The government has reportedly stated that it has no plans whatsoever to bring Padilla before any tribunal. And, unless Bush changes last year's executive order, military tribunal cannot try Padilla as an American citizen. Without one, there is no truth to what White House spokesman Ari Fleischer stated on June 12 -- that Quirin gives the government authority such that Padilla's incarceration "can last for the duration of the war." So much for Quirin.
In Quinn and in many cites the Supreme Court maintained:
The Court holds:
(1) That the charges preferred against petitioners on which they are being tried by military commission appointed by the order of the President of July 2, 1942, allege an offense or offenses which the President is authorized to order tried before a military commission. (2) That the military commission was lawfully constituted. (3) That petitioners are held in lawful custody, for trial before the military commission, and have not shown cause for being discharged by writ of habeas corpus. The motions for leave to file petitions for writs of habeas corpus are denied. The orders of the District Court are affirmed. The mandates are directed to issue forthwith.
Again the tribunal as directed by the President does not maintain a status for trying Americans formally. Congress has not specifically authorized such tribunals as it did in WWII. Furthermore the President's order also purports to eliminate judicial review even for aliens “within” the United States, a position clearly at odds with statutory and constitutional law. The Congress's joint resolution authorizing the use of force is not a declaration of war. The Presidents directive does not allow for the military to try Americans. A position I am CLEARLY at odds with. I believe a change in this Executive Order allowing Americans to be tried by the Military will meet Constitutional muster. Otherwise we open Pandora’s box and establish very dangerous presidencies.
Furthermore AQ and Taliban personnel have NOT been given POW status so the citations you cited are moot. In a POW status there is no military tribunal. War Crimes are different subjects. POW status could complicate and compound the problem. Though it would be somewhat easier as far as US and International Law is concerned. This is a point of contention even now.
The reason for Gitmo? Is because another Supreme Court decision - the 1950 ruling in Johnson v. Eisentrager - holds that enemy aliens who have not entered the United States are not entitled to access to our courts. However even if not technically prisoners of war, al Qaeda and Taliban captives still qualify for "humane treatment" under the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, a resolution adopted by the United Nations General Assembly in 1988. Which we are signatory too.
As far as the right to petition the courts for a writ of Habeas Corpus even an illegal ham and cheese sandwich has this right. It the realm of things as present to allow this to transpire in which the Government knows it will not win is going to set a legal precedence for a person “Jose Padella” that could become a determent in bringing others to trial.
Simply put, CHANGE THE EXECUTIVE ORDER!
The Congress's joint resolution authorizing the use of force is an authorization to use military force- including capturing military detainees.
Your argument doesn't directly deny this of course- but it constanly implies otherwise.
If you do deny this please state your reason outright.
(Perhaps this is the argument that even though Washington, Adams, Jefferson and their congresses all used limited grants of the war powers to the executive to prosecute wars [Justice story 'Commentaries' 1169: "The power, to declare war may be exercised by congress, not only by authorizing general hostilities, in which case the general laws of war apply to our situation; or by partial hostilities, in which case the laws of war, so far as they actually apply to our situation, are to be observed."] , we are now to suppose that it is unconstitutional to do so?
I think it evident that, under the resolution, we must consider captures as within "the laws of war, so far as they actually apply to our situation".
The distinction between detention and trial is not a trivial one. One held solely as a military detainee (citizen, pow, unlawful or whatever) must be released at the end of the authorization of hostilities.
And, just as one has the right to a habeas corpus plea that one is not a combatant, one has the right to a h-c plea that the authority to hold him as one has expired.
When trial of an American is required, would it be better to use tribunals for Americans?
Well, first off they would only be Constitutional under the very grant of use of "military force" in the resolution which you seem to not recognize grants the power to hold military detainees- unless I have misunderstood you.
I 'll have to think on that- offhand I think it has merits; politically I think it would certainly "sound scary" to most people. Though the present way seems to too.
Let me consider that, the comparison seems a worthy one that offers insight at least.