Supreme Court Asked to Transfer Padilla (Please, Your Honor, Can we Conduct a War on Terrorism?)

Rueters ^ | Dec. 28, 2005 | unknown

[PerConPat]

Wed Dec 28, 5:35 PM ET WASHINGTON (Reuters) - The U.S. government on Wednesday asked the Supreme Court to transfer American "enemy combatant" Jose Padilla from U.S. military custody to federal authorities in Florida -- one week after an appeals court refused a similar request.

In a filing to the high court, Solicitor General Paul Clement asked for Padilla's release so he can stand trial on charges of being part of a support cell providing money and recruits for militants overseas.

Padilla was indicted last month in Florida for conspiracy to murder and aiding terrorists abroad but the charges make no reference to accusations made by U.S. officials after his arrest in May 2002 that he plotted with al Qaeda to set off a radioactive "dirty bomb" in the United States.

Last week, in a rebuke to the Bush administration, a U.S. appeals court in Richmond, Virginia, denied the Justice Department's request to approve his transfer from military to civilian custody...

[oceanview]

and what about the credibility of the courts, or are they always above reproach, above scrutiny?

yes, it does matter who makes up the court. these are the decisions of men, not gods. if we had more Thomas's, the administration wouldn't be forced to do this "end run" as you call it.

[oceanview]

if we allowed the courts to decide, the 1st amendment would be applied so broadly as to make even your first example impossible to enforce - unless the radio station was stupid enough to come on the air and say "go bomb target X", which of course they would not do.

the reality is that if in 1942, we had German agents inside the US essentially acting as a "Nazi underground" - blowing up cargo in NY harbor headed for Europe for example - and a radio station was setup in NYC to deliver "john has a long moustache" type messages to them - FDR would have shut it down. legal or illegal by your standards? how are you going to prove in court that this radio station isn't just reading poetry when it issued those words, to shut them down via criminal charges?

[garbanzo]

and what about the credibility of the courts, or are they always above reproach, above scrutiny?

No but they are still the Court and have a constitutional rule to play.

yes, it does matter who makes up the court. these are the decisions of men, not gods. if we had more Thomas's, the administration wouldn't be forced to do this "end run" as you call it.

Consider this analogy. Let's say police arrest someone for a crime, but don't think they'll be able to get a conviction - are they allowed to simply hold the suspect forever, citing the liberal-bleeding hearts in the judicial system. Even if you disagree with the results, you have to obey the law.

[garbanzo]

if we allowed the courts to decide, the 1st amendment would be applied so broadly as to make even your first example impossible to enforce - unless the radio station was stupid enough to come on the air and say "go bomb target X", which of course they would not do.

We do in fact allow the courts to decide as that is their constitutional job to decide all cases in law and equity. As for the second part, this is why we have investigators and prosecutors who build cases when they suspect people of committing crimes instead of simply shutting down communications when they suspect someone is doing something wrong.

[oceanview]

the guy robbing a 7-11 is not an agent of a foreign power. that's the difference. either you accept that there is a difference between the two, or you do not. the US criminal justice system is not designed to prosecute someone like Padilla, given all the rules of evidence and what must be revealed in open court. that's how this whole thing started.

[oceanview]

wars, and the handling of agents of foreign powers - are different. that's the whole argument here. interment of japanese americans was "unconstitutional" by civilian standards, but at the time was appropriate.

anyway, your are going to get your wish. the enemy combatant designation will be eliminated. the dirty bomb charges against Padilla will never see the light of day, hopefully he can be convicted of these lesser charges, otherwise he will walk.

and this is going to go on and on - the SCOTUS will also extend US rights to non-citizens held overseas (like they did at Gitmo), perhaps ordering the CIA produce the top AQ suspects they are holidng for their "due process" rights. we'll see what you have to say whem that happens - I guess you will be for it, you seem to feel the courts are "infallible".

[PerConPat]

Thanks for your excellent comments on this thread. Consensus on squaring concerns for national security with civil liberties will probably never be possible in a time of uncertainty. But one more successful strike on this nation by the Islamofascists will, IMHO, lead to Presidential and Congressional actions that we could hardly have dreamed of five years ago. In that case, if a growing threat is perceived to be coming from US citizens, I expect to see Constitution Article I, Section 9.2 (suspension of habeas corpus) invoked.

At present, the battle between the President and the Courts is completely natural; both sides have important powers to guard. And one is now increasingly hearing talk of impeachment coming from the usual suspects, Boxer, Waters, Conyers etc..

But I am pleased that the President is leading forcefully, and I do not resent the judicial wrangling. The system is at work; however, the 2006 elections will probably be the only thing, outside of new terrorist attacks, to provide clarification as to where we are headed.

Good night and Happy New Year.

[garbanzo]

that's the difference. either you accept that there is a difference between the two, or you do not. the US criminal justice system is not designed to prosecute someone like Padilla, given all the rules of evidence and what must be revealed in open court.

In large part I don't. During the Cold War we managed to try any number of spies using the civilian court system. We have tried and convicted many terrorists using the civilian court system. We did so and won the Cold War without establishing a dictatorship where the executive gathers evidence, evaluates it own its own, imposes it own sentence, and carries it out on its own. The stuff about the incapacities of civilian courts is nonsense and you have to be distrustful of any public official who makes that claim. It's the dog-ate-my-homework of jurisprudence.

[oceanview]

we tried those cold war spies post-facto their actual crimes. Padilla didn't commit a terrorist act, he was involved in a conspiracy to do so. the evidence against him doesn't involve the actual act itself, we got him before he could commit it.

just imagine the ACLU deposition of Khallid Sheik Mohammed at Padilla's trial. the first words out of his mouth would be "the CIA tortured me". what happens next, does the defense get to call those CIA officers to the stand to ask them about that?

[gakrak]

No more prisoners, they can't be tried if their already dead. Amen.

[Cboldt]

What would have happened to a German-American who sided with the Nazis during WWII, went to Germany to fight against our troops, entered into a plot to return to the US to kill a massive number of civilians in America, was captured while entering the country, and was carrying proof in his possession of his contacts with top Nazi leaders?

As defense council for Richard Quirin and seven other prisoners, Col. Kenneth C. Royall and Col. Cassius M. Dowell decided that to obey one order of their commander-in-Chief they had to defy another. Their clients, all German-born, had lived in America but returned before Pearl Harbor to study sabotage techniques at a school near Berlin.

In dense midnight fog on June 12, 1942, a German submarine edged toward Amagansett Beach, Long Island, to land Quirin and three comrades, in German uniform, in a rubber boat. On the beach they met an unarmed Coast Guardsman who pretended to believe their story about fishing, then went off to get help. Armed, his patrol hurried back--to hear U-boat diesels offshore, to dig up cases of TNT and bombs disguised as pen-and-pencil sets, to notify the police and the Federal Bureau of Investigation.

Five nights later, Herbert Haupt, Werner Thiel, Edward Kerling, and Hermann Neubauer landed safely at Ponte Vedra Beach, Florida, from another U-boat. None of the saboteurs was successful. On June 27, the FBI announced the arrest of all eight.

President Roosevelt appointed a military commission to try them as spies under the Articles of War; and Colonels Royall and Dowell to defend them. He issued a proclamation closing all civilian courts to such enemies, but the defense decided, in duty to their clients, to disobey this. Challenging the commission's legal authority, they sought writs of habeas corpus from the Court.

After two days of hearing and questioning lawyers for both sides, the Court said that Congress, in the Articles of War, had provided for commissions to try such cases; that the President had lawfully appointed one; that the writs would not issue.

But in finding for the President, the Supreme Court set another precedent--a proclamation from the White House could not close the doors of the Court. An executive order would not annul its power to review government actions under law.

The President announced on August 8 that all the saboteurs had been convicted, six executed. Two who had cooperated with the FBI went to prison at hard labor.

http://www.supremecourthistory.org/02_history/subs_history/02_c12.html

See also the case: Ex parte Quirin, 317 U.S. 1 (1942)

These were German citizens, but the Supreme Court noted ...

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, [317 U.S. 1, 38] 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. Cf. Gates v. Goodloe, 101 U.S. 612, 615 , 617 S., 618. 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.

[Cboldt]

The AUMF was fleshed out in an EO by President Bush. Here is a part of it ...

Sec. 2. Definition and Policy.

(a) The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:

(1) there is reason to believe that such individual, at the relevant times,

(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and

(2) it is in the interest of the United States that such individual be subject to this order. ...

Military Order of November 13, 2001

More summary background (some highly opinionated) at: ...

http://www.willamette.edu/~blong/LegalEssaysII/GuantanamoII.html
http://www.cato.org/dailys/07-01-02.html
http://www.cato.org/dailys/08-21-03.html
http://pacer.ca4.uscourts.gov/opinion.pdf/056396.P.pdf <- Luttig opinion that Padilla is PROPERLY held in military detention. THis is the case that the administration wants to avoid being taken up by SCOTUS.

[Cboldt]

Playing the Padilla case through the speculation forward machine, an astute thinker (not me) said, "Although Congress has not yet passed a 'Detention of Enemy Combatants Act,' there is no reason to think that, in the aftermath of a reversal of the Fourth Circuit in Padilla II, it wouldn't."

How supportive of the WOT is Congress, anyway?

[xzins]

ping to #151

[xzins]

Thanks, Cboldt. Excellent info.

[PerConPat]

"Although Congress has not yet passed a 'Detention of Enemy Combatants Act,' there is no reason to think that, in the aftermath of a reversal of the Fourth Circuit in Padilla II, it wouldn't."

This would appear to be the final destination in dealing with what could become the most difficult Constitutional crisis of my lifetime, and I've been voting in presidential elections since 1968. I've read Stephen Vladek's article on the topic; and, for me, it reinforces a feeling that I have tried to convey in my previous comments. Apparently, the President is being given leeway by the Congress in the Padilla affair- at least until sniffing the political air in light of the coming elections is complete.

How supportive of the WOT is Congress, anyway?

After Nov. 7, 2006 -and probably not before- we should have a fairly good feel for the answer to this question.

[Cboldt]

Breaking news on Fox - SCOTUS has agreed to let Padilla be transferred to civilian control. Details coming, but I imagine this amounts to granting a government motion that was submitted to SCOTUS after being denied in Circuit Court.