# If the government can classify a citizen like Jose Padilla as an "Enemy Combatant" **URL:** \ **Category:** Great Debates\ **Created:** [April 30, 2004, 7:52am UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821 "2004-04-30T07:52:43Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Roland\_Deschain](https://avatars.discourse-cdn.com/v4/letter/r/73ab20/32.png) [@Roland\_Deschain](https://boards.straightdope.com/u/Roland_Deschain)\ **Post date:** [April 30, 2004, 7:52am UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/1 "2004-04-30T07:52:43Z")
what prevents them from doing that to anyone? Thus, we can imagine a future administration classifying a harsh critic of his/her administration like Rush Limbaugh or Howard Stern as an enemy combatant, and holding them without trial for an indefinite period of time without trial. Am, I missing something are there safe guards in play that would prevent this from occuring? I am a conservative Republican (Libertarian really, but since they have no chance I vote Republican) and I find this to be radically disturbing. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [April 30, 2004, 10:12am UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/2 "2004-04-30T10:12:15Z")
These are precisely the questions the Supreme Court is struggling with right now. [Here](http://www.cnn.com/2004/LAW/02/20/scotus.enemy.combatant/) is a CNN article about the case. ---
**Author:** ![Diceman](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Diceman](https://boards.straightdope.com/u/Diceman)\ **Post date:** [April 30, 2004, 12:01pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/3 "2004-04-30T12:01:45Z")
Nothing prevents them from doing so. That’s the problem. Didn’t the Soviet Union do stuff like this, where “Western Spies” were rounded up by the KGB and sent off to labor camps Siberia? Fortunately, it seems that several of the Supreme Court justices are as disturbed about this as I am. hopefully, there are at least 5 of them. ---
**Author:** ![Master\_Wang-Ka](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/master_wang-ka/32/3325_2.png) [@Master\_Wang-Ka](https://boards.straightdope.com/u/Master_Wang-Ka)\ **Post date:** [April 30, 2004, 1:29pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/4 "2004-04-30T13:29:42Z")
The OP is damn hard to argue with. The whole idea of the Bill Of Rights, I thought, was to prevent this sort of thing from happening to us. I thought that the whole point of invading Iraq (after we couldn’t find any WMDs there) was to bring this kind of democracy and respect for human rights to the folks there. Near as I can tell, as far as the Bush Administration is concerned, human rights are only _really_ applicable to American citizens. And not even _then_, if they _really_ don’t like you. Nevertheless, I must not use the word “nazi.” Someone will get offended. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 30, 2004, 1:46pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/5 "2004-04-30T13:46:30Z")
I had a response all typed out when I realized that is was more suitable for GD than GQ. I will wait until this thread gets kicked over there, as it most certainly will. ---
**Author:** ![bibliophage](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bibliophage/32/7615_2.png) [@bibliophage](https://boards.straightdope.com/u/bibliophage)\ **Post date:** [April 30, 2004, 3:04pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/6 "2004-04-30T15:04:35Z")
This will be more of a debate than anything, so I’ll move this thread to GD. bibliophage moderator GQ ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 30, 2004, 3:24pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/7 "2004-04-30T15:24:50Z")
As I was saying… I listened to some of the arguments by the Justice Department lawyers, and I find it amazing that their tongues didn’t burst into flame when they argued that the President must be allowed to take whatever measures he deems necessary to fight terrorism. That is the very definition of a totalitarian dictatorship, and the fact that this administration finds nothing unconstitutional about their actions is very troubling. I am heartened that the court’s opinion is expected in July, so that Bush can be held accountable for this naked assault on the Bill of Rights. The Constitution guarantees equal protection under the law, not one set of laws for “good people” and another for “evil doers”. The greatest threat of terrorism exists in the White House itself. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 30, 2004, 3:34pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/8 "2004-04-30T15:34:39Z")
I don’t understand what the Bush administration expects to gain from this exercise. There is no way the SCotUS can uphold such unlimitted executive power for such an indefinite timeframe. I think O’Conner pointed out that the “war on terrorism” is likely to last 25 or 50 years, and that’s probably being generous. It’s unlikely ever to end! Bush is essentially arguing that he, and all presidents after him, can do whatever they damn well please. Uh-uh. ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [April 30, 2004, 3:49pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/9 "2004-04-30T15:49:18Z")
Well, their only other options was to ADMIT they’d acted wrongly and release Padilla and his cohort. And THAT certainly wasn’t going to happen. So they have to do what they can do defend their policies and see what happens. ---
**Author:** ![Paul\_in\_Qatar](https://avatars.discourse-cdn.com/v4/letter/p/ccd318/32.png) [@Paul\_in\_Qatar](https://boards.straightdope.com/u/Paul_in_Qatar)\ **Post date:** [April 30, 2004, 3:54pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/10 "2004-04-30T15:54:13Z")
IMHO, the Justice Department is without a leg to stand on. As long as the Civil Authority can operate (that is outside a state of insurrection), it is supreme. ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [April 30, 2004, 3:59pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/11 "2004-04-30T15:59:20Z")
The right wingers said that if I voted for Gore the government would start locking people up without benefit of lawyer or trial. Well they were right. I voted for Gore, and see what happened. (From a joke Golwater supporters used about Vietnam.) Seriously, how could any Libertarian or true conservative vote for Bush after this? This is the most fundamental thing that makes America what it is. This is a hell of a lot more threatening to our freedoms than anything a terrorist could do. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [April 30, 2004, 4:03pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/12 "2004-04-30T16:03:20Z")
Here’s a link to the 4th Circuit Court of Appeals most recent opinion in the case: [Hamdi v. Rumsfeld](http://laws.lp.findlaw.com/getcase/4th/case/027338P&exact=1). I would comment further, but the people who pay me want their stuff done first for some reason. What a hassle! ---
**Author:** ![Duckster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/duckster/32/1244_2.png) [@Duckster](https://boards.straightdope.com/u/Duckster)\ **Post date:** [April 30, 2004, 4:12pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/13 "2004-04-30T16:12:14Z")
What legal authority does the Executive Branch possess in order to create the legal definition of an “enemy combatant?” I cannot find such authority in [this little document](http://www.archives.gov/national_archives_experience/images/charters_exhibit_zoom_images/constitution_1_of_4_630.jpg). ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 30, 2004, 4:25pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/14 "2004-04-30T16:25:37Z")
> [@Jonathan Chance](#): > > Well, their only other options was to ADMIT they’d acted wrongly and release Padilla and his cohort. And THAT certainly wasn’t going to happen. So they have to do what they can do defend their policies and see what happens. Huh? Don’t they also have the option of actually charging these guys with a crime? That hasn’t even been attempted yet, AFAIK. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 30, 2004, 4:28pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/15 "2004-04-30T16:28:02Z")
The Bush administration finds it more convenient to rely on [this little document](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=317&page=1): > [@](#): > > By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations7 and also between [317 U.S. 1, 31] those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. \*\*Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. \*\* 8 The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. See Winthrop, Military Law, 2d Ed., pp. 1196-1197, 1219-1221; Instructions for the Government of Armies of the United States in the Field, approved by the President, General Order No. 100, April 24, 1863, sections IV and V. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [April 30, 2004, 4:58pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/16 "2004-04-30T16:58:09Z")
Whoops–re: my post above, rather, Hamdi v. Rumsfeld is a related case, the primary difference being that Hamdi was a U.S. citizen captured in a war zone. Here’s [Padilla v. Rumsfeld](http://caselaw.lp.findlaw.com/data2/circs/2nd/032235p.pdf) ---
**Author:** ![Mollie\_Magill](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mollie_magill/32/20882_2.png) [@Mollie\_Magill](https://boards.straightdope.com/u/Mollie_Magill)\ **Post date:** [April 30, 2004, 5:03pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/17 "2004-04-30T17:03:52Z")
The question I’ve yet to have adequately answered: How can someone be a combatant if they are not captured in battle? ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [April 30, 2004, 5:07pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/18 "2004-04-30T17:07:14Z")
John, My understanding is that Padilla was, at first, just arrested as a citizen charged with a crime, and after it was determined that they didn’t have enough to win with they had him transferred as a military combatant. Even the judge didn’t have any notice that it was coming. If this holds is there anything to stop Bush (or some future President) from having Kerry (or some other future opposition leader) held til further notice based on intelligence too sensitive to share with the courts? ---
**Author:** ![Zebra](https://avatars.discourse-cdn.com/v4/letter/z/c0e974/32.png) [@Zebra](https://boards.straightdope.com/u/Zebra)\ **Post date:** [April 30, 2004, 5:15pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/19 "2004-04-30T17:15:54Z")
What is frightening to me is how the Republicans will say that people who are protesting the war give aid and comfort to the enemy. If they believe that, why not lock them up? Why not just surround the democratic national convention and lock them up? ---
**Author:** ![vibrotronica](https://avatars.discourse-cdn.com/v4/letter/v/a9a28c/32.png) [@vibrotronica](https://boards.straightdope.com/u/vibrotronica)\ **Post date:** [April 30, 2004, 5:31pm UTC](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821/20 "2004-04-30T17:31:32Z")
To me, the two cases aren’t the same. Hamidi was captured overseas with an AK-47 in his hand. IMHO (and IANAL) this means he’s a prisoner of war and subject to the Geneva Convention. The second case, Jose Padilla, is much more troubling. He was an American citizen, arrested on American soil, without a weapon, without a crime being committed, with no physical evidence, merely on the fiat of the executive. I can’t imagine anything more unamerican or unconstitutional. Padilla is probably a terrorist (and I don’t know because the evidence against him is secret), but he was an American citizen siezed on American soil. The executive claims he has the power to do this and that the courts have no jurisdiction. If this stands, it will be the end of the Great Experiment. This amounts to dictatorial power. All we have from the president is an assurance that he won’t abuse that power. Washington, Jefferson, Adams–none of the Founding Fathers trusted _themselves_ with this power. [Next page](https://boards.straightdope.com/t/if-the-government-can-classify-a-citizen-like-jose-padilla-as-an-enemy-combatant/242821.md?page=2)