'Enemy Combatants' Cases Go Before Supreme Court

AP ^ | Apr 28 2004

[george wythe]

A former Chicago gang member and the son of an oil industry worker from Saudi Arabia -- both American citizens -- are the subjects of the Supreme Court's most far-reaching review to date of individual rights and liberties in a time of terrorism and war.

The court is hearing arguments Wednesday in back-to-back cases -- relating to Yaser Esam Hamdi and Jose Padilla -- in an effort to address the debate over national security versus civil liberties during the war on terrorism. Both men are suspects in terrorism cases.

A Bush administration lawyer argued Wednesday the president has broad authority to detain terrorism suspects as "unlawful enemy combatants" without trial -- to keep them from returning to "the field of battle."

But a lawyer for one of the Americans argued Bush has gone too far by jailing citizens indefinitely and denying them access to lawyers and courts.

One of the justices asked if the president was granted detention power when Congress approved the use of military force shortly after the attacks of Sept. 11, 2001. The administration's lawyer argued Congress signed off on the broader powers.

The lawyer replied that Congress didn't intend for "widespread, indefinite detentions." He said if that were the case, Americans could be locked up all over the country without their cases being heard.

The Bush administration won its arguments in lower courts in the Hamdi case but lost a federal appeals court fight in the Padilla case.

[GrandEagle]

That is only because Al Qaida is not a national organization
Not so. The administration deliberately did not want them to be called POW's, and took great pains NOT to allow them to be called POW's. Just because they are not from a particular nation does not prevent them from being "classified" as POW's. Just because they were not part of the Geneva Convention does not mean that we can't treat them as such.
Make no mistake here about my position, I really don't care about what happens to, or what treatment befalls, those who are captured in battle or even in a war zone. My disagreement with my President is that the Constitution does not grant him the authority to decide what he does with those who are arrested inside one of the 50 states. We have not even granted the Congress that authority. We have specifically, and clearly stated how they must be handled.
The Congress, The Supreme court, and the Executive department have for many years ignored the Constitutional limitations on their powers, but this is one that I am most unwilling to relinquish. ESPECIALLY considering that the previous AG had me listed (obviously not by name but by association) as an enemy of our Republic. Lets see if I can remember those points:
Strong 2nd amendment supporter
Regularly contributes to Church
Regularly attends Church
Owns Firearms
I can't remember all of them but she put out 10 or 12 characteristics that described an enemy of our nation. I met most all of them and by your presence here at FR I would imagine that you did to.

[mrsmith]

No.

The court's authority to determine whether these men have access to the courts has not been disputed by the administration.

That is the blessing of the Great Writ.

Though you're right that the administration has fought tooth and nail against their access to lawyers.
It seems a satisfactory way to do that can and should be arranged. But in an adversarial system like ours they must take that extreme position.

[Alberta's Child]

People in this country are so used to wars being fought "over there" that they can't quite get a handle conceptually on the notion that the war is being fought here now. The war involves people who would, if they could, detonate a nuclear bomb in New York City and vaporize 10 million people. That is a cold hard fact. That they don't have the capability (we hope) and are only out to kill dozens or hundreds of us at a time does not make them any less a soldier in an enemy force, and subject to military detention.

OK, great. If this is the "cold hard fact" that we are dealing with, then why does our government still permit nearly unfettered access to this country at our international airports, our maritime port facilities, across our southern border, etc.?

I, for one, find it utterly disgraceful for this government to detain U.S. citizens in this manner while at the same time failing to prosecute someone like D.C. sniper Lee Boyd Malvo under similar circumstances. Malvo was an illegal alien on a shooting rampage in this country . . . I can't think of a more appropriate definition of an "enemy combatant."

We have certain checks and balances in this country, and if a US President ever decided to become a dictator, and start arresting political opponents instead of Saudi terrorists, you might find out that there are strong forces in our country that would fight back, starting with the US military whose oaths are to the US Constitution.

Incidents like those that occurred at Ruby Ridge and Waco are compelling evidence that this is nothing more than a pipe-dream on your part.

[NJ_gent]

"The court's authority to determine whether these men have access to the courts has not been disputed by the administration."

I'm afraid that's not true. One such example I was able to locate quickly is a legal brief filed on behalf of AG Ashcroft by James B. Comey, U.S. Attorney for the Southern District. In it, he states that:

"A court of the United States has no jurisdiction . . . to enjoin the president in the performance of his official duties [as commander in chief]."

They also challenged Padilla's right to even have a lawyer. Then they challenged his (appointed) lawyer's right to represent him, saying she couldn't represent her client because she couldn't know what he wanted her to do. Why couldn't she know what he wants her to do? Oh, yes... because the military won't let him speak with her, nor anyone else. At every step of the way, the DOJ has challenged every right we usually take for granted as citizens.

"in an adversarial system like ours they must take that extreme position."

Shouldn't they always keep their arguments based firmly in the law? The prosecutor's job is not to convict people, but rather to do the best they can to see that justice is done. No justice is done by putting an innocent man in jail, as it deprives that man of his liberty while exposing society to a criminal at large that no one is chasing. In the same boat is Padilla. In what way does it serve society to place the basic foundations of civil liberties at risk? The right to habeas corpus, the right to attorney, the right to remain silent, the right to a trial by a jury of your peers, and the right to receive a fair and impartial trial should be in every prosecutor's mind. Those things protect members of our society from malicious or haphazard prosecution. The prosecutors at every stage of this game have done everything possible to deny every basic and fundamental right to this man. Is Jose Padilla so dangerous an individual that we are willing to shake the very foundations of our criminal justice system? Are we willing to let every right we've ever been told we have be pulled away in the interest of keeping this man away from the potential for aquittal? Is this citizen below the law, and our President, as Commander in Chief, above it? This reminds me a bit of Animal Farm - everyone is equal, it's just that some folks are more equal than others.

[NJ_gent]

"The war involves people who would, if they could, detonate a nuclear bomb in New York City and vaporize 10 million people. That is a cold hard fact. That they don't have the capability (we hope) and are only out to kill dozens or hundreds of us at a time does not make them any less a soldier in an enemy force, and subject to military detention."

Could not the same be said of Brittish soldiers in 1812? Certainly even the concept of a weapon that powerful did not exist, but if they had access to such weaponry, have you any doubts about what they'd do with it? In that war, a city was leveled - Washington DC. Still, we did not hand over the power to the Executive to arbitrarily declare citizens enemies of the state and hold them in prison indefinitely. We are no more threatened now than those who fought in 1812. The difference is, we're softer and less used to being threatened at all. Let's man up a bit and look to our Constitution as a guide - not a roadblock.

[Defiant]

Oh yes, that Constitution thing. I recall something about that when I was in law school.

Treason can be committed only by citizens. This is an issue that applies to all enemy combatants, citizens and non-citizens. That an occasional enemy combatant is a citizen might give rise to the rare instance of prosecutable treason, but I wouldn't want to have to hold a Saudi Arab born in Louisiana on a treason charge. He's not committing treason, he's fighting as a soldier in an army that is not affiliated with any country.

I stand by my original statement. It is not a crime to be a soldier in a foreign army, or to fight against the US. Nazis, North Vietnamese or North Koreans were committing no offense against the US when they shot at our soldiers. They were enemies fighting for their country against ours in a war. Likewise, we do not commit murder if we shoot them dead when we encounter them, and if we capture them instead, we are within our rights to hold them until the war is over. If they are caught inside our borders, it makes no difference.

[mrsmith]

"A court of the United States has no jurisdiction . . . to enjoin the president in the performance of his official duties [as commander in chief]."

That was not a denial of the court's authority to determine whether these men have access to the courts, but only a denial of their ability to make the president the respondent in this case: that the person who held Padilla ( the commandant of the prison) should be the respondent.

And the court agreed with him:
"It does not appear that the President has an ongoing involvement in Padilla’s custody, and therefore Padilla does not appear to be seeking any relief from the President. Therefore, on these facts, even assuming that this court can direct the President to act, of which more in a moment, the President is not a proper party."

Who lied to you and told you that this quote from Comey was about the authority of the court to consider the Habeas Corpus?

I assume you are very mad at them for lying to you.

[NJ_gent]

You're claiming, for the President, a completely unfettered power to pluck US citizens off the streets of this country and detain them for as long as the WOT lasts, which essencially means until a President says it's over, and to hold them in solitary confinement with no opportunity to challenge the basis for their detention whatsoever; correct?

Why did we fight two wars against England if we still live under crown rule? Because we wanted the crown on an American's head?

[freeeee]

This is an issue that applies to all enemy combatants, citizens and non-citizens

From the article:

"A former Chicago gang member and the son of an oil industry worker from Saudi Arabia -- both American citizens"

The case before the court is whether or not the president can detain American citizens soley on his word and his word alone without any check or balance by another branch of government, even if they are captured inside the US as Padilla was, as enemy combatants without any constitutional protection.

The outcome of the case affects the rights of every American including you and I. What happens to non-citizen combatants is entirely another matter.

but I wouldn't want to have to hold a Saudi Arab born in Louisiana on a treason charge. He's not committing treason

Born in Lousianna = US citizen with constitutional rights
US citizen waging war against US = treason, by constitutional definition
treason = trial and death if found guilty

It's really not that complicated.

[NJ_gent]

"That was not a denial of the court's authority to determine whether these men have access to the courts, but only a denial of their ability to make the president the respondent in this case: that the person who held Padilla ( the commandant of the prison) should be the respondent."

I could have possibly taken that out of context, and I'd have to review the whole filing to say for sure. That's what I get for looking for something in a hurry in between doing other things at work. :)

That being said, there are a few disturbing filings which point very clearly to the DOJ's position that the courts have no right to even hear cases involving enemy combatants. This is from Hamdi v Rumsfeld:

"Third, courts have an extremely narrow role in reviewing the adequacy of the government’s return in a habeas action, such as this, challenging the quintessentially military judgment to detain an individual as an enemy combatant in a time of war. A court’s inquiry should come to an end once the military has shown in the return that it has determined that the detainee is an enemy combatant. Although counsel may argue that that status is not a legally sufficient reason to justify the individual’s detention (a flawed argument in light of the military’s clear authority to detain such enemy combatants), the Court may not second-guess the military’s enemy-combatant determination. At the very most, given the separation of constitutional powers in this unique area, a court could only require the military to point to some evidence supporting its determination. Either way, no evidentiary hearing is required to dispose of a habeas petition in this military context."[Emphasis mine]

In Padilla's case, the DOJ argued:

"To the extent that the courts conclude that judicial review may be had of an executive determination during a war that an individual is an enemy combatant, such review is limited to confirming based on some evidence the existence of a factual basis supporting the determination."[Emphasis mine]

In other words, unless the President's basis for the determination of an individual's status as an enemy combatant is that the "person" is actually a space alien, the courts are powerless to hear the Habeas Corpus case. There's isn't a citizen in this nation whose determination as an enemy combatant couldn't be supported by "some evidence". Considering the fact that factual findings are not to be called into question, according to the DOJ, they could just make stuff up on the fly. That worked pretty well for the FBI when dealing with the FISA court, and it's not like the enemy combatant is allowed to challenge the validity of any evidence or testimony presented against him, right?

And people wonder why I don't like big government...

[mrsmith]

And the courts agreed with the administration that "some evidence" should be the standard.

There's a lot of misinformation thrown around about these cases. And naturally some strong opinions.

Congressional authorization and strong Habeas Corpus are the keys to it IMO.

I don't go for the legalistic view of how combatants should be treated. Just keep it constitutional.
I see the Moussaoui case and think that it shows how difficult it is to treat combatants in the judicial system. But also how dangerous such an attempt can be- a compromise between military and judicial needs may lead to erosion of legal precedents- which could affect the legal system generally.

[Defiant]

You're claiming, for the President, a completely unfettered power to pluck US citizens off the streets of this country and detain them for as long as the WOT lasts

No, it's not unfettered. If a President is plucking innocent Americans off the street because he doesn't like their views, he will in essence be establishing a dictatorship. And any President that wants to establish a dictatorship has lots of ways to try to do that in addition to using a claim that someone is an enemy combatant. He can use the IRS to shut down a business, he can use the DOJ to trump up charges, he can have them thrown in jail, and he can have judges hand-select to do the trial who will go along. He can make sure that defense lawyers play ball, and he can threaten the families of that person. Those are just a small example of what a President abusing his power and trying to usurp the Constitution might do.

You are no better than Bill Clinton, who tried to fight the terrorists with Janet Reno and Robt. Mueller. It's a war. Get that through your head. Remember, when we find a terrorist in Afghanistan, we get to shoot them or to hold them. When we find a terrorist in America, it's the same thing. The war has come to us, whether we want to recognize that or not. I'll be glad when the Arabs are subdued, the US has won, and the world is again at peace, as we thought it would be when the Cold War was won. You won't be happy until New York is vaporized and then you say, "Ooops, I guess we should have been more vigilant. Sorry, guys." So, the President's rights are not unfettered. If he is abusing his power as CIC, and establishing a dictatorship, it will be the same as any other effort by a president to so so (like Chavez in Venezuela) and we will have to do what we have to do to prevent that from happening. Take to the streets or the hills, enlist help from the military to restore the constitution, whatever. Thank God we have never even come close to that situation, although Clinton's use of the DOJ and IRS was abusive.

There may be mistakes made by the military. We have bombed and killed civilians in the course of war in the past, and we have even killed our own in friendly fire incidents. It is not the judiciary's role to award negligence damages against the defense department, and it is not their role or right to get involved in the decision of who to hold as an enemy combatant.

[Defiant]

Yes they are both American citizens. One was found in Chicago where he landed after coming back from meeting with his Al Qaida buddies. One was caught in Afghanistan fighting with the Taliban. These two, and the thousands who are not US citizens, are enemy combatants. That these two are citizens doesn't obscure the issue, which is that a soldier fighting for a foreign force against the US may be killed or captured, and if captured, may be held for the duration of the war, and his status is not reviewable by the US court system. Period.

Every soldier who fought for the south in the Civil War was a US citizen. Under your thinking, all the southern POWs we had should have gotten a trial. Luckily, thinking was much clearer on some issues in those days.

[Lurking Libertarian]

They'll rule against holding them

My prediction: Hamdi (U.S.-born, but seized on a battlefield in Afghanistan) loses; Padilla (seized at an airport in Chicago, and not actively committing a terrorist act at that time) wins at least the right to a judicial hearing.

[Defiant]

We have a law that allows a person born on US soil, as this Saudi was when his father was working in the oil industry in Louisiana, to be a US citizen. That he was born a US citizen does not necessarily make him a traitor. He left the US when he was a baby, grew up in his homeland, and joined a foreign military force. He renounced whatever rights he had in US citizenship, and I for one would not call him a traitor. An enemy combatant and a terrorist, yes, but not a traitor. Would that we had more Americans as loyal to this country as he is to his.

[NJ_gent]

"And the courts agreed with the administration that "some evidence" should be the standard."

The appeals court did not. In fact, they ordered Padilla be released, though the order never went into effect, and was stayed pending the Supreme Court appeal we had today.

"Congressional authorization and strong Habeas Corpus are the keys to it IMO."

I disagree, mainly because I don't think Congress has the power to override the Constitution. The 4th, 5th, and 6th Amendments are quite clear in their requirements for the detention of Americans.

"I don't go for the legalistic view of how combatants should be treated. Just keep it constitutional."

You know, I started writing out this whole big thing about enemy combatants and military tribunals for citizens shown to meet criteria for the enemy combatant lable. Then I thought back to what you said here, and I went back to the heart of it all: the Constitution. Reading through it, I can't reconcile putting an American through a military tribunal. Frankly, I think the court erred in Ex Parte Quirin. I agree with you completely that the Geneva conventions, precedents, lables, etc are all merely on the sidelines. The real game should always be played by the Constitution's rulebook. This is what I see in that rulebook:

"The right of the people to be secure in their persons... against unreasonable... seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the... the persons... to be seized."

The President may, by affirmation, under penalty of purjury, swear out a warrant for the arrest of an American believed to be planning or involved in the planning of an attack inside the US who currently is inside the borders of the US.

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, [unless he's in the military]... ; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law..." & "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,... and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Grand Jury must indict the accused person, or they must be freed. The accused cannot be held indefinitely without a trial, as it would deprive them of their liberty, and effectively, their life. The trial can't be a secret trial (though we have rules governing how classified information can be presented properly in court, and I'm fine with that). The trial can't use court schedules to drag it out unnecessarily, so as to keep the person in custody longer. The accused must be allowed to defend himself.

There's nothing in the Padilla case that looks anything like this. It's wrong and unconstitutional in every sense of the words. The Constitution sets a very high bar, perhaps too high. If freedom were easy, everyone would do it. If liberty were a safe thing to have, so many lives would not have been lost because of it. There's a reason our President takes an oath to defend the Constitution, as opposed to the people of the United States - some of the most brutal and horrifying dictators have oppressed their people under the guise, and with the notion that they do so for their own protection, or their own good. So long as our leaders do as the Constitution tells them to, we're as protected as we can possibly be. A nation preserved at the cost of all the cardinal virtues of liberty is not worth the cost of preservation. So said the Supreme Court in 1866. From the way the oral arguments went today, with even Scalia trying to figure out where this power to indefinitely detain citizens came from, it looks like the court is once again going to confirm the long-held principle of, "Live Free or Die".

"I see the Moussaoui case and think that it shows how difficult it is to treat combatants in the judicial system. But also how dangerous such an attempt can be- a compromise between military and judicial needs may lead to erosion of legal precedents- which could affect the legal system generally."

I agree here, and that's why I think Moussaoui belongs in a military courtroom, just so long as his status as an enemy combatant is confirmed by a civilian court. The civilian prosecutors have been bumbling fools throughout this charade, and things have really gotten out of hand. I don't want this slimeball dirtying up the precedent pool in the civilian courts either. That being said, now that's he's in the civilian court, I don't think it's right to pull him out simply because things aren't going our way. The prosecutors in the OJ case screwed up royally as well, but we didn't send OJ to a tribunal because of it.

[NJ_gent]

"My prediction: Hamdi (U.S.-born, but seized on a battlefield in Afghanistan) loses; Padilla (seized at an airport in Chicago, and not actively committing a terrorist act at that time) wins at least the right to a judicial hearing."

You need to take a look at the oral arguments from today. Even Scalia was scratching his head trying to figure out where the heck the administration is finding this power to indefinitely detain citizens. This will end up being a split decision, I think, but only in that it's somewhere between Padilla's appellate court win of "release him in 30 days" and Hamdi's outright loses. I believe you're right that they'll give more deference with the Hamdi case, but I think they're going to use these two cases to put a firm roadmap in place. Most justices, especially Sandy seemed most disturbed by the fact that these guys are in legal limbo, and could remain so for the next hundred years. I think what we'll end up with is a process by which the military has leeway to conduct operations and citizens have the ability to contest the enemy combatant lable.

[NJ_gent]

"One was found in Chicago where he landed after coming back from meeting with his Al Qaida buddies."

He was? Why wasn't everyone else on that flight arrested as well? Certainly they must have all been coming back from meeting their Al Qaeda buddies, as you put it. Are you sure he wasn't bird watching? I'm not. Why? Because no one has presented evidence to the contrary in a court competent to review it.

[edsheppa]

merely reaffirming the right to due process which exists for American citizens.

Actually the right is for persons according to the document. IOW if your arguments carry weight then all the prisoners held by our government must have the same access to the same process.

It's the nature of the due process that is at stake. The fact that this argument is being made before the SC means that they have access to at least some process.

[mrsmith]

Hmmm, I'm not going to look it up this time, but I'm pretty sure the two Democrat NY appeals court judges found a conflict with another statute. The standard would be beside the point since they found Padilla couldn't be held.

War is the most terrible of all man's endeavors. It is war that threatens liberty here- and obviously it does it in two ways and we must guard against both.
The rules of war are not as favorable as the due process given those charged with crimes, but they are old and wise- and constitutional (what crime does a soldier commit?).

We have political review of the congress and president- since this is only under the war power- and with the Great Writ we assure publicity of the detentions and judicial examination.

"...He was not executed according to those beautiful legal ceremonies which are pointed out by the laws in criminal cases. The enormity of his crimes did not entitle him to it. I am truly a friend to legal forms and methods; but, sir, the occasion warranted the measure.
A pirate, an outlaw, or a common enemy to all mankind, may be put to death at any time. It is justified by the laws of nature and nations. "
Patrick Henry (no enemy to liberty) on renegades.