Saturday, September 10, 2005

Further Thoughts on Preventing Padilla from "Returning" to the Afghan Battlefield

Marty Lederman

As I explain below, in yesterday's Padilla decision, Judge Luttig's analysis is critically dependent on the notion that if the government's allegations are correct, then Padilla's case is factually indistinguishable from Hamdi's. Not so fast.

Judge Luttig correctly explains (see pages 10-11) that the controlling opinion of Justice O'Connor in Hamdi was based on the logic that the AUMF authorizes detentions that would be permisible under the laws of armed conflict, and such laws of armed conflict permit detentions of enemy combatants on the battlefield to ensure that such combatants are prevented from returning to the battlefield to fight: "[D]etention to prevent a combatant's return to the battlefield is a fundamental incident of waging war." 124 S. Ct. at 2641. This proposition is the linchpin of Judge Luttig's opinion.

Judge Luttig then argues that Padilla, like Hamdi, falls in this category, and was detained in Chicago to prevent his return to fight against the U.S. in Afghanistan. In the very first sentence of his opinion, he alleges that Padilla "took up armes against United States forces" in Afghanistan -- and he repeats this "taking up arms against U.S. forces" theme no fewer than six times in the opinion. Here's how Judge Luttig puts the case for a Padilla/Hamdi equivalence in a nutshell (pp. 11-12):
[L]ike Hamdi, Padilla took up arms against United States forces in [Afghanistan] in the same way and to the same extent as did Hamdi [citing the Jeffrey Rapp Declaraion in Padilla and footnote 1 and page 2637 of the O'Connor opinion in Hamdi]. Because, like Hamdi, Padilla is an enemy combatant, and because his detention is no less necessary than was Hamdi's in order to prevent his return to the battlefield, the President is authorized by the AUMF to detain Padilla as a fundamental incident to the conduct of war."

Or, as Judge Luttig later summarizes the argument (p.15), "Padilla poses the same threat of returning to the battlefield as Hamdi posed at the time of the Supreme Court's adjudication of Hamdi's petition. Padilla's detention is thus 'necessary and appropriate' [the words of the AUMF] to the same extent as was Hamdi's."

Padilla was alleged to have "taken up arms" against U.S. forces in Afghanistan? And he was detained because he posed a threat of returning to battle against the U.S. in Afghanistan? I've received many e-mails from observers who were surprised to hear that that was the the government's new justification for the detention; who have wondered why Padilla's counsel would have conceded such facts, even for purposes of summary judgment; and who concluded after reading the opinion that, hey, if that's what the allegations are, then perhaps there's something to Judge Luttig's logic -- this case does seem to follow directly from Hamdi -- assuming the Government can prove its case.

But things are not what they seem.

In support of his argument, Judge Luttig relies almost exclusively on the August 2004 Declaration of Jeffrey Rapp, the Director of the DoD Joint Intelligence Task Force for Combatting Terrorism. See pages 17-24 of the Joint Appendix. Rapp paints a picture of a very bad guy, indeed. If the allegations are proven, Padilla certainly deserves to be tried and, if convicted, punished for several felonies (principally conspiracy) and/or war crimes; and perhaps it would even be permissible for the military to subject him to indefinite preventive detention without trial so as ensure that he would not put into action some of the terrible plots that he is alleged to have hatched -- indeed, that preventive executive detention question is the question that everyone assumed the court would answer in yesterday's case.

But on reading the Rapp Declaration, two things jump out immediately:

First, the allegations contained therein are based on information gleaned from "Padilla's statements during post-capture interrogation." Thus, whether or not such information could be the basis for future detention, it could not have been the basis for Padilla's original apprehension and detention -- in which he was kept in isolation, without access to any attorney or other visitors -- or for the prolonged detention that he suffered before he conveyed such information.

Second, Rapp does not say, or even suggest, that Padilla's detention was at any time effected for purposes of preventing him from returning to Afghanistan to take up arms against the U.S. in hostilities there. He does not, in other words, argue that Padilla was detained for the same reasons as was Hamdi, or that (in Judge Luttig's words) Padilla "poses the same threat of returning to the battlefield as Hamdi posed." That is to say, neither Rapp nor (as far as I can tell) the Department of Justice has ever invoked Judge Luttig's "prevention of return to the Afghan battlefield" rationale as the basis for Padilla's detention!

Here's what Rapp does attest, in paragraphs 9 and 10 of his Declaration, about Padilla's alleged post-9/11 conduct in Afghanistan (and again, although I have no reason to think the account is untrue, this is based on Padilla's own statements taken during highly coercive interrogation long after he was detained at O'Hare):

Once the United States commenced combat operations against the Taliban and al Qaeda in Afghanistan [in late 2001], Padilla and his fellow al Qaeda operatives began moving from safehouse to safehouse in an effort to avoid being bombed by U.S. or coalition forces. In mid-November 2001, an air strike destroyed a safehouse in Afghanistan and killed [al Qaeda Commander Mohammad] Atef. Padilla was staying at a different al Qaeda safehouse that day, but he and other al Qaeda operatives participated in an attempt to rescue survivors and retrieve Atef's body from the rubble. After this attack, Padilla, armed with an assault rifle, along with numerous other al Qaeda operatives, began moving toward the mountainous border with Pakistan near Khoust, Afghanistan, in a further effort to avoid U.S. airstrikes and capture by U.S. forces. Padilla was thus armed and present in a combat zone during armed conflict between al Qaeda/Taliban foces and the armed forces of the United States and its coalition partners. After taking cover in a network of caves and bunkers near Khoust, the al Qaeda operatives, including Padilla, were escorted by Taliban personnel across the border into Pakistan in groups of 15-20. Padila crossed into Pakistan in January 2002.

Rapp does not make any allegations of a subsequent return to Afghanistan, of any possible plans for Padilla to return to Afghanistan, or that his detention was in any way motivated by our Government's attempt to prevent him from returning to Afghanistan, to "take up arms" or otherwise.

That doesn't sound too much like Hamdi's "carrying a weapon against American troops on a foreign battlefield," Hamdi, 124 S. Ct. at 2642 n.1, now does it? When Hamdi was detained, there was every reason to think that such detention would prevent him from harming U.S. and coalition forces on the battlefield. (The Government's brief in Hamdi alleged that "[i]n late 2001, while Northern Alliance forces were engaged in battle with the Taliban near Konduz, Afghanistan, Hamdi surrendered to Northern Alliance forces—while armed [with an AK-47]—along with a Taliban unit.") More importantly, that's the reason that the Hamdi plurality upheld the detention. But quite obviously, even if one credits everything Rapp writes, there was virtually no basis for fearing that when he was discovered at O'Hare Airport, there was any chance that Padilla would return to Afghanistan to take up arms there. After all, the Rapp Declaration describes a man who was trying desperately to avoid fighting, and to flee from the battlefield, and from Afghanistan, as quickly as humanly possible. Indeed, although Judge Luttig goes to great pains to repeatedly allege that Padilla "took up arms" against U.S. troops in Afghanistan, the
Rapp Declaration tends to undermine such a rhetorically weighted characterization -- Padilla never encountered U.S. forces and or aimed his weapon at them; instead, he was successfully in his determination to avoid any contact with U.S. forces.

Now, presumably under the law of armed conflict, and thus under the AUMF, Padilla could have been indefinitely detained by the military in Afghanistan, even as he fled, simply because he was "armed and present in a combat zone during armed conflict between al Qaeda/Taliban foces and the armed forces of the United States and its coalition partners" -- in part because forces on the battlefield cannot be expected to carefully distinguish among those armed enemies who are permanently fleeing battle, and those who pose a risk of future hostile return to the battlefield. But the question in the case, as Judge Luttig has framed it, is whether there was any reasonable risk of Padilla's return to the battlefield of Afghanistan when he arrived at O'Hare Airport four months after he left Afghanistan. Nothing in the Rapp Declaration even hints at such a rationale.

Accordingly, Judge Luttig is simply wrong in asserting that, according to the Government's allegations, Padilla's detention "is no less necessary than was Hamdi's in order to prevent his return to the battlefield." It was far less necessary! (And that's even assuming what is not in fact the case -- namely, that the FBI knew when it detained Padilla that he had been armed in Afghanistan and had quickly fled for the Pakistan border.)

In other words, even putting the Government's allegations in the best possible light, and even assuming arguendo what we should not assume -- namely, that they have some bearing on why Padilla was detained before he conveyed such information in interrogation -- the case is not controlled by the logic or rationale of Hamdi at all, pace Judge Luttig.

I want to be clear here: The fact that Judge Luttig's argument does not stand up to scrutiny does not necessarily mean that the outcome of the case is wrong. Judge Luttig's "Hamdi equivalence" argument was not the argument on which the Department of Justice relied. (Caveat: I have not yet thoroughly read through both DOJ briefs and the transcript of argument to see if this rationale appears anywhere -- but it certainly was not the Government's principal argument.) DOJ argued, instead, that Padilla was detained in order to prevent him from undertaking the hostile actions that he is alleged to have planned here in the United States -- on the theory that the homeland is the new "battlefield" in the Global War on Terror. In addition, the Government also has strongly implied what I think was the real reason that Padilla was subject to military detention, rather than treatment in the criminal justice system: because DoD wanted to interrogate him for valuable information outside the constraints (e.g., the presence of lawyers) of the criminal justice system. See page 19 of Judge Luttig's opinion: "[I]n many instances criminal prosecution would impede the Executive in its efforts to gather intelligence from the detainee and to restrict the detainee's communication with confederates so as to ensure that the detainee does not pose a continuing threat to national security even as he is confined –- impediments that would render military detention not only an appropriate, but also the necessary, course of action to be taken in the interest of national security."

It is arguable that these rationales might support the indefinite military detention of Padilla -- as opposed to consigning him to the criminal justice system. However:

(i) Unlike Judge Luttig's invented-from-whole-cloth "to prevent Padilla's return to battle in Afghanistan" theory, those arguments do not neatly follow as a matter of logic from Hamdi itself;

(ii) The second, interrogation-based rationale, is, I submit, foreclosed by Hamdi (I might write about this in another post, time permitting);

(iii) The first rationale -- that the "U.S. is a battlefield," and that Padilla could be detained outside the available civil process to prevent him from hostile conduct here -- is dependent on a particular, and highly contested, reading (and reconciling) of Quirin, Endo, Hamdi and Milligan (basically what Judge Luttig lays out on pages 12-13 and 23-24 of his opinion, in order to "reinforce" his principal argument); and

(iv) The facts on which Judge Luttig principally relies -- that Padilla was once armed while fleeing from Afghanistan -- have virtually no bearing on either of these two rationales. Whether Padilla could be detained outside the criminal justice system either because he was a threat to commit terrorist crimes here, or because he may have had valuable intelligence information, is in no way dependent on whether he once carried a rifle in Afghanistan. If those rationales suffice to justify the detention, then they would do so even if he had never stepped foot in Afghanistan; and if they are insufficient, his presence on the Afghan "battlefield" in late 2001 doesn't change an unauthorized detention into an authorized detention. That is to say, unlike in Hamdi -- where the fact the detainee took up arms against the U.S. coalition in Afghanistan was central to the holding -- in this case Padilla's rifle-carrying in Afghanistan is a red herring, and should have little, if any, impact on the resolution of the case.

See also Eric Muller's discussion of how the Luttig decision fails adequately to deal with Ex Parte Endo.


Padilla was arrested on May 8, 2002 as a material witness. On June 9 he was declared to be an "enemy combatant". This provides a one month period during which he could have told interrogators the story of his time in Afghanistan. So when he was transferred to military custody, the US may very well have known every fact that was referenced in this decision.

The most recent Supreme Court decision may seem to be the best argument, but the US has been fighting wars and taking prisoners for as long as it has been in existence. Simple logic suggests that the Laws of War and the rules for this sort of thing were decided earlier than last year. During World War II the US held 425,000 Axis POWs in camps across the country. None were ever charged with a crime nor was there any thought that they might be referred to the criminal justice system. They were held because they were members of the armed forces of German, Italy, and Japan. How did the US ever know what a POW is and why they should be held when it would be 60 years before the Supreme Court in Hamdi would explain these matters?

None of the WWII prisoners was held to prevent him from going to fight in Afghanistan. It was a World war. You quote from the decision, "[D]etention to prevent a combatant's return to the battlefield is a fundamental incident of waging war." This talks about "the battlefield", not "the exact same battlefield he was captured in." So just as a German soldier captured in North Africa in Dec 42 could, by late 43 plausibly claim that he could never return to the battlefield of Tunisia (which had by then fallen to the Allies), that did not mean he should be released. He could then have moved on to some other battlefield in Normandy, Italy, or Russia. Last time I looked, Al Qaeda has operations in Indonesia, Britain, Iraq, and still has plans for the US.

However, if you concentrate on Hamdi as the only source of meaning, context, history, or law, then you might begin to believe that Afghanistan is the only place it is possible to fight a war. The text of Hamdi doesn't say that. It says that someone who carried a rifle in Afghanistan can be captured as a POW. It doesn't say that is the only country, the only battlefield, the only weapon, the only circumstance under which someone can be an enemy combatant.

It is the final comment that most directly misses the point: "Whether Padilla could be detained outside the criminal justice system either because he was a threat to commit terrorist crimes here, or because he may have had valuable intelligence information, is in no way dependent on whether he once carried a rifle in Afghanistan." All POWs might have valuable intelligence information. By definition, a POW cannot "commit terrorist crimes" because the actions that would in a civilian be regarded as "terrorist" are in a soldier regarded as "combat". Padilla cannot be a criminal or a terrorist after he has been declared to be an "enemy combatant". However, deciding that he is a soldier is very much dependent on knowing that he enlisted, went through basic training, and carried a rifle and fought in Afghanistan. Once that is established, then the only remaining fact that must be established is that he was never discharged. Thus once you show he was a soldier (by carrying arms), if he hasn't been discarged he still is a soldier and therefore may be held as an enemy combatant.

"During World War II the US held 425,000 Axis POWs in camps across the country. None were ever charged with a crime nor was there any thought that they might be referred to the criminal justice system. They were held because they were members of the armed forces of German, Italy, and Japan."

You are completely ignoring a crucial distinction: Padilla is a U.S. citizen.

U.S. citizens who take up arms against the U.S. are definitely committing a crime; it's called "treason", and it's defined as a crime by the Constitution. And the last time I checked, the Constitution sets forth evidentiary requirements for trying the crime of treason - two witnesses or confession in open court.

Tell me, how do you have witnesses or a confession in "open court" without some kind of trial-like proceeding?

And what meaning would those evidentiary requirements have if the government could subvert them completely simply by refusing to charge the detainee with any crime?

Treason and citizenship. This is not the first time the question was raised. In Quirin the defense argued that because Herbert Haupt was a citizen he should be tried in civilian court, and the government argued that because he had joined the German army he had given up his citizenship. The Supreme Court said that citizenship didn't matter in the treatment or trial of a POW, and since Haupt was going to be executed they didn't have to decide if he was a citizen before sending him to the electric chair.

Haupt's father Hans was captured along with his son. He had never left the country, was a civilian, and was convicted of Treason. Since he was cooperating with his son, we must assume that Herbert would also have been guilty of Treason provided that he had not lost his citizenship (left undecided by Quirin) and provided that you can charge a POW with Treason.

The Geneval Convention precludes trying a POW for a civilian crime. In declaring Padilla to be an enemy combatant and putting him in military custody, the US may have legally blocked itself from trying him for Treason for the duration of hostilities.

The US citizens charged with Treason after WWII were all civilians (Tokyo Rose). Certainly there may have been lots of German and Italian POWs who (like Hamdi) turned out to be US citizens by birth. However, if you tried to charge them with treason, then you run up against the problem that Quirin specifically dodged. A person loses his citizenship automatically by
Swearing an oath of allegiance to another country
Serving in the armed forces of a nation at war with the U.S.

That covers all the WWII POWs, so nobody ever tried to charge them. The current problem with both of these is the word "nation". Al Qaeda has a geographical locus but its affiliation is more religious than national. By itself that raises First Amendment issues. So before you can charge Treason, you have to open the entire can of worms to even determine if Padilla really is still a citizen. Then you have to show that prosecution for Treason wasn't blocked by his designation as a POW. Finally you need two witnesses. Now the US has two very good witnesses (Kahlid Sheikh Mohammed and Ramzi Binalshibh) but we have buried them deep in a black hole and definately do not want to bring them to a public court.

Yes, if you follow the reasoning, then Treason is the crime of going to War with the US, except it may not be possible to prosecute it if you really go to War and enlist in a foreign army. Alternately, you may commit Treason by enlisting in a non-state related foreign army but it may not be possible to prosecute you as long as you are held as a POW.

In three or four years, not one case in the War on Terror has acutally gone to discovery let alone trial (except for Crazy Zach Moussaoui and that's just because he pled guilty). Everything currently on the docket is preliminary motion, injunction, and summary judgement. How many years do you suppose it will take this court system to work its way through a mess like this. Leave it alone. Padilla isn't going anywhere. If you really want to hang him, then try him as a spy in Court Martial, rely on Quirin for your precedent, and none of these secondary issues matter any more.

Howard: let me pose a hypothetical which I hope you will answer.

Right now, I, a peace-loving American citizen, am sitting in a coffeeshop in Maryland. Suppose I decide, for no reason other than that my own depravity, to blow this coffeeshop up, killing everyone inside. If I do so, I am clearly a murderer and should be punished accordingly, by the regular legal system, right?

Now suppose I go over to the cite girl behind the counter, to impress her and get laid, and say "hey, let's blow this popsicle stand - literally!" and then she and I go into the back room and start wiring up a bomb. When I get foiled by the other cite girl behind the counter (an undercover FBI agent, to be sure) I get tried by the ordinary criminal system and punished for conspiracy to commit murder.

Now suppose I go up to the selfsame cute girl and say "hey baby, I believe the United States is against Islam, and that it would be good to destroy this coffeeshop as a blow st the heart of the Great Satan, as instructed in Osama bin Laden's latest video, which I endorse because I adhere to Al Qaeda.". And suppose she agrees.

When the FBI foils me this time, do I not get a trial or anything? Do I instead get flung into a navy brig in North Carolina for the rest of my natural life? And if so, what is the principled reason for treating the third case differently from the first two? (without running afoul of the first amendment)

If, on the other hand, you think I'd still get a real court, due process, etc. in situation 3, what is your principled reason for dustinghishing it from Padilla's case?

Question for Mr. Lederman, or any who can answer:

The link to the Joint Appendix include that document up to page 91.

But the stipulations of fact, according to its table of contents, begin at page 92.

Yet Luttig's op cites to stipulations at pp. 30-31.

Is the rest of the J.A. available?

You do not become a soldier in Al Qaeda by hanging a poster of Bin Laden on your bedroom wall or watching Al Jazeera, any more than you become a member of the US Army by playing video games and watching the Military Channel. If you want to be all that you can be, you have to enlist, pass the physical, take the oath, and get through Basic Training. To join the Al Qaeda armed forces you have to start by travelling to one of the real shithole places on this earth, like Chechnya, where Al Qaeda is open for business. Then you enlist, take the oath, and go through basic training. Then if you agree to run a special operation and try to return to the US on a sabotage mission with a ticket paid for by Al Qaeda operating funds, like Padilla did, you might get the cell right next to his.

There is no domestic shortcut. You can't join the Al Qaeda army in the US any more than you can find a recruiting office down the block for the French Foreign Legion.

Briefly, I understand many issues are involved including civil rights and rules of detention. I wonder how the UN or the Arab League would react to US simply placing arrestees in an internationalized due process once captured, whereby if not a US citizen the detainee would default be a UN extranational, or if accepted to a generic supranational citizenship in the Arab League. Of course we could not layer this to religiocentric 'citizen'ship, which would constitute an oxymoron, though it is not so in Islam which somehow makes that nominal amalgam.
I see much of our grasping for definitions of rights for these new quasi-international combatants as the US per force needing to be ahead of the rest of the world which has yet to face the peril of these extranationals.
Of course, Padilla had many other unique incidentals which oblige us to examine his rights as a US citizen. However, much of this prosecution fails to contemplate the extranational cause to which the combatants owe fealty; rather, these individuals should be viewed much more like the way we manage the mentally ill persons who belong to social or religious cults, as their motivations are aberrant in the staid sense of common civic law as defined within traditional nationstates.
Footnote: I doubt Ms. Rice or Mr. Bolton would touch these concepts with the proverbial ten foot pole.
The UN needs another century to address the internationalization of due process. By then our own domestic advocacy will have defined rights for many kinds of these detainees.
Reflection: Among many additional themes in Mr. Lederman's important initial post there are several which deserve research and thought. These include the importance of the authorship of Mr. Luttig, as potentially a jurist who might be on the US Supreme Court alongside a Justice Roberts. Another significant highlight in M. Lederman's commentary is Judge Luttig's use of parallelism or homologous congruency where instead similarity would be a safer claim, as the two detainees' conditions upon capture were dissimilar, clearly. Sadly, I must agree with the respondent who observed, above, that insofar as extranational, the ideologue mercenary Padilla if released would find numerous theaters in which to join as a combatant.
Also, the issue of coerced un-Miranda information is a glaring imputation in many of these discussions, and rightly so. We are trying to reconcile prisoner rights vis a vis our need to obtain information, and Miranda is headed for the law museum, incrementally, as is much other liberal 1970s US legislation including civil rights and EPA, should Roberts and other exiles populate SCOTUS.

Sorry, returning back to the precise topic of the original post, I realize that I have been giving away prison cells too quickly. A hypthetical person who joined Al Qaeda in Chechnya, fought Russians for several months, and then came to the US to blow up buildings would have facts that are materially different from Hamdi. He would have fought in Chechnya and not Afghanistan against Russians and not Americans.

Now any rational person realizes that it's the same army and the same circumstances. However, if you insist as Luttig does on matching Hamdi, you are a few thousand miles off. So I suppose given the way that the courts seem to work, you have to start over again from scratch and litigate the thing all the way up to the Supreme Court because US courts insist on delivering general principles of law limited to the ideosynchratic facts of an individual case. It is remarkable that there are any precedents that match anything.

It is remarkable that there are any precedents that match anything.

Nietzsche was fond of observing (with a delightful lack of empirical support) that no two quantities in nature are "equal," and that our application of that concept is an exercise of will to power. The latter concept becomes much more plausible (and less Nazi-sounding) when we construe it as "will to intepretation."

I find this insight helpful in reading judicial efforts to pound square pegs into round precedents, and vice-versa.

Lederman completely misses the point. First, the Hamdi plurality did not hold that the actual probability of return to the battlefield must be tested before the President’s power to detain is triggered. Instead, the Hamdi plurality said that (i) the President has power to detain enemy combatants because detaining enemy combatants is a fundamental incident of waging war, and (ii) the law-of-war principle authorizing detention of enemy combatants is premised on the need to prevent combatants from returning to the battlefield. The law-of-war rule that enemy combatants can be detained may be overinclusive with respect to the rationale for that rule in that some enemy combatants who pose no actual threat of return to the battlefield can permissibly be detained for the duration of the hostilities under the laws of war. But it is nonetheless a fundamental law-of-war rule that all enemy combatants can be detained regardless of actual probability of return to the battlefield, and it is this rule that the Hamdi plurality viewed as inherent in the President’s ability to use “all necessary and appropriate force.” This much should be clear from the fact that nowhere did the Hamdi plurality state or even suggest that the President’s power to detain Hamdi depended on the actual probability that Hamdi would return to the battlefield.

Second, even if the President’s power to detain depended on the actual probability of return to the battlefield, Judge Luttig is absolutely correct when he says that Padilla poses the same threat of return to the battlefield as Hamdi posed. The relevant time is not the time of capture, but the time of adjudication of the claim. Neither Hamdi’s case nor Padilla’s was a § 1983 action alleging that the initial detention was illegal. Both were habeas petitions challenging the continued detention. And the threat that Hamdi would return to the battlefield from his stateside military prison when his petition was adjudicated was virtually identical to the threat that Padilla now poses of returning to the battlefield from his stateside military prison. Whether that threat is real is beside the point; it is the same.

Howard: your distinction between physically going to where an army operates to join it and merely acting in support of it is not useful if we're to make a principled distinction between my coffeeshop-bombing and Padilla's conduct. After all, it is possible to act in complete concert with a person without ever having met them. Suppose I get Osama bin Laden's e-mail address and plan to blow up my favorite coffeeshop under his online instructions? Have I joined the army or entered the battlefield then?

This is the Haupt (Quirin and Haupt v US) problem. Father and son spent a week together in Chicago doing the same things. Then they were captured by the FBI. The son had gone to Germany, enlisted in the army, had a uniform and id (although hidden and not with him), had a rank and serial number. He was put in military custody, tried in a military court, and executed as a spy. The father was just a Nazi sympathizer. He had not returned to Germany and had not joined the army, although he was working on the same sabotage mission as his son. He was tried in the civilian justice system and convicted of Treason. He got a long sentence in a civilian prison.

A non-legal interpretation is that they were both traitors and saboteurs. They did the same things for the same beliefs. However, under the law they were different. The soldier is subject to military custody and trial because he is a soldier. The civilian is subject to the criminal justice system. Both cases went to the Supreme Court, so we have pretty good authority that the distinction was proper.

This isn't about what they did, or intended to do, or why they did it. It is strictly a difference in formal status that leads, under the law, to entirely different jurisdications of different legal systems with different laws and punishments. Herbert Haupt was executed for an offense that isn't criminal, isn't in the statute books, isn't even written down. It is a common law offense that can only be prosecuted in military courts and then only against actual enemy soldiers, not sympathizers or believers.

So just to be clear, I understand your position to be that my e-mail example would NOT leadto military jurisdiction. If I'm wrong, "speak now or forever hold your peace..." :-)

Lets tease this out a little more. I'm not going to take your invitation to go into a deep analysis of Quirin and Milligan, for the simple reason that I think it's been done to death, Quirin is just filthy with dicta, and specifically declined to "define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals[.]" (317 U.S. at 45-6).

Instead, I'd like to focus on how incoherent this distinction is. Over the last century, we've stripped a lot of pointless formality out of our law. If this distinction exists or survives (a big pair of ifs), it should not do so. Think about this: the distinction between my evil coffeeshop-bombing twin and Padilla, upon which hang things as weighty as whether one gets due process, counsel, compulsory process, a jury, etc., is this: Padilla, unlike me, traveled to some place -- where isn't exactly clear, but a battlefield -- and shook hands with some mullah. Even though he and evil-twin-me did the same wrongful acts (since going to Afghanistan and shaking a mullah's hand isn't itself wrongful, and might be protected by the first amendment?) for the same motives, we get diametrically different results.

This makes no sense, and I would submit to you that it makes no sense in part because Al Qaeda isn't a sovereign, and so it has less well defined boundraries. If I join the German army, it's quite clear where the point of joining the army is. An oath is presumably taken, a uniform is issued, etc. Also, that formal act has consequences other than the mere Padilla-evil twin distinction: if I join the German army, I take on a bounded legal and moral obligation to serve the German state (by virtue of my oath, and conditioned on the German army not doing anything iillegal or immoral...). The same can not be said for Padilla. Because Al Qaeda is a terrorist organization rather than a nation-state, it (as far as I know) lacks clear speech acts by which one may join it, and also lacks the same web of obligations that joining an army creates.

I would thus submit to you that we're back to that fundamental secret society/foreign army distinction. Neither evil-twin-me nor Padilla should be subject to military jurisdiction, because while each may have acted in accordance with orders, neither has become tied to an enemy sovereign.

Let me drive this home with a couple more hypotheticals. Back to the coffeeshop, only this time, I'm not adhering to Al Qaeda. I'm adhering to the Weathermen. As you'll recall from the previous thread, the Weather Underground, a domestic revolutionary group in the 60's, undertook some silly ceremony to declare war against the U.S. So suppose they still exist, and I hunt them down. I learn that they're planning to blow up the golden gate bridge, so I travel from Washington D.C., where I am now, to San Francisco, where they are. There, I join them: I swear to uphold whatever it is that they stand for, we do a pinky-shake, and I go home and blow up the coffeeshop. Brig or Jury?

Take it out another step. Perhaps you don't think that the process of joining the Weathermen is formal enough. Fine. Suppose that one of the Mafia Families decides to kill every FBI agent they can get their hands on, and get a blessing from some totally depraved priest to thereby "wage war on the U.S." Suppose that, hearing of this, I travel to New York -- or Sicily, if this changes your answer -- and join the Mafia. I go through a very formal process: I swear to omerta, I "make my bones," etc. Then I come back and, because I think the FBI is in the coffeeshop, I blow it up. Brig or Jury?

I submit to you that the answer is also "jury" in both of those cases because neither the Weathermen nor the Mafia is a sovereign.

On April 7, 2003 a B-1B dropped four 2000 pound JDAM bombs on a restaurant where Saddam was supposed to be eating. They killed the cooks, waiters, and diners in the restaurant, but Saddam wasn't there. This was not a case of accident. They knew it was a restaurant and they knew that civilians would be present. However, it was "combat" because it was ordered by Central Command and executed by uniformed Air Force officers.

On 9/11 a special operations unit of Al Qaeda also destroyed a restaurant, the Windows on the World, which just happened to be on the top of the World Trade Center. Why was this an act of terrorism while the other was an act of combat?

Alternately, on the same day a different unit of same special operations group attacked the Pentagon, a legitimate military headquarters target. They knew that during the attack some civilians would get killed (the passengers and crew of the plane). However, unlike the Baghdad restaurant bombing, these guys actually hit their intended target. If they had stolen the three planes from FedEx instead of hijacking passenger planes, the 9/11 attack might have been lawful combat.

Soldiers are allowed to do things that are illegal for civilians to do. So ultimately your question is whether Al Qaeda is or isn't entitled to the status of an enemy power because it follows the conventions of 1500 years of Arab and Moslim military tradition instead of the 500 years of Western European colonialist military tradition.

Law is law and you have to follow and accept it as it is written down. Justice is something else and unreasonable people will argue about it forever. I am not in this posting claiming a moral equivalence or trying to justify anyone's action. I am pointing out that the country that firebombed Dresden and Tokyo and dropped bombs on Hiroshima and Nagasaki has to be careful before it assumes it has the right to distinguish lawful combat and terrorism in terms of its own sensibility.

Bin Laden doesn't have B-1B bombers, or JDAM munitions. What he has is Jose Padilla. Padilla is an Al Qaeda "cruise missile". He was aimed at some buildings in Chicago. So a more important question than trying to distinguish Al Qaeda from the Medellin Cartel is to distinguish it from a western army, and then determine how much of that is substance and how much is cultural chauvinism.

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