News National Defense Authorization Act: Military can detain US citizens?

[russ_watters]

Is it possible for a US citizen on US soil to be an "enemy combatant?"

[Beyond the particulars of this law...] Of course it is! We live in a luxurious and highly unusual position of not having had to worry about a conventional war having happened on American soil for 150 years, save for a few invididual acts such as Pearl Harbor. But 9/11 is an individual act of war and if, for example, an American Citizen had participated in it, they would be engaing in warfare on American soil, against the US.

And how does one prove that the citizen has engaged in such activity if you don't give them the benefit of the legal protections of this country?

It depends on the specifics of the situation. In some cases, it can happen via investigation and judgement by military intelligence. In others, it happens the same as it does for a non-american civilian in a war zone overseas: a private with an M-16 makes a split-second judgement before pulling the trigger. I think that's the point of confusion here, where people think that since the government had the luxury of time to investigate Padilla that that makes it the normal/natural/right way to go about it. But that is anything but normal/natural. War has never been a police/legal system matter and this highly unusual case shouldn't confuse people into thinking it usually is.

Hypothetically, if Flight 93 had been successfully taken back and crash-landed in a farm in rual Pennsylvania and two of the surviving terrorists, an American and a Saudi, escaped into the woods of PA: Who should go after them? The local police, FBI, INS and US Marshalls? No: I want the 101st Airborne, the Army Rangers and the Navy SEALs.

When they are found, holed up in a farmhouse, does the private who breaks down the door and finds them bother wondering the nationality of the two people in front of him? Of course not. He thinks: 'Are these the terrorists?' and 'Is he reaching for that shotgun on the table?' and if the answer to those questions is "yes", then he pulls the trigger and kills them.
[/Clancy]

 

[russ_watters]

Just so I'm on the same page...

Are people just inventing things they think we should be afraid of and telling people to be afraid of them? Or is the topic of discussion something real?

That was my point/question as well. The Padilla case is not an example of something real, that has applicability to the general public. It has to be extended to a hypothetical beyond what it is in order to fear it. For the law - that's just a matter of poor reading comprehension combined with irrational knee-jerk reaction.

 

[PatrickPowers]

I read a book called The Railroad Man by a British POW who was forced to work on the bridge over the river Kwai. It was no picnic: slave labor, disease, starvation, torture. Most of the prisoners died. He wrote that the worst thing he saw the entire time was a man being waterboarded.

Is no one else disturbed that the USA has adopted the practices of Imperial Japan, which was equal in its evil to Nazi Germany.

 

[TheStatutoryApe]

There are several definitions of the word "justice" and I referenced two of them in that post: http://dictionary.reference.com/browse/justice

#5 is "the administering of deserved punishment or reward." This is physical: He is physically residing in a jail cell right now. He was punished appropriately for what he did. That's justice under that definition.

The other definition I referenced is #2: "lawfullness". Padilla was not (arguably) treated in accordance with the law. This is largely an administrative reality - it is argued and decided with words. More to the point, the justice system - the administrative procedures of our legal system - exist to serve definition #5. They exist to mete out physical justice. So for that reason, I consider the reality of that physical justice more important.

As I noted earlier guilty people have rights too. The law is in place to protect those rights. If the government fails to follow the law it is not merely an administrative fault but an abuse of the rights of a citizen. There are some laws which have been considered by courts to be more of an administrative issue such as whether or not the proper procedure was followed to obtain a warrant. But locking someone up and holding them without charge is hardly so niggling an issue as administrative error.

 

[russ_watters]

No, you misunderstand both what happened and what the Constitution says about what is allowed: Locking Padilla up and holding him without tial was not what the error was (if it even existed at all). The error, according to the two courts that ruled on it, was that the Presient gave the order and he doesn't have that power: Congress has that power. The third court ruled that the war authorization act that Congress passed granted Bush the use of that power. The difference between the two rulings is most certainly an administrative one.

I'm pretty sure this was said earlier: the Constitution says a citizen can be locked up without trial in a time of war.

 

[turbo]

I'm pretty sure this was said earlier: the Constitution says a citizen can be locked up without trial in a time of war.

I'm a bit wary of the definition of "time of war". We are currently in a period of a perpetual "war on terror" and a "war on drugs", for instance. At some point, the ability to declare these "wars" ought to be curtailed, lest we end up living under an even more totalitarian regime. Appointing "czars" against terrorism, drug-use, etc should not be allowed. How do we manage to end up with endless levels of bureaucracy in what is purported to be a free country?

What would happen if the US government was forced to trim back and re-organize such that it was representative of the size and the relative (lack of) complexity during the Eisenhower administration? There is a lot of talk about "transparency" from DC and precious little activity to support the notion that any politicians actually want it.

 

[mheslep]

Is it possible for a US citizen on US soil to be an "enemy combatant?"

• Whiskey Rebellion 1789
• Confederates in the Civil War
• Ernest Peter Burger, Born in Germany, lived in US and became US citizen. Nazi saboteur landed in US via sub 1942. Captured and sentenced to life, later deported.

 

[russ_watters]

I'm a bit wary of the definition of "time of war". We are currently in a period of a perpetual "war on terror" and a "war on drugs", for instance.

Agreed, it does get sticky - with the caveat that the war on terror is an ACTUAL war, while the war on drugs is a figure of speech.

 

[russ_watters]

Several people here are just plain not thinking this issue through. You're focused on innocent civilians and fears of a gestapo that has never existed in the US and completely ignoring the other end of the spectrum that does/has:

As I said above, the US today and for the past 150 years has had the unique luxury of having very little war fought on US soil, but the US Constitution was written at a time when it was a near constant reality. As such, language was included to deal with the issue of citizens taking up arms against the government with the most stark example of exactly why that passage was written being the Civil War: Confederate soldiers didn't get arrested and get hearing to decide if they were enemy combatants! They just got shot on the battlefield. That didn't violate their right to a trial because it was written into the Constitution that it wasn't required. And rightly so, right? It would have been silly to try to arrest the Confederate Army!

So now we have established the clear need for the provision in the Constitution to hold American citizens, without trial, as enemy combatants. On the other end, we don't want ordinary citizens picked-up by a rogue leader's gestapo or even a in individual rogue general or police commander. Where these two sides meet in the middle is with a guy like Padilla.

Padilla was a terrorist and a member of a foreign paramilitary organization that was/is waging war on the US. We know it now and the government had a pretty good idea of it when they picked him up. Who he was absolutely fits the logical justification for holding him as an enemy combatant as per the Constitution. Where it gets sticky is that what he did and what they believe he intended to do is unconventional warfare, not traditional warfare.

When Padilla was undergoing bombmaking training in an Al Qaeda safehouse in Pakistan, he risked dying in the usual way foreign soldiers die away from the battlefield in war: via a bomb dropped on him. No arrest, no writ of habeas corpus, just a bomb.

But terrorism is a form of unconventional warfare whereby the terrorists attempt to hide amongst civilians instead of fighting openly on the battlefield. That inserts them into the domain - if not the jurisdiction - of the criminal justice system and creates legal risks for the civilians around them. The situation is further confounded by the existence of comlpetely domestic terrorists (Tim McVeigh) who have the same goals and methods, but never declare their intent to be enemy combatants ahead of their actions, the way Padilla did. About the only way for the government to even become aware of someone like McVeigh is for some of his preparations to ping on an FBI threat check (ie, a non-farmer buying too much fertilizer and blasting caps). McVeigh never clearly stepped across the line to become an "official" enemy combatant before blowing up his bomb and never had foreign ties, so there was no reason for military or CIA involvement prior to his action. After he blew up his bomb, the issue of confinement without trial or whether to use the military or civilian justice systems was basically moot.

So the spectrum can get a little fuzzy in the middle, but Padilla really is not very close to that line. And with the exception of Japanese Americans in WWII, there is little recent precedent on the "innocent civilian side" on which to base a fear of such persecution.

---------------------------------

As for this nonsense about the US's moral stature declining: the US interred 110,000 Japanese Americans during WWII, most of them citizens and virtually all of them innocent. Beyond that, the action was upheld by the courts at the time. So not only did the government do the wrong thing, the wrong moral justification was actually considered allowable by the courts! That during the war on terror we imprisoned, without trial, one citizen who was not innocent and a more dispassionate legal discourse ensued to challenge it is a spectacular improvement. The US is not perfect, but as the saying goes, we've been declining for so long, its amazing that things have managed to get so good!

 

[PatrickPowers]

As for this nonsense about the US's moral stature declining: the US interred 110,000 Japanese Americans during WWII, most of them citizens and virtually all of them innocent. Beyond that, the action was upheld by the courts at the time. So not only did the government do the wrong thing, the wrong moral justification was actually considered allowable by the courts! That during the war on terror we imprisoned, without trial, one citizen who was not innocent and a more dispassionate legal discourse ensued to challenge it is a spectacular improvement. The US is not perfect, but as the saying goes, we've been declining for so long, its amazing that things have managed to get so good!

They were not tortured, and were released after three years. You say that torturing and holding people indefinitely is a higher moral plane.

 

[ThomasT]

Wasn't everything the Nazis did to the Jews in the 30's and 40's legal, wrt German law?

Look, the US government is going to detain and torture whoever is assessed as being a threat to the US. What we don't want, imo, is for this stuff to be codified into law as it was in Nazi Germany.

 

[russ_watters]

They were not tortured, and were released after three years. You say that torturing and holding people indefinitely is a higher moral plane.

Please drop this bit about torture you are on. This thread is not about torture, it is about imprisonment. It is a separate issue entirely and if you want to discuss it, start your own thread... but be accurate with your characterizations if you do. You are entitled to your own opinions, but not your own facts.

What I am saying is that imprisoning no innocent civilians and one actual terrorist is morally superior to imprisoning a hundred thousand innocent civilians and justifying it with racist lies. By a lot.

I'm not interested in apples to oranges comparisons of 100,000 imprisonments of innocent civilians vs perhaps 100 tortures of probably all guilty foreign terrorists and one guilty American terrorist, but if you want to discuss torture itself, I'm game. I don't quite agree with Thomas, but it is an interesting idea.

 

[ThomasT]

What was it we were talking about?

My position is that I don't want laws sanctioning detention without due process ... wrt anybody, US citizen or not. Because today it might just be applied to suspected terrorists who aren't US citizens, and then down the road it might morph into the sanctioning of detention without due process of anybody who speaks out against the government -- but realizing that the government does, and will continue to, detain without due process anybody who it suspects is a serious threat, and that this is carried out in an extra-legal fashion. I just don't want this practice to be made legal, because then the US would be heading down a path similar to Nazi Germany's legal persecution of Jews.

 

[TheStatutoryApe]

No, you misunderstand both what happened and what the Constitution says about what is allowed: Locking Padilla up and holding him without tial was not what the error was (if it even existed at all). The error, according to the two courts that ruled on it, was that the Presient gave the order and he doesn't have that power: Congress has that power. The third court ruled that the war authorization act that Congress passed granted Bush the use of that power. The difference between the two rulings is most certainly an administrative one.

I'm pretty sure this was said earlier: the Constitution says a citizen can be locked up without trial in a time of war.

You seem to be the one who is not understanding. The constitution disallows Congress from suspending habeas corpus except in time of invasion or rebellion. Padilla was being denied habeas corpus the effect of which was that he was able to be held indefinitely and without trial. It is the purpose of habeas corpus to prevent just such a thing. Law and precedent say that the President is allowed, in his role as Commander-in-Chief, to militarily detain persons without habeas corpus during time of war with authorization from Congress.

One of multiple arguments put forth by the defense, and decided upon by the courts, was whether or not the authorization given by Congress to the President covered Padilla. If not then the President had effectively expanded his authorization which he may not do. It was not a matter of whether the President holds the power to detain or if it is Congress, but whether or not the authorization granted to the President by Congress was broad enough to include Padilla and on top of that whether or not such broad authorization was legal. It was also argued whether or not such authorization may legally be extend to citizens within the US and if so in what circumstances. The Second and Fourth Circuit Courts answered these questions in their decisions as well. The last few paragraphs of the Fourth Circuit decision also answered the question of whether or not indefinite detention without charge or trial was authorized.

http://news.findlaw.com/wp/docs/padilla/padrums121803opn.pdf

http://pacer.ca4.uscourts.gov/opinion.pdf/056396.P.pdf

 

[russ_watters]

You're not being very clear: you state what the law/Constitution requires, but don't state what you think the violations are - perhaps by stating the criteria you mean to imply all criteria were violated? Let me make it clear - there are two separate issues:

1. Was Padilla eligible for long-term detention based on the Constitutional criteria for suspending the writ of habeas corpus?
2. Was the President authorized to make that call based on Congress's war authorization?

I'm guessing that your post is meant to imply you think the answer to both questions is "no".

In the courts, the answer to #2 was what went back and forth, with the last decision being a "no" answer. Your first link says in the first sentence on page 4 that because the answer to #2 was "no", they declined to addresses question #1. Despite being more important and broader, it is putting the cart before the horse: you have to have the right signature on the paperwork before you decide if the content of the paperwork is correct.

Your second link answers "yes" to #2 and therefore addresses #1: It states explicitly that Padilla "clearly and unmistakably" qualifies for detention under the Constitutional criteria. How could it be otherwise? Fighting a war against the US government on American soil is absolutely an invasion or rebellion (with the difference between the two simply being the motivation).

Again, it is my opinion that by the criteria of the Constitution, Padilla's detention was legal. This is physical justice (as explained in my discussions of the multiple definitions of "justice"). The answer to #2 is debateable and I don't have a firm yea or nea opinion on it, but only comment that when the (potential) violation is almost literally a matter of who'se signature is on the piece of paper authorizing the detention, it is an injustice of paperwork and not an injustice of action. And I care much more about action than paperwork.

I may need to make another thread for this point, but a recent counter-example in Philly has me pretty annoyed: 30 years ago we had a guy essentially execute a cop and he'd been on death row until a few days ago. An appeals court ordered a new sentencing hearing due to the potential that the jury had been confused by their orders on sentencing. You see, mitigating circumstances don't require a unanamous vote, but aggravating circumstances do and the way their orders were worded, it was potentially confusing (though no evidence of confusion existed and interviews with the foreman recently show there was no confusion). So for a weak wording of procedure that was moot anyway, justice is not going to be carried out: after 30 years of appeals, the DA is no longer going to pursuse it. More often it seems, it is the paperwork justice that prevents physical justice from being carried out. And that annoys me.

 

[TheStatutoryApe]

You're not being very clear: you state what the law/Constitution requires, but don't state what you think the violations are - perhaps by stating the criteria you mean to imply all criteria were violated? Let me make it clear - there are two separate issues:

1. Was Padilla eligible for long-term detention based on the Constitutional criteria for suspending the writ of habeas corpus?
2. Was the President authorized to make that call based on Congress's war authorization?

I'm guessing that your post is meant to imply you think the answer to both questions is "no".

In the courts, the answer to #2 was what went back and forth, with the last decision being a "no" answer. Your first link says in the first sentence on page 4 that because the answer to #2 was "no", they declined to addresses question #1. Despite being more important and broader, it is putting the cart before the horse: you have to have the right signature on the paperwork before you decide if the content of the paperwork is correct.

Your second link answers "yes" to #2 and therefore addresses #1: It states explicitly that Padilla "clearly and unmistakably" qualifies for detention under the Constitutional criteria. How could it be otherwise? Fighting a war against the US government on American soil is absolutely an invasion or rebellion (with the difference between the two simply being the motivation).

Again, it is my opinion that by the criteria of the Constitution, Padilla's detention was legal. This is physical justice (as explained in my discussions of the multiple definitions of "justice"). The answer to #2 is debateable and I don't have a firm yea or nea opinion on it, but only comment that when the (potential) violation is almost literally a matter of who'se signature is on the piece of paper authorizing the detention, it is an injustice of paperwork and not an injustice of action. And I care much more about action than paperwork.

I may need to make another thread for this point, but a recent counter-example in Philly has me pretty annoyed: 30 years ago we had a guy essentially execute a cop and he'd been on death row until a few days ago. An appeals court ordered a new sentencing hearing due to the potential that the jury had been confused by their orders on sentencing. You see, mitigating circumstances don't require a unanamous vote, but aggravating circumstances do and the way their orders were worded, it was potentially confusing (though no evidence of confusion existed and interviews with the foreman recently show there was no confusion). So for a weak wording of procedure that was moot anyway, justice is not going to be carried out: after 30 years of appeals, the DA is no longer going to pursuse it. More often it seems, it is the paperwork justice that prevents physical justice from being carried out. And that annoys me.

You are still making the same mistake. It was not a matter of whose signature was on the paper. One way or another it will be the President as the President is the Commander-in-Chief. Congress has the constitutional authority to suspend habeas corpus under certain circumstances; the President, in the role of Commander-in-Chief, then has the authority to detain militarily based on that authorization. There was never any question as to whether it should have been the President or Congress who "signed" to have Padilla detained. The question was whether or not the authorization existed and, if so, whether or not that authorization was itself constitutional. If the answer to either of those questions was "no" then Padilla's eligibility for detention was completely irrelevant as one can not be eligible for illegal detention. So the answer to question #1 was necessarily contingent upon the answer to #2, it was not just a matter of dotting "i"s and crossing "t"s before getting to the meat of the matter.

The reasonings in the decisions necessarily, though perhaps somewhat indirectly, go to the constitutionality of holding Padilla indefinitely under military detention regardless of any authorization. The wording in the constitution ("The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." -- Article I, Section 9) would seem to be a recognition of the difficulty in maintaining such civil niceties in cases where the civil system is not capable of functioning. Typically the terms "invasion" and "rebellion" do not conjure the idea of a couple people attempting to make and plant bombs but something more along the lines of large scale societal break down. The earliest precedent noted in this case is Ex Parte Milligan from the Civil War Era. The decision in Milligan was that the military detention and trial of persons arrested in areas where the civil system was functional was not constitutional and this was despite both the war and the congressional authorization for suspension of habeas corpus...

"If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. 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."

In Ex Parte Quirin the prisoners had already been tried and convicted before a military commission. The court only made the decision that the military commission was lawful and constitutional and that the prisoners, who were all admitted agents of an enemy nation with only one having a tenuous claim of citizenship that was rejected by the court, had received a proper trial under the appropriate authority. They basically affirmed a conviction and denied habeas corpus as being moot. There were no decisions regarding indefinite detention. Indefinite detention without charge or trial is what habeas corpus is primarily concerned with. Note that the prisoners in Quirin were arrested charged and convicted within approximately one month to two months.

Hamdi v. Rumsfeld was heavily relied upon in the Fourth Circuit decision of Padilla's case. The Hamdi decision specifically says that US citizens may not be held indefinitely without habeas corpus. A US citizen must, at the least, be charged and allowed to challenge their status as enemy combatants. Hamdi was also captured and detained by the military in Afghanistan while in a combat zone. Considering the Hamdi case was only decided one year before the Padilla case made it to the Fourth Circuit it would seem that the issue of indefinite detention was more or less solved by Hamdi before hand. Remember that the government released Padilla to be tried in a Civil Court before the SCOTUS could get its hands on the case? That is probably because Hamdi had only three dissenting opinions and two of those three dissented because they believed that the President can only detain US citizens with a general suspension of habeas corpus due to invasion or rebellion and Congress's AUMF was unconstitutional as applied to citizens. Only one Justice actually supported the government's position in Hamdi.

 

[Derrezed]

This defies everything America is as a nation. Even if the law isn't misused, which it CAN be misused, it still at its core against what this great country is. ALL American citizens have right to a trial, if there is enough evidence to deem them a terrorist and detain them indefinitely there should be enough for a conviction. So instead of paying for room and board for terrorists we can convict them of high treason and hang them. I mean if we change what we are as a nation out of FEAR isn't the war on TERROR going in the wrong direction. We shouldn't be cowering behind our government to save us from every evil do-er out to get us. What my concern is our government is more corrupt than ever and if there is something we are missing by giving them our power we are setting ourselves up for what every nut job and crackpot are saying is happening. My other concern is how little mainstream media has covered this and SOPA (just saying). If we are willing to give up our rights as citizens out of FEAR, then we deserve to lose them. Which is sad cause Americans used to noble and proud, not scared and subservient.

 

[feathermoon]

I feel like we've been undertaking exactly what this law is meant to legalize for years. Either its legal and we can, or illegal and we can't usually. But until now, what's been there to stop a U.S. citizen or enemy combatant from being detained? The lack of a law spelling it out as illegal?

Frankly, I'm more comfortable with this situation spelled out completely in a law, then to rely on the judicial precedent based on a law that doesn't exist.

 

[widereader]

America---the home of democracy is slowly being infiltrated by senators who are 'terroristic' in their ideologies. Someday, we will be shocked that America will be the ideology that it has fought for hundreds of years.

 

[bm0p700f]

It is possible to make anything legal with the right wording. I live in the U.K and reading this worries me. However "terrorism" is nothing new. I remember back in the 80's a lot of terrorism. Highjackings, plane bombings and let's not forget the IRA and unionist paramilitary organisations. Sinnfein was able to fund raise in the U.S, while their activities were considered by the U.K governement as funding terrorism they were not by the U.S government. However there was no war on terrorism, there was a war though and 3000+ poeple died and many more injured. In fact the IRA described their campaign as a war not terrorism. So any war of terror is just a viewpoint and I think a weak one.

What is the difference between the Dunblane massacre where a Scottish guy burst into a school and shot 16 people (many kids) before blowing his brains out and " 4 terrorists" who strapped bombs to themselves and blew them selves up in various parts of London killing 51 people. One is desribed as murder the other terrorism. To me both crimes are the same, both a terrible (terrorism) both are murder. We don't detain indefinatley without trial those we think might commit a murder. We wait until they do before trail and sentence.

The U.K has tried such measures as well, they were called control orders although prision was not involved. In fact we still have them. and they have been used in error too.

Also as already posted these laws are about fear. More people dies every year driving a car, we don't fear cars in the same way do we? Maybe we should fear cars and ban cars and detain anyone who drives one as they endanger everyone else and terrorise the planet with CO2 emmisions. The U.S could also assasinate anyone in a foreign country who drives as well. Sounds rediculous doesnn't it and yet our governments try and carry out such actions to "protect" us.

 

[bm0p700f]

Also Alqaeda do not issue membership cards so how do you prove that someone is a member.

At one time in the U.K after the London bombings one bloke folk was detained without trial. One piece of evidence against him - they were suspected of plotting bombings- an A to Z map (street map) with various "targets" circled. this was classified evidence too. The trial was not a trial it was a hearing to see if a control order could be impossed. This guy had marked his map because he worked in the tourism industry.(I have marked a map before does that mean I am a terrorist) and it was taken as evidence of guilt. There were other circumstansial evidence against him.

Another guy upon whom the government wanted a control order on was eventually freed as some of the evidence was found to be a bit suspect. The intellenge services used tapes of phone calls which were translated from Arabic to Italian then to English. Lots of errors creeped in including one which when presented in court was "the man from the Gulf" [the accused] which when translated properly was "the man with the Golf". The accused had a Golf (VW car - Rabbit over in the U.S). His control order was not sucessfully impossed. If the powers are given to a government to detain indefinatley they will use it and abuse it for their own ends at least that is the U.K experience.

We still have control orders, they have just been re nammed by our new government.

 

[feathermoon]

It is possible to make anything legal with the right wording. I live in the U.K and reading this worries me. However "terrorism" is nothing new. I remember back in the 80's a lot of terrorism. Highjackings, plane bombings and let's not forget the IRA and unionist paramilitary organisations. Sinnfein was able to fund raise in the U.S, while their activities were considered by the U.K governement as funding terrorism they were not by the U.S government. However there was no war on terrorism, there was a war though and 3000+ poeple died and many more injured. In fact the IRA described their campaign as a war not terrorism. So any war of terror is just a viewpoint and I think a weak one.

This raises an issue neatly. Terrorism has become a dangerous word. Its been an excuse for way too much lately.

Also, wouldn't indefinite detention make for whomever orders its use being potentially a war criminal?