Posted on 06/21/2002 2:58:14 PM PDT by Dawgsquat
With the detention of Jose Padilla (aka Abdullah al-Mujahir), the Bush administration has made an extraordinary assertion of power. It is sweeping and unnerving. The administration contends that, by merely designating a person as an "enemy combatant," the government can hold him in prison without according him a trial. Indeed, the government does not have to charge him with any criminal offense, much less present evidence of an offense. That is true even if the person in question is an American citizen and is apprehended on American soil.
Civil libertarians are justifiably alarmed at such an ominous shadow over the constitutional rights of all Americans. But there is another aspect that has received less attention even though it is equally alarming. It is a truism that civil liberties have suffered in most of America's wars. But in all of those earlier episodes there was a certainty that the conflict would end someday. A peace treaty would be signed, or the enemy country would either surrender or be conquered. In other words, America would someday return to normal and civil liberties would be restored and repaired.
The war against terrorism is different. Because the struggle is against a shadowy network of adversaries rather than a nation state, it is virtually impossible even to speculate when it might end. President Bush's initial comment that it might last "a year or two" was long ago consigned to the discard pile.
Indeed, it is not clear how victory itself would be defined. Even if the war is confined to combating al-Qaeda, there is no way to confirm at any point that the organization's operatives have been neutralized. The concept of victory becomes more elusive if the goal is the eradication of all terrorism from the planet, as administration officials have sometimes hinted. That is a guaranteed blueprint for perpetual war.
Nor would the mere prolonged absence of attacks on American targets be definitive evidence of victory. How long a period of quiescence would be enough? A year? Five years? Ten years? The reality is that no president would want to risk proclaiming victory in the war on terrorism only to have another terrorist attack occur on his watch. The political consequences of such a gaffe would be dire indeed. (For similar reasons, the color-coded warning system adopted by the Office of Homeland Security will likely never go below yellow). The safe political course would be always to emphasize the need for continuing struggle and vigilance.
In short, America is now waging a permanent war. That reality makes civil liberties considerations even more important than in previous conflicts. Whatever constitutional rights are taken from us (or that we choose to relinquish) will not be restored after a few years. In all likelihood, they will be gone forever.
We therefore need to ask whether we want to give not only the current president but also his unknown successors in the decades to come the awesome power that President Bush has claimed. It is chilling to realize that the president is insisting that all he must do is invoke the magical incantation "enemy combatant" and an American citizen can be stripped of his most fundamental constitutional rights without any meaningful scrutiny by the judicial branch. A place where that is possible is not the America we have known. It is not an America that we should want to know.
What, his writ of habeas corpus?
His habeas corpus petition is in court now!
There's a link to it in my reply above.
Please try to keep up.
Are we only allowed to kill them?
That's not what I said. The authorization you posted gives him the authority to "wage war". It does not give him the authority to hold American citizens in jail for months on end without even filing charges against him. Show me that authorization and I'll concede the point.
Wiborg v. U.S.,
163 U.S. 632 (1985), the Supreme Court endorsed a lower court ruling that it was not a crime under U.S. law for an individual to go abroad for the purpose of enlisting in a foreign army; however, when someone has been recruited or hired in he United States, a violation may have occurred. The prosecution of persons who have violated 18 U.S.C. 958-960 is the responsibility of the Department of Justice. Although a person's enlistment in the armed forces of a foreign country may not constitute a violation of U.S. law, it could subject him or her to Section 349(a)(3) of the Immigration and Nationality Act [8 U.S.C. 1481(a)(3)] which provides for loss of U.S. nationality if an American voluntarily and with the intention of relinquishing U.S. citizenship enters or serves in foreign armed forces engaged in hostilities against the United States or serves in the armed forces of any foreign country as a commissioned or non-commissioned officer.
The rest is Here
Since he is an American citizen he has the right to have a court determine if he is properly held as a military detainee.
His habeas corpus petition is before a court right now.
The President only has this power because the congress granted it- if they rescind the order all military detainees would have to be released.
Actually, such an act of congress would be a Bill of Attainder- which congress is forbidden from issuing!
This can only be done under congress's war powers.
Thank you.
Which means, I assume, that it's not clear if Bush has such authority. I'll await the outcome.
Agreed. Thats where the Padilla case starts getting a little sketchy.
...with the intention of relinquishing U.S. citizenship [I don't think that was his intention]
I believe is superseded by,
...serves in foreign armed forces engaged in hostilities against the United States or serves in the armed forces of any foreign country as a commissioned or non-commissioned officer...
Which (to my knowledge anyway) reinforces the Haupt appelate decision in Quirin.
Without all the legal mumbo jumbo aside, means that in cases where the defendent is engaged in hostilities with the United States (Haupt was a sabateur with dual citizenship) the defendent is not treated not as a combatant but can be detained under war crimes status, which involves a military court.
All of this may warrant a SCOTUS decision after this is done. Alot of this is interpretation and there actually hasnt been any precedent involving actual US citizens to my knowledge. But if what Ive read is correct, there is at least some legal justification for military detainment.
Well, don't get your hopes up, in ex parte Quirin the court ruled that the Constitution does not give it the authority to try cases that come under the law of war:
"As this Court has often recognized, it was not the purpose or effect of 2 of Article III, read in the light of the common law, to enlarge the then existing right to a jury trial. The object was to preserve unimpaired trial by jury in all those cases in which it had been recognized by the common law and in all cases of a like nature as they might arise in the future...[list of examples] All these are instances of offenses committed against the United States, for which a penalty is imposed, but they are not deemed to be within Article III, 2 or the provisions of the Fifth and Sixth Amendments relating to 'crimes' and 'criminal prosecutions'.
In the light of this long-continued and consistent interpretation we must conclude that 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts. "
Congress could give them such authority, of course- but AFAIK they haven't. That's why it's important to keep in mind that this can only be done under Congress's war powers.
That's right, I'm glad you 'get it'!!!!
Congress has the war power, not the Executive and not the Judiciary.
"Congress shall have the power... to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; "
The Constitution assigns the responsibility of declaring war to congress. Congress cannot transfer this power to the executive by resolution or legislation.
Only a Constitutional amendment can legally alter the separation of powers.
To argue otherwise is to deny the existance of the last vestigages of that document.
Regards
J.R.
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