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Article: War and Freedom: We can have both
November 29, 2005 7:49 AM   Subscribe

"The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgement of his peers...is the foundation of totalitarianism" Perhaps Tony Blair and George W. Bush regard Winston Churchill as a bleeding heart lefty. But what Churchill's view represents is an old, very basic principle of Anglo-American warfare and justice: fight war with ferocity, but never lose your democratic soul.
posted by tommyc (83 comments total)

 
Executive summary: summary executions.

Developments here for example

Quote
" ... The change in Padilla's status, just days before the government's legal papers were due in his appeal to the Supreme Court, suggested to many legal observers that the administration wanted to keep the court out of the case.

"The position of the executive branch," said Eric Freedman, a law professor at Hofstra University who has consulted with lawyers for several detainees, "is that it can be judge, jury and executioner."
End quote
posted by hank at 7:57 AM on November 29, 2005


Thanks for the extra link hank.
Even when I agree with Sully I'm not going to visit his site.

The rights of kings in the 21st century.
All hail King George!!
posted by nofundy at 8:24 AM on November 29, 2005


This is what made Magna Carta so famous. English kings would throw people in jail with no recourse, it was the primary reason for the revolt of the Barons (that, and the fact King John was incompetent and everyone hated him). Runnymead on the Potomac anyone?
posted by stbalbach at 8:34 AM on November 29, 2005


This is what made Magna Carta so famous. English kings would throw people in jail with no recourse, it was the primary reason for the revolt of the Barons (that, and the fact King John was incompetent and everyone hated him). Runnymead on the Potomac anyone?
posted by stbalbach at 10:34 AM CST on November 29


The fundamental difference (and legally determinative difference) being that Magna Carta (and our Constitution) addressed the rights of citizens. The issue here is not citizens being held for domestic criminal reasons. The issue is combatants being taken held for engaging in foreign combat and terrorism against the United States.

I really wish people would actually read the Padilla decision and try to argue it on its own terms instead of sniping at it in total ignorance of the reasoning articulated by the court.
posted by dios at 9:00 AM on November 29, 2005


Interestingly, in the parliamentary system (as practiced in England, Canada and elsewhere), the Speaker may, even to this day, find any person in contempt of parliament and imprison that person without trial, without access to counsel, and may do so indefinitely.

In practice, this doesnt happen anymore, but the power is still there. There is no real limit to the powers of parliament, although it is a matter only of tradition and respect for the judiciary that Parliament allows the courts to hold some jursidction over the limits of privilege. The UK Parliament has codified such limits, but, interestingly, these codified limits are not actually binding.

The most infamous case of such privilege being abused was in the Stockdale/Hansard case of 1840, where Stockdale sued Hansard for libel after having printed comments by a member in committee. The House asserted its right of privilege, but the courts found in favour of Stockdale. In the end, the Sheriff of Midlesex was found in contempt of parliament for attempting to enforce the order of the court and imprisoned. After continuing to press his case, Parliament found both Stockdale and his lawyer in contempt and imprisoned them as well. The record does not indicate whether Stockdale or his lawyer were ever released (I would assume that they were, eventually), but they did not have recourse to the courts.

But it has occurred elsewhere. Journalists have, even in the last decade, been found in contempt of parliament in Tonga and Zambia, among other countries and imprisoned without appeal, and similar tales can even be told about the Australian parliament, although not recently. While this sounds unusual, if it were outside the powers of Parliament it is likely that those countries would have been suspended or expelled from the Commonwealth.

So, lest you think that this is merely an American thing, such powers are held by the governments of many other democratic nations.

On preview: it is interesting and even amusing to me that while English kings no longer have that authority, the Commons do.
posted by solid-one-love at 9:02 AM on November 29, 2005


Also, is Andrew Sullivan an acceptable source now that his single issue focus on gay issues has caused him to turn on Bush? I remember when he was considered persona non grata around here back when he suppported the administration.
posted by dios at 9:03 AM on November 29, 2005


dios writes "I really wish people would actually read the Padilla decision and try to argue it on its own terms instead of sniping at it in total ignorance of the reasoning articulated by the court."

I think the argument runs deeper that that, dios. I would hold that if the US Constitution and the laws of the United States allow for the executive to imprison a person indefinitely without due process, the Constitution and laws must be changed, as they are no longer compatible with personal liberty.
posted by mr_roboto at 9:10 AM on November 29, 2005


Also, is Andrew Sullivan an acceptable source now that his single issue focus on gay issues has caused him to turn on Bush? I remember when he was considered persona non grata around here back when he suppported the administration.

Certanly not!
posted by delmoi at 9:14 AM on November 29, 2005


I really wish people would actually read the Padilla decision and try to argue it on its own terms instead of sniping at it in total ignorance of the reasoning articulated by the court.
posted by dios at 11:00 AM CST on November 29


That sounded too snotty. Let me explain further: the issues surrounding the Padilla case, the Hamedi case, and the Court's thinking on it are on very particular issues regarding congressional authorization, status of detainees, location of arrest, etc. The issue that Court are wrestling with isn't simply: all people should be charged immediately. It is a much more complex issue then that.
posted by dios at 9:15 AM on November 29, 2005


Only if he posts pictures riding you bareback dios.
posted by nofundy at 9:17 AM on November 29, 2005


would hold that if the US Constitution and the laws of the United States allow for the executive to imprison a person indefinitely without due process, the Constitution and laws must be changed, as they are no longer compatible with personal liberty.
posted by mr_roboto at 11:10 AM CST on November 29


Why does the Constitutional guarentee of liberty extend to non-citizens? The Constitution says, on its own terms, that it applies to the people of the United States. You seem to suggest that there is a concept of personal liberty that exists independent of the Constitution, and that the Government should change the Constitution to comport with this unidentified vague notion of liberty. Well, I ask you then: wherefrom does liberty derive? What are its contours? Is it absolute? Must the government respect an individual's actions of liberty if the liberty is used to fight the foreign government or engage in terrorism?
posted by dios at 9:19 AM on November 29, 2005


Why does the Constitutional guarentee of liberty extend to non-citizens? The Constitution says, on its own terms, that it applies to the people of the United States.

Where does it say that?
posted by delmoi at 9:28 AM on November 29, 2005


Are you serious delmoi? I know you like to challenge every single thing I ever say. But are you seriously doubting that the Constitution is the Supreme law of the land (that is, the United States)? The Constitution's power ends at the borders of the Country. The Constitution does not apply internationally to foreign governments. You don't agree? Have someone in Iraq tell his government that he is entitled to to keep a solider out of his House because of Article Three of the Constitution.
posted by dios at 9:36 AM on November 29, 2005


Must the government respect an individual's actions of liberty if the liberty is used to fight the foreign government or engage in terrorism?

If you look at the government as having a right to exist for its own sake one could argue that it should do everything in its power to preserve its own institutions. If you consider government to be the expression of popular consensus over how a society wants to conduct itself, then you have to realize that some lbasic decency is needed to preserve the decency of the people themselves.
posted by Space Coyote at 9:37 AM on November 29, 2005


But if it turns on a government's ability to deem a citizen a 'combatant' or 'terrorist' without appeal, and thereby deprive them of a representative trial, freedom, franchise, etc., isn't it the same thing, really? Just as arbitrary? As tyrannical?

'Combatant' and 'terrorist' are terms chosen for their specific lack of legal definition. Seems that one could argue the finer points of jurisprudence while the [hyperbole!] entire country is locked up.[/hyperbole!]

The effects of that sort of taxonomic control are profound, and more reflective of what was being referred to by Churchill than mere legal precedence, I'd suggest.
posted by Haruspex at 9:37 AM on November 29, 2005


I think Dios is arguing that the US government (and therefore, any government) can do what it likes to anyone, anywhere. Others are arguing that that's not the actions of a country they want to call their own.
posted by Space Coyote at 9:39 AM on November 29, 2005


Padilla is a US citizen.
posted by bshort at 9:45 AM on November 29, 2005


Let's let Mr. Lawyer dios explain where people/person/accused = "citizen(s) only" 'cause little old dummy me ain't seeing it:

Amendment I - Freedom of Religion, Press, Expression. Ratified 12/15/1791. Note

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II - Right to bear arms. Ratified 12/15/1791. Note

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III - Quartering of soldiers. Ratified 12/15/1791. Note

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV - Search and seizure. Ratified 12/15/1791.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI - Right to speedy trial, confrontation of witnesses. Ratified 12/15/1791.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII - Trial by jury in civil cases. Ratified 12/15/1791.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII - Cruel and Unusual punishment. Ratified 12/15/1791.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX - Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X - Powers of the States and People. Ratified 12/15/1791. Note

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

posted by nofundy at 9:46 AM on November 29, 2005


I don't think Dios is arguing the "therefore" part, SC, nor would he.

In any case, all treaties signed by the US are considered, Constitutionally, to be the law of the land. Refusing access to counsel, charges or swift trial to enemy combatants breaks numerous treaties. Therefore, it's illegal. It's no more complicated than that.

But the US has, under the Bush administration in particular, become infmaous for breaking and ignoring treaties at its whim while expecting its treaty partners to adhere strictly to the terms of those treaties.
posted by solid-one-love at 9:48 AM on November 29, 2005


Others are arguing that that's not the actions of a country they want to call their own.
posted by Space Coyote at 11:39 AM CST on November 29


Well then, you need to wake up because this isn't a "new invention." You may want to note that there is line of constitutional jurisprudence in this area. Bush didn't invent this out of whole cloth. Read Ex parte Quirin. Read Korematsu. Read the Civil War habeas cases. Go back and look and see that every time there are threats on national security and in times of war, these issues recur and are resolved in a way that you arguing against. Note how the Constitution explicitly provides that habeas corpus can be suspended against US citizens in times of crisis or war; but you want to argue it can't be done against foreign combatants?

This isn't a new idea.
posted by dios at 9:49 AM on November 29, 2005


Bushwhacking the Constitution
posted by homunculus at 9:57 AM on November 29, 2005


times of war
Serious question: Can we be in a "time of war" for legal purposes without a formal declaration of war, as was the case in the Civil War, WWI, and WWII?
posted by PinkStainlessTail at 10:00 AM on November 29, 2005


dios writes "Well, I ask you then: wherefrom does liberty derive?"

Well, I think it's self-evident. All men are endowed, by their Creator, with certain unalienable rights: among these are life, liberty, and the pursuit of happiness.

dios writes "Must the government respect an individual's actions of liberty if the liberty is used to fight the foreign government or engage in terrorism?"

Of course. That's what the criminal justice system is for: dealing with those who abuse their liberty in a transparent, fair manner, relying on due process and respecting the liberty of the individuals charged with crimes, and especially individuals charged with crimes who may be innocent of committing such crimes.

dios writes "Why does the Constitutional guarantee of liberty extend to non-citizens?"

This is a deeper question. Of course, in many cases, the Constitution's guarantees of liberty do apply to non-citizens. Non-citizens charged with crimes in the US have the same protections of due process as do citizens, for instance. But whether or not it is within the framework of the Constitution to protect the rights of those in foreign countries, it is the responsibility of the US government to protect those rights whenever possible. To do otherwise is tyranny.

dios writes "This isn't a new idea."

That doesn't make it right.
posted by mr_roboto at 10:02 AM on November 29, 2005


To be fair, Pink, it's "times of crisis or war", so it doesn't look to me that a declaration of war is needed. However, I would be very surprised if the US Constitution indicated that treaties could be suspended in time of crisis or war.
posted by solid-one-love at 10:02 AM on November 29, 2005


When did the Congress explicitly authorize a war resolution against citizens of the US?
posted by Rothko at 10:02 AM on November 29, 2005


The question then is this dios, perhaps it is legal to hold a U.S. citizen indefinitely without trial, I dispute this, but let us just assume that this is the case. Is it morally right to do so? Is it in the best interests of the nation, liberty, and justice to do so?
posted by Freen at 10:06 AM on November 29, 2005


9/11 changed EVARything.
posted by quonsar at 10:06 AM on November 29, 2005


dios, are you defending Korematsu as sound law?

You really are a sick dude. I don't know of any Consitutional scholars who would hold it up as the basis for precedent. But your legal tastes are esoteric, to say the least

And what Haruspex and bshort said. Should the executive branch have the right to strip citizenship from anyone it deems a combatant? Why not just try them with the (presumably) overwhelming evidence that they are a terrorist?

More practically, if there was so much evidence that Padilla had dirty-bomb components, surely the government has enough overpaid lawayers to try him and send him to jail for good? Why the legerdemain now charging him on something entirely different? It would be interesting to see the DOJ totally screw the pooch on this one. Terrorist #1 walking away free and all that.
posted by bardic at 10:09 AM on November 29, 2005


Dios: Well then, you need to wake up...

Ah, but it's "The sleep of reason [that] breeds monsters." Quite awake, actually; indeed, such was the alertness that initiated this post.
posted by Haruspex at 10:13 AM on November 29, 2005


Interesting that there is no mention of Lincoln, who did these things and a hundred more severe. I doubt many would be persuaded with a condemnation by Churchill, yet at the same time, a comparison with Lincoln.

Other case studies include US vs. Eugene V. Debs.
posted by kablam at 10:20 AM on November 29, 2005


Note how the Constitution explicitly provides that habeas corpus can be suspended against US citizens in times of crisis or war

Dios (or any other student of the law), a serious question: what case-history or legislation legally defines "crisis" in this context? It seems to me that the Executive branch could simply declare a "crisis" any time they wished to suspend Habeas (or deprive a citizen of their constitutional rights)--a move which would, essentially, deprive the Constituion of any real meaning in regards to an individual's rights. Who defines "crisis" in this context?
posted by Chrischris at 10:27 AM on November 29, 2005


Detainees Deserve Court Trials
posted by homunculus at 10:28 AM on November 29, 2005


.... the Constitutional guarentee of liberty ....

Note the part where mr_roboto said that if they didn't, they "must be changed".

Well, I ask you then: wherefrom does liberty derive? What are its contours?

Good questions. You seem to be suggesting that you think the liberty derives solely from the Constitution; it seems clear to me that the authors of that document thought that it merely guaranteed them, rather than defining or creating them.

Put another way: I somehow doubt that the framers thought that liberty existed because and subsequent to the fact that they'd authored a document....
posted by lodurr at 10:30 AM on November 29, 2005


Other case studies include US vs. Eugene V. Debs.

Good old Debs.
posted by homunculus at 10:31 AM on November 29, 2005


Padilla is a US citizen.
Padilla is a US citizen.
Padilla is a US citizen.
Padilla is a US citizen.
Padilla is a US citizen.
Padilla is a US citizen.
Padilla is a US citizen.
Padilla is a US citizen.
Padilla is a US citizen.
Padilla is a US citizen.
Padilla is a US citizen.
Padilla is a US citizen.
Padilla is a US citizen.
posted by raedyn at 10:42 AM on November 29, 2005


Kablam, I had thought of Lincoln, who (according to some accounts) agonized over the decision and, at the very least, fully understood the implications for the very nature of the nation for which he and the Union were fighting.

Perhaps I implicate my own academic values in saying this, but Lincoln was a scholar, auto-didactically steeped in the classic Western canon. He was not simply an accomplished lawyer but a student of history; Lincoln's own accounts reveal his continual struggle to safeguard a republic under dire threat — not only from the obvious destructive forces outside, but from those inherent contradictions that are part of the American inheritance.

Forgive me for saying so, but I think our current Administration is good deal less informed, and far less introspective.
posted by Haruspex at 10:48 AM on November 29, 2005


is Andrew Sullivan an acceptable source now that his single issue focus on gay issues has caused him to turn on Bush?

no, it's not only "gay issues" (some of us call them "civil rights", unless of course you also say "black issues" when discussing desegregation)


I remember when he was considered persona non grata around here back when he suppported the administration.

how would you remember that? you weren't a member yet. at least with the "dios" account.
posted by matteo at 10:49 AM on November 29, 2005


and re: Sullivan's change of heart on Bush -- if you read his blog, he also has a problem with torture (unlike you, dios). so Sullivan's not only about the "gay issues" -- he does not have a taste for torture.
posted by matteo at 10:50 AM on November 29, 2005


Also, is Andrew Sullivan an acceptable source now that his single issue focus on gay issues has caused him to turn on Bush? I remember when he was considered persona non grata around here back when he suppported the administration.

I never thought he was too single-minded with his content. Lots of gay issues, but also lots of religious fundamentalism stuff (related, I grant you, but still a broader issue), lots of fiscal restraint stuff, and now he's on an anti-torture spree. I stopped reading him a while ago, because even though I usually agreed with him, he was just too damn whiny for my taste.

I did like his last appearance on Real Time on HBO, though. One of his key quotes went something like this:

"Bush's administration is the 'Trust Me' administration. Like a lot of other people, I kept giving him the benefit of the doubt when he said "trust me" on Iraq, "trust me" on the budget, "trust me" on Katrina, "trust me" on Guantanamo Bay, "trust me" on everything he didn't have real justifications for, but he's betrayed our trust at every turn. I'm done trusting him."

That really sums up how I think a lot of America has typically viewed Bush. For whatever reason, they've been inclined to give him a lot of unearned trust on a lot of issues, and I hope we've finally reached a tipping point where he has to answer for all the things he wants people to take on faith.
posted by TunnelArmr at 10:53 AM on November 29, 2005


raedyn: that is irrelevant because he is an enemy combatant. See Padilla, In re Quirin, cf. In re Milligan. There is a matrix of application of the jurisprudence in this area. Those who are foreigners can have protection inside the United States, but not outside of it. Those who are enemy combatants lose it irrespective of citizenship status. Saying "he is a citizen" is trumped by "he is a enemy combatant" and that we are in a state of war/crisis.

To try to keep this thread from going down too many rabbit trails and retreads and insulting terms, I want to refocus my point. Look, I know that I am not going to convince anyone here that detaining enemy combatants is "right" as opposed to "wrong"--I tend to personally think it is value neutral. But I know people have personal beliefs on this matter. What my point was, above, was to suggest that the issue itself is neither new or cut and dry. The United States has been grappling with this question for as long as the country has existed. There is a long history of Constitutional jurisprudence that is ever-evolving. There are important questions about definitions, spheres of authority, the political nature of the enemy, the actions of the particular defendants, and geopolitical climate,and all of these are important questions in resolving the legal question of whether the president/legislature/country can do such a thing.

As such, it is plain wrong to say "it is clearly illegal" or that "Bush is doing unprecedented things." Neither is the truth. Bush is grappling with the same demands that other leaders in times of crisis face, and he is doing so within the contours of the existing constitutional jurisprudence. I don't begrude anyone who says they find it to be wrong. But I think people are being wholly disingenous and factually wrong when they act that Bush has started to do something radical and overwhelmingly illegal. If you want to challenge it on legal grounds, please do. But do so within the contours the jurisprudence. When you do, you will see that some of these absolutist and over-simplified arguments seen in this thread are baseless.
posted by dios at 11:01 AM on November 29, 2005


how would you remember that? you weren't a member yet. at least with the "dios" account.
posted by matteo at 12:49 PM CST on November 29


Membership wasn't open you snively prick. I know you fancy yourself a Sherlock Holmes ready to "out" people, so feel free to make a fool of yourself and tell me about what account I had before membership opened up. Prove to us how everyone who disagrees with you is really the same person.
posted by dios at 11:06 AM on November 29, 2005


(Damn it... I know I should abide by my restrictions of refusing to address anything from a certain group of assholes who ignore simple things like reading without an account in favor of base assholery towards me. I managed to do ignore several of them already in this thread, but I slipped there. Stupid too-easy-to-post-without-thinking-twice button).
posted by dios at 11:07 AM on November 29, 2005


And that should be sniveling prick... I always liked that mental image.
posted by dios at 11:09 AM on November 29, 2005


well, since you got a timeout for bashing a gay member, this is pretty fucking rich
posted by matteo at 11:11 AM on November 29, 2005


"[...]Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I've told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.

Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away."

— W.H. Auden
posted by Haruspex at 11:12 AM on November 29, 2005


I know you fancy yourself a Sherlock Holmes ready to "out" people,

you're lying, again. either link a comment of mine where I fancy myself that, or withdraw your insult. but I'm not holding my breath for you to do the decent thing.
posted by matteo at 11:16 AM on November 29, 2005


principle of charity, folks, principle of charity.
posted by phaedon at 11:16 AM on November 29, 2005


Saying "he is a citizen" is trumped by "he is a enemy combatant" and that we are in a state of war/crisis.

They arrested him at a U.S. airport. It's not like he was waving around an AK on the battlefield.
posted by Optimus Chyme at 11:31 AM on November 29, 2005


dios: he is an enemy combatant. See Padilla, In re Quirin, cf. In re Milligan. There is a matrix of application of the jurisprudence in this area. ... Those who are enemy combatants lose [protection] irrespective of citizenship status. Saying "he is a citizen" is trumped by "he is a enemy combatant" and that we are in a state of war/crisis.

Well, that's the joker, isn't it? If "the Executive" declares that we're in a "crisis" or "at war", then the Executive can pretty much do whatever the hell he wants to whoever the hell he wants -- all he's got to do is declare them an "enemy combatant."

To argue, as people on your side of the table often do, that it doesn't matter until someone starts misusing power in that way -- well, that's a trifle disingenuous if you also want to argue from a standpoint of strict legalism, as you seem to want to do. In strictly legalistic terms, at least in your reading of them, this loophole exists that lets the Executive do whatever he wants.

Which is beside the point: We are not at war. We are not in a crisis. We are waging war; we are not, legally, at war.

We are behaving as though we are in a crisis, and that is tending to create one; but the crisis we are creating is not the one that are are behaving as though we're in.

I would be curious to hear your position on Chrischris's question: What defines "crisis"? What defines "wartime"?

And to follow up: How do we prevent the Executive from simply creating either whenever it suits him?
posted by lodurr at 11:38 AM on November 29, 2005


It's not like he was waving around an AK on the battlefield.

Sure he could still be one though. But how would we know? There would have to be a hearing, at least, preferably a trial. After all, to find a citizen to be an "enemy combatant" is tantamount to finding someone guilty of treason, and that's a pretty serious legal charge.

I mean, how could you be a detainable "enemy combatant" without having committed treason?

In this case, the finding of treason (i.e., enemy combatant status) is made without trial -- and in fact, without actually charging the traitor with treason. If they'd accused them of treason, see, they'd be entitled to due process. Clever.
posted by lodurr at 11:43 AM on November 29, 2005


Those who are enemy combatants lose it irrespective of citizenship status. Saying "he is a citizen" is trumped by "he is a enemy combatant" and that we are in a state of war/crisis.

So basically, Dios, you are arguing that Executive Privilege (and what is this "enemy combatant" tag, except an arbitrarily created and applied designation of status originating in the Executive Branch) trumps Constitutional jurisprudence .
Shorter Dios: We are a Nation of Men, not Laws.
posted by Chrischris at 11:44 AM on November 29, 2005


Dios, you continue to be a joke, both as a poster and as a logician. If you'd bother to read anything I wrote (which you seem to be afraid to do), I've granted the point that there might be a crisis that would allow the government to trump somebody's citizenship with a claim to being an enemy combatant.

But why not try the person? Give them a lawyer, give the government ten, and present evidence that she was going to blow up a building, crash a plane, what have you. If a jury doesn't find them guilty, put surveillance on them to hopefully track down other terrorists.

And please stop feeling sorry for yourself. I might break down and send you a Christmas card, I just can't take the pathos.
posted by bardic at 11:46 AM on November 29, 2005


Although repetitive with other comments here, let's state this again: "War/crisis" is not a defined state. "Combatant" is not a defined term. It's miserable diction, and it denotes a lack of rationale.

It's an insulting tautology to say that an executive power can dictate the law by whim and fiat, then declare that law to be a precedent based on principle.

Legalities are not relevant to the discussion prompted by the post. What's up for discussion is principle, the progenitor of law(s). That is not overly-simplified, absolutist, or baseless. It's merely obvious.
posted by Haruspex at 11:57 AM on November 29, 2005


lodurr, Congress defined the crisis didn't they in Oct 2002?
(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 the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
I think that includes Padilla, but I think it wouldn't include, say, dios and I converting to Islam and conspiring to set off a nuke in Austin. Not that that would stop them from holding us incommunicado without trial for however long they liked and making up some crap about our Al-Qaeda ties. Dios wouldn't mind since he's all like LN(E), but it would really chap my NG hide.

Haruspex: I might be wrong but I think it is sort of defined. This "enemy combatant" term is basically non-POV combatant status from the Geneva Conventions. Think spies and saboteurs; the GC outlines their diminished rights which the Bush people have been skinning very close to the bone. At least this is my understanding.
posted by fleacircus at 12:07 PM on November 29, 2005


Q. What legal grounds do you have to detain me?

A. Because, you are an enemy combatant.

Q. Why do you believe that I am an enemy combatant?

A. Because, we have legal grounds to detain you.

... ad infinitum.
posted by rockabilly_pete at 12:10 PM on November 29, 2005


The Constitution (habeas corpus) trumps any Congressional laws every single time.

Padilla is a citizen of the US.

You can't hold citizens without charging them. At least not for years and years.

If he's an "enemy combatant" then you charge him with treason. You try him in a court of law and you follow the court's instructions with respect to sentencing.

That's what we do in this country.
posted by bshort at 12:11 PM on November 29, 2005


You can't hold citizens without charging them. At least not for years and years.

Yes we can. We just did. And what is going to happen to the people who systematically destroyed Joseph Padilla's Sixth Amendment rights?

Nothing.

By any sense of justice, the only correct answer is 1) Free Padilla on technical grounds (explicit and extreme violation of the sixth amendment. 2) Arrest and try those who ordered the detention and those who comitted the detention.

What will happen.

Nothing.
posted by eriko at 12:15 PM on November 29, 2005


What will happen.
Nothing.
posted by eriko at 12:15 PM PST on November 29


Well, promotions.
posted by Optimus Chyme at 12:20 PM on November 29, 2005


Thanks, fleacircus. I suppose I'm fretting on this because I don't see it used, when it is used, with respect to those pre-established treaties. It's simply stated as an unquestionable justification: a rhetorical event meant to trump dissent.

Perhaps what I note most is what I was probably too ponderously referencing earlier, in regards to Lincoln. There's precious little reflection given to the context of these incarcerations, secret tribunes and Red Queen-style legal arguments in regards to this country's image of itself, and to others.
posted by Haruspex at 12:24 PM on November 29, 2005


Call me a rabble-rouser, but it might be time to post this inflammatory little excerpt from one of my favorite, greatly-maligned manifestos:

... That whenever any Form of Government becomes destructive of these Ends, it is in the Right of the People to alter or abolish it, and to institute a new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness. Prudence indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.

Is it un-American of me to agree with this sentiment?
posted by rockabilly_pete at 12:34 PM on November 29, 2005


Fuck it. Who wants to start a project and try and help padilla out?
posted by phaedon at 12:39 PM on November 29, 2005


man, dios got owned in this thread
posted by wakko at 12:45 PM on November 29, 2005


Forget I asked.
posted by phaedon at 12:50 PM on November 29, 2005


Charge Jose Padilla
posted by rockabilly_pete at 1:01 PM on November 29, 2005


I'm surprised that Dios would disagree with Justice Scalia on habeus corpus:

In Hamdi v Rumsfeld, the Court ruled that Congress, in its 2001 Authorization for the Use of Military Force, had given the President had the power to declare an American citizen an "enemy combatant" and deny him a trial in federal court. Justice O'Connor, writing for the majority did, however, indicate that such persons cannot be held indefinitely and were entitled to contest the determination of their status with the assistance of counsel. Justice Scalia, somewhat surprisingly dissented, arguing that the Constitution entitled Hamdi to a criminal trial. He concluded:

"The Founders well understood the difficult tradeoff between safety and freedom. "Safety from external danger," Hamilton declared, "is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free." The Federalist No. 8, p. 33.

The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis-that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.
[via]

posted by Rothko at 1:06 PM on November 29, 2005


Interesting. So, here's how I read Scalia on that matter: "It's (sort of) OK [or at least understandable] to violate the Constitution in the name of security. But don't pretend that's not what you're doing."

Which is kind of my view on stuff like this: If you think it's necessary, go for it. But don't pretend that it's constitutional. And don't pretend that it's right.
posted by lodurr at 1:17 PM on November 29, 2005



“man, dios got owned in this thread” - posted by wakko

Wakko, with due respect to you and others here, that‘s the problem.
I think dios was making an argument in earnest and made a clear effort to assert a cogent point. Whether he succeeded or failed or whether one agrees or disagrees with him is certainly open to debate.

But I think his behavior was exemplary and quite patient considering the level of argument directed at him.

I will conceed dios stating “...try to keep this thread from going down too many rabbit trails and retreads and insulting terms...” followed by “Membership wasn't open you sniveling prick” IS comical.

But that was after a good deal of abuse was heaped on him.

...Perhaps this is better suited to MeTa. I’m certainly not going to convince anyone to leave the baggage outside the thread. I can’t say I’ve never brought some, but I do try (I have attacked PP for example, but only in cases where he utterly destroys a potentially good discussion).

Here I thought dios’ assertion: “Saying "he is a citizen" is trumped by "he is a enemy combatant" and that we are in a state of war/crisis” was a robust argument and well countered by lodurr’s comments as to “How do we prevent the Executive from simply creating either whenever it suits him?”

dios may well have been owned, but I don’t think it was on a matter of substance, nor, more particularly on the subject at hand.
But me, I like rabbit trails.

As to the issue itself, I don’t believe you can be a little bit pregnant. Either the standard holds and checks the government’s power to strip the rights of -anyone - or it does not. I do not believe human rights are subject to situations no matter how unusual. To me that’s the thinking behind the protection from “cruel and unusual” punishment in the constitution.
Not as a matter of law (’cause I went to clown college and didn’t study law), but one of principle.
So I wholeheartedly agree with the Churchill quote.
posted by Smedleyman at 1:50 PM on November 29, 2005


FWIW, I think dios's arguments, taken on their own terms, are sufficient. He doesn't have the same terms that other people do. On my terms, for example, they're not sufficient.

And I agree, I didn't seem him trolling here so much as occasionally being a bit injudicious in his mode of response.

sooo....did you really go to clown college, or are you just shittin'?
posted by lodurr at 2:23 PM on November 29, 2005


Posted by Dios:
The fundamental difference (and legally determinative difference) being that Magna Carta (and our Constitution) addressed the rights of citizens. The issue here is not citizens being held for domestic criminal reasons. The issue is combatants being taken held for engaging in foreign combat and terrorism against the United States.

I really wish people would actually read the Padilla decision and try to argue it on its own terms instead of sniping at it in total ignorance of the reasoning articulated by the court.

***
The above statement is not true. Jose Padilla IS an American Citizen born in NY. He may be a criminal who should go to jail for his actions but under our constitution, he deserves a legal trial.

Even if he is not a citizen, there are specific laws for dealing with hostile foreign elements within our nation and they ALL either involve the court system or the Geneva Conventions regarding hostile combatants.

This change to how the US is addressing criminal elements at home and abroad as well as contravening the Geneva Convention is a SERIOUS issue and to ignore it is tantamount to real treason (not the tripe Ann Coulter refers to).
posted by FeydRiven at 3:03 PM on November 29, 2005


/long sorry. lots of coffee today.
I am enjoying your reasoning on this issue, lodurr.

The dios thing - I certainly agree it can be a struggle to understand dios’ terms (apologies for speaking of you in this manner if you are still here dios).
And there is ample evidence of people here making the effort to do so. I just want to hear the other side of this.
I’m not informed enough to present a counterargument and I’m so viscerally opposed to Padilla’s (or anyone’s) kind of detainment anyway that I wouldn’t. But I am interested in the why’s and wherefores of it.
It appeared to me (to now join the others ascribing assertions to dios) that he was attempting to frame the argument in criminal vs. foreign policy terms.
Which to me does raise assloads of questions that I agree with dios have been raised before - but that we are currently struggling with due to the nature of an enemy that can infiltrate our country and subvert our citizens. Granting the “Treason” counterargument you raised lodurr, I would argue the detainment is percieved as necessary to national security as opposed to the beginnings of finding wrongdoing and assigning punishment.
That detainment would not only be necessary to gain information, but to kick out links in the terrorist cell structure. Slow up the works.
I’m not going to argue that this is a “new” kind of war. But the weapons are certainly new. Atomic, Biological, Chemical (or is it NBC now?) weapons capable of destroying large numbers of the population have never been available to small groups.
It is this geostrategic reality we’re trying to come to grips with.
I’m not about to say it’s going well.
But given that situation - those I think are the terms dios is trying to lay his mechanistic legal discription over.
I could be wrong though. Clown college and all that.

“did you really go to clown college, or are you just shittin'?”
There’s a difference? Disingenuity is disingenuity whether natural or refined at the collegate level.
*staggers off stunned by own bullshit*
posted by Smedleyman at 3:10 PM on November 29, 2005


Just thought of the Simpsons reference. No, I didn't go to Princeton. (Nor an actual circus arts training facility)
posted by Smedleyman at 4:20 PM on November 29, 2005


Um... yeeeaaahhhh.....Simpsons Reference....that was it.
posted by lodurr at 4:58 PM on November 29, 2005


Wait, what did this Padilla guy actually do again?
posted by melt away at 6:15 PM on November 29, 2005


The whole thing makes me seriously discomfited. Take this hypothetical case:

Say a journalist writes and publishes a series of scathing article in opposition of the President's handling of the war, causing the administration great aggravation.

The President, because we are at war (or warring, or acting warrishly, or whatever), claims the nation is in a crisis, allowing him to employ executive privilege to preserve the safety of the country.

The President then classifies the journalist as an enemy combatant, accusing him of being involved in terrorist plots (perhaps even fabricating the accusation out of whole cloth or basing it on the flimsiest, cherry-picked evidence).

The President then has the journalist sent to Gitmo for the rest of his life, without recourse to counsel or to a trial or even to communication with his family.

Now...that seems implausible to me, mainly because I can't bring myself to believe it would happen in the country that I love. But as I consider that hypothetical case, isn't every step of that exactly what the President has been arguing that he has the power to do?

Basically, to declare by Executive privilege that someone is an enemy combatant and then to send someone so classified into solitary coonfinement forever? Without even allowing them a trial in which they might contest their classification as an enemy combatant?

That sounds like the privilege that's being championed here. And it doesn't sound right at all.
posted by darkstar at 6:40 PM on November 29, 2005


Another thing.

The Constitution of the United States does not, surely, serve as Supreme Law for folks who are citizens of other countries.

However, doesn't it espouse what we hold dearly as those values which are ascribed, and rightly so, to civilized Man? Is it not only a foundational legal document for our country, but is it not also a declaration of what we consider to be minimal, "unalienable" rights for all people, whether they are citizens of our country or not?

If this is so, then it may be that one can craftily skirt around the strictly legal requirement to extend these considerations to non-citizens, but surely men and women of moral behavior who embrace the ideals upon which the Constitution was based (and which are clearly reflected therein) must also extend those considerations to people even when they are not legally required to do so.

Thus, I find the distinction between citizen and non-citizen in parsing appropriate moral treatment to be rather distasteful and hypocritical. Our country's moral foundatons, just like human rights themselves, should not depend upon a piece of paper, or a law, or a jurisdiction.
posted by darkstar at 6:54 PM on November 29, 2005


First off, I find the insulting tone of many posters towards dios shameful and infuriating. It's a credit to him that he could stand it as long as he did. I believe he is wrong, very wrong, but if he is arguing his points in an intelligent fashion, and not slinging mud (like some frequent trolls one-line posters who need not be named here), then we should treat him with at least as much respect as he treats us. This is a public forum, read by thousands of people every day, and which will be archived for years, if not decades to come. Let's try and remember that before we decide to make asses of ourselves in front of the entire world.

As for dios' mention of ex parte Milligan, it would do us well to examine what the text of that decision actually says:
But it is insisted that Milligan was a prisoner of war, and therefore excluded from the privileges of the statute. It is not easy to see how he can be treated as a prisoner of war when he lived in Indiana for the past twenty years, was arrested there, and had not been, during the late troubles, a resident of any of the states in rebellion. If in Indiana he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana; but, when tried for the offence, he cannot plead the rights of war, for he was not engaged in legal acts of hostility against the government, and only such persons, when captured, are prisoners of war. If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties?
and also:
Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a necessity in one state, when, in another, it would be 'mere lawless violence.'
The courts were open and in the proper and unobstructed exercise of their jurisdiction in Chicago in 2002. Unobstructed, that is, except by the executive branch of the federal government itself. Even the dissent in Milligan only defends the right of Congress to establish martial law when ordinary civilian courts become inadequate to ensure public safety; that defense rests on Congress' power to raise armies and navies, to regulate those forces, and to declare war, none of which are powers that the President shares. That is, the dissenters contemplated the establishment of martial rule through Congressional statute, not by executive fiat. So even in its dissent, Milligan does not justify this administration's grossly unjust, illegal, and unilateral actions.
posted by skoosh at 2:57 AM on November 30, 2005


Dios is a twat.

And he ain't that smart a lawyer on top of it.
posted by bardic at 7:11 AM on November 30, 2005


I don't think that's appropriate, bardic, but I have noticed that he'll only participate in a thread for a few hours, and after such time, he'll never mention it or post in it again, especially if he's been asked difficult questions. Skoosh has no chance of being responded to; in fact, if dios comes back, he'll simply grab your "twat" comment and hang onto it for dear life.
posted by Optimus Chyme at 8:37 AM on November 30, 2005


Our country's moral foundatons, just like human rights themselves, should not depend upon a piece of paper, or a law, or a jurisdiction.

The trouble is, without those things, "might makes right" tends to have its way more often than not.

Don't get me wrong - there are plenty of decent people who don't need laws or papers in order to treat other human beings with respect and avoid infringing their rights. The trouble is with all the thugs who will perform no end of abuses unless checked by law backed with the threat of violence from the State. It is against them that we need protection. And of course when we "elect" thugs and give them the power of the State, we get the sort of madness we see today. Expect more, I'm afraid. :(
posted by beth at 8:37 AM on November 30, 2005


I find the insulting tone of many posters towards dios shameful and infuriating. It's a credit to him that he could stand it as long as he did. I believe he is wrong, very wrong, but if he is arguing his points in an intelligent fashion, and not slinging mud (like some frequent trolls one-line posters who need not be named here), then we should treat him with at least as much respect as he treats us.

Hear, hear.
posted by homunculus at 11:24 AM on November 30, 2005


I have noticed that he'll only participate in a thread for a few hours, and after such time, he'll never mention it or post in it again, especially if he's been asked difficult questions.
posted by Optimus Chyme at 8:37 AM PST on November 30


You are as astute as you are handsome, Optimus.
posted by Optimus Chyme at 1:57 PM on November 30, 2005


I have noticed that he'll only participate in a thread for a few hours, and after such time, he'll never mention it or post in it again, especially if he's been asked difficult questions.
posted by Optimus Chyme at 8:37 AM PST on November 30

You are as astute as you are handsome, Optimus.
posted by Optimus Chyme

*checks to see if slipped into bizzarro universe*
posted by Smedleyman at 1:17 PM on December 1, 2005




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