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Posted on 05/03/2004 7:21:17 PM PDT by Dr. Marten
Supreme Court Hears Enemy Combatant Case
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WASHINGTON (AP) - The war on terrorism gives the government power to seize Americans and hold them without charges for as long as it takes to ensure they are not a danger to the nation, the Bush administration told the Supreme Court on Wednesday.
Lawyers for two men detained by the government argued in reply that fighting terrorists cannot mean a president has unchecked authority to snatch U.S. citizens and hold them without a chance to plead their case.
"We could have people locked up all over the country tomorrow," said Frank Dunham, lawyer for a Louisiana-born man captured while fighting with the Taliban in Afghanistan.
Two-and-a-half years after the Sept. 11 jetliner attacks that killed thousands, the nation's highest court considered far-reaching questions about civil liberties, law and America's security in a changed world. By their words in court, a majority of justices seemed to give at least qualified support to the Bush administration.
The American-born men, like foreign fighters also labeled enemy combatants and held abroad, have been in near solitary confinement, without access to courts, lawyers or the outside world.
Only in the past month, with the Supreme Court about to hear their cases, have they been allowed to meet with lawyers.
"We've had war on our soil before, and never before in our nation's history has this court granted the president a blank check to do whatever he wants to American citizens," lawyer Jennifer Martinez argued on behalf of Padilla, a former gang member and alleged al-Qaida associate arrested at O'Hare Airport on suspicion of plotting to detonate a radioactive bomb.
Government lawyer Paul Clement countered that Congress gave the president broad power to go after terrorists and head off future threats at home or abroad. He likened Padilla to a "latter-day, citizen version of Mohammed Atta," ringleader of the Sept. 11 hijackings.
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"But have we ever had a situation like this where presumably this warlike status could last for 25 years, 50 years, whatever it is?" asked Justice Sandra Day O'Connor.
Any wartime detention can seem indefinite, at least at the start, Clement replied. "If you talk about a detainee in 1942, they're not going to know how long World War II is going to last."
Several justices suggested it is impractical, perhaps impossible, to expect the government to hold extensive hearings before holding someone - even a citizen - who it suspects is fighting for the enemy.
"You want them to run down the members of the Afghan allies who captured this man and get them to testify in a proceeding?" Justice Antonin Scalia asked Hamdi's lawyer. "It's just putting unreasonable demands upon a war situation."
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Taken together, the three cases give the court the opportunity to broadly define how the government may treat citizen and non-citizen terrorism suspects picked up at home and abroad.
Hamdi was captured on an Afghan battlefield weeks after the Sept. 11 attacks.
The government has presented no public evidence that Hamdi was a terrorist, and his lawyer told the justices that if the government had its way Hamdi would never get the chance to defend himself.
"We have never authorized detention of a citizen in this country without giving him an opportunity to be heard, to say, 'Hey, I am an innocent person,'" Dunham argued.
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The Bush administration won its argument in a lower court in the Hamdi case, but lost a federal appeals court fight in the Padilla matter.
Representing the government in both cases Wednesday, Clement referred often to the congressional statute passed a week after the 2001 attacks that gave the president authority to use "necessary and appropriate" means to fight terrorism.
Justice Ruth Bader Ginsburg worried that a broad reading of the language could give a president unlimited power.
"What is it that would be a check against torture?" she asked.
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But "what's constraining? That's the point," Ginsburg replied. "Is it just up to the good will of the executive? Is there any judicial check?"
Clement responded a president should have the authority to use his military powers to fight terrorism, without "judicial micromanaging."
Clement also argued that a federal court in New York improperly ruled in Padilla's favor because Padilla was being held in South Carolina. Padilla's lawyer was appointed in New York.
The cases are Hamdi v. Rumsfeld, 03-6696, and Rumsfeld v. Padilla, 03-1027.
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On the Net:
In the case of Hamdi v. Rumsfeld, audio of arguments from Frank Dunham, representing Yaser Esam Hamdi, is available at: http://play.rbn.com/?urlap/ap/g2demand/all/0428scotus_hamdi1.rm
Audio of arguments from Paul Clement, representing Donald Rumsfeld, is available at: http://play.rbn.com/?urlap/ap/g2demand/all/0428scotus_hamdi2.rm
In the case of Rumsfeld v. Padilla, audio of arguments from Paul Clement, representing Donald Rumsfeld, is available at: http://play.rbn.com/?urlap/ap/g2demand/all/0428scotus_padilla1.rm
Audio of arguments from Jennifer Martinez, representing Jose Padilla, is available at: http://play.rbn.com/?urlap/ap/g2demand/all/0428scotus_padilla2.rm
Twist the facts as you might, you simply cannot make the case that a SCOTUS ruling against the President on this issue would prevent our forces from taking POWs on the battlefield in war.
Nonsense. Everyone is behaving legally, per the Geneva Convention, as set forth by our Constitution regarding treaties and American law.
It is *you* who wildly claims that detaining enemy combatants according to the Geneva Convention somehow violates U.S. law, however.
Therefore it is incumbent upon *you* to show where the court has ever overruled a foreign treaty that the U.S. Senate has ratified here in the U.S.
False. You're assuming that they're enemy combatants, not I.
Therefore it is incumbent upon *you* to show where the court has ever overruled a foreign treaty that the U.S. Senate has ratified here in the U.S.
If no treaties have yet been found to conflict with the Constitution, what would be the point of them striking them down?
Keep in mind that courts have striken down laws that have been "legally" passed by both houses of Congress and "legally" signed by the President. There's nothing fundamentally different about treaties.
Then you have no argument at all...because the Geneva Convention has been U.S. law since it was ratified decades and decades ago...and that treaty dictates precisely how we can treat enemy combatants.
You keep getting the basics all wrong, as if your personal preferences overrode U.S. law. The world doesn't work that way.
Well, there you have it. A treaty which purports to authorize the government to behave un-Constitutionally is not made under the authority of the United States, because it is impossible by definition for an un-Constitutional act to be contained within that authority.
Funny! Keep up the good spin, though!
Article I, Section 8 says:
"Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
Clause 13: To provide and maintain a Navy;
Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;
Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions............"
There's a lot of stuff there. Now, notice Clause 15 very closely. It doesn't even say "repel Invasions by other countries", just "repel Invasions".
Amazing!!!!!! I gotta' tell ya', it's simply amazing what the Founders could figure out so long ago.
Sez the Supreme Court:
The treaty power, as expressed in the constitution, is in terms unlimited, except by those restraints which are found in that instrument against the action of the government, or of its departments, and those arising from the nature of the government itself, and of that of the states. It would not be contended that it extends so far as to authorize what the constitution forbids, or a change in the character of the government, or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent.- Geofroy v. Riggs, 133 U.S. 258 (1890)
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Article VI, the Supremacy Clause of the Constitution, declares:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . . ."There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights - let alone alien to our entire constitutional history and tradition - to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.
- Reid v. Covert, 354 U.S. 1 (1957)
"There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution."
Gong! Thanks for playing, but no, you'll have to re-read Article 6 again. You failed the first time through.
Note carefully that there is a semicolon after "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;". This means that the laws passed by Congress *MUST* be made pursuant to our Constitution. Then, after the clear semicolon, treaties are next stated to be the supreme law of our land alongside our Constitution: "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."
Notice that Congress is given full authority by our Constitution to make its own laws concerning all captures on land and water.
HINT: That's precisely what Congress did when it ratified the Geneva Conventions.
Uhh, those aren't my words up there - you'll need to take that up with the Supreme Court, and explain to them how they've misread the Constitution. In the meantime, you're wrong, and treaties are manifestly inferior to the Constitution itself. So says the Court, so says the law. QED.
You have a vivid imagination, but that won't help you predict how the Court rules.
Actually, it was really my ability to read that allowed me to determine that your claims about treaty powers were wrong.
... but that won't help you predict how the Court rules.
I've made no such prediction - I have been discussing general points of law, not any particular pending case.
This is a thread (note the title) on a particular case under review by the Court.
Then perhaps new glasses are in order for you, as they aren't *my* claims. I simply quoted the U.S. Constitution.
Article VI
... "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."
Oh, and another thing, the outlandish argument that you are making, contrary to Article VI of our Constitution, would in effect hold that the U.S. was unilaterally abandoning the Geneva Conventions. The geopolitical ramifications of which would be incalculable.
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