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Home Front
Court to Rule on ’Enemy Combatant’ Label
2003-11-18
A federal appeals judge said Monday it would be "a sea change" in the Constitution to allow the Bush administration to designate a U.S. citizen suspected in an alleged dirty bomb plot as an enemy combatant.
What'd they call 'em at Andersonville?
In a critical showdown between the government and civil rights lawyers, two members of a three-judge federal panel seemed hesitant to embrace the government’s reasoning for why Jose Padilla, 33, should be held indefinitely without access to a lawyer and without being charged. Padilla, a Muslim, is accused of plotting with al-Qaida to detonate a "dirty bomb," which uses conventional explosives to disperse radioactive materials. The former Chicago gang member was taken into custody in May 2002, and has spent most of the time since then in a naval brig in Charleston, S.C. In the two-hour hearing before the appeals panel Monday, Deputy Solicitor General Paul D. Clement suggested that the urgency of the war against terrorism necessitated such moves. "Al-Qaida made the battlefields the United States and they’ve given every indication they’re trying to make the United States the battlefield again," he said. The hearing marked the first time a U.S. government official has said a limited number of enemy combatants could eventually have access to an attorney. Clement told the judges that combatants such as Padilla — a U.S. citizen being held on U.S. soil — could get a lawyer once their value as intelligence sources has been exhausted. But Judge Barrington D. Parker Jr. said he believed the power to designate a U.S. citizen as an enemy combatant rested with Congress, rather than the president.
That’s shaky, the Constitution makes the President the commander of the armed forces and thus director of the war effort.
Giving such power to the executive branch with only limited review by the courts, he said, would be "a sea change in the constitutional life of this country and ... unprecedented in civilized society." Said Judge Rosemary S. Pooler, another member of the panel: "If, in fact, the battlefield is the United States, I think Congress has to say that, and I don’t think they have yet." Later, she added, "As terrible as 9/11 was, it didn’t repeal the Constitution."
Doesn't sound like it nudged certain judges into deep thought, either...
Specifically, the government was asking the court to overturn a finding by U.S. District Court Chief Judge Michael Mukasey that Padilla is entitled to meet with his lawyers and contest being designated as an enemy combatant. Jenny Martinez, a Stanford Law School professor who argued on Padilla’s behalf, said the government believed it could designate anyone, even a citizen, an enemy combatant at any time. "This new power government is looking for is entirely unprecedented," she said.
So was 9/11, Jenny.
The third judge on the panel, Richard C. Wesley, suggested the case shouldn’t have been brought in Manhattan. "This should be litigated in South Carolina," Wesley snapped.
"Too hot for me to handle. Let somebody else get lynched for letting a dirty bomber off after somebody manages to pop a dirty bomb."
The judges weren’t expected to issue their ruling for weeks if not longer. While two of three judges expressed doubts about the government’s arguments, they could still opt to refer the case to another court, as Wesley suggested.
Or they could hear it en banc.
Padilla was arrested at Chicago’s O’Hare airport as he returned from Pakistan. The government said he had proposed to Abu Zubaydah, then al-Qaida’s top terrorism coordinator, to steal radioactive material to detonate a dirty bomb in the United States. Only two other people have been designated enemy combatants since the 2001 terrorist attacks: Ali Saleh Kahlah Al-Marri, a citizen of Qatar who has been accused of being an al-Qaida sleeper agent, and Esam Hamdi, a Louisiana native captured during the fighting in Afghanistan.
I’m torn by this. Proper thing to do (says me) would be to charge Padilla with treason, give him a lawyer, and put him on trial. I don’t think folks would be fooled by his excuses.
Posted by:Steve White

#17  Returning late, let me clarify my point. Try him as a traitor if you can, but it may not be possible to allow him more than a sham defense without compromising security/classfied information. If that's the case, there should be some middle ground between the routine justice system that can't handle the situation and an unreviewable executive declaration that puts you away with no contact with the outside world indefinitely. Some kind of review, maybe similar to the "intelligence court" (FISA?) should be possible without compromising either security or interrogation.

Badanov - Webster's defines "incommunicado" as being held without contact with others. Without the knowledge of others isn't part of the definition. Calling somebody a liar over a fine point of definition is bad enough, but at least get it right.


Posted by: VAMark   2003-11-19 12:13:28 AM  

#16  What'd they call 'em at Andersonville

Even the Swiss guy? (a fine point for sure)
Posted by: Shipman   2003-11-18 5:59:26 PM  

#15  "What'd they call 'em at Andersonville"

POW's.
Posted by: liberalhawk   2003-11-18 2:51:20 PM  

#14  doesnt the US have to declare someone a non-citizen for whatever reason. AFAIK Padilla was a citizen at the time of this arrest, and the admin considers him one to this day.

And of course the Pres has full power to wage war. he doesnt have unlimited power to decide what constitutes waging war. Can he decide that any terrorism related arrest that takes place on US soil is part of the war, and so he can determine that ANYONE arrested is an enemy combattant. IIUC the appeals court is saying that if the US homeland is to be considered the "battlefield" for the purpose of classifying someone as a non-combatant, congress needs to be involved in such declaration.

I see NO good outcome, either way. I see no clear means of trying Padilla that doesnt interfere with interrogations. OTOH I dont want to see the precedent of US citizens taken on US soil held as enemy combatants, without due process rights.

Hopefully more will become clear when this goes to the SCOTUS.
Posted by: liberalhawk   2003-11-18 1:19:52 PM  

#13  Judge Parker's a moron, it seems. If there's anything that's pure executive branch, it's the war-making powers. Commander-in-chief and all that, maybe you twits will recognize the phrase, huh?

Congress funds, or not. That's their power.
Posted by: mojo   2003-11-18 10:46:45 AM  

#12  Precedent has been that anyone who fights for another nation or militant group loses his/her US citizenship. Once citizenship is gone, then anyone attacking the United States would be a "foreign combattant", regardless of where they were born or call home. Dozens of Japanese and Germans who were INVOLUNTARILY inducted into the armies of Japan and Germany because they held dual citizenship and happened to be in those countries at the outbreak of hostilities were classified as 'foreign combattants', and it took direct action by Congress to restore their citizenship - usually on a case-by-case basis.

In this instance, the guy deliberately planned to wage war against his homeland for another political group. It should be the considered the same way Southern soldiers fighting for the Confederacy during our civil war were considered. The guy has relinquished his rights as a US citizen, and should reap the rewards of his stupidity.
Posted by: Old Patriot   2003-11-18 10:21:41 AM  

#11  Try him for treason. Get this thing going. I thought his citizenship was in dispute but was wrong. He's a U.S. citizen which, I believe makes him treason material. He'll be found guilty, locked up or executed. If locked up, the prison population will take care of him if you know what I mean. If he gets off on some unforseen b.s. techno, he's deadmeat on the outside, rest assured. The guy is screwed either way - I feel better now.
Posted by: Jarhead   2003-11-18 9:50:00 AM  

#10  interesting that it was brought in Manhattan, and not South Carolina - judge shopping?
Posted by: Frank G   2003-11-18 9:29:45 AM  

#9  Give the guy a trial for treason. I suggest someplace in Harris County, Texas. It ain't the execution "Fair Trial" capital of the nation for nuthin...
Posted by: Laurence of the Rats   2003-11-18 9:18:07 AM  

#8  The question is whether we're going to give the President or the Attorney General the right to hold American citizens incommunicado indefinitely with no judicial review at all.

To me, that is a contraditction. And a contradiction is nothing more than an attempt to deceive and a deception is nothing more than a lie. The facts are that Padilla is not held incommunicado, otherwise no one would be aware of that condition. So let's get that straight once and for all. Were this Iraq or some other mobocracy, Padilla would be dead already and the government would deny having killed him.

If Padilla is being denied a lawyer as a prudent and minimal measure intended to prevent a character from going underground to plot more attacks against his country using strategic weapons, it is becuase the judicial system has been demonstrated time and again to be not up to the task of defending the USA against homegrown terrorists. The great expansion of criminal rights of the 60s and 70s is coming home to roost.

Detaining Padilla pending completion of a prosecutorial review of what to do with him is a sensible measure.

Detaining people whose release would constitute a danger to the public good is a long established means of preventative measures. You should read case law on this very matter where some folks have been held a lot longer for a lot less than Padilla and it was upheld by SCOTUS.

This isn't like somone rounded up a Mexican coz he looked like he may be Muslim. This guy was plotting an attack against the USA, which results would have been life-taking radiation in a city lasting thousands of years. Is Padilla's crimninal rights really worth that?
Posted by: badanov   2003-11-18 9:11:12 AM  

#7  Yeah, VAMark, you have a point. We shouldn't be holding these traitors. We should have shot them on the spot like we did when we caught U.S. citizens fighting for the Germans in WWII.
Posted by: Parabellum   2003-11-18 9:08:50 AM  

#6  VAMark, elaborate. I'm tired of people saying there are other options but not providing any. It's lazy. And you just said trailing him is impractical. I'm not trying to be snarky or anything, it's just I'd like an alternative but I can't think of any that would be less 'offensive' to the Bill of Rights. But to be honest, if you aren't a terrorist, or a terrorist sympathizer I have yet to see any real effect on the Bill of Rights. It's all 'crying wolf' as far as I can tell.
Posted by: Swiggles   2003-11-18 8:46:24 AM  

#5  Padilla is clearly a treasonous bastard. That's not the issue here. The question is whether we're going to give the President or the Attorney General the right to hold American citizens incommunicado indefinitely with no judicial review at all. That's not been our practice in this country, and we should think long and hard about whether we want to accept it. There are a lot of options short of this extreme that can be used (even if a trail per se is impractical) to keep this guy and the scum like him out of circulation and extract whatever information they have without roundfiling the Bill of Rights.
Posted by: VAMark   2003-11-18 8:18:09 AM  

#4  Unfortantly they are correct,Padila is not an enemy combatant,he is a traitor.He should be tried as a traitor and if convicted of treason,hung by the neck until dead,dead,dead.
Posted by: Raptor   2003-11-18 7:59:04 AM  

#3  I'm not torn by this at all. Padilla went to a foreign element to propose a strategic weapons attack on the USA. It is cut and dried in my view. He is a traitor and the USA best be rid of him.

I am afraid the legal profession in this country has lost its way. They would rather be enablers of foreign terrorist elements then to do the necessary work of killing them.
Posted by: badanov   2003-11-18 5:53:35 AM  

#2  If the dark side wins, then Congress might just have to redefine jihad criminality. I would include financiers of jihad, or: damn near every American Muslim. Avicenna's (ibn-Sina) book on "jihad" clearly links finance and support, with jihad. Hey, the good guys can't lose.
Posted by: Anonon   2003-11-18 2:34:28 AM  

#1  You have to remember that the Quirin Court observed that the charge of unlawful combatancy is distinct from treason and those who commit acts of unlawful combat or assist enemy states in the conduct of such operations are subject to trial as unlawful combatants.

Posted by: Anonymous   2003-11-18 2:12:02 AM  

00:00