This case extends ex parte Quirin’s facts. In particular, I think there is a principled distinction to be made between a state of war, declared between the US and a nation-state, and our current inchoate “War on Terror.” I don’t mean to denigrate the necessary actions in the fight against terrorism… but we knew war with Germany was over when Germany surrendered. Who is authorized to surrender on behalf of “Terror”?
In ex parte Quirin, we were faced with a finite length of time during which the administration’s broad powers would be given deference. That limit is not in place here.
For those policy reasons, I would distinguish Quirin.
I find this troubling, too (especially as I am a non-citizen resident in the US) – the relevant parts of the constitution refer to “person” and “accused”, and do not on the face of it limit their protections to citizens. So I don’t understand how they can be read not to protect aliens detained and accused of crimes within the United States.
And can I just say as general comment, I find it painfully depressing that people involved in our government have so little faith in our judicial processes…who seem to see due process as a favor we do the accused (and therefor something we can do away with if the accused is scum enough) and not the most reasonable way to arrive at real justice.
This is hardly the only case in the Constitution where you have a vague standard. So, no, a court is unlikely to argue over a week here or there; but on the other hand, 3 years with no foreseeable prospect of a trial does not seem like a “speedy trial”, and the Court of Appeals should have said so.
Sure it is. All of the Quirin saboteurs were sentenced without the benefit of a trial in an American court. They were convicted by military tribunal instead.
Six of them were executed, including Haupt. The remaining two were granted clemency for their cooperation, and got long prison sentences instead. In 1948, Truman freed them on condition of deportation, and they went back to Germany.
Same thing is true for all rights. The Fourth Amendment doesn’t sound so pretty when I point out that we’re letting a serial killer go free because the only evidence we have against him was obtained without a warrant. Are we really going to use “sounding pretty” as a basis for constitutional law?
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are **reserved to the States **respectively, or to the people.
States have plenary power. Not the federal government. It has only those powers which the Constitution gives it. The Constitution does not give the federal government the power to define or regulate abortion. Even if I concede that abortion is simply a medical procedure involving one patient… the state of Virginia can prohibit or regulate face-lifts; the federal government cannot stop Virginia from doing that.
To make the inductive leaps that:
1 - there is a federal constitutional right to privacy;
2 - that is applicable to the states via the Fourteenth Amendment;
3 - and it specifically encompasses abortion;
4 - but only in the first trimester;
…those are more inductive leaps than the Fourth Circuit just made concerning Padilla.
I may not be a constitutional scholar but this seems very troubling. Bricker’s analysis distinguishing it from Quirin seems on the money to me, since there always have been and probably always will be terrorists. How this ruling doesn’t go against the 6th amendment is baffling to me.
While I agree with Bricker the Roe was wrongly decided, something different seems to be going on here. In Roe, a new constitutional right was granted by judicial fiat rather than by actually amending the constitution. Here a right–a slew of rights, in fact–is being taken away. That is even more disturbing.
If there is something in the Hamdan v. Rumsfeld opinion that prevents the president from applying the same authority to try U.S. citizens, I’d be happy to hear it.
(Not that would make much difference to me, of course. Being a non-U.S. citizen living in the United States, I find your claims that Roberts and his colleagues were only going after non-Americans…less than reassuring.)
Where was Haupt (the American in Quirin) caught? In Chicago, landed from a German sub
Where was Padilla caught? O’Hare Airport, off of a commercial jet
What kind of military things are we talking here? Haupt had buried a military cap and bomb making equipment near he was caught
And Padilla? No apparent military role when captured
Haupt: uniformed, paid member of the German army
Padilla: not a member of Al Qaeda
They both, however, apparently received training from their respective “leaders.”
Key language from Quirin:
[ul]Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance, and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague convention and the law of war. Did Padilla enter this country as an associate of Al Qaeda, bent on hostile acts? There is no evidence against Padilla EXCEPT ACCUSATIONS.[/ul]
[ul]Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war… This is from another, earlier case. The court distinguished it from Quirin by saying that Milligan was a non-belligerent. Was Padilla a belligerent? There is no evidence of it. Padilla is more like Milligan, and that should be precedent. There, the court relied on the Bill of Rights and not a statute that Congress has passed when they wet themselves because of the scary Confederates.[/ul]
[ul]We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the laws of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries…Tried to limit the stretch of this opinion to that of Quirin only.[/ul]
So why do we continue using this case? Because the people who want to lock away an American citizen without all that BILL OF RIGHTS garbage pick it as their strongest argument. There is no evidence against Padilla, and yet you want to take away his right to a public, fair, speedy trial? For shame!
There doesn’t need to be anything in that opinion to prevent him from doing so, because the constitution does that. Why would the judges reaffirm what is already in the plain text of the constition?
In my view, yes. While a lower court should never simply refuse to apply existing precedent, it is always free to meaningfully distinguish the cases through principled analysis.
If I were reviewing the Fourth Circuit’s decision under an abuse-of-discretion standard, I would not overturn them. But if I reviewed their determination of law de novo, as the Supreme Court will, I’d reverse.
U.S. vs Miller (1939) takes away some of your Second Amendment rights. It is a poor decision, based upon a one sided argument (Miller, being dead at the time, decided not to show up to the hearing) and displays an astounding ignorance of military equipment (the basis for the decision being that a shotgun has no military value. WTF?), yet liberals have been using it for almost seventy years as the basis for a lot of there arguments in favor of gun control. Without getting into the specifics of any one case here (although I’ll state my personal opinion for the record on issues that have been brought up here: I am in favor of a woman’s right to chose, I fully support the right of gay folks to marry, and I think the Government should put Mr. Padilla and all of the detainees in Gitmo on trial immediately.), Bricker is spot on in this thread, the knife cuts both ways. If you support the courts creating new extra-Constitutional rights (Roe vs Wade) or eliminating existing ones (U.S. vs Miller), then you have no room at all to scream when courts do the exact same thing in a direction that you personally happen to disagree with. What’s sauce for the goose…