Dan Kohn says something very smart about the falsity of the Bush administration's claims about "enemy combatants":
Dan Kohn's Blog: ...The thing I don't understand about conservatives' claim that "enemy combatants" like Jose Padilla weren't envisioned by the framers is how obviously the text of the constitution contradicts them.... To quote Article III, Section 3:Posted by DeLong at August 31, 2002 03:45 PM | TrackbackTreason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
Why did the framers so carefully spell out what was required for a treason conviction and that it couldn't be lasting on the family (corruption of blood)? Because they were responding to the numerous abuses that had occurred in England of unfairly accusing and prosecuting political enemies, under the rubric of treason, while denying the accused the rights of due process.
I have little doubt that Jose Padilla is guilty of treason, although two witnesses may not be available. I think a conspiracy conviction could be achieved in a heartbeat. But I further believe that Bush and Ashcroft are subverting the constitution by denying Padilla his sixth amendment right to counsel on the accusation (not conviction) of being an enemy combatant. Someone guilty of treason ("levying war against the United States") is clearly... an "enemy combatant". And yet for a treason conviction, the Constitution explicitly required not just due process (such as the 6th amendment right to counsel) but the presence of 2 witnessess. If the framers meant to permit indefinite imprisonments under the rubric of the commander-in-chief responsibility (Article II-2), why would they possibly have given only Congress the right to suspend the writ of Habeas Corpus (Article I-9-2)?...
Meanwhile the nationals of other countries like the Australian David Hicks languish at Guantanamo with fewer rights than Americans - an amazingly effective way of affronting the populations of the staunchest traditionally most lamblike allies of the States.
I was at a function in Melbourne where the cream of the Melbourne Establishment turned out to hear the US Ambassador (an unusually well informed guy - not the retired used car salesman we usually get) say that David Hicks isn't getting due process because he's not American.
This was unusually candid but not an effective way for the United States to prosecute its own interests. Its the only hostile audience I've ever seen at this particular organisation - for anything.
Posted by: Nigel Hawthorne on September 1, 2002 05:16 AMThere's a real cognitive dissonance to the claims of sections of the American right towards the prosecution of terrorists. These are the same people who claim the the second amendment specifically grants Americans the right to own weapons in order to fight the state if it infringes on their rights, yet are the first to claim that Americans who fight the state in the name of Islam have no rights at all.
It's also another example of the growing divide between Europe and the US. Until 9/11, the US courts had a long history of extending nearly every constitutional right to non-citizens. There were even growing signs that the sort of arbitary and indefinite detention practiced by the INS was going to be challenged. The trend everywhere was definitely towards the elimination of legal distinctions between citizens and non-citizens. Now, the EU is still moving in that direction, with international courts specifically guaranteeing basic rights to non-citizens and even pressing for the right to vote to be extended to legal non-citizen residents of EU states, while the US has taken a huge leap into reverse, specifically denying that basic constitutional rights extend to any non-citizens. The US has basically abrogated even the minimial requirements of the Vienna Convention. Unfortunately, it hasn't stopped there. Even US citizens no longer seem to enjoy much in the way of constitutional rights if they are accused of even the faintest terrorist links.
I want to point out, a year ago the very idea of suspending habeas corpus would have been considered laughable in the US. No one could have contemplated a situation where it would have been necessary, even in a state of war. Now, many people seem to be complaining not that habeas corpus has been suspended, but that it hasn't been done legally.
Posted by: Scott Martens on September 1, 2002 07:09 AMThis may be historical partisanship carried too far, but I've always supported Lincoln's suspension of the writ. BUT this is in no way an endorsement of Bush's policy; al-Q is hardly as much of a threat to the federal Union as the Confederacy. The Constitution is not a suicide pack, sure; but it's also not chopped liver.
Posted by: Paul on September 1, 2002 10:55 AM>> ....I further believe that Bush and Ashcroft are subverting the constitution by denying Padilla his sixth amendment right to counsel on the accusation (not conviction) of being an enemy combatant. Someone guilty of treason ("levying war against the United States") is clearly... an "enemy combatant". <<
Not at all. Let's keep our crimes straight. Most kinds of treason don't involve enemy combatants. Rosenberg wasn't an enemy combatant. Benedict Arnold remained an American combatant until he was caught. Perhaps you meant to say an American who becomes and enemy combatant is clearly guilty of treason. Maybe, but that still doesn't make the two the same.
And there's a BIG difference between being an "enemy combatant" who serves the enemy in uniform in the enemy's army under the international laws of war, and being an "unlawful enemy belligerent" who serves the enemy as an infiltrator/saboteur. That's a third very different offense -- in law it's important to keep different crimes distinct.
The typical penalty for #3 in wartime (and often peacetime) around the world historically has been expeditious execution. And #3 is what we are talking about here -- Padilla allegedly was planning to set off a dirty nuke in a US city. That's a pretty serious case of being an infiltrator/saboteur, if so. So don't call him an "enemy combatant", because he wasn't one.
>> And yet for a treason conviction, the Constitution explicitly required not just due process (such as the 6th amendment right to counsel) but the presence of 2 witnessess. If the framers meant to permit indefinite imprisonments under the rubric of the commander-in-chief responsibility (Article II-2), why would they possibly have given only Congress the right to suspend the writ of Habeas Corpus (Article I-9-2)?...<<
Glad to see you grasp the importance of "original intent" in reading the Constitution -- picking up something from your good friend Justice Scalia? Though this does push it rather farther than even he does.
But keep in mind how so many liberals have for so long argued the Constitution should be applied flexibly in context of the needs of the day in our ever changing world, how they've generally carried the issue for the last 70 years -- and the legal precedents they've set.
E.g., regarding habeus corpus for a US citizen held as an "unlawful enemy belligerent", we have Ex parte Quirin, 317 U.S. 1 (1942). Therein FDR was holding some unlawful enemy belligerents -- including a U.S. citizen -- who'd been arrested on US soil for intending to commit sabotage for the Germans (although they hadn't actually done anything yet). They requested habeus corpus. The Supreme Court very quickly said "denied". (The Justices were mostly FDR's appointees, of course). FDR then had the prisoners summarily executed, right after they'd completed their quick & fair trial before a military tribunal.
Context and precedent are important in judging the reasonableness of current policy with some perspective. And considering the gross wartime assaults on the Constitution committed Woodrow Wilson and FDR, and even the peacetime ones by Truman -- good liberal Democrats all -- Dubya might well deserve a bouquet of flowers from civil libertarians.
Or maybe we should all just be thankful that the Justice Dept today is being run today by a good conservative Christian, rather than by some liberal Democrat who might follow all those precedents set by his predecessors. Of course, since God is on our side in this fight He probably arranged it that way. ;-)
BTW, sources on this subject courtesy of the NY Public Library are at http://www.nypl.org/branch/central_units/mm/hss/pathfinders/encomb.html
As I understand the Quirin case is the sole, never-tested precedent on the "unlawful combatant" case, and that it has been stretched enormously in the case of many who are so being held.
In the case of Padilla, if everything that is said of him is true, the case does seem comparable to Quirin. The problem is then whether or not the accusations are true. The fact that there's considerable doubt about this is one reason to have a trial.
The Bush administration has taken it on themselves to deny to a large class of enemies the protections either of the laws of war OR of American law.
For me my nearly-total lack of trust of Bush/Ashcroft/Rumsfeld is a major factor in my judgement of these cases. Plus the fact that the war they've declared has no defined goal and seems designed to last for several decades at least -- a permanent state of emergency.
And at this point I do not think neither that the whole (disunited) Muslim world nor any part of it is really a threat comparable to Hitler or the Soviet Union.
Posted by: zizka on September 1, 2002 05:10 PMRe:
>>Padilla allegedly was planning to set off a dirty nuke in a US city. That's a pretty serious case of being an infiltrator/saboteur, if so. So don't call him an "enemy combatant", because he wasn't one.<<
But Ashcroft *does*: that's what he calls him, isn't it?
re: "To quote Article III, Section 3:
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."
Ok, I'm just a layperson here. I'm not a lawyer. Color me naive, but "giving aid and comfort to the enemy"? Isn't this what Cheney did when he illegally traded with Iraq? Just what will it take before Cheney is accountable for this?
As Brad points out, the administration is holding Padilla (and Hamdi) as an "enemy combatant"--essentially, as a prisoner of war. A prisoner of war is not a criminal, and doesn't have to be charged. The President, as commander in chief, has the undobted power to hold enemy combatants as POWs for the duration of the war, whether or not such combatants are also US citizens.
There are two problems with the administration's reliance on this undoubted power in the Padilla and Hamdi cases.
First, that administration makes the extreme claim that the courts have no jurisdiction to review its determination of who is and is not an "enemy combatant." This means that the only things preventing the administration from, say, arresting the Democratic congressional leadership as "enemy combatants" are the administration's good faith and its fear of political consequences. This policy is inconsistant with the idea that we have a govenment of laws rather than of men, and even if you belive in the good faith of the present administration, it creates a precedent that could someday be used to establish a dictatorship.
Second, this is not a war in the ordinary sense, like WWII was a war. At the end of WWII, we released all POWS, except those that who were determined, after appropriate hearings before duly established courts and tribunals, to have violated the laws of war. But now, we're not at war with a country, except incidently, like Afghanistan. We're at war with an idea, or maybe a technique--"terrorism." It's hard to see how this can be a war in the legal sense, any more than the "war on poverty," or the "war on drugs." It's not a war that's ever going to be over, in the sense that WWII became "over," so holding someone as an "enemy combatant" in such a war essentially means holding him forever.
What's particularly troubling about the Padilla and Hamdi cases is that there is no apparent reason, other than the desire to create a precedent, for the administration to be taking the position it has been taking. Ashcroft's wild claims about Padilla have been largely retracted, but surely it would not be all that difficult for the adminisstration to make out some kind of case in court against them, particularly if all the adminsitration is trying to defend is its decision to hold these guys as enemy combatants, rather than to impose criminal sanctions. I don't like to indulge in paranoid fantasies, but the administration's apparent concern to establish legal precedent that would allow a judicially unreviewable roundup of dissidents is very troubling.
from Jim Galss:
Padilla allegedly was planning to set off a dirty nuke in a US city.
This is the problem I have with Bush. If Padilla allegedly did this, then try him in civilian court. BY not trying Padilla Bush is stepping on the writ of habeus corpus and our freedom. If Padilla is guily hang him. The longer the Justice Dept delays the trial the more credibility Bush looses.
Posted by: Jon A on September 3, 2002 07:20 AMOK, just to sum up.
>>the administration's apparent concern to establish legal precedent that would allow a judicially unreviewable roundup of dissidents is very troubling.<< Posted by rea at September 3, 2002 07:12 AM
>>The Bush administration has taken it on themselves to deny to a large class of enemies the protections either of the laws of war OR of American law....the war they've declared has no defined goal and seems designed to last for several decades at least -- a permanent state of emergency...And at this point I do not think neither that the whole (disunited) Muslim world nor any part of it is really a threat comparable to Hitler or the Soviet Union.<< Posted by zizka at September 1, 2002 05:10 PM
So the Bush administration, in the view of some, seems to want to establish a legal precedent that would allow a round-up of dissidents, to deny a class of enemies protection under any form of law, create a situation extends these abridgements of freedom on a semi-permanent basis, despite the fact that the enemy is far less threatening than those which faced our nation during prior periods of less egregious abridgements of rights.
Why, isn't this the Ashcroft boogie-man we were warned about prior to the rather toothless Senate confirmation? So the question is, is that really Ashcroft, or is it the boogie-man? (If it's really him, shouldn't there be an "impeach Daschle" effort?) Is the Bush Administration really doing something extraordinary, or are we just suffering a bit of confirmation bias? In the service of avoiding shallow partisanship, anybody think they know a seriously non-partisan adjudicator of such issues?
KH
Posted by: K harris on September 3, 2002 10:08 AMTo K. Harris (presumably, not THE K. Harris):
(1) I don't really think that the administration's actions are a prelude to mass arrests of domestic dissenters--it's just that I am hard-pressed to come up with a rational alternative reason for what they are doing. Part of it may be that the administration simply has a deepseated, irrational hostility toward the court system--but here we drift into the realm of psychoanalysis rather than policy.
(2) You can't say that Daschle is impeachably culpable, although I sure wouldn't have voted to confirm him. It's not as if Ashcroft announced the present policies in the course of his confirmation hearings,and I suppose that in a Bush administration, if it weren't Ashcroft doing this, it would be someone else. Ultimately, and regardless of how we feel about his intelligence, administration policies are the responsbility of the president.
Posted by: rea on September 3, 2002 11:38 AMWhat really bothers me about the Bush/Ashcroft policy is that their agenda is very, very obvious. Where they think they have a case that can be made in a civilian court -- a la Moussaui (sp?), they charge a person with a crime by the traditional method. Where they have no credible evidence to charge someone with conspiracy to kill americans, they hold him without explanation and refuse to provide counsel or allow for judicial review. Holding someone as an enemy combatant is one method. Holding someone as a material witness is another. The guatanomo detainees are yet another group. This policy results in the people who are most likely to be innocent disappearing into the system. For example, I could set someone up who I don't like -- a muslim who recently returned from pakistan for example -- and he could conceivably serve a life sentence in solitary confinement without ever being charged or without any opportunity to respond to the accusations against him. There's got to be a better way than this.
Posted by: pj on September 3, 2002 09:14 PM