National Defense Authorization Act: Military can detain US citizens?

[TheStatutoryApe]

So it happened once in a prominent case, the government lost a court case about the procedure it used, but the government ended up being right that he was a terrorist and he was convicted in civilian court.

So does knowing all of this make you feel more or less safe from rogue government action?

Lost? The Fourth Circuit upheld the legality of Padilla's detention. What case was lost?

 

[russ_watters]

Yeah, it's more complicated than I originally grasped:

-In the first round of his writ of habeas corpus case, the government lost the case in the 2nd Circuit Court, but the case was thrown out on appeal on technical grounds (jurisdiction) by the USSC, without ruling on the writ itself: The government apparently never argued that the incarceration was legal in this round, only that Padilla was in the wrong court system.
-In the second round, the case was re-filed in South Carolina, where the government lost again in SC District Court, then won on the underlying issue on appeal to the 4th Circuit Court.
-Before the case could proceed further, the govt charged Padilla in civilian court and attempted to transfer Padilla to civilian jail, rendering all previous court action moot.
-The 4th Circuit Court denied transfer authorization, suggesting the Bush admin was trying to avoid having the issue decided by the USSC.
-The USSC granted the transfer to the civilian court system, thereby finally rendering all of the above moot.

Yes, the government won on the issue once in three tries - and more importantly, won the last time - but it appears to me that the Bush amin knew they were at risk of losing the final judgement in the USSC and essentially defused the bomb by blowing it up. Ironically in such cases where there is gamesmanship on both sides, Padilla's side doesn't seem to have wanted the government to voluntarily give Padilla what they wanted: they wanted the case to go to the USSC for a judgement so the government would be forced to give them what they wanted. In the end, whether due to the legal pressure or not, the government reversed its course on indefinite detention of Padilla. For all practical purposes, they lost.

Regardless of all that, my point is this:
1. Padilla is a convicted terrorist, so ultimately there was no real miscarriage of justice. A bad man getting what he deserved is justice served.
2. The government was guilty (imo, but not officially) of a procedural miscarriage of justice in that Bush did not have the authority to order a citizen held indefinitely in military prison.

So knowing these two things above, I, as a non-terrorist, do not fear the government picking-me up and shipping me off to 'Gitmo, never to be heard from again. It appears to me that others here have this fear and so I want to know what about this case gives them that fear. Just saying that the government did it to Padilla so they might do it to me is illogical unless you are a terrorist like Padilla. In addition, this action is not like a gestapo: the Gestapo never had to defend (and ultimately, as a matter of practical reality, lose!) its actions in court.

 

[icosane]

So knowing these two things above, I, as a non-terrorist, do not fear the government picking-me up and shipping me off to 'Gitmo, never to be heard from again. It appears to me that others here have this fear and so I want to know what about this case gives them that fear. Just saying that the government did it to Padilla so they might do it to me is illogical unless you are a terrorist like Padilla.

My concern isn't so much about my own safety as it is about the potential indefinite detention of innocent citizens being accused of supporting terrorism without due process. If the government has enough evidence to haul suspected terrorists off to 'Gitmo then they should be able to prove it in court.

 

[MarcoD]

So knowing these two things above, I, as a non-terrorist, do not fear the government picking-me up and shipping me off to 'Gitmo, never to be heard from again. It appears to me that others here have this fear and so I want to know what about this case gives them that fear. Just saying that the government did it to Padilla so they might do it to me is illogical unless you are a terrorist like Padilla. In addition, this action is not like a gestapo: the Gestapo never had to defend (and ultimately, as a matter of practical reality, lose!) its actions in court.

The "If you didn't do anything, you don't have anything to fear" argument. That's about the most popular argument used by the KGB under Stalin ever.

(I mean, I don't have any particular opinion on this subject since it is US-local, but I wouldn't use that argument.)

 

[Jack21222]

Regardless of all that, my point is this:
1. Padilla is a convicted terrorist, so ultimately there was no real miscarriage of justice. A bad man getting what he deserved is justice served.
2. The government was guilty (imo, but not officially) of a procedural miscarriage of justice in that Bush did not have the authority to order a citizen held indefinitely in military prison.

Padilla wasn't a convicted terrorist when the government locked him away for 3 years without trial, in the same way that you and I aren't convicted terrorists now. To me, that is a real miscarriage of justice. The trouble is, there's nothing to stop the government from arresting you or I as a suspected terrorist and holding you indefinitely in military prison.

To some people, the NDAA seems to reaffirm this stance of the government. After the Padilla case, I think it was assumed that the government was going to lose an appeal, and the government seemed to back away from the stance that they can hold US citizens indefinitely without charges. I think the fear is the government is reversing course, and reaffirming the stance that they can hold people like that.

To me, this is an analogous situation to police raiding a house without a warrant, finding drugs, and trying to use the drugs as evidence. Without a warrant, the evidence is useless, and the police actions were unjust, despite the fact that the victim was a criminal. Same thing here: It doesn't matter that Padilla was actually a terrorist (or a wannabe terrorist, from what I understand), he shouldn't have been held in military prison without charges; it's unjust.

 

[TheStatutoryApe]

Regardless of all that, my point is this:
1. Padilla is a convicted terrorist, so ultimately there was no real miscarriage of justice. A bad man getting what he deserved is justice served.
2. The government was guilty (imo, but not officially) of a procedural miscarriage of justice in that Bush did not have the authority to order a citizen held indefinitely in military prison.

So knowing these two things above, I, as a non-terrorist, do not fear the government picking-me up and shipping me off to 'Gitmo, never to be heard from again. It appears to me that others here have this fear and so I want to know what about this case gives them that fear. Just saying that the government did it to Padilla so they might do it to me is illogical unless you are a terrorist like Padilla. In addition, this action is not like a gestapo: the Gestapo never had to defend (and ultimately, as a matter of practical reality, lose!) its actions in court.

Just because something happens to a person who is guilty does not make it any less a failure of justice. The justice system is there to protect everyone, including the guilty, from abuse. Being detained without charge for years is abuse.
At its most basic our ability as humans to seek fair treatment for others is based on our ability to consider how we would feel if that unfair treatment were to befall us ourselves. In the end it has nothing to do with how likely we are to actually be treated that way. Pointing out that it is not likely to happen to you or me is the appeal of one indifferent to the abuse of others.

 

[mheslep]

For an enemy combatant in time or war to be detained without charge is not abuse. Civil war prisoners were not brought to trial. WWII prisoners held in the US were not brought to trial. If the state of war is the problem then work to have it revoked, not pretend it does not exist.

 

[russ_watters]

My concern isn't so much about my own safety as it is about the potential indefinite detention of innocent citizens being accused of supporting terrorism without due process. If the government has enough evidence to haul suspected terrorists off to 'Gitmo then they should be able to prove it in court.

Unfortunately, our judicial system takes a long time to go from accusation to arrest in a lot of cases. In PA, we had a prominent child rapist arrested recently after a two-year investigation, during which time he still had access to children to rape through a charity he ran.

 

[russ_watters]

The "If you didn't do anything, you don't have anything to fear" argument. That's about the most popular argument used by the KGB under Stalin ever.

(I mean, I don't have any particular opinion on this subject since it is US-local, but I wouldn't use that argument.)

Don't put into quotes something that isn't actually a quote. In addition, just because one princple applies to two different situations, that doesn't automatically make them identical. I wear white socks and Stalin wore white socks, but that doesn't make us identical.

We know for certain that Stalinist Russia had a bad track record and we have no evidence that the US has a similar track record. That makes them decidedly not the same.

Heck, I don't even believe that you believe they are equivalent. Let's test that: Assuming persecution is your #1 concern and you had a choice of going to Stalinist Russia or the US, which would you choose? If they're equivalent, should we just flip a coin?

 

[Jack21222]

For an enemy combatant in time or war to be detained without charge is not abuse. Civil war prisoners were not brought to trial. WWII prisoners held in the US were not brought to trial. If the state of war is the problem then work to have it revoked, not pretend it does not exist.

Is it possible for a US citizen on US soil to be an "enemy combatant?"

 

[MarcoD]

Don't put into quotes something that isn't actually a quote. In addition, just because one princple applies to two different situations, that doesn't automatically make them identical. I wear white socks and Stalin wore white socks, but that doesn't make us identical.

We know for certain that Stalinist Russia had a bad track record and we have no evidence that the US has a similar track record. That makes them decidedly not the same.

Ah, I put it into quotes because I later added a line to explain my position as a non-US citizen.

I agree with the white/black socks comparison, but I still do feel it's a very flawed argument. I understand that after 9/11 the US has gone on a very nationalistic course, but that doesn't change that you might end up with concepts you'll ultimately regret. You need to weigh the pros and cons on what you think will ultimately end up best for the US, yourself, and possibly the rest of the world, and personally I believe you need to fear your government sometimes and have a system which ensures your own well-being. So I don't buy into the 'I have nothing to fear' argument.

And, as a side note. Most of the terrorist threats are by nomads who live on the far side of the other end of the globe. What are they going to do? Ride their horses across two continents and an ocean? Bin Laden was a joke, he owned some guns and was threatening a continent with nukes; I found him ridiculous and am appalled that probably he now installed a divide everybody was trying to avoid. Very strong border control and visa restrictions already solves 99.9% of the problem, and those are probably already in place.

 

[Evo]

Is it possible for a US citizen on US soil to be an "enemy combatant?"

This has been posted repeatedly, the ACT only applies to "covered persons" and it's quite specific.

 

[Jack21222]

This has been posted repeatedly, the ACT only applies to "covered persons" and it's quite specific.

And as I have posted, Jose Padilla was a US citizen arrested on US soil and held by the military without trial. And some lawyers disagree with your interpretation.

So, my question to mheslep stands.

 

[Evo]

I say any US citizen that decides to engage in criminal activity aginst their country loses all rights to protection. They are now just another terrorist/treasonous criminal. Just my opinion.

 

[Jack21222]

I say any US citizen that decides to engage in criminal activity aginst their country loses all rights to protection. They are now just another terrorist/treasonous criminal. Just my opinion.

And how does one prove that the citizen has engaged in such activity if you don't give them the benefit of the legal protections of this country?

 

[PatrickPowers]

Going a step further, people need to relax about viewing this as a sign of moral decline. It is actually just the opposite: It is the rise of morality that exposes such gaps. Though it should be obvious, it is obviously not. But if you doubt it, just consider how different this conversation would be if we were to have had it 65 years ago, when carpet bombing was standard operating procedure and the Geneva Conventions didn't exist. We're having this conversation because our morality is evolving/advancing, not because it is declining.

The First Geneva Convention was in 1864. Representatives of the great powers of Europe took part and adopted a treaty having to do with treatment of the wounded. The third convention in 1929 added coverage of prisoners of war. The fourth Geneva Convention was in 1949, that seems to be what you are thinking of. I do know that Nazi Germany followed the third Geneva convention. The Japanese had also signed the 1929 convention but did not honor it, practicing terror tactics on a grand scale as a matter of policy including torture of prisoners. The Allies obeyed the convention and did not retaliate.

Sometimes I hear that "the US has always tortured." As you can see this is false. When I was a kid for some reason I read everything I could about this particular topic. Japanese torture was unthinkably gruesome -- it still makes me feel sick to think about what they did -- but I never read any suggestion that the US reply in kind. Instead in literature of the time one always reads that if we tortured then we would be just as bad as they were and then what would be the point of the war. The purpose of the war was to put a stop to such things. There was no debate on the issue. Somehow this point of view seems to have sunk beneath the waves of time and vanished without trace. Except for me. I was brought up with that and still see sense in this.

George Washington stated that the US should always practice a basic goodness, and that any temporary advantage to be gained by deviating from this could never be worthwhile in the end. After WWII the US held great moral authority as the leader of the free world, as the example of a better way of life, free from cruelty and hate and the pursuit of wealth that finds its most extreme expression in war. Great changes occurred. Much prestige was lost during Viet Nam, then W finished the job and all this was discarded as old-fashioned and unimportant. The concept of building a better way of life for all was forgotten and instead cruelty and hate are seen as a source of security. But not by me.

The US of 2011 is operating on a lower moral plane than it did in 1942. The slide began with the practice of torture in Vietnam. This was kept secret until recently, as the voters of 1972, some of who had fought a huge war to end such practices forever, would not have tolerated this. When the Abu Ghraib tortures were exposed I thought a public backlash would put a stop to it. How wrong I was.

 

[TheStatutoryApe]

For an enemy combatant in time or war to be detained without charge is not abuse. Civil war prisoners were not brought to trial. WWII prisoners held in the US were not brought to trial. If the state of war is the problem then work to have it revoked, not pretend it does not exist.

We are not "at war" with terrorists, regardless of any nationalistic propaganda to the contrary. One of the reasons why prisoners of war (actual war) are not typically brought to trial is because a soldier is not a criminal. Soldiers are merely doing their jobs. They are to be held until the end of hostilities so that they may then be repatriated to their countries of origin. They are not held until the end of hostilities so that they can be brought to trial, unless they are actually charged with crimes. The primary reason for holding the criminals until the end of hostilities would be the general lack of ability to run proper trials during an armed conflict. In the "war on terror" there is no such excuse to not try prisoners, especially those captured here in the US.

This has been posted repeatedly, the ACT only applies to "covered persons" and it's quite specific.

Typically when a law specifies "covered persons" it is the job of a court to determine whether or not the persons are indeed "covered". In this case it is apparently the President who determines whether or not a person is "covered", which seems to forgo the "checks and balances" built into our government.

 

[Alcubierre]

This is unconstitutional, plain and simple. It violates one's right of trial and it states that "suspects will be indefinitely held without trial." Only suspects. I find it more than interesting. It targets something that is supposed to be guaranteed by documents that this country was established upon. Military oppression must startle many people and the thought itself is even more fearful than what the act proposes. I hope the Senate doesn't believe the document will provide more safety for all citizens because that would not be the immediate or gradual effect it will have. Racial conflicts will rise solely for the fact that this document is against terrorism or anyone who speaks for terrorism. Many foreign immigrants are viewed through clouded eyes and are challenged because of skin tone, physical appearance, cultural beliefs, and many other factors they have no control over, such as the actions of their mother country. Though they have taken refuge in the States, they are never equally viewed throughout society. This act is no better of a cause for civil disunion as the issue of the peculiar institution was for the Civil War.

 

[Hurkyl]

Just so I'm on the same page...

Are people just inventing things they think we should be afraid of and telling people to be afraid of them? Or is the topic of discussion something real?

 

[russ_watters]

Padilla wasn't a convicted terrorist when the government locked him away for 3 years without trial, in the same way that you and I aren't convicted terrorists now. To me, that is a real miscarriage of justice.

There are several definitions of the word "justice" and I referenced two of them in that post: http://dictionary.reference.com/browse/justice

#5 is "the administering of deserved punishment or reward." This is physical: He is physically residing in a jail cell right now. He was punished appropriately for what he did. That's justice under that definition.

The other definition I referenced is #2: "lawfullness". Padilla was not (arguably) treated in accordance with the law. This is largely an administrative reality - it is argued and decided with words. More to the point, the justice system - the administrative procedures of our legal system - exist to serve definition #5. They exist to mete out physical justice. So for that reason, I consider the reality of that physical justice more important.

The trouble is, there's nothing to stop the government from arresting you or I as a suspected terrorist and holding you indefinitely in military prison.

I think the evidence shows that what is stopping the government from doing that to you or I is that neither of us are terrorists and they know it: The evidence shows that their judgement on the matter is sound. You fear that the next time their judgement may not be sound, fine. But that's not a rational fear: it has no logical basis.

To some people, the NDAA seems to reaffirm this stance of the government...

I think the fear is the government is reversing course, and reaffirming the stance that they can hold people like that.

I'm not a big fan of poor reading comprehension as a basis for fear.

 

[russ_watters]

Is it possible for a US citizen on US soil to be an "enemy combatant?"

[Beyond the particulars of this law...] Of course it is! We live in a luxurious and highly unusual position of not having had to worry about a conventional war having happened on American soil for 150 years, save for a few invididual acts such as Pearl Harbor. But 9/11 is an individual act of war and if, for example, an American Citizen had participated in it, they would be engaing in warfare on American soil, against the US.

And how does one prove that the citizen has engaged in such activity if you don't give them the benefit of the legal protections of this country?

It depends on the specifics of the situation. In some cases, it can happen via investigation and judgement by military intelligence. In others, it happens the same as it does for a non-american civilian in a war zone overseas: a private with an M-16 makes a split-second judgement before pulling the trigger. I think that's the point of confusion here, where people think that since the government had the luxury of time to investigate Padilla that that makes it the normal/natural/right way to go about it. But that is anything but normal/natural. War has never been a police/legal system matter and this highly unusual case shouldn't confuse people into thinking it usually is.

Hypothetically, if Flight 93 had been successfully taken back and crash-landed in a farm in rual Pennsylvania and two of the surviving terrorists, an American and a Saudi, escaped into the woods of PA: Who should go after them? The local police, FBI, INS and US Marshalls? No: I want the 101st Airborne, the Army Rangers and the Navy SEALs.

When they are found, holed up in a farmhouse, does the private who breaks down the door and finds them bother wondering the nationality of the two people in front of him? Of course not. He thinks: 'Are these the terrorists?' and 'Is he reaching for that shotgun on the table?' and if the answer to those questions is "yes", then he pulls the trigger and kills them.
[/Clancy]

 

[russ_watters]

Just so I'm on the same page...

Are people just inventing things they think we should be afraid of and telling people to be afraid of them? Or is the topic of discussion something real?

That was my point/question as well. The Padilla case is not an example of something real, that has applicability to the general public. It has to be extended to a hypothetical beyond what it is in order to fear it. For the law - that's just a matter of poor reading comprehension combined with irrational knee-jerk reaction.

 

[PatrickPowers]

I read a book called The Railroad Man by a British POW who was forced to work on the bridge over the river Kwai. It was no picnic: slave labor, disease, starvation, torture. Most of the prisoners died. He wrote that the worst thing he saw the entire time was a man being waterboarded.

Is no one else disturbed that the USA has adopted the practices of Imperial Japan, which was equal in its evil to Nazi Germany.

 

[TheStatutoryApe]

There are several definitions of the word "justice" and I referenced two of them in that post: http://dictionary.reference.com/browse/justice

#5 is "the administering of deserved punishment or reward." This is physical: He is physically residing in a jail cell right now. He was punished appropriately for what he did. That's justice under that definition.

The other definition I referenced is #2: "lawfullness". Padilla was not (arguably) treated in accordance with the law. This is largely an administrative reality - it is argued and decided with words. More to the point, the justice system - the administrative procedures of our legal system - exist to serve definition #5. They exist to mete out physical justice. So for that reason, I consider the reality of that physical justice more important.

As I noted earlier guilty people have rights too. The law is in place to protect those rights. If the government fails to follow the law it is not merely an administrative fault but an abuse of the rights of a citizen. There are some laws which have been considered by courts to be more of an administrative issue such as whether or not the proper procedure was followed to obtain a warrant. But locking someone up and holding them without charge is hardly so niggling an issue as administrative error.

 

[russ_watters]

No, you misunderstand both what happened and what the Constitution says about what is allowed: Locking Padilla up and holding him without tial was not what the error was (if it even existed at all). The error, according to the two courts that ruled on it, was that the Presient gave the order and he doesn't have that power: Congress has that power. The third court ruled that the war authorization act that Congress passed granted Bush the use of that power. The difference between the two rulings is most certainly an administrative one.

I'm pretty sure this was said earlier: the Constitution says a citizen can be locked up without trial in a time of war.

 

[turbo]

I'm pretty sure this was said earlier: the Constitution says a citizen can be locked up without trial in a time of war.

I'm a bit wary of the definition of "time of war". We are currently in a period of a perpetual "war on terror" and a "war on drugs", for instance. At some point, the ability to declare these "wars" ought to be curtailed, lest we end up living under an even more totalitarian regime. Appointing "czars" against terrorism, drug-use, etc should not be allowed. How do we manage to end up with endless levels of bureaucracy in what is purported to be a free country?

What would happen if the US government was forced to trim back and re-organize such that it was representative of the size and the relative (lack of) complexity during the Eisenhower administration? There is a lot of talk about "transparency" from DC and precious little activity to support the notion that any politicians actually want it.

 

[mheslep]

Is it possible for a US citizen on US soil to be an "enemy combatant?"

• Whiskey Rebellion 1789
• Confederates in the Civil War
• Ernest Peter Burger, Born in Germany, lived in US and became US citizen. Nazi saboteur landed in US via sub 1942. Captured and sentenced to life, later deported.

 

[russ_watters]

I'm a bit wary of the definition of "time of war". We are currently in a period of a perpetual "war on terror" and a "war on drugs", for instance.

Agreed, it does get sticky - with the caveat that the war on terror is an ACTUAL war, while the war on drugs is a figure of speech.

 

[russ_watters]

Several people here are just plain not thinking this issue through. You're focused on innocent civilians and fears of a gestapo that has never existed in the US and completely ignoring the other end of the spectrum that does/has:

As I said above, the US today and for the past 150 years has had the unique luxury of having very little war fought on US soil, but the US Constitution was written at a time when it was a near constant reality. As such, language was included to deal with the issue of citizens taking up arms against the government with the most stark example of exactly why that passage was written being the Civil War: Confederate soldiers didn't get arrested and get hearing to decide if they were enemy combatants! They just got shot on the battlefield. That didn't violate their right to a trial because it was written into the Constitution that it wasn't required. And rightly so, right? It would have been silly to try to arrest the Confederate Army!

So now we have established the clear need for the provision in the Constitution to hold American citizens, without trial, as enemy combatants. On the other end, we don't want ordinary citizens picked-up by a rogue leader's gestapo or even a in individual rogue general or police commander. Where these two sides meet in the middle is with a guy like Padilla.

Padilla was a terrorist and a member of a foreign paramilitary organization that was/is waging war on the US. We know it now and the government had a pretty good idea of it when they picked him up. Who he was absolutely fits the logical justification for holding him as an enemy combatant as per the Constitution. Where it gets sticky is that what he did and what they believe he intended to do is unconventional warfare, not traditional warfare.

When Padilla was undergoing bombmaking training in an Al Qaeda safehouse in Pakistan, he risked dying in the usual way foreign soldiers die away from the battlefield in war: via a bomb dropped on him. No arrest, no writ of habeas corpus, just a bomb.

But terrorism is a form of unconventional warfare whereby the terrorists attempt to hide amongst civilians instead of fighting openly on the battlefield. That inserts them into the domain - if not the jurisdiction - of the criminal justice system and creates legal risks for the civilians around them. The situation is further confounded by the existence of comlpetely domestic terrorists (Tim McVeigh) who have the same goals and methods, but never declare their intent to be enemy combatants ahead of their actions, the way Padilla did. About the only way for the government to even become aware of someone like McVeigh is for some of his preparations to ping on an FBI threat check (ie, a non-farmer buying too much fertilizer and blasting caps). McVeigh never clearly stepped across the line to become an "official" enemy combatant before blowing up his bomb and never had foreign ties, so there was no reason for military or CIA involvement prior to his action. After he blew up his bomb, the issue of confinement without trial or whether to use the military or civilian justice systems was basically moot.

So the spectrum can get a little fuzzy in the middle, but Padilla really is not very close to that line. And with the exception of Japanese Americans in WWII, there is little recent precedent on the "innocent civilian side" on which to base a fear of such persecution.

---------------------------------

As for this nonsense about the US's moral stature declining: the US interred 110,000 Japanese Americans during WWII, most of them citizens and virtually all of them innocent. Beyond that, the action was upheld by the courts at the time. So not only did the government do the wrong thing, the wrong moral justification was actually considered allowable by the courts! That during the war on terror we imprisoned, without trial, one citizen who was not innocent and a more dispassionate legal discourse ensued to challenge it is a spectacular improvement. The US is not perfect, but as the saying goes, we've been declining for so long, its amazing that things have managed to get so good!

 

[PatrickPowers]

As for this nonsense about the US's moral stature declining: the US interred 110,000 Japanese Americans during WWII, most of them citizens and virtually all of them innocent. Beyond that, the action was upheld by the courts at the time. So not only did the government do the wrong thing, the wrong moral justification was actually considered allowable by the courts! That during the war on terror we imprisoned, without trial, one citizen who was not innocent and a more dispassionate legal discourse ensued to challenge it is a spectacular improvement. The US is not perfect, but as the saying goes, we've been declining for so long, its amazing that things have managed to get so good!

They were not tortured, and were released after three years. You say that torturing and holding people indefinitely is a higher moral plane.

 

[ThomasT]

Wasn't everything the Nazis did to the Jews in the 30's and 40's legal, wrt German law?

Look, the US government is going to detain and torture whoever is assessed as being a threat to the US. What we don't want, imo, is for this stuff to be codified into law as it was in Nazi Germany.

 

[russ_watters]

They were not tortured, and were released after three years. You say that torturing and holding people indefinitely is a higher moral plane.

Please drop this bit about torture you are on. This thread is not about torture, it is about imprisonment. It is a separate issue entirely and if you want to discuss it, start your own thread... but be accurate with your characterizations if you do. You are entitled to your own opinions, but not your own facts.

What I am saying is that imprisoning no innocent civilians and one actual terrorist is morally superior to imprisoning a hundred thousand innocent civilians and justifying it with racist lies. By a lot.

I'm not interested in apples to oranges comparisons of 100,000 imprisonments of innocent civilians vs perhaps 100 tortures of probably all guilty foreign terrorists and one guilty American terrorist, but if you want to discuss torture itself, I'm game. I don't quite agree with Thomas, but it is an interesting idea.

 

[ThomasT]

What was it we were talking about?

My position is that I don't want laws sanctioning detention without due process ... wrt anybody, US citizen or not. Because today it might just be applied to suspected terrorists who aren't US citizens, and then down the road it might morph into the sanctioning of detention without due process of anybody who speaks out against the government -- but realizing that the government does, and will continue to, detain without due process anybody who it suspects is a serious threat, and that this is carried out in an extra-legal fashion. I just don't want this practice to be made legal, because then the US would be heading down a path similar to Nazi Germany's legal persecution of Jews.

 

[TheStatutoryApe]

No, you misunderstand both what happened and what the Constitution says about what is allowed: Locking Padilla up and holding him without tial was not what the error was (if it even existed at all). The error, according to the two courts that ruled on it, was that the Presient gave the order and he doesn't have that power: Congress has that power. The third court ruled that the war authorization act that Congress passed granted Bush the use of that power. The difference between the two rulings is most certainly an administrative one.

I'm pretty sure this was said earlier: the Constitution says a citizen can be locked up without trial in a time of war.

You seem to be the one who is not understanding. The constitution disallows Congress from suspending habeas corpus except in time of invasion or rebellion. Padilla was being denied habeas corpus the effect of which was that he was able to be held indefinitely and without trial. It is the purpose of habeas corpus to prevent just such a thing. Law and precedent say that the President is allowed, in his role as Commander-in-Chief, to militarily detain persons without habeas corpus during time of war with authorization from Congress.

One of multiple arguments put forth by the defense, and decided upon by the courts, was whether or not the authorization given by Congress to the President covered Padilla. If not then the President had effectively expanded his authorization which he may not do. It was not a matter of whether the President holds the power to detain or if it is Congress, but whether or not the authorization granted to the President by Congress was broad enough to include Padilla and on top of that whether or not such broad authorization was legal. It was also argued whether or not such authorization may legally be extend to citizens within the US and if so in what circumstances. The Second and Fourth Circuit Courts answered these questions in their decisions as well. The last few paragraphs of the Fourth Circuit decision also answered the question of whether or not indefinite detention without charge or trial was authorized.

http://news.findlaw.com/wp/docs/padilla/padrums121803opn.pdf

http://pacer.ca4.uscourts.gov/opinion.pdf/056396.P.pdf

 

[russ_watters]

You're not being very clear: you state what the law/Constitution requires, but don't state what you think the violations are - perhaps by stating the criteria you mean to imply all criteria were violated? Let me make it clear - there are two separate issues:

1. Was Padilla eligible for long-term detention based on the Constitutional criteria for suspending the writ of habeas corpus?
2. Was the President authorized to make that call based on Congress's war authorization?

I'm guessing that your post is meant to imply you think the answer to both questions is "no".

In the courts, the answer to #2 was what went back and forth, with the last decision being a "no" answer. Your first link says in the first sentence on page 4 that because the answer to #2 was "no", they declined to addresses question #1. Despite being more important and broader, it is putting the cart before the horse: you have to have the right signature on the paperwork before you decide if the content of the paperwork is correct.

Your second link answers "yes" to #2 and therefore addresses #1: It states explicitly that Padilla "clearly and unmistakably" qualifies for detention under the Constitutional criteria. How could it be otherwise? Fighting a war against the US government on American soil is absolutely an invasion or rebellion (with the difference between the two simply being the motivation).

Again, it is my opinion that by the criteria of the Constitution, Padilla's detention was legal. This is physical justice (as explained in my discussions of the multiple definitions of "justice"). The answer to #2 is debateable and I don't have a firm yea or nea opinion on it, but only comment that when the (potential) violation is almost literally a matter of who'se signature is on the piece of paper authorizing the detention, it is an injustice of paperwork and not an injustice of action. And I care much more about action than paperwork.

I may need to make another thread for this point, but a recent counter-example in Philly has me pretty annoyed: 30 years ago we had a guy essentially execute a cop and he'd been on death row until a few days ago. An appeals court ordered a new sentencing hearing due to the potential that the jury had been confused by their orders on sentencing. You see, mitigating circumstances don't require a unanamous vote, but aggravating circumstances do and the way their orders were worded, it was potentially confusing (though no evidence of confusion existed and interviews with the foreman recently show there was no confusion). So for a weak wording of procedure that was moot anyway, justice is not going to be carried out: after 30 years of appeals, the DA is no longer going to pursuse it. More often it seems, it is the paperwork justice that prevents physical justice from being carried out. And that annoys me.