Appeals court reverses lower court ruling in ’dirty bomb’ suspect case

AP Wire

[Brian Mosely]

RICHMOND, Va. (AP) — A federal appeals court on Friday sided with the Bush administration and reversed a judge’s order that the government charge or free “dirty bomb” suspect Jose Padilla.

A three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that the president has the authority to detain a U.S. citizen closely associated with al Qaeda.

U.S. District Judge Henry Floyd in Spartanburg, S.C., ruled in March that the government cannot hold Padilla indefinitely as an “enemy combatant,” a designation President Bush gave him in 2002. The government views Padilla as a militant who planned attacks on the United States, including with a “dirty bomb” radiological device.

[NavVet]

See, not all lawyers are insane ACLU whackos.

[ken5050]

When we have fed district court judges that issue such blatantly stupid rulings..aside from being overturned on appeal, they should be impeached..

[george wythe]

This will go the SCOTUS again. The first time, the SCOTUS refused to rule on this issue using a technicality, IIRC (if I recall correctly).

[WoodstockCat]

4th circuit: Michael Luttig

[burzum]

The Supreme Court tends to take national security issues very seriously. Rulings directly relating to national security are very rare (that I've seen), but they tend to side with the government (i.e. the McCarthy hearings case). I don't think the ACLU will have much power when a more balanced Supreme Court takes hold. Some justices remember that without national security, there would not be a Supreme Court.

[MEG33]

Good news BUMP

[NJ_gent]

Indeed, you're correct. They issued a partial ruling on the Hamdi case, which prompted the US to cut a deal with him to get rid of the case (to avoid negative precedent). In the Padilla case, we're just going through the motions yet again on its way to the SCOTUS. They side-stepped the case last time by citing jurisdictional questions. Of course, they opened the whole thing up to a potential government shell game; but it's doubtful the people or the courts would stand for such a mockery.

What it comes down to is simply this: As per the United States Constitution: you cannot arrest an American citizen on American soil and hold him in prison indefinitely without a laywer or trial. Them's the rules we all agreed to when we signed on to this whole free country thing. Want indefinite detentions without trials? Move to one of the communist nations; they love stuff like that.

• See also: 5th Amendment
• See also: 6th Amendment
• See also: 8th Amendment
• See also: 14th Amendment
• See also: Ex Parte Milligan
• See also: Posse Comitatus Act

[Congressman Billybob]

This is what I predicted when the federal trial judge's decision was first handed down. He was dead wrong. So said a unanimous Supreme Court decision in 1942. When a trial judge flouts a unanimous Supreme Court decision, it's logical to expect the Court of Appeals to reverse his decision.

That's exactly what just happened. See In re: Quirin, 1942, for the reasons why.

Congressman Billybob

Latest column: "Mayor Nagin: 10,000 Counts of Manslaughter"

[Congressman Billybob]

You wrote: "What it comes down to is simply this: As per the United States Constitution: you cannot arrest an American citizen on American soil and hold him in prison indefinitely without a lawyer or trial." Were you aware that in 1942 an American citizen, arrested on American soil in civilian clothes, but in the company of German saboteurs and working with them, was arrested, tried by a military tribunal outside the usual courts, and convicted?

Read In re: Quirin, 1942, for the circumstances in which the Bill of Rights cease to apply to an American citizen. This case deals with and dismisses in certain circumstances the Milligan case, which you have on your click list.

Congressman Billybob

Latest column: "Mayor Nagin: 10,000 Counts of Manslaughter"

[NeoCaveman]

4th circuit: Michael Luttig

I can hear the DUmmies now "Luttig just ruled this way to get on SCOTUS"

So I say, Luttig for SCOTUS!

[The Red Zone]

Oh, wonderful, now we have an open ended non-war war, with no clear criterion of success that any court could sink its teeth into, through which any President can legally disappear anyone even if the Supreme Court disagrees 9-0, and their only hope for vindication is a successor President who takes a different view. Do we really want to toss that black hole out there in hopes it swallows more of our enemy than it does us?

[Borges]

You think the government should be able to detain U.S. Citizens indefinitely? Be careful what you wish for...

http://www.freerepublic.com/focus/f-news/1481095/posts?page=8#8

[NJ_gent]

I've read Quirin many times since the government attempted its use to cover its actions in the Padilla case. However, aside from my disagreements with the court's overly broad deferment in the Quirin case (along with Chief Justice Stone's own reservations, among others), I don't think it's particularly applicable to the Padilla case.

First of all, in Quirin, the court never even addressed Haupt's purported US citizenship. The entire issue was rushed past in an effort to simplify the whole thing (and rush the case through the court). Quirin also relies in part on the Presidential proclamation, which reads in part: "all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States". As many have noted many times previously, no official declaration of war has been made in the War on Terrorism, and we are not at war with any given 'nation', as such. Granted, we are in a conflict with an unknown number of individuals, but the current situation would appear to invalidate the effect of that proclamation. Also, in the Court's decision, it noted that: "But the detention and trial of petitioners-ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger-are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.". In essence, the SCOTUS refused any sort of litmus test for this type of case; preferring instead to simply move along the Quirin case as soon as possible while leaving the issue of citizen detentions and trials by the military all but unresolved. Failing a new litmus test in Quirin, we're left with the old one from Milligan: "Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."

All this stuff aside, we're left with one very important fact: Jose Padilla isn't even getting a military tribunal. He's an American citizen who's just been sitting in solitary for the past 3 years. He was arrested in Chicago by the FBI using a Material Witness warrant to compel his presence for testimony in a trial that never existed, then quietly handed over to the military. Since then, the government has done everything it could to block his lawyer's access to him and the courts on his behalf. This is the stuff nightmares are made of. I don't think Padilla's a nice guy, and I think he's probably guilty. What I think, however, doesn't matter. What does matter is his Constitutionally "guaranteed" (whatever that means) rights. If Padilla's rights can be stripped away at a moment's notice, so too can the rights of each and every one of us sitting here reading about it. Are we some special, protected class that is immune to some future President's whims? What, precisely, is our recourse when one of us is whisked away by minions of President Hillary in the middle of the night for 'being a terrorist'? Are we to defer to her judgment because there exists a state of worldwide conflict? How much trouncing on the US Constitution are we to accept before we stand up and decide that no more is to be tolerated? Personally, I draw the line when American citizens are plucked off the street and tossed in prison with no trial.

[Congressman Billybob]

The facts of Quirin are identical to Padilla. American leaves the country, goes to another, returns to America with plans to commit sabotage. Identical.

Yes, the Court DID address Haupt's citizenship. He was born in Chicago, IIRC. There was another of the eight defendants who claimed to be American-born. But as the Court showed with Haupt, that was legally irrelevant.

Some people may have claimed "many times" that there is no declaration of war here, but that is false. Both in the original Patriot Act, and again a year later, Congress passed Resolutions which authorized the use of military force across national boundaries by President Bush.

The language used was nearly identical to what Congress passed in 1895 to allow President Jefferson to make war on the Barbary Pirates. You need to do your homework, and stop repeating a falsehood.

You grossly misread Quirin. The Court unanimously approved the detention, trial, and for six individuals the execution of illegal combatants.

Your thinking is that the old case, Milligan, is still good law after the new case, Quirin. That ain't the way that either laws or court decisions work. The new one governs and the old one is either overruled or limited. Milligan (during the Civil War) was explicitly limited by Quirin (during WW II).

The powers that President Bush used with respect to Padilla are exactly the same as President Roosevelt used in WW II, and almost all other Presidents who presided over a war, have used.

In fact, the powers predate the United States. As the Supreme Court clearly explained in Quirin, they are part of the Law of War. General Gates used this power to try and execute Nathan Hale during the American Revolution, and General Washington used the same powers to try and execute Major John Andre in the same War.

If you are concerned about a potential President Hillary Clinton using these powers, you better make sure that she doesn't get the job. That's because these powers come with the oath of office, unless the Constitution is amended to limit the powers of a President as Commander in Chief during a declared war. I don't hear you proposing such an amendment.

I'm sorry to be so harsh, but you are profoundly ignorant about constitutional law, American history, and the Law of War. You need to do some serious reading to understand those subjects, if you are to make a positive contribution to the discussion of this subject.

The Constitution has not "been trounced" in this matter. It has been followed, exactly as the Supreme Court unanimously said in Quirin, and as a Circuit Court just found yesterday in reversing a trial court determination to the contrary. The trial court was wrong in its decision about Padilla for exactly the same reasons that you are wrong on this thread.

John / Billybob

[The Red Zone]

A Bork-like amendment which would permit a supermajority of the original Congress (not some skinnied down version of it, as might occur due to an attack on the Congress) to overrule the CIC, might have to be in order. And by the way, let them do it to the SCOTUS too. Twofer.

[The Red Zone]

and as a Circuit Court

panel

just found yesterday

[Redbob]

I just love it when lawyers argue amonst themselves!

(But frankly, your arguments sound the more compelling.)

[NJ_gent]

"The facts of Quirin are identical to Padilla. American leaves the country, goes to another, returns to America"

Quirin does not fit this at all. Haupt was born in Germany and claimed citizenship per his parents' naturalization. The facts surrounding that were never even examined. His citizenship was questionable at best. What the SCOTUS did was sidestep the issue entirely by saying that his subsequent actions rendered the question moot. In Padilla's case, no one has questioned his citizenship, as it's well documented. Hardly identical to Quirin.

"returns to America with plans to commit sabotage."

In Quirin, a conspirator confessed to the FBI and provided enough verifiable information to make multiple arrests. In Padilla, the government's only publicly known witnesses include an all-star cast of one who recanted, a drug addict who currently resides in a mental hospital, and, oh yes, Abu Zubaydah, whose lies and mind games with interrogators have led some of them to openly state that he's "toying with us" as per instructions in recovered Al Qaeda handbooks. In other words, the information available to civilian officials in Quirin (which was provided by a conspirator) at least provided some corroboration of the charges. In Padilla's case, we, the people of this country, have zero reliable information regarding the charges against one of our fellow citizens, and we're being denied the right to sit in judgment of him.

"Some people may have claimed "many times" that there is no declaration of war here, but that is false. Both in the original Patriot Act, and again a year later, Congress passed Resolutions which authorized the use of military force across national boundaries by President Bush."

If Congress wanted to declare war, they would have. An authorization of force is not a declaration of war. If it were, it'd be called a declaration of war. Yes, the authorization is very broad and sweeping in its language. What it does not do is suspend the Constitution or nullify the rights of Americans.

"The language used was nearly identical to what Congress passed in 1895 to allow President Jefferson to make war on the Barbary Pirates."

You're missing the subtle differences between a declaration of war and an authorization of force. Considering the relatively unknown strength, numbers, and location of pirates and terrorists, there can exist no reasonable marker for success. As such, the freedoms we often see scaled back in time of war would be scaled back indefinitely were such authorizations taken to be the same as declarations of war. That would put Americans in the unenviable position of having lost significant liberties on a quasi-permanent basis. If that's how we're going to play this game, then we may as well walk over to the National Archives and use the Constitution to wipe our asses.

"You grossly misread Quirin. The Court unanimously approved the detention, trial, and for six individuals the execution of illegal combatants."

The SCOTUS never authorized execution; that was never a question before it. What it did authorize was the detention and military trial in this case. Furthermore, if you read through the personal writings of several of the Justices following the decision (especially Chief Justice Stone), you'll see that there were many reservations about the decision. There was a lot of pressure to not provide any sort of dissenting opinion to any part of the ruling so as to make it a unanimous decision. Anything less was considered to be akin to providing support for the enemy. As I'm sure you'll agree, the SCOTUS acting as a 'rubber stamp' court does more good for those who hate America than any other action they can possibly take.

"Your thinking is that the old case, Milligan, is still good law after the new case, Quirin. That ain't the way that either laws or court decisions work. The new one governs and the old one is either overruled or limited. Milligan (during the Civil War) was explicitly limited by Quirin (during WW II)."

Quirin limited Milligan only insofar as the SCOTUS essentially said 'in this case, Milligan is not applicable'. There was no litmus test provided; ergo Milligan remains the standard except in cases where the SCOTUS says it does not. This was another byproduct of the fact that Quirin was nothing more than a rubber stamp rush job to aid the ongoing war effort. Another fantastic decision by the SCOTUS around the same time (which has been apologized for by several Presidents and Congress, and was later overruled by a lower court) was the one 'legalizing' the Japanese interment camps. The SCOTUS was a joke during WWII.

"The powers that President Bush used with respect to Padilla are exactly the same as President Roosevelt used in WW II, and almost all other Presidents who presided over a war, have used."

Really? Aside from Haupt, which American citizens have been arrested on American soil and held/confined by the military without the action eventually being ruled illegal under the US Constitution? The instances I can think of off the top of my head are Milligan's case (just because it's a SCOTUS case), and the Japanese interment case (which was later overruled, found to be unconstitutional, apologized for, etc etc).

"In fact, the powers predate the United States. As the Supreme Court clearly explained in Quirin, they are part of the Law of War. General Gates used this power to try and execute Nathan Hale during the American Revolution, and General Washington used the same powers to try and execute Major John Andre in the same War."

Prior to the American Revolution and the subsequent forming of our new 'more perfect union', 'treason' was defined as: "you pissed off the King, now you're going to die". A lot of things changed when we wrote the United State Constitution; most of them for the better.

"If you are concerned about a potential President Hillary Clinton using these powers, you better make sure that she doesn't get the job. That's because these powers come with the oath of office, unless the Constitution is amended to limit the powers of a President as Commander in Chief during a declared war. I don't hear you proposing such an amendment."

Such an Amendment would be redundant in this case (see above posting). If we're not going to respect the other Amendments, precisely what good does a new one do us?

"The trial court was wrong in its decision about Padilla for exactly the same reasons that you are wrong on this thread."

Funny how the SCOTUS punted the case the first time around when it was so cut and dried. Also funny that they refused to allow it to be fast-tracked. For a case that should be so easy, the SCOTUS appears to be doing everything in its power to avoid this case short of locking its doors and cutting its phone lines. When this case hits the SCOTUS again - and it will, of course - we'll see a whole lot more people coming out in support of trials for American citizens arrested on American soil. Someone like Lindh, who was caught in Afghanistan, I could give a damn about. You run to a foreign country and pick up a gun to shoot American troops, you're dead to me. But, when an American citizen is plucked off American streets and sent to a military prison with no trial, no lawyer, and no hope of defense, that is wrong, no matter how many actions of kings a thousand years ago can be cited as "precedent". This country was founded to stop crap like this from happening.

[DilJective]

I agree with you. When I visited the KGB prison in vilnius, Lithuania, and was given a tour by a previous tenant, I thought this would never happen in America. As a soldier for the past 21 years, I don't like seeing our Constitution ignored. Your point about being rounded up in the middle of the night is exactly what happens in "other" parts of the world- not here. Padilla is most likely a supporter of AQ, but he should be charged or let go. I don't think he'll be much of a threat when he is released, because the michael moore camp will surround him better than any of our CIA could. He'll be signing books and making too much money to be a problem. Shoot, he'll probably be sleeping with the dixie chicks too.