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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 word "prevent" was not use until your post!
Southhack merely made the statement that IF SCOTUS rules that these so called "combatants" have "rights" under the consititution - even when fighting AGAINST us, that the military would likely cease taking prisoner's and instead make use of the "illegal" combatants clauses of the Geneva Conventions - namely outright execution on the battlefield.
You mean "the outlandish argument that the Supreme Court is making", of course - this is not "my argument", this is the law.
...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.
Oh, well. You probably also won't believe me if I tell you that, constitutionally speaking, the US can withdraw from any treaty at any time by a simple act of Congress. But it's true, nonetheless.
Precisely.
Re-read the excerpt again. You failed the first time through. Note carefully that the reason for the semicolon is clearly explained.
[The] debates [which accompanied the drafting and ratification of the Constitution] 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.
You've missed the big picture. Your above "reason" doesn't matter. What matters is that treaties do not have to be made pursuant to the Constitution's government restrictions, per Article VI in the Constitution itself.
Congress is an entirely different Branch of our government than is the Supreme Court.
What you were erroneously trying to say was that the Supreme Court could nullify a legally binding, Senate-ratified treaty.
That's a different thing altogether from that of Congress killing a treaty.
Please cite chapter and verse to support that outrageous claim. If the Geneva Convention(s) are that "clear" on this matter, this should be quite simple for you to do.
The fact is, the Geneva Convention(s) state no such thing. The best that can be said about the GC, is that it is silent as to the permitted dispositions for illegal enemy combatants. It is clear from your claim that either you haven't actually bothered to read the GC's, or else you've chosen to intentionally misrepresent them.
When you post something that clearly in error, it makes the rest of your arguments suspect, as well. And that is a shame, because other than your imprudent claim about the GC, you and I are in (general) agreement.
--Boot Hill
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.
Oops, strike that. I just read your goofy claim that treaties can overrule the Constitution. We are no longer "in general agreement".
--Boot Hill
No, enemy combatants captured under various circumstances can be tried by military tribunals or given summary executions on the battlefield if they are "unlawful combatants" under the 1949 Geneva Conventions.
The Geneva Conventions define and protects *lawful* combatants. Once the Geneva Conventions place someone under the *UNlawful* combatant catagory, they are then subject to "The Law of War" (among others).
I'm just the messenger. You aren't arguing with me so much as you are disagreeing with what our own Constitution says in Article VI.
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."
Citations, please.
As you said "the Geneva Convention...states *clearly*", so this should "clearly" be easy for you to show me.
--Boot Hill
The Geneva Conventions Treaty states clearly who is and is not a legal combatant.Those who are *not* legal combatants are not protected by the safeguards in the Geneva Conventions, and fall under other treaties and laws, such as the Law of War.
Without Geneva Conventions protections, unlawful combatants may be given summary battlefield justice, up to and including being shot on sight.
No, I'm arguing with Southack, who conveniently chooses to quote only half of the relevant portions of Article VI.
"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..." (emphasis added)And I'm arguing with Southack, who conveniently chooses who chooses to ignore what the Supreme Court has said about your argument.
"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)--Boot Hill
You'll have an easier time learning what Article VI says and means if you underline the full section rather than just half.
You have two separate parts. One part says that laws made by Congress must be pursuant to the Constitution. Then you have a clear semicolon showing that the pursuant to the Constitution part applies to those Congressional laws but not to what follows.
The second part that follows that semicolon shows that Treaties are the Supreme Law of the Land.
Yet you stated in your post #6 that...
"the Geneva Convention, which states *clearly* that enemy combatants who are not wearing a legally *recognized* military uniform or carrying military ID (dog tags) can be shot on sight or otherwise dealt with by the capturing Party.Is this your back-handed way of owning up to the fact that you were wrong about what the Geneva Convention(s) actually say?
--Boot Hill
Nit pick all that you will at my verbiage; it won't help your erroneous argument.
Clause 15 is about calling forth the militia, which has nothing whatsoever to do with the subject under discussion. Try putting just a little thought into your posts before hitting the Post button.
"The laws" you refer to include the treaties. That's why Article VI refers to them collectively as "the supreme Law of the Land".
--Boot Hill
And that does not entail the power to authorize what the Constitution does not allow.
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