an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Today the New York Times reported that in 2002 the Bush Administration debated whether to use the military to arrest terror suspects in Buffalo. Administration officials argued for using the military because they believed that the government lacked probable cause to search and arrest under the Fourth Amendment. The arrest would also have violated the Posse Comitatus Act, which prohibits the military from being used as a domestic police force.
Two parts of the story are particularly worth noting: First, "Former officials said the 2002 debate arose partly from Justice Department concerns that there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna. Mr. Cheney, the officials said, had argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody."
Put differently, Cheney sought to go around the Constitution's protections for persons arrested in the United States. The whole point of the enemy combantant theory was to avoid having to abide by constitutional guarantees. It is worth dwelling on this point: This is not a debate about whether the army would have to read Miranda rights to suspects captured on the battlefield in Afghanistan. It was a plan to have the military arrest people in the United States in order to get around civil liberties guaranteed by the Constitution. A second point in the New York Times' story, however, is equally important: Cheney's fears were unfounded. The ordinary criminal process, with its panoply of constitutional protections, was perfectly adequate to deal with these persons. "Mr. Bush ended up ordering the F.B.I. to make the arrests in Lackawanna, near Buffalo, where the agency had been monitoring a group of Yemeni Americans with suspected Qaeda ties. The five men arrested there in September 2002, and a sixth arrested nearly simultaneously in Bahrain, pleaded guilty to terrorism-related charges."
The New York Times article also mentions in passing the arrest of a U.S. citizen, Jose Padilla, who was arrested at Chicago's O'Hare airport and held in a military prison for three years with the Administration insisting that Padilla, as a designated enemy combatant, had no virtually no rights, including the right to be charged or to see an attorney. Glenn Greenwald correctly sees the connection between these debates in 2002 and what happened to Padilla: "The only thing distinguishing the Padilla case from what Cheney/Addington argued be done in the Lackawanna Six case was that the military wasn't used to make the initial apprehension of Padilla. But Padilla was then transferred to military custody and held on U.S. soil for years in a brig, incommunicado and tortured, with no charges of any kind (another U.S. citizen, Yaser Hamdi, was treated similarly until the Supreme Court ruled he was entitled to some sort of hearing, after which he was sent to Saudi Arabia)."
The central problem with the Cheney/Yoo/Addington theory was that it allowed the President to declare anyone in the United States an enemy combatant. Then, once the President made this declaration, the person would lose all their civil rights. The military could arrest and imprison the person without charges or any of the procedural protections of the Bill of Rights; it could torture them for information (under the theory that these techniques did not shock the conscience under the Eighth Amendment), and it could hold them indefinitely in a military prison. The problem with the Cheney/Yoo/Addington theory, in short, was that it embraced elements of military dictatorship within the United States.