Balkinization  

Wednesday, June 17, 2009

Padilla v. Yoo

Brian Tamanaha

Judge Jeffrey White's recent decision (available here) allowing Jose Padilla's lawsuit against John Yoo to continue has several remarkable findings. White was appointed by President George W. Bush, so it's safe to assume that he is not a flaming liberal.

Padilla is bringing a Bivens suit against Yoo for authorizing extremely harsh treatment of Padilla in violation of his constitutional rights. (Padilla is seeking a declaration that his rights were violated, and he requests damages in the amount of 1 dollar.) Bivens suits are quite difficult for plaintiffs, with a number of presumptions operating against them.

Judge White found that it appears unlikely that Yoo will be held accountable in any other forum (noting that criminal charges are unlikely). Accordingly, in the absence of any other sanction, "litigation may be necessary to ensure that officials comply with the law." Here is Judge White's tart dismissal of Yoo's attempt to create a legal shield for others and for himself:
Yoo also advocates that this Court should abstain from adjudication because the Court should leave review of his legal memoranda and the conduct which followed to the coordinate branches of government based on substantive areas of law raised by the memoranda. The Court notes the irony of this position: essentially, the allegations of the complaint are that Yoo drafted legal cover to shield review of the conduct of federal officials who allegedly deprived Padilla of his constitutional rights. Now, Yoo argues that the very drafting itself should be shielded from judicial review. Padilla’s allegations here are that the creation of such legal cover was itself an unconstitutional exercise of power.
Judge White then proceeds to knock down every argument Yoo raises in support of dismissing the suit, from deference to the executive to the protection of state secrets.

As is standard practice in a motion to dismiss, Judge White's ruling accepts Padilla's allegations as true. Thus his conclusions are not necessarily an indication of success on the merits of the case (and no doubt appeals will follow). However, many of Padilla's allegations appear to have strong factual support (referring extensively to released DOJ memos written by Yoo), including a number of passages taken from Yoo's own book acknowledging his pivotal role in these affairs (beware the temptations of celebrity).

The most striking of Judge White's findings is his dismissal of Yoo's qualified immunity claim. Government officials are protected "from liability for civil damages insofar as their conduct does not violate any clearly established statutory rights of which a reasonable person would have known." The "clearly established" requirement extends significant protection to government officials.

Yoo argues that he is entitled to immunity because the situation was unique and there was no prior judicial determination indicating that such treatment of prisoners violated their constitutional rights.

White would have none of it. He concluded that the allegations make out a causal connection between Yoo's actions and the harsh treatment Padilla was subjected to ("Padilla has alleged sufficient facts to satisfy the requirement that Yoo set in motion a series of events that resulted in the deprivation of Padilla's constitutional rights.").

And White concluded that the conduct Yoo authorized involved a violation of "clearly established" constitutional rights:
The Court finds that the complaint alleges conduct that would be unconstitutional if directed at any detainee, and therefore finds that the rights allegedly violated were clearly established at the time of the alleged conduct. Hydrick, 500 F.3d at 1001; see also United States v. Lanier, 520 U.S. 259, 271 (1997) (“There has never been a ... case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages.”) (internal citation and quotation marks omitted).

The Court finds that Padilla alleges a violation of his constitutional rights which were clearly established at the time of the conduct....Therefore, Yoo is not entitled to qualified immunity.
This finding, which entails the conclusion that a reasonable lawyer in Yoo's position should have known that he was authorizing a violation of Padilla's constitutional rights, squarely condemns Yoo (assuming the allegations are proven).

There is no way to dress this up.

Comments:

Brian:

This is a motion to dismiss completely restricted to the allegations made in the complaint, which alleges contrary to or without evidence that Padilla was not an al Qaeda enemy combatant (which removes him from the jurisdiction of the law of war) and Yoo was engaged in a conspiracy to set policy to torture folks like Padilla.

I saw nothing remarkable about the opinion. It is next to impossible to win a motion to dismiss unless the plaintiff's attorney is alleging a cause of action contrary to law or has failed to state a cause of action.

The real tests will come during discovery when the military denies Padilla's attorneys access to classified materials and later during summary judgment when there is no evidence Yoo set policy. It will also be interesting to see whether the court finds Padilla's status as an al Qaeda to be a disputed fact after his conviction.
 

Bart,

Judge White's ruling against immunity is based solely on Yoo's role in bringing about harsh treatment. Those allegations appear to be well supported (Yoo boasted about his important role in Padilla's treatment).

The key point, again, is White's finding that a reasonable lawyer in Yoo's position would have known that he was authorizing unconstitutional treatment.

Frankly, I agree with you that this finding is "unremarkable"--indeed it is an obvious conclusion. But so much smoke has been blown by defenders of these actions that it's nice to see a judge clearly stating the obvious.

Again, the allegations about how Padilla was treated must still be proven, but I don't think that will be too difficult.

Brian
 

Shorter Bart: "Sure, Yoo may have rendered a civil rights-denying opinion, but the government didn't have to use it."

Translate this concept into the realm of murder weapons and we see how flimsy the argument is that Yoo has no responsibility here. But hey, you can still pin your desires on the withholding of evidence.
 

"The key point, again, is White's finding that a reasonable lawyer in Yoo's position would have known that he was authorizing unconstitutional treatment."

It is not just that Padilla must still prove he was treated unconstitutionally. He must still prove that something Yoo wrote or did had an effect on his treatment. The only uncontested fact is that Yoo wrote some documents that on their face appear to have nothing to do with Padilla. Yoo may also have participated in the decision to classify Padilla as an enemy combatant, but that classification was upheld by the Fourth Circuit.

White did not find, as you state twice, that Yoo authorized unconstitutional treatment. At best you might say that if Padilla's treatment were proven to be unconstitutional, and if Yoo were proven to have authorized it, then assuming both of these as yet unproven facts, Yoo could not claim that a reasonable lawyer would have been unaware of their illegality.

Brian, if you robbed a bank then I think we can agree that a reasonable lawyer like you would not have been unaware that such an act is illegal. That doesn't make you a bank robber.
 

Eric:

"[Yoo's] legal opinions, with the exception
of one specifically referring to Padilla, apply to the detention and interrogation of persons
captured or detained by the U.S. Armed Forces outside of the United States.

The Yoo opinion applying to Padilla is in "a memorandum dated October 23, 2001 from Yoo to White House Counsel Alberto R. Gonzales (“Gonzales”) and Department of Defense General Counsel William J. Haynes (“Haynes”) on the Authority for Use of Military Force to Combat
Terrorist Activities Within the United States, which concluded, among other things, that “the Fourth Amendment does not apply to domestic military operations designed to deter and prevent further terrorist attacks,” and concluded that just as “wartime destruction of property does not involve a ‘taking’ under the Fifth Amendment, it seems safe to conclude that the Court would not apply the Fourth Amendment to domestic military operations against foreign terrorists..."

This is almost certainly a correct reading of the law. The Fourth Amendment search and seizure provisions have never been extended to wartime enemies inside the United States regardless of whether they were citizens (Civil War), foreign enemy combatants (British) or somewhere in between (American Indians).

The Court took pains to state that it was bound by the facts alleged by the complaint and could not dismiss based upon the memos, which are evidence outside the complaint. (p. 31-34)

Once we get to summary judgment, the court can consider the fact that Yoo's memos generally do not apply to Padilla, did not recommend a course of policy and were correct when applied to Padilla.
 

Howard,

I make clear in the post that White's ruling assumes the truth of Padilla's allegation, and my comments are premised upon said assumption. Given that, your comments are correct, and I did not mean to suggest otherwise.

Nevertheless, I think it is also fair to say that many of Padilla's key allegations about how he was treated (shackled, sensory deprivation, etc.) are not really contested--and this (alleged) treatment is what Judge White considered unconstitutional.

If Yoo denied that Padilla was treated in this fashion, that would be a different story.

As for Yoo's role in this treatment, Judge White focuses in a very specific fashion on the causal connection between Yoo's conduct and Padilla's harsh treatment. Again, his analysis on this point is based upon allegations in the Complaint, but it is worth noting that a number of the crucial allegations were quoted from Yoo's own book.

Brian
 

Does what our resident LLB* states here:

"Once we get to summary judgment, the court can consider the fact that Yoo's memos generally do not apply to Padilla, did not recommend a course of policy and were correct when applied to Padilla."

suggest such facts actually exist or that such may be established as facts in the summary judgment process? Is it a fact that Yoo's memos (a) generally do not apply to Padilla, (b) did not recommend a course of policy and (c) were correct when applied to Padilla?

*Little Lisa's bro
 

Brian Tamanaha said...

Nevertheless, I think it is also fair to say that many of Padilla's key allegations about how he was treated (shackled, sensory deprivation, etc.) are not really contested--and this (alleged) treatment is what Judge White considered unconstitutional.

Yoo did not file an answer, but rater a motion to dismiss. The answer will deny all such allegations.

This issue was already raised by Padilla in a motion to dismiss his criminal charges, was completely denied by the military and not accepted by the criminal court judge in the motion to dismiss.

Apart from Padilla's own claims through attorneys, there is no evidence to support these charges. Padilla enjoyed a right to silence during the criminal case and avoided cross. As a civil plaintiff, Padilla is facing a lengthy and thorough cross. Yoo's attorneys should have a field day with this gang banger al Qaeda.
 

Shag:

Is it a fact that Yoo's memos (a) generally do not apply to Padilla, (b) did not recommend a course of policy and (c) were correct when applied to Padilla?

The memos are available for you to read.

a) Memos concerning foreign enemy combatants captured and held overseas by definition do not apply to an American al Qaeda captured in the United States.

b) The Yoo "torture memo" expressly declined to make any policy recommendations.

c) You are free to offer any precedent for applying the 4th Amendment to US citizens being detained as enemy combatants for a foreign enemy during a war.
 

Three things are important to point out in Judge White's decision. First, he affirms that the AUMF does not authorize behavior regarding designation and detention of enemy combatants. Second, he reaffirms that holding combatants for duration of conflict is permissible only to prevent their return to the field of battle. Third, he knocks down the popularly mouthed idea (Jack Goldsmith, Antonio Scalia) that because the 8th amendment says "punishment", that you can do whatever you like to a prisoner before they are convicted in court.

For these alone this decision would have been worth it. Hopefully the case will produce a judgment against Yoo, and get the ball rolling.
 

So Bart, are you arguing that a person who is broken by torture and later reveals information incriminating himself is unaffected by the torture? Under CAT no information derived from torture may be used in any proceeding except to try the torturer.
 

c) You are free to offer any precedent for applying the 4th Amendment to US citizens being detained as enemy combatants for a foreign enemy during a war.BDP.

You are free to offer any rationale you like for how someone arrested in an airport in Chicago is an enemy combatant under international humanitarian law at all. Chicago is neither a battlefield, nor was Padilla en route to a battlefield, nor was he in any way carrying a weapon or direct logistical support for a current operation on a battlefield.

Under the circumstances, have fun with the Article 5 stuff, because it's rather obvious from the complaint that he was neither given the rights of a prisoner of war, nor of a protected civilian, even though no status hearing was held, and no court of law or court martial reviewed his status before his trial as required under Geneva.

Oh, and by the way, it really was John Yoo who wrote the executive orders, signed by George W. Bush, that declared the fighters in Afghanistan to be beyond Geneva, in direct contravention of the fact that the Geneva Conventions do not allow any such collective designations of prisoner status. That all by itself makes the lawsuit viable, if not here, in any other High Party's jurisdiction, because depriving someone of their rights to process is a grave breach. The fact that he alleges torture is grounds, under CAT and Geneva, for John Yoo to await a criminal trial in jail (CAT requires allegations of torture to be treated by first taking the alleged perpetrator into custody, then informing all parties with an interest (countries)).
 

passages taken from Yoo's own book acknowledging his pivotal role

"If I did it, this is how I would have done it"

Wouldn't it be fun if they shared a cell!

"What are you in for?"
 

ondelette said...

So Bart, are you arguing that a person who is broken by torture and later reveals information incriminating himself is unaffected by the torture? Under CAT no information derived from torture may be used in any proceeding except to try the torturer.

No. I think you are confusing search and seizure with the right against self incrimination. The government never offered any evidence against Padilla derived from military interrogation. The 5th Amendment claim was the only item which the court dismissed.

I am referring to the government's power to detain Padilla as an enemy combatant for the duration of the war with al Qaeda. The 4th Amendment search and seizure provisions do not apply to detaining enemy combatants during a war.

BTW, an enemy does not have to be captured on an active battlefield to be detained as a prisoner of war. The status of the capture rather than the location of capture is determinative. We have interned thousands of foreign enemy civilians and combatants found in the United States for the duration of past wars even though they were thousands of miles from any active battlefield. If Robert E. Lee was captured at a Chicago train station during the Civil War, he would most certainly have been sent to a POW camp without recourse to the 4th Amendment.
 

"Chicago is neither a battlefield, nor was Padilla en route to a battlefield, nor was he in any way carrying a weapon"

Sixty years (give or take a few weeks) before Padilla was captured, Huber Haupt was also captured in Chicago. He was living in his parent's house at the time of capture, but was placed in military custody, given a military trial, and executed. The Supreme Court approved this in ex parte Quirin:

"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,"

"entry upon our territory [317 U.S. 1, 37] in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States."

"Citizens who associate themselves with the military arm of the enemy government, and with its aid, [317 U.S. 1, 38] guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war."

Haupt travelled to German and enlisted in the German army. He volunteered for a special operations unit, and returned to the US on a submarine, paddled ashore, dressed in civilian clothes, and travelled to Chicago on a military mission to blow up factories.

Padilla traveled to Afghanistan and on July 24, 2000 he enlisted in the Afghan army. He volunteered for a special operations unit and under the command of KSM, the man who conceived, planned, and commanded the 9/11 attack, he returned to the US on a commercial jet in civilian clothes on a mission to blow up apartment buildings.

Padilla was taken into custody on a material witness warrant because in Dec, 2001 a truckload of abandoned enemy military personnel files happened to fall into US hands, and his file was on the truck. He was not immediately put in military custody because he appeared to be a civilian, a former enemy soldier who had left military service, and a civilian cannot be held in military custody. However, when questioned by the FBI he revealed that he was an active duty soldier whose trip to the US was a military mission. He was even traveling on a ticket paid for out of military operating funds given to him by his commander for the purpose of the mission.

The Fourth Circuit decision in Padilla v Hanft covers all this, quotes Quirin, and mentions the prior case of Haupt. The nature of spies and saboteurs is that they are not on a battlefield and they do not carry weapons. Nathan Hale (1776) and Major Andre (1780) were captured far from the battlefield and unarmed, yet each was held in military custody and hung (after a military trial) by the British and by George Washington respectively.
 

I would refer interested parties to Scalia's dissent in Hamdi v. Rumsfeld, most notably the discussion of Ex Parte Quirin.
 

This finding, which entails the conclusion that a reasonable lawyer in Yoo's position should have known that he was authorizing a violation of Padilla's constitutional rights, squarely condemns Yoo (assuming the allegations are proven).

There is no way to dress this up.

********

Sorry, but as a litigator I find the quoted passages not to be coherent. There's "no way to dress up" what are conceded to be mere plaintiff's allegations? Who's needs to "dress them up"? Who's even trying to "dress up" plaintiff's allegations?

My sense, fwiw, is that notwithstanding the ruling on the pleadings, summary judgment will be a much harder test, especially as to causation. (Even on the liability issue, isn't it true that when the memos were written Quirin was a unanimous SCOTUS decision and the recent courts hadn't ruled on anything?) It's also my sense that people who litigate for a living tend to put more emphasis on the practical differences between rules 12 and 56.
 

This blog has important content to know
 

It is next to impossible to win a motion to dismiss unless the plaintiff's attorney is alleging a cause of action contrary to law or has failed to state a cause of action.

Tell that to Javaid Iqbal.
 

i think scott horton gets right to the heart matter when he writes,

-

“government lawyers are responsible for the foreseeable consequences of their conduct.” It was a clearly foreseeable consequence of John Yoo’s malicious memo writing that individuals in government custody would be tortured, subjected to cruel, inhuman, and degrading conduct, and that some of them would die or suffer lifelong impairment as a result. If John Yoo suffers no more than a civil suit as a result, he’s gotten off very lightly indeed. Lawyers in the same position before him were sent to prison for doing just what he did.

-

was yoo simply stating the law or was he, as has been discussed ad nauseum here and elsewhere, providing legal cover for torture already committed and get out of jail cards for future and past torturers?

as brian notes, Yoos own book provides abundant evidence it was the latter.

and we can dispense with the fallacy that because Yoo does not name Padilla specifically that is somehow relevant.

somehow i doubt that had even General Robert E. Lee fallen into Union hands he would have been subjected to;

In an effort to gain Mr. Padilla’s “dependency and trust,” he was tortured for nearly the entire three years and eight months of his unlawful detention. The torture took myriad forms, each designed to cause pain, anguish, depression and, ultimately, the loss of will to live. The base ingredient in Mr. Padilla’s torture was stark isolation for a substantial portion of his captivity. For nearly two years – from June 9, 2002 until March 2, 2004, when the Department of Defense permitted Mr. Padilla to have contact with his lawyers – Mr. Padilla was in complete isolation.

His isolation, furthermore, was aggravated by the efforts of his captors to maintain complete sensory deprivation. His tiny cell – nine feet by seven feet – had no view to the outside world. The door to his cell had a window, however, it was covered by a magnetic sticker, depriving Mr. Padilla of even a view into the hallway and adjacent common areas of his unit. He was not given a clock or a watch and for most of the time of his captivity, he was unaware whether it was day or night, or what time of year or day it was.

In addition to his extreme isolation, Mr. Padilla was also viciously deprived of sleep.

Mr. Padilla’s captors did not solely rely on the inhumane conditions of his living arrangements to deprive him of regular sleep. A number of ruses were employed to keep Mr. Padilla from getting necessary sleep and rest. One of the tactics his captors employed was the creation of loud noises near and around his cell to interrupt any rest Mr. Padilla could manage on his steel bunk.



Mr. Padilla was often put in stress positions for hours at a time. He would be shackled and manacled, with a belly chain, for hours in his cell. Noxious fumes would be introduced to his room causing his eyes and nose to run. The temperature of his cell would be manipulated, making his cell extremely cold for long stretches of time.

A substantial quantum of torture endured by Mr. Padilla came at the hands of his interrogators. In an effort to disorient Mr. Padilla, his captors would deceive him about his location and who his interrogators actually were. Mr. Padilla was threatened with being forcibly removed from the United States to another country, including U.S. Naval Base at Guantanamo Bay, Cuba, where he was threatened his fate would be even worse than in the Naval Brig. He was threatened with being cut with a knife and having alcohol poured on the wounds.
 

Garth:

1) As soon as you and Scott can provide any evidence at all to that prove your al Qaeda's allegations through attorneys, you be sure to let us know. Allegations are not now and never will be evidence, no matter how much they may serve your personal propaganda needs.

2) When Padilla finally testifies under oath and under cross examination during deposition, it will be fascinating to see to what degree his lies to his lawyer will match the lies he will give to the deposing attorneys. The lie that he is not an al Qaeda should be particularly amusing.

3) The treatment of civil war POWs make the al Qaeda's allegations appear like a walk in the park. Read something about Andersonville and the Union POW camps.

4) Why do you and Scott give automatic credence to the obvious propaganda of a convicted al Qaeda?
 

"One of the tactics his captors employed was the creation of loud noises near and around his cell to interrupt any rest Mr. Padilla could manage on his steel bunk." The writer has obviously never lived in a dorm room, or in an apartment with noisy neighbors, or near a highway, airport, or train track.

"His tiny cell – nine feet by seven feet – had no view to the outside world." However, Yoo was not an architect responsible for the design of the main Naval Brig in Charleston. Presumably the cell is the same size for all prisoners, including all the criminals who occupy other cells in the same building. If you measured sound levels in one of the other cells, might the noise at night be the same as Padilla experienced?

"Noxious fumes would be introduced to his room causing his eyes and nose to run." As the brig commander testified, the brig is in an industrial area of Charleston and when the wind blows from a certain direction evereyone in the brig (prisoners, guards, and the commander himself) have to put up with an industrial stink. Of course, if Yoo had designed the city of Charleston differently, this might not be a problem.

"The temperature of his cell would be manipulated, making his cell extremely cold for long stretches of time." One could point out that there is no actual evidence from anyone about manipulation, but the more pressing point is the fabulous foresight of Yoo as mechanical contractor building the brig to create the only large old prison facility in the world with individual thermostats for individual cells. I mean usually in such buildings (and my apartment building for that matter) there is only one big old steam system that is sometimes too hot and sometimes too cold. The only manipulation of temperature is something called "weather" and then everybody in the entire building gets the same shift in temperature.

"In an effort to disorient Mr. Padilla, his captors would deceive him about his location and who his interrogators actually were." Shocking!

You missed the complaint where Padilla alleges that he was injected with mind altering substances, but the brig commander testified under oath that he got the same flu shot everyone else got.

Padilla was detained by the professional staff of the main Navy prison and his treatment was videotaped 24 hours a day. There is a complete record of his detention. Not only is there no evidence of actual torture, there is no evidence that many of the things he complains about were different for him than they were for all the criminals in other cells in other parts of the same building.
 

"Padilla was detained by the professional staff of the main Navy prison and his treatment was videotaped 24 hours a day."

And all the video will be made available in connection with the litigation?
 

Bart, could you please nix the personal attacks? It's been nice without the usual suspects and personally I'd rather you not continue in their tradition.
 

The video recordings were all cataloged and the inventory was presented to the defense in the criminal trial in Miami. However, none were actually requested or introduced in that case. They can be subpoenaed of course by either side in the current case.

One disk (I believe they are DVDs) is missing. It is in the center of the period of detention and represents the very last interrogation of Padilla (at the point when the government decided he no longer had any information useful enough to bother to ask any more questions, and also when his case is before the Supreme Court first time around). Nobody has been able to find that one disk.

It may also be true, but has never been confirmed, that the original month of interrogation by the FBI in NYC was taped. What Padilla said then provided the legal basis for classifying him as a enemy combatant in the first place, and since that has become an issue in the complaint those tapes might also be introduced.
 

"BTW, an enemy does not have to be captured on an active battlefield to be detained as a prisoner of war. The status of the capture rather than the location of capture is determinative. We have interned thousands of foreign enemy civilians and combatants found in the United States for the duration of past wars even though they were thousands of miles from any active battlefield. If Robert E. Lee was captured at a Chicago train station during the Civil War, he would most certainly have been sent to a POW camp without recourse to the 4th Amendment."

Excuse me, both Bart and Howard, quoting examples from prior to the 1951 entry into force of the 1949 Geneva Conventions will get you nowhere. The Civil War is in advance of all generally accepted codified international humanitarian law. The Second World War is in advance of quite a few IHL treaties which are applicable.

Yes, indeed, the person needs to be proven to be a combatant, on a case-by-case basis, and needs to be taken on the battlefield for many of the tests of protected status to apply. Yes indeed, the person needs multiple court proceedings under Geneva to be tried of war crimes. Yes indeed, a person accused of support, rather than actively engaging on the battlefield, needs to be proven to be directly and logisitically supporting on the way to or on the battlefield. Yes indeed, to hold someone for duration of conflict requires the judgment that they would return to the battlefield.
The Geneva Conventions apply to real armed conflicts, not the War on Poverty, not the War on Drugs, not the War on Terror.

As for civilian status, it is similar to prisoner of war status. A person defaults to protected in advance of a hearing to determine otherwise, and likewise also requires two court proceedings for a trial. And in both cases, no one can define an entire class as ineligible for status, the treaties specifically mandate individual hearings.

Please see the recent decisions by Judges Bates and White. Please go read the conventions and the 1977 Additional Protocols. Please note that the examples you cite are not relevant once the dates for entry into force of said conventions and protocols have passed.
 

ondelette.

Obviously the case most directly on point here is Padilla v Hanft. Quoting from the currently controlling opinion of the Fourth Circuit:

"Like Haupt, Padilla associated with the military arm of the enemy, and with its aid, guidance, and direction entered this country bent on committing hostile acts on American soil. J.A. 22-23. Padilla thus falls within Quirin’s definition of enemy belligerent, as well as within the definition of the equivalent term accepted by the plurality in Hamdi."

"Given that Padilla qualifies as an enemy combatant under both the definition adopted by the Court in Quirin and the definition accepted by the controlling opinion in Hamdi, his military detention as an enemy combatant by the President is unquestionably
authorized by the AUMF as a fundamental incident to the President’s prosecution of the war against al Qaeda in Afghanistan."

Contrary to a widely held misunderstanding, the Third Geneva Convention does not define who can be held as an enemy combatant or prisoner of war. It defines the subset of those people who are given specific protection under its terms. Countries are encouraged to give POW status and protection to other combatants who do not qualify under Article 4. The Korean War is an example where the enemy was not entitled to protection under GC III but were treated as POWs anyway.

This mistake should be finally put to rest by the release earlier this month of the ICRC Interpretive Guidance on Direct Participation in Hostilities http://www.icrc.org/web/eng/siteeng0.nsf/html/direct-participation-ihl-feature-020609

The purpose of this document was to define when civilians directly participate in hostilities and can therefore be targeted by military force. The most interesting part, however, is the careful logical preliminary discussion about what it doesn't cover: the various forms of regular armed forces that are permanent enemy combatants and may be targeted at any time. Unambiguously, it points out that combatant status is not limited to the regular armies of recognized states, but also applies to the organized armed forces of non-state parties to a non-international conflict, even when those forces are not entitled to combatant privilege and will not be protected by the Third Geneva convention if captured.

Just as the Supreme Court in Quirin pointed out that the German saboteurs, including Haupt, were not protected by the then existing Geneva Convention on POWs, because unlawful belligerents (including spies) fall outside their protection, so it is true that today's courts can also say that saboteurs like Padilla and al Marri are still unlawful combatants no more protected by the '49 Geneva Conventions than Haupt was protected by the earlier Geneva Convention.

If Padilla had been an Afghan citizen, then even as a spy he would arguably be a "protected person" covered by the Fourth Geneva Convention. If he landed on the East Coast as an enemy soldier in uniform, part of a commando raid, then he would be protected by the Third Convention. However, as an American citizen in US jurisdiction wearing civilian clothes and pretending to be a civilian, he falls outside the scope of international law in general and IHL in particular. He is an American problem to be processed according to US law.

Now the one thing that is clear is that nobody in the State Department in any prior administration has ever accepted the claims of some IL scholars that the Geneva Conventions somehow abrogate all previous concepts under the laws of war. US law (as quoted by the Fourth Circuit) still regards Quirin as good law that has not been modified by subsequent treaties.

So the question is not what some IL scholars (particularly in Europe) like to claim about their theories of IHL, but rather in a case where it is absolutely clear that US law controls 100% and IL has no part in the outcome, how does US law define "enemy combatant". The Fourth Circuit regards Quirin as controlling US law, and it is unlikely this will change until the Supreme Court says it should.
 

I'm trying to imagine how it would feel if I were subjected to this:

"Padilla was detained by the professional staff of the main Navy prison and his treatment was videotaped 24 hours a day. There is a complete record of his detention. Not only is there no evidence of actual torture, there is no evidence that many of the things he complains about were different for him than they were for all the criminals in other cells in other parts of the same building."

How long a period did this videotaping involve? Were Padilla's detentions elsewhere than at the "main Naval prison" similarly videotaped? What goes through a person's mind if he is aware that his every movement is being videotaped over a long period of time? Did Padilla know he was being videotaped? If not, how might that have impacted his dealings with parties other than his keepers, e.g., his attorneys? (I am not aware of the extent of such other parties meeting with Padilla during his detentions at the main Naval prison and elsewhere.) And if yes, how did that impact his dealings with such parties, in particular his attorneys? And how might the videotaping have impacted Padilla's attorneys, whether they were aware or not? Were others in the main Naval prison similarly videotaped to determine whether Padilla's treatment was the same as for the others? And what was the extent of videotaping of other post-9/11 detainees whereever they were detained? Or was the videotaping of Padilla selective among post-9/11 detainees, and if so, why?

I think of what I do in the course of 24 hours every day and wonder how I would feel if my activities (or inactivities) were surveilled in this manner. Being detained is bad enough. Might being videotaped 24 hours a day around the clock for a long period of time be humiliating especially before a trial? Or is that the purpose?
 

Obviously the case most directly on point here is Padilla v Hanft. Quoting from the currently controlling opinion of the Fourth Circuit

And, similarly, obviously the conservative 4th Cir. could be wrong on various points. It also is not "controlling" anywhere else, obviously. This includes the DC circuit.

Hamdan (DC), Rasul (DC), Hamdi (4th) and BOUMEDIENE (DC) ALL involved the SC reversing more restrictive circuit opinions.

Some are upset that Padilla was left in place, in fact argue the gov't strategically acted to do so, since they argue it is wrong. Judge Luttig of the 4CA in fact went on record about the suspicions of the gov't motives.

"He is an American problem to be processed according to US law."

Well, that is the rub, I guess.
 

The only thing I would add to Howard's excellent response to ondelette misunderstandings of the law is that the 1977 Additional Protocols meant to extend GC III POW protections to terrorists disguised as civilians were signed by that moron Carter, but never ratified by the Senate and were since rejected by every subsequent President. In short, the 1977 Additional Protocols are not US law.
 

There were three people kept in a special section of the main Naval brig. Hamdi, Padilla, and al Marri. Al Marri is still there. These three were the only enemy combatants held on US soil. Presumably all three were subject to the same treatment, but only Padilla had lawyers in a criminal trial who obtained the records and inventory of the recordings. The ordinary Navy criminals held in other parts of the facility are treated in an ordinary manner.

Padilla was not being held "pre trial". He was a spy and saboteur being held as a common law prisoner of war. Had he been tried as a spy he would have been subject to Court Martial, but while the US had documents showing he enlisted in the enemy army, the only evidence that he was still on active duty when captured was his un-Mirandized statements which would not be admissible in a military trial any more than a civilian trial.

It should be obvious that unless Padilla was recorded 24x7x365, all sorts of people would make up all sorts of theories about how he was tortured and his statements were manufactured. Privacy is, unfortunately, something we cannot afford to give an enemy soldier in his situation. However, the Geneva Conventions would prohibit the public release of the tapes and although the Conventions don't apply to spies the US has followed it guidance in these cases. So the tapes exist only to document the detention for any subsequent court proceedings.
 

There seems to be a contradiction in this:

"Padilla was not being held pre trial. He was a spy and saboteur being held as a common law prisoner of war. Had he been tried as a spy he would have been subject to Court Martial, but while the US had documents showing he enlisted in the enemy army, the only evidence that he was still on active duty when captured was his un-Mirandized statements which would not be admissible in a military trial any more than a civilian trial."

Is it a fact that Padilla "was a spy and saboteur"? Is a trial required to establish this? If so, then "pre-trial" would seem to apply to his being held in detention, unless there was perhaps no intention to try him because of the state of the evidence available. Or was he not entitled to a trial?

Add this to a possible contradiction:

"So the tapes exist only to document the detention for any subsequent court proceedings."

I get the feeling that such court proceedings might not be ones initiated by the government. This could also be a "Catch-22". But what was so special about Padilla in comparison to those detained in Gitmo and other foreign locations post-9/11, assuming they were not similarly videotaped? Was it sensitivity that Padilla was a US citizen? Was it the Navy perhaps wanting to separate itself from the CIA on interrogation procedures? Perhaps there is a "hero" in the Navy that insisted upon the videotaping to make sure that everything was 'kosher."

And this might suggest:

"However, the Geneva Conventions would prohibit the public release of the tapes and although the Conventions don't apply to spies the US has followed it guidance in these cases."

that release of the tapes could demonstrate to the US public that the Navy did not torture Padilla. But such a release might then put the spotlight once again on the destroyed CIA videos.
 

If Padilla joined what the State Department (and maybe DOJ) regard as an irregular militia army that did not conform to Article 4 of GC III (unlawful combatants) then such a force may not be able to designate real spies.

The case of Captain Nathan Hale seems to prove the opposite. In 1776 the British regarded George Washington's irregular militia as the armed force of a non-state party to a non-international conflict. Yet the British military court convicted him of crossing lines without uniform. Citing this as precedent may be unpopular.

Quirin makes it clear that a spy can be held by the military and that trial is an option, not a requirement: "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"

The problem with a prosecution is that there is no evidence other than Padilla's un-Marandized statements. This, however, raises the very exotic point that the particular offense of "crossing lines without uniform" may not be a crime (but rather just a "military offense") and therefore may not fall within the clear language of the Fifth Amendment. There is a special rule that a spy cannot be charged with the offense if he completes his mission, passes back through lines to rejoin his army, and is then subsequent captured. There is no comparable "tag home plate and you are free" rule for any real crime.

The government exercised its discretion not to charge the offense. At that point, the question of whether Padilla was a soldier and an enemy combatant and a spy has nothing to do with guilt or innocence and does not require a trial. It may be an issue in the civil proceedings as an ordinary question of fact. In any of these contexts, his un-Marandized statements are clearly proof of the facts.

Why the tapes? Well, perhaps the Administration realized that some sleazy lawyers would cry "torture" and they wanted proof that no torture ever took place. I can't imagine what would ever give them such a poor opinion of lawyers.
 

where US law controls 100%

On July 6, 1955, the Senate made the Geneva Conventions part of US law.

On October 27, 1990, the Senate made the Convention Against Torture part of US law.

On April 30, 1994 President Clinton made the Torture Act part of US law.

If you want the argument "only US law counts" to fly, all we have to do is take those (and others) out of US law.

A big bonus of doing so is we'd no longer be such nauseating hypocrites, claiming to be part of the civilized world.
 

Is it a fact that Padilla "was a spy and saboteur"? Is a trial required to establish this?

Well, in theory, but it's easier to just assume it or take the government at its word when it accuses citizens of being traitors. Of course, the Constitution sets up safeguards (e.g., Art. III) in that regard.

As to what that requires, civil libertarians like Scalia apparently disagree with some here about the value of Quirin as applied to American citizens.

Padilla v. Rumsfeld could have provided a chance to give his stance some teeth, but he joined the bare majority to avoid the question on jurisdiction grounds. Stevens' dissent seems to me compelling, hindsight only more so, including this quote:

There is torture of mind as well as body; the will is as much affected by fear as by force. And there comes a point where this Court should not be ignorant as judges of what we know as men.

HG notes:

while the US had documents showing he enlisted in the enemy army, the only evidence that he was still on active duty when captured was his un-Mirandized statements which would not be admissible in a military trial any more than a civilian trial.

Seems like it might have been useful then to Mirandize him. Any evidence in violation could still have been used for intel purposes. OTOH, easier just to hold him indefinitely and let the SC punt, extending the time longer.

But, as I noted (and conservative judges like Luttig were led to believe), the government didn't appear to totally play fair and square. This includes ever changing public remarks about what the guy was guilty of. But, HG blandly speaks of the government's "discretion" as if there is no context at all.

When it finally decided to try the guy, years after capture, a civil trial led him to be "sentenced Tuesday to 17 years and four months on terrorism conspiracy charges that don’t mention those initial allegations."

Likewise, suspicious sorts here are not the only one concerned about his treatment. The U.S. district judge involved

agreed with defense lawyers that Padilla was subjected to “harsh conditions” and “extreme environmental stresses” while there

But, then again maybe it was all about "sleazy lawyers" alleging torture here. I have no idea really why everyone is so hard pressed to find fault with the Bush Administration's treatment of its detainees.

There clearly is no evidence to warrant such suspicion. Oh btw there might be a DVD missing of key moments. Something that happened in other cases too. Yawn.

Nothing to see here. Move along.
 

If the late Walt Kelly were around, I can just imagine his Pogo in the Okeefenokee Swamp commenting:

"We have met the sleazy lawyers and they is us."

By the Bybee, consider the tools the Feds have to attack lawyers who are truly sleazy, whether prosecutors, defense or just plain OLC lawyers, as noted in prior posts on this Blog.

Further By the Bybee: Have any attorneys representing post-9/11 detainees at Gitmo and elsewhere been officially charged with sleaziness? Their roles have been a long and noble tradition of the American Bar.
 

"Seems like it might have been useful then to Mirandize him"

You have to remember that in early May 2002 when Padilla is taken into custody by the FBI, US intelligence has just in the last couple of weeks learned that the guy responsible for 9/11 is Khalid Sheikh Mohammed. They don't know who he is or where he is or who worked with him. Immediately when Padilla was taken into custody he asked for a lawyer, and later on he said that if he got a lawyer he would have said nothing. However, if you decide that Padilla will never be prosecuted for anything he did after enlisting then he has no right to remain silent or be represented by a lawyer when you question him about this period.

[The US does this all the time with organized crime. Give some low level mobster immunity, then drag him in front of a grand jury and the 5th and 6th Amendments no longer apply. He has to answer every question and incriminate other members of his gang.]

When they questioned Padilla in the Federal lockup in NYC, before taking him before a grand jury, he told them that a month earlier he had been through two weeks of training by KSM and his associates Ramsey bin al-Shibh, Amar al-Baluchi, Mustapha al-Harsawi. These were the guys responsible for 9/11 who trained all the hijackers. He described what the looked like, where they were, and what each of them did in the training. He had disposable cell phones, E-Mail addresses, phone numbers, travel documents from them.

This was the intelligence equivalent of a winning lottery ticket. At a time when the US knew almost nothing, Padilla knew a lot and was willing to talk. Over the next nine months the guys he described were all captured in Pakistan. We don't know how important Padilla's information was in rounding them all up.

Defending the US against the next attack was the primary goal. The intelligence they got from him was more important than any conviction would have been. Besides, there were always the charges from what he did in Miami mostly between 1996 and 98 that, although old crimes, would still be good for a 17 year sentence.

Deciding that information from Padilla was more important than a prosecution is something that happens all the time. They grab some low level drug dealer carrying dope, then drop the charges in exchange for information on someone higher up in the food chain. This was the same sort of deal, only for much much much more important results.
 

This comment has been removed by the author.
 

I'd add that Padilla isn't even seeking monetary damages other than a token amount of $1. So sleazy!

HG replies to my post by reminding me of the importance of Padilla as a source of information. He says this in detail.

I'm well aware of such things; as Stevens notes, keeping citizens in custody for intel purposes has limits in this country. Even if his info -- which HG suggests came out in droves early on -- is useful to the government.

Of course, Padilla was also accused by the government of illegal acts. And, it is very unclear that Padilla would not have supplied a lot of information -- as happens "all the time" -- if treated with more due process.

[They also "all the time" breach constitutional rights, but only sleazy lawyers call them on it.]

In the end, the government managed to convict him. It is very unclear, especially with the 17 years he received over him, that we could not have got a lot of helpful stuff if due process was followed in a more due fashion.

They grab some low level drug dealer carrying dope, then drop the charges in exchange for information on someone higher up in the food chain

So much easier if they are able to keep them in solitary away from lawyers, when they do this, huh? They can't legally do that however. But, Padilla wasn't treated just like these drug dealers.

The government very well might have found what they did was convenient here. Its legality is a separate question.
 

Robert Mueller, who was appointed by Bush in 2001 and remains FBI director under Obama, delivered this assessment at the end of this December 2008 article in Vanity Fair on torture:

I ask Mueller: So far as he is aware, have any attacks on America been disrupted thanks to intelligence obtained through what the administration still calls “enhanced techniques”?

“I’m really reluctant to answer that,” Mueller says. He pauses, looks at an aide, and then says quietly, declining to elaborate: “I don’t believe that has been the case.”

----

regardless of the legality of the torture and despite dick cheney's assertions to the contrary, torture did not aid us in preventing any future terrorist attacks.
 

This is not all that complicated.

1) Under the law of war, the military can hold Padilla as a common law prisoner of war for the duration of hostilities with al Qaeda to keep Padilla from returning to al Qaeda. There is no get out of POW jail for free call once Padilla has provided all the intelligence he possesses.

2) No civilian or military trial is required to detain Padilla as a common law POW. The GCs only require a simple status hearing.

3) The 4th, 5th and 6th Amendment protections apply to criminal proceedings. Preventative detention of POWs is remedial and not a criminal punishment.

4) Attorneys representing al Qaeda members act unethically when they suborn perjury/propaganda or make arguments that are not supported under the law.
 

Garth Sullivan said...

Robert Mueller, who was appointed by Bush in 2001 and remains FBI director under Obama, delivered this assessment at the end of this December 2008 article in Vanity Fair on torture:

I ask Mueller: So far as he is aware, have any attacks on America been disrupted thanks to intelligence obtained through what the administration still calls “enhanced techniques”?

“I’m really reluctant to answer that,” Mueller says. He pauses, looks at an aide, and then says quietly, declining to elaborate: “I don’t believe that has been the case.”


How precisely would FBI know? They had no representatives at the CIA interrogations and set up a chinese wall between themselves and the CIA concerning the results of those interrogations to maintain the ability to gather criminal evidence against these al Qaeda free of fruit of the poisonous tree challenges.

If the CIA reports on these interrogations showed them to be unsuccessful, Obama would have declassified them as he did the OLC memos to support his policy of foregoing coercive interrogation and disclosing the methods to the enemy. The fact that Cheney is openly challenging Obama to disclose the reports and Obama is refusing says all that needs to be said on this topic.
 

I will leave it there except to note that the original 2CA ruling was contrary to the 4CA. And, counting the votes, if they actually addressed the point, it is apparent there was a majority in support of the 2CA.

I welcome further replies the HG/Bart approach, the debate informative.
 

Whatever training Padilla received, this was a military matter that I believe is protected by combatant immunity. I realize that neither the Bush administration nor its critics believe that soldiers in the Army of Afghanistan are entitled to combatant immunity, but the question has never been contested in any court.

Had Padilla been allowed into the US, and had the FBI followed him and gathered evidence, then he could have been charged criminally. Instead, he was detained before he entered the US.

What he intended to do would have been a war crime, but now you get to the big difference between domestic and international law. There is no concept of "conspiracy" in IL. It is not a war crime to train to commit a war crime, or plan to commit a war crime. In fact, Padilla had no right as a soldier to refuse an order to train to commit an illegal act, he only has a right to refuse to actually commit the act itself.

Now of course if you define the entire country of Afghanistan as a terrorist organization and regard its army as a bunch of criminals, you could convict him of material support if you had evidence.

So Padilla was not taken into custody as a terrorist, or a criminal, or a spy, or a traitor, and certainly not because he was known throughout Afghanistan by foreign fighters as the "dirty bomber" because it was the only thing he ever talked about when he sat down around the campfire. He was held as an ordinary enemy soldier (a common law prisoner of war) because we had his captured military personnel file and because he said he was a soldier and identified his unit, commander, and mission after his capture.

Held for this reason alone, he was not entitled to any other process. Yes there are all sorts of things he might have been charged with (I believe unsuccessfully), but the fact that he might have been entitled to more process had he been charged with things he was never going to be charged with is not a plausible criticism of government.

If I am arrested and charged with a crime, I have the right to remain silent, the right to an attorney, the right to a speedy trial, the right to witnesses. However, since the government has not arrested me I don't have those rights. So Padilla brings a Bivens action that claims, essentially, that he was denied all these rights that he would have had if he had been charged as a criminal, by the dirty government trick of not charging him as a criminal. If he is right then all those of us who haven't been charged of a crime can run to court and make the same claim.

It should also be noted that in the 3.5 years he was held in military custody as an enemy combatant, he never once contested his combatant classification. Even after Hamdi, when it was absolutely clear that he would have been entitled to a hearing if he wanted to contest it, he lawyers continued to argue only that Congress had not authorized the detention of enemy combatants who also happened to be citizens and who were not captured on the battlefield.
 

Is our resident LLB* ready to name names:

"4) Attorneys representing al Qaeda members act unethically when they suborn perjury/propaganda or make arguments that are not supported under the law."

since he seems to be suggesting that some attorneys may have so acted? Innuendo? Group libel? I understand the group here would be fairly small.

*Litte Lisa's bro
 

Shag from Brookline said...

Is our resident LLB* ready to name names:

"4) Attorneys representing al Qaeda members act unethically when they suborn perjury/propaganda or make arguments that are not supported under the law."


Let's start with the attorneys filing the civil suit meant to harass Yoo. The complaint misrepresented the facts of the case by failing to admit that Padilla was an al Qaeda member and instead misleading the court that he was some innocent civilian. This enabled the complaint to survive a motion to dismiss that should by all rights have been largely or completely granted.

It is bad enough when these tactics are used by the plaintiff's bar on behalf of the run of the mill fraudulent tort claim. It is far less excusable when used to assist in lawfare by a wartime enemy against your own country.
 

I was just standing whomp-jawed but resolute in trying desperately to refrain from the obvious but too-oft-repeated criticisms of Bart DePalma's malicious lies.. and then I read this, and just couldn't hold back:

"[Padilla's lawyers] ... instead misleading the court that he was some innocent civilian..."

Bart shure do have him a low opin-yun of dem judges. He tinks dey doan read da papers at all.

I'd note for the record that Padilla's status is irrelevant to the claims he's making ... something that the liar Bart would like the casual reader to believe....

Cheers,
 

Yes, Padilla is making a Section 1983 claim, a civil action, that can be made even by a convicted felon who claims his civil rights were violated by government actors. Let the case play out. Let's not disparage Shakespearean-style the lawyers. If Padilla's lawyers are misusing the process, there are appropriate procedures to protect the parties claiming such misuse.

Or perhaps the challenge is to the policy behind Section 1983, that it should not be available to certain parties. Now how might the policy be changed in describing those certain parties? But then such a policy change just might be an open invitation to government actors to violate the civil rights of those certain parties before they have been charged, tried and convicted. That would take us back to torture aka enhanced interrogation.
 

Today's WaPo (6/20/09) has an editorial "Padilla v. Yoo" that troubles the editors:

"We disagree profoundly with Mr. Yoo's expansive views of executive power, but a lawsuit of this type is not warranted. To strip a government official of immunity, a judge must determine 'whether under clearly established law a reasonable official could have believed the conduct was lawful.' Judges on various courts of appeals wrestled with Bush administration terrorism policies and came to different conclusions. The justices of the Supreme Court, likewise, have been closely divided on many of these matters. To now strip Mr. Yoo of qualified immunity would ignore the deep and sincere divisions among even neutral jurists."

But stripping Yoo of qualified immunity accentuates such divide which otherwise might not be addressed. One result at the trial level may be to find that Mr. Yoo is indeed entitled to immunity.

By the Bybee, I have in the past in comments on this Blog (often on the subject of enhanced interrogation aka torture) referred to Dan Froomkin's "White House Watch" Blog at the WaPo. Well, the WaPo is not renewing Dan's contract so his gig there will end early in July. Check out the extensive comments at his Blog yesterday under "Froomkin Watch" where Dan informs his viewers of the WaPo's action. But don't cry for Dan. He has long had a gig with Nieman's that has more integrity than the WaPo has had post-Watergate. Rumor has it that the WaPo took this action because Murdoch wants to buy the WaPo but not with Dan on board to satisfy Chuck Krauthammer's sensitivity to Dan's picking on Chuckie.

Another By the Bybee: Those who check on Dan from time to time will note that he doesn't hesitate to challenge Obama/Biden actions. Dan's a real journalist. Surely he will get a new gig to keep a watch on the powers to be in Washington, regardless of party.
 

Arne:

I am sure the judge could see through the misrepresentations in the Padilla complaint, but is by law required to take them as true at the motion to dismiss stage, dragging the law suit out and increasing the costs on Yoo.
 

Shag:

I see you are back to offering strawmen. The misrepresentation in the complaint to which I referred was that Padilla was an innocent civilian rather than an al Qaeda. Whether Padilla was convicted of a crime is irrelevant.

A 1983 claim is a vehicle through which to make a civil claim for a violation of constitutional rights. However, the Bill of Rights applicable to civilian criminal defendants do not prohibit detention of wartime enemies as prisoners of war. If Padilla's attorneys truthfully represented their client as an al Qaeda in his 1983 complaint, most or all of this lawfare suit would have been dismissed.
 

Bart,

Padilla knows that he was an enemy combatant. The government claims to have overwhelming evidence of this, but the subset introduced in the Miami trial was not enough to establish the fact. Therefore, we cannot assert that his lawyers know that their assertion of his civilian status is false. If he never told them, or if he lied to them, they are entitled to accept that version "upon information and belief" as they repeat over and over in the complaint.

Padilla loses no constitutional protections by being an enemy combatant. A lawyer representing him in any civil proceeding is no different than a lawyer representing any other resident.

Judge White did dismiss the Fifth Amendment claim based on the obvious point that Padilla's statements were never used against him in a criminal case. He missed the point, however, that would be up to the judge in a criminal case to exclude such information and is not a rational Bivens claim. He should have dismissed all references to the Sixth Amendment where the text begins with the limitation, "In all criminal prosecutions".

I think you misread:

i. Denial of Due Process. Acting under color of law and his authority as a federal officer, Defendant Yoo violated Mr. Padilla’s Fifth Amendment right not to be detained or subjected to the collateral effects of designation as an “enemy combatant” without due process of law.

Although the complaint does assert that Padilla is not an enemy combatant, the nature of a constitutional claim is lack of due process, not actual innocence. Even a client whom the lawyer knows to be guilty is entitled to due process. So the burden was on White to point out that there is no process due to someone being held as a POW that was denied to Padilla. No question of fact, including allegations of innocence, are relevant to this issue.

The judge could also have pointed out that the First Amendment does not provide "the Right to Information", that since Padilla's case was continuously in litigation before the Second Circuit, Supreme Court, and Fourth Circuit he can hardly claim "Denial of Access to Court", and that all prisoners are by definition subject to "Denial of the Right to Association", so that is not a constitutional claim independent of the issue of confinement.

However, when all the obvious nonsense is excluded, we are still left with Claim 107 (c) in the complaint, "Unconstitutional Conditions of Confinement", which the judge identified with the Fourteenth (not the Eighth) Amendment. That is not subject to qualified immunity and cannot be dismissed without hearing evidence.
 

Reply to myself after more consideration:

The core of the Hamdi decision is that a US citizen who disputes his combatant status is entitled to a hearing before an impartial tribunal to contest the basis for his detention.

This is fundamentally different from a criminal case where the defendant has rights that he can assert by remaining silent, rights that do not depend on his guilt or innocence. A POW has no due process rights. A civilian held as a POW because of mistaken identity does have such rights. In Hamdi, the Court provides due process rights only to someone who asserts an error in his classification as a combatant and only for the purpose of disputing the classification.

However, through 3.5 years of litigation Padilla not once contested his combatant status. This is in contrast to fellow prisoner al Marri, who contested the basis for his detention and was granted a status hearing in Federal District Court.

So the correct statement is not that Padilla would not have been entitled to any more process, but that to acquire additional due process rights he would have had to contest his classification as an enemy combatant. He did not do so until this Bivens action. Since the additional process did not become due until the claim is asserted, the complaint cannot now make the claim and then assert it should be retroactive and then Padilla was denied due process for a claim he could have but never previously made.
 

I offer neither a strawman, a tin man nor a cowardly lion. Nor do I pretend to be the all-knowing legal Wizard behind the curtain. I am merely awaiting letting the parties, their attorneys and volunteer legal advisors play this out through trial, subject of course to appeals. The issues are challenging and are important, even if eventually decided 5-4. But what I am not willing to await is unsubstantiated attacks upon attorneys representing clients in difficult situations. Without such attorneys, justice would not be served, whether or not they prevail; they bring honor to the profession.
 

Howard:

1) I am aware that attorneys are allowed to allege facts upon information and belief and escape Rule 11 sanctions. I was instead discussing the ethics of abusing this low threshold to lie to the court and avoid a motion to dismiss in order to string out litigation. The plaintiff's bar abuses this threshold as a matter of course to increase litigation costs to tort defendants and thereby coerce settlements. In lawfare, the object is simply to increase costs on the target.

2) I never said that Padilla lost any Constitutional rights by being an enemy combatant, although Quirin suggests this is the case for unlawful enemy combatants. Rather, I am arguing that the rights Padilla enjoys as a civilian criminal defendant simply do not apply to his detention as a POW. This is why Padilla denies being an al Qaeda and claims instead to be a garden variety civilian criminal defendant.
 

I'm uncomfortable with the following being left without comment ...

A POW has no due process rights. ... In Hamdi, the Court provides due process rights only to someone who asserts an error in his classification as a combatant and only for the purpose of disputing the classification.

Hamdi concerned such a dispute, but overall upheld "the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law." A citizen in a mental institution has basic constitutional liberty interests. They do not disappear if they are labeled "POW."

through 3.5 years of litigation Padilla not once contested his combatant status.

Since the 2CA already held that there was no authority to hold him, it was strategically not a bad idea. In fact, he very well could have won in the SC, if the case was decided on the merits.

that the First Amendment does not provide "the Right to Information"

Yoo didn't challenge his right to make such a claim, first off. Second, the SC has referenced some "the right to receive" information. An easy citation, if in dicta, is Griswold v. Connecticut.

that since Padilla's case was continuously in litigation before the Second Circuit, Supreme Court, and Fourth Circuit he can hardly claim "Denial of Access to Court"

As noted in the opinion, yes he can. In part ... "A prisoner’s right of access to the courts includes contact visitation with counsel. ... The allegation that Padilla was denied any access to counsel for nearly two years is sufficient to state a claim for violation of his right to access to courts."

and that all prisoners are by definition subject to "Denial of the Right to Association"

Not completely. For instance, he claims his isolation from his family violated this right. Prisoners also can marry, which is in part an associational right. Prisoners also can be a member of various associations if there is no penal purpose against it. So, it is not all/nothing.

should have dismissed all references to the Sixth Amendment

The ten claims appear to list one sixth amendment reference, that is, of counsel, and there other amendments are cited as well as the source.

Since the additional process did not become due until the claim is asserted, the complaint cannot now make the claim [re: enemy combatant designation] and then assert it should be retroactive and then Padilla was denied due process for a claim he could have but never previously made.

The opinion notes the claim:

Fifth Amendment right not to be detained or subjected to the collateral effects of designation as an “enemy combatant” without due process of law

His failure to deny he was a EC as such very likely still left open some possible due process claims here.
 

Shag:

Quoted and annotated:

"I am merely awaiting letting the parties, their attorneys and volunteer legal advisors play this out through trial, subject of course to appeals. The issues are challenging and are important, even if eventually decided 5-4. But what I am not willing to await is unsubstantiated attacks upon attorneys [Yoo] representing clients [the US] in difficult situations [after 9/11]. Without such attorneys, justice would not be served, whether or not they prevail; they bring honor to the profession."

In a case that is entirely based on a attack on an attorney for opinions he wrote while serving in the public sector, I find it refreshing that someone on this blog should stop to praise Yoo for his selfless decision to interrupt his career and serve in Washington during a national crisis. It is reassuring that your praise of him is unrelated to the outcome of the case and, therefore, does not depend on how wrong some other people believe his opinions to be.

Or have I confused Alice Through the Looking Glass with the Wizard of Oz?
 

"Or have I confused Alice Through the Looking Glass with the Wizard of Oz?"

Howard, you are either seeing your own reflection in the mirror or looking through the wrong end of the telescope. Bush/Cheney back in 2002 in the days of Yoo and Bybee were not comparable to the detainees with respect to legal representation. Now if Bush/Cheney were to be individually charged civilly or criminally for torture aka enhanced interrogation of detainees, I would respect lawyers prepared to defend them in adversarial proceedings. But Yoo, Bybee and Bradbury's legal roles in OLC were not adversarial in nature but advisory. In earlier threads on this Blog, there were extensive discussions on this point.

No reflection upon you is intended with this comment. But watch out for 7 years of bad luck.
 

I said: "But watch out for 7 years of bad luck." Of course, we're all coming off 8 years of bad luck pre-1/20/09. And that is a reflection of Bush/Cheney.
 

Joe,

A US soldier is stationed in California, but receives orders to go to Fort Dix, NJ. When he gets there he doesn't like the base, and complains so much that he is not given leave. Is the fact that he is involuntarily detained in a US military facility surrounded by fences and armed guards a basis to claim his right to due process has been violated? Did the Army have any obligation to bring him before a court and charge him and try him before ordering him to go to NJ?

Well it works the same way for a POW/enemy combatant. He too is a soldier in an army, and when he is captured the US becomes part of his chain of command. He can be ordered to go to Charleston, SC and sit in the Navy facility there just as the soldier can be ordered to go to Fort Dix.

A soldier gives up some liberty when he enlists. He has to go where he is told and do what he is ordered, and sometimes he does dangerous things and loses his life. All without violating the Fifth or Fourteenth Amendments.

However, if the Army tries to detain someone who claims not to be a soldier (mistaken identity) then the detainee has a due process right to challenge the detention. The same thing is true for someone who claims not to be an enemy combatant.

An enemy soldier has no "right to remain silent". When captured he must admit his combatant status and give name, rank, and serial number. Shortly after capture Padilla admitted his status as a soldier and described his unit and commanding officer. That is all that was required.

At that point he can be taken into military custody without any additional process. Before claiming his rights were violated, it should be necessary to at least indicate what process you imagine was omitted. There are many types of process for many types of detention: mental commitment, quarantine, deportation, contempt, extradition, material witness, and, of course, criminal conviction. There is no judicial process for POWs, and never has been. During WWII, 435,000 enemy soldiers were held in camps across the US without any of them seeing the inside of a courtroom.

If you think there ought to be some extra process, then you can try and create it. Certainly you cannot plausibly sue Yoo for denying Padilla an imaginary process that simply doesn't exist, or for not giving him some other process that applies to something he wasn't accused of doing.
 

To cite the reply to one of my points ...

A soldier still has some liberty and does not have to follow every order or have no cause of action that a court might hear.

Hamdi held that detainees have basic due process rights. Thus, a citizen held as a POW would have a substantive due process right not to be handled in a way that "shocks the conscience" such as being tortured.

This might factor into the "collateral effects" he speaks of. It might mean something else too. It is pretty vague and technical.

Under your rubric, they wouldn't. The gov't could do anything to them when correctly held as a POW and not be able to open to judicial review. They could be enslaved, tortured, whatever.

This aside from any statutory or treaty rights that have some cause of action in them, which I'm sure there is at least one. This would be part of the law of the land that would enter into due process.

The ability of enemy aliens to bring due process challenges in the WWII situation is rather different. There was but a handful of citizen cases that I'm aware of there and none that blocked citizens from any judicial process.

BTW HG wants us to praise Yoo for "his selfless decision to interrupt his career" ... did he work free of charge or something? Was he some high priced litigator that loss lots of billable hours?

If he did break the law here or aid and abet some bad stuff either way, should we just let it go since he uh signed on to a top job that brought with it a lot of prestige and advanced his personal ideological goals?
 

I claim that the government has no obligation to bring some type of undefined case to the courts before detaining Padilla as an enemy combatant. His due process rights are not violated by the absence of any process in the 230 year history of the US for the millions of enemy soldiers held under the same circumstances.

I have never claimed that Padilla has no right to access the courts himself.

"A soldier still has some liberty and does not have to follow every order or have no cause of action that a court might hear." Sure, and if a US soldier finds that the government is taking land he owns without compensation, the fact that he is in the military is not a basis for denying his access to the courts on the "takings" clause. It's just that he has no 5th Amendment due process right to liberty (either defined as the right of a sailor to go into town on Saturday night or as the right of a civilian to go where he pleases and do what he wants). Padilla as a captured enemy soldier has no more right to complain to the courts that he has been ordered to stay inside the Navy brig than a sailor has to complain to the courts that he has been ordered to Charleston to guard Padilla. Both are members of the military following orders.

"Hamdi held that detainees have basic due process rights." No, Hamdi held that detainees have one specific due process right. "... due process demands some system for a citizen detainee to refute his classification" and " We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker." The key point in this context is that no process is required before detaining the enemy combatant, and it is the responsibility of the individual to contest his classification.

"a citizen held as a POW would have a substantive due process right not to be handled in a way that "shocks the conscience" such as being tortured." Right. Everyone is in agreement that Padilla can make this claim under the 14th Amendment. I don't think there are any facts to support the claim, but that will be determined at trial.

"The ability of enemy aliens to bring due process challenges in the WWII situation is rather There was but a handful of citizen cases that I'm aware of there and none that blocked citizens from any judicial process"

True, but none found that citizens were entitled to any type of due process challenge to military detention or trial. in re Territo, ex parte Quirin, ... The cases establish access to court, but all rejected the idea that a US citizen cannot be detained by the military through simple administrative process if he is an enemy soldier in wartime.

I have never suggested that Padilla does not have a right to access the courts. He has been in nearly continuous litigation. In fact, it is precisely because his case has always been before the courts that it is hard to argue that Yoo denied him any rights while the courts were constantly looking at his case.

Consider the claim that Padilla was denied access to a lawyer. Two days after he was transferred to military custody, a Habeas petition was filed on his behalf in the Second Circuit. He was able to consult with counsel as soon as any court ruled he was entitled to such access. Given that the question of access to counsel was before the courts 48 hours after he was detained, by what logic can you claim that Yoo was responsible for violation of constitutional rights that were generally recognized at the time. If these rights were so obvious, why did the courts wait almost two years to issue a simple order granting them?
 

Howard Gilbert:

It's just that he has no 5th Amendment due process right to liberty (either defined as the right of a sailor to go into town on Saturday night or as the right of a civilian to go where he pleases and do what he wants). Padilla as a captured enemy soldier has no more right to complain to the courts that he has been ordered to stay inside the Navy brig than a sailor has to complain to the courts that he has been ordered to Charleston to guard Padilla. Both are members of the military following orders.

Even were he an enemy "soldier", and subject to "command" as you say, he doesn't have to obey every command, much less one: "Soldier, submit to torture." And the complaint is not that he was refused his right not to obey, but rather that the actions of others deprived him of liberty, etc. w/o due process. It's the actions of the gummint at issue here, not what we can make him do.

[Joe]: "Hamdi held that detainees have basic due process rights."

[HG]: No, Hamdi held that detainees have one specific due process right. "... due process demands some system for a citizen detainee to refute his classification" and " We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker."

This is because it was this right, and not his right to be free from takings w/o just compensation, that was before the court. Why you think that when the court rules he has certain rights, he therefore doesn't (and anyone else doesn't) have any and all rights he didn't asssert (and not at issue) is beyond me.

in re Territo, ex parte Quirin, ... The cases establish access to court, but all rejected the idea that a US citizen cannot be detained by the military through simple administrative process if he is an enemy soldier in wartime.

That wasn't the issue in Quirin. Korematsu is more on point here ... but most people now think Korematsu wrongly decided, and a shameful part of our past.

Cheers,
 

Were the suit brought by Mr Padilla to be brought in the UK, it would not be in the from of a Bivens type action because our Crown Proceedings Act 1947 allows actions in contract and tort against the government as if it were a private citizen.

Mr Padilla was arrested within the USA on 8th May 2002. Given that Habeas Corpus is supposed to be a swift remedy, there can be little doubt that the inaction of the US Courts between the lodging of his petition and final dismissal of his habeas corpus petition on the technical grounds relied on by the Supreme Court on 28th June 2004 (wrong venue and wrong respondent) was a very substantial denial of justice and of Mr Padilla's human rights.

See R -v- Secretary of State ex parte Abassi at paragraphs 59-64, in particular the citation of the opinion of Justice Brennan in Fay v Noia (1963) 372 US 391 at 400.

To adapt the words of the English Court of Appeal in Abassi: in apparent contravention of fundamental principles recognised by both the USA and the UK and by international law, Mr Padilla was between 8th May 2002 and until charged on 22nd November 2005 arbitrarily detained in a 'legal black-hole'.

Likewise the decision to indict Padilla on unrelated charges on 22nd November 2005 and the subsequent criminal trial was in my view equally an affront to justice. Others take the same view - see for example this article by a former member of the Reagan Administration, Paul Craig Roberts: Padilla Jury Opens Pandora's Box.

The plain fact is that (with a written constitution or not) the law is an imperfect bulwark against executive abuse of power in times of perceived national emergency because of the willingness of the judiciary to be unduly deferential to the executive.

I have considerable pessimism about the eventual outcome of this case. Not because the merits are not on Mr Padilla's side, but because the shock to the judicial system of the events of 9-11 has not yet subsided.

In the UK, the events of World War II brought some very questionable judicial decisions, not least Liversidge -v- Anderson [1942] AC 206 where Lord Aitkin's celebrated dissent is now generally held to have been right and that of the majority wrong and, of course, in the USA there is Korematsu v. United States, 323 U.S. 214.

9-11, horrible as it was, was in no wise a threat to the US way of life in the way that Hitler's fascism was to the UK. Neverthless in both our countries there has been executive over-reaction to terrorism and undue deference by the judiciary. The pendulum will only slowly swing back.

Perhaps more slowly in the USA because your federal bench has been stuffed with conservatives and orginalist activists since Ed Meese was Reagan's Attorney-General (and I note he has been brought in by the GOP to organise the opposition to the present nominee before the Senate).
 

Mourad:

1) The Supreme Court rapidly heard the appeal on Padilla's habeas petition and delayed nothing. Padilla would have had a rapid ruling on the merits, which he would have lost, if his attorneys were not inept and filed in the wrong venue.

2) The opinions of your politicized court of appeal concerning Padilla matters for nothing in the United States.

3) Paul Craig Roberts is a crank whose conspiracy theory to which you linked is really quite pathetic. Apart from several telephone intercepts and an al Qaeda application document with his finger prints all over it, Roberts would have us believe that there was no evidence at all against Padilla. Roberts then imagines a conspiracy where the military drove Padilla mad and then handed him the application after the fact to get his finger prints. Of course, the court rejected Padilla's claim that he was mad and there is no more evidence for this conspiracy theory than there was for another Roberts' fiction that Petreus was planning to invade Iran.

4) Rather than looking for reasons to dismiss Padilla's lawfare suit, the court is bending over backwards to date to maintain a suit for which there is little to no evidence.
 

Bart,

The US Court system is unreasonably slow. One side says "rush to judgment" while the other says "justice delayed". The important thing here is not how long it took to get the case to the right circuit, but the fact that Padilla lost in the Fourth Circuit, and that was the last decision in the case. If he had won, it would be rational to complain about how long it took for him to win. However, it did not really matter to him how long it took for him to lose.

"opinions of your politicized court of appeal concerning Padilla"

The case cited was not about Padilla, but a British subject in Guantanamo. There is an impression that the case is being cited, but if you look carefully the terms used are "To adapt the words of the English Court of Appeal in Abassi". Some of the same words are used, but to mean something entirely different from the actual decison.

In the Abassi case the court found itself unable to grant any relief, and then noted that (while Rasul was still pending) it was unclear if any US courts would be able to review the case. In that context of no Habeas court review at all, it described Guantanamo as a "legal black hole."

However, when the words are then "adapted" to Padilla, they state complete nonsense:

"Mr Padilla was between 8th May 2002 and until charged on 22nd November 2005 arbitrarily detained in a 'legal black-hole'. "

Whatever you may thing of Guantanamo, Charleston SC is not a black hole. Nor was there ever even an assertion that Padilla was not covered by the Habeas statute and entitled to the privilege. For 3.5 years his case proceeded through two District Courts, two Circuits, and twice to the Supreme court. You may complain that the process took too long, but Padilla was not denied process nor was the process hidden.

Of course, you might mean something else. Black holes emit random particles as "Hawking radiation". Journalists note that if you wait long enough, a black hole can toss out any kind of garbage. If that is your meaning, then perhaps the OJ circus was a "super-massive black hole".
 

Howard:

1) While your average civil litigation and far too many criminal cases do take too long in our system, Padilla's habeas petition is not a particularly good example of this delay. The courts expedited Padilla's review. His attorneys simply did not know the basics of who to name and where to file the petition or they were forum shopping and hoped the courts would allow the venue problems to slide.

2) Even though the Abassi case dealt with a British citizen, Mourad as is his wont cited it for the judge's gratuitous swipe at the American military detention of Padilla, which was neither in fact arbitrary or a legal black hole, as you have amply demonstrated on this thread. I summarily rejected the cite for what it was.
 

Bart writes: "The Supreme Court rapidly heard the appeal on Padilla's petition and delayed nothing".

That of course depends on what you mean by "delay". Jurisprudence going back to the 17th Century is that habeas petitions should take precedence over all other judicial business. Therefore a petition should not take from 2002 to 2005 to finally resolve and for the Supreme Court to dismiss a petition on the technicality that the wrong Defendant was named and the case brought in the wrong circuit on the same day it was granting an identically circumstanced petition in another case makes the case both as to excessive delay and as to undue deference to the executive.

Whether that deference is at least in part the consequence of the highly political methods used to select nominees to the Federal Bench is a further question.

Bart writes: "The opinions of your politicized court of appeal concerning Padilla matters for nothing in the United States."

If Bart had troubled to read the judgment of the Court of Appeal I cited, it did not discuss Mr Padilla, but the contention in Abassi that habeas corpus was not an available remedy - because he had been designated an enemy combatant - a contention which survived until the decision in Rasul.

Thus Mr Gilbert is wrong to suggest that the expression "legal black hole" is inapposite also to Padilla's case.

Detention at the Navy Brig in Charlston SC was just as much a "legal black hole" as Guantanamo Bay for so long as the detainee was not promptly charged, brought before the Court, and afforded access to counsel. As I recollect, none of those things happened until it was realised post Rasul that the options for Padilla's unlawful detention incommunicado as an "enemy combatant" had run out.

Bart is entirely correct that the writ of the English Court unfortunately no longer runs in our former North American colonies. However, there is no basis however for his suggestion that our Court of Appeal is politicised and the implication of his comment that the international standing of the USA is not affected by expressions of judicial disapproval of its conduct from other major jurisdictions is, I think, rather puerile.

Like it or not, the USA is but one country in a shrinking world. What injustices it perpetrates are no longer carried to Europe and elsewhere only on tea clippers, or on slavers returning home in ballast to appear in a footnote in the papers as curiosity items from the wilderness of the Americas.

US government acts are reported in the press and on TV throughout the world as and when they happen. And whether Bart and others like it or not, the standing and security of the USA and of its individual citizens overseas is affected by the perception others have from such reports of the way the USA behaves.

Fortunately, perhaps, the present incumbent of the White House is doing much to begin to repair the grave damage done to US international standing by the actions of the Bush Administration and I accept that in respect of those actions the Blair/Brown government must also take a share of the blame.
 

Check this book review at the WaPo:

Before Guantanamo Was Above the Law

By Peter Finn
Sunday, June 21, 2009

THE LEAST WORST PLACE
Guantanamo's First 100 Days

By Karen Greenberg
 

Mourad:

US government acts are reported in the press and on TV throughout the world as and when they happen. And whether Bart and others like it or not, the standing and security of the USA and of its individual citizens overseas is affected by the perception others have from such reports of the way the USA behaves.

On this point we can agree.

In contrast to Europe, there was not a substantial attack on the US or US interests overseas outside of the Iraq and Afghan war zones during the period in question.
 

And, for multimedia, here's a companion link for Shag ...

video
 

Query: Was Dante's Inferno also a coaling station?

(Joe: Thanks for the link.)
 

Just to make the point about perceptions of the USA abroad, perhaps the most reliable indicator are the surveys conducted by the Pew Global Attitudes Project

Take Pew's figures for European countries between 2000 and 2008.

The percentage of people having a favourable view of the USA declined as follows: UK = 83>53, Germany = 78>31, France = 62>42 and Spain = 50>33.

Or take Pew's figures on countries where the public had no confidence in G.W. Bush in 2008: UK=81%, Germany=85%, France=87%, Spain=88%, Turkey=89%, Egypt=86%, Jordan=89%, Australia=76%, Brazil=80%, Mexico=77%, Argentina=86%.

Bart should perhaps remember that the European countries which did suffer significant attacks by terrorists were those most supportive of the misbegotten Bush GWOT.

Most polls at the end of 2008, including the Pew survey, reported that people thought things would improve under President Obama but, with ratings like those George W. Bush went out with, your President faces a formidable task.

The noises off centre stage from the GOP rump, the neocon right and even inconsequential figures like dear Bart are not helping to promote the perception of the USA as a country which does care about human rights.
 

In contrast to Europe, there was not a substantial attack on the US or US interests overseas outside of the Iraq and Afghan war zones during the period in question.

# posted by Bart DePalma : 4:42 PM


Is there a point hidden in this meaningless gibberish?
 

Mourad,

Confusions stems from two different contexts. Quoting from the decision you cite:

The underlying principle, fundamental in English law, is that every imprisonment is prima facie unlawful, and that:

"...no member of the executive can interfere with the liberty... of a British subject except on the condition that he can support the legality of his action before a court of justice"

That is certainly the fundamental principle of civilian life. However, when you go to war then the goal is to kill enemy soldiers and defeat their country. If an enemy soldier comes into your sights, you shoot him dead. If the enemy assembles, you drop a bomb on them.

Therefore, enemy soldiers are either prisoners of war (whom you must protect), those who have laid down their arms and are out of combat (whom you must ignore), or targets to be shot on sight. There is no context in which you allow an active enemy combatant any right or liberty.

While the detention of a civilian may be presumptively unlawful, the detention of an enemy combatant is not only lawful but is the only thing keeping him alive. A criminal may be presumed innocent until proven guilty in a court of law, but there is no rule that someone is a civilian until proven to be a soldier in a court of law.

If someone is detained as an enemy soldier and, like Padilla, he admits that he is a soldier. If you have documents proving it and he tell you about his unit, commander, and mission, then he has no right any further process. A criminal suspect who confesses must still go before a court, but the soldier simply goes into detention. Again, if you dispute this then cite the example of a judicial process inserted between the capture and POW detention of a single soldier by the US or UK in WWI, WWII, or any other conflict. The process simply doesn't exist.

Someone who denies his combatant status has a right to some type of hearing to present his case. You are right that the US at first denied this, then tried to substitute CSRTs, and now is trying to sort things out using Habeas. However, none of this necessarily applies to someone who admits his combatant status like Padilla did.

Lawyers representing Padilla did petition for Habeas, but they did not claim that he was incorrectly classified. They argued that a US citizen cannot be detained unless there is an explicit authorization from Congress. That is a question of law, not a question of fact, and it is an example of "pure" Habeas where the question is whether the detention is illegal and not whether it is incorrect. Padilla did not need to participate because nothing he could say or do would effect the interpretation of a statute.

A soldier who denies his combatant status loses any right to claim protection under the Third Geneva Convention. So while a lawyer may claim to speak for his client in any other legal matter, on this one issue the alleged combatant has to speak for himself. He has to choose to either admit his classification as an enemy combatant or to deny it. President Bush announced that no captured enemy soldier would be granted the protection of the Geneva Convention so (surprise!) almost every captured detainee is now contesting his classification.
 

Mourad:

One does not win wars by coming out on top of popularity polling. However, one can lose wars by cutting and running out of fear of how a war will poll. See Somalia '93.

In any case, apart from Britain, why should the US give a half a damn what the EU thinks?

Is the EU going to stop sending combat troops to share the fight against the world's trouble makers? Oh, they already do that now.

Is the EU going to send its military against the US? LMAO! At most, they will send Mrs. Clinton a stern letter of disapproval.

When the EU decides to become relevant again, you be sure to let us know. Meanwhile, the US needs to be concerned with countries which actually matter like China, India and Iran.
 

[BDP]: In contrast to Europe, there was not a substantial attack on the US or US interests overseas outside of the Iraq and Afghan war zones during the period in question.

[Bartbuster]: Is there a point hidden in this meaningless gibberish?

Apparently amongst other things, "US interests overseas" don't include Europe ... or Northern Africa ... or Indonesia ... or Iraq ... or Afghanistan ... although why we'd send a couple hundred thousand troops and a trillion dollars to the latter two doesn't make sense if that is true.

But you're indeed right; it's "Bart"'s standard (and repeated) BS needed to excuse a failed policy undertaken by his favourite political party ... it doesn't need to make sense.

Cheers,
 

That is certainly the fundamental principle of civilian life. However, when you go to war then the goal is to kill enemy soldiers and defeat their country.

We've been through this "talking point" before ... in fact many times before. It was better stated by "Bart" a couple days back: "All is fair in love and war."

War (or a simulacrum thereof) is the perfect "get-out-of-jail-free" card; it allows any behaviour whatsoever that is necessary (or is deemed "necessary" or even even just claimed to be beneficial) to fighting Such A Just And Glorious War™. The loophole you can steam an aircraft carrier through. As I more pithily phrased it, "No Rulz!"

This ignores the (otherwise sacrosanct) plain text of the Constitution which explain under what conditions Congress can temporarily suspend the Great Writ, ignores the numerous court cases over the last two centuries over what leeway such exigencies confer, and ignores the practise of the U.S. gummint in all this time. But that's "Bart"'s best defence (at least in this realm): Ignorance. One may only hope that he didn't use the same tactics while he was in active service. Now that might constitute an actual danger to the "U.S. interests overseas".

Cheers,
 

Howard Gilbert speaks of Jose Padilla as an "enemy combatant" and writes: "A soldier who denies his combatant status loses any right to claim protection under the Third Geneva Convention. ..."

As I understand the position, Jose Padilla was designated an "enemy combatant" by President Bush on 8th May 2002. But the President and his legal advisers have been shown not to be exactly over-endowed with competence in the the laws of war, the requirements of the Geneva Conventions, the Convention against Torture and other applicable instruments. That's the problem with hiring the likes of Bybee, Gonzalez and Yoo.

Properly understood, a citizen can never be an "enemy combatant" entitled to Geneva protection. He is either a loyal citizen or a traitor - see 18 US Code Section 2381.

The decision in Ex parte Quirin 317 U.S. 1 (1942), was only an application for leave to issue and the Court was only concerned to consider whether persons who claimed to be belligerents entitled to the status of prisoners of war could nevertheless be tried by military commission for espionage.

The Court expressly refused to determine whether, as the Government contended, Haupt had renounced his citizenship. What the Court focused on was the fact that these members of the armed forces of the 3rd Reich had admittedly engaged in espionage and that spies had never been entitled to POW protection under the laws of war.

"The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

The point in Haupt's case was that whether he was a citizen or not was immaterial because espionage in wartime by members of the armed forces of the opposing belligerent debars from reliance on the protection of the Geneva protections. Like the others, as a member of the German military, Haupt could never have been a POW.

However, had Haupt been detained in uniform on the battlefield, he would still not have qualified as a POW, but been a person liable to arrest and indictment for treason.

In the case at issue, there is no declared war, there is no belligerent state on the other side. There are no enemy lines to cross. Padilla could perhaps have been charged with treason, or espionage, but since no charges were ever laid to that effect, one assumes the Government did not have the requisite evidence.

As a citizen Padilla was entitled to prompt indictment and trial. That is what he did not get. And while he was detained under cover of a designation which was misconceived, he claims to have been ill-treated.

Even if there had been evidence to prosecute him as a traitor or a spy, Padilla had the right to be charged, of access to Counsel and a fair trial. That was what he was denied for the time he was detained in the Navy Brig and in case Mr Gilbert has forgotten, even the defendants at Nuremberg had access to lawyers and a specification of the charges against them.
 

" . . . and in case Mr Gilbert has forgotten, even the defendants at Nuremberg had access to lawyers and a specification of the charges against them."

As had Saddam Hussein in Iraq when tried by the Iraqis.
 

While on public transit this morning to and from a library research trip, I plan to read Ingrid Waerth's draft article "The Captures Clause" available via SSRN at:

http://ssrn.com/absract=1421395

It runs 53 pages single spaced with extensive footnotes. While the article may not directly relate to Padilla v. Yoo, it may provide some insights on declaring war and the Commander in Chief role.
 

"Properly understood, a citizen can never be an "enemy combatant" entitled to Geneva protection. He is either a loyal citizen or a traitor"

This was not the claim of Padilla's lawyers, and was not the finding of the Fourth Circuit in Padilla v Hanft.
 

Mourad:

Properly understood, a citizen can never be an "enemy combatant" entitled to Geneva protection. He is either a loyal citizen or a traitor - see 18 US Code Section 2381.

Under US law, precisely what prevents a citizen who is a member of a foreign military at war with the United States from being both an enemy combatant and a traitor? How does being a traitor preclude this citizen from being an enemy combatant?

Your misinterpretation of US law would actually make it nearly impossible to even detain folks like Padilla because the crime of treason in the United States requires the testimony of two eye witnesses to the same overt act in aid and comfort to the enemy and is extraordinarily difficult to prove.

But the President and his legal advisers have been shown not to be exactly over-endowed with competence in the the laws of war...

Stones and glass houses.
 

"However, had Haupt been detained in uniform on the battlefield, he would still not have qualified as a POW, but been a person liable to arrest and indictment for treason."

No, that is not how it works. International law trumps domestic law in war. If a US citizen is captured on the battlefield in uniform in any war the US recognizes to be covered by Geneva, then the Third Convention applies immediately. He MUST be held as a POW protected by the convention until he is released. When released, he can then be charged with any pending criminal matters (as Padilla was in Miami after being released from military custody). If you have the evidence required to convict on Treason, you might release him immediately and send him to trial. However, you don't have to do this until the end of the hostilities.

The Fourth Geneva Convention applies to nationals (normally civilians) of the enemy country. The Third Geneva Convention makes no restriction of nationality. Rather, being a member of the enemy armed forces is the only criteria. So a US citizen who is a member of an enemy army is covered by GC III and the US has to follow its rules, even if the detainee is only a POW for a few days or weeks.
 

"In the case at issue, there is no declared war, there is no belligerent state on the other side."

This is the kind of America first nonsense I expect to hear from someone from this side of the pond. In the US Constitution only Congress has the power to declare war. So narrow minded Americans might argue that the AUMF isn't a declaration of war and therefore there is no war.

However, someone who thinks from an international point of view realizes that International Law does not regard the US Constitution to be better than the laws of all the other countries combined. There are two parties to a war, and either side gets to start it. Afghanistan arguably declared war on the US twice, in August 96 and in Feb 98. Things get a bit fuzzy here because Afghanistan had no constitution or congress to do it officially, so reasonable people will have to dig deeply into the rules to decide how official the declarations were.

However, IL puts a lot more emphasis on facts rather than words. To back up the declaration, in Oct 2000 they performed the quintessential act of war, an attack on a US warship (the Cole).

Once either side starts a war, IL says that a state of war exists even when the other side (the US) sticks its head up its ass and ignores reality for another year of so. Oct 2000 was the month before the Bush Gore election, and no politician wanted to admit we were at war or even attacked int the middle of a close campaign, even when the enemy was a nothing nation like Afghanistan.

I do not have the resources to determine if the Afghan declaration was good enough. I think it is racist nonsense, however, to ignore it because they weren't white enough or powerful enough to be treated seriously.
 

"Afghanistan arguably declared war on the US twice, in August 96 and in Feb 98. Things get a bit fuzzy here because Afghanistan had no constitution or congress to do it officially, so reasonable people will have to dig deeply into the rules to decide how official the declarations were."

Arguably Afghanistan has been an ally of the US for several years. Did those "earler wars" end at some point when the alliance took place? Does "Al Queda = Afghanistan"?
 

Howard/Bart:-

Think about it:

1. The issues of combatant status arise under the Geneva Conventions. In such circumstances, one is discussing the situation when soldiers owing allegiance to a power other than the detaining power are to be treated as prisoners of war and afforded the protection of POW status under the Geneva Convention. That limits the jurisdiction of the detaining power to punish hostile acts which occur during the conflict. POW status is a privileged status more humane than the ancient rule of "no quarter" for a defeated enemy.

2. Citizen and state each have have both rights and duties, one to the other. As the cited US Code provision makes clear, adhering to the enemy or giving the enemy aid and comfort is treason. The fact that convictions for treason may be hard to prove by reason of the Constitution is nihil ad rem.

3. Then there is a whole slew of lesser criminal offences which could be charged against a citizen, but not against a non citizen. For example, a member of a foreign military force who kills a US soldier on the field of battle in the course of hostilities will not be guilty of murder and entitled to POW status. But a US citzen who kills another US citizen outside the USA (on the field of battle or otherwise) is surely caught by US Code Title 18, Section 1119(b). His combatant status is irrelevant. Likewise with espionage, hostage taking, the giving of material support to terrorism, conspiracy to murder, etc, etc.

4. As regards rights, the citizen has due process rights. Being constitutional rights, these cannot be abrogated otherwise that in the manner envisaged by the constitution. So the purported designation of a citizen prisoner as an enemy combatant in order to circumvent the constitutional obligation to respect the citizen's due process rights is bad.

5. Accordingly, I believe that the Judgment of the District Court was right in Padilla and the 4th Circuit got it wrong. I am comforted in that view by the fact that the Bush Administration was sufficiently concerned by the approach of the Supreme Court majority to executive detention without trial under the AMUF to shift Padilla in extremis into the criminal justice system.

BTW - Howard Gilbert questions whether the AUMF equates to a declaration of war. I consider it does not. Only Congress may declare war and the last time the USA did that was in WW2. Since then declarations of war have gone out of fashion by reason of the UN Charter provisions.

Thus I take the view that the status of the invasions of Afghanistan and Iraq is that of undeclared wars probably unlawful as a matter of international law.

However, the issue whether armed hostilities are lawful or not as a matter of domestic law is usually regarded as a matter on which domestic courts will not adjudicate that being a matter for the elected branches to resolve.
 

Shag from Brookline.

Thanks for the heads up on Professor Wuerth's scholarly and very readable paper on the Captures clause. I enjoyed reading it and I hope you do too. Note the conclusion:

"The best understanding of the Clause is narrow in terms of object, including moveable property taken for adjudication as prize, but not persons. The type of control is broad: it includes the power to authorize the making of captures and also to determine their legality. This conclusion helps, in turn, to make sense of other uncertainties about congressional and presidential power. It resolves a long-standing confusion about the Marque and Reprisal Clause, which provides only the power to license private vessels. That conclusion has been resisted, because Congress clearly exercised the power to determine what property could be taken by both private and public vessels. This power is a function of the Captures Clause, however, not
the Marque and Reprisal Clause. With this congressional power clearly established, it becomes clear that the “Declare War” power includes at least some methods of war-initiation and measures short of war. Finally, any claim that the President, as a matter of constitutional text and history, controls all tactical decisions about how force is deployed, is put to rest by a careful reading of the Captures Clause."

You may recall that poor dear Bart and I had some exchanges on the significance of the Captures clause back in 2008, he asserting that it was about prisoners as well as goods, while I maintained that it was about the seizure of vessels or movable property to be taken taken for condemnation by an Admiralty Court in the exercise of the prize jurisdiction: "Vessels and not People".

I am pleased to see that pace poor dear Bart, Professor Wuerth comes to the same conclusion.
 

Mourad:

Thanks for your thoughtful reply. However, you do not offer any argument as to why a citizen who is a member of a foreign group at war with the US cannot both be a enemy combatant subject to detention as a common law POW and a traitor.

As to your other points, the Due Process Clause provides whatever procedural protections the courts and Congress deem necessary for a particular situation. In the case of citizen POWs, Congress set the due process necessary for a status determination by ratifying the Geneva Conventions, which simply requires a hearing. The CiC's discussion with his officers and counsel concerning the status of Padilla meets this requirement. At the time, the courts had not established any greater due process requirements for POW status hearings involving citizens.

Professor Wuerth does indeed make a strong original meaning argument that the Captures Clause is limited to setting rules for the capture of property. I may have to concede this point to you. If Wuerth is correct, then the DTA, MCA and all other legislation setting rules for the treatment of POWs are very likely unconstitutional because they exceed the enumerated powers granted in Article I, unless the legislation is executing treaty obligations like the GCs. Instead, setting rules for POWs would appear to be a plenary power of the President as CiC. Interesting.
 

Afghanistan arguably declared war on the US twice, in August 96 and in Feb 98.


What are you talking about, or rather, how could you say something so unschooled?

I do not have the resources to determine if the Afghan declaration was good enough. I think it is racist nonsense, however, to ignore it because they weren't white enough or powerful enough to be treated seriously.


It is difficult to decipher what you are trying to say here, other than to construct an absurd and wholly irrelevant straw man.

The attack on the USS Cole was undertaken by agents of Al Qaeda, not agents of Afghanistan.
 

This comment has been removed by the author.
 

"The issues of combatant status arise under the Geneva Conventions." This is a commonly held misconception. There are three related questions:

1) Who may be targeted by the military with lethal force without provocation or warning.

2) Who is entitled to combatant privilege and may not be charged with civilian crimes (such as murder) for his actions as a soldier.

3) Who is entitled when captured during an armed conflict to be protected by the Third Geneva Convention.

Some have asserted that these are three different aspects of the same status. Therefore, they claim, the clear language of GC III can be used to also establish the status of 1) and 2). However, the June 2 ICRC document on Direct Participation in Hostilities makes it clear that only 2) and 3) are actually connected.

"Strictly speaking, however, these requirements constitute conditions for the post-capture entitlement of irregular armed forces to combatant privilege and prisoner-of-war status and are not constitutive elements of the armed forces of a party to a conflict."

In the current conflict against the Taliban and al Qaeda, those who can be targeted on the battlefield as enemy combatants are determined by "continuous combat function":

"In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities"

Claims that an organized military force of a non-state party to an armed conflict can achieve greater protection by violating the laws of war are not only wrong but illogical:

"it would contradict the logic of the principle of distinction to place irregular armed forces under the more protective legal regime afforded to the civilian population merely because they fail to distinguish themselves from that population, to carry their arms openly, or to conduct their operations in accordance with the laws and customs of war."

So, members of the regular armed forces of the Taliban and al Qaeda have all the disadvantages of combatants (they may be shot on sight) but might have none of the protections (they may be charged with crimes for engaging in combat and they may not entitled to GC III POW protections).

What do you call them? Unprivileged belligerents? Unlawful combatants? The one thing the ICRC makes clear is that they are NOT civilians.

Also wrong is the idea that US statutes trump international law:
"a US citzen who kills another US citizen outside the USA (on the field of battle or otherwise) is surely caught by US Code Title 18, Section 1119(b). His combatant status is irrelevant."

In war, international law trumps the domestic law of both (all) nations. While GC IV requires nationality, GC III intentionally omits it. So a US soldier who joins the regular armed forces of a foreign nation falls under the protection of GC III and must be held only as a POW for the duration of the conflict and enjoys combatant immunity. He can be charged with Treason only because that deals with his very status as an enemy soldier and not with actions such as combat.

"So the purported designation of a citizen prisoner as an enemy combatant in order to circumvent the constitutional obligation to respect the citizen's due process rights is bad." If the army of Afghanistan dressed in uniforms, then classification of a citizen as a POW would be required by the Geneva Conventions. That is why the US Government and Supreme Court decisions from WWII to Hamdi hold that citizens can be detained as enemy combatants.

Of course, Scalia in his Hamdi dissent agrees with you.
 

Bart writes tentatively conceding the validity of Professor Wuerth's view of the Captures clause and then saying:

"Instead, setting rules for POWs would appear to be a plenary power of the President as CiC. Interesting."

May I suggest that "it ain't necessarily so". Having gone through the discussion in Part VI of Professor Wuerth's draft paper, I do not understand her analysis as signifying that only the President as Commander in Chief may regulate the treatment of those who have to be detained by the USA in the course of armed conflicts. Professor Wuerth suggests that the power to regulate the detention of prisoners may be found in (i) the Government & Regulation power, (ii) the Offenses Clause, and (iii) the Declare war clause. She suggests that the Congress has a very broad power over the manner in which both war and foreign affairs may be conducted and cites apparently favorably Jules Lobel's aphorism that the only CinC power that the Congress cannot override is the President's power to command: ...to be the nation's first general and admiral.

This interpretation would surely be anathema to those of the Addington/Yoo/Bybee persuasion, but it fits the general theory that the Founding Fathers wished to vest in the Congress or in the President only by and with the advice and consent of the Senate many of the powers that in the Britain of their day were certainly exercised by the executive in the name of the Crown under the Royal Prerogative. It also seems to fit the modern scheme of things in general constitutional theory where the concurrent exercise of power by legislature and executive is that to which the judicial branch ought to afford the greatest deference.
 

On the concurrent combatant and citizen question Bart poses, I would point out that Geneva Convention protections are afforded by virtue of multilateral treaties by which the signatories commit themselves to affording protection to certain persons who are not their own nationals.

NB in Hamdan -v- Rumsfeld the US Circuit Court held that the Geneva Conventions are treaties between nations and do not confer individual rights. Fortunately, the Supreme Court disapproved.

This is the point that Howard Gilbert gets wrong. He fails to distinguish between a treaty obligation to foreign nationals and US nationals. If a detaining power finds one of its own nationals in among the detainees it apprehends, it does not resort to its treaty obligations but applies its domestic law. A UK national involved with a terrorist group in Afghanistan if apprehended by UK forces has no expectation to be classified as a POW or as a mere detainee - but he can expect to be shipped home for prosecution under the Terrorism Acts.

What protection a state affords to its own nationals is a matter of its domestic law. In some states that may only amount to "you can scream all you like, this room is soundproof".

One hopes the USA has not quite got there yet, but it may yet be shown to have been the case for Mr Padilla.

Padilla was, like Hamdi, a US citizen. While the constitutional rights of US citizens (particularly as restrictively interpreted by Alito/Robert/Scalia/Thomas) are perhaps not as extensive as one might wish, they are nonetheless substantive and important and not to be circumvented by executive fiat.

See Hamdi -v- Rumsfeld where 8 of the 9 justices held that the Executive Branch does not have the power to hold indefinitely a US citizen without basic due process protections enforceable through judicial review.

As Mr Gilbert acknowledges, it was Justice Scalia joined by Justice Stevens, who in Hamdi got it right in historical terms.

As if to prove that even a stopped clock is right twice a day, Scalia held the government had only two options to detain Hamdi: either Congress had to suspend the right to habeas corpus - a power only constitutional in times of invasion or rebellion; or Hamdi had to be tried under normal criminal law.

Scalia was of the opinion that the only task of the Court was to declare the detention unconstitutional and order his release or proper arrest, and not to seek to invent an acceptable process for detention. That would, I believe, be the UK approach, whether for a citizen or a non citizen.
 

"If a detaining power finds one of its own nationals in among the detainees it apprehends, it does not resort to its treaty obligations but applies its domestic law."

That is not what Article 4 of the Third Geneva Convention says:

"Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces."

Now find any statement anywhere in the Third Convention that excludes US citizens. We know what that language would look like, because it's in GC IV:

"Article 4

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals."

Since the drafters clearly knew how to say "of which they are not nationals", their decision to include it in the Fourth Convention and not include it in the Third Convention is clearly significant. If you dispute this, cite any part of the Third Convention that says otherwise.

Lets put it a different way. Suppose you accept my point of view that this was a real war with Afghanistan (or else create a hypothetical war between the US and future Afghanistan). An Afghan citizen who has immigrated to the US joins the US Army and goes to fight against the country of his birth. He is taken captive by the Afghan army and slowly cut up into small pieces following some local Afghan custom. Do you not imagine that the US would capture those responsible, try them by Court Martial for violation of their obligations under the Geneva Convention to properly treat a US soldier, and hang them for the murder.

A soldier may have some tenuous loyalty to the place of his birth, but the Supreme Court notes in all these cases that whatever that loyalty may be, his duty to his chain of command and obligation to follow lawful orders is overwhelmingly stronger. In exchange, the US has an obligation to protect its soldiers and will hold any enemy commander responsible for violations of their obligations under international law to anyone who wears our uniform and fights on our behalf.

Of course, when the Third Geneva Convention does not apply, the detaining power is free to bring one of their own nationals home and try him criminally.

Those protected by GC III must be treated as POWs no matter what domestic law says. Civilians can be tried as criminals.

Then there is the third group identified by the ICRC: members of the organized armed forces of a non-state party to a non-international armed conflict. They are not protected by the GC and they are not civilians.

The ICRC suggests that it is irrational to grant them the rights of civilians specifically because they violate the laws of war and hide their combatant status. Well, law can be irrational.

However, I refuse to believe that our Constitution is so irrational that basic protections like due process depend on what someone is wearing, although that is precisely what determines GC III protection.

I would rather argue that a person becomes an enemy soldier when he enlists (or formally joins the enemy armed force) and returns to civilian life when he is discharged or otherwise formally leaves military service. That is the same rule for US citizens whether they join the US army or the French Foreign Legion. While in military service you are subject to military justice and military orders, whether you are fighting on behalf of your army or detained by your enemy as a prisoner. It is symmetric, consistent, logical, and it also happens to be the finding of the Supreme Court in every case in the last century.
 

Mourad:

Bart writes tentatively conceding the validity of Professor Wuerth's view of the Captures clause...

Actually, now that I have had a chance to read her paper in depth, Wuerth makes a solid original meaning argument that Captures applies to captured property, but she cannot rule out that the term applies to captured personnel as well.

Wuerth appears to be relying upon the fact that the term was used in correspondence more frequently for property than for troops. However, this could also be explained by the fact that Revolutionary America was usually losing land battles and rarely took British soldiers as prisoners of war. The Americans had more luck capturing British merchantmen.

Because she cannot rule out that the original meaning of the term captures extends to prisoners, I do not find Wuerth's analysis sufficiently convincing to truncate the term captures to the extent she proposes.

May I suggest that "it ain't necessarily so". Having gone through the discussion in Part VI of Professor Wuerth's draft paper, I do not understand her analysis as signifying that only the President as Commander in Chief may regulate the treatment of those who have to be detained by the USA in the course of armed conflicts. Professor Wuerth suggests that the power to regulate the detention of prisoners may be found in (i) the Government & Regulation power, (ii) the Offenses Clause, and (iii) the Declare war clause. She suggests that the Congress has a very broad power over the manner in which both war and foreign affairs may be conducted and cites apparently favorably Jules Lobel's aphorism that the only CinC power that the Congress cannot override is the President's power to command: ...to be the nation's first general and admiral.

Wuerth does not make any such suggestion.

Wuerth moves from eliminating the Captures Clause to using original meaning to eliminate the next best candidate - the Regulation Clause - as an alternative source of congressional power to set rules for POWs, correctly noting that this provision was applied to set the rules for the good order and discipline of our own military members.

At that point, Wuerth's analysis stops and she briefly notes the academic arguments of others that the Declare War Clause, Offenses Clause or even the Captures Clause as it applies to sailors on captured prizes could provide this power to Congress, or perhaps that Congress unconstitutionally assumed the power during the weak administration of John Adams (which was most certainly the case concerning the radical post Vietnam Congress running roughshod over the recent Carter Administration in an attempt to strip the President of his foreign policy powers).

Wuerth spends the end of her paper dancing around the obvious conclusion that the only viable alternative to the Captures Clause that could textually reach setting rules for POWs is Article II's CiC Clause, which she skims past in a four sentence paragraph.
 

Keep in mind, guys and gals, that Prof. Wuerth's article is a draft, and unlike many SSRN articles in draft form, she openly invites comments with the following at the top of each page following page 1:

"Draft. Comments Welcome: Ingrid.wuerth@vanderbilt.edu"

I'm up to Part V. The Constitution and hope to finish up today but may not fully jump into the fray. This thread is getting long and more distant with events in Iran and the recent SCOTUS decision on VRA (see Prof. Ackerman's post now heading this Blog) that it may need refreshing with a new post to open the door anew.

One of my focuses on reading Prof. Wuerth's article is how it plays out in the battle of constitutional interpretation. Prof. Wuerth has provided historical comparisons between the UK history on "captures" with that of the revolting colonies, which are most interesting. But much has occurred in the 200+ years since the Constitution that has to be considered in construing the "Captures" clause, especially as it might apply to individuals and have effect upon the separation of powers. So once again we face the battle of originalism versus living constitutionalism, as well as other competing methods of constitutional interpretation. Consider that the Constitution refers to an Army and a Navy, but not to an Air Force. Consider how "Captures" might apply to aircraft. History is important but we have to avoid getting lost in its maze as not all of us exit in the same direction.

But keep it up, guys and gals, keep it clean with Energine. I'm loving it.

Now will Brian start a new thread so this topic doesn't get lost in scroll-land? And let's give Prof. Wuerth a round of applause for her "Comments Welcome."
 

Article 1 Section 8 says the Congress is empowered:

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

While Article 2 Section 3 says that the President:

shall take care that the laws be faithfully executed



While Bart says:

Wuerth spends the end of her paper dancing around the obvious conclusion that the only viable alternative to the Captures Clause that could textually reach setting rules for POWs is Article II's CiC Clause, which she skims past in a four sentence paragraph.



Bart says he's a "textualist." I call him "delusional."
 

Mattski, after quoting pertinent excerpts from the Constitution on the powers of Congress and the duty of the President to faithfully execute laws, concludes:

"Bart says he's a 'textualist.' I call him 'delusional.'"

which demonstrates that our resident LLB* may be lost in the maze of history seeking an exit that will justify Bush/Cheney decisions over the 8 years ended 1/20/09. In other words, our resident LLB* is looking for a pony in Prof. Wuerth's draft. I think he'll have to search elsewhere for that pony, which may not adapt to a saddle to ride to a defense of Bush/Cheney.

*Little Lisa's bro
 

mattski:

You are free to demonstrate how the text of any of the Article I powers which you cut and pasted provide the power to set rules for captured POWs.

Hint: Bolding text and name calling are not legal arguments.

As to the Regulation Clause, you may want to review Section VI of Wuerth's paper. She does a great job of eviscerating the argument that the purpose of the Clause was anything but enacting rules for the good order and discipline of our military members.

The only Article I enumerated power that makes sense as a source of this power to Congress is the Captures Clause.
 

I looked over the article some and found it interesting. Marty Lederman's co-authored article on executive power was cited with approval.

It also was descriptive in scope, saying what happened, not laying down ground rules. This is a telling quote:

And there are several alternative theories for the source of the power that Congress exercised over prisoners during the 1790s. Perhaps this authority came from the Offenses Clause [against laws of nations], as suggested above,283 or as a function of the Declare War Clause, or (with respect to prisoners taken aboard prize vessels) as incidental to the Captures Clause itself. Or perhaps these Acts of Congress from the late 1790s – a full decade after the Constitution was ratified—were already a departure from the original understanding of the Constitution, facilitated by the political weakness of President Adams.

There is also the issue of overlap. For instance, control of property via capture would include some treatment of people found on them. And, other powers would also (in some fashion) touch upon captured people:

These standards could include general rules about the treatment of prisoners, but they nevertheless differ from directions focused on the specific treatment or exchanges of particular prisoners.

Thus, an army field manual might limit how the army treats prisoners, but perhaps not the CIA.

A "whole is more than the sum of the parts" philosophy is best taken when interpreting articles of this sort, though they can selectively be read to further a p.o.v. This is often a problem with originalism.

As an aside, the detention of prisoners during the Civil War is of interest to me. FN5 of Scalia's Hamdi opinion addresses the point. I'd add that Souter's opinion in that case provided a good way to avoid the enemy combatant issue as applied to citizens. One that is no longer possible in various respects given the holding of the Court.
 

As I finished reading Prof. Wueth's draft article, I had the benefit of this response of our resident LLB* to mattski:

"As to the Regulation Clause, you may want to review Section VI of Wuerth's paper. She does a great job of eviscerating the argument that the purpose of the Clause was anything but enacting rules for the good order and discipline of our military members.

"The only Article I enumerated power that makes sense as a source of this power to Congress is the Captures Clause."

I think our resident LLB* misreads Section VI if he is taking the position that the Captures Clause applies to persons. Yes, there is overlapping of various clauses in Article I. But Prof. Wuerth in the last paragraph of Section VI states:

"And Congress's power to dictate the taking and treatment of prisoners seems to have been understood during the Revolutionary War and the 1790's, yet the source of that power was not the Captures Clause nor its seems, the Government and Regulation Clause, and there are no other obvious candidates." So who's in charge, Congress or the Executive? If the latter, where in the Constitution is this provided? Perhaps the article in final form may provide an answer.

Whoever is in charge, the job should be done properly. Perhaps Padilla v. Yoo in due course may determine whether or not the job was done properly, assuming the Executive was in charge.
 

Shag:

I never claimed that Wuerth contended that the Captures Clause provided Congress the power to set rules for POWs. That is my contention in disagreement with Wuerth's truncated definition of the term Captures.

So who's in charge, Congress or the Executive? If the latter, where in the Constitution is this provided?

CiC Clause. Military commanders have traditionally set the rules for the treatment of POWs. Even if the Captures Clause enumerates this power for Congress, the President will still have the concurrent power to set rules in the absence of congressional action.
 

Our resident LLB* first stated:

"As to the Regulation Clause, you [mattski] may want to review Section VI of Wuerth's paper. She does a great job of eviscerating the argument that the purpose of the Clause was anything but enacting rules for the good order and discipline of our military members."

Then he states in a later comment in response to my comment on his comment:

"I never claimed that Wuerth contended that the Captures Clause provided Congress the power to set rules for POWs. That is my contention in disagreement with Wuerth's truncated definition of the term Captures."

First, Wuerth did "a great job" and then she had a "truncated definition of the term Captures" that he now seems to disagree with.

But then he adds:

"Even if the Captures Clause enumerates this power for Congress, the President will still have the concurrent power to set rules in the absence of congressional action."

This is confusing. But this is the meat of his Bush/Cheney defense:

"CiC Clause. Military commanders have traditionally set the rules for the treatment of POWs."

Is there a dormant Captures Clause application giving authority per CiC Clause to Executive? Prof. Wuerth states in Section VI D. The Commander-in-Chief Power:

"On the other hand, the Captures Clause did not give Congress a general power to control the taking and detention of people." Perhaps he and Wuerth are not in disagreement on the Captures Clause. So my confusion.

As I closed my prior comment:

"Whoever is in charge, the job should be done properly. Perhaps Padilla v. Yoo in due course may determine whether or not the job was done properly, assuming the Executive was in charge."
 

Shag:

My friend, reread my posts that you cut and pasted. You are confusing my note of Wuerth's discusssion of the Regulation Clause with my comments concerning the Captures Clause. Two different items.

Also, there is no debate that the CiC Clause gives the President general authority to set rules for POWs. Presidents or their subordinates in the military have done so from the dawn of the Republic. This hardly started with Bush/Cheney.

The only debate is whether Article I grants Congress an enumerated and thus superior power to do so. I believe that the Captures Clause provides this power, while Wuerth is unsure whether Article I provides such a power at all.
 

As I asserted in discussion with dear Bart in July 2008, the expressions "letters of marque and reprisal" and "captures" are terms of art well-known to Admiralty lawyers since Tudor times and such operations an important incident of Britain's running naval struggles with the Dutch, the French and the Spanish.

As Professor Wuerth's diligent research illustrates, the naval war with our rebellious colonies in North America also meant that the Founding Fathers had these incidents of hostilities very much in their mind.

Professor Wuerth notes at footnote 22 Yoo's contention: "See Yoo, The Powers of War and Peace, at 147 (arguing that the powers granted in the Captures and Marque and Reprisal Clauses only govern a subset of low-level hostilities)"

Letters of Marque and Reprise and Captures were not "low level hostilities" but an important component of the projection of naval power - and naval power was essential to land warfare - as Philip II found out to his cost and as Napoleon found out during the Penninsular War. The British well knew this. See the 1740 anthem Rule Britannia. The principle underlying the words would have been well understood by the Founding Fathers.

The main thrust of Professor Wuerth's argument is stated at pp 6-7:-

"Part VI concludes that to a very remarkable extent, these powers granted to Congress are closely related to international law and the potential for conflict with foreign nations — the text of the Constitution unmistakably concentrates such powers not only in the federal government as a whole, but specifically in Congress....New congressional supremacists generally argue that as originally understood the Constitution gave Congress broad exclusive power over the initiation and conduct of war.

It is undeniable that three important Royal Prerogative Powers in the foreign affairs sphere (i) to conclude treaties; (ii) to nominate ambassadors; (iii) to declare war (diplomacy by other means) were explicitly not to be exercised by the chief executive alone but either by the legislature or by the President by and with the advice and consent of the Senate (which thereby had some of the attributes of the Privy Council).

What one does with prisoners who are nationals of a foreign sovereign is a very much an incident of foreign relations both as regards treaties regulating prospectively how prisoners are to be treated in the event of hostilities and in relation to peace treaties putting an end to hostilities. Further, since prisoners are by and large taken by the military, logically it would seem consistent to find the power to set rules for the treatment of prisoners in Article 1, Section 8.

So, I would posit that the logical approach is that the Congress is to legislate on the status and treatment of prisoners and the President as C-in-C is to take care of faithful execution (of the laws not the prisoners).
 

Here's an interesting AP story via FindLaw at:

http://news.findlaw.com/ap/a/w/1152/06-23-2009/20090623005007_01.html

"Judge orders Guantanamo detainee freed"

By DEVLIN BARRETT Associated Press Writer

with an odd twist: the Government's proof against the detainee consisted of certain suicide videos that the Judge determined actually depicted that Al Queada was torturing the detainee. The government apparently did not torture this detainee other than the tortured reasoning of the government's lawyer.

Recall the TV "Naked City" series opening line for each episode with this closing comment in the AP article:

"There are 229 detainees still held at the U.S. military base in Guantanamo Bay, Cuba. President Barack Obama ordered the detention center closed by early next year."

Yes, this is one of the stories.
 

I have reread and reread portions of Prof. Wuerth's draft article pertaining to "Regulations" and "Captures" and "CiC" overlaps in Section VI and I have reread and reread our resident LLB* comments, my comments and the comments of others, and I remain confused. Perhaps my confusion is with the word "eviscerating" that our resident LLB* used in describing Prof. Wuerth's analysis of the "Regulations Clause." "Eviscerating" is a powerful word. But I don't think it describes what Prof. Wuerth said.
 

My reading assignment this morning is W. Bradley Wendel's "The Torture Memos and the Demands of Legality" available via SSRN at:

http://ssrn.com/abstract=1422603

which reviews six (6) recent books by Howard H. Bruff, Jack L. Goldsmith, Jane Mayer, Philippe Sands and John Yoo. It's a short 16 pages.
 

CORRECTION TO PRECEDING COMMENT:

" . . . five (5) recent books . . . ."
 

Any thoughts on the "Captures Clause" as it relates to the US Navy's tracking of a North Korea ship that may have WMD?
 

Shag from Brookline said...

"Judge orders Guantanamo detainee freed"

The habeas court held that al Qaeda compelled the terrorist to join their ranks and thus could not be held as a prisoner of war.

This must be one of the top three examples why civilians courts have no business whatsoever determining who should be held as a POW.

Most of our enemies conscript their troops and keep them in the ranks by threats or acts of violence. Under the "reasoning" (sic) of this decision, we could not have held nearly all of the Iraqi troops captured in the Persian Gulf and Iraq Wars.
 

we could not have held nearly all of the Iraqi troops captured in the Persian Gulf and Iraq Wars.

# posted by Bart DePalma : 10:33 AM



I'm pretty sure we have released all those prisoners.
 

You are free to demonstrate how the text of any of the Article I powers which you cut and pasted provide the power to set rules for captured POWs.


Bart, I apologize for the name calling even as I regret to insist that it is necessary in your case. There is a sense in which you do--contrary to appearances--participate in good faith here and I want to acknowledge that. I think your tenacity and "faithful" presence here is a manifestation of sincerity of a sort. I also think you are oftentimes constitutionally incapable of perceiving facts which are damaging to your closely held beliefs.

So all-in-all, sorry for labeling you delusional, but no, I don't take it back.

Btw, the Constitution allows Congress to make any law whatsoever governing the conduct of the armed forces. I needn't say more than that.
 

Bart wrote:

"Most of our enemies conscript their troops and keep them in the ranks by threats or acts of violence.

Bart may have forgotten that in common with most Western democracies, conscription has been used by the United States on and off since the Civil War.

So what was Bart's motive for taking issue with the opinion of Judge Leon who, according to the AEI, is "...a conservative judge, a George W. Bush appointee, a Federalist Society member... and whose Unclassified Opinion seemed perfectly proper?

Poor Bart's problem seems to be that he gets upset when either the facts or the law get in the way of his delusional opinions.
 

"Poor Bart's problem seems to be that he gets upset when either the facts or the law get in the way of his delusional opinions."

Mourad:

And when both "the facts [AND] the law get in the way of his delusional opinions" he POUNDS ON THE BLOG TABLE!

And he's got no sense of humor with the Judge's observation - common sense - from viewing the videos that the government produced to show the defendant was an Al Queda member actually showed the defendant being torturned by Al Queda. Back in 1955 I was conscripted - post Korea, pre Vietnam - into the US Army but there were no threats or acts of violence other than the time I had to stand on the bus for the 20 mile trip to the rifle range. We'll have to take actions to convert that Backpack of Lies into a Backpack of Humor.
 

Padilla was first held on as a material witness because the government wanted to hold him indefinitely for questioning. He was then transferred to a military brig in South Carolina because the administration foresaw the second circuit decision. Then, after more than three years in a military brig in South Carolina, the administration finally decided to charge him to avoid an adverse SCOTUS decision.

That is a reasonable seizure?

A previous commenter referenced Scalia's Hamdi dissent. Padilla's case is clearly a winner under the logic of that opinion, but the majority opinion also provides support for the idea that the Fourth extends to Padilla, although in a limited form.

The Hamdi majority concluded that Hamdi was entitled to some constitutional protections, though possibly in a limited form. The same should be true of the Fourth in Padilla's case: its protections apply to him, but the fact that he was once considered an enemy combatant affects the reasonableness analysis.

Daniel
 

"Padilla was first held on as a material witness because the government wanted to hold him indefinitely for questioning." A material witness cannot be held indefinitely. Padilla was taken to the Federal lockup in NYC where the grand juries were investigating 9/11. He told the FBI everything, but if he had refused to talk he could have been immunized like they do with mobsters, and then he would have had to answer any question the government put to him in the grand jury.

"He was then transferred to a military brig in South Carolina because the administration foresaw the second circuit decision." The case had not even been filed, the government won in district court, and nobody could predict what three judges would be assigned to the case.

They had captured documents from Afghanistan showing Padilla had joined the army there, and his statements that he was still an active duty soldier on a military mission. The transferred him to military custody because that is what they were obligated to do in wartime with a captured enemy soldier.

"Then, after more than three years in a military brig in South Carolina, the administration finally decided to charge him to avoid an adverse SCOTUS decision." They had already argued the merits of the case once before the Supreme Court. This time they would be defending a victory instead of appealing a defeat.

The simple explanation is that they decided to "quit while they were ahead." The last decision in the case was a complete win for the government. Padilla had no remaining value as an intelligence source. He hadn't even been questioned for almost two years. Dump him into the criminal justice system and be rid of him.

Without first hand knowledge of the motives, it makes better sense to use the obvious explanation rather than inventing strange ideological explanations.

"That is a reasonable seizure?"

In a proper POW camp, the enemy officers remain in command. The enemy enlisted men have to follow their orders, but now the US military has become a superior of all the detainees. US soldiers can issue lawful orders and they must be followed just as if they came from high ranking enemy officers. The US can order them to go to Mississippi and sit in the POW camp. The US can order them to dig holes or do push ups. An order is lawful if it is not illegal under US military law, under the Third Geneva Convention, or under the military law of the enemy army.

The enemy soldier loses no freedom because, had he not been captured and remained part of his original chain of command, one of his own superior officers could have issued the exact same orders to go to a camp near Kandahar, dig holes, and do pushups. If those orders would have to be obeyed, then so do ours.

Therefore, there is no seizure. There is no loss of liberty. The soldier has simply been transferred to new commanders.

Hamdi says that someone who claims not to be a soldier is entitled to additional process. Padilla didn't contest the claim that he was an enemy soldier.

This also explains why POWs don't fall under the Captures clause or the Letters of Marque. That is all about money. Prize ships were big bucks in someone's pocket. If you can't afford to raise your own navy, then you have to outsource to private enterprise. Like it or not, Captures is really about the 18th Century version of Blackwater.

Since POWs are soldiers under your command, Congress can make regulations for them just as it does for our soldiers (UCMJ) and the President can issue orders to them as CiC. If you want to ask who is in charge of any given matter, just ask which branch is in charge of the same question for a US soldier.

Historically the power to regulate POWs was the power of the purse strings. If you want to set up a camp, Congress has to appropriate the money. That is why the current Congressional legislation on Guantanamo is in an appropriations bill and takes the form of a prohibition on spending money to move the prisoners.
 

About Howard Gilbert's post above.

Just because someone says he is a "soldier" in an "army", does not mean he is.
Afghanistan is a sovereign state. It had a government at all material times. Afghanistan did have an army and its regular officers and men would have been entitled to POW status - and that would include Afghan irregulars who took up arms in the defence of their nation when the USA invaded.

Foreign nationals who went to support the Taliban Government could in some circumstances have been members of the armed forces of Afghanistan subject to proof of enlistment and being under command. Many states do not require their soldiers to be nationals of their country. I am old enough to remember that when there was a US draft, UK nationals working in the USA had to watch the length of their stay because they could become liable to be drafted and sent to Vietnam. France has its Foreign Legion and the UK its Ghurka forces.

But Al-Quaida is not a nation state. It has none of the attributes of sovereignty. Therefore those who claim to be "soldiers" of Al-Quaida do not have that status. They cannot be POWs.

There were and still are a number of terrorist organisations in Ireland: The "Irish Republican Army" described itself as "an Army" and adopted a military-style chain of command. Was it an Army and were its adherents soldiers? Of course not, because it was was not organised by any state. Were its adherents treated as prisoners of war when apprehended? No. Were its adherents prosecuted for criminal offences? Yes. On both sides of the border.

POW Status
The argument that a Prisoner of War in the lawful custody of a detaining power has not lost his liberty is nonsense. A POW is detained. There is barbed wire around the compound. He is under a military duty to try to escape. An order from the high officers of the detaining power that he should not try to escape is unlawful. The detaining power is limited in the orders it can give and in the punishments it may inflict - See the Geneva Conventions. `

If a POW does escape and he is apprehended, his POW status continues and he must be returned to military POW custody. Doubt this? Watch a rerun of the "The Great Escape". The war crime in that case was the order Hitler gave that on recapture half of the escapees were to be shot.

Prisoner status also depends on nationality because of the international law obligations of the detaining power to the state of which the POW is a national. Thus, after WW2, the USSR claimed the Russian POW formerly held by Germany and the USA and the UK took steps to repatriate Russian POWs from the German POW camps they then controlled to the USSR - in some cases forcibly.

That is also why the UK was entitled to seek the release from Guantanamo of detainees of UK nationality.

Captures are the 18th Century Version of Blackwater
Not so. There was a proposal floated that that Blackwater should acquire some naval vessels and that letters of marque should issue to them so they could go after Somali pirates. Had that happened, then any vessels they took would have been "captures" to be adjudicated under the prize jurisdiction of an Admiralty Court.

Blackwater's contractors employed by the DoD have a very uncertain status. Arguably, they are always subject to US law, but also to the territorial jurisdiction of the state on whose territory they operate in the absence of an express treaty agreement surrendering such jurisdiction - technically known as a "capitulation".

The War Appropriations Bill
If the President should sign the bill a whole can of worms is opened up. The draft legislation may not be compatible with the rights of detainees in domestic and international law.
 

My reading assignment this morning is Mark Curriden's "A Supreme Case of Contempt - A tragic legal saga paved the way for civil rights protections and federal habeas actions" in the June, 2009 issue of the ABA Journal. The case is United States v. Shipp, decided 100 years ago.
 

Mourad said:

"The War Appropriations Bill
If the President should sign the bill a whole can of worms is opened up. The draft legislation may not be compatible with the rights of detainees in domestic and international law."

For this reason, we need an independent judiciary, whether it is Executive or Congressional action/inaction on detainees. But most likely the judiciary will look at it politically. (Witness the VRA 8-1 SCOTUS decision on Section 5 and Dionne's Op-Ed in today's WaPo on SCOTUS's political side.)
 

Mark Curriden's ABA Journal article is quite chilling with its details. Consider the impact upon the two African American lawyers involved in representing the African American defendant Ed Johnson. One of them, Noah Parden, was the first African American lawyer to appear before SCOTUS as lead counsel. Here's what Curriden says:

"Every one of Parden's constitutional arguments in Johnson's case were eventually affirmed by the Supreme Court--that the right to a fair trial is undercut by the threat of mob violence; that defendants must be afforded the right to effective counsel; that criminal trials must be open to the public; that there is a federal right to a fair trial in state criminal proceedings; that states may not systematically exclude potential jurors because of race; and that state criminal defendants have a right to federal habeas corpus proceedings."

But some today seek to erode some of this progress that took so long in coming after US v. Shipp.
 

Mourad,

The American Volunteer Group (Flying Tigers) were American airmen who joined an all American unit of the Chinese army to fight the Japanese while the US was neutral during WWII. The 055 Brigade was a unit of Arab volunteers trained by al Qaeda and then integrated into the Taliban army fighting against the Northern Alliance. The Lafayette Escadrille was a unit of American flyers who fought for France during WWI.

Padilla was trained by al Qaeda in the al Farouq camp, but then he spent three months of ordinary guard duty in front of a Taliban government building in Kabul. Soldiers trained by Friedrich von Steuben at Valley Forge didn't become soldiers of the Prussian Army.

If Padilla had been captured in Afghanistan, I think you would have no legitimate argument. However, he was captured after the Afghan army was routed and crossed the border into Afghanistan. We have a workable understanding of the relationship between al Qaeda and the rest of the Taliban army before Tora Bora. The next four months are unclear. If the unit Padilla joined split off and became independent, you have a good argument. If they remained an integrated component of the Army in exile (in the Pakistan territories)of the Taliban government of Afghanistan, then like the Free French after D-Day or the 1st (Polish) Independent Parachute Brigade at Arnhem they had every right to claim military status (and the US had some right to reject the claim just as the Japanese rejected the POW status of downed fliers from the Fighting Tigers).

POW Status

I did not say that a POW has not lost his liberty, I said that he lost no additional liberty by being a POW. Such liberty he lost he gave up when he joined an army. When you enlist, you have to go wherever your superior officers tell you to go. When you are captured, the detaining power becomes part of your chain of command and you have to follow orders with certain limitations. You are expected to try and escape. You are not required to give any information other than name, rank, and serial number. However, before you were captured you had to follow orders and stay where you were told to stay, and the same is true after you are captured.

The point is that a POW is no less free than he was before capture. In fact, he has a bit more freedom because he is expected to try and escape, while leaving the post assigned to you by your own army is desertion and can get you hung.

If you are in the US Army and are ordered to go to Camp Frozenbutt in northern Alaska, for nine months a year you probably experience less freedom of movement than a POW in Mississippi, and you have no more say in the matter than he does.

"Prisoner status also depends on nationality because of the international law obligations of the detaining power to the state of which the POW is a national." Not exactly. Had the US recognized that enemy soldiers captured in or near Afghanistan were legitimate POWs of of a foreign army, then military enlistment trumps citizenship. Consider what the US would say about a detained US Army solider. It would not matter if he was a citizen of some other country. He is a US soldier, period! However, since the US refuses to recognize the legitimacy of the Taliban army, then the disposition of detainees is plausibly influenced by any country in which they can claim citizenship.
 

HowardGilbert,

True, a witness cannot be held indefinitely if the government is using it properly: the witness has to be released after their testimony is secured. But Padilla was not being held to secure his testimony for any particular case; he was being held for general questioning. That is an abuse of the material witness statute.

As for the Second Circuit case, while it is true that he was moved before it was filed, you cannot seriously contend that the government did not foresee an appeal, or would rather have the case heard in the Fourth Circuit.

And while the merits of the SCOTUS case were argued, the majority did not reach them. All SCOTUS held was that the SDNY was not the proper venue in which to file suit. Only the dissent reached the merits. Under sec 2241, a habeas petition must be filed in the district court that has jurisdiction over the place of confinement. Since Padilla was secretly moved to South Carolina two days before his habeas petition was filed, the SDNY was not the proper venue.

So the government would not be returning to SCOTUS a winner -- this time SCOTUS would reach the merits (assuming it heard the case) since the case was filed in the proper district court. More importantly, Rasul and Hamdi had already been decided. So -- yes -- the government could foresee an adverse SCOTUS decision. That is why it finally charged him criminally: not because he was not longer "any use" to them.
 

Daniel,

Grand Juries are used all the time to perform general investigation. They don't have to know in advance what they are looking for, but in this case they would be looking for information on the people responsible for 9/11. By complete accident, Padilla was exactly the right guy to ask. He had just been through two weeks of training with all the people directly involved in the attack (except for the hijackers themselves).

The government moved three people (Hamdi, Padilla, and al Marri) into a cleared out section of the main naval brig in SC. "Since Padilla was secretly moved to South Carolina two days before his habeas petition was filed..." Padilla is transferred to military custody, the AG holds a press conference in Moscow to announce the transfer, and then the habeas petition is filed in the wrong jurisdiction. Hard to call it a secret. Besides, all they have to do is file a new petition in the right jurisdiction. There is no rule that says once you file the petition in the wrong location, you have to litigate for two years before a court points out you made a mistake.

"Rasul and Hamdi had already been decided. So -- yes -- the government could foresee an adverse SCOTUS decision." Neither Rasul nor Hamdi were released. SCOTUS simply said they had a right to Habeas or to an impartial hearing if they claimed not to be combatants. The Fourth Circuit decision specifically asserts that Padilla can be held specifically because of the reasoning in Hamdi. Padilla was not claiming he wasn't a combatant, so to prevail on his summary judgment, the court must begin by assuming that he is an enemy combatant and decide to release him anyway. That has never happened, even up to today with all the Habeas hearings in the DC Circuit. There is simply no basis even today to imagine that SCOTUS would be favorable to any of the issues in Padilla's cert petition.

In every one of these cases the government took one extreme position and the detainee took another extreme position. The Court then rejected both extremes and chose a sensible position. Because the extreme government position was rejected, ideologically driven commentators say the government lost. But so did the detainees. Until Leon started in the last few months to release the people for whom the government had no reasonable evidence, none of the cases resulted in the release of anybody. In Padilla's case the government has overwhelming evidence in Padilla's own statements. They are inadmissible in a criminal case because he was denied a lawyer, but they can be admitted in this type of Habeas case. Of course, to get they you have to be considering evidence.

In the entire history of all the detainee litigation, nobody was ever released on summary judgment, which was what Padilla was demanding.
 

Summary Judgment? This was a habeas petition. Padilla sought release from unlawful detention. That is the traditional relief in a habeas corpus action. Had this relief been granted, the Padilla could have still been indicted criminally. A habeas judge could have even conditioned release on the government's right indict him criminally -- the remedy Stevens and Scalia preferred in Hamdi.

Hamdi was not released by the Supreme Court because the merits of his case were not litigated fully in the lower courts, so the case was remanded. But the government released him before remand. So he kind of did win (though he had to renounce his citizenship and return to Saudi Arabia).

Four courts heard Padilla's case. Only the Fourth Circuit accepted the government's claim that the president could hold him in military custody simply by declaring him an enemy combatant. Even Mukasey rejected that notion.

Remember, Hamdi was captured in Afghanistan. Padilla was the only US citizen arrested in the US, which is important for 4th Am purposes. And he flew in on a commercial jet; he was not dropped off by a U-Boat in a military uniform.
 

Howard Gilbert suggests that on prisoner status issues: "military enlistment trumps citizenship". This seems to me to be stuff and nonsense.

When a citizen adheres to a foreign enemy power and fights against the country to which he owes allegiance, then he has no right to POW status when he comes into the hands of the armed forces of his own country as detaining power. The British fascist John Amery, son of a Conservative cabinet minister, and brother of another went over to Nazi Germany in WW2 and was involved in the formation of the Britisches Freikorps as a unit of the Waffen SS. None of the members of the Corps were treated as POW's upon apprehension. Amery was tried for treason, pleaded guilty and was hanged. Others were convicted of high treason and the death sentences commuted to terms of imprisonment and two were tried but acquitted.

That is not to be confused with the situation where the detaining power finds non-citizens of the enemy power among its prisoners (see for example Battle of Britain American Pilots. Many US pilots enlisted in the British RAF and the Canadian RCAF while America was still neutral in WW2. Some were, inevitably, shot down and taken prisoner before the USA entered the war and were treated as POWS.

If one looks at the German documents captured post war, the Nazis actually knew the identity of all the Americans who had joined the Eagle Squadrons and other RAF and RCAF units and the fact of their US nationality was very much in the mind of the Nazis who were keen that the USA should stay out of the war. RAF pilots who were nationals of the "defeated" nations under Nazi occupation were not necessarily so lucky - quite a lot depended on whether it was the Gestapo or the Military who got hold of them first.

Padilla was, if anything, an adherent of Al Quaida and the fact that he and others were involved in Afghanistan did not, in my view, make him entitled to POW status as a member of the Afghan forces. Had the USA troubled to seek a UN Mandate for its operations in Afghanistan (on offer but spurned), then if taken in Afghanistan he could lawfully have been detained under the authority and terms of a Chapter VII mandate.

As it was, he was arrested in the USA and for me the Scalia/Stephens dissent in Hamdi should have been the proper and only possible outcome: charge him with a crime and proceed accordingly giving him all due process, or release him. It ought to have been good for no more than a day in Court. And I think the common law procedural jurisprudence which is that the process is good if it names the officer of cabinet rank who has the power to direct the jailer to effect release ought to have been adopted by the Supreme Court, rather than clart about with technicalities inimical to the rapid relief which is the essence of the habeas jurisdiction: All executive detention is presumptively unlawful and breach of that principle should be stamped upon by the judiciary - hard.

As I feared, the President has signed the legislation to which the Congress has, I think ill-advisedly tacked on detainee provisions. Ms Pearlstein's post above, which is unfortunately not open for comment, does highlight some of the concerns, albeit with a degree of "fuzzy logic".

I note that the lawyers for the Uighurs still in custody have not been slow to raise the issue with the Supreme Court: Bingham McCutchen letter on Scotusblog suggesting that the legislation "appears to be an unlawful suspension".

But I suspect your present Supreme Court, which as a guardian of civil liberties, seems to be more composed of half-dead sheep than roaring judicial lions will be keen to duck the issue.
 

According to Mourad, it's a zoo out there:

"But I suspect your present Supreme Court, which as a guardian of civil liberties, seems to be more composed of half-dead sheep than roaring judicial lions will be keen to duck the issue."

Just listen: "Bah" - "Roar" - "Quack"

BA-R-ACK may be able to change this with a second term.
 

Daniel,

Quote from the Fourth Circuit decion: "For purposes of Padilla’s summary judgment motion, the parties have stipulated to the facts as set forth by the government. J.A. 30-31. It is only on these facts that we consider whether the President has the authority to detain Padilla" It was a summary judgment because the facts had not been determined by a lower court and Padilla's motion asserted that he should be released without holding a hearing on the facts. Therefore, SCOTUS would have to begin by assume the truth of the facts as stated by the government.

If you had to summarize all these cases, the government claimed that the courts did not have jurisdiction to hear the case because the issue depended on some power alleged to belong to the executive, and the detainee alleged that there need be no hearing because the detention was clearly illegal no matter what the facts were. In every case the Supreme Court rejected both positions. The courts had jurisdiction, but both the government and the detainee had to be given an opportunity to present evidence before a decision could be made.

Based on every case before and after, Padilla would have lost this motion, although he could have continued on to present evidence in a subsequent hearing.

"Four courts heard Padilla's case. Only the Fourth Circuit accepted the government's claim that the president could hold him in military custody simply by declaring him an enemy combatant." The district court in the Second Circuit also ruled against him. The Second Circuit appeal and the Fourth Circuit district court ruled in his favor.

While he flew on a commercial jet, he paid for the plane ticket out of $15,000 military operating funds given to him for the mission by KSM. When the Supreme Court in Quirin talks about coming to the US with the aid of the enemy, it did not specific the exact form that aid needed to take.
 

More assertions as to Mr Gilbert's understanding of the evidence against Mr Padilla. As to which some further thoughts:-

If it be true that Padilla's funds were provided by Kaled Sheikh Mohammed, that points almost almost irrefutably to Mr Padilla being an Al-Quaida agent rather than a "soldier" of any army of a sovereign state. Further, that makes the funds of which Mr Gilbert speaks quite definitely not "military" funds. Thus there was no basis for treating Mr Padilla as being a member of the Armed Forces of any sovereign. It follows therefore that as a citizen, Mr Padilla should never have been removed from the judicial system into military custody and his habeas petition should have been granted on the usual "charge with a criminal offence or release" basis. What also appears to follow is that the government will very likely have disabled itself from pursuing more serious charges by reason of the manner of his custody and interrogation rendering inadmissible statements of the detainee which might otherwise been admissible.

All this seems to shown the utter folly of the Bush administration in seeking to detain persons without a mechanism for due process in place. The adoption of the extreme view that persons could be detained in a legal black hole by executive fiat was bound to come unstuck. It has done. Put shortly, the Bush administration created a rod for its own back and for the present administration which has been left to try to clean up the blood and vomit on the floor. George W. Bush will go down in history as "the Torture President" and the Supreme Court risks remembrance as the Court which failed to preserve the Great Writ as a speedy and effective remedy for the abuse of power by the executive.
 

As a citizen, Padilla also had a lesser route to take, one that Souter/Ginsburg focused upon in their Hamdi concurrence. As his attorney noted during SC orals (see Oyez.com):

"what is limited to citizens is Section 4001 in which Congress specifically provided that no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress"

She also argued "a general presumption against extraterritorial application of statutes" suggests that statutory check did not apply w/o further evidence on a foreign battlefield.

But, Padilla was captured on U.S. soil. A broader due process argument was also provided if this more limited one failed.

The Hamdi plurality helped some though it held the AUMF authorized detention of some citizens all the same. It did say: "we agree that indefinite detention for the purpose of interrogation is not authorized" and that the governmental interest was to ensure that combatants "do not return to battle against the United States."

Criminal process of Padilla did that, even if we assume there is evidence that he would do just that. (for sake of argument) Doubtful he would have got bail pending trial. So, even under the plurality opinion -- which we need not deem correct -- what happened to Padilla was wrong.
 

Joe,

I don't see why you quote the Section 4001 ("Nondetention Act") argument when you then go on to point out that SCOTUS rejected that argument in Hamdi. So that was off the table.

"we agree that indefinite detention for the purpose of interrogation is not authorized" Over and over I have seen a certain group read this as prohibiting any detention during which the government intended to interrogate. That is plain nonsense. Would you argue that if the US has to release KSM, the man responsible for 9/11, if at any time during his detention they decide to question him? Rather, the simple interpretation is the one mentioned in several previous posts: the government may not detain a material witness indefinitely, and the military may not detain an enemy civilian indefinitely for the purpose of interrogation. However, that still allows the government to interrogate a POW detained because he is a member of an enemy armed force, or an enemy alien civilian held because he is a security risk.

"the governmental interest was to ensure that combatants 'do not return to battle against the United States.' Criminal process of Padilla did that"

I have also heard it argued that when there are two available methods of ensuring this objective, that for some unexplained reason the government is prohibited from using military detention. Again this is illogical. Consider all the plausible explanations why we imprison crimnals: to keep them from committing additional crimes, to rehabilitate them, to punish them. One preexisting conviction in any jurisdiction could accomplish any of these goals, but that does not prevent second and subsequent prosecutions of the same prisoner for crimes committed in various state and federal jurisdictions. In wartime, the military jurisdiction over enemy combatants is superior to civilian jurisdictions. However, like Padilla, the military can at any time release a combatant and turn him over to civilian authorities to stand trial for a previous civilian crime.

No matter how good the evidence may be, conviction is never assured. Therefore, the existence of a hypothetical possible criminal prosecution would not even preclude continued military detention even if you somehow flipped the law on its head and asserted that civilian criminal charges take precedence over military detention. If that were true, then the procedure would be that the detainee be taken from the military detention without being released, be tried, serve his sentence, and then if the hostilities have not ended he would be returned to the military. The fact that civilian courts could not act on the indictment until he was released from military custody shows that military authority here is superior to civilian.
 

"Padilla was captured on U.S. soil." Not true. He was captured at the Customs counter of an international airport. You don't have to be a legal expert to know this one. All you have to do is watch the Spielberg movie with Tom Hanks and Catherine Zeta-Jones. The Customs and Immigration area of a US airport is not regarded as "US soil". You have to clear Customs and pass through the big doors. According to the law, Padilla was captured outside the US, at the border requesting entry into the US, and stepped onto US soil already in custody of the FBI.

While we are on mistakes from the text of the Cert petition, he was also not captured "in a civilian context." In wartime, the borders, ports, and territorial waters of the US are a de jure line of military defense. Unlike other countries who deploy soldiers at their borders, in wartime the defense of the US borders is entrusted to the US Coast Guard and as a paramilitary function to the armed, uniformed federal officers of civilian agencies who guard the border in peacetime (Border Patrol, Customs, Immigration, in some cases the FBI). So Padilla was detained at a de jure military checkpoint established to defend the US from enemy saboteurs like Jose Padilla. It superficially appeared to be a civilian context because that is how the US prefers to handle border security during armed conflict.
 

Mourad,

Al Qaeda was formed around 1985 as part of the fight inside Afghanistan against the Soviets. At that time it was a support organization providing funds and services, but it also recruited foreign fighters. After the Soviet defeat, Bin Laden moved for a few years to Sudan, but he returned around 1995 and al Qaeda became part of the Afghan government run by the Taliban.

This government had no legislature or elections as we understand it. It operated in part by consensus and in part by independent action of the constituent pieces. The model was mostly the Afghan tribal arrangements and the Loya Jirga model that Wikipedia (not authoritative) dates as being 5000 years old.

You have to remember that millions of Afghans died in the fight against the Soviets. To them it is as if the Revolutionary War, Civil War, and both World Wars happened 25 years ago. That war was fought by an estimated 4000 small independent commands. They were successful because that kind of guerrilla warfare does not require coordination. Foreign fighters inspired by Islam were an important and honored component of the struggle.

So when the Taliban achieved power, they created an informal, decentralized, consultative traditonal tribal government in which al Qaeda, representing the foreign fighters in the Great Struggle, had a formal role. They had a seat at the table and both approved and requested approval for various initiatives.

In the continuing conflict against the Northern Alliance, al Qaeda fielded a force of one or two thousand fighters. That was a small part of the 45,000 tribal fighters, but the foreign fighters were willing, perhaps even eager to die, so their tactical advantage far outweighed their numbers. Remember it was a small al Qaeda unit who assassinated the Northern Alliance military commander Ahmad Shah Massoud a few days before 9/11. Afghan tribal forces couldn't do it.

Until he was killed by a US airstrike, Mohammed Atef was the top ranking al Qaeda military commander. He was nominally in command of the front line forces as well as other military operations. He personally recruited Padilla for "the apartments operation". Months after his death, KSM was promoted to replace Atef, but at that time al Qaeda no longer had any front line forces to command.

In 1776 the European governments might doubt the legitimacy of the new United States because it had no king, and every government they were familiar with had one. We should be careful not to make the same mistake and assert that just because Afghanistan had no elections, or legislature, or recognizable executive in the Western model, that its 5000 year old system wasn't a real government. If they were willing to make al Qaeda part of that structure, we have to accept their choice and not continue to insist narrowly that it was a private group because they failed to classify it in terms we recognize.
 

Howard Gilbert now pontificates on where the borders of the USA begin.

1. Perhaps a lawyer with expertise in US immigration law can help, but I have always understood that while aliens are subject to immigration control and for that purpose are deemed not to have landed in the USA until they have submitted to examination and admission by the INS, US citizens have the right to leave and return to the USA. As I understand it, and I stand to be corrected, the legal fiction of an alien not landing until admission, has no applicability to a citizen and the US authorities have no right to exclude a citizen from US territory.

2. Mr Gilbert speaks of "wartime". The Congress has declared no war since WW2. Not for the first time since 1945 the USA has been conducting hostilities outside the USA - very likely unlawfully as a matter of international law - but that does not mean the USA is legally at war despite the political hyperbole and some obiter observations by the judiciary.

Perhaps Mr Gilbert contends that it ought to be the case that he and any other citizen may have their constitutional rights curtailed at the whim of the President for the time being. All one can really say is that if that is so, I hope that Mr Gilbert exercises no public functions, is not involved in the US justice system in any capacity and does not teach law.
 

What risks (in general) are U.S. citizens subject to when in customs areas upon returning to U.S. from a foreign country with respect to their constitutional rights? This is a general question for Mr. Gilbert, not limited to GWOT.
 

I don't see why you quote the Section 4001 ("Nondetention Act") argument when you then go on to point out that SCOTUS rejected that argument in Hamdi. So that was off the table.

First, at the time it was argued in front of the SC, Hamdi was not decided. Two, even after it was decided, it is far from clear that Breyer (the swing vote) would not be influenced. [He, e.g., joined Stevens' dissent in Padilla.] Three, as with Mourad covering Scalia's argument, it is a sound argument either way. Finally, yes, a case can be overruled or narrowed.

Over and over I have seen a certain group read this as prohibiting any detention during which the government intended to interrogate. That is plain nonsense.

I don't know who this "certain group" is, but this strawman has not been front and center here. The qualifier "indefinite detention" obviously means something. Padilla reached that point by this time.

As to POWs, I'm unsure really how much interrogation they really have to submit to under int'l law. The whole "name, rank & serial number" thing, for instance. But, I will leave that to others. As to KSM, what a sham strawman. When have "I" ever suggested that?

----

You next -- again -- use bad example (e.g., your drug dealer scenario when holding them incommunicado is not allowed these days) involving the criminal law. Here, you reference different type of criminal processes, when the issue is military to criminal, not different types of the same process.

Likewise, the DOI was concerned about the military being superior to the civil power, but you want -- when citizens are involved -- this to be true. The government need not even try to use civilian process first.

And, the chance was a bit more than "hypothetical" ... which sounds like it is somehow in the realm of possibility. They had a clear means to hold him. The 17 year sentence underlines how clear.

U.S. soil

I don't get my legal information from Spielberg movies. Likewise, see Mourad on how citizens probably are not the same thing as aliens like Tom there.

Also, the 2CA noted:

As the Fourth Circuit recently - and accurately - noted in Hamdi v. Rumsfeld, "to compare this battlefield capture [of Hamdi] to the domestic arrest in Padilla v. Rumsfeld is to compare apples and oranges." 337 F.3d 335, 344 (4th Cir. 2003) ("Hamdi IV") (Wilkinson, J., concurring).

I'm unsure if "domestic arrest" means "captured outside the U.S." The ultimate 4CA opinion also notes Padilla was "captured domestically."

Likewise, Judge Mukasey did not suggest the answer to "he is an American citizen captured on American soil" and cannot be so detained was that "he was not captured on American soil." I do not see this being suggested by the appellate judges either, though it would be a logical narrower ruling to make.

At any rate, he was detained on U.S soil. That's a fundamental matter either way.

As to this "de jure line" business. First, the U.S. military does take part in the defense of our borders.

Given the breadth of said alleged "line," the U.S. is not really "unlike other countries" in that they too would likely use a combination of forces to defend ports, airports, coastal waters, et. al.

he was also not captured "in a civilian context."

He was captured pursuant to a material witness warrant and then held in criminal custody. This was a "civilian context" even if it was at some sort of de facto military checkpoint (aka an airport) He was then transferred to military custody.
 

I only raise these questions because of the wording of Padilla's first question to the Supreme Court in his Cert petition:

"Does the President have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?"

My first thought is that the Supreme Court answered this question "yes" with regard to Haupt 65 years ago. Padilla committed an expatriating act, but must be treated as a citizen unless and until a court finds that the act was done with intent. The setting superficially appeared to be civilian but legally was also military. He wasn't taken into custody on US soil, but was immediately moved into the US, though there is no rational reason why that should matter. As Joe says, he was detained on US soil and that is the only question in Habeas, not where he was captured.

I believe you can boil the whole dispute down to some simple questions about which takes priority.

I assert that enlistment and service in an enemy army engaged in armed conflict with the US is the only issue. A US citizen loses no constitutional rights when he enlists in a foreign army, but the subset of those rights that deal with criminal proceedings against a civilian have nothing to do with military detention of an admitted enemy soldier.

Others assert that citizenship trumps everything else and that a US citizen simply cannot be put in military custody no matter what he is or did without some sort of Article III court process.

There are also a couple of "walks like a duck" issues. I assert that it is a war because that is what it is. Others assert that military detention is exactly the same as criminal imprisonment (particularly in a case where the detainee was being held in a cell in a military prison).

The Supreme Court might have decided this question, but we lost that opportunity. It has also been demonstrated here that some will simply argue the Supreme Court is wrong whenever it issues a decision with which they disagree (Qurin, Eisentrager, Territo, Hamdi, ...)

If we could agree on what the fundamental disagreement is, and then agree not to make assertions about questionable claims that are irrelevant ("US soil"), we could cut this down to the fundamental disagreements.

If there is one thing that is clear from the back and forth of this and some of the other cases, courts don't really do a very good job of acknowledging the issues. The Second Circuit simply said "He is a citizen so charge him criminally or let him go free" and the Fourth Circuit said "He is an enemy soldier captured in war, so he belongs in military custody." It would be somewhat reassuring if either side was able to confront what the other is saying and managed to close the gap.

The Supreme Court tends in all these cases to point out that both sides are wrong, but then decides each case on grounds so narrow that no important questions are actually answered.

And the cycle goes on. Yoo may have said a bunch of stupid things, and there may be some other people (not Padilla) who have an issue with him. However, in the middle of what appears to be a completely disfunctional system that cannot make simple decisions about things like "are we at war" after eight years, Yoo's opinions are about the least important thing anyone might focus on in these cases.
 

Howard Gilbert writes:-

"The Supreme Court tends in all these cases to point out that both sides are wrong, but then decides each case on grounds so narrow that no important questions are actually answered."

I agree. This is a consequence of the present US doctrine of judicial minimalism - answering only the bare minimum of the issues raised in a case.

Can there be a state of war against a non-state body (Al Quaida")? I say not and that one must regard the adherents of the organisation as civilians, terrorists who commit criminal acts. In consequence Al Quaida adherents must be apprehended and prosecuted in the criminal justice system and in that system alone. That is one of the reasons why in Europe we now have a transnational arrangement in which a European arrest warrant is good over all 25 member states.

Is it lawful as a matter of US law to send US personnel into the territory of another friendly state (eg Italy) and short circuit the extradition process to apprehend persons there and take them into custody? The classical 18th Century position was that the Court would not enquire into how a suspect came before the Court. However, in most common law countries kidnapping a proposed defendant, or colluding with a foreign state to circumvent the due process requirements of that state in order to obtain custody of a prisoner is an abuse of process and debars the prosecution from proceeding to trial.

There is the added complication in such cases that the actions of US personnel in such cases were criminal offences in the states concerned - for example the actions taken by US officials in Italy, Bosnia, the Gambia and Pakistan).

So what about a "failed state" such as Afghanistan? What can one do about a state which cannot or will not enforce the rule of law within its borders? The international law obligation is well-established. It is "aut dedere aut punire". Either permit their extradition for trial or try and punish them locally. So what is the position where the state cannot or will not do that?

Classically that was a case for what was known in the law of armed hostilities as "a punitive expedition" In the heyday of Empire that was something the British were prone to undertake. See the Don Pacifico Incident.

But in international law today, the only permissible solution is to take the matter to the UN Security Council and obtain a Chapter VII resolution to deal with a threat to international peace and security which will include provisions for the detention of persons posing such a threat. Post 9-11, the UN offered such a resolution to the USA, but the offer was spurned. that refusal was the fundamental mistake.

The Bush Administration determined that it needed no person's leave to take unilateral action. Not just in relation to Afghanistan, but also in relation to persons in other friendly third countries and/or who were citizens of other friendly states - including the UK. It assumed that it could deal with such detainees within the USA (or in black holes outside the USA) - both with citizens and non-citizens in ways which are incompatible with basic notions of civil rights and that the Courts would not interfere.

All the problems trace back to that simple truth. The courts, also because the Judges were shocked by the very real outrage of 9-11 (never mind some political sympathy with the administration from some, not all, Judges) have been struggling since then to reconcile the ill-considered actions of the Executive with both domestic and international law. They have not wanted to pronounce the forthright condemnation of the executive which the Administration's conduct merited.

It may take many years for some of the decisions to be put right. It took about 25 years for it to be recognised in the UK that some of the WW2 jurisprudence could not stand, and I think the same will be true of some of the post 9-11 Supreme Court decisions.
 

Mourad,

The legal situation you describe exactly fits the conditions in recent years in Pakistan. It is not a failed state, but it had been unwilling to start a civil war to enforce central government law over the tribal areas. As a result, the Taliban and al Qaeda had a relatively safe haven to organize and train.

It also might describe Afghanistan from 1990 to 1995, a period of civil war before the Taliban took control. After that Afghanistan had a government that was very much in control. It had no trouble enforcing its law in almost every part of the country, and was internationally recognized for its repression of its people. It also had a large army engaged in an ongoing civil war, and al Qaeda was both a component of the government and of the military.

9/11 did not require the resources of a state. KSM could have carried the attack off with the handful of people under his command. However, it appears that the attack was approved by the highest levels of the government, which makes it an attack on the US by Afghanistan. The resulting war was then between two countries.

We never defeated that enemy. We may have installed a new government in Kabul, but it has never exercised the level of control over the Pashtun provinces that the Taliban did. The enemy army and government retreated to the tribal areas of Pakistan which became a problem for the US, Afghanistan, and Pakistan.

If 9/11 had been legally an "act of war" that would cancel all the insurance coverage. So Congress and the President decided to use ambiguous language. The result is something that might be a real war against the real government or a real state, or it might be military force used against parties that, although part of the Afghan governmental structure, could also be viewed to have acted on their own to execute an act of terrorism. It is all a matter of how you want to view things at this moment.

Maybe in international affairs it isn't the job of the courts to clarify a situation that the political branches have intentionally left ambiguous. The Supreme Court has no power over war or foreign policy, and maybe they are not inclined to clean up the mess that Congress and the White House decided to leave behind.

We are left with an uncertainty principle. Like electrons, the state of the law on this question occupies a field of probabilities. What Circuit? What judges? How is the question framed? Only when a case forces the judicial process to answer a question do we discover an individual point.

If that is the case, then we need to discover what Physicists figured out a hundred years ago. In this type of uncertainty, there is no underlying concrete reality. We may see a sequence of individual decisions, but they will not add up to a complete picture of the underlying state. If that is not acceptable, we have three branches of government and two political parties who can be blamed for creating it.
 

And what is the proof of this:

"9/11 did not require the resources of a state. KSM could have carried the attack off with the handful of people under his command. However, it appears that the attack was approved by the highest levels of the government, which makes it an attack on the US by Afghanistan. The resulting war was then between two countries."

Mr. Gilbert seems to suggest with this:

"If that is the case, then we need to discover what Physicists figured out a hundred years ago. In this type of uncertainty, there is no underlying concrete reality. We may see a sequence of individual decisions, but they will not add up to a complete picture of the underlying state. If that is not acceptable, we have three branches of government and two political parties who can be blamed for creating it."

that the scientific method can be applied to governance. Perhaps Mr. Gilbert's first quote above constitutes his theory, similar to a physicist's theory. But such a theory needs to be tested. That's where facts come into play. What are the replicable facts? But it seems a stretch to suggest that our Constitution can be interpreted/construed in a scientific manner, as originalism (in its various forms) is not scientific (assuming that originalism is the appropriate decider).

The analytical forest seems to be getting a tad too dense to understanding the tree of Padilla v. Yoo.
 

HG "asserts" things that do not seem to work that well in the light of day, but this does not stop him from "asserting" more things.

Oh well. Talking about science, recently read "Alex and Me," which concerns the wonders of language work done with parrots.

If we can communicate in some fashion with the bird world, perhaps we can with each other, the implications of some comments here notwithstanding.
 

Todays' (6/28/09) WaPo has this editorial:

"Another Detainee Debacle
How a Syrian man tortured and imprisoned by al-Qaeda wound up at Guantanamo for seven years"

This is the recent case referenced in an earlier comment where Judge Leon decided in favor of the detainee known now as Janko.

"'I disagree!' Judge Richard J. Leon virtually shouted in a brief but caustic ruling on Monday in which he ordered Mr. Janko's release. We agree with Judge Leon."
 

I realize that the Fat Lady will soon be singing on this thread due to scroll limitations but today's (6/29/09) WaPo has this important OpEd by Benjamin Wittes and Jack Goldsmith:

"Will Obama Follow Bush or FDR?"

We do not have the benefit of Dan Froomkin's White House Watch to follow up as he will be taking off a couple of weeks before he starts a new gig at a yet to be disclosed location. Perhaps it is time for Brian to post on the subject as Commander-in-Chief issues started by Bush/Cheney will not go away without more debate in Congress.
 

MSNBC host Rachel Maddow launched Culture Project's "Blueprint for Accountability" series on May 31 with a gripping evening on accountability and the U.S. policy of torture in the “War on Terror.” This first episode is titled "Working The Dark Side."

Marty Lederman has a cameo.

See here
 

I can feel the Fat Lady's breath but take a look at Jason Leopold's July 1, 2009 article at Truthout:

http://www.truthout.org/070109A?n

titled "John Yoo, Donald Rumsfeld and the Systematic Torture of Prisoners."
 

As the late Count Basie used to say with his band's "April in Paris," "One more Once":

See today's LATimes:

"EDITORIAL
Judging John Yoo
A federal judge has set a risky precedent by allowing convicted terror conspirator Jose Padilla to sue one of the authors of the controversial 'torture memo.'"
July 2, 2009
 

And then the Count would say, after that chorus, "One more like the last time."

Here's today's (7/2/09) WaPo:

"ACLU Says Government Used False Confessions" by DelQuentin Wilber.
 

It may take two more weeks for this thread to end because:

"July 1, 2009
Release of CIA interrogation report delayed


From CNN National Security Producer Pam Benson

WASHINGTON (CNN) — The Justice Department has once again delayed the release of the CIA's internal investigation of its controversial interrogation and detention program."

This is sheer torture as the Fat Lady rehearses! Save us, Brian.
 

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