June 13, 2002
DAN GILLMOR is very unhappy with the detention of Al Muhajir, since he’s a U.S. citizen. I agree that that’s an important distinction.
If the U.S. government locks up noncitizens, it may be a human-rights violation (or it may not) but it’s not politically corrupting. When the government locks up citizens without following Constitutional niceties, it may tempt it to abuse that power, and it may intimidate critics by the threats of such abuse, both concerns that don’t exist when noncitizens are involved.
I think that’s a good reason for maintaining a firewall between treatment of citizens and noncitizens. One offers a risk (so far, based on Guantanamo, not realized) of human rights violations. The other offers a risk of tyranny, in which the government, which should be the servant of the people, begins to act as master. We’re not close to that yet, but we’re closer than we were.
UPDATE: Eugene Volokh identifies a World War Two case holding that citizens who join enemy belligerents can be imprisoned without trial for the duration of the war:
On the points made about the detention of the dirty bomber, I think this case is instructive: In re Territo, 156 F 2d 142 (9th Cir 1946), [which holds] that a citizen who is an enemy belligerent [there, a prisoner of war] can be held without trial for the duration of the war. The only question is whether the Executive’s determination of belligerent status is subject to habeas [corpus] review. I believe that it is, and should be, and I predict that the dirty bomber will seek habeas, and that the Executive will present its evidence, and that the federal courts will determine that he is in fact an enemy belligerent subject to detention without trial.
Ken Galbraith says:
You gotta be kidding. We are nowhere near the point where the government will lock up oppenents and innocents out of pure malicous nastiness. It’s not even close.
June 13, 2002, 1:03 pmJohn says:
I was visiting a number of sites today and came across a blurb about a 1940?s Supreme Court ruling about citizens being detained if they are acting as combatants and try to re-enter the country. Can anyone confirm? If so, doesn’t this ruling take the wind out of the “EVIL AG JOHN ASHCROFT DETAINING HARMLESS US CITIZENS FOR NO REASON” sails?
I am astonished by the furor created by Padilla/Ishamel/John Doe #2′s detainment. I mean why not just make him a hero like all the other “heros” that are US political prisoners?
June 13, 2002, 1:09 pmPeaceful mosque-free Cozumel says:
As far as I am concerned, Padilla gave up his citizenship by training with the al queda. That might even be the law.
June 13, 2002, 1:10 pmBrian W. says:
Citizens MUST be afforded all constitutional protections. I think the dreaded slippery slope argument has merit here.
June 13, 2002, 1:12 pmBrian W. says:
A question: how does the Quirin decision relate to this case?
June 13, 2002, 1:14 pmJohn says:
It’s not a matter of how close in absolute terms, rather that we are closer now than we were a few days ago. I’ll admit that at first blush I had no real problem with the government’s actions in regards to Muhajir, but on reflection, if they can decide that he is suddenly outside the circle of constitutional protections, they can decide that about anyone. All it takes is a little careful preparation.
Unfortunately, most Americans will take the view that this is no big deal and won’t take the time to look at the longer term implications. This is human nature at its most self-destructive and is the most common stepping stone to tyranny.
No, I don’t believe we are flirting with police-state tactics… yet. We are not even close. But, as noted, we are a little closer now than we were before. Glenn nailed it dead to rights.
June 13, 2002, 1:14 pmMike Jackmin says:
I suppose the $64,000 question is, what’s the next firewall? I can fully appreciate the need to distinguish enemy combatants from criminals and to handle them differently, but at what point does a citizen cross that line?
I’d be surprised if we go a year without somebody suggesting we apply this same criteria to drug runners.
June 13, 2002, 1:14 pmEric says:
I have to disagree with your thesis Glenn. Think of it this way: re-wind the clock back 60 years. Instead of an American convert to Islam, say the FBI had arrested a member of the American Bund that had been to Germany, trained as a spy and saboteur, and re-entered the United States to participate in operations against America.
Would the apprehension of such a suspect set off the same alarm bells and concerns for civil liberties. I think probably not. As a citizen, I’ve always generally assumed that some rights might be circumscribed in wartime for the protection of society as a whole.
The arrest of Mujahir seems to be something prudent in pusuit of foiling an attack innocent civillians. Now, if the government locked up a mullah from Detroit who was criticizing the conduct of the war (but wasn’t connected with operations against the U.S.), I think I might agree with you. But I don’t think we’re anywhere near that yet. Heck, we’re not even in Eugene V. Debs or Ezra Pound territory yet.
June 13, 2002, 1:15 pmJohn says:
Peacful mosque-free Cozumel-
I’d have no problem with that except that there is not automatic loss of citizenship. There is a defined process for that which has yet to be enacted in this case. Stripping him of his citizenship in a Constitutional manner would satisfy the “firewall” requirement that Glenn mentions, but it has to be done legally. No shortcuts, please.
June 13, 2002, 1:18 pmLuke Pingel says:
Assuming we afford this guy full protection if he’s arrested here in the U.S. That won’t stop his detention. He’ll just be detained outside the country….where there are no Constitutional restrictions whatsoever…You think people who cry wolf would think about this stuff and measure their responses accordingly…
June 13, 2002, 1:22 pmBruce says:
I guess, then, that Abraham Lincoln was a tyrant. How many Confederate soldiers — I mean — how many US citizens did he detain without bail, trial etc.? Certainly far more than President Bush has or likely ever will.
June 13, 2002, 1:24 pmBarry Molefsky says:
Does Mujahir have an attorney? If so, shouldn’t the attorney file a writ of habeas corpus and let a judge decide if the government is acting improperly. If Mujahir doesn’t have an attorney, that would be cause for concern about slippery slopes.
June 13, 2002, 1:25 pmJohn from the Right Coast says:
Had to change my name. John from WeekendPundit message was a bit different then mine.
In this age of free flowing information, I would be nigh impossible for a citizen or non-citizen to disappear. This requires those in charge of National Law Enforcement/National Securtiy accountable for anyone in thier care/detention. This isn’t a totalitarian regime that will slowly eliminate its enemys by making them political prisoners when any Tom, Dick or Harriet can blow the whistle on them for the whole world to see.
Just to remind everyone, this ain’t Cuba or North Korea or most muslim states, if it was no one would have ever heard of Jose Padilla.
June 13, 2002, 1:26 pmMike Drout says:
But what happens when the government screws up and nabs the wrong person and then detains him without all the constitutional protections? There is no one more hawkish on the war on terror than I am, but isn’t it possible that the same incompetent losers in the federal bureaucracy that screwed up pre-Sept. 11 could screw up again and arrest the wrong guy? (I don’t think it has happened in this case, but I don’t have enough info). What happens when some sleazeball in custody decides to lie and implicate an innocent person? These sorts of things happen all the time in drug cases (Virginia Postrell posted something a while back). Why would terrorists and those investigating terrorism be immune to the same sorts of errors?
June 13, 2002, 1:26 pmJohn from the Right Coast says:
Yes, he has an attorney.
June 13, 2002, 1:27 pmJohn from the Right Coast says:
Would rather detain innocents than allow another attack!!!!!!!!!!!!!!!!!!
Remember the FBI memo?
June 13, 2002, 1:28 pmMike Steele says:
Please!
He was a courier for AlQ, having brought in $15K to finance operations. He got this money in Switzerland just before arriving in the US. That’s giving aid and comfort to enimies of this country, and sec 1481(a)(3)&(7) defines that he shall lose his nationality for acts like that. He’s forfited his citizenship by his own hand, and I hope the shoot this traitor.
June 13, 2002, 1:28 pmJeff Dove says:
If some hearing is conducted to determine his status as either
a civillian criminal suspect or a hostile wartime combatant,
then due process has been served. He should
initially be entitled to representation only on this issue,
and if he is deemed a combatant off to Gitmo. Don’t the
ACLU and their “fellow travelers” see the danger in
allowing the enemy’s foot soldiers to “lawyer up”, despite
what their birth certificates say?
June 13, 2002, 1:30 pmAndy B says:
I want to agree that Padilla should be treated with all Constitutional rights due a citizen, but is it reasonable to suspect that we might not get as much information out of him were he locked up and processed as the NY Times wishes? Maybe he’ll be more cooperative under his current circumstances than he would if he were accorded a lawyer and other “Constitutional niceties”. It certainly is a slippery slope, but at the time it seems more reasonable to let our government handle the really bad guys in order to save us from another massive attack. Maybe 20 years from now when I’m running from the thought police or the bureau of pre-crime I’ll disagree.
June 13, 2002, 1:34 pmCraig Schamp says:
Yes, isn’t there a firewall in the privilege of habeas corpus? (Little as I understand what habeas means.) And doesn’t even the Constitution allow for certain suspensions of rights in times of war (“rebellion or invasion”)?
Important at this time, to help prevent permanent erosions that would affect us all, is for the government to explain its actions, and for us to keep pressure on them to do so. Some things will of necessity be secret for security’s sake, but explaining why Al Muhajir’s treatment is different from Moussaoui’s or Walker’s would be clarifying.
Also important is to win this war as fast as possible, to allow us to return to peacetime standards of government power vs individual rights.
June 13, 2002, 1:35 pmJ. Denver says:
On its face, the idea of the government locking up citizens without being tried or even charged is not appealing. However, civil liberties always have to be balanced with security needs during a war. Today, from the safety of the total defeat of Imperial Japan, we can say it was entirely wrong to intern loyal Japanese-American citizens. But, seen from the perspective of 1942, when we were losing the war, it seemed like a reasonable precaution at the time. Maybe when this war is over, we will apologize to Muhajir (though I doubt it), but as long as Bin Ladn breaths and the threat of Washington being incinerated hangs over our head, better to err on the side of caution and keep that scum locked up.
Keep in mind that though Al Muhajir has been locked up temporarily, he has not been deprived of due process. One way or another he will get in front of a Federal judge and that judge, not John Ashcroft or Don Rumsfeld, will decide whether or not he can continue to be held without trial. If he fits the definitions of an enemy combatant in accordance with legal precedent, he may held “for the duration” and rightly so. If not, he will walk free regardless of what the government thinks. As long as our system of checks and balances remains intact, we are safe from tyranny.
June 13, 2002, 1:36 pmBrian Carnell says:
We gave those who conspired to blow up the World Trade Center criminal courts with the full complement of rights. It seems absurd to me to suggest that we should deny that to an American accuse of trying to hatch terrorist plots.
June 13, 2002, 1:39 pmAmericanLawyerinLondon says:
I disagree with Prof. Reynolds – and I have even had him as a Prof. – and agree very much with Bruce. His comment was what I thought when I read the comments (before I got to Bruce’s comment).
I think Lincoln suspended habeas corpus and a lot of other “civil liberties” during the war. Nevertheless, the basic concept that someone who becomes a “combatant” places themselves outside of the “civil” society that provides constitutional protections.
Back to the Civil War point – my distant relative back in the day refused to re-swear allegiance to the United States after the war and was therefore deprived of all of his “civil rights” as a result. The point is, he lost “civil rights” when he joined the Confederate Army (being a General and the son of a former US President also may have rubbed salt in the wound). Joining a terrorist group dedicated to making war on the United States should generate the same result – even though the former may have been justified as a legal act, the later activity is not.
June 13, 2002, 1:40 pmJohn from WeekendPundit says:
Hey, I’m from the right coast, too:)
Anyhow, regarding Mujahir’s status- it stands to reason that there should be a hearing regarding that. Having not followed the intracasies of how he came to his precise position it is possible (though quite unlikely) that such a hearing was held and that the decision was rendered against him, making all argumentmoot, but if that were the case we would have heard about it by now, I am certain.
Nobody here is starting a “free Padilla!” club. I just want to see US laws obeyed in the US by the US government. Is that too much to ask?
June 13, 2002, 1:44 pmArnold Kling says:
I think that the threat of tyranny comes in only when people are locked up secretly or without charges ever being brought. I think it’s important for the government to charge Al Muhajir with something. If no charges are ever brought against him, then I don’t see how you can justify locking him up, either citizen or non-citizen.
June 13, 2002, 1:46 pmSpambait says:
So, which war are we fighting? The War on Poverty? The War against AIDS? The War on Drugs? The Korean War?
How convieeeeenient, to blame the wholesale violation of this nation’s charter on some popular foe!
BTW, Mr. Law Professor, when in the last hundred-some-odd years HAVEN’T we been at war?
June 13, 2002, 1:49 pmJoshua J. fielek says:
Precedent exists for busting a citizen prepared to commit acts of war/espionage, especially in times of war.
Of the eight German sabotuers busted in 1942, two were US citizens. During a time of war, spies get treated as combatants, whether they are civilians or soldiers acting as spies.
The law of war also allows for summary execution of spies, fwiw.
Treating Padilla as a spy in wartime is the correct action in this instance. Were we not on a war footing, then he’d belong to the regular criminal establishment.
J
June 13, 2002, 1:52 pmJohn Povejsil says:
I think Mr. Ashcroft’s time has has passed. He never was my pick for for AG but the left’s vitriolic hatred of him made it easier for me to swallow my doubts. I now wish he would exit gracefully. We need a truly visionary AG right now who is can balance rigorous civil libertarianism with finding guys with nuclear suitcases. This latest case notwithstanding, Ashcroft doesn’t seem like the guy.
June 13, 2002, 1:55 pmLaertes says:
If you don’t have a problem with this, try and imagine how you’d feel if, say, Janet Reno had decided that Randy Weaver was an “enemy combatant” and had him locked up for a month before telling anyone about it, then argued that he wasn’t entitled to such “niceties” as a jury trial.
When I hear Americans taking the bill of rights so lightly, I figure it’s probably because someone thinks someone else’s ox is getting gored.
I suppose it’s an easy step to take, going from hating those godless commie liberal ACLU types to hating the document they’re always rattling on about.
June 13, 2002, 2:03 pmBrian Carnell says:
AmericanLawyerinLondon:
Then why did the folks who conspired to blow up the WTC get criminal trials? It seems inconsistent to give foreigners who tried to blow up the WTC criminal trials but give a citizen engaged in similar activities something other than a criminal trial.
Glenn:
How come this entry has a comments option but the others don’t?
June 13, 2002, 2:04 pmJohn says:
How do you balance civil libertarianism with finding guys with nuclear suitcases.
Thats like training for the Olympics, but not controlling your diet by eating junk food.
June 13, 2002, 2:04 pmRandy Harwell says:
scrolling back up to an earlier question, from what I gather Ex Parte Quirin is on point except for that we had formally declared war when it was decided. a bunch of nazi collaborators (mostly german nationals but there was one naturalized american) were nabbed in the act of planning all kinds of mayhem in this country. FDR had them tried by a military commission and executed them on the day of their convictions. the decision in Quirin denied their habeas motions. they were, as Padilla seems to be, very bad actors.
FindLaw has the case at
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=317&invol=1
June 13, 2002, 2:05 pmScott says:
I’m not afraid to admit that I’m conflicted on this one.
Shouldn’t we all be conflicted?
On one side of the equation is National Security. Lock the guy up and throw away the key. Pump him for information. We’re at war. Show no mercy. Win.
On the other side is liberty. Detain a man indefinitely without charging him? That’s unprecedented.
Well, not really. We detain “material witnesses” for months without charging them. Or we give them little “holding charges,” like immigration violations, or making misleading statements, or anything we can find – just to keep them off the streets.
We also detain asylum seekers for YEARS, whose only crime is fleeing from tyranny, while we process their applications. We were doing this even before September 11.
And yes, I was conflicted about that, too.
I don’t have the answer. But I am very relieved that we’re having the debate. I would be much more concerned if we just accepted that this man should be locked up forever simply because our government tells us he’s dangerous.
They might be doing the right thing, but there is a huge potential for abuse of power in this case. That concerns me. It should concern you, too.
June 13, 2002, 2:18 pmpeaceful mosque-free Cozumel says:
Methinks the Good Professor threw his readers a hanging curve ball.
June 13, 2002, 2:20 pmMartin says:
The Al Muhajir incident is messy. It seems that a US citizen is receiving treatment generally reserved for non-citizens. I don’t know what is right or wrong here.
Richard Cohen has a good story in today’s Washington Post comparing John Ashcroft and J. Edgar Hoover. Maybe some of what is taking place is for pure political purposes.
June 13, 2002, 2:22 pmChris says:
Sorry but the playing field has changed after Sept 11. and 3000 innocents are dead. US citizen or not, if you are tipped off by multiple indpendent Al Qaeda sources, hanging in out Pakistan and flying back and forth from Switzerland with 10,000 bucks in cold hard cash (without having a job)…. you’re a terrorist.
Citizen or not.
Here are some ground rules for being a terrorist.
(1) Hanging out in Pakistan with Al Qaeda
(2) Having falsified ID
(3) Carrying large sums of cash (without having a job)
(4) Getting caught with disguises and boxcutters
You get the picture.
June 13, 2002, 2:31 pmRaoul Ortega says:
Jose the Holy Warrior (isn’t that the proper translation for his self-selected Muslim name “Al Muhajir”?) lost all Constitutional protections when he took up arms against it. I think he should be used as an objective lesson to all his fellow Bloods and Crips who think that all they are risking is some time in juvie and another suspended sentence while gaming the system.
Welcome to the Big Leagues.
June 13, 2002, 2:31 pmGlenn Reynolds says:
Well, I switched comments on for this one because I especially want to hear what people think. (I don’t turn ‘em on automatically because it adds to the server load — and to the load on me in terms of policing them and keeping up with them).
I’m conflicted, too, and it may be the case that the habeas corpus proceedings will answer my worries sufficiently. I do think that it’s important to flag these issues, though.
June 13, 2002, 2:33 pmDan Hartung says:
(Muhajir is someone who has completed the Hajj, the required trip to Mecca. It is not related to the term Mujahid, which is the word for Warrior.)
June 13, 2002, 2:48 pmGil Gilliam says:
I’ve always heard that those who went to work as mercenaries forfeited their citizenship if discovered to be doing so.
If true, would we only define a mercenary as one in the employ of another nation, or would working in the employ of a non-state military organization also qualify?
I guess, though, one so accused would have to first be tried and proven guilty of the mercenary charge, then stripped of his citizenship and made subject to the rules that apply to foreign combatants.
Just woendering…
June 13, 2002, 3:06 pmEthan Sprang says:
Due process requries an opportunity to be heard. Where is that hearing for Padilla?
At what point was the government required to say “We’ve got the evidence that he’s guilty”, and prove it to an impartial trier of fact by ANY standard, even one as weak as preponderance, or probable cause? The short answer is: not ever. Not even in secret.
Where is the opportunity for Padilla to defend himself? To assert his innocence, and require the government to prove his guilt? In truth, he has none. In the wake of Oklahoma City, such reasoning would have allowed the government to lock up a whole host of militia members across the country with nothing more than an assertion that they were part of a vast conspiracy directed against the American government.
It is ironic that this is precisely the expansion of government power that the right to bear arms is most necessary to defend against, and yet the most vocal defenders of that right are silent. How useful is John Ashcroft’s defense of an individual right to bear arms when he reserves to himself and his boss the right to imprison you at will without trial or counsel?
June 13, 2002, 3:17 pmFrancis Logan says:
Wow, I had no idea that so many readers of Glenn’s blog (a) can’t spell and (b) are ready to throw away the Constitution.
1. The Constitution matters, a lot. The single greatest difference between this country and most of the rest of the world is the supremacy of the RULE OF LAW! (yes, I’m shouting.) As Nixon and Clinton both discovered, no one is above the law. Al Muhajir is a citizen of this country, and is therefore ABSOLUTELY ENTITLED to the protections afforded to him under the Constitution. The most important protection for him right now is the PRESUMPTION OF INNOCENCE. I don’t care if Ashcroft asserts that this guy has Bin Laden’s home address tattooed on his ass, he is INNOCENT until proven otherwise.
2. Lincoln did in fact suspend the writ of habeas corpus, allowing the indefinite detention of innocent people during the Civil War. A lot of people, including me, think that he was flat wrong to do so.
3. The Bush administration has not suspended the writ of habeas corpus, so Bush has no power to order someone locked up without following criminal procedure.
4. How do we know that the evidence supporting the conclusion that he is an “enemy combatant” isn’t tissue-thin, or just a pack of lies? Answer: by putting that evidence to the test in a courtroom, where he has a lawyer and the opportunity to confront his accusers.
5. There are lots of ways for a judge to review the evidence against Muhajir without sensitive evidence being leaked to the press. The judge can seal the courtroom, review evidence privately without showing it to the defense attorney, and provide certain evidence to the attorney that is not provided to Muhajir.
6. Yes, 3,000 americans were killed, and our government has the obligation to protect us. But Al-Queda and the Taliban have been driven from Afghanistan. If no one’s noticed, the loya jirga has started. So when is the War on Terror over? Witness our War on Drugs, our War on Proverty, and our War on Inflation. So far, only one of those three are over. If we can hold the Guantanamo prisoners and Al Muhajir until the War on Terror is won, when do they get out? Or can the US hold Al Muhajir until he dies, without ever charging him with a crime?
7. I believe that the Bush administration has done an admirable job in the last few weeks of whipping up our fears, and that the effect of its fear-mongering is the thinking in some of the preceding posts. However, instead of appealing to our basest instincts, Bush should be appealing to our strongest ones, like pride in the American way.
8. The American way includes having your day in court, even if you are, ALLEGEDLY, a traitor to your country and a coward.
In conclusion, I am not conflicted at all. There are lots of ways that the government can take its case to court while protecting state secrets. I suspect, though, that one reason it is reluctant to do so is that its case is weaker than the one against Wen Ho Lee, and even the most pro-government judge will apologize and order Muhajir’s release. I would be delighted to be proven wrong on this point, but the government needs to do more than issue leaks to the press to prove its case.
Moreover, I am appalled that the Bush administration considers him an enemy combatant. The only declared enemy of this country so far is the Taliban/Al Queda govt of Afghanistan. That war is over; we won. Al Muhajir is no more an enemy combatant than the Patriots in Idaho and Montana. As the Bush administration itself has argued, regarding the inapplicability of the Geneva Convention to the Al Queda members at Guantanamo, only states can war on each other. Al Muhajir may be a creep and a crook of the first order, but he is not an enemy combatant.
June 13, 2002, 3:18 pmCeleste says:
John from the Right Coast says “In this age of free flowing information, I would be nigh impossible for a citizen or non-citizen to disappear.”
I’m not as confident of that as you are. I remember Yuri Nosenko a little too well. He wasn’t an enemy combatant, he was attempting to defect from communist Russia. … and the CIA kept him in solitary confinement, beat and tortured him for four years before, through pressure from the FBI, they released him. He’s not the only person we’ve held without charging them with anything, or giving them access to legal counsel.
I’m mixed on this too. My gut says if someone is conspiring with the enemy, he’s renounced his citizenship. My gut also says, though, that given the way folks generally feel about spies, and traitors, trying him in civil court wouldn’t be to his benefit anyway. Just put him in the general prison population after we’ve debriefed him, tried and convicted him, and let the inmates take care of the rest.
June 13, 2002, 3:21 pmTVH says:
Yes we gave the original WTC bombers full constitutional protection and a trial – and as a result, we lost track of bin Laden. We also weren’t at war then (though we probably should have been after that).
June 13, 2002, 3:30 pmEric says:
For Francis Logan:
As to your comment that the war in Afghanistan is over, and hence our only enemy — Taliban/Al Qaeda — has been eliminated: last I looked, we’re still pursuing Al Qaeda and Taliban guerillas in Western Afghanistan. And, as I recall, neither the Taliban or Al Qaeda has signed any sort of instrument of surrender that might include an agreement to the secession of hostilities.
Therefore, categorizing this gang banger as an enemy combatant is fine by me. Let’s strip him of his citizenship, and go from there.
June 13, 2002, 3:40 pmJ. Denver says:
Spambait the Idiotarian asks, “So, which war are we fighting? The War on Poverty? The War against AIDS? The War on Drugs? The Korean War?”
In case you have been in a coma for the last 9 months, we are fighting the Anti-Islamist War. It began on September 11th when the World Trade Center, the Pentagon and four airliners were destroyed together with 3,000 lives. This is not a metaphorical war or a rhetorical device, but a real honest-to-goodness war, the kind where people get killed. Does any of this ring a bell?
Al Muhajir appears to be (and a court will determine whether indeed he is) an enemy foot soldier in that war, sent to destroy an American city (perhaps yours) with a radioactive weapon. Any nation in the world that possesses even a shred of a self-preservation instinct would at a minimum detain such an enemy until he and the group to which he belongs no longer pose a threat. If Al Muhajir had the bad luck of joining a group whose defeat it will be difficult to measure, that is his problem – he will just have to rot in the brig until we feel comfortable that there is no enemy left for him to rejoin.
This war will (must, if we are to survive) continue until radical Islam no longer poses a serious threat of mounting another major operation against the West. I only pray that Islam sees the handwriting on the wall and yields before we do to them what we did to the Sioux and to the people of Hiroshima and Nagasaki (or worse, given the weapons we now possess). When you piss off a dictatorship you piss off one man. When you piss off a great democracy, you piss off 300 million people. Neither George Bush nor any other American leader could stop this war now, even if they wanted to. Several times in history, it has proved possible to mount raids or surprise operations against the US. It is also possible to poke a hornets’ nest with a stick, but rarely does it turn out to be a good idea.
June 13, 2002, 3:46 pmChris says:
Francis Logan,
You said, “Al Muhajir is no more an enemy combatant than the Patriots in Idaho and Montana.”
Get back to me when the farmers in Idaho want to nuke US cities. Otherwise your comparison is pure bunk. I have no problem with the President (who has taken personal responsibility for signing off on enemy combatants) assessing this terrorist as a risk to national security. What is it going to take for you guys to wake up? A complete decapitation of Washington DC? Do you realize what would happen if a nuke went off in Chicago, NYC, or DC? Everyone would pull all of their money out of the banks and run for the hills. We’re talking *large scale collapse* of govt, economy and world stability. Wake up fellas.
And btw, the war on terrorism will be over when we’ve won. Simple, really.
June 13, 2002, 3:53 pmEric says:
Another thought for Glenn. If Al Muhajir were an Israeli Arab, and had behaved in the same way as he had in the U.S., would Israel be right to detain him in the same way that we have?
In the past, many commentators have observed that we need to understand the Israel’s fight and ours are one and the same. And if that’s the case, isn’t it justified to use the same tactics against terrorists here as in Israel?
As I recall, it wasn’t too long ago that in the blogosphere that plenty of people were saying that if we didn’t allow Israel to do what it needed to do to stop suicide bombing, it would only be a matter of time till the practice came to our own shores. And while I can’t find the link, I seem to recall this was a sentiment that Glenn agreed with at the time.
June 13, 2002, 4:02 pmGlenn Reynolds says:
Well, Israel has no written constitution, so I don’t think your analogy is a very good one. Bear in mind, I’m not arguing human rights issues in my post — I’m making an essentially constitutional argument about not letting antiterrorist actions corrupt the political system.
Now, if the Israelis detained an Israeli Arab, would it make a tyranny in volation of Israel’s constitution there more or less likely? Or would it be largely irrelevant to such questions?
June 13, 2002, 4:20 pmHarry Helms says:
America slipped down that “slippery slope” a long time ago.
I’m surprised Professor Glenn didn’t make reference to executive order 9066. If you’re not familiar with it, Google it and “Manzanar” while you’re at it. BTW, that particular executive order was upheld by the Supreme Court and we can only assume President Bush could issue a similar order in the future (I expected him to do so after September 11).
You’ve probably never heard of executive order 9066. That’s because it was issued by that icon of the left, Franklin Roosevelt, and it’s more convenient for his ideological heirs to forget that The Great Man was responsible for the largest, most vicious race-based violation of the rights of American citizens since slavery. Unfortunately for them, it’s true.
The Black Helicopter crowd is nuts, but even nuts sometimes recognize things the rest of us don’t. For years, they have been complaining about the potential of for awesome abuse of presidential emergency powers, mainly through executive orders. Respectable people laughed at them.
Guess what? They were right.
June 13, 2002, 4:26 pmS. Ray says:
As a Tn atty and patrotic American, I have no qualms regarding my stance: Follow the constitution. American citizens have rights. From what I have read, it appears the govt has a good case. Why not take it to court?. Certain testimony may be provided under seal in order to protect sources. If it is about obtaining other information, when he does not have access to his atty, what’s next, rubber hoses? His atty had access for about 30 days and the govt got little info. Clearly, this is a round about way of circumventing const. protections. Put it in the open and let justice prevail. Does anyone really think it wouldn’t?
June 13, 2002, 4:38 pmRandy Harwell says:
my deal is this: when you go nuts on guys you ought to know what you are talking about. my man francis logan does not know what he’s talking about, at least to the extent that he writes this:
“The Bush administration has not suspended the writ of habeas corpus, so Bush has no power to order someone locked up without following criminal procedure.”
dude. read Quirin, ‘kay? i even linked it for you. if padilla is an “unlawful combatant” — and he most definitely is — he’s entitled to nothing better than indefinite detention. sorry bout that but it is supreme court precedent and all.
June 13, 2002, 4:39 pmEric says:
Well, now I know what it’s like to sit in Prof. Reynolds’ classroom. Something tells me I need to send a check to Univ. of TN Law School. . .
In any case, while my comparison with Israel may be inapt in a constitutional sense, its dead on in another respect: both nations are in the midst of a war for their very existence — consider the implications of the explosion of a few well placed radiological devices in lower Manhattan and the approaches to the bridges that connect Manhattan Island, Staten Island, and Long Island to New Jersey and the Bronx.
As far as I see it, a radiological bomb detonated by an American citizen will do just as much damage as one set off by a foreign national, and leave us all just as dead.
Hence, shouldn’t the methods we use to stop both be identical?
Furthermore, while this discussion might be “constitutional” in nature, its implications in the real world are thoroughly “extra-constitutional,” and in fact stray into the realm of political philosophy. Whether we like it or not, there always has to be a Leviathan to gurantee the continued existence of civil society — the old Hobbesian argument best articulated today, I feel, by Robert Kaplan.
For example, while Lincoln might have suspended habeus corpus, he did so to preserve the Union — the only real and reliable guardian of the principles enshrined in the Constitution, anywhere.
It’s odd, but in your argument, I hear many echoes of the arguments made by liberal foreign policy elites pre-9-11 on how America needed to fight terrorism. It was then that folks like Madeline Albright stressed that we needed to create an international legal framework if we were to successfully fight terroism, instead of taking the fight to where the terrorists lived.
And I think we all know where that led us.
Besides, if we really were closer to tyranny today than yesterday, doesn’t the right to bear arms continue to serve as the ultimate firebreak against it?
June 13, 2002, 4:58 pmBruce says:
A few cliches are applicable to this issue:
The Constitution is not a suicide pact.
Shall all the laws go unenforced but one?
If the Republic did not fall when President Lincoln detained tens of thousands of Confederate soldiers aka US citizens — not to mention the tens of thousands killed in battle — without “due process” and habeas corpus, I fail to see how detaining one terrorist who happens to be a citizen is a threat to our liberties. Get over it. And be thankful that Bush has the balls to ignore the effete ACLU whiners who would rather see 1000 WTC attacks than have the US fail to Mirandize bin Laden and his minions when they are captured.
June 13, 2002, 5:07 pmCraig Schamp says:
Does not the Constitution itself allow for suspension of some rights during times of “rebellion or invasion” when “the public safety requires it”? To say that the Constitution prevents us from holding someone in military custody if he is conspiring to destroy us seems disingenuous.
Of course we need to ask for clarifications and explanations if the government decides to pursue exceptional avenues, and we need to work hard to keep wartime procedures from becoming permanent ones. But to say that we can’t take exceptional procedures at all seems illogical.
I have no legal training, but this is how I see it. Perhaps someone with background in Constitutional and military law can enlighten me. Class? Anyone?
June 13, 2002, 5:18 pmDon Wolff says:
While everyone was busy, Congress did pass the
appropriate instrument for war -
http://thomas.loc.gov/cgi-bin/query/z?c107:S.J.RES.23.ENR:
Sec.2.AUTHORIZATION
(a) IN GENERAL – That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided in the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terror against the United States by such nations, organizations or persons.
(b)War Powers Resolution Requirements -
(1) SPECIFIC STATUTORY AUTHORIZATION – Consistant with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
N.B. It’s not the National Defense Resolution, the Anti-Terrorist Resolution, the Patriot Resolution. It is WAR Powers Resolution.
We are at War. Till Congress repeals this, we remain at war.
June 13, 2002, 6:38 pmCraig Schamp says:
And while everyone was commenting (very interesting here, too), Muhajir was denied habeas. news.google.com will have links to news.
June 13, 2002, 6:43 pmAllen S. Thorpe says:
I suspect that Padilla is a test case to establish what the Prez’s limits are on detaining people like this. Otherwise, why didn’t they leave him free and keep an eye/ear on him to get at those who were working with him?
I also think the Prof has lived too long in his Ivory Tower. It may be a slippery slope, but it’s not over the edge. Now if the AG hadn’t announced this to the media, we might have something to worry about, but then how would we know?
I would, however, like to see some new laws establishing a procedure for terminating a person’s citizenship. It’s always better when you’ve got a statute on your side.
June 13, 2002, 6:49 pmJoshua Houk says:
Well, Chris, I’m getting back to you instead of Francis – hope you don’t mind.
From http://www.adl.org/learn/ext_us/Militia_M.asp?xpicked=4&item=19 :
“As the millennium wound to a close, federal agents arrested Florida militia leader Donald Beauregard, charging that he and others had plotted to destroy a nuclear power plant and other utilities as well as law enforcement offices (Beauregard eventually struck a plea deal).”
Looks like Francis’s comparasion holds. Well, except for the (correct?) impression that the American neo-nazi nutcases have been basically neutered in the last few years.
I still find Padilla’s detention worrisome. The Taliban and Al-Qaeda currently detained were actively taking up arms against us. The Germans tried in front of military tribunals in WWII had a plan to inflict damage in the US. Padilla? The Bush Administration now acknowledges that Padilla had no plans.
June 13, 2002, 7:14 pmTom Cohoe says:
If you want to guarantee that the US constitution remains something more than an historical curiosity, you are going to have to take some chances with it now. In time of emergency, trespass is justified. I’d save worrying about consitutional fine points for a time when there is a prima facie case that the constitutional tresspass is not justified by the war emergency. And war is a time of emergency. It is the most difficult struggle there is.
One poster worries that an innocent citizen might get locked up for the duration. Get over it. What about the soldiers defending the United States? Some of them might get killed. What about the 3,000 WTC victims? Mistakes are going to be made. So there is risk for the civilian population in a type of ‘friendly fire’ incident too. Get a grip on yourselves and accept it. If you believe that you are at war, then now is not the time to be harrassing the government for trying to prosecute it.
Tom Cohoe
June 13, 2002, 7:24 pmSKBubba says:
Since there seems to be a legal clinic going on here, I have a stupid unrelated but sort of relevant question:
Are non-U.S. citizens protected by the U.S. Constitution when on U.S. soil or if they are arrested here or extradited and charged here?
I realize this guy Al Muhajir or Padilla or whoever he is is supposedly a U.S. Citizen, so put me down on the side of the 4th and 5th amendments in his case, POW or combatant status or War Powers Act, etc. arguments notwithstanding. I hope he gets fair treatment and then punishment appropriate for whatever crimes we can prove he committed or conspired to.
My question (hypothetically) is if he were here illegally, or on a valid visa of some sort, would he still have constitutional protections?
And let’s say we have to reach out to Germany or Pakistan or (ha!) Saudi Arabia to arrest some terrorist who is a citizen of one of those or some other country other than the U.S., how does international law work so that we can arrest him and charge him? And back to my original question, does he have any rights under our Constitution once we get him here? (I sort of hope not).
And let’s say some guy like Al Muhajir poses a threat and through his words and/or actions has basically denounced his citizenship, is there a way to make that official and remove his citizenship? Could he then be deported?
This is all very confusing to my simple mind. Thanks for any enlightenment.
June 13, 2002, 7:25 pmJeremy says:
It seems to me that joining Al-Qaeda was more or less joining an enemy army, and as such, unless he wants to act like a lawful combatant – ie, wear a uniform and carry a gun and come over the border openly as such, he’s forfeited any rights he has.
OTOH, I do think the government needs to show that he is a member, and he was caught out of uniform.
That way the couldn’t really just pick people off the street and lock them up. They’d have to show a link to Al-Qaeda (presumably in a habeas hearing)
June 13, 2002, 8:30 pmChris says:
Johsua,
So what, you googled “nuke” and “militia” to find an obscure story to prove your point. The fact is that Al Qaeda is a far more potent and dangerous threat to national security than some dellusional farmers with guns out in the countryside. Get back to me when the militias start coordinating (and carrying out) multi-city attacks and attempt to decapitate the national govt. The whole point of this debate is that the scope of this threat is substantital enough to merit military tribunals. If the militias ever organize to the point where they threaten national security- then hopefully the sitting President will do just as Abe Lincoln did and arrest them all. But the slippery slope for the time being is rather and dry and abrasive. There is no random rounding up of Muslims just yet. If we get a nuclear explosion in a major city however… all bets are off.
June 13, 2002, 9:58 pmNeil says:
The War Powers Resolution is actually referring to the War Powers Act of 1973, NOT a congressional declaration of war. Look it up. Just because it has the word “war” in it does not make it a “declaration of war”.
Which brings me to my first point: the US is not constitutionally at war. The President does not have the power to declare war, that power resides solely in the hands of congress. We may be in a de facto war, but no resolution has been passed by congress declaring war on any nation. In fact, the US hasn’t been in an official war since 1945. All conflicts since WW2 have been the results of congress giving the President free reign to use troops as he sees fit. The Civil War is called the Civil War because the north won. The remaining US states were in action against states that had seceded from the Union & formed their own country, which was recognized by others in the international community.
Next, the writ of habeas corpus has not been suspended. This, by definition, means that all American citizens are under the protection of the Constitution and all amendments attached to such document, no matter what they have done. The Constitution is not an impediment to so-called “justice”, it is the foundation on which is built the American way of life. Hell, Tim McVeigh did much worse than Padilla is alleged to have done, the only difference is that McVeigh wasn’t part of a group. Manuel Noriega, the former president of Panama, was tried in an American court, under the auspices of the Constitution. The 1993 WTC bombers, who also committed worse actions than Padilla, were tried in an American court. Padilla was apprehended in Chicago’s O’Hare airport, not a dusty cave in Afghanistan. Padilla was carrying a suitcase, not an AK-47. Padilla had just disembarked from an airliner, not crawled out of a muddy trench. He is an American citizen and has the right–not the privilege–of the full protection of the Constitution of the United States. I’m not advocating the release of Padilla, I’m simply saying that, as an American citizen, he has the right to a fair trial. Charges should be filed & a case made against him in a court of law, or a legal means of stripping his citizenship should be found, providing enough evidence exists to do so.
The reason a “slippery slope” is called a slippery slope is because of how slick it can be. Once any kind of precedent has been set for any kind of exception to the Constitution, a door has been opened for future additional exceptions. Today, citizens conspiring with foreign nationals are not protected under the Constitution. Tomorrow, citizens conspiring against the government are exempt from protection. The day after, citizens committing federal crimes are exempt. Now, this is a gross oversimplification, but it illustrates my point. The United States is a society based in the Rule of Law. Everyone is protected by the law, just as everyone is accountable to the law.
June 13, 2002, 10:36 pmTom Cohoe says:
Wars have been lost because of obsessive concern with the law. Ancient Israel lost a war because its warriers were compelled to observe the Sabbath. The Commander in Chief should not have to prosecute the war in a courtroom, and generals should not have to have their decisions seconded by lawyers. That is the way to lose a war.
S. Ray says let it go to court and “let justice prevail”. The standard for conviction in court is “guilty beyond reasonable doubt”. Everyone knows who the racketeers are, but it’s damned hard to convict them in court, isn’t it? Al Capone and John Gotti are cases in point that a court is a sieve whose mesh often fails to snag the guilty. Where a domestic, citizen, fifth column is allied with a deadly international enemy like Al Qaida, you cannot afford the standard required to prove guilt in a court of law. It is a peacetime luxury that cannot be maintained when the enemy threatens economic castastrophe through crude but effective tactics. A demand that the administration not be allowed to hold people without trial because some innocents might get interned is a pretty good analog to the silly demand that Afghanistan not be bombed because some innocents might get killed. Concern that the administration does not wantonly use such power is perhaps reasonable, but to deny the administration such power at all is to cripple its ability to prosecute the war.
Even if the United States is not legally at war, lacking a declaration by Congress, it is at war in fact. Furthermore it is a war of defense and a just war. The energy spent decrying the internment of suspected citizen combatants would be better spent calling for a proper declaration of war. But in the absence of a legal state of war, the factual emergency still exists. You cannot allow people to conspire to ruin cities just because you cannot get enough evidence to convict them under standards that are safe enough in a time of peace when running drugs is the crime. A state of war is apprehended by the nation at large even if it is not declared. It is a time when action cannot be paralyzed by doubt.
The President’s ability to intern suspected citizen combatants is dependent upon public support. It cannot lead to some tyrannical political abuse without something having first killed democratic accountability. In all real wars (as opposed to rhetorical wars, such as the “war on drugs”) provision must be made to allow the internment of people who, citizen or not, appear to be a threat to the security of the nation.
If the life of someone you love is threatened by a medical emergency like an anaphalactic attack, you are not going to be too concerned about whether or not you break some laws getting to the hospital before it’s too late. That a person is excused for breaking a law because of necessity does not mean that a precedent has been set threatening law in general. You have to have both feet on the ground to understand that, similarly, interning suspected citizen combatants in time of war will not lead to political tyranny. It’s just common sense that you can’t win a war if every act of war has to be vetted by lawyers and judges. And there is a domestic front. Let the Commander in Chief prosecute the war.
Tom Cohoe
June 14, 2002, 2:14 amMark Harden says:
Just basic risk management. When the potential danger is a few people being murdered, civil liberties is paramount, and the gang banger is returned to the streets on probation. When the potential is nuclear annihilation of millions of Americans?
June 14, 2002, 10:28 amKen says:
I’d like more information about the “instrument of war” legislation Don Wolff refers to above. First, I find that going to that Thomas link gets me a blank page. Second, I wonder why the excerpt contains the misspelled word Consistant.
June 14, 2002, 10:55 amGreg says:
Most of these arguments miss the obvious – a civil trial will help Al Qaeda learn from its mistakes.
Also, the slippery slope arguement doesn’t quite fly. We survived Lincoln’s suspension of habeas corpus and FDR’s decisions (including internment of 2nd generation Japanese-Americans – even if unfounded, after all it was the Germans planning espionage). We’ll survive this too.
Here’s more info on Padilla if interested.
http://www.latimes.com/news/printedition/la-000041332jun12.story
http://www.msnbc.com/news/764658.asp
http://www.washingtonpost.com/wp-dyn/articles/A49061-2002Jun14.html
http://www.nationalreview.com/comment/comment-toensing061102.asp
http://webcenter.newssearch.netscape.com/aolns_display.adp?key=200206111805000261144_aolns.src
http://webcenter.newssearch.netscape.com/aolns_display.adp?key=200206111838000161690_aolns.src
http://www.latimes.com/news/nationworld/nation/la-na-bomb12jun12.story
http://www.nytimes.com/2002/06/12/politics/12TERR.html
June 14, 2002, 10:59 amKatherine says:
People more knowledgable than I have commented on the legal aspects of all this. I just have a quick comment on the fear-mongering aspects.
A “dirty bomb” is not a nuke. A “dirty bomb” spreads radioactive materials over a large area. A nuke converts radioactive materials to energy according to Einstein’s equation.
A car bomb seeded with medical radiological materials and a nuclear warhead are not the same thing, and it’s irresponsible fear-mongering to act as if they are.
June 14, 2002, 11:10 amRobert Speirs says:
It comes down to this: You either trust George W. Bush and the federal bureaucracy to strike the proper balance between civil liberties and effective prosecution of the War on Terror or you don’t. If the Constitution’s restrictions on government power are strong enough to survive a civil war and two world wars, they merit some respect. And as long as there are bloggers, every government action will be examined in excruciating detail! I’m satisfied – for now – that the right balance is being struck.
June 14, 2002, 11:13 amrex says:
Um, to all the left wing kooks up there who
love all the new power agregated to the federal government.
If this guy is so guilty, as you are claiming he
is, why don’t they just prosecute him and
stick him in a prison cell for life????
Of course if our wonderful president and Congress had done their darn JOBS they would
have declared war and they could prosecute
this guy for treason and hang him.
But then a declaration of war would have implied taking some responsibilities for persuing it. It would have required them to think about what they wanted to accomplish and given a measuring stick so voters could see if they were successful or not.
June 14, 2002, 11:24 amDavid Cohen says:
I’m sorry, but this strikes me as much ado about nothing:
1. Of course the Constitution must be followed. By definition, the government has no power to do anything but follow the Constitution. But I can’t see how its being violated.
2. We’re talking about the US government, not the High Council of Pixieland. There is no “magic words” requirement in the war powers clause of the Constitution. Congress has specifically authorized the use of the armed forces. That’s all the drafters wanted to ensure.
3. The relevant rights here are the right to due process, the right against self-incrimination, the right not to be subjected to cruel and unusual punishment and, arguably, the right to an attorney. Al Muhajir has an attorney. I’ve seen no argument that his treatment has been cruel or unusual. Ironically, if he’s not charged with a crime, the right against self-incrimination doesn’t amount to much (which could easily lead into a rant about why the exclusionary rule is ridiculous, but I’ll resist). So we’re left with the question of whether due process prevents the government from holding him indefinately.
4. I’ll assume that no one here has a problem with the idea that uniformed prisoners of war, captured in battle (i.e., legal combatants) can be held until the end of the conflict.
5. I’ll also assume that this is true even if the uniformed prisoner captured in battle is a US citizen. I’ll note that this has, as far as I know, happened in every war the US has fought since the revolution (where it would have happened but for the obvious technicality) and has never been thought to be a problem. This ability to intern legal combatants is thought to be a good thing because it gives the capturing army an alternative to simply killing all prisoners while still denying soldiers to the enemy.
6. I’ll also note that illegal combatants — that is, non-uniformed combatants — do not have the same rights as legal combatants under international law, in large measure to give soldiers a large incentive to wear uniforms, which safeguards the civilian population.
7. Now, its seems clear to me that it would be a terrible idea to give illegal combatants who happen to be US citizens more rights than legal combatants, including legal combatants who are US citizens. This sets up exactly the wrong incentives, threatening the civilian population and leading to exactly the type of civilian controls that civil libartarians should want to avoid.
8. Morever, it is this sort of value-weighing that the “due process clause”, which is explicitly meant to weigh the competing interest of the government and the citizen, is meant to accomodate (that’s why we only get all the process we’re due).
9. So, as far as I can see, the government should be allowed consistent with the Constitution, to intern illegal combatants, without the privileges accorded to legal combatants, until the end of the conflict, even if they are citizens so long as the citizen has an opportunity in court to test the government’s assertion that he is an illegal combatant or, later, that he’s being treated cruelly or unusually.
10. AM, as noted above, is doing just that, so what’s the big deal.
June 14, 2002, 11:24 amnarciso says:
Celeste, leaves out a couple of points, First Nosenko was probably a decoy; there was
a mid level Spy named Orlov, the real Sasha
& he was a major asset. Next, the collaborators of EO 9066 were FDR, and the
fine upstanding Philadelphia Wasp Francis
Biddle, it was Hoover, who did not agree,
for Bureaucratic reasons. Later on, he did
a Custodial detention list, but that was essentially a contingency plan. Quirin, is
the key precedent to consider; one could
Exparte Milligan, but that concerned an
American citizen, who was not actively
considering an act such as Padilla’s. He falls
under the category of Booth’s co-conspirators,
and they were all hung, as I recall, By the way
Joe Biden, has pointed out that a congressional declaration of support, has the]
force of an actual war declaration
June 14, 2002, 11:26 amMike Steele says:
I find it so really hard to grasp that so many supposedly educated people can be so incredibly naive. Hello? AlQ has declared war on America. They have already killed 3000 of your fellow Americans. They have made public pronouncments that if they can get their hand on a nuke they’ll use it, if they can get 50 gallons of VX, they’ll use it… They mean to eradicate us, not just blow up some buildings and the like. And all of you are obsessively hand wringing over some killed 2 people by the time he was 15, oughta still be in jail somewhere thug? Jamie Glasov is right, the multicultural indictrination has taken root, were doomed.
June 14, 2002, 11:28 amAl K. Duh says:
If events are so compelling, and I think they are, then let us declare a war.
Those above who advocate the bending of law thru undeclared war because it is “reasonable” or “popular” forget that this is exactly what the terrorists wish to accomplish — anarchy.
June 14, 2002, 11:28 amMatt says:
Neil, the author of the Use of Force proposal proposal, Sen. Joe Biden, disagrees with you:
From his website,
http://biden.senate.gov/~biden/press/release/01/10/2001A24C02.html
M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged approach to the problems we face. My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)
JB: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I’m the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction … Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what … against whom we were moving, and what authority was granted to the President.
June 14, 2002, 11:43 amKirk Parker says:
Sorry, Randy Harwell, but the German sabateurs were nowhere in the same league as Padilla. It’s not at all clear how many of them volunteered (as opposed to “were volunteered”) for their mission, and several of them started planning to abort their mission and contact the authorities within hours of arriving onshore.
June 14, 2002, 11:50 amjb says:
Francis Logan (about middle of the pack in all of the responses) has it best in my estimation.
This whole War on Terrorism has given birth to a gazillion “exceptions to the rule” regarding the Constitution.
Now I am sure someone will tell me how I am wrong, but I have to ask:
What is the purpose of the Constitution if, in the worst case scenario of a citizen being charged (as Padillo obviously finds himself!), the very protection by virtue of his innate rights to freedom (as expressed in the social compact called the Constitution), are arbitrarily denied by some other mechanism of law.
Does the mechanism (pragmatism) take precedence over rights? Are rights, in the end, really only conditional, and not innate, but governed by the state?
We claim that this or that isolated incident does not harm rights, and yet the very action itself is predicated upon all sorts of present or previous exceptions to the rule/Constitution.
If innocent until proven guilty has meaning, especially for a citizen, this entire national discussion is DOA.
The man has rights which the Constitution recognizes, and forces the state to acknowledge. If there is an exception, our rights are not worth a thing.
Now, after the government’s press releases have totally compromised Padilla’s hope of mounting a defense, it will take a judge to rule that the AG and the government denied the most basic rights to a citizen. Were it to be he IS guilty (not yet established by a court of law!) and yet, by said denial of his rights a judge is Contitutionally forced to release him, it would not be a travesty so much as it would be the idiocy to not have followed our own declared system of law and constitutionality.
In other words, if we circumnavigate the Law to uphold the Law, the Law does not truly exist, but only, the circumnavigation. I do not fear “terrorism” nearly as much as I fear the rapid removal of all our constitutional guarantees in this War on Terrorism. We bombed Afghanistan, we missed Omar Osama, which was our stated goal. The War is over, live with it. Jerks who still want to strap on bombs are like the poor in the Biblical account:
“You shall have them with you always!”
I guess we have found, not the “Never Ending Story,” but . . . “The Never-Ending War. Wonderful. I guess the 21st century has aims to be bloodier still than was the 20th.
This reminds me of an old joke.
A man in a hotel lobby notices a striking woman across the lobby. He realizes she is a high-end call girl, and so he strolls over and asks her if she would spend the night with him for two grand. She readily agrees.
He then asks her if she would do a quick f**k for 20 bucks. Indignant, she responds: “What do you think I am? A common hooker?”
The man responds: “We have already established that fact. Now, we are just negotiating the price.”
The Constitution is not a whore, and it is time for our government, however incovenient it may seem, to stop prostituting all of our rights to prove it is not as inept as it truly has been.
We are denying the very things we hold most dear–in order to protect the things we hold most dear.
June 14, 2002, 12:05 pmMelissa says:
Every last one of you ‘concerned civil libertarians’ sound like little girls screaming at a spider. Lose the hysteria. Start using your cognitive faculties. Or if you must remain hysterical, try getting hysterical about what would happen if a dirty bomb actually goes off.
June 14, 2002, 12:05 pmRobin Roberts says:
Those who, like Neil above, attempt to argue from the premise that there is no “real” declaration of war are frankly self-deluding. There simply is no rational argument that we are not at war. Neil’s best attempt is to attempt to assert, without the slightest foundation, that somehow a state of war requires a nation to hang its hat on: but no resolution has been passed by congress declaring war on any nation.Nice try, Neil, but that one simply has no foundation either. Congress passed a resolution that meets all requirements for a state of war, arguing otherwise is past rationality.Further, when people started bringing up things like “presumption of innocence”, they are discussing criminal trial. The implication that the military cannot detain enemy forces but must treat each one as though a criminal is actually itself in conflict with international law. But more importantly, its a bizarre inanity that makes one wonder where the rationality has gone in liberal circles. What’s next? Having Diane Morrow try to server habeus corpus petitions on the front lines to end a prisoner interrogation during WWWIII ?
June 14, 2002, 12:25 pmdenise says:
I think that there is a big controversy (and this type of debate) over the Padilla detention points out two positives:
1) That we are concerned about upholding the Constitution even under the dire threat posed by Islamist fanatics (and concerned about Padilla’s individual rights) highlights why we are on the right side of this fight (compare to the treatment Danny Pearl, Martin and Gracia Burnham or Palistinian “collaborators” have received).
2) That the Bush administration is doing something controversial means it is doing something. Maybe the administration is over its paralysis in the face of hysterical political correctness whiners. (Doubt it, but it’s a step in the right direction). The country can survive this controversy; it may not survive inaction.
Having said all that, I’m not completely comfortable with the Padilla dentention, but after reading the posts here (I found David Cohen’s particularly persuasive), I’m about 85% there.
June 14, 2002, 12:27 pmJeff G. says:
Regarding the recent posts by both jb and Melissa: David Tell, writing for the editors, posted a very instructive piece on the Weekly Standard site (pertaining to concerns over civil liberties, etc.):
http://www.weeklystandard.com/Content/Public/Articles/000/000/001/347ofiww.asp
It’s certainly worth reading if you haven’t already done so, in that it speaks directly to the content of much of what’s passing for reasoned debate these days.
June 14, 2002, 12:38 pmFrancis Logan says:
When the US goes to war with another country, the victory conditions are usually pretty clear — the destruction of the foreign government or, at the least, the ending by the foreign govt’s armies of the occupation of other countries. (I think this covers WWII, Korea, Viet Nam, Gulf War I and Granada and Panama as well. I look forward to hearing disagreements.) Even if we lose, we have an armistice which covers things like the exchange of prisoners.
Now, we can pretty much expect that AlQ will execute any prisoners it takes. Witness Danny Pearl. But I certainly hope we never stoop so low. So as an unlawful combatant, Al Muhajir is facing detention pending resolution of the hostilities.
Here’s the first question: Given S.J.Res 23, what is the victory condition? When can we, the people, know that the war is over, so “mushy-headed” liberals can request the release of enemy combatants?
Can we agree that there should be a huge difference between “detention” and “punishment”, both legally and in terms of the treatment received by the individual being held?
If there is a difference, then I would easily support the “detention” of Al Muhajir until the hostilities end, assuming we can answer question 1, with a relatively low burden of proof on the government.
If we want to “punish” Al Muhajir, then he needs a trial, even one with the standards set forth in Quirin.
What’s the difference between detention and punishment? Let’s run this up the flagpole and see who salutes. A detainee cannot be interrogated, but a prisoner can. (Should we be allowed to torture prisoners?) Detainees must be treated humanely; prisoners can be put in solitary confinement. Detainees must have access to the outside world (red cross, attorneys, etc.); prisoners may be denied all access.
Francis Logan
p.s. On a personal level, I want to respond to those who seem to accuse me of being ready to shed more American blood than terrorist blood. Nothing is further from the truth. I used to work in NY and still have family there, and I was profoundly saddened by the tragedy there. [I'd like to think my feelings would be the same even without my personal ties.] I honor the memory of the passengers of Flight 93 as the highest example of American self-sacrifice for the greater good.
I firmly support military action around the world to kill the evil monsters who dared attack us, including pre-emptive action into Iraq, Syria, Libya or where-ever else the evidence leads.
But the existence of hostilities does not silence the voices of dissent, at least not in this country. I think our flag will wave higher, and our country’s honor will shine more brightly, if we treat those contemptible individuals who are citizens of this country yet join the forces arrayed against us with the basic notions of due process arising from our Constitution.
June 14, 2002, 12:43 pmEric says:
For Katherine:
I saw your note about dirty bombs, and I hope you don’t mind if I have a chance to clarify my remarks.
I’m well aware of the difference between a dirty bomb and a nuclear device that causes a chain reaction, as well as the great disparity in the number of casualties that they cause. However, depending on where, and how they are used, dirty bombs could be just as effective in causing havoc and death, especially in dense urban areas like New York City and its close-in suburbs.
Let’s go back to my example: I used it in particular because as I’ve travelled through the blogosphere, I’ve found little appreciation for what life is really like in Metropolitan New York — the area in which I was born and raised. From what I’ve read about dirty bombs, one of sufficient strength can be enough to deny use of a certain area to human habitation for anywhere from decades to hundreds of years.
As anyone who has spent anytime on Long Island can tell you, it may be easy to get there, but getting out is the hard part. There are a limited number of bridges and roadways that lead off of the Island, and an enterprising terrorist organization would need only set off a small number of explosions to effectively deny use of these bridges and tunnels to the approximately 7 million people who live in Brooklyn, Queens, Nassau and Suffolk counties. Outside of these bridges, which are all clustered closely together (Verazanno, Whitestone, Throgs Neck and the East River crossings into Manhattan) the only other way off Long Island is by a ferry connection between Port Jefferson and Bridgeport, Conn.
Last time I checked, that ferry can carry about 50 cars at a time.
I should also note that similar fears about the inability to effectively evacuate Long Island helped shut down the Shoreham Nuclear Power Plant. While I’ve always believed nuclear power is a clean and effective alternative, this avenue of attack was very successful with Long Islanders — after all, they live with this traffic everyday, and can’t imagine any way they could all get out at the same time during a massive disaster.
Off course, not being able to get out means that nobody can get in either. And that means no access to emergency and rescue personnel, and other incidentals — like food for instance.
I hope you can see now why I wrote what I did. And, why, in my mind, bringing it up wasn’t irresponsible at all, but rather pretty prudent — and all the more reason to see our government pick up the tempo of offensive operations to destroy the terror organizations (both foreign and domestic) who want to destroy us.
June 14, 2002, 12:55 pmJohn from the Right Coast says:
“Um, to all the left wing kooks up there who
love all the new power agregated to the federal government.”
How odd that the “let me do anything I want without any interferrence” libertarians/anarchists are upset.
I guess we should let the ISLAMO THUGS just take over. I mean, America must really suck if they detain thier own citizens, right?
Sure, you will still be allowed to do whatever you want when the ISLAMO THUGS take over, except sex, drugs, rock & roll, economic happyness, etc……
June 14, 2002, 12:57 pmrex says:
I’ll reiterate.
If you wanted to go to war, And I sure do,
Then why didn’t they Declare War? It would
have been a far more powerful statement.
If Padilla is so obviously guilty, why not
prosecute him and put him in prison?
If there is no trial, is there ANYONE that the
feds COULDN’T do this to?
And if we ARE Constitutionaly at war, why
not prosecute him and execute him for
treason?
I think the reasons are that arbitrary power is
a lot easier than Constitutionaly limited power.
June 14, 2002, 1:03 pmrex says:
“How odd that the “let me do anything I want without any interferrence” libertarians/anarchists are upset.”
Excuse me? *I’M* the one who wants to
declare war.
*I’M* the one who would like to prosecute
John Walker Lind (however you spell it)
and Pidilla for Treason and execute them
And yes I am a Libertarian. When I heard Bush
say, “Freedom was attacked, and Freedom will
be defended.” It brought tears to my eyes.
I just wish he would have meant it.
Please don’t be blinded by your partisanship.
June 14, 2002, 1:09 pmjb says:
Tell’s comments were telling, especially as they did not specifically address the Constitution and the “firewall” between citizens and foreigners, a careful distinction the Prof made in the beginning.
Perhaps I am missing something, but I see no reason to withdraw a single word from my comments. History porvides ample examples of those things/rights which, once the citizenry has given them away, are never returned by the government.
We have become used to using the government’s logic. Terrorism is indeed a threat. The government has done exactly what to prevent it? A new 24-page-single-spaced-updated directive?
I feel more secure already! Sorry, that WAS sarcasm.
I am still awaiting the capture of Omar Osama. That was the stated goal of this war. The excuses emanating from the FBI, CIA, INS and the expected goofiness of government-hired-operated-airport security notwithstanding . . . the last three weeks have produced little from DC but the usual steppin and fetchin by politicians trying to get on the nightly news.
Meanwhile, our intrepid airport security crews wand and strip old ladies and pilots while refusing to even consider the profile of the known terrorists we claim to be pursuing.
We are fed excuses as to why we must give up rights, as we listen to the government explain why it didn’t mean to screw up the works, but did anyway. There comes a point in time (we are there!), that defending the same silly nonsense and ass-covering that produced 9/11 ought to give us cause for pause. It ought to truly piss us off!
This is not a lib-conserv thing at all. This is something so simple that any parent dealing with a recalcitrant 5 year old would understand and correct. Time for America to “correct” its government, and get over the petty political battles in time of war.
Will we? No. We have been well-trained to cower to our political masters in the end.
June 14, 2002, 1:12 pmJoshua Houk says:
I think both sides have made several good points (and Chris, you made excellent points in response, although in my defense the Florida militia story really wasn’t obscure – I remember it being on the nightly news for at least a couple evenings). Still, I’m firmly in the “why on Earth can’t we put him on a jury trial?” camp. There’s no sense in blatantly isolating people that agree with the general prosecution of the war by essentially floating up a trial balloon. Save it for someone who deserves it if it comes to that – don’t do it just to get bonus points (which seems to have been Ashcroft’s purpose in all this).
I think that one of the problems with some people accepting that there’s a war on is the administration’s secrecy in waging it. The news blackout is complete enough to really make people wonder what exactly is going on. Going by press coverage in the past week all we’d know is that we detained someone who might have been thinking of planning to bomb us, and that a helicopter crashed killing some Americans. Leaving aside whether this much confidentiality is warranted (or even whether the press would even do a decent job reporting on the war without the veil of secrecy), the net effect is that we don’t have a concrete idea of what exactly is going on over in Central Asia at the moment. We know we’re trying to root out terrorists in Afghanistan and Pakistan, but who, how, precisely where, and how many is just unknown to us. In this nebulous atmosphere, it’s easy to understand why dodgy governmental actions look even dodgier.
June 14, 2002, 1:36 pmJohn from the Right Coast says:
I am not being partisan; I am commenting on the type of outcry (and who it seems to be coming from) over the poor, mistreated citizens and non-citizens that have been detained (some released, some tried, some still in custody).
I expected the typical rants from the fringe left & fringe right, but am baffled by this constant harping about Americans being oppressed by the Government’s detainning of suspected terrorists/collaborators.
The stupidity displayed by many in the Government, from both party affiliations, is typical. But, do you really believe it is an infringement on your rights?
No one is raiding your home because you are watching a porn movie or smoking dope, they are investigating the dumbasses who happen to be citizens that sided with the wrong team.
Everyday Congress sits in session in DC, they take more freedoms away than in all the instances of detainment since 9/11. Just look at the hidden taxes and regulations that they have passed over the last 12+ years.
If pursuing those responsible, for vengence or to prevent a reoccurence, requires more of me, either patience, less freedom or putting my uniform back on or being singled out for search a the airport, than so be it. It is the price we pay for our freedom.
The Consitution is there to protect us from tyrants, but it seems to me that we want to use the Constitution to protect the tyrants.
June 14, 2002, 1:38 pmMatt says:
Rex said:
If you wanted to go to war, And I sure do,
Then why didn’t they Declare War? It would
have been a far more powerful statement.
I presume that the reason that we pass a “Use of Force” bill rather than a “Declaration of War” is that the “Use of Force” bill flips all the internal levers we need flipped to satisfy the Constitution’s requirements, as Sen. Biden says, without perhaps flipping some switches internationally (our allies may be obligated by treaty in the event that we declare war to do things that they would rather we not ask for, or perhaps something else) that we would prefer not to flip.
I could be wrong, though, and the only reason why Congress didn’t declare war is because they wanted to put as much blame as possible in the President’s lap if the war had gone bad.
June 14, 2002, 1:40 pmSean T. Collins says:
As near as I can tell, the real legal problem with Padilla’s incarceration is not simply that he’s being held by the Defense Department as an enemy combatant and thus with fewer rights than a normal citizen would receive as a defendant–as everyone’s pointed out, the 1943 Nazi-saboteur case is precedent for this sort of thing–but that, unlike the military tribunal system in use during WWII, the mandate for the military tribunal system established by the current administration [i]specifically precludes[/i] the trial by tribunal of citizens.
Padilla is therefore in some sort of bizarre judicial twilight zone, wherein he’s been deemed unworthy of a normal trial due to his status as an enemy combatant, but rendered ineligible for a military trial due to his status as a citizen. It’s a complex situation, and one that should be resolved by more than adherence to executive fiat.
We may not be on a slippery slope just yet, but saying “who cares?” dodges some very important legal and governmental issues.
June 14, 2002, 2:00 pmrex says:
| The stupidity displayed by many in the
| Government, from both party affiliations, is
| typical. But, do you really believe it is an
| infringement on your rights?
No, not mine. His. And when another Bill
Clinton is elected anyones.
My rights are rarely violated. I don’t smoke,
drink or own a gun or a business. But I object
everytime one of those freedoms is infringed
upon.
I really don’t want to establish a precident that
citizens can be incarcerated indefinately
without a trial and without presenting any
evidence (that habeas corpus thing).
Just because Bush is “trustworthy” doesn’t
make it alright. If this is permissible then
the next Bill Clinton can imprison anyone they
want to. The only thing stopping them is
public outcry. So basically a popular guy can
screw unpopular guys over. As long as you’ve
got the press and public opinion behind you,
you’re all set. And that WAS the modus operandi of the Clinton administration.
June 14, 2002, 2:07 pmrex says:
|satisfy the Constitution’s requirements, as |Sen. Biden says, without perhaps flipping |some switches internationally
An interesting hypothesis.
But if it were, then why isn’t it pointed out
every time the issue comes up?
And by saying that, you’re agreeing that a
“use of force” bill differs from a “Declaration
of War”? Hence we are not at “War”.
I don’t care about what the rest of the world
says. I want to be at war. I want to have an
objective and move toward it with massive
force. Go where ever we have to, kill them
and leave. I want to declare war because I
want to *Win*.
And probably more contreversy…
And then I want to go home.
NO nation has been able to sustain long
term constant military force against
pervasive gorrilla activities. The European
powers all failed. If we are going to change our
way of life and have a permanant war we will
lose. We have to kill these people Al Quida,
Iraq, Saudi Arabia, or just cells within
countries..
And then we have to
LEAVE. Get out of the middle east and let them
kill each other instead of us.
June 14, 2002, 2:17 pmLyn says:
While taking a Constitutional law class towards my degree, the “slippery slope into a police state” argument was posed by the professor as the “There but for the grace of God go you” argument. In other words, if even one criminal is convicted on evidence which should have been suppressed because it was obtained in violation of that criminal’s rights, then you, by God, were next. I didn’t buy it for a minute. So, while the professor was waxing poetic about how wonderful the Miranda decision was, I was thinking, “Yeah, but Miranda was guilty – he actually did stab that man to death”. The exclusionary rule, although meant to punish police officers who violate suspects’ rights, actually punishes society – which is why it is so very, very wrong. For each suspect let go, there are more victims. Another woman raped, another child molested, more drugs sold to a junior high schooler, another elderly woman robbed of her Social Security payment. We, as a society may be able to withstand the victim count caused by bowing to the great Constitutional Law god in individual criminal cases, but as far as this new war, the stakes are too high. The consequences are too dire – thousands of potential victims. I would imagine that Mr. Padilla has not been Mirandized 50 zillion times, nor given many of the other rights common criminals get. Anything he might have said or any evidence gathered would more than likely be suppressed in a regular court of law – and we can’t afford that. Our right to life trumps Mr. Padilla’s right to be coddled by an inept criminal justice system any day. I hope they keep him in the brig until hell freezes over.
June 14, 2002, 3:29 pmBarbara in Virginia says:
Here’s an easy way to settle this. One of the people worried about this “poor, misunderstood, disadvantaged” punk/traitor (remember that word?) needs to offer to take him home and be responsible for him AND ANYTHING HE DOES, AND be responsible for anything Al Quida does as a result of what they learn from any discovery, interviews, trials, etc.. No takers? Theory’s fine, but reality’s different when it affects you personally, isnt’ it?
He and his ilk can rot in jail, and then in hell.
June 14, 2002, 3:33 pmCecil Turner says:
Regarding Sean’s point about Padilla’s incarceration
in spite of the tribunal order not applying to citizens:
An enemy combatant can be held until the end of the
war (as a POW) without trial. Even if not tried for
violations of the law of war, Padilla can be held if
he is in fact an enemy combatant. His only recourse,
in my opinion, is a writ of habeas corpus–which in
this case should be denied if the government can show
what it claimed about his bomb plot.
The weakest part of the executive order is that it
doesn’t apply to citizens (despite the clear precedent
in Quirin). However, if the Nuremberg trials hold
as a precedent, it can be changed (ex post facto does
not appear to apply to war crimes).
June 14, 2002, 3:54 pmDaveyboy says:
One thing that I haven’t seen anyone mention is that Padilla’s detention by the Defense Department is possibly in violation of the Posse Comitatus Act, which prohibits the military from performing any police function in the United States not explicity authorized by Congress.
June 14, 2002, 4:57 pmDavid Nieporent says:
Barbara in Virginia, Lyn, and John from the Right Coast, the point you miss, the point that makes me uncomfortable even though I’m strongly behind the War On Islamofascism Except In Saudi Arabia, is that Padilla is not a terrorist. He’s just an accused terrorist. Hell, he hasn’t even been indicted. All the points about how Padilla deserves to be treated would be valid, if he had been convicted.
If you want to strip him of his citizenship and then treat him as a prisoner undeserving of Constitutional protection, that’s one thing. But to lock up a citizen based solely on an untested claim by the attorney general?
You’ve all mentally convicted him, but right now he has the same legal status you do.
June 14, 2002, 5:04 pmJason McCullough says:
Christ, the innate political tendency for everything to gravitate to the most authoritarian solution possible is quite visible here.
Anyway, let’s go through the paraphrased various arguments for detain-and-hang him without a trial:
“It used to be ok (40s, Japanese internments, various other miscellaneous examples).” (changing moral standards)
“He’s obviously guilty, and as you can see by me referring to everything he’s reported to have done as 100% truth, why are we still arguing about this?” (inversion of innocent-until-proven)
“If we don’t suspend all inconvenient laws and practices we’re going to get utterly destroyed.” (exceptionalism)
“Accidental internments, military tribunal executions with a lower standard of evidence, and really long detentions without justification are acceptable because the crime in question is so heinous.” (cost-benefit analysis)
“It’s ok, because he’s not white.” (Ok, this is barely implicit, but the only real difference between Turner Diaries-style terrorism and Islamic terrorism is skin color; hand-waving about “level of organization” while one nativist nutjob already managed to bring down a major building is disingenous.)
Any number of bizarre, off-topic complaints about Miranda/etc. (Same argument, new type of grass underfoot.)
‘He’ll *eventually* get a trial!’ (Would you say this about the takings clause?)
My summary: are we really all so *doomed* if he gets a jury trail with tight constraints on publicly released information, or they actually get around to charging him with a specific crime?
I have yet to be convinced that a single of the post-terror legal innovations are anything but transparent distrust of the rule of law.
June 14, 2002, 6:14 pmrex says:
I’ll try a shorter post. Some apparently aren’t
actually READING what I write.
If Padilla is so guilty? Why not prosecute
him and then hang him?
June 14, 2002, 6:32 pmThe Answer Man says:
Rex, if the BLM really wanted Donald Scott’s property, why didn’t they just pay him for it? If the justice department really wanted to serve David Koresh, why didn’t they just knock on his door? Silly questions!
June 14, 2002, 7:29 pmNeil says:
First, I was unaware of Sen. Biden’s comments on the proper Constitutional toggles being flipped, so I humbly withdraw my argument on that.
Next, I’m still not convinced by any of the arguments against Padilla having his day in court. I am not a Libertarian, but a libertarian. I believe that the fundamental difference between the United States and Iran/Iraq/Libya/(insert your favorite repressive country here) is the Constitution. The Constitution puts limits on the powers of the government, which assures that we continue to have a government for the people, not a people for the government. In essence, the Constitution is our firewall between “life, liberty, & the pursuit of happiness” and the tyranny of Man.
Those of us on the side of civil liberties are not crying for Padilla’s release. We merely want the government to follow the laws of the United States. By sinking to the level of the terrorists & denying our own citizens their basic rights as expressly written in the Constitution, we become no better that they. If we feel the need to begin to dismantle our way of life in order to protect it, then “the terrorists have already won” (God, I hate that phrase!). Yes, this puts us at a disadvantage, but the Good Guys are always at a disadvantage, because there are things (legal, cultural, or moral) that we simply won’t do. Don’t you guys watch any movies?
Give Padilla his day in court. Protect intelligence sources, but give him a fair & impartial trial. If he is found guilty by the criminal system of the United States, I hope they execute him.
Eroding civil liberties are like cancer: if you catch them early enough, you can prevent their spread or stop them entirely.
June 14, 2002, 7:59 pmJohn from the Right Coast says:
Well, you all have made a convincing argument that I have decided to call for the Release of Padilla also.
1. How dare the U.S. government intern both citizens and non-citizens without disclosing a preponderence of evidence of thier guilt!!! I AM OUTRAGED!!!!
2. I mean, if W. and the EVIL Ashcroft can just levy insane charges like that and then hold them without using the courts, that would be like asking WHAT BUSH KNEW & WHEN HE KNEW IT about 9/11 or that his friends were using the war to get rich and then calling for hearings!!!!!!
3. All my redneck friends should be ashamed of themselves for thier obviously RASICT agenda of holding this EXCELLENT EXAMPLE OF DIVERSITY without his chance to defend himself.
4. Maybe we should just let him go. I am sure what ever evidence they got was all fabricated.
5. And Besides, didn’t we bring this on ourselves?
June 14, 2002, 9:22 pmCurmudgeon says:
Just a few points:
1. I see the term “slippery slope” invoked several times. I was unaware you could plot a trend using a single data point.
2. Al Muhajir (that’s his name now; get used to it) has NOT been denied due process. The fact that he is not receiving YOUR particular flavor of due process is beside the point. Anything he gets here is light-years better than he’d get in most other parts of the world. Remember that — it’s part of what makes America so great. That’s why so many people want to come here.
3. Yes, we should defend the Constitution, but we’re also at war. If we don’t defend the US first, the Constitution is useless. Some priorities need adjusting in the face of national survival. First things first.
4. This is only one case, not an entire holocaust, as some here seem to think. The US obviously isn’t going down the tubes, because we’re having this discussion — that’s the real value of living in a free country. When this case is through, regardless of how it’s handled, the US will still be here. Our way of life — and law — are bigger than one case. Remember: “Democracy is the worst form of government — except for all the others.” This, we’ll survive.
5. Most of these arguments ARE about how many angels can sit on the head of a pin. Lighten up!
June 14, 2002, 9:28 pmJason McCullough says:
Ok then, fine, on the “breaking the Constitution to save it” line of reasoning: how, exactly, is detainment without charges and denying a jury trial going to save us? Who are these clearly dangerous people against whom we have no evidence at all?
Padalia doesn’t appear to qualify; it certainly appears that he hasn’t been charged strictly because it’s more convenient to do so. There’s standard procedures for indicting on the basis of evidence comprimising to national security, correct?
And for that matter, how will denying him a jury trial save us?
‘The fact that he is not receiving YOUR particular flavor of due process is beside the point.’
As if the right to a jury trial is a negotiable, out–of-the-way feature of the american system.
June 14, 2002, 10:04 pmDemosthenes says:
What, precisely, is the difference between Padilla and, say, Tim McVeigh? Both are dangerous, and given their head can (and in the latter case did) cause a lot of harm. Both hate the United States government, and follow an ideology that preaches its destruction along with the destruction of the liberal secular society that it protects. (If imperfectly). Both could have caused a lot of damage were they to be set free, and both are “enemies of the state”… one allied with a foreign enemy, the other allied with an internal one. Even if we had caught Padilla after he had set off this bomb, he still probably wouldn’t have caused as much devestation as McVeigh, but we’ll assume that they’re of equal destruction for convenience’s sake. Both, by being captured and tried, serve as valuable lessons to their respective movements as to what not to do.
So why did McVeigh get a fair trial, and Padilla languishes in prison until the entirely undetermined end of what Bush characterized as an “endless war”?
Because the rights in the Constitution do not exist only until they’re inconvenient for the administration. The problem with making these sorts of “he’s ok, he’s not” distinctions is that by definition all criminals are dangerous enemies of the state (as John Locke pointed out) and any rights that they enjoy as citizens exist despite their status as enemies of the state, not because of it. The word “inalienable” is not one that is supposed to be weaseled out of, even during wartime. The Constitution is, by definition, the basic ruleset by which government is allowed to operate. If it is incovenient, those rules are not to be ignored, but changed. If the United States government really wants to suspend the civil liberties of citizens, if it wants to change the rules, then the Constitution should be amended for just that purpose.
To those who argue that “the Constitution isn’t a suicide pact” I ask this: wouldn’t it be better if all the criminals were taken off the street? Wouldn’t it be better if we could just declare martial law, and ensure that none of these dangerous enemies get away and cause more pain and misery? And if not, why not? What’s the difference between a domestic threat and a foreign one?
June 14, 2002, 11:12 pmNeil says:
“I was unaware you could plot a trend using
a single data point.”
Even a forest fire starts with a single flame.
In all actuallity, the Padilla case is merely the most recent in a series of questionable dictates handed out by the current administration. Small erosions of our liberties, but erosions nonetheless. Like a forest fire, if you oppose it half-assed, you’ll get burned.
“If we don’t defend the US first,
the Constitution is useless.”
You’ve got that backwards; if we don’t defend the Constitution, it won’t matter if there is a United States or not. Without the Constitution, there is no freedom of speech, no freedom of the press, no freedom of religion, no right to bear arms, no due process–should I go on? By defending the Constitution, we defend the US. Without it we may as well be living under Saddam. There are two wars going on right now, the war against Islamofascism and the war against the taking away of our civil liberties. Neither one is more important than the other.
Keep in mind that as of today, Padilla has been denied any due process. This is along the same lines as many free speech arguments: we may not like the fact that someone who we dislike has rights, but he does.
The law isn’t Baskin-Robbins: it has only one flavor for everyone, and everyone is equal in the eyes of the law.
Demosthenes, Jason McCullough: Right on!
June 14, 2002, 11:17 pmrex says:
John said:
| Well, you all have made a convincing
| argument that I have decided to call for the
| Release of Padilla also.
Straw man. You know perfectly well I or, I
think, anyone opposing you in here has called
for release. In fact I’ve called for his execution,
after a fair trial of course.
—————-
1. How dare the U.S. government intern both citizens and non-citizens without disclosing a preponderence of evidence of thier guilt!!!
—————-
Do you really want to give the next Bill Clinton the power to indefinately imprison anyone he wants to without producing any evidence?
——————
2. I mean, if W. and the EVIL Ashcroft can just levy insane charges like that and then hold them without using the courts, that would be like asking WHAT BUSH KNEW & WHEN HE KNEW IT about 9/11 or that his friends were using the war to get rich and then calling for hearings!!!!!!
——————–
Is this relevant???
———————
3. All my redneck friends should be ashamed of themselves for thier obviously RASICT agenda of holding this EXCELLENT EXAMPLE OF DIVERSITY without his chance to defend himself.
———————–
Same question. Is this relevant? We’re talking about giving the guy a trial.
————————
4. Maybe we should just let him go. I am sure what ever evidence they got was all fabricated.
————————
Is that why you’re so affraid of a trial?
Personally I trust Bush more than that.
————————–
5. And Besides, didn’t we bring this on ourselves?
————————–
It doesn’t matter if we brought it on ourselves.
What Padilla’s done is treasonous.
June 15, 2002, 1:15 amrex says:
Curmudgeon said:
—————–
1. I see the term “slippery slope” invoked several times. I was unaware you could plot a trend using a single data point.
——————-
That’s kind of an odd objection. But there are
in fact 2 points. The past point of the rule of
law. And current point of indefinat confinement
without presenting evidence in a court of law.
(Hey, could you through in Clinton not getting
removed from office as a 3rd point on the downward slant for the rule of law?)
—————–
2. Al Muhajir (that’s his name now; get used to it)
————-
Sorry, Padilla is easier to remember and to spell.
———-
3. Yes, we should defend the Constitution, but we’re also at war. If we don’t defend the US first, the Constitution is useless. Some priorities need adjusting in the face of national survival. First things first.
————-
There is a lot of danger to life and limb and property from this mess, but they can’t destroy the country.
Destroying the rule of law in reaction to them
WILL.
The Roman Empire fell because
they lost the rule of law.
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4. This is only one case, not an entire holocaust, as some here seem to think. The US obviously isn’t going down the tubes,
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So, you think holding him without a trial *is*
a bad thing. Just not really all that bad in the
grand scheme of things?
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Remember: “Democracy is the worst form of government — except for all the others.” This, we’ll survive.
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I always like to point out to
people that we are a Republic. Not a
Democracy. (Just recite the pledge of allegiance to yourself.)
It’s not like I want to set the guy free. I’d like to convict him of treason and execute him.
June 15, 2002, 1:33 amDavid Nieporent says:
Just a few points:
2. Al Muhajir (that’s his name now; get used to it) has NOT been denied due process. The fact that he is not receiving YOUR particular flavor of due process is beside the point. Anything he gets here is light-years better than he’d get in most other parts of the world. Remember that — it’s part of what makes America so great. That’s why so many people want to come here.
The fact that he is not receiving America’s particular flavor of due process is not beside the point. The fact that he’s not receiving Saudi-style due process, on the other hand, is completely beside the point.
3. Yes, we should defend the Constitution, but we’re also at war. If we don’t defend the US first, the Constitution is useless. Some priorities need adjusting in the face of national survival. First things first.
How does locking Padilla up without trial “defend the US first”? A lot of lives in the United States are threatened, but “national survival” is not.
The argument here is not, as John from the Right Coast seems to think, that Padilla should be freed. The argument is that he should be tried. Perhaps a military tribunal is appropriate — but some tribunal is definitely necessary.
June 15, 2002, 3:10 amblonde says:
Having read all the previous posts, I am impressed by the thinking and reasoning that each of you have done on this issue.
I am still in the decision stage on this issue, but tend to agree with the Bush Administration on his being held as an enemy combatant, especially now his habeous corpus (sp) rights have been resolved. That was my only problem with the detention of a US citizen.
I do think there should be something added to address the issue of a US citizen voluntarily and knowingly aligning themselves with a known violently anti-US group in unambiguous language and should be posted in US installations world-wide, so future terrorists will have no excuses if they are US citizens and plot to over throw our system.
And we have to admit, that is just what Padilla was doing. Even on the surface it is apparent that anyone meeting with Al Queda after September 11 is doing it to over throw the US government.
The cash and the plans are just frosting on the cake, so any further proof the government has, good.
Anyone meeting with Al Queda after September 11 should have to have US permission or be tried for treason, in my opinion, even reporters.
I may be wrong since I am not an attorney, feel free to correct me. ;)
BTW, can someone address how much like John Doe #2 Padilla looks…. funny, huh?
June 15, 2002, 9:23 amTom L says:
Our criminal law is based on the principle that it is better to err on the side of freeing the guilty rather than convicting the innocent. The presumption of innocence, the requirement of proof beyond a reasonable doubt, the rules governing what is admissible evidence, etc., all flow from this assumption.
This model doesn’t work when applied to someone like Padilla because at this point it would be difficult to prove beyond a reasonable doubt that he is guilty of anything. In effect, he is being held not for anything he’s done, but what he would like to do. This is incompatible with the principles of our law, but if Padilla were given a trial, he’d probably have to be acquitted because at this point the evidence against him is hearsay and inferences from hearsay.
Nobody really wants Padilla’s release, which could cause the death of thousands and the poisoning of a city. But some are uncomfortable with the means used to detain him. What the court should do is test the validity of his detention via a habeas corpus proceeding, and then hold him as long as it takes to win the war, i.e., forever.
June 15, 2002, 10:15 amCraig Schamp says:
His attorney has in fact petitioned for habeas corpus. I think the petition was denied. Judicial oversight at work.
The Senate held closed hearings to get the Administration’s explanation of the situation. Legislative oversight at work.
Seems like due process to me.
June 15, 2002, 1:06 pmDemosthenes says:
I wonder if this is still open? Assuming it is, I’d like to make an additional point:
Nobody is arguing that he should be simply set free. As it is, there’s little chance that he would get anything but denial of bail were he dealt with by the civil system, and a plea of habeas corpus would just mean that the state would have to either produce the evidence necessary or say exactly why it couldn’t (and then, presumably, set up some kind of secret trial). What we are arguing against is “locking him up and throwing away the key” for no reason other than the possibility that at some time in the future he might do or say something bad. By that logic, we should lock up every revolutionary Marxist in all of academe.
June 16, 2002, 1:50 pmGlenn Reynolds says:
I think that Demosthenes is right that Padilla / Al-Muhajir isn’t going anywhere regardless. I really want to be assured that this trend won’t expand along its natural line of logic, because it could expand pretty damned far.
It’s possible that this is a tempest in a teapot. But I’d rather live in a country where things like this create too much of a fuss, than in a country where things like this don’t create enough of a fuss.
June 16, 2002, 8:41 pm