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Go Directly to Jail
New Republic ^ | 19 jun 02 | Akhil Reed Amar

Posted on 06/19/2002 7:08:30 AM PDT by white trash redneck

Civil libertarians are up in arms about the detention of Jose Padilla, a.k.a., Abdullah al Muhajir, a U.S. citizen who allegedly met with a top al Qaeda leader in Pakistan to plot a "dirty bomb" attack on America. The administration, meanwhile, insists its actions are entirely legal, not to mention essential for national security. Who's right? Both--and neither.

Below is a quick rundown of the relevant legal questions the Padilla case raises, and some speculative answers. I say "speculative" because lawyering often begins with merely identifying the important legal issues, analogies, and distinctions worthy of further research and analysis. In law lingo, it's called "issue-spotting"--offering a tentative first cut based on limited research and a simplified understanding of the facts. And there's plenty to spot in the Padilla case....

Question 1: Can the government detain a person--an American!--without charging him with a crime?

Yes. Although untutored intuition balks at this prospect, our legal system does detain people outside the criminal justice system in a variety of settings. The government can summon an eyewitness to a crime to show up at a grand jury and/or trial even if these limited detentions significantly disrupt his life plan. If it's doubtful the witness will voluntarily show up for these events, authorities can forcibly hold him as a "material witness" until the government no longer needs his testimony. (In fact, until recently, Padilla was apparently held as a "material witness.") Citizens can be "detained" for jury duty and obliged to serve. At the Founding, Americans were conscripted for militia duty; and ever since the Civil War, the federal government has drafted soldiers into the Army when the need arose. In a sense, the draft is a form of indefinite detention. So why, then, should the government have less power to detain (and immobilize) disloyal Americans than to detain (and mobilize) loyal ones?

Also, those who pose a threat to others because of mental illness are subject to civil commitment, without all the safeguards of the criminal justice system, even though they may not be in any way responsible for their actions. In some situations the government can quarantine persons with dangerous and infectious diseases. Bringing the matter even closer to Padilla, America has historically detained prisoners of war during wartime even though these prisoners have not been criminally convicted or even charged.

Question 2: What are the substantive limits on this power to detain?

As a rule, the president must have some implicit or explicit constitutional or statutory basis to justify detaining somebody. The precise boundaries of the president's commander-in-chief power are blurry, but in a military emergency it makes sense to allow the president to act on his own to maintain the status quo from some grave irreversible harm, so long as Congress quickly blesses his action when it convenes. (This is the difference between what Lincoln did at the outset of the Civil War, which the Supreme Court largely upheld, and what Truman did in the Korean War, which the Court struck down in the famous steel-seizure case.)

Thus, one obvious question for Padilla's case is whether any congressional statute or longstanding tradition authorizes his detention. Presumably, the general power to detain prisoners of war in a duly authorized war is implicit in Congress's general military statutes. But the precise nature of the "war" America is now facing is murky. Also, the resolution Congress passed on September 18 authorizes the president to use "all necessary and appropriate force" but only against those linked to the September 11 attack. It is not clear whether the administration claims that Padilla is so linked, although it could argue plausibly that anyone who joins al Qaeda, even after 9/11, falls within the resolution.

In claiming the power to designate "enemy combatants," the administration would be on firmer ground had the president secured from Congress a general declaration of war (against al Qaeda specifically, or against anti-American terrorists more broadly), or something similar. After all, if the basic idea is that Padilla is a kind of prisoner of war, shouldn't Congress formally declare war or otherwise specifically authorize the detention of enemy combatants who cannot be tied to 9/11? (In a famous World War II case involving Nazi enemy combatants found on American soil, Congress had already declared war.)

Constitutional principles also generally prevent the government from targeting minority races or religions or political groups. This body of law was less robust during World War II when the government forced around 100,000 Japanese and Japanese-Americans into detention centers. The Supreme Court at the time largely upheld this policy in the Korematsu case, which has never been formally overruled but has been widely criticized. And it's useful to remember that Korematsu v. United States--involving a massive effort to segregate certain nonwhites allegedly for their own benefit as well as the security of white America--was decided when Jim Crow still reigned in the South. Brown v. Board of Education was still a decade away.

Finally, the Fourth Amendment prohibits "unreasonable seizures" of "persons" and requires (among other things) that all bodily detentions be supported with strong reasons.

Question 3: What procedural rights should Padilla enjoy?

Because detention involves a serious loss of bodily liberty, government must provide "due process." The greater the loss of liberty, the more process is due. Indefinite detention for the duration of a war of highly uncertain length (indeed, with no clear end in sight) is about as severe a form of detention as is imaginable--far more extreme than temporary jury duty. As compared to conventional military service, Padilla's detention might end up being longer than most military stints. On the other hand, he is not being placed at risk of losing life or limb, as were many Vietnam draftees, for example.

Due process need not include all the rules and safeguards of criminal trials--like requiring proof beyond a reasonable doubt, or giving the accused the right to a wholly public jury trial, or excluding reliable hearsay accusations--but there must be enough of a hearing to ensure that the person being detained does indeed qualify for detention under the relevant substantive law. Concretely: The government should be required to prove via credible evidence that detention of Padilla is lawful because he is indeed an enemy combatant who can properly be held until he ceases to pose a threat to his country. Many specific due process issues will arise, but the big point is that it should not be enough that President Bush simply claims Padilla is a threat. A hearing is necessary.

Must the hearing be entirely public? Probably not, given that some of the evidence may involve highly classified intelligence and confidential sources. May government introduce affidavits, interrogation transcripts and other hearsay instead of live witnesses? Probably yes, given that many of the intelligence sources come from abroad, and others may involve electronic intercepts and other statements from persons who would not willingly testify and practically speaking cannot be forced to. Must Padilla be allowed a lawyer, with whom he should be allowed to consult in private? Absolutely. Because his bodily liberty is obviously at stake, Padilla needs a lawyer every bit as much as Clarence Earl Gideon did. If Padilla cannot afford a lawyer, the government should provide one. If the government fears that Padilla might try to use his lawyer to sneak messages out to terrorists at large or to plot ongoing acts of terror, the government could make Padilla pick from an Honors List of pre-approved lawyers of unquestioned patriotism and competence--say, former Justice Department officials. If the hearing occurs in a military context, Padilla could be given an attorney who is also a trusted American officer.

Must the hearing be held in a civil court, or can it be held in a military commission or military court? This is the $64,000 question. Eventually, Padilla could bring a habeas petition before a regular federal court; but will those judges insist on reviewing the evidence themselves on a clean slate, or will it be enough for them that a military tribunal or commission heard the evidence fairly and had a reasonable basis for finding Padilla to be an enemy combatant? Padilla's lawyers will argue that a military hearing lacks sufficient safeguards because its presiding officers are within the chain of command and are thus ultimately subservient to the president, unlike life-tenured civilian judges. But this argument proves too much, given that military judges are trusted to decide the life and liberty of members of the American military; and military commissions have also been trusted in other settings with power over life and limb.

One big problem for the Bush administration is that it does not appear to have clear rules in place spelling out exactly how, why, and by whom, the evidence that Padilla is indeed an enemy combatant should be heard. (Note that the administration's earlier rules about terrorist trials in military commissions do not apply--more on that below.) Here, too, these rules should ideally be blessed by Congress in a formal statute rather than simply improvised by the executive branch on the fly. Also, these rules should specify what the substantive standards are for being an "enemy combatant"--as opposed to, say, just being a thug or an al Qaeda sympathizer. The First Amendment requires that we draw a clear line between those who merely admire al Qaeda or speak out against the United States, and those who actually attempt or plot to wage war against America.

Padilla, of course, is hardly the only person being held as, in effect, a prisoner of war. But he may well be entitled to more elaborate procedures than the hundreds of detainees in Guantanamo because: (1) Padilla is on U.S. soil, and so Article III judges in America will ultimately have habeas corpus jurisdiction over him in ways they may not over detainees held abroad. (2) The Guantanamo detainees were captured directly by the American military (or their allies) in military operations in a theater of actual war in Afghanistan. Thus, they were captured in the very act of waging war against the United States on ground not under the control of U.S. courts. Padilla, by contrast, does not appear to be someone who was a direct combatant in Afghanistan.

Question 4: How is detention any different than criminal conviction?

Some have argued that indefinite detention is simply an impermissible circumvention of all the rights of a criminal suspect--it is just like a criminal punishment, but without all the constitutional safeguards.

But is it? A criminal conviction--whether in ordinary civilian court or in a military court or commission--justifies punishment. At the extreme, it can result in death. It can be based on retribution; even if you are wholly nonthreatening and repentant today, if you are found to have committed the crime in the past (perhaps long ago), you can be punished today (and perhaps put to death). A criminal conviction is traditionally based on a definitive finding that the defendant did an evil thing in the past. When a criminal trial ends and a defendant has been found guilty, the government need not (though it may choose to) hold a series of future hearings to decide whether continued incarceration is warranted.

In all these ways, detention is different. It does not justify punishment or death. It is forward-looking and wholly preventive rather than retributive. It may require a series of periodic hearings to determine whether a threat still exists, thus justifying more detention. This is the model of civil commitment, or a quarantine. And, in Padilla's case, it means that the government should be required periodically to show that Padilla poses an unabated and ongoing threat, that nothing short of detention can prevent this threat, and that the conditions of detention are no more onerous than necessary to prevent the threat.

To see the criminal punishment/noncriminal detention distinction most clearly, imagine a war that is not obviously Good Against Evil. The soldiers on each side fight nobly for their country. If captured by the other side, they can be detained (to prevent them from wreaking future harm), but when the war is over and peace restored, they are free to go. They are prisoner-soldiers and detainees, not criminals.

Of course, one can be both a soldier and a criminal--a war criminal. And perhaps the general sense is that anyone fighting this particular terrorist war against America is indeed a criminal, too. But the government is not (yet) charging Padilla with a crime--for now, they are simply treating him as a soldier. Why should he get more rights than a typical prisoner of war simply because he may also be a criminal? Why should he get more rights than all the detainees in Guantanamo simply because, unlike the rest, if he is indeed a soldier, then he has also betrayed his country (whereas the others owed America no loyalty in the first place)? An analogy: If a rape victim sues the alleged rapist in tort, she need not prove her case beyond reasonable doubt: even though she is in effect claiming that he is both a tortfeasor and a rapist, he is not in a tort suit entitled to any more rights than any other tort defendant.

One final way of detaining Padilla outside the context of criminal trial and punishment is also worth mentioning. Padilla can be asked to tell all he knows about al Qaeda. If he refuses, and pleads the Fifth Amendment, he can be given a certain kind of immunity (known as use-fruits immunity) and he then must answer truthfully. If he nonetheless refuses to answer, he can be held in "civil contempt" and incarcerated until he answers the questions. If he persists in refusing to answer, at some (ill-defined) point the "civil contempt" power may lapse, but until then this mode of incarceration is not deemed criminal because it is forward-looking rather than retributive: At any moment he can stop the incarceration by complying with the order to speak--in effect, he holds the keys to his own cell.

Question 5: What difference does it make that Padilla is an American?

Because he is an American, Padilla could have perhaps insisted that he be detained in America itself. So long as this could be safely arranged without undue danger, the government may have felt it would be wrong to deny this demand. Keeping him out of the country might have looked too much like banishment or exile--like impermissible punishment rather than permissible detention. This is of course not true for non-American prisoners of war, who have no right to be on American soil in the first place; keeping them from our shores can hardly be deemed punishment.

But because Padilla is now in the United States, he is subject to ultimate habeas corpus jurisdiction of civilian courts in a way that other detainees are not--and this complicates the question of how and by whom the evidence against him should be heard and reviewed.

Also, if the administration ever sought to try and convict Padilla as a criminal terrorist, its own current regulation would not allow him to be tried by a military commission (although the administration might decide to amend the regulation). Currently, only alien terrorists fall within the regulation. The administration may have thought this limitation would ease public concern--"don't worry, Americans: You are safe from being branded a terrorist and tried without all the usual civilian safeguards." But in fact the administration's regulation introduces a discrimination against aliens that is constitutionally troubling. When the infamous Alien and Sedition Acts of 1798 targeted certain aliens for disfavored treatment, the party of James Madison and Thomas Jefferson famously defended alien rights; and after the Civil War, our Constitution was specifically amended to shield the rights of noncitizen aliens to "due process" and "equal protection."

Question 6: How do international law rules and the laws of war affect the picture?

I'm not sure. Part of issue-spotting is identifying what you don't know and need to learn.

TOPICS: Constitution/Conservatism; Culture/Society; Foreign Affairs; Front Page News; News/Current Events
KEYWORDS: almuhajir; constitution; detention; padilla
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I've been troubled by the conflict between the rights of innocent suspects and the need to protect ourselves from terrorism, particularly with the memory of the last administration and its contempt for the Bill of Rights and its naked ambition for power. Amar is generally a good guy on constitutional issues (despite being a Yale Law professor, he's pro-2A), and I find his article interesting, though not necessarily satisfying.
1 posted on 06/19/2002 7:08:30 AM PDT by white trash redneck
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To: white trash redneck
Screw the terrorist. This is war. It ain't like they locked up Grandma Moses.
2 posted on 06/19/2002 7:10:13 AM PDT by AppyPappy
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To: white trash redneck
Americans have had to temporarily relinquish civil and other liberties during previous times of war. We'll survive this also, but IMHO due diligence should be placed in the selection and election of candidates during times when our liberties are tightened. We all remember "the last 8 years" and don't need anyone in power who would abuse it to the extent that it was then.
3 posted on 06/19/2002 7:16:11 AM PDT by callisto
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To: white trash redneck
Oh, good. Now we have a towelhead from Yale explaining our Constitution and civil rights to us. I never thought I'd see the day when I would prefer Alan Dershowitz. As far as I'm concerned, Padilla's procedural rights are limited to the right to procede directly to Florida, and become intimately acquainted with with Ol' Sparky.
4 posted on 06/19/2002 7:46:48 AM PDT by 3AngelaD
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To: 3AngelaD
I would like to see Padilla dealt with within the law. From what this fellow has written, it really shouldn't be too difficult.
5 posted on 06/19/2002 7:50:55 AM PDT by Dudoight
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Comment #6 Removed by Moderator

To: allend
Oops, that includes pro-lifers et al.

Except that it doesn't. I guess pro-lifers knocked down the World Trade Center.

7 posted on 06/19/2002 8:21:26 AM PDT by AppyPappy
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To: AppyPappy
Think again. Remember how they were trying to pin the WTC bombing on the NRA, talk radio, and anybody else to the right of Hillary Clintoon. We can't count on always having an administration that has fundamental respect for the constitution, and if we ever see a President Hillary, or a President Daschle, or a President Harkin, or a President Gore, I'd like to know that people who disagree with them seriously (like you and me, for starters) are not walking free only on sufferance of their Justice Department.
8 posted on 06/19/2002 8:31:33 AM PDT by white trash redneck
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To: AppyPappy
And pro-lifers tend to have networks of support in this country. Padilla is prison trash, with only his family, cons, Al Qaeda, and the ACLU as friends.
9 posted on 06/19/2002 8:32:56 AM PDT by evolved_rage
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To: white trash redneck
The sad thing about this article is it is written by a professor of law at my alma mater, and is almost right but ultimately, hopelessly wrong. The good professor makes a passing reference to a "World War II case," but dismisses its relevance.

That case, as FReepers know from my posts and from my UPI article, is In Re Quirin, 1942. In it, the Court ruled unanimously (8-0) that even an American citizen, Bruno Haupt who was born in Chicago, became an "illegal combantant" when he entered the US from a German submarine along with seven others, with plans, cash and materials to bomb various facilities. Until the Court reverses the Quirin decision, the indefinite detention of Padilla is in accord with the Constitution, with the Military Code of the US, and with the international "law of war."

Padilla should count himself lucky that he has not yet been charged and tried for "acts of war" against the United States. The eight German saboteurs were so charged, so convicted, and six of them were executed.

The professor dismisses the controlling authority of Quirin by saying that "Congress has not declared war." He has not done his homework. Contained in the Anti-Terrorism Act passed on 18 September, 2001, was a Joint Resolution that began in the Senate. That Resolution authorized the President to "use all necessary measures" to respond to 9/11, and granted him that authority under the "War Powers Act." It was not as tidy as a stand-alone document with the title, "Declaration of War." (Congressman Barr and six colleagues introduced a clean Joint Resolution to do exactly that. Theirs was tabled in favor of the Senate version.) But legally and constitutionally, it accomplished the same result.

It is sad to see people who ought to know what they are talking about, putting out discussions for the public that are fatally defective. In light of other FReepers' comments about this gentleman, I will put his instance down to incompetence, rather than bias.

Congressman Billybob

Click for: "Speaking without Talking -- Hearing without Listening."

10 posted on 06/19/2002 8:35:26 AM PDT by Congressman Billybob
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To: Congressman Billybob
As to what the "acts of war" are --- He came to do "recon" -- that is another name for "spying".

Spies are "unlawful combatants" -- They may be summarily hung.

The professor needs to read that "WWII case" he dismisses.

11 posted on 06/19/2002 8:54:52 AM PDT by Dan(9698)
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To: white trash redneck
Remember how they were trying to pin the WTC bombing on the NRA, talk radio, and anybody else to the right of Hillary Clintoon

Remember that no one went to jail for it. Absence of evidence is not evidence.

12 posted on 06/19/2002 9:54:49 AM PDT by AppyPappy
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To: AppyPappy
Remember that no one went to jail for it. Absence of evidence is not evidence.

You make my point. What would the Clintoons have done with expanded powers?

13 posted on 06/19/2002 9:57:55 AM PDT by white trash redneck
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To: white trash redneck
What would the Clintoons have done with expanded powers?

What would the Clinton's do with a time machine? Sorry, I can't have pity for a terrorist even if you believe in a Hillary conspiracy that might come later.

14 posted on 06/19/2002 9:59:56 AM PDT by AppyPappy
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To: AppyPappy
What would the Clinton's do with a time machine?

I'll worry about that when it is a reasonable possibility.

Consider how the Clintoons used the IRS to harrass organizations that oppposed them. Expanded government powers without a check on their misuse are a threat to all of us.

15 posted on 06/19/2002 10:16:57 AM PDT by white trash redneck
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To: Congressman Billybob
Congressman Billybob said: "Padilla should count himself lucky that he has not yet been charged and tried for "acts of war" against the United States. "

Please explain how this would differ from treason and how Padilla would then be denied the Constitutional protections specifically addressing charges of treason.

16 posted on 06/19/2002 10:18:02 AM PDT by William Tell
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To: Congressman Billybob
Congressman Billybob said: 'That Resolution authorized the President to "use all necessary measures" to respond to 9/11, and granted him that authority under the "War Powers Act." It was not as tidy as a stand-alone document with the title, "Declaration of War." '

The portions of the War Powers Act which I have read leads me to believe that it explicitly enumerates a situation in which power to act will be granted by resolution and that it is different from a Declaration of War. Are you of the opinion that any resolution regarding War Powers is a Declaration of War? A resolution withdrawing the authority to act would certainly not be a Declaration of War, but perhaps a Declaration of Peace.

17 posted on 06/19/2002 10:22:28 AM PDT by William Tell
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To: AppyPappy
AppyPappy said: "Remember that no one went to jail for it. Absence of evidence is not evidence."

I consider the murder of the children at Waco to be a direct result of the government's campaign suggesting that citizen's cannot be trusted with arms because the may cause harm. The demonization of the NRA and militia groups was a necessary prelude to killing innocent Americans for keeping and bearing arms.

18 posted on 06/19/2002 10:28:39 AM PDT by William Tell
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To: William Tell
Actually, Koresh was accused of having/disributing an illegal firearm, not just a firearm. A person who is arrested for stealing cars is not the same as a person who owns a car.
19 posted on 06/19/2002 10:31:06 AM PDT by AppyPappy
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To: AppyPappy
This is war.

Congress has not declared war. They should declare war against the Saudis.

20 posted on 06/19/2002 11:21:46 AM PDT by StockAyatollah
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