Balkinization  

Tuesday, November 14, 2006

U.S. to immigrants: you have no rights which we are bound to respect

JB

From the Associated Press:
WASHINGTON - Immigrants arrested in the United States may be held indefinitely on suspicion of terrorism and may not challenge their imprisonment in civilian courts, the Bush administration said Monday, opening a new legal front in the fight over the rights of detainees.

In court documents filed with the 4th U.S. Circuit Court of Appeals in Richmond, Va., the Justice Department said a new anti-terrorism law being used to hold detainees in Guantanamo Bay also applies to foreigners captured and held in the United States.

Ali Saleh Kahlah Al-Marri, a citizen of Qatar, was arrested in 2001 while studying in the United States. He has been labeled an "enemy combatant," a designation that, under a law signed last month, strips foreigners of the right to challenge their detention in federal courts.

That law is being used to argue the Guantanamo Bay cases, but Al-Marri represents the first detainee inside the United States to come under the new law. Aliens normally have the right to contest their imprisonment, such as when they are arrested on immigration violations or for other crimes.


The government's argument is a fairly straightforward application of one of the worst features of the Military Commissions Act of 2006-- the elimination of habeas corpus rights for non-citizens within the United States when the government chooses to brand them enemy combatants. I've argued that this provision is unconstitutional, but no court has yet ruled on the question.

In Dred Scott v Sanford, Chief Justice Taney argued that blacks had no rights which the white man was bound to respect. Non-citizens living in the United States are certainly not held in slavery, but Taney's infamous phrase is still eerily apt: Because of the Military Commissions Act of 2006, the U.S. government can snatch any non-citizen living in the United States at any time, anywhere, and hold them indefinitely without the right of habeas corpus and without any of the criminal procedure protections afforded by the Bill of Rights.


Comments:

How John Roberts votes on this, when it wends its way up to the Court, is going to explain a lot about what the next 30 or so years will look like, SCOTUSwise.
 

Professor Balkin:

I would think that you would have a hard row to hoe arguing that al Qaeda has not invaded the United States and thus the Suspension Clause does not apply when your proffered test case concerns an al Qaeda unlawful enemy alien combatant captured inside the United States.

As for the designation of unlawful enemy combatant, there is more than ample evidence.

http://news.findlaw.com/hdocs/docs/terrorism/
usalmarri1202cmp.html

Indeed, before his designation as an unlawful alien enemy combatant, the capture was indicted in federal court.

http://www.usdoj.gov/usao/ilc/press/2003/
may/052203almarri.html
 

Here is another interesting brief again arguing that Eisentrager's ruling applies to Guantanamo altough the Court has already ruled that detainees there are entitled to some constitutional rights.
 

Bart comes up with the usual straw man argument: "I would think that you would have a hard row to hoe arguing that al Qaeda has not invaded the United States"

Regardless whether that is true or not, where does Balkin say this?

Plus why would the suspension clause not apply when al Qaeda has invaded the U.S.? The suspension clause says that congres can suspend the writ of habeas in case of an invasion. Not that it has. Actually the government is claiming that it didn't suspend the writ. Go read this brief. They content they only changed the institution that reviews the cases.

In your approach of blasting everyone that might disagree with you, you are even at odds with DOJ.

Finally if the MCA suspended the writ,
 

So Bart, Balkin argues that this provision amounts to a suspension of the writ while not warranted. The government argues, that this provision does not amount to a suspension of the writ, because they do not want to have to argue that there was a case of rebellion, invasion etc. And only you argue that the government did suspended the writ and, was entitled to do so.

Straw man must be burned.
 

Well, they have no "rights" of course, because the rights accorded us by the Constitution are not at all based on some broader understanding of the rights that all men and women are born with. That would be absurd. Alas, only Americans are fortunate enough to be born with such rights.
 

And I can't wait to read this brief. Remember that DoJ was denying Padilla access to his medical records? Now they are claiming that the court should dimiss this motion because he failed to proof that he was tortured.
 

I would think that you would have a hard row to hoe arguing that al Qaeda has not invaded the United States

It depends to some degree on whether you categorize invasion as a fleeting event or a permanent state. "Rebellion or invasion" in Article I, section 9 seems to be something extraordinary and out of the norm--an event rather than a permanent state.

I rather like the Justice Kennedy quote:
Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

So too would the strength of the emergency nature of an event--there is no foreign army on our soil and no interruption in the legal system. Five years have passed since this person's capture. In the absence of media, it would be fairly difficult to perceive that there is any threat at all, so I think arguing that the Suspension Clause doesn't apply because we've been invaded is a little odd.

Invasion also requires more than a displacement from origins with intent to attack. There seems to be a scale component, as well.

Can ten people "invade" a country? If ten are sufficient, is five? If five are sufficient, can the movement of one person into the country be called an "invasion"?

Sept. 11 and similar attacks were definitely violent acts that should be punished, but to justify placing them into the same category with Operation Barbarossa seems a harder row to hoe than arguing against that placement.
 

The government couldn't very well argue for suspending the writ in light of Ex Parte Milligan, where the Court stated:

"Martial law cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration.
***
It follows from what has been said on this subject that there are occasions when martial rule can be properly applied. 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. Because, during the late Rebellion, it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed and justice was always administered. And so, in the case of a foreign invasion, martial rule may become a necessity in one state when, in another, it would be 'mere lawless violence.'"
 

but to justify placing them into the same category with Operation Barbarossa seems a harder row to hoe than arguing against that placement.

LOL, Chicago. If DePalma didn't exist, it would be necessary to invent him, for snark purposes.
 

This comment has been removed by a blog administrator.
 

Anne: Straw man must be burned.

Very cute. ;) But the better answer is probably, "Troll must be starved."

Anderson: If DePalma didn't exist, it would be necessary to invent him, for snark purposes.

I might have to agree. His shameless "guilty until proved innocent" rhetoric does give wiser folks a chance to practice getting things said right. In particular, BP's sophistical equating of "an invader" with "an invasion" is a fairly slippery piece of work which probably plays well with his partisans, and we are well served to get the chance to watch this kind of card being palmed.

Mark Field, quoting the court: ...such as effectually closes the courts and deposes the civil administration.

This, of course, is the relevant criterion. While the PNAC thugs are trying to sell nine-one-one as an "invasion" such that we can dispense with due process, the truth is the courts and civil administration were never at any risk...except perhaps from the efforts of PNAC itself.

I find myself again wondering what would happen if some INS agent thought DePalma sounded foreign and took it upon herself to lock a DePalma up? Where, under recently enacted legislation as interpreted by BP, do we find any hope of recourse for such a detainee? In the normal course of things we count on a speedy trial, the right to confront witnesses, and the presumption of innocence to protect folks in such positions. Where does MCA allow for such protections? Or is it the case that once a DePalma is, wrongly, picked up as an alien then he can be held indefinitely, without trial, without even the right to force a commission to settle his status?
 

Anne said...

Bart comes up with the usual straw man argument: "I would think that you would have a hard row to hoe arguing that al Qaeda has not invaded the United States"

Regardless whether that is true or not, where does Balkin say this?


Professor Balking linked to a previous blog where he addresses this issue.

Actually the government is claiming that it didn't suspend the writ. Go read this brief.

I am not advancing the government argument in this matter. Rather, I addressed Professor Balkin's linked argument as it applies to this case.

In the brief to which you linked, the government makes alternative arguments that (1) alien enemy combatants held outside the the country have no constitutional habeas rights to suspend and, in the alternative, (2) the Combatant Status Review Tribunal is an adequate substitute for Article III court habeas review.

Neither argument would appear to apply to this case given that the alien unlawful enemy combatant was captured and held in the US and has not been reviewed by a tribunal yet.

Rather, this case raises the interesting questions of whether the Eisentrager reasoning applies equally to alien enemy combatants captured in the United States and, if not, whether Congress by enacting the MCA has properly suspended habeas review of alien captures inside the US given that they are by definition invaders.
 

"without any of the criminal procedure protections afforded by the Bill of Rights"

An enemy combatant is held because he is a soldier in a foreign army at war with the US. Rasul says that persons so held may have Habeas rights, but they would be expressed as a Civil not a Criminal matter. Similarly, a person committed to a mental institution has Habeas rights to challenge this decision, but does not have criminal procedure protections because it is not a criminal proceeding.
 

Bart: ...given that they are by definition invaders.

Sophistry. Just as the rhetoric of war does not a war make (at least not as required for the granting of war powers) neither does an invader an invasion make, at least not for the purpose of the suspension clause. If you were more interested in dialectic as a means of forwarding truth rather than mere rhetoric as a means of persuasion you might be able to spot these enormous holes in your logic more easily. Where Anne chides you for using straw men my favorite of your habitual tricks is your refined ability to beg the question, as you do in the quote, above, which is to say it most certainly is not "given" nor even responsibly claimed that any present number of foreigners constitute an invasion in the sense required for the suspension clause. Circular reasoning is a very persuasive method, however intellectually (and morally) bankrupt it may be, and as such it's a bit seductive. Having given over to it so completely I imagine it would be a hard habit to break.
 

Howard Gilbert: An enemy combatant is held because he is a soldier in a foreign army at war with the US.

In the topsy-turvy world of the PNAC such "guilty-until-proved-innocent" assumptions may fly. But here in America true patriots start with the converse proposition. Due process flows from that presumption, necessarily so if one has any intellectual honesty left them. Sadly the current intellectual landscape doesn't seem to give much support to either intellectual honesty nor rigor, and we can find any number of people subverting the ideals of our nation, including due process and the presumption of innocence, while at the same time mouthing all the pretty words. The presumption of innocence is what's at stake here. PNAC and fellow travelers are not concerned about jettisoning that presumption, for they believe they will always have sufficient resources to prevail without it. Only the weak need fear.
 

I think HGilbert arrived with Anne at the important turns in the government's pursuit in the 4th court of an alient "student"; as the Rasul Scotus certification addresses and somewhat supersedes Eisentrager with respect to where the detainee is apprehended. The rules of evidence likely are what the government most desires to evade, once putatively having reached beyond Geneva articles, and contorted MCA's untested rendition of habeas in its various forms; [the instant case in re K.al-Marri being the test]; Padilla's suit has worked toward the realm of admissible evidence; the foregoing link is JB's discussion recently and a newspaper article; here is another pointer to a government exhibit in the matter of the government's worries that MKhan would receive permission to testify about the same things Padilla wants to discuss in open public record court; i.e., a kind of graymail argument by defense in those two cases; that exhibit appearing in the weblog there. There is discussion in the media about implications for press organizations, as well, if such entities were to possess testimony about those matters, the government arguing it would be secret and illegal to publish or even for the news media to possess such testimony; all this fuss about prisoner abuse. Wanting to link to some November 2006 Defense Briefs, these three courtesy of Scotusblog pertain to the Odah and Boumediene cases, including the Amici's Brief November 2006. There is a shortlist of several related caselaw concerns ML posted there, as well, in the last week of October 2006. The latter is list is worth perusing. As usual, CCR seems to have A/C privilege as a core concern in some of its approach, like news organizations might during this time while MCA's first court tests are appearing; here is a recently updated page with links to court papers for MKhan at Center for Constitutional Rights.
 

Many of you raise interesting questions concerning whether Congress may suspend the habeas privilege for alien enemy combatants.

As a textualist, I like starting with the words of 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."

As a preliminary manner, this clause is limited by definition to situations where the Constitution would normally extend the privilege of habeas review to the capture. If there is no constitutional privilege in the first instance, there is no privilege to suspend.

No Court has ever extended Constitutional habeas review to alien enemy combatants captured overseas in a war. Rasul declined to do so and rewrote the habeas statute to allow such review, which Congress quickly reversed by enacting the DTA and MCA.

I am going to leave aside the issue of whether alien enemy combatants captured in the United States gain a habeas privilege unavailable to their comrades captured overseas merely because they invaded our country. I am unaware of the courts of Britain or the United States ever granting habeas review to alien enemy combatants detained for the duration of the hostilities. (The WWII habeas petitions of captured Germans were reviews of their criminal convictions by military courts, not of their initial detention as combtants.) However, for the sake of this discussion, I will assume that the Constitution does extend habeas protections to alien enemy combatants to challenge their detention for the duration of hostilities unless suspended by Congress.

Congress may suspend the habeas privilege during an rebellion or invasion when public safety demands. The common meaning of invasion is the entry into the United States by an alien armed force. Common sense would appear to dictate that an alien enemy combatant captured inside the United States is by definition engaging in an invasion. Thus, Congress has the power to suspend habeas review of the detention of the alien enemy combatant to preserve public safety against the threat posed by such alien enemy combatants.

Professor Balkin suggests: "The public safety test is designed for situations where courts and ordinary legal processes are not available and it is necessary to detain dangerous people immediately until order can be restored."

The petitioner in Ex Parte Milligan was a civilian US citizen accused of treason during a rebellion, not an alien enemy combatant engaged in an invasion of our country. Thus, the Court's observation that civilian courts were available to try the citizen for his alleged treason would not appear to apply to a captured alien enemy combatant who is not being tried for a crime, but is rather being detained for the duration of hostilities. In the case of invasion, the public danger posed is by the invaders themselves, not from the lack of courts to try them.

PMS_Chicago said... "It depends to some degree on whether you categorize invasion as a fleeting event or a permanent state. "Rebellion or invasion" in Article I, section 9 seems to be something extraordinary and out of the norm--an event rather than a permanent state."

I am not sure how this distinction arises in the case of allowing alien enemy combatants captured in the act of invasion to challenge their detention for the duration of the hostilities. No war is permanent.

PMS_Chicago added... Invasion also requires more than a displacement from origins with intent to attack. There seems to be a scale component, as well. Can ten people "invade" a country? If ten are sufficient, is five? If five are sufficient, can the movement of one person into the country be called an "invasion"?

Why not? There is no numerical limit to an invasion under the terms of the Constitution. In reality, it only took 19 alien enemy combatants to invade and kill over 3500 of our countrymen during 9/11. Technology has greatly amplified the capabilities of an invader.
 

BD:Neither argument would appear to apply to this case given that the alien unlawful enemy combatant was captured and held in the US and has not been reviewed by a tribunal yet.

First of all, the guy can't be an "alien unlawful enemy combatant" until he's been designated as such by the CSRT. At best, he's a "suspected alien unlawful enemy combatant pending review" or some other noun with an overburden of adjectives.

Secondly, the location of his capture and detainment are irrelevant under the MCA. Section 7 makes that abundantly clear, and Section 8 rewrites the "at Guantanamo Bay" language of the DTA.

Thirdly, there is no time schedule required for any portion of the CSRT or trial process (in fact the speedy trial protection of the UCMJ is specifically revoked).

Lastly, the case cannot be challenged in civilian courts, save the results of their CSRT designation. Of course, the CSRT need not ever be conducted, at least not by law.

As long as the MCA is held to be constitutional, the government's arguments seem pretty solid.

BD again: Common sense would appear to dictate that an alien enemy combatant captured inside the United States is by definition engaging in an invasion

That definition of invasion may be dictated by common sense, but it isn't recommended by other objective sources:

http://dictionary.reference.com/search?q=invasion
http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=invasion
http://en.wikipedia.org/wiki/Invasion
http://encarta.msn.com/dictionary_1861622198/invasion.html

The word that describes what you're talking about is "inflitration," a word that somehow didn't sneak into Article I, Section 9.
 

Bart,

We are dealing in this case with a single individual who entered this country with a lawful visa, albeit under false pretenses if the allegations against him are true.

This is nothing new or unprecedented. Many spies have entered this country with lawful visas but under false pretenses. They were agents of a hostile power engaged in unlawful activities. Yet no one ever claimed that the presense of spies on U.S. soil was an "invasion" that justified the suspension of habeas corpus.

Would you make such a claim?
 

Enlightened Layperson: Would you make such a claim?

Has, is, and will continue to. Such claims, especially meta-claims of using "common sense", are inescapable for folks of the PNAC persuasion, much in the same way these thugs try to paint their corporate imperialist aims in the Middle East with the colors of "spreading democracy." (They conveniently leave out the "at gunpoint, as we see fit, so long as we get the no-bid contracts" part of the deal in their statement of "principles".)
 

Bart: Why not? There is no numerical limit to an invasion under the terms of the Constitution.

Hah. You really do amaze. The criteria raised by Mark Field, from Ex Parte Milligan, are relevant and controlling; your efforts to distinguish the cases is weak and unconvincing, at best. But you know better than to address points you have hopelessly lost. Likewise I see you still have no answer for how you are to get out of your wrongful detention absent the due process rights stripped away by MCA. And, true to form, where you have no answer you simply weasel your way into fruitless nitpicking---in hopes of misdirecting your audience into swallowing your central begged question. A person engaged in an honest search for truth might do more when confronted with an unanswerable argument. Sophists working merely to persuade others to their world view needn't bother.

So, Bart, tell me again why we didn't give Johnson war powers in the war on poverty? Poverty is much more prevalent the killer, and as a textualist you have to agree the Constitution doesn't diffentiate between "war: a campaign to end an injurious condtion" as opposed to "war: an armed struggle between nations", yes?
 

PMS_Chicago said...

BD:Neither argument would appear to apply to this case given that the alien unlawful enemy combatant was captured and held in the US and has not been reviewed by a tribunal yet.

First of all, the guy can't be an "alien unlawful enemy combatant" until he's been designated as such by the CSRT. At best, he's a "suspected alien unlawful enemy combatant pending review" or some other noun with an overburden of adjectives.


This is an interesting question.

The Geneva Conventions only require a hearing and do not specify what body must conduct that hearing. Before the government removed this Capture from the civilian legal system and declared him an alien enemy combatant, a grand jury indicted the Capture for a variety of crimes on behalf of al Qaeda. Is this a sufficient status hearing?

However, the MCA implies that the CRST is the proper body to make this determination. If I were the government, I would have the CRST make a ruling on this capture and remove this as a possible ground for a court to accept habeas review.

Secondly, the location of his capture and detainment are irrelevant under the MCA. Section 7 makes that abundantly clear, and Section 8 rewrites the "at Guantanamo Bay" language of the DTA.

It is highly relevant to the issue of whether the capture has a constitutional habeas privilege which must be suspended under the Suspension Clause. The Courts have been very clear that Captures outside the US have no such privilege, but the issue is undecided for Captures within the US. If the Capture has no privilege then you don't even get to the issue of whether the MCA properly suspends the privilege.

BD again: Common sense would appear to dictate that an alien enemy combatant captured inside the United States is by definition engaging in an invasion

That definition of invasion may be dictated by common sense, but it isn't recommended by other objective sources...


Ummm, do you care to point out where these dictionary links contradict what I posted?

The word that describes what you're talking about is "inflitration," a word that somehow didn't sneak into Article I, Section 9.

Means versus ends.

An invasion in the end result of the enemy entering our country. Infiltration is merely a technique for accomplishing the end of invasion.
 

Enlightened Layperson said...

We are dealing in this case with a single individual who entered this country with a lawful visa, albeit under false pretenses if the allegations against him are true.

This is nothing new or unprecedented. Many spies have entered this country with lawful visas but under false pretenses. They were agents of a hostile power engaged in unlawful activities. Yet no one ever claimed that the presense of spies on U.S. soil was an "invasion" that justified the suspension of habeas corpus.


That is an interesting comparison. Does anyone know of a case where a foreign spy who was not already protected by diplomatic immunity and was not being prosecuted under our criminal system was granted habeas review by our courts?

In any case, this Capture is not alleged to be a spy. Rather, he is alleged to be part of an attack on our nation's financial system by al Qaeda.
 

Robert Link said...

Bart: Why not? There is no numerical limit to an invasion under the terms of the Constitution.

Hah. You really do amaze. The criteria raised by Mark Field, from Ex Parte Milligan, are relevant and controlling; your efforts to distinguish the cases is weak and unconvincing, at best.


Milligan was a US citizen non combatant accused of treason. How exactly is his status at all comparable with Al-Marri?
 

Wrong question BP. The questions are:

A) How are you going to get released after being wrongly detained as an alien, apropos of our host's post to which these comments are appended? Still no answer for that one, eh?

B) What kind of fool would argue that the suspension clause doesn't limit the option to situations in which an invasion or rebellion "...effectually closes the courts and deposes the civil administration"?

C) Is the set of fools identified in B) the same as the set of fools who think "Technology has greatly amplified the capabilities of an invader" somehow overrides the plain meaning of the text of the Constitution vis a vis invasions?

D) By *your* rules Johnson's war on poverty should have had it's own AUMF; after all, the text of the Constitution doesn't distinguish between types of war. Are you *really* a textualist, or only when Scalia tells you so?
 

This case poses the same dilemma as Padilla. Because Al-Marri is a plaintiff in a civil action, he is not entitled to remain silent. Furthermore, un-Mirandized statements made during his interrogation are admissible (but only in the civil case).

He is accused, but not charged, with a capital offense (being a military spy, or "crossing-lines out of uniform"). If he were charged with this offense in a military court, he would be entitled to Fifth Amendment protection, could remain silent, and everything he said previously would be inadmissible. That won't apply if a civil case goes to discovery and he is deposed and confronted with prior statements. Anything he says during the deposition or trial is admissible against him in subsequent proceedings.

Historically, these cases (Padilla for example) try to get a summary judgment so the defendant doesn't have to testify. That probably won't work here.

Padilla's big strategic advantage was that he could not be prosecuted without producing KSM as a witness, and KSM was in one of those CIA prisons. Now that KSM is in Guantanamo and is likely to be charged with war crimes for 9/11, there is nothing preventing the government from pressing military charges against Al-Marri, and anything they get from the deposition or cross would provide extra evidence.
 

Bart,

Spies often engage in acts of sabotage as well as espionage. They infiltrate countries in times of actual war. And, I believe you have pointed out in the past, spies who infiltrated the U.S. during WWII were tried before a military commission and did appeal the lawfulness of the procedure.

You asked if any spy has been granted habeas corpus if not protected by diplomatic immunity or prosecuted in the criminal system. But you are begging a much more obvious question. Has any court ever ruled that the presence of foreign spies and saboteurs in the U.S. during wartime constitutes an "invasion" and is grounds for suspension of habeas corpus?
 

Ummm, do you care to point out where these dictionary links contradict what I posted?

Erm, okay. I reckoned a person of your education would see the obvious differences, but I'm game. Too game, I would agree with Robert, but game nonetheless.

You say one person can enter a country, fly a plane into a building or some other attack, and that constitutes an invasion.

To the contrary, standard definitions of invasion suggest otherwise:


1. attempt to conquer: a hostile entry by an armed force into a country's territory, especially with the intention of conquering it

2. arrival in large numbers: the arrival of large numbers of people or things at one time


If that doesn't do it for you, another source says:

An invasion is a military action consisting of armed forces of one geopolitical entity entering territory controlled by another such entity, generally with the objective of conquering territory or altering the established government.

...

The term usually connotes a strategic endeavor of substantial magnitude; because the goals of an invasion are usually large-scale and long-term, large forces are needed to hold territory and protect the interests of the invading entity. Smaller and lighter tactical infiltrations are not generally considered invasions, being more often classified as skirmishes, sorties, targeted killings, assassinations or reconnaissance in force.


Does that clear it up at all for you?
 

Enlightened Layperson said...

You asked if any spy has been granted habeas corpus if not protected by diplomatic immunity or prosecuted in the criminal system. But you are begging a much more obvious question. Has any court ever ruled that the presence of foreign spies and saboteurs in the U.S. during wartime constitutes an "invasion" and is grounds for suspension of habeas corpus?

My inquiry begs no such question. Indeed, I suspect my inquiry would render your question moot.

I suspect that alien spies have never been granted the privilege to challenge their detentions unless, like the German saboteurs during WWII, they were appealing from a military commission conviction. Therefore, there would be no habeas privilege to suspend.

Also, I see no effective difference between spies, saboteurs, the fighters and those who provide supply and support to the above. So long as they all work for al Qaeda and al Qaeda is at war with us, they are all equally enemy combatants.

Our troops perform all of these functions. If a scout spying on the enemy, an engineer blowing up infrastructure, an electronic intelligence officer hacking into enemy computers, a infantry grunt or a supply clerk get captured by the enemy, they are all POWs and none of them have any recourse to enemy courts to challenge their detention under international law.

Therefore, I find it absurd to offer alien unlawful combatants such rights in our courts no matter what their function.
 

PMS_Chicago said...

You say one person can enter a country, fly a plane into a building or some other attack, and that constitutes an invasion.

Most would agree with me, but continue...

To the contrary, standard definitions of invasion suggest otherwise:

1. attempt to conquer: a hostile entry by an armed force into a country's territory, especially with the intention of conquering it


1) An invasion does not require that the invader intend to conquer the country. We have invaded half of Europe, Asia, Afghanistan and Iraq without any intent to conquering all of these countries.

2) However, al Qaeda does intend on conquering Europe and America and turn it into one large Islamic caliphate. Listen to these people. They are not at all shy about telling you exactly what they think as my posts of al Qaeda gloating over the election results clearly illustrated.

2. arrival in large numbers: the arrival of large numbers of people or things at one time

Numbers are also no longer required. You can send in small numbers of people and use technology to accomplish wildly successful invasions. In 1979, the Soviets sent several divisions of the Red Army to invade Afghanistan and were defeated over a period of years. In contrast, the US sent in a battalion of SF with technology and routed out the Taliban in a few weeks.

Our enemy is using technology to boost the effects of its terrorism to leverage change. A good example of this are the Madrid bombings killing hundreds carried out by a handful of North African al Qaeda which toppled a hostile government in Spain and replaced it with one who would appease al Qaeda.
 

Enlightened Layperson: you are begging a much more obvious question. Has any court ever ruled that the presence of foreign spies and saboteurs in the U.S. during wartime constitutes an "invasion" and is grounds for suspension of habeas corpus?

Bart: Therefore, I find it absurd to offer alien unlawful combatants such rights in our courts no matter what their function.

Great. Too bad that's not what's being questioned here. Also too bad that you're not honest enough to stick to the subject, which is that habeas rights of legitimate, law-abiding visitors from other lands, and citizens such as yourself, are forfeit simply on the say so of any INS agent, thanks to the work of your partisans in getting MCA passed.

Heh. I still chuckle thinking about you writing, "My family can prove my citizenship." For a second I was almost compassionate, as if you were simply ignorant rather than duplicitous.

Another question for you to mafully dodge: Do you, Bart, contend that the presence of al Qaeda operatives on U.S. soil would suffice to trigger the suspension clause? Yes or no. Or do you want to wait until you've answered the one about how your family gets the chance to prove your citizenship. It's all good; we've got real work to keep us busy while you scratch.
 

Robert Link:

Another question for you to mafully dodge: Do you, Bart, contend that the presence of al Qaeda operatives on U.S. soil would suffice to trigger the suspension clause?

Actually, he is not dodging that question at all. He said in his very first post that the presence of al Qaeda operatives on U.S. soil does suffice to trigger the suspension clause (but only with respect to those operatives). Since Bart is so fond of precedents, the rest of us are pressuring him for some sort of precedent to support his opinion. That is what he is dodging.

Bart says he believes alien spies have never been granted the privilege to challenge their detentions unless they were appealing conviction before a military commission. What he is ignoring is the obvious fact that trial before a military commission is itself a chance to challenge one's detention and that we are denying this prisoner even that right.

I will also add that he is arguing that al Qaeda should be treated as invaders because the want to conquer us and completely ignoring whether that wish is anything more than a deranged fantasy.
 

Bart: ...which toppled a hostile government in Spain and replaced it...

Hahahahaha. Hohohohoho. Wheeehooo, but you're a funny one. I reckon that's what happened here too, eh, just last week? Do you have any idea what a maroon you're making of yourself?

For the record, an administration isn't a government. And an administration which indiscriminately creates more and deeper and lasting wounds with a region grants the greatest boon to al Qaeda recruiters.

Or are you one of those simple buffoons capable of believing Secular Saddam (or Humanist Hilary) actually wanted/wants a religious nut-job like bin Laden to have any sway in the world? Have you drunk so deep so long of the Rushing Rove kool-aid that you are capable of literally swallowing any line they feed you? So it would seem.
 

To wade into this mire, maybe we can all agree to a few things that might help clarify the debate. Let me try this statement.


1. The Writ doesn't apply to nonlawful enemy (typically alien) combatants.

- Reasoning: It has been long recognized that spies (who are unlawful enemy combatants) have no right to habeus corpus. Their status is determined by military commission historically (though the President has the final authority). I don't think such individuals have even been given the right to "challenge" their detention, per se. The only requirement is that a properly constituted military commission or other appropriate body makes such a determination. I think Ex Parte Quirin is the most relevant case. It's notable that one or two of the German spies in that case, even had reasonably claims to US citizenship, but the court rejected their claims saying that any such claim they had was destroyed by the actions against the United States.

What do you all think?
 

Enlighted layperson,

You said, "What he is ignoring is the obvious fact that trial before a military commission is itself a chance to challenge one's detention and that we are denying this prisoner even that right."

That speaks nothing to a person's right of Habeus or not. Challenging one's detention within the military system is not the same thing as the Habeus Corpus protections that people are entitled to in the civil court system.
 

I don't care what you say, I love the way he refers to "captures"; it demonstrates inarguably his mastery of the terms of art far beyond us mortals.
 

p.s. I'm not trying to get into a drawn out fight. I don't know all the same particulars of the wide ranging points that are addressed. So, I'd appreciate it if, in your responses to me, you would stick to the issues that I have raised (or issues that are directly relevant to the issues I have raised)
 

I finally found a link to the
decision
in this case.

Al-Marri was not just designated an enemy combatant by the President. He has already been given an opportunity to present evidence to a US District Court, and the court decided in the Government's favor. Admittedly he has not yet had a CSRT, but isn't a Federal District Court a bit more than your average CSRT.

This story refers to an appeal arguing that Al-Marri is entitled to more than the rights promised to him in Rasul and already granted to him by the lower court.
 

HSL: Let me try this statement.
1. The Writ doesn't apply to nonlawful enemy (typically alien) combatants.


Disingenuous or simply misguided, nonetheless this isn't a relevant question; it's a red herring. The point at issue is what protects innocent aliens and citizens from the long reach of the MCA? And the answer is, "Not a damned thing." The rest is window dressing and partisan (read PNAC) mis-direction.
 

Robert,

Stop being jerk.

I specifically said I was trying to figure out the contours of the debate by getting agreement on a few statements -- to properly define the debate.

There seems to be a lot of back and forth, without each side necessarily arguing on the same points/issues.

I am simply trying to figure out what we all can agree on, then maybe more constructive argument could result.

But thanks anyways!

And yes, you got me. I'll all part of the PNAC conspiracy. I have the PNAC card in my wallet. God, seriously, get a grip.
 

It has been long recognized that spies (who are unlawful enemy combatants) have no right to habeus corpus.

As stated, this is incorrect. US nationals who spy for other countries (think Jonathan Pollard) certainly have habeas rights. I assume you mean foreign nationals who come here and spy. While I don't know of any case involving a spy (and I'm not at all sure what you mean by "long recognized"), I see no reason why they would not have habeas rights as established in Hamdi.

Their status is determined by military commission historically (though the President has the final authority). I don't think such individuals have even been given the right to "challenge" their detention, per se. The only requirement is that a properly constituted military commission or other appropriate body makes such a determination. I think Ex Parte Quirin is the most relevant case.

Quirin actually holds the opposite:

"The Government challenges each of these propositions [advanced by the Petitioners]. But regardless of their merits, it also insists that petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President's Proclamation undertakes in terms to deny such access to the class of persons defined by the Proclamation, which aptly describes the character and conduct of petitioners. It is urged that if they are enemy aliens or if the Proclamation has force no court may afford the petitioners a hearing. But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case. And neither the Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission."

The Court then went on to consider the request for habeas on the merits and denied it.
 

Mark,

I'm not sure about your first point -- I'll have to spend some time looking at that. But, I think there might be some confusion (or maybe I didn't state my point properly, which is likely).

The portion you reference in Quirin is narrowly explaining that alien unlawful enemy combatants can challenge the constitutionality of the broad system/statute authorizing war, etc., but only in the context of whether said system allows the President to make determinations of unlawful enemy combatants.

Once the President, as the proper authority, makes a determination, the detainee can't challenge the executive's determination (or basically the executive's discretion) except for within whatever system is established by the President. (the detainee then still can't appeal to the civil court system).

The distinction is a fairly close one, but I think it is important.

Or, at least that is how I understand it. Am I missing something?
 

This case is not about the elimination of habeas corpus rights for anyone. There has been a District Court decision (on habeas) that was appealed normally to the 4th Circuit. However, Congress transferred jurisdiction over all appeals in these cases to the DC Circuit. So technically the question in this particular petition (to the 4th Circuit) is whether jurisdiction has been properly transferred. If that is true, all the other legal questions belong to the DC Circuit.
 

The portion you reference in Quirin is narrowly explaining that alien unlawful enemy combatants can challenge the constitutionality of the broad system/statute authorizing war, etc., but only in the context of whether said system allows the President to make determinations of unlawful enemy combatants.

Once the President, as the proper authority, makes a determination, the detainee can't challenge the executive's determination (or basically the executive's discretion) except for within whatever system is established by the President. (the detainee then still can't appeal to the civil court system).


I was responding to the assertion that spies have no right to habeas relief. That's an ambiguous phrase -- in one sense, anybody can seek habeas relief, but they might not have it granted. Quirin treats it in this broad sense, allowing the contest but denying it on the merits.

Assuming the court agrees that a military commission is proper, then there is no appeal right. The problem here, in contrast to Quirin, is that no trial is scheduled -- that's the complaint. Under such circumstances, and given Quirin's willingness to consider the merits combined with the holding in Hamdi, I think Al-Marri has a good argument.

By the way, I'm not sure Quirin is still good law. I believe it was in Hamdi that Scalia referred to it as "not our finest hour".
 

"Bart" DePalma said:

The petitioner in Ex Parte Milligan was a civilian US citizen accused of treason during a rebellion, not an alien enemy combatant engaged in an invasion of our country.

"Bart" needs to look up the definition of "treason". And perhaps Article I, Section 9, where "invasion" and "rebellion" are mentioned in the very same phrase. His attempted distinction here is legal gibberish here.

Also, the reasoning in Ex Parte Milligan quoted doesn't turn on the nature or alienage of the person seeking habeas.

Cheers,
 

"Bart" DePalma contradicts himself all in one paragraph (or even sentence):

No Court has ever extended Constitutional habeas review to alien enemy combatants captured overseas in a war. Rasul declined to do so and rewrote the habeas statute to allow such review, ...

I'd give it a "D". Incredible that "Bart" ever made it through law school....

Cheers,
 

"Bart" DePalma sets up another "straw man":

Does anyone know of a case where a foreign spy who was not already protected by diplomatic immunity and was not being prosecuted under our criminal system was granted habeas review by our courts?

Well, you see, before the Renditionerater's regime, no one tossed 'em into legal 'black holes'. They were either charged or deported.

Cheers,
 

humblelawstudent:

1. The Writ doesn't apply to nonlawful enemy (typically alien) combatants.

- Reasoning: It has been long recognized that spies (who are unlawful enemy combatants) have no right to habeus corpus. Their status is determined by military commission historically (though the President has the final authority).


That would be news to the likes of Ames, Walker, and even Lindt. Where you get the idea that the Deciderator-In-Chief gets to make this determination is beyond me as well. I guess you'll fuss with your "unlawful enemy combatant" phrase, but that's a term of quite recent (and not widely accepted) coinage, and has no long legal history.

Cheers,
 

mick:

I don't care what you say, I love the way he refers to "captures"; it demonstrates inarguably his mastery of the terms of art far beyond us mortals.

That's "Captures" with a capital "C". I stand in awe as well.

Wait until "Bart" lectures you about the rules for summary judgement some day. It was news to me that a SJ motion couldn't be entertained until after all discovery had been made.

Cheers,
 

howard gilbert:

... but isn't a Federal District Court a bit more than your average CSRT.

Not sure what you're claiming. An indictment in federal court substitutes for a actual judgement on the merits?

Cheers,
 

@humblelawstudent: the problem is that the power to designate a enemy combatant would require a war. Would you say that if a president was designating enemy combatants in the war on drugs, he would abuse his powers?
 

Arne,

The distinction between lawful and unlawful enemy combatants is actually important and well known. The Geneva conventions make such distinctions, further it was what the entire Ex Parte Quirin case hinged on.

So, I don't know why (and how) you think it is such an unimportant and "recent" construction.
 

Anne,

I agree. It requires war or the proper authorization for the use of military force under the War Powers Act.

I would absolutely agree that if the President used this in the context of the War on Drugs it would be completely improper and unconstitutional.
 

confusing having an arne and an anne around...
 

@humblelawstudent: so we are on mutual ground. And what if congress decided to declare a war on drugs (and thus activitates the president's war powers)?
 

Enlightened Layperson said...

[Bart] said in his very first post that the presence of al Qaeda operatives on U.S. soil does suffice to trigger the suspension clause (but only with respect to those operatives).

Correction: IMHO the presence of invading enemy combatants inside of our country creates the invasion predicate to suspension. However, Congress must enact a provision actually providing for the suspension. The suspension clause is not self enacting.

Since Bart is so fond of precedents, the rest of us are pressuring him for some sort of precedent to support his opinion. That is what he is dodging.

I am getting tired of this game. Try reading for content. I have posted on multiple occasions that Congress never previously had the need to suspend the habeas privilege for alien enemy combatants challenging their detention for the duration of a conflict because courts had never extended such a privilege.

Bart says he believes alien spies have never been granted the privilege to challenge their detentions unless they were appealing conviction before a military commission. What he is ignoring is the obvious fact that trial before a military commission is itself a chance to challenge one's detention and that we are denying this prisoner even that right.

Try reading the WWII era cases at point. The courts reasoned that the the executive entered the realm of the executive when they tried these men, thus creating the habeas privilege in such cases.

One more time: The constitutional habeas privilege has never been extended to alien enemy combatant captures to challenge their detention for the duration of the conflict. In Rasul, the Supremes rewrote the habeas statute for the first time to do so and they were resoundingly reversed by Congress in the DTA and MSA.
 

Anne,

Congress would be horribly stupid and I would vote to throw the bums out along with most of the country.

(I think) Congress couldn't "declare war" per se, because there wouldn't be anyone to declare war on. I guess they could pass an Authorization for the Use of Military Force. I'm not sure if there would be any sort of constitutoinal restriction (it may be within their realm of discretion, not matter how silly or stupid). But, if they could, I think we would all agree that it would be one of the dumbest things done in a while (which would be quite an accomplishment given their great ability to do stupid things).
 

humblelawstudent:

The distinction between lawful and unlawful enemy combatants is actually important and well known. The Geneva conventions make such distinctions,...

Ummm, ahhh <*search ... search*> ... nope. You will not find the phrase "unlawful [or 'illegal'] enemy combatant[s]" anywhere in the Geneva Conventions.

Here's sumptin' for you to chew on.

... further it was what the entire Ex Parte Quirin case hinged on.

Nonsense. There was nothing in Ex Parte Quirin that hinged on their status as "unlawful enemy combatants". They were charged with violating the Laws of War, two Article of War (Articles 81 and 82) and conspiracy to commit these acts. Articles 81 and 82 cover the offences of spying and "attempting to relieve the enemy". Congress had seen fit to prescribe these offences as triable by military commission.

"We are concerned only with the question whether it is within the constitutional power of the national government to place petitioners upon trial before a military commission for the offenses with which they are charged."

Ex Parte Quirin, 317 U.S. 1, 29 (1942) (emphasis added).

"Lawful combatants" enters in only with respect to whether they may be tried at all:

"Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful."

Ex Parte Quirin, 317 U.S. 1, 31 (1942) (emphasis added).

"Lawful" here means: "Did they break the laws?" Not "did they wear the appropriate clothing while doing so?" The question of clothing (or other deceits) enters into the question of whether they were spies and thus triable for the crime of spying.

And FWIW, Ex Parte Quirin predates the Geneva Conventions.

Cheers,
 

"Bart" DePalma:

{Enlightened Layperson]: Since Bart is so fond of precedents, the rest of us are pressuring him for some sort of precedent to support his opinion. That is what he is dodging.

I am getting tired of this game. Try reading for content. I have posted on multiple occasions that Congress never previously had the need to suspend the habeas privilege for alien enemy combatants challenging their detention for the duration of a conflict because courts had never extended such a privilege.


OIC. So there are no precedents. Thank you.

Cheers,
 

"Bart" DePalma:

I am getting tired of this game. Try reading for content.

And:

Try reading the WWII era cases at point. The courts reasoned that the the executive entered the realm of the executive when they tried these men, thus creating the habeas privilege in such cases.

Hmmmmm. Still not getting any results. Spock, hand me that Tricorder. ;-)

Cheers,
 

"Bart" DePalma:

One more time: The constitutional habeas privilege has never been extended to alien enemy combatant captures to challenge their detention for the duration of the conflict. In Rasul, the Supremes rewrote the habeas statute for the first time to do so...

Hmmmmm. Still no results.

On a more serious note, the Rasul court stated that the laws as they existed dictated this result. Which is why the Deciderator-In-Chief asked Congress to change the laws. The best Congress can do is make the Rasul decision moot. They cannot overturn it.

Cheers,
 

Arne,

Your interpreation is just wrong, and makes little sense on a both a plain reading and understanding the context. Here's why.

First, I never said the term "unlawful enemy combatant" was specifically in the Geneva conventions. But, the Conventions do implicitly recognize the difference between the two. For example, look at the explanations of the protections for those who follow the requirements to be considered a POW vs. those who don't follow the requirements and the laws of war.

So, you are right the exact term isn't in there, but (A) I never said it was, and (B) it is pretty clear that is a distinction between lawful and unlawful combatants in the Conventions.

Your attempt at parsing Quirin doesn't make much sense. The quotes you use actually support my position. Because they violated the statutes and the LAWS OF WAR (espionage and possibly sabotage out of uniform and behind enemy lines), they were unlawful enemy combatants. If they had been lawful enemy combatants they could not have been tried for what they did, because they would have been POWs. So, the determination of them being unlawful enemy combatants was KEY. It determined whether they could be put death instead of just thrown in a POW camp.
 

Arne,

From Quirin:
""We are concerned only with the question whether it is within the constitutional power of the national government to place petitioners upon trial before a military commission for the offenses with which they are charged."

Quirin did hinge on those distinctions. Now, the exact question presented that the court addressed was over the constitutionality of the executive's determination, but the importance of the distinctions can't be underestimated. The whole case rises and falls upon these distinctions once properly made by the executive.
 

I was posting in a hurry last night and I'm not sure my last couple of posts distinguished the various issues quite the way I'd like. Let me try to set it out in more detail.

When hls says "the Writ doesn't apply to unlawful enemy combatants", that phrase could have a couple of different meanings:

1. The strong meaning: courts lack jurisdiction to hear writs from such persons (or, similarly, such persons lack standing to sue); courts canNOT decide their cases on the merits.

The quote I provided from Quirin rejects this argument. The government made exactly that argument to the Court and it said, paraphrasing the passage I quoted above, "no, their status doesn't preclude us from deciding their case on the merits".

2. The weaker claim: anybody can file a suit, of course, but just because you file one doesn't mean you'll win; unlawful enemy combatants will lose (perhaps because the issue was already decided in Quirin, perhaps for some other reason).

IMO, the weaker claim fails if it relies on Quirin. The reason is that the recent cases involve a different issue. In Quirin the Nazi saboteurs were trying to avoid a trial by military commission. They wanted a full criminal trial with all the associated Constitutional rights. The Court rejected this, though the reasoning has been criticized and the case is hard to distinguish from Milligan.

Today's cases, in contrast, involve the issue of indefinite detention without trial. Unlike the Nazi saboteurs, people like al-Marri are not trying to avoid a trial, they are trying to obtain one. They want to file habeas petitions to force the government to prove their status as "unlawful enemy combatants" before some tribunal -- any tribunal -- rather than simply accept the President's word for it. Thus, Quirin is not precedent for today's cases even if it is good law.

Indefinite detention is the paradigm case for the writ of habeas corpus. It's actually the reason why Parliament originally passed the habeas statute in 1679 -- the Stuart kings liked to imprison people without charge. In Blackstone's words, "[T]the great and efficacious writ in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another; and commanding him to produce the body of the prisoner with the day and cause of his caption and detention...the writ of habeas corpus is then a writ of right, which 'may not be denied, but ought to be granted to every man that is committed, or detained in prison, or otherwise restrained, though it be by the command of the king, the privy council, or any other.”"

Note that all of this leaves out for the moment the question whether Congress has eliminated habeas jurisdiction in the torture bill or can do so constitutionally. I'm only addressing the historical/precedential argument.
 

Mark,

I agree with the first portion of your (2) and that (1) is wrong.

I agree that there are distinctions between the current cases and Quirin, but I think the distinction you raise is incorrect.

In Quirin, they weren't trying to get out of a "trial" (as in a civil trial). They were trying to get out of the military trial (military commision) which is very different in both form and substance than a civil trial.

The current peeps are trying to argue they are entitled to a civil trial (if I understand their argument correctly) for a determination of their status. Well, implicit in Quirin is the fact that if the President (through commission, etc.) has the proper authority to determine an alien is an unlawful combatant, then they can't appeal that determination to a civil court. They can only appeal whether he has that authority -- which may be a proper justiciable issue in the current cases. But, that can't get them a civil trial as to that determination once the President has been given that authority through, for example, an AUMF.

From what I understand, the President has the authority to make those determinations. Typically, they use military commissions. But, I don't think there is any statutory or Constitutional requirement that he establish a military commission for that purpose and delegate his authority to that commission.
 

EDIT to last post.

In my 4th paragraph, I say the current peeps are trying to get a civil trial -- they be wanting some sort of military trial. But, this doesn't change my analysis especially in light of what i say in my last paragraph.
 

What strikes me is stunning difference between the Nazi spy cases of WWII and the current approach to military tribunals in terms of the time involved.

In the Dasch and Quirin etc. cases, they landed on the shore on June 13 and June 17. They were all in custody by June 27. The tribunal began on July 8 and ended on August 4. That's less than two months.

Compare that to the current cases where people have been held for 5 years without even a status review. What could possibly be gained by holding someone without charges for so long? Even if we believe they have critical information, wouldn't such information be five years out of date?

Can one of the proponents of the administration's methods explain the reasoning behind perpetual confinement without charges?
 

Mark Field said...

Indefinite detention is the paradigm case for the writ of habeas corpus. It's actually the reason why Parliament originally passed the habeas statute in 1679 -- the Stuart kings liked to imprison people without charge.

There are two fundamental distinctions here.

1) The Stuart kings were imprisoning their own citizens. We ware talking about alien enemy combatants.

2) The Stuart kings imposed indefinite imprisonment. Alien enemy combatants are detained for the duration of the conflict.
 

PMS_Chicago said...

Compare that to the current cases where people have been held for 5 years without even a status review. What could possibly be gained by holding someone without charges for so long? Even if we believe they have critical information, wouldn't such information be five years out of date?

This is elementary. You detain enemy combatants for the duration of the conflict to prevent them from rejoining the fight against your country. You usually do not charge enemy combatants with crimes.
 

Well, implicit in Quirin is the fact that if the President (through commission, etc.) has the proper authority to determine an alien is an unlawful combatant, then they can't appeal that determination to a civil court. They can only appeal whether he has that authority -- which may be a proper justiciable issue in the current cases.

I don't believe Quirin raised or decided the authority of the President to determine enemy combatant status. The relevant facts there, including the status of petitioners as enemy combatants, was undisputed:

"The following facts appear from the petitions or are stipulated. Except as noted they are undisputed.

All the petitioners were born in Germany; all have lived in the United States. All returned to Germany between 1933 and 1941. All except petitioner Haupt are admittedly citizens of the German Reich, with which the United States is at war. [Court concludes Haupt's citizenship is irrelevant to the issue] After the declaration of war between the United States and the German Reich, petitioners received training at a sabotage school near Berlin, Germany, where they were instructed in the use of explosives and in methods of secret writing. Thereafter petitioners, with a German citizen, Dasch, proceeded from Germany to a seaport in Occupied France, where petitioners Burger, Heinck and Quirin, together with Dasch, boarded a German submarine which proceeded across the Atlantic to Amagansett Beach on Long Island, New York. The four were there landed from the submarine in the hours of darkness, on or about June 13, 1942, carrying with them a supply of explosives, fuses and incendiary and timing devices. While landing they wore German Marine Infantry uniforms or parts of uniforms. Immediately after landing they buried their uniforms and the other articles mentioned and proceeded in civilian dress to New York City."

In light of these stipulated facts, the Court described the issue as follows:

"The question for decision is whether the detention of petitioners by respondent for trial by Military Commission, appointed by Order of the President of July 2, 1942, on charges preferred against them purporting to set out their violations of the law of war and of the Articles of War, is in conformity to the laws and Constitution of the United States."

In contrast, current cases like that of al-Marri raise the issue which was stipulated in Quirin, namely whether he is an enemy combatant at all. What he's seeking, among other things, is a hearing to determine that status rather than simply submitting to Presidential designation and indefinite detention by reason of that Presidential designation. Quirin is not precedent on that issue.

Again, I'm omitting the debate on when and whether the writ can be suspended.
 

HLS: I specifically said I was trying to figure out the contours of the debate by getting agreement on a few statements -- to properly define the debate.

And I specifically said it doesn't matter if your question is ignorant or disingenuous, it's still the wrong question and not truly relevant to the issue at hand. The issue at hand is not Bart's comment to the professor, it's the professor's post. And the professor's post is about the overreach of MCA, about the failure of this legislation, the current administration and its supporters to take into account how expedient methods for pursuing wrongdoers puts honest citizens and visitors in grave peril. You question is simply off point.

But thanks for reminding me why I killfiled you. I only wish that worked in this post-a-comment page. I'll do my best to simply ignore you hereafter.
 

Anne: confusing having an arne and an anne around...

B^) But worth the extra effort, truly. I'd be disappointed if either of ya disappeared.
 

Bart:

2) The Stuart kings imposed indefinite imprisonment. Alien enemy combatants are detained for the duration of the conflict.

Since, as you have commented in the past, this conflict promises to be multi-generational, this distinction is meaningless.
 

Humble Law Student:

From what I understand, the President has the authority to make those determinations [i.e., who is an unlawful enemy combatant]. Typically, they use military commissions. But, I don't think there is any statutory or Constitutional requirement that he establish a military commission for that purpose and delegate his authority to that commission.

You appear to be saying that the President may uniltarally decide who is an unlawful enemy combatant and that any type of adversarial procedure to determine status is strictly optional. In the case of al-Marri, that means life imprisonment on the President's say-so. The German spies, as I understand it, were executed. Does this mean that even executions can take place on the President's unilateral say-so?
 

BP:"2) The Stuart kings imposed indefinite imprisonment. Alien enemy combatants are detained for the duration of the conflict."

The war on terror will continue for as long as there are terrorists. Foreign or domestic, I would presume. Practically, that will be indefinite.
 

Enlightened Layperson said...

Bart: 2) The Stuart kings imposed indefinite imprisonment. Alien enemy combatants are detained for the duration of the conflict.

Since, as you have commented in the past, this conflict promises to be multi-generational, this distinction is meaningless.


Given that habeas review is focused on the actions of the detaining party, the distinction is critical.

The United States is detaining these enemy combatants for the duration of the conflict, not for an unlimited period of time.

The duration of the conflict is determined by the enemy attacking us. When they stop, we free their personnel.
 

BP:"The duration of the conflict is determined by the enemy attacking us. When they stop, we free their personnel."

Which enemy is that, exactly (as in which terrorists group)? If its just any terrorist organization, then doesn't that imply the conflict will last until there are no terrorists left anywhere?

Also, isn't it likely to be true that once a terrorist, always a terrorist? And since modern technology allows one person to inflict much damage, the release of any terrorists would constitute a threat, since that person could obtain and release, for example, a biological agent and inflict considerable harm. They wouldn't even really need to be on US soil, or have any support from any terrorist group.

Please elaborate on under what circumstances you see the conflict ending.
 

Robert,

Oh seriously, I love how you debate. First, you start off generally saying (in various posts) that anyone with my or Bart's perspective isn't trying to argue for the merits of seeking truth. You say, as such, we aren't entitled to any respect and you won't argue in good faith because we don't deserve it.

While Bart (and myself) may argue questionable propositions at times, you engage in school yard behavior by constant ad hominem attacks mostly on him. But, according to your perspective, it doesn't matter, because of our positions. Notably, I think he rarely if ever engages in such personal attacks back.

With me, you may disagree, but nothing I argue is purposefully disengenuous or out of the main stream. Yet, you still seek to ignore me as not worthy of argument.

Your posts "explaining" how our side argues and explaing your "method of response" is not but at attempt to dehumanize your opponent.

Here's something else that is interesting. You say, people on our side don't merit good faith argument, because we aren't making good faith arguments. Well, what if maybe, just maybe you are wrong about that? You are then engaging in the exact behavior you accuse my side of -- without even a proper justification!

All the while, in every few posts, you make vague (and sometimes not so vague) references to the great PNAC conspiracy -- of course without ever really explaining it. But, then what good conspiracy could be explained?

I think you are smart and potentially a good person to discuss issues you with, but you are becoming increasily bizarre. I'd recommend reading through the psots you have made. Forget the arguments that you make and the one's in response to yours. Just look at how you treat those you disagree with -- especially Bart. What sort of liberal engages in such behavior? Where's the tolerance? Where's the love? (Oh, that's right, we are conservatives, so we aren't entitle to any).

I'm not saying my behavior has been perfect. I do use improper language at times, and for I apoligize, but seriously, for your sake, my own, and for the sake of social debate as Americans, can't you at least pretend your opponents merit some respect?
 

Mark,

From Quirin: "Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses. "

The Court then goes on to explaing that the Executive branch, through the statutorily established commissions, had the authority to make that determination. (Unfortunately, they don't say that in a short neat sentence, but the explanation is spread out of several paragraphs after the portion I quoted.) So, the court does say the executive branch is tasked with making that determination. Though the court does later on say, that it doesn't reach the question over whether the President could have established such commissions without statutory approval.

But, I do think you are right that Quirin provides very little insight into the current case. I'm glad you took the time to pick it apart with me. From more cursory readings, I had thought it did.

Is there a case you think is more directly relevant?
 

HLS: I'm not saying my behavior has been perfect.

Stop the presses. I apologize. To you, not to Bart, with whom I have an entirely different co-existence. If you want to have a go at rapprochement I'm game. I find a little out-of-the-ring contact goes a long way toward such ends. Drop me a friendly line to my private email (it's available via my profile) and I'll be glad to hammer out a mutual respect, or at least a separate peace.

btw, PNAC isn't a conspiracy. It's an openly managed pursuit of plans which just happen to fit long standing, well documented, business strategies of Bechtel and Halliburton. PNAC is the PR arm of the joint affair. And many folks, even within PNAC may truly believe the fine rhetoric offered on their site. That doesn't however, change the economic realities behind the Project, nor really justify the philosophy of unilateral meddling in the affairs of sovereign nations. You might take a look at the signatories on that statement of principles and check how many were/are key players with the two companies mentioned.

Peace.
 

"Bart" DePalma fires, then aims:

The United States is detaining these enemy combatants for the duration of the conflict, not for an unlimited period of time.

The duration of the conflict is determined by the enemy attacking us. When they stop, we free their personnel.


So the U.S. wins a (conventional) war, the enemy stops fighting, the U.S. occupies the country ... yeah, like Iraq, I guess ... and then, according to "Bart", the U.S. is going to free the POWs while the occupation continues.

Right.

Just one more piece of gibberish from "Bart" DePalma, Esq. Must be easy having such a simple mind.

Cheers,
 

humblelawstudent:

From Quirin: "Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses."

The Court then goes on to explaing that the Executive branch, through the statutorily established commissions, had the authority to make that determination. (Unfortunately, they don't say that in a short neat sentence, but the explanation is spread out of several paragraphs after the portion I quoted.) So, the court does say the executive branch is tasked with making that determination. Though the court does later on say, that it doesn't reach the question over whether the President could have established such commissions without statutory approval.


Almost right. There is no "determination" here; certainly not of the question of whether someone is an "enemy combatant". The question is whether the President may try the accused by miltary commission or whether the civil courts should have jurisdiction to hear the case (which is what the Quirin petitioners were seeking).

The "determination" here was by the legislature, who, in enacting the Articles of War and such, specified that certain crimes (of which these accused were charged) were triable by military commission:

"But the Articles also recognize the 'military commission' appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by court martial. See Arts. 12, 15. Articles 38 and 46 authorize the President, with certain limitations, to prescribe the procedure for military commissions. Articles 81 and 82 authorize trial, either by court martial or military commission, of those charged with relieving, harboring or corresponding with the enemy and those charged with spying."

Ex Parte Quirin, 317 U.S. 1, 27 (1942)

Thus the court found; these crimes may be tried by miltary commission.

They elabourate:

"Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. And the President, as Commander in Chief, by his Proclamation in time of war his invoked that law. By his Order creating the present Commission he has undertaken to exercise the authority conferred upon him by Congress, and also such authority as the Constitution itself gives the Commander in Chief, to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war."

Id at 28.

I note that the first complaint of the Quirin petitioners was essentially that such commissions were not Constitutionally sound; that they violated the Fifth and Sixth Amendment (their alternative complaint was that the manner of constituting and conducting such commissions was contrary to the statutory law, a view also rejected by the court).

Let me emphasize that the presidential Proclamation was that certain crimes "shall be subject to the law of war and to the jurisdiction of military tribunals". It was not a proclamation that these specific defendants would be so tried, nor that they were "illegal enemy combatants".

[humblelawstudent]: From Quirin:
"We are concerned only with the question whether it is within the constitutional power of the national government to place petitioners upon trial before a military commission for the offenses with which they are charged."

Quirin did hinge on those distinctions....


Not the distinction of whether they were "illegal enemy combatants" or even "enemy combatants". See above. It hinged on whether they were triable by military commission by dint of having been charged with certain offences. There was, and is, no "offence" of "illegal enemy combatant".

... Now, the exact question presented that the court addressed was over the constitutionality of the executive's determination, but the importance of the distinctions can't be underestimated. The whole case rises and falls upon these distinctions once properly made by the executive.

Ummmm, nope. I don't know where you get that.

Getting to the main thrust of your argument, HLS:

First, I never said the term "unlawful enemy combatant" was specifically in the Geneva conventions. But, the Conventions do implicitly recognize the difference between the two. For example, look at the explanations of the protections for those who follow the requirements to be considered a POW vs. those who don't follow the requirements and the laws of war.

No. The Geneva Conventions distinguish between priaoners of war (covered in the Third Geneva Convention) and civilians (covered in the Fourth Geneva Convention). You are either one or the other. See the link with the commentaries that I gave you above. Prisoners of war are afforded more rights than are civilians (see, e.g. 3rd Convention, Articles 17, 39, 44, 45, 60, and 82 et seq.). If there's a question of which group one belongs to, the presumption should be a prisoner of war (Article 5) until a competent tribunal finds otherwise. Keep in mind that such a determination is just to determine which of two bins to put the person, "POW" or "civilian". The Fourth Geneva Convention covers those not eligible for POW status, including those "engaged in activities hostile to the security of the [holding] State" and "person[s] [] detained as a spy or saboteur".

Both the Third and Fourth Geneva Conventions provide for the prosecution of crimes committed by the detainees (albeit with restrictions; see, e.g., 4th Convention, Article 68). There's no Fifth Geneva Convention Relative to the Treatment of Unlawful Enemy Combatants.

What would make one an "unlawful enemy combatant" would be someone who is not afforded POW status by the rules of the Third Geneva Convention (i.e. a "civilian") who has committed a crime. But the more accurate appellation here (seeing as "unlawful enemy combatant" is not to be found in the Geneva Conventions) would be "non-POW criminal". I'd note, FWIW that the Third Geneva Convention specifies that POWs must be "tried only by a military court" unless the laws of the occupying power specify that their own service members may be tried for that offence in civilian courts (an interesting flip from the Quirin petitioners' request).

So, you are right the exact term isn't in there, but (A) I never said it was, and (B) it is pretty clear that is a distinction between lawful and unlawful combatants in the Conventions.

No. See above. The distinction is between POWS and civilians.

Your attempt at parsing Quirin doesn't make much sense. The quotes you use actually support my position....

No. I pointed out quite accurately that the Quirin court decided on the basis that the specific offences were specified as triable by military commission. Not that the specific defendants were triable as such by dint of some status they had separate from the crimes they were charged with.

... Because they violated the statutes and the LAWS OF WAR (espionage and possibly sabotage out of uniform and behind enemy lines), they were unlawful enemy combatants.

No. Because they violated the statutes and the Laws of War, they were triable by military commission, as the Articles of War passed by Congress specified.

... If they had been lawful enemy combatants they could not have been tried for what they did, because they would have been POWs....

False. There's certain offences (e.g. against property; see 3rd Convention, Article 93) that couldn't be punished, but that wouldn't have been an issue in the case at bar had the Geneva Conventions been in effect then. But there would be nothing to prevent a POW from being tried for murder, rape, or even sabotage, provided that such was also a crime if committed by a member of the occupying army.

... So, the determination of them being unlawful enemy combatants was KEY. It determined whether they could be put death instead of just thrown in a POW camp.

Only insofar as being an "unlawful enemy combatant" was an element of the specific crime charged.

Cheers,
 

Is there a case you think is more directly relevant?

Depends on how you define the issue. If the issue is "indefinite detention", I don't know of any recent cases. The issue last arose in the 17th C with the Stuart kings (Charles I and II). I don't know of any claim since then to hold someone indefinitely except in cases where the writ of habeas corpus has been suspended (e.g., Ex Parte Zimmerman, 132 F. 2d 442 (9th Cir. 1942)).

If the issue is the scope and authority of military commissions, you might want to look at this book. It gives a pretty complete history of the US experience with commissions through Hamdi. Also of considerable interest are the arguments of counsel in Milligan. They are available on Westlaw.
 

Arne,

Thanks for the good post. I acquiesce in general on the Quirin case. Mark and to an extent you are correct that it doesn't speak exactly to the argument I was trying to make.

That said, (painfully), I can happily say that you are completely incorrect on your interpretations of the Geneva Conventions, and I'll spend some time responding tomorrow to that effect. I'm sure you can't wait.
 

@humblelawstudent: Would you please stop compare yourself with Bart? Bart is more or less a troll (altough a sophisticated one) who doens't really the debate on the merits. You do and I thank you for that.
 

@humblelaswstudent: so we agree on the basics. A president and congress have warpowers. They shouldn't use these powers unless there is a war.

You say congress cannot declare a war without an enemy although it might authorise the use of force.

Let's suppose that Congress and the President legally cannot start a war "without an enemy" ie cannot start a war on drugs (you said "should not" I added "legally cannot"). If we take this assumption there is a scale between a legal war (for example WOII) and un illegal war (hypo: war on drugs). Now we would have to find where the war on terror would fit in.

Personally I would argue that the war on terror is like the war on drugs. There is not one clear enemy (there is a combination of enemies we call terrorists) let allone a state to wage war on. There is not a clear battlefield because the "enemy" is not one actor but a bundle of actors. I would say that war on terror is remarkably similar to the war on drugs. The only constant factor is the U.S.'s use of force.

On our hypothetical scale between a legal and a illegal war the war on terror would as close to the war on drugs (the predefined illegal war) as a war could be.

This is not to say that the use of force against terrorists is or should be illegal. I would say that there is a struggle (to avoid the use of the word war) against terrorism. Certain battles in this struggles could be considered legal wars on the hypothetical scales, other battles we are fighting because we were asked to help by a governemt.

In Afghanistan and in Iraq there were wars. We attacked and invaded another State and took away their sovereignty. Both ended being wars when the soverignty was transferred back to the newly installed governments. From that time on there is no longer a war, but the US is asssisting sovereign governments in more or less internal strifes.

In the same sense we cannot say that the US fought a war against communism. The us fought wars in Vietnam and Korea (we can argue about the last one because there was somewhat of an invitation), but not against "communism".

As soon as we take the "war" out of the war against terrorism the whole use of the war powers collapses.
 

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