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Court Reaffirms That The Constitution Still Applies, Even When Inconvenient
December 18, 2003 10:30 AM   Subscribe

A courageous decision by the Second Circuit Court of Appeals [opinion] finds that the President does not have the power to detain U.S. citizens captured on U.S. soil as enemy combatants (at least not until Congress tells him he can). Normally, courts don't like to mess with the President when it comes to national security and foreign affairs, so this is a noteworthy decision, particularly given the fact that there was even a decent legal precedent supporting the Government's position.
posted by boltman (29 comments total)

 
N.B.: this was a three judge panel of the Circuit Court. A split (2-1) decision. The odds are high that it will quickly be overturned by the whole circuit court. Probably so fast that the ink won't even be dry on the decision.
posted by kablam at 10:39 AM on December 18, 2003


I don't think so. This is definitely going to the supreme court, and when it does, I would be extremely surprised if they let Padilla's detention stand. Ex Parte Quirin is widely regarded as a mistake by the court, and what the government has done here is just obviously unconstitutional. Even in the case of Quirin, there is some rationale for the judgment, but the problem for these types of cases is that in order for us to maintain the constitutional concept of the courts, there has to be some sort of objective distinction between an enemy combatant and a civillian. In the case of Quirin, Haupt came in on a submarine and was found with explosives. In the case of Padilla, he came in to O'Hare airport on a normal flight, and carried no weapons or anything else that would identify himself as part of a military force. Absolutely nothing except the accusations of the Bush administration distinguishes him from any other Citizen. Bush asserts that no evidence whatsoever needs to be provided to the court to detain him. This is simply the single most outrageous thing that has been done during Bush's tenure, and it's not going to stand.
posted by cameldrv at 10:56 AM on December 18, 2003


i guess the uk doesn't warrant a fpp, but this is related.
posted by andrew cooke at 11:07 AM on December 18, 2003


ahh the joys of vindication
posted by sourbrew at 11:09 AM on December 18, 2003


Someone said on another blog when it does go to the supremes (and it will), that it only takes 4 to overrule the decision.

The bottom line here is that Padilla should be tried in a US court, and if convicted, be put away for life, but keeping him detained without charges, lawyers, or trials is wrong.

Shit, it's unamerican.
posted by mathowie at 11:15 AM on December 18, 2003


I'm (also) am not so sure that it will be reversed. It is a somewhat radical decision in the sense that it limits the president's power to fight the war on terror, but it's quite sound legally. That distinguishes it from some of the recent quickly-reversed 9th Circuit cases (pledge, recall), where the 3-judge panels were making pretty wacky legal arguments.

Its a little disappointing that the Court based its reasoning entirely upon separation of powers doctrine (basically, the court's argument is that Congess passed a law saying US citizens can't be detained, and the president can't defy Congress just because national security may be at stake) and not on the defendant's rights as a US citizen. It seems that, as cameldrv impies, these detentions raise serious individual rights issues as well as separation of powers issues.
posted by boltman at 11:29 AM on December 18, 2003


Matt - you need 4 votes to review the decision, but 5 votes to overrule it.
posted by Mid at 11:31 AM on December 18, 2003


It's worth noting that the court found "ample cause" to believe Padilla was, in fact, involved in a terrorist plot. Hopefully he will be charged and prosecuted through the normal channels, which is what should have happened in the first place.
posted by pardonyou? at 11:37 AM on December 18, 2003


It's worth noting that the court found "ample cause" to believe Padilla was, in fact, involved in a terrorist plot.

I don't see why it's worth noting at all. My guess is it will mainly be noted by people who somehow think that makes what happened less outrageous.
posted by Armitage Shanks at 11:51 AM on December 18, 2003


Due process 1
Bush 0
posted by skallas at 11:52 AM on December 18, 2003


No, Matt is right, it will take 4. One of the votes, Scalia's, is a given.
posted by benjh at 11:54 AM on December 18, 2003


Wouldn't it be 3 votes?
posted by machaus at 12:03 PM on December 18, 2003


I don't see why it's worth noting at all..

It's worth noting because some might read news accounts and assume (incorrectly) that the court was ruling that Padilla should be freed because the government lacks evidence that he was, in fact, involved in a terrorist plot.

My guess is it will mainly be noted by people who somehow think that makes what happened less outrageous.

Well, I was the first to note it, and I don't think it makes what happened less outrageous. So far, you're 0 for 1 on your "guess."
posted by pardonyou? at 12:17 PM on December 18, 2003


I think this decision, whether it is affirmed or not, shows the value of the checks and balances we have in our government, and that the U.S. is not becoming a police state as some have feared.
posted by gyc at 12:36 PM on December 18, 2003


No, Matt is right, it will take 4. One of the votes, Scalia's, is a given.

I wouldn't go that far. After all, this is a separation of powers issue. The court has a few right wing members but that doesn't mean they will abandon the judiciary's institutional interest in checking and balancing the executive. They might like this President, but not the next one.
posted by ednopantz at 12:39 PM on December 18, 2003


I really don't think you can predict how any of the Justices will vote in a novel case like this--certainly not Scalia, who sometimes votes with the liberals on rights of the accused issues (my cynical explanation for this is that his hatred of government sometimes wins out over his bias against criminal defendants). Of all the Justices, Rehnquist is the most constant defender of the right of the government to oppress its citizens in any way that it chooses.

Also as the issue is currently framed, its about separation of powers, not the rights of Padilla. The Justices often wind up in weird alignments in separation of powers cases (just as an example off the top of my head, one recent such case, Clinton v. New York, was a 6-3 decision with Scalia, Breyer, and O'Connor dissenting)

on preview--what ednopatz said.
posted by boltman at 12:46 PM on December 18, 2003


boltman: Rehnquist is the most constant defender of the right of the government to oppress its citizens
I think Rehnquist is a close second to Breyer.

I predict that the supremes will side with Padilla, with Breyer, O'Connor, Ginsburg and Rehnquist dissenting. I'll be very surprised to see Thomas, Kennedy, or Souter side with Rummy. But my conjecture is for kicks. It will be an interesting case.
posted by trharlan at 1:05 PM on December 18, 2003


and that the U.S. is not becoming a police state as some have feared.

The fact that a court may disallow police state actions years after they occur does not change the fact that they were allowed to occur.
posted by rushmc at 1:06 PM on December 18, 2003


So far, you're 0 for 1 on your "guess."

I guessed that pardonyou? would overreact to Armitage Shanks's comment. Does that count?

Your point (about people jumping to conclusions about the decision) is a good one, pardonyou?, but your initial comment didn't indicate it. It appeared to be along the lines of "well, he's probably guilty anyway, so it doesn't matter".
posted by jpoulos at 1:26 PM on December 18, 2003




And quite surprising that this came out prior to the decision.
posted by bkdelong at 1:40 PM on December 18, 2003


but your initial comment didn't indicate it. It appeared to be along the lines of "well, he's probably guilty anyway, so it doesn't matter".

You mean except for the part where I said: "Hopefully he will be charged and prosecuted through the normal channels, which is what should have happened in the first place."?

I really, really despise when people feel entitled to "guess" (to use Armitage Shanks' word) what my beliefs are on a particular issue without any basis for doing so, and get it wrong. I guess it's just a pet peeve of mine. Call me crazy.
posted by pardonyou? at 1:47 PM on December 18, 2003


Here is a good article on Quirin. "Decent legal precedent" is a little bit of a stretch, but that is only if you know the story behind the case.
posted by sp dinsmoor at 2:29 PM on December 18, 2003


Perhaps this is a courageous decision boltman, considering how God will be extremely unhappy about the court's interference with the will of his divinely appointed Dear Leader.
posted by nofundy at 3:10 PM on December 18, 2003


um, okay.

I was actually suggesting that it was courageous because the president has always won these kinds of cases in the past, and I'm sure that, like in Quirin, the judges felt tremendous pressure to swing it the President's way. When you have Defense Department basically telling you that if you don't rule for them, you'll be jeopodizing national security and putting the lives of american citizens at risk, I think it takes a lot of guts to go the other way.
posted by boltman at 3:36 PM on December 18, 2003


Sure, but the Defense Department's on crack. The Court isn't ruling that they can't arrest people, just that they have to give them a fair trial afterwards.
posted by hattifattener at 9:28 PM on December 18, 2003


It was a good day. I'm glad the judiciary is undermining the attempt to create a third definition of criminal that exists purely to serve the executive branch's desires. Either charge them in a military tribunal or charge them in civilian criminal court. Dworkin clarified this for me here.
posted by attackthetaxi at 1:39 AM on December 19, 2003


Also, thanks to monju_bosatsu for that post. That was good. I'm sorry I never said in it the thread. :)
posted by attackthetaxi at 2:02 AM on December 19, 2003


Previous thread on Ex Parte Quirin, fyi.
posted by norm at 7:41 AM on December 19, 2003


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