't it?

ISN'T IT?!?

Citizenship and the Constitution have little direct bearing on this at all; a careful reading of the Constitution shows that all that is required (absent outright suspension of habeus corpus) is "due process of law" to examine his writ to determine if the government has made an error in categorizing him. The standard of proof can be rather low, and a military tribunal can suffice.

Those who think "due process" means a full-blown trial have been watching too much Court TV!

That's not just me talking, that is apparently what the Supreme Court believes, according to Hamdi v. Rumsfeld. See especially pages 7-17 for a discussion of how POW detention is not punitive, and not within the scope of criminal law.

He's not being held as punishment for a legal violation, but is being detained, like all war prisoners are, to protect our Nation as a whole, so the Constitution will surive to shower its benefits for the longest time over the greatest number of people, for if a foreign power defeats us in war, we lose everything forever.

The hostilities, though of indeterminate length, can be officially "cancelled" by Congress repealing that authorization; that's when legal the war will be over. If Bush or any other President is seen to be abusing, wholesale, the powers needed to protect the Nation so we can all enjoy liberty, Congress can just take them back. And if the President doesn't cease, he will be impeached. That's how it works.

And if it takes 1 year, or 5 years, or 100 years, well, that's Padilla's problem, isn't it?

But suppose congress revoked the authorization of Force, or passed a resolution declaring hostilies over: THEN, yes, THEN, we'd have to decide if Padilla broke any laws, and he'd have to be charged or released. This is where he's now unlike "normal" POWs: they'd all be sent home immediately if they had complied with general standards of the rule sof war.

But now Padilla's citizenship works gainst him, opening him to charges of Treason and Sedition, AFTER the hostilities are over, and he is released from his wartime indefinite detention into the tender ministrations of the criminal justice system, with full Constitutional rights.

It's just not a criminal issue right now!

Geez, it's not as if we haven't survived abuses in the past. But now the likes of the ACLU want to pre-empt using any power to defend our way of life out of the mere FEAR that someone, somewhere, might get treated unfairly. Which just puts our WHOLE SYSTEM at risk.

I ask you, imagine that due to a lack of firm measures, some enemy agent like Padilla gets off a devastating attack with, say small pox, or a small atmoic bomb followed by a second -- implying there may be many more to come. Would not the ensuing panic lead directly to people BEGGING for martial law? Would not the loss of civil liberties that followed the inevitable draconian crackdown take far longer to restore than the mild measures they are so dead-set against?

Andrew McCarthy cogently points out,

Taking a proper historical view, however, one might state the proposition differently: doctrinaire civil libertarians can always be relied on, no matter what the crisis, to minimize the danger faced by the nation. In the real world, moreover, free speech can only produce its vaunted corrective effects if it has both the inclination and the time to work. The problem is that it often does not.

Today’s marketplace of ideas, for example, has been notably reluctant to engage even the subject of Islamofascism and the threat it poses to our institutions and our liberties. Nor does that marketplace strike one as a very effective weapon for bringing suicide murderers to heel, let alone for militating against electronically beamed fatwas capable of unleashing weapons of untold destructive power before other ideas have a meaningful opportunity to compete and persuade.
...
There is also a tendency of libertarians to discount danger out of their innate cynicism about government. Since crises provide government with the necessary justification to curtail freedoms, libertarians naturally reason that a crisis may not be authentic—the powers-that-be have manufactured it, or at the very least drastically overstated it.
...
Without security, there is no liberty at all. The fact that government is made up of human beings, and that human beings are certain occasionally to abuse any powers given them, is surely a rationale for narrowing those grants of power; but not for eradicating them, or reducing them to a quantity that fails to protect or even to take account of the higher interest that impelled the grant in the first place. Individual abuses of dissent are bad, but undermining the framework that ensures the right to dissent is immeasurably worse. This, as Holmes intuited, is supposed to be a matter of degree.

Moral clarity, moreover, postulates that some evils are so palpable we need not further test them in the marketplace. There are relatively few of them, but they do exist and we need not fear we are wrong about them. Such recognition is critical to the functioning of a healthy society, and declaring an end to discussion of any conceivable value they may have is very far from declaring a tyrannical power to end discussion of any topic disfavored by government. Do we really need additional ideological thrust-and-parry to know, for example, that the advocacy of genocide, or rape, or the indiscriminate mass slaughter of civilians is condemnable under any and all circumstances?

Why can't people see this?

Why do they deny we're in a real war?

Yes, it's unpleasant, but let me tell you something, war is by its nature extrajudicial killing. No judges or lawyers or appeals, just the President and his generals pointing their fingers at groups of people and having them killed. Killed by the buckets full. The "guilty" and the "innocent" alike.

It's horrible, but if we lack the courage to even detain the enemy, let alone kill him -- and everyone around him -- in mass numbers, then we lack the courage to survive in this brutal world.