National Defense Authorization Act: Military can detain US citizens?

[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?