Exactly. But the government is claiming that it doesn’t have to go to a magistrate at all, that the DOJ’s opinion (whim?) is supreme, final, and nonreviewable. If you’re not arguing that view at all, then we’ve wasted some bandwidth in misunderstanding.
Except for the part about advocates being allowed to argue their views where it matters, that is.
But what I posted above is merely my idea. I’m certainly willing to listen to the government’s argument that there are situations in which detention must be immediate and not subject to review – that was the purpose of my Invasion Hypo. Even if some of the Venezuaraguian soldiers were American citizens, under the circumstances I outlined, I’d support non-reviewable confinement, at least during the period of insurgency.
That’s why I mentioned the exigency exception.
Bricker, in your opinion, should we still be holding suspects detained immediately after 9/11? What about Jose Padilla? Neither of those situations qualifies as a period of insurgency, or active hostilities.
So, if we can find Timothy McVeigh’s supporters, we can treat them as a nation-state and hold them indefinitely without trial? Should we not have done the same thing with McVeigh, himself?
I support review in Padilla’s case, unless there’s something I don’t know. That is, I am willing to let the government make its case on why there shouldn’t be review, and then show that that situation applies to Padilla.
No, I think McVeigh’s crowd doesn’t qualify as a nation-state. But only because I don’t agree they meet the resource threshhold. Admittedly, they caused a massive attack. But they did it with a truck and explosives. There was no aspect of undercover infiltration, of complex planning, of kingpins with millions ordering pawns to carry out plans.
That’s not to say that home-grown organizations could not reach that level. I think the Confederate States of America were a hostile nation-state in 1862, for instance.
That suggestion that a nation-state is defined not by geography or borders or government or laws or international recognition, but by its resources and ideological determination, is certainly a novel concept. You really wanna stick with that one, Rick?
Hey, I said I was flying by the seat of my pants, here. If it’s an unworkable definition, I’ll withdraw it.
But the only way to achieve a workable rule is advance a position, defend it rigorously, and see if it works.
But for the moment, yes – geography, borders, government, and laws are insufficient criteria. Not sure about international recognition just yet, but the other factors are not the sine qua non of a functional nation-state in the 21st century.
So sez I, for the moment.
I agree, and it’s not a new idea. Bricker has already mentioned the Confederacy, which had little or no international recognition. To that, I would add that the U.S. has fought wars against Filipino insurgents (immediately after the Spanish American War), Barbary pirates, Mexican rebel/bandits (Pancho Villa) who invaded/raided the U.S. shortly before WWI, and Indian tribes. None of these had international recognition as independant nations.
I concede that some of these enemies were affiliated with territorial entities with arguable nation-state status (the pirates and Native American tribes), but it’s debateable. Pancho Villa’s band and the Moro rebels certainly did not qualify as nation-states.
In all these instances (leaving aside the merits of each of these wars to 21st Century eyes), I would assert that the U.S. had the right to (and did) detain enemy combatants without due process. (Of course, in most of these instances, the enemy combatants faced worse than mere detention, but that’s not really relevant to the issue being debated.)
Let’s get even more basic, then: If this is a war, who exactly is the enemy?
Al Quida, its affiliates and members.
Make its case to whom? Either you trust the government to hold someone without a trial or you don’t – it can’t be judged on a case by case basis, because there is no review.
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They did it with trucks and explosives. Al-Qaeda did it with box cutters. Nothing else. Their attack was neither complex nor massive. It was in fact pathetically simple. All it took was twenty guys who were willing to sacrifice themselves. We were completely unprepared for such an attack, so it worked.
I’d still like to hear what you think we gain from holding people without trial that is worth the risk of accidentally holding an innocent American.
And in none of these instances were the aggressors in question United States citizens. The fact that we didn’t give Pancho Villa due process doesn’t set a precedent for stripping U.S. citizens of the right.
In general, it’s not.
But I’m willing to accept that it may be worth it in specific situations.
Originally posted by Bricker :
“I support review in Padilla’s case, unless there’s something I don’t know. That is, I am willing to let the government make its case on why there shouldn’t be review, and then show that that situation applies to Padilla.”
But who do you trust to do the review of whether or not there should be a review? Why not simply hold the review, instead of trusting an unaccountable bureaucrat to make his own decision about locking someone up indefinitely? And why limit your consideration to Padilla’s case specifically instead of to general basic principles of law?
Hmmm… Not sure you’re right about that. The Philippines were a territory of the U.S. at the time. I concede the pirates and Villa’s band probably did not include any citizens, although it’s not impossible. I also believe that you are technically correct that Native Americans were not considered U.S. citizens at the time, although legally, I don’t see why they weren’t.
Even if you’re right on all four of these cases, though, it doesn’t address Bricker’s example of the Civil War, or two additional examples that I’ll cite now: Shay’s Rebellion and the Whiskey Rebellion.
Random, Shay’s rebellion predates the U.S. Constitution, so it’s not exactly reasonable to point to that as an example of constitutional behavior. And, the participants in the Whiskey rebellion were given trials:
So if a group of people caught in active rebellion against the government are given a trial, why isn’t a single citizen accused only of plotting against the government allowed one?
From the U.S. Constitution: