Padilla decision: U.S. citizen can be held without charge as "enemy combatant"

[Diogenes_the_Cynic]

@Mr. Moto

I’m sure it makes you feel a lot worse.

So it puts the lie to your earlier assertion that this was “right wing judicial activism, pure and simple.”

How so? Why can’t a Clinton apointee be a right-wing activist? Clinton was no liberal (I would argue that he was scarcely any less conservative than the first George Bush). More importantly, the ruling speaks for itself. It is unquestionably activist in that it ignores the text of the Constitution and hides behind a fabricated “war” to justify itself. You might try to argue that the decision is not ideologically conservative but I doubt you’d find many takers for that.

[John_Mace]

Does anyone have a link to the actual ruling? As much as this ruling does disturb me, I think it’s important to actually read it before decaring it to be “right wing judicial activism”. In particular, how did the panel square their ruling with Hamdi?

[Frank]

@Mr. Moto

How can Arnold be Anglo-Saxon? He’s Austrian by birth.

Benedict Arnold was born in Norwich, Connecticut.

The fact that two of the judges were appointed by Clinton is irrelevant. I’d be very worried if any of the three were being considered for the Supreme Court. Since one is, I’ll feel free to worry about him.

[Saint_Cad]

@BrainGlutton

I’m sorry, but I fail to see how Arnold compares favorably. Apart from being Anglo-Saxon.

Let me try this again. Comparing (not contrasting) Padilla to Arnold would make Padilla’s case more distasteful to most Americans. Since most Americans are familiar with Benedict Arnold’s traitorous activity, linking the two and making Padilla the new Arnold would probably garner quite a bit of support for Bush in persuing the case by whatever mean necessary. If you went up to average American and asked “Should a traitor be allowed the writ of habeas corpus during wartime?” (Yes I know its a loaded question but I’m trying to phase it according to Bush’s presume spin.") most Americans would say “$*@% no!!!”

[Gfactor]

A few bits of judge counting trivia, as I review the cases:

1. The plurality opinion in *Hamdi *was joined by four justices, two of whom will not be around to review this case. Scalia and Stevens dissented, suggesting that

Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause.

FindLaw's United States Supreme Court case and opinions.

Of course, even if Bush appoints two justices who agree with Scalia, that only yields four. So it might not change the result.
2. In Hamdi, Luttig dissented from a denial of rehearing en banc (pdf, p. 41) saying:

As my colleagues have recognized, the panel’s opinion resolving
the important issue presented by this suit is unpersuasive, because of
its exclusive reliance upon a mistaken characterization of the circumstances
of Hamdi’s seizure as “undisputed,” when those circumstances
are neither conceded in fact, nor susceptible to concession in
law, because Hamdi has not been permitted to speak for himself or
even through counsel as to those circumstances. That the panel opinion
is unpersuasive is borne out by no less significant a fact than that
the panel itself, as evidenced by the two separate concurrences today,
cannot even now agree as to either the proper interpretation or
defense of its opinion.

He also laid into Judge Traxler in a four page diatribe. (pp. 51-55). But he ultimately hinted that he would probably adopt a position deferential to the Executive (pp. 56-58), as Thomas did in his *Hamdi *dissent. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=03-6696#dissent2

All of this is, of course, trivia. I’ll be back when I have finished reviewing the cases and stuff.

[Mr.Moto]

@Diogenes the Cynic

How so? Why can’t a Clinton apointee be a right-wing activist? Clinton was no liberal (I would argue that he was scarcely any less conservative than the first George Bush). More importantly, the ruling speaks for itself. It is unquestionably activist in that it ignores the text of the Constitution and hides behind a fabricated “war” to justify itself.

Well, the Constitution says lots of things, doesn’t it? One of the things it does is give broad powers of warfighting to the executive.

The Supreme Court recognized this power in ex parte Quirin, and this decision explicitly relies on it as precedent.

[BrainGlutton]

@Mr. Moto

Well, the Constitution says lots of things, doesn’t it? One of the things it does is give broad powers of warfighting to the executive.

The Supreme Court recognized this power in ex parte Quirin, and this decision explicitly relies on it as precedent.

But that decision (from 1942 – http://en.wikipedia.org/wiki/Ex_parte_Quirin) – was rendered during, and in connection with, an actual state of declared war. We are in no such state at present, although Judge Luttig appears willing to go along with the Admin’s hand-waving on that point. Furthermore, the import of the ruling (rendered in response to, not in avoidance of, a habeas corpus petition) was that the alleged German saboteurs in question were not entitled to POW status and could properly be tried in a military tribunal; it did not say they could be held indefinitely without charge or trial, nor did it rule that a military tribunal could be an acceptable alternative to a trial in a civilian court with proper jurisidiction.

[BrainGlutton]

@John Mace

Does anyone have a link to the actual ruling?

Here’s a pdf file from the Fourth Circuit’s website: http://pacer.ca4.uscourts.gov/opinion.pdf/056396.P.pdf

[Diogenes_the_Cynic]

@Mr. Moto

Well, the Constitution says lots of things, doesn’t it? One of the things it does is give broad powers of warfighting to the executive.

The Supreme Court recognized this power in ex parte Quirin, and this decision explicitly relies on it as precedent.

We’re not at war.

[BrainGlutton]

@Mr. Moto

I’m sure it makes you feel a lot worse.

Not a lot – I never had any illusions about Clinton’s “liberalism.” That two of his judicial appointees might go over to the Dark Side does not much astonish me. But it does make me feel pessimistic about the prospects of getting this ruling reversed.

[John_Mace]

@BrainGlutton

Here’s a pdf file from the Fourth Circuit’s website: http://pacer.ca4.uscourts.gov/opinion.pdf/056396.P.pdf

Thanks. This opinion relies so much on Hamdi, that it’s impossible to understand it w/o first understanding Hamdi. After reading that opinion I remembered why never wanted to become a lawyer-- I just can’t figure out what the heck it says. But it is clear that the administration does not have the authority to detain US citizens indefinitely, per Hamdi. How this could be acceptable in the case in the OP is beyond me, unless there is something we are missing.

I’m hoping one of the lawyers around here can help us sort this out. Is **Gfactor **one our resident lawyers?

[Gfactor]

@John Mace

Thanks. This opinion relies so much on Hamdi, that it’s impossible to understand it w/o first understanding Hamdi. After reading that opinion I remembered why never wanted to become a lawyer-- I just can’t figure out what the heck it says. But it is clear that the administration does not have the authority to detain US citizens indefinitely, per Hamdi. How this could be acceptable in the case in the OP is beyond me, unless there is something we are missing.

I’m hoping one of the lawyers around here can help us sort this out. Is **Gfactor **one our resident lawyers?

Ok. Here’s the breakdown on Hamdi:

4 opinions:

Plurality (written by O’Connor. Rehnquist, Kennedy, and Breyer) Remanded the case for evidentiary hearing.

Dissent (written by Scalia, joined by Stevens) Would have order trial or release.

Dissent (written by Thomas) would have affirmed the judgment.

Concurrence/dissent (written by Souter. Joined by Ginsburg) would have remanded with instructions to dismiss.

I’ll break it down into separate posts for each opinion.

[Gfactor]

The plurality:

There are a few issues that come up in each of the opinions.

1. Does the AUMF constitute a suspension of habeas corpus?

The plurality answers that it doesn’t (none of the justices say that)

2. Does Section 4001(a), which states that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress,” bar the dentention?

The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF.
We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the necessary and appropriate force" Congress has authorized the President to use.

3. Does the “enemy combatants” rule apply to US citizens?

There is no bar to this Nation’s holding one of its own citizens as an enemy combatant.

4. What standards should apply to the detention of enemy combatants?

a.

the writ of habeas corpus remains available to every individual detained within the United States.

b. The Court acknowledged the

fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law.

c. The Court acknowledged the

the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States,

and suggested

the law of war and the realities of combat may render such detentions both necessary and appropriate, and our due process analysis need not blink at those realities.

d. The Court concluded that “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.”

e. In connection the opportunity to rebut, the detainee has a right to counsel.

Important points made in the opinion:

1. Because this conflict might not have a definite end, there may be some temporal limit to detention:

It is a clearly established principle of the law of war that detention may last no longer than active hostilities.

Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan.

2. Seems to distinguish captures on foreign battlefields from captures on US soil:

Further, Justice Scalia largely ignores the context of this case: a United States citizen captured in a foreign combat zone. Justice Scalia refers to only one case involving this factual scenario–a case in which a United States citizen-POW (a member of the Italian army) from World War II was seized on the battlefield in Sicily and then held in the United States. The court in that case held that the military detention of that United States citizen was lawful. See In re Territo, 156 F. 2d, at 148.

This is a key point in the 4th Circuit case (see pp. 14-18).

The Hamdi plurality also said:

Because Justice Scalia finds the fact of battlefield capture irrelevant, his distinction based on the fact that the petitioner “conceded” enemy combatant status is beside the point. See supra, at 15-16. Justice Scalia can point to no case or other authority for the proposition that those captured on a foreign battlefield (whether detained there or in U. S. territory) cannot be detained outside the criminal process.

What are they talking about? It’s not really clear. Here is Scalia’s response to these claims:

The only two Court of Appeals cases from World War II cited by the Government in which citizens were detained without trial likewise involved petitioners who were conceded to have been members of enemy forces. See In re Territo, 156 F. 2d 142, 143-145 (CA9 1946); Colepaugh v. Looney, 235 F. 2d 429, 432 (CA10 1956). The plurality complains that Territo is the only case I have identified in which “a United States citizen [was] captured in a foreign combat zone,” ante, at 16. Indeed it is; such cases must surely be rare. But given the constitutional tradition I have described, the burden is not upon me to find cases in which the writ was granted to citizens in this country who had been captured on foreign battlefields; it is upon those who would carve out an exception for such citizens (as the plurality’s complaint suggests it would) to find a single case (other than one where enemy status was admitted) in which habeas was denied.

It’s not clear where this disctinction comes from, but the plurality seems to be saying that a different result might be required if a US citizen were captured on US soil (as is the case in Padilla).

*Quirrin *, the case that the Justices are arguing about here involved several combatants who were captured on American soil. All were clearly German citizens except for Haupt, whose parents had become naturalized US citizens. The Quirrin court decided that Haupt’s citizenship was irrelevant because

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.

Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. 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. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused.

(Citations omitted).

and

Nor are petitioners any the less belligerents if, as they argue, they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations. The argument leaves out of account the nature of the offense which the Government charges and which the Act of Congress, by incorporating the law of war, punishes. It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose. The offense was complete when with that purpose they entered-or, having so entered, they remained upon-our territory in time of war without uniform or other appropriate means of identification. For that reason, even when committed by a citizen, the offense is distinct from the crime of treason defined in Article III, 3 of the Constitution, since the absence of uniform essential to one is irrelevant to the other.

In other words, *Quirrin * found both citizenship and locus of capture irrelevant.

3. The Court sort of addresses the lack-of-official-war-with Taliban like this:

We recognize that the national security underpinnings of the “war on terror,” although crucially important, are broad and malleable. As the Government concedes, “given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement.” Ibid. The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.

4. As I pointed out earlier, two of the four justices that joined this opinion will not be on the Court to hear Padilla’s appeal.

[John_Mace]

@Gfactor

d. The Court concluded that “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.”

Thanks for the summary. That was one of the confusing things I remember reading. How does that “opportunity” differ from a trial, and what are the minimum req’ts of the trial substitute (if a substitue is allowed)? It seems very, very vague…

[BrainGlutton]

@Gfactor

4. What standards should apply to the detention of enemy combatants?

a.

the writ of habeas corpus remains available to every individual detained within the United States.

And what about persons detained by U.S. authorities outside the U.S. (e.g., Gitmo or Abu Ghraib)?

@Gfactor

d. The Court concluded that "a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker."

That would seem to rule out military tribunals . . .

[Gfactor]

Scalia Dissent:

1. Does the AUMF constitute a suspension of habeas corpus?

This is not remotely a congressional suspension of the writ, and no one claims that it is.

2. Does Section 4001(a), which states that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress,” bar the dentention?

Yes. Unless the detainee is charged with a crime or habeas is suspended.

3. Does the “enemy combatants” rule apply to US citizens?

Yes. But it only works if habeas is suspended. Otherwise the government must prosecute or release citizen detainees.

4. What standards should apply to the detention of enemy combatants?

Ordinary constitutional standards.

Important points:

1. Scalia’s rule only applies to “citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla.”

@BrainGlutton

And what about persons detained by U.S. authorities outside the U.S. (e.g., Gitmo or Abu Ghraib)?

Good question. According to Scalia, “Where the citizen is captured outside and held outside the United States, the constitutional requirements may be different.”

The plurality points out that this territorial limitation only motivates the military and the Executive to keep detainees on foreign soil. This makes sense because the plurality’s solution requires the detainee to invoke habeas corpus, which applies even to foreign nationals in US custody on foreign soil. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-334#opinion1

2. “Moreover, even within the United States, the accused citizen-enemy combatant may lawfully be detained once prosecution is in progress or in contemplation.”

[BrainGlutton]

@Gfactor

1. Scalia’s rule only applies to “citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. . . .”

By what theory does he distinguish citizens from noncitizens? Nothing in the Bill of Rights says its guarantees are limited to citizens. Generally speaking, U.S. citizens have only two kinds of rights or privileges that noncitizens have not: The (highly conditional) privileges of political participation, i.e., voting and holding public office; and the (unconditional) right to reside on U.S. soil without being deported or exiled, even in punishment for crime.

[Gfactor]

@John Mace

Thanks for the summary. That was one of the confusing things I remember reading. How does that “opportunity” differ from a trial, and what are the minimum req’ts of the trial substitute (if a substitue is allowed)? It seems very, very vague…

Oh, they spelled it out for us:

Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria.

It’s hard to tell from this what is actually required. They are telling us though that it’s not a regular old trial: The prosecutor could use hearsay evidence, which is inadmissible at a trial. The prosecution can have only the burden of production of evidence–not the burden of persuasion at trial. At a criminal trial, the prosecution has the burden of esablishing (introducing evidence and convincing the judge and jury that it is sufficient) guilt beyond a reasonble doubt: the defendant is said to be presumed innocent. At these trials, the detainee is presumed guilty as soon as the prosecution introduces credible evidence that the detainee is an enemy combatant. The detaine has to disprove enemy combatant status. They didn’t give us a standard of proof, but no matter what standard applies, the detainee has a much harder case than a defendant in a criminal trial.

@BrainGlutton

That would seem to rule out military tribunals . . .

Actually, no. The plurality says:

There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved.

(Citation omitted.)

In other words, the habeas procedure is only necessary if there is no military tribunal to decide the case.

[Gfactor]

Thomas Dissent:

1. Does the AUMF constitute a suspension of habeas corpus?

The way Thomas analyzes it, it’s hard to tell.

2. Does Section 4001(a), which states that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress,” bar the dentention?

He doesn’t answer the question directly. The implication of his reasoning is that Section 4001 does not apply.
3. Does the “enemy combatants” rule apply to US citizens?

Yes.

4. What standards should apply to the detention of enemy combatants?

It’s a political question for the executive branch. Courts should not second guess them.

Important points:

1. Sees this an an extension of the war power.

2. The first paragraph is a pretty good overview.

The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners’ habeas challenge should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs and by using the balancing scheme of Mathews v. Eldridge, 424 U. S. 319 (1976). I do not think that the Federal Government’s war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I could not accept the particulars. The plurality utterly fails to account for the Government’s compelling interests and for our own institutional inability to weigh competing concerns correctly.

[Gfactor]

Concurrence/dissent

1. Does the AUMF constitute a suspension of habeas corpus?

No.

2. Does Section 4001(a), which states that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress,” bar the dentention?

Yes. Because of this, the detainees should be released.

3. Does the “enemy combatants” rule apply to US citizens?

Not answered.

4. What standards should apply to the detention of enemy combatants?

The AUMF does not justify holding them. But since the plurality has decided that it does:

It should go without saying that in joining with the plurality to produce a judgment, I do not adopt the plurality’s resolution of constitutional issues that I would not reach. It is not that I could disagree with the plurality’s determinations (given the plurality’s view of the Force Resolution) that someone in Hamdi’s position is entitled at a minimum to notice of the Government’s claimed factual basis for holding him, and to a fair chance to rebut it before a neutral decision maker, see ante, at 26; nor, of course, could I disagree with the plurality’s affirmation of Hamdi’s right to counsel, see ante, at 32-33. On the other hand, I do not mean to imply agreement that the Government could claim an evidentiary presumption casting the burden of rebuttal on Hamdi, see ante, at 27, or that an opportunity to litigate before a military tribunal might obviate or truncate enquiry by a court on habeas, see ante, at 31-32.