[Conor Friedersdorf]
This excerpt needs no introduction, for it is terrifying no matter the context:
During arguments last year, government lawyers said the courts should give great deference to the president when the nation is at war."What you assert is the power of the military to seize a person in the United States, including an American citizen, on suspicion of being an enemy combatant?" Judge William B. Traxler asked.
"Yes, your honor," Justice Department lawyer Gregory Garre replied.
And get this:
The court seemed torn.
One judge questioned why there was such anxiety over the policy. After all, there have been no mass roundups of citizens and no indications the White House is coming for innocent Americans next.
Ah, so once there are mass roundups of innocent American citizens who are held as enemy combatants, then we can get anxious.
(H/T Tom)
It's obvious the military can detain even a U.S. citizen it captured on U.S. soil as an enemy combatant. Otherwise, every POW camp run by the United States during the Civil War would have been illegal. It is similarly pretty clear it must have that power; the normal justice system cannot process the flood of POWs from such circumstances.
The question then becomes, how do you prevent abuse of that obviously necessary power? The logical answer is the writ of habeas corpus. Once issued, the person must be produced before the judge, who then can decide for himself whether the person qualifies as an enemy combatant. If he is, he goes back to military detention; if not, the government has to charge him criminally and hold him in the normal criminal system, or free him.
Congress has suspended the writ? Challenge in court over whether the suspension met the Constitutional requirements ("when in cases of rebellion or invasion, the public safety may require it"). The same judicial branch which issues the writs being the branch which decide if the suspension meets Constitutional guidelines.
Ta-da. Necessary power of the military reconciled with checks and balances, all through the Great Writ.
(Now, it's possible the Executive Branch might ignore the courts. However, in circumstances where the Executive will do so, it will just as readily ignore a court ruling saying that it cannot detain enemy combatants, and the question is one of armed rebellion or not against a tyrant. It would be nice if the judges authorized private possession of military-grade infantry weapons for such an eventuality, now, wouldn't it?)
"The question then becomes, how do you prevent abuse of that obviously necessary power? The logical answer is the writ of habeas corpus."
First, the administration argued that this option should not be allowed in the case of alleged enemy combatants. They were defeated, but I believe only in the case of American citizens.
Denying the right of habeas corpus to non-citizens effectively eliminates the right for citizens. If we are assuming a government that wishes to be abusive, they can declare you are not a citizen. Without habeas, they can prevent you from proving citizenship.
Consider this:
The Supreme court rules non-citizens do not have the right of habeas corpus. The next day, the justices are seized as enemy combatants, determined not to be citizens, and held indefinitely in solitary confinement. When shown birth certificates or other documents, the government claims that they do not pertain to the individual held - that they are holding 9 people named John Smith who are not supreme court justices. Since they are not citizens, they don't need to be produced. They can not be shown to be who they really are.
How are they freed?
How would habeas corpus conflict with the legality of POW camps during the Civil War? All it does is require the government to show that it has cause for detention -- which, in the case of insurrection, should not be all that difficult.
Maintaining that the government does not have to bother with making any kind of a case against an "enemy combatant" -- the relevant part is "does not have to bother". What the government is saying is that it should not have to take the trouble to have actual, you know, evidence on which to base it's detention.
For those who hold this position, consider the following scenario: It's February 2009. The government detains Richard Cheney and George W. Bush as "enemy combatants." Following your position, there is absolutely nothing wrong with doing so. And, still following your logic, there is no reason why the government should have to justify their designation as "enemy combatants." Ditto if it was you. Feels different when the shoe is on the other foot, doesn't it?
Take a deep breath, it helps prevent panic attacks.
Some people have too much time and overactive imaginations.
You want Bush? Impeach him, now, please. I can guarantee that would cost the Democrats control of Congress for the remainder of my lifetime.
Arrest him for being an enemy combatant? I thought he and Cheney were chicken hawks? Make up your minds. Anyone who tried would be laughed out of office.
I am more likely to be struck and killed by a meteor from space than I am of being detained as an enemy combatant. Meanwhile, several of the former Gitmo detainees we released have been killed attacking our troops. There are mistakes being made. They are not the ones you are complaining about.
"Ah, so once there are mass roundups of innocent American citizens who are held as enemy combatants, then we can get anxious."
Yes. Seriously, yes.
Given that there haven't been mass round-ups, this means either (or both) that the power is not being aboused, or this power isn't needed. In any case it hasn't proven itself to be a problem yet.
Yes, the administration is taking a ridiculous maximalist position, arguing that habeas corpus doesn't apply. But the other side is also taking a ridiculous maximalist position, arguing that nobody captured in the U.S. can be detained as an enemy combatant, period.
The correct result is to reject both sides, and allow detention of enemy combatants in the U.S. under the normal captured-enemy-combatant rules, with appeal to habeas corpus to avoid abuses. Circle squared.
Similarly, under the Obama/Clinton administration, and Democratic control of both houses of Congress, we may see a federal hate speech law with real teeth passed. Assuming it's only used, in its first few years, to send one particularly unpleasant right wing talk radio host to jail, would the same argument hold? We shouldn't worry about that law until a larger number of people get sent to jail for hate speech?
Would anyone like to predict what fraction of people who think what happened to Padilla was okay will also be supportive of that law?