Nolo Habeas Corpus
There’s another great round-up of the Supreme Court in Slate today. This time it’s the “enemy combatant” cases of Jose Padilla and Yaser Esam Hamdi. Here’s some highlights :
The crucial issue for both Hamdi and Padilla is whether the courts will hand the president the power to detain alleged “enemy combatants” indefinitely, without charges or access to counsel. The president says he already has that power anyhow: The Constitution gives it to him in his role as commander in chief, and Congress gave it to him, right after Sept. 11, when it authorized him to “use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks.” The president says this isn’t the beginning of “it.” This is the middle of a war.
. . .
Frank Dunham, on behalf of Hamdi, says that seeking a writ of habeas corpus from a court can hardly violate the notion of separation of powers since the whole purpose of habeas relief is to “challenge extrajudicial executive detentions.”Justice Sandra Day O’Connor asks Dunham for precedent involving U.S. citizens who are enemy combatants, and he offers up Ex Parte Quirin, a World War II case involving eight Nazi spies (one of whom claimed to be an American) who snuck into the United States with the intention of blowing things up. The Quirin court held that a military commission, as authorized by the president, was sufficient due process and the spies were not entitled to habeas relief.
Dunham points out that the words “enemy combatant” have no legal meaning; they are “not defined in the case law, not defined by statute.” Justice Antonin Scalia breaks in to say that they are, nevertheless, “English words, meaning someone who is combating. …” O’Connor queries whether habeas relief is available to every American citizen caught fighting for the enemy. Dunham replies that this assumes Hamdi was fighting for the enemy, which has never been proved in a court.
. . .
O’Connor speaks, it seems, for much of the court when she points out that this “war” we are in may last forever. “We’ve never had a situation where this war could last for 25 years of 50 years.” And Stevens asks whether the president’s power to indefinitely detain includes the power to torture. Clement observes first that there are international conventions prohibiting torture (there are also international conventions prohibiting what we’re doing in Guantanamo, but we just say those don’t apply) and, helpfully, that torture results in unreliable information. (Presumably once we master really effective torture, the president can order that, too.)Souter suggests he’s just not very comfortable with the government’s main assurance: “Don’t worry about the timing question. We’ll tell you when the war is over.” And Frank Dunham offers a fiery rebuttal in which he claims Clement is a “worthy advocate who is able to make the unreasonable sound reasonable.” He adds that the government’s claim that we should trust them is exactly why the Great Writ exists: because we don’t trust them. The passion seems to startle the justices, who remain silent throughout.
Of all of the awful, awful things that the Bush Administration has done over the past few years, this is one of the most troubling. If ever there was something in clear violation of the constitution, indefinitely detaining citizens without filing charges, granting access to a lawyer, etc. is it. Hopefully when the election rolls around, voters will remember which side of the constitution the Bush Administration argued on.
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The problem with the War on Terror is that it’s a war in the abstract sense that can incorporate war in the concrete sense. I believe that during times of war the President can assume greater responsibility and power (a la Abraham Lincoln), but you have to draw a clear distinction between the two kinds of wars and the behaviors acceptable in both. The President has created an abstract term to use during this ambiguous war, and, for me, that isn’t really good enough to hold detainees indefinitely, especially if this is a generational war as the administration assumes.
About the detainees and the constitutionality of holding them, that’s for the Supreme Court to decide, isn’t it? I mean, are the detainees US Citizens who have been proven innocent of engaging in treason?
Comment by E-Rock — April 30, 2004 @ 9:27 am
Well Jose Padilla and Yaser Esam Hamdi are US citizens, so they shouldn’t have to proved innocent of anything. They have to be proven guilty. They’re both really a special case though as most of the “enemy combatants” are not citizens. The problem I have is the term of enemy combatant. We’re either at war or we’re not. That makes them either prisoners of war or criminals. I feel like we’ve invented a new term so we don’t have to deal with the rules of how we treat either. This is a slippery slope. What if it extends to the war on drugs? Do drug dealers suddenly become enemy combatants?
Comment by Andrew — April 30, 2004 @ 9:35 am
The judge in my jury duty went to painstaking detail to make sure every juror understood this point. At no point in a criminal case is the innocence of a defendant ever in question. The burden of proof is on the state alone.
Good point. The “war on terrorism” is a rhetorical device used to describe the various efforts to stop terrorism. This includes homeland security, military might, and law enforcement. But if Bush is trying to stretch the use of the word “war” to encompass all of these things then something is seriously wrong.
While I can understand an argument that Hamdi is a POW (which, as Andrew pointed out, is different than an “enemy combatant”), the Jose Padilla case is clearly a criminal matter and should be dealt with accordingly. Hell, he was “captured” in New York.
I wonder if people would feel the same way about rhetorical wars being treated like real ones if it was drug addicts being thrown into Cuban “happy camps” and being denied of their constitutional rights because they might be able to provide information about their dealer. After all, in the “War on Drugs” you’re either with us or against us.
Comment by greg — April 30, 2004 @ 10:50 am
Of course I understand the burden of proof being on the prosecution. I misspoke there, but I think that what’s going on now is something that the founding fathers came nowhere near anticipating, and it’s actually a good thing that this has happened and is winding its way through the courts.
Presidents have a history of taking more power during wartime than they normally would have, and when no one questions those assumptions of power, then precedents get set. This case might set some kind of limits on the Presidents’ war power, or it might leave the President’s wartime powers as wide as they already are. Either way, it would be good to have some kind of definition.
I wouldn’t say the Padilla case is clearly criminal. That is, it isn’t exclusively criminal, because the War on Terror has recontextualized that specific possible case of treason.
Comment by E-Rock — April 30, 2004 @ 1:40 pm
I don’t see it that way at all. He’s an American citizen captured on American soil accused of breaking an American law. To argue that the Constitution doesn’t apply to him is to argue that it doesn’t apply to any of us.
Would the war on terror be allowed to include a high school kid who’s experimenting with the Anarchist Cookbook? Or an NRA member who stockpiles weapons? Or a dumbass who calls in a bomb threat because they don’t wanna go to work that day?
The biggest irony here is that 9/11 was the date chosen because it coincided with the sentencing date of the guys who were tried for the first World Trade Center bombing. It would be sad to think that 9/11 is also the last time anyone accused of terrorism was allowed to defend themselves.
Comment by greg — April 30, 2004 @ 2:04 pm