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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
The plane that hit the Pentagon turned left at my house to get there!
At the moment it would seem we have the upper hand to a greater degree than was expected by the enemy or you'd be in some serious trouble ~ from them because you are here (to be targeted), and from us (because you want to tie our hands so we can't respond to the enemy).
Says who? You?!
You are free to imagine that I am.
Almost forgot the other point...
There was no other point. You initially stated that a court ruling against the administration would deter our forces from taking POWs in time of war. I explained to you why that was wrong. All you have in response is a bunch of unimpressive chest-thumping.
Since there apparently isn't anyone else left around here to do it, I'll tell you myself - The idea that the Senate has some sort of power to conspire with foreigners to tell Americans how to live and what to do, acting in complete opposition to the very will and sovereignty of the American people, is repugnant to the concept of a free republic.
You ought to be ashamed of yourself.
It's the congress you are accusing of operating on a "whim".
They authorized the use of military force against members of Alqueda and the Taliban- not the executive.
If you can think of a safer place to put the war power than in the legislature, offer an amendment to the constitution and it wil be well received.
And indeed it is. At worst this is a concern about US citizens on US soil. Not about US citizens anywhere else or aliens anywhere.
It's not such an indefinite decaration either- it does not give authority to use military force against ALL or ANY terrorists- just specifically those involved in the 9/11 attack.
They really had to give at least that authority, more would have been nice IMHO.
Don't bother shooting the messenger; it won't change the message.Forget what you *feel* is repugnant. Concentrate instead upon what is actually law.
Now, if you can show me where the SCOTUS has ever ruled to override a foreign treaty that the U.S. has legally ratified in the Senate, then that would be another thing altogether...
Until then, the Geneva Convention governs how we handle enemy combatants.
I fail to see that there is a really serious moral question concerning prisoners of War held for just over two years.
If there is, please explain.
During wartime that second job is very important to our national survival.
The focus is on a couple of guys who are incidentally American citizens who are being held as enemy combatants. I suppose we could ship one of them back to the field of battle for Mr. Karzai to take care of. With respect to Mr. Padilla, if they'd simply announce the time and place they were going to release him, that would resolve that issue.
I saw what public spirited citizens did to the special traffic flow control entrance light system installed in California on the Freeways. Presumably there are other public spirited citizens with at least that much concern over a guy whose intention was to acquire the materials to build a "dirty bomb" and kill tens of thousands of innocent people.
It's like this, if the Executive can't handle Padilla because the Supreme Court says Padilla has rights that supersede the right of the People to protect themselves, then just turn him loose!
It was a sneak attack.
For some reason that seems to be a concept some folks just can't seem to grasp.
"Article. VI.
Clause 2:
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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding..."
I you know how to read commas and semi-colons, you have here the reference to what is very nearly a metaphysical concept ~ that is "the United States" which has "authority", separate and distinct from "This Constitution" and "all Treaties".
We could probably argue all day and into the night on whether or not this clause equates Treaties and the Constitution, or if it makes nothing other than a logical distinction between DOMESTIC AFFAIRS and FOREIGN AFFAIRS.
Typically the way we resolve most of our problems with Treaties is to have Congress pass a piece of "enabling legislation" that recasts everything in our own terms. That way if a court gets hold of a case which seems to have something to do with treaty provisions, the litigants are going to have to first argue their way through American law first. This keeps the Senate and a bunch of foreign guys from stuffing nonsense down our throats.
The burden is on you to show where SCOTUS has ruled that when a treaty conflicts with the Constitution, the treaty would prevail. That would be a real prize, since such a conclusion would defy all common sense.
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