{"id":3232,"date":"2003-01-09T07:42:52","date_gmt":"2003-01-09T12:42:52","guid":{"rendered":"http:\/\/hill-kleerup.org\/blog\/wp\/?p=3232"},"modified":"2003-01-09T07:42:52","modified_gmt":"2003-01-09T12:42:52","slug":"field_of_battle","status":"publish","type":"post","link":"https:\/\/hill-kleerup.org\/blog\/2003\/01\/09\/field_of_battle.html","title":{"rendered":"Field of battle"},"content":{"rendered":"

There are two important cases running through the Federal courts regarding indefinite detention of US citizens labelled by the US Government as “enemy combatants.” These are pretty important cases, since there is a serious concern that the ability of the government to indefinitely detain, without counsel or judicial review, an individual simply by calling them an “enemy combatant” is subject to terrible abuse.<\/p>\n

One of these cases, Hamdi<\/i>, just got an appeals court decision that favored the US government position — in this case, that there is no inherent judicial oversight for the military detention of a US citizen captured “in a zone of active combat in a foreign theater of conflict.”<\/p>\n

Because it is undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict, we hold that the submitted declaration [broadly outlining the executive branch’s findings and conclusions about Hamdi] is a sufficient basis upon which to conclude that the Commander in Chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the United States Constitution. No further factual inquiry is necessary or proper, and we remand the case with directions to dismiss the petition.<\/p>\n

While this is potentially open to abuse, the basics of it are actually pretty reasonable. If you’re fighting in a combat zone on the opposite site, and are captured by US troops, you can expect to cool your heels indefinitely in a military prison like any other POW.<\/p>\n

A good summary of the court’s findings can be found here<\/a> (and above).<\/p>\n

The court did not <\/i>address the issues that will come up in the Padilla<\/i> case. In fact, they intentionally avoided it.<\/p>\n

We have no occasion . . . to address the designation as an enemy combatant of an American citizen captured on American soil or the role that counsel might play in such a proceeding. We shall, in fact, go no further in this case than the specific context before us — that of the undisputed detention of a citizen during a combat operation undertaken in a foreign country and a determination by the executive that the citizen was allied with enemy forces.<\/p>\n

Padilla was picked up in the US, accused of being a terrorist planning an attack, and thus an “enemy combatant,” and slapped into a military brig indefinitely like a POW.<\/p>\n

The Padilla <\/i>case is far more disturbing. The Executive Branch claims that a determination of “enemy combatant” can be made by the President about any <\/i>US citizen, in any <\/i>circumstance, and that determination removes from them any protection of due process, counsel, etc.<\/p>\n

In other words, if the President took it into his head to name me <\/i>as an “enemy combatant,” I could be thrown in the cooler forever, with no lawyer, no right of habeus corpus<\/i>, nothing.<\/p>\n

We have seen that unfettered domestic police power (e.g., the FBI in the 60s) can lead to significant human rights abuses. “Enemies lists” and “lists of subversives” are prone to not only error, but malice.<\/p>\n

It seems to me that if the Administration view on Padilla <\/i>is upheld, it is a terrible, terrible loophole that, sooner or later, will be abused, possibly widely abused. That’s independent of whether Padilla himself is guilty as sin or innocent as pure-driven snow. It’s even independent of whether you think the current Administration is the Antichrist Incarnate or the Noble Defenders of Virtue. <\/p>\n

In the words of Lyndon Johnson, himself no piker as to law-making or executive power:<\/p>\n

You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered.<\/p>\n

I don’t have a big problem with the Hamdi <\/i>ruling, as stated. I have a much bigger problem if the same ruling is made on Padilla<\/i>.<\/p>\n","protected":false},"excerpt":{"rendered":"

There are two important cases running through the Federal courts regarding indefinite detention of US citizens labelled by the US Government as “enemy combatants.” These are pretty important cases, since…<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_seopress_titles_title":"","_seopress_titles_desc":"","_seopress_robots_index":"","_seopress_robots_follow":"","_seopress_robots_imageindex":"","_seopress_robots_snippet":"","_seopress_robots_primary_cat":"","_seopress_robots_breadcrumbs":"","_seopress_robots_freeze_modified_date":"","_seopress_robots_custom_modified_date":"","_seopress_robots_canonical":"","_seopress_social_fb_title":"","_seopress_social_fb_desc":"","_seopress_social_fb_img":"","_seopress_social_fb_img_attachment_id":0,"_seopress_social_fb_img_width":0,"_seopress_social_fb_img_height":0,"_seopress_social_twitter_title":"","_seopress_social_twitter_desc":"","_seopress_social_twitter_img":"","_seopress_social_twitter_img_attachment_id":0,"_seopress_social_twitter_img_width":0,"_seopress_social_twitter_img_height":0,"_seopress_redirections_value":"","_seopress_redirections_enabled":"","_seopress_redirections_enabled_regex":"","_seopress_redirections_logged_status":"","_seopress_redirections_param":"","_seopress_redirections_type":0,"_seopress_analysis_target_kw":"","_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[17],"tags":[],"class_list":["post-3232","post","type-post","status-publish","format-standard","hentry","category-homeland-security"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack-related-posts":[{"id":5926,"url":"https:\/\/hill-kleerup.org\/blog\/2004\/06\/28\/rulings.html","url_meta":{"origin":3232,"position":0},"title":"Rulings","author":"***Dave","date":"Mon 28-Jun-04 11:14am","format":false,"excerpt":"Big flurry of rulings on various Ostensibly Bad People Thrown In Prison cases from the Supreme Court. General conclusion by the Supremes: detention may be okay, detention without recourse to...","rel":"","context":"In "Geopolitical Brouhaha"","block_context":{"text":"Geopolitical Brouhaha","link":"https:\/\/hill-kleerup.org\/blog\/category\/geopolitical-brouhaha"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":2481,"url":"https:\/\/hill-kleerup.org\/blog\/2002\/06\/17\/detention.html","url_meta":{"origin":3232,"position":1},"title":"Detention","author":"***Dave","date":"Mon 17-Jun-02 8:52am","format":false,"excerpt":"Here's a good op-ed piece by Laurence Tribe on why detention of \"enemy combatants\" is okay -- with proper oversight. For our government to retain its legitimacy, its conduct must...","rel":"","context":"In "Politics & Law"","block_context":{"text":"Politics & Law","link":"https:\/\/hill-kleerup.org\/blog\/category\/politics-law"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":9850,"url":"https:\/\/hill-kleerup.org\/blog\/2006\/10\/20\/sigh_7.html","url_meta":{"origin":3232,"position":2},"title":"*SIGH*","author":"***Dave","date":"Fri 20-Oct-06 10:03am","format":false,"excerpt":"Words fail me. Moving quickly to implement the bill signed by President Bush this week that authorizes military trials of enemy combatants, the administration has formally notified the U.S. District...","rel":"","context":"In "Homeland Security"","block_context":{"text":"Homeland Security","link":"https:\/\/hill-kleerup.org\/blog\/category\/politics-law\/homeland-security"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":4849,"url":"https:\/\/hill-kleerup.org\/blog\/2003\/12\/18\/due_process.html","url_meta":{"origin":3232,"position":3},"title":"Due process","author":"***Dave","date":"Thu 18-Dec-03 11:52am","format":false,"excerpt":"The 2nd Circuit Court of Appeals has decided that Jose Padilla cannot be detained as an enemy combatant (previous commentary here and here). The court decided that an American citizen,...","rel":"","context":"In "Homeland Security"","block_context":{"text":"Homeland Security","link":"https:\/\/hill-kleerup.org\/blog\/category\/politics-law\/homeland-security"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":13311,"url":"https:\/\/hill-kleerup.org\/blog\/2009\/01\/26\/once_again_incompetence_t.html","url_meta":{"origin":3232,"position":4},"title":"Once again, incompetence triumphs over justice","author":"***Dave","date":"Mon 26-Jan-09 5:14am","format":false,"excerpt":"The indefinite internment of suspected enemy combatants and terrorists at Guantanamo Bay was meant to be an aggressive, effective means of isolating, interrogating, and prosecuting particularly dangerous prisoners. 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