C’mon, John. If they charge Padilla or Hamdi then they have to go through discover and whatever it is they’re not anxious to share will be on Nightline within two days.
THAT’S what they’re trying to avoid here. Especially now. Do you think they want 'The Bush administration arrested these guys on no evidence and without making charges in a timely manner. Sound like…SATAN?"
“Combatant” implies that the person is fighting in a war, not a battle. There are numerous ways to fight in a war without being actually engaged in a battle. For example, the Supreme Court case of Ex Parte Quirin (linked to by the esteemed Fear Itself), the government detained three individuals who were located in the US and intended to sabotage US war facilities. (One of those individuals was apparently a US citizen). The Supreme Court upheld the government’s decision to deny them the rights afforded Americans, and allowed them to be tried before a military tribunal, which sentenced them to death.
Surely you’d agree that people that intended to sabotage the US were engaged in combat, even if they weren’t engaged in a battle. I think the terrorists themselves would say that they’re engaged in a war against America.
Common sense, the fact that the Bush would lose the next election, the fact that the individuals in the Bush Admin would never go along with such an absurd idea, the fact that Bush took an oath to uphold the Constitution, the fact that Congress would eviserate the President’s powers and legislative agenda, etc.
Presidents have had the Court’s implicit authority to take such actions since at least 1942 (and probably longer), but they haven’t. Why do you suspect that Presidents will now begin locking up their opposition? What’s changed?
Note: If you say “Bush is now in office,” I will immediately ignore you as simplistically partisan, and probably a wacko. You’ll have to do better than “I don’t like the guy that’s currently in office.”
As Fear Itself pointed out, the phrase “enemy combatant” comes principally from the Judicial Branch, and not the Executive, and certainly not the Executive currently in office.
The words in that “little document” that arguably give the executive authority over these matters is the “Vesting Clause” of Article II of the Constitution:
The Article II Vesting Clause implicitly grants the President a number of un-enumerated powers, especially foreign affairs powers, that are not specified in the remainder of Article II. The most commonly cited authority for this proposition is Alexander Hamilton in his first Pacificus essay defending President Washington’s 1793 Neutrality Proclamation (sorry, no cite). But Hamilton just talks about the broad powers given to the President; he doesn’t specifically refer to any “enemy combatant” designation.
I think what the Admin has to gain is the fact that they’re doing everything that they can to fight terrorism. My suspicion is that Middle America is more concerned with fighting terrorism than they are about the rights of terrorist suspects. My suspicion is that Middle America would prefer the Bush Admin lock up and hold terrorist suspects for as long as they can under the law, rather than let them go and then apologizing if they blow something up.
The dichotomy that the Bush Admin is relying upon isn’t “good people” vs. “evil doers.” It’s “domestic civil rights” vs. “foreign policy.” The government is not required to read every foreign enemy their Miranda rights before shooting them because those foreign enemies aren’t protected by the rights guaranteed under the Constitution. They may be given rights from other sources, such as the Geneva Conventions. But you have to qualify for the protections of those sources, and “enemy combatants” do not appear to qualify.
Ugh. I think I just threw up in my mouth.
I find it hard to believe that even the people repeating this sort of nonsense believe it. The White House isn’t trying to kill innocent citizens. The White House isn’t ramming planes into buildings. The White House isn’t bombing federal buildings in Oklahoma. The White House isn’t unleashing chemical weapons into the subways of Japan. As far as I know, the White House has given no indication that they intend to attack innocent civilians anywhere at any time.
In fact, the White House oversees a military that tends to put its own soldiers at risk rather than risk innocent civilian lives. The White House condemns the use of unconventional warfare. The White House prefers the straight up meeting of forces on an empty battlefield, where the American military would be at its best. The White House gives aid and money to civilians around the world, even in those countries that hate the White House or disagree with it or burn American flags in demonstrations in its streets; the White House doesn’t blow those countries up just to advance its own political agenda. The White House tries to achieve its political goals by discussions and aid, rather than by blowing up senior citizens and children in malls and bus stops.
I’ve yet to see any evidence that the White House plans to engage in terror on any front whatsoever. Meanwhile, actual terrorists are carrying out planned attacks on citizens throughout the world. So you’ll have to explain to me how the White House offers any threat of terrorism, let alone how that threat outweighs the threat from people that are already attempting to engage in terror.
“Common sense” is not good enough! This is the United States. We are defined by our rule of law and commitment to separation of powers. We rely on the Constitution to protect us against tyranny. We do not relying on the political calculations of the moment to protect us. Bush took an oath to uphold the Constitution, but to him upholding the Constitution seems to mean the ability to assume extra-Constitutional powers. What you are saying here is basically “Bush won’t do that, because he’s good people.” I don’t agree, but that’s not the point. The point is that if the Supreme Court doesn’t strike this down there is NOTHING STOPPING HIM OR ANYONE ELSE from doing that. All they would need is the support of the military. What if a president declares the head of the opposition party to be in league with terrorists and detains him. I speak up against this. The president declares me an enemy combatant and detains me. The details of my arrest are secret under the Patriot Act. The President declares that, due to the state of national emergency we are in, elections are cancelled. Threat condition Red is declared, and the rioters who take to the streets are declared enemy combatants and detained. And there’s not a damned thing anyone can do about it. Think that’s far fetched? The President’s ability to declare citizens enemy combatants is the first step.
Your assertion as to the Court’s “implicit Authority to take such actions” is far from clear. But aside from that, consider that Lucius Cornelius Sulla became Dictator of Rome in 82 BCE. Even though the term was usually six months, he served until shortly before his death in 78 BCE. The Republic still had fifty years before its destruction at the hands of Julius and Augustus Caesar, but the precedent had been set. The traditions by which the Republic had endured had been violated and shown to be flexible if one had the will and could muster some short-term political support to get it done. This is what I fear is happening here, and if the Supreme Court doesn’t stop it, I don’t know where it will lead.
Would you want Hillary Clinton to have the power to imprision any one she wants by fiat? I don’t, and I like her. If Bill Clinton, Al Gore, or Martin Luther King, Jr. were to assert that they had the power as president to detain citizens in a military brig without access to counsel, without charge, without the opportunity to be confronted with the evidence against them, then I would oppose them just as strongly as I now oppose George W. Bush’s attempt to do exactly the same thing.
I have no doubt that plenty of Americans (maybe even most Americans) would gladly allow the prez a lot of arbitrary power if they thought it meant better security. After all, if you haven’t done anything wrong, you have nothing to fear, right? 
But surely the administration must know that this will never stand up in court. And even though most people are probalby OK with a few “terrorists” being detained indefinitely, it’s not like there will be some huge politically backlash against the courts when they decide the prez can’t do this. This isn’t the SCotUS forcing gay marriage on the country, and they’re not saying the administration must let the “terrorists” go free. They will simply be saying “run them thru the system, and charge them with something if you have it.”
The Constitution makes no distinction with respect to rights, be it internal or external. Rights are rights. An American citizen in their own country has rights under the Constitution. Foreign policy, whatever that may be, cannot usurp those rights.
Age, you do realize that your answer is saying that the only thing that would stop a sitting President from abusing such power would be his or her percieved self interest? And that therefore if such a situation occurred that it was in President’s percieved self interest to imprison those with opposing views as enemy combatants that a ruling in favor of this administration would allow it?
Obviously your statement that President’s have had the court’s implicit authority to do so since at least 1942 is somewhat contested. But the statement that such has not been excercised previously is incorrect. Japanese-Americans were imprisoned without judicial review and with suspension of their rights as citizens during wartime based merely on the perception that they might have sympathies to the enemy. Is this the power you want a single branch of the government to have exempt from any oversight?
Certainly other administrations (Nixon, heck even Lincoln if I understand my history right) have tried to silence dissenters without even evoking the enemy combatant excuse. Probably other administrations were just aware that evoking enemy combatant against an American citizen on American soil not involved in combat would be a bit too ballsey to fly.
If the SCOTUS rules against Bushco, what’s to stop them from simply claiming “Executive Privilege” and thumbing their noses at the court?
Stop right there. My point is that it’s far from clear that the Bush Admin has done anything beyond the scope of the powers of the Constitution. And if that’s the case, then the proper procedure isn’t to make some “slippery slope” argument, but to close the loophole in the Constitution.
We’re dealing here with an invading army. Federal officials typically take an oath that requires them to defend the Constitution against “all enemies, foreign and domestic.” Bush’s oath also included some stuff about preserving and protecting the Constitution, and the Constitution makes him the Commander in Chief, and arguably grants him great leeway in dealing with foreign powers and enemies. In the event that an army invades America, the government does not need to read every enemy soldier their rights before killing them. I have a hard time believing that they could kill enemy soldiers, but couldn’t detain them for indefinite periods.
That’s not to say that I think this is a good thing. I’m just not convinced that it’s unconstitutional.
Actually, that’s not what I’m trying to say. I’m trying to say that the President’s powers don’t exist in a vacuum. There are other influences on the President, including the greatest of all the checks and balances – the ballot box. If Bush (or any other President) started locking up his opposition willy-nilly, then he/she would first be opposed by the people in his/her own Administration, then by the voters, who would chunk him/her out of office.
The Patriot Act doesn’t apply to the situation at hand. The Patriot Act does not have anything to do with the “enemy combatant” designation. Nor does the Patriot Act allow secret arrests or detentions.
Which somehow makes it less far-fetched?
I admit that your hypothetical situation is within the realm of possibility (just barely), but I submit that just because something bad is possible – no matter how unlikely – isn’t a sufficient reason to change the status quo. And lest we forget, the slippery slope always slides both ways: isn’t it also possible that if we deny this power to our President, then terrorists will be freed and will wreak havoc on innocent Americans, making a repeat of Sept. 11th more likely? [Sorry, I hate slippery slope arguments. I just wanted to make it clear that it they work both ways.]
How so? In 1942, the Supreme Court upheld the ability of the government to deny basic civil rights to a US citizen based on the fact that he was an “enemy combatant.” What leads you to believe that any government since 1942 lacked the power to do the same thing?
And if the Supreme Court does stop it, we don’t know where that will lead. It’s a guessing game either way.
That’s a fair question, and I think the power would safely reside with whomever is elected to office. The American people tend to not be idiots, and we generally elect good people to office. And even if we didn’t, I have a hard time believing that the majority of Americans wouldn’t be able to put aside partisan labels if the President suspended elections.
I didn’t mind it when Bill Clinton had the power to declare people “enemy combatants,” and I think HRC is usually more reasonable than Bill, so I doubt I’d have any problem with her weilding that sword. I won’t count out the possibility that I’ll have some problems with specific applications of the doctrine by Bush or HRC or whomever, but to my knowledge, that hasn’t happened yet. All of the complaints I’ve heard so far have to do with hypothetical possibilities.
What Bush is doing to the Constitution is far worse that anything carried out by Al Qaeda. This threatens the freedom of millions of citizens! If we accept the false dillemma posed by the Bush regime, we must accept some compromises of our freedom in order to thwart the evildoers. I, for one, value the Bill of Rights much higher than my personal safety, and would accept a lower level of security if that is what it takes to preserve the freedoms that our soldiers have fought and died for for over 200 years. Fortunately, we do not have to make that choice.
Jose Padilla will be comforted by that news, I am sure. Or are you as certain as our President that his guilt is a forgone conclusion, not worthy of consideration in our system of laws?
Yes, the Constitution does make such distinctions. The Constitution entrusts the President with powers over foreign policy that far exceed his powers over domestic policy and law enforcement. The President has the power to order people killed in the foreign policy arena; but the President cannot do so in the domestic law enforcement arena. The President has the power over treaties in the foriegn policy arena, limited only by the Senate’s power to advise and consent; but in the domestic policy arena, the Legislature has the power to make and pass laws, limited only by the President’s veto (which the Legislature may still override).
Under the Constitution, they are completely separate arenas in which the government has entirely different powers. And if a citizen crosses the line from the domestic law enforcement arena into the foreign policy arena, then his or her rights change accordingly.
I agree. The Supremes are going to shoot down the Padilla detention quicker than Daniela Pestova would shoot down my offer to buy her a drink. And I’m undecided on whether that would be the best option (the detention thing, not the drink). The idea of the Pres being able to lock away American citizens without some sort of Judicial review gives me the heeby-jeebies.
I just don’t think that it’s clear that this is the right choice. And I’m totally unconvinced that it is, in fact, unconstitutional. We naturally assume that we need to strip the Pres of as many powers as possible to protect against the possibility that they may be abused. But we seem to have stopped looking at the imminent trade-offs. I think that’s a bad idea.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
What am I missing here?
Uhhh…no. He doesn’t have that power.
And yes Ford’s executive order still has the power of law.
http://www.ford.utexas.edu/library/speeches/760110e.htm#assassination
No, I’m not. Please re-read my posts. There are numerous reasons, including the impossibility of performance if they are opposed by their own Admins and/or voted out of office.
Korematsu had nothing to do with enemy combatants. And I would actually be surprised if the Supreme Court didn’t use the Padilla and/or Hamdi to explicitly or implicitly overrule Korematsu (or at least say that it was a bad decision). Nor have I said that I would support locking away peope based on their race.
Could you expand on how Nixon and Lincoln tried to silence dissent? I know Lincoln suspended habeas corpus, but that had nothing to do with silencing dissent. And I’m at a complete loss as to how Nixon tried to silence dissent.
Furthermore, as far as I know, no one has accused Bush of using the “enemy combatant” label to silence dissent. No one has reliably accused Bush of locking up anyone other than suspected terrorists. So I hope you weren’t insinuating that Bush has used the “enemy combatant” label to silence opposition. If you were, I’d appreciate a clarification.
Impeachment for willfully disobeying the Supreme Court? The fact that Executive Privilege and Habeus Corpus aren’t the same thing?
Yeah right. A pubbie congress impeach Bushco.
Wanna buy a bridge?
Apparently, you’re missing my earlier posts about the Vesting Clause and the differences between an individual’s rights in domestic law enforcement and the foreign policy arena. Feel free to scroll up at your leisure.
Diligent citizens such as yourself who are ready to man the baracades in the event that this happens.
I will not.
No, it’s clear that the enemy combatant designation is beyond the scope of his constitutional powers. See Articles 5 and 6 posted by Duckster below.
No we’re not. We’re dealing with a terrorist organization. There is no invading army.
We’re not talking about an invading army. There is no invading army. We’re talking about an American citizen being arrested on American soil and being detained without access to lawyers, without being given the opportunity to see the evidence against him, and being held without charge purely on the word of the executive.
This president says there is no judicial check on his action. Once you throw out the first part of the Constitution, where do you stop? If the president doesn’t have to answer to the judicial branch, who is going to stop him? Members of his own administration? What if he’s surrounded by like minded individuals and declares the un-like minded enemy combatants? Sadaam Hussein stood for elections too, you know. The Soviet Union had elections.
The Patriot Act does allow for secret detentions. Over a thousand foreign nationals have been detained secretly, and many have been deported. We don’t even know how many have been detained–all we have is an estimate from the Attorney General. In fact, according to the Washington Post, the Patriot Act put a gag order on an ACLU challenge to the Patriot Act!