Render unto me a fucking break here

[khaosworks]

'Combatants' Lack Rights, U.S. Argues

Prisoners declared enemy combatants do not have the right to a lawyer and the American judiciary cannot second-guess the military's classification of such detainees, the Justice Department argued yesterday in a brief to an appeals court.

The filing in the case of Yaser Esam Hamdi, the U.S.-born man captured with Taliban forces and being held at a Navy brig in Norfolk, provides the most forceful enunciation yet of the Bush administration's position that those declared enemy combatants in the war on terrorism have no right to counsel and can be held indefinitely. The strongly worded brief signed by Deputy Solicitor General Paul D. Clement also argues that the civilian courts have no standing to intervene.

Read the whole thing, and then come back here. I'll wait.

Back? Okay. The problem here is not so much that the Justice Department is arguing this. Sure, it can argue this - it's their job, after all. The problem here is whether the Court will accept that argument explicitly in its ruling. The JD's argument actually goes like this:

(1) Enemy combatants have no right to counsel and can be held indefinitely.
(2) The military can declare anyone they want an enemy combatant and the courts cannot review that decision.

I don't think anybody really has a problem with proposition (1) - on the assumption that there is a war going on, which I say is still arguable. The real concern is proposition (2). I don't know the Supreme Court ruling that the JD cited - if anyone can point me to it I'd be grateful - so I can't comment on its applicability to the current case situation, but I find it ludicrous, not to mention an incredible usurpation of powers, that the executive can indeed declare a person, by fiat, an enemy combatant without any evidence or objective standard that can be reviewed. There has to be some kind of reasonable standard.

I'd watch what the court says very carefully, since if it comes down on the side of the Justice Department, it should give its reasons why. There can be many permutations on this. It may agree that Hamdi is an enemy combatant and leave it at that, leaving it silent as to whether the court can determine a person's status as an enemy combatant or not. It may agree that Hamdi is an enemy combatant and say that this is due to evidence presented, which would probably be used to then assert in future that the court has explicitly reserved its right to determination of the question. It could agree entirely with the JD and explicitly so on both counts, which would be my greatest nightmare. There can be other results.

I suspect, though, that the court in making its final determination will remain silent on the issue of determining enemy combatant status, neither explicitly rejecting nor accepting the Justice Department's arguments on this point, because in this particular case it is probably going to allow the further detention of Hamdi without counsel and the issue of determination is not absolutely vital to allowing the JD's appeal. But remember, this is because he was captured on the battlefield and there is no real doubt he is an enemy combatant.

Now, Jose Padilla, on the other hand...

Comments

[dietbubba.livejournal.com]

Just further examples of this administration's selective enforcement of the Bill of Rights. If it doesn't fit the framework of our "war" disregard it and then if someone complains accuse them of being partisan or anti-American.

[eviltofu.livejournal.com]

If this passes, Singapore will have more safeguards against detention without trial then the US?

[almeda.livejournal.com]

The supreme court decision in question I've heard mentioned is a 1946 one relating to a captured Nazi or some such. Which might narrow your search somewhat.

Aha. The Great God Ghugle (holy be his *) has paid off again. Check it.

http://www.mayerbrown.com/whatsnew/capturterror.asp

[khaosworks.livejournal.com]

Well, if the summary is accurate, it is simply support for proposition (1), i.e. "unlawful belligerents" are not subject to constitutional protections. Query still as to whether the executive can declare anyone an "unlawful belligerent" without that declaration being subject to review.

That question is answered on page 24-25 of the decision in Ex Parte Quirin, which states:

Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that, in consequence, they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses. In any case, it is urged that the President's Order, in prescribing the procedure of the Commission and the method for review of its findings and sentence, and the proceedings of the Commission under the Order, conflict with Articles of War adopted by Congress -- particularly Articles 38, 43, 46, 50 1/2 and 70 -- and are illegal and void.

The Government challenges each of these propositions. But regardless of their merits, it also insists that petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President's Proclamation undertakes in terms to deny such access to the class of persons defined by the Proclamation, which aptly describes the character and conduct of petitioners. It is urged that, if they are enemy aliens or if the Proclamation has force, no court may afford the petitioners a hearing. But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case. And neither the Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission. As announced in our per curiam opinion, we have resolved those questions by our conclusion that the Commission has jurisdiction to try the charge preferred against petitioners. There is therefore no occasion to decide contentions of the parties unrelated to this issue.

(my emphasis)

The answer is that, despite the Justice Department's contention, there is nothing stopping, say, Jose Padilla, or anyone declared a belligerent from coming up and asking the court to determine whether or not this is true. So it looks like proposition (2) of the Justice Department is wrong in law.

As the decision in Ex Parte Quirin goes on to note, this is a separate issue from determining innocence or guilt of the actual offence charged. That is to say, "Citizens who associate themselves with the military arm of the enemy government, and, with its aid, guidance and direction, enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war." (p. 37-38)

The line, however, I can see, would be quite fine.