Wartime Powers

The Supreme Court considers the proper reach of executive authority.

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The Supreme Court today considers the case of Jose Padilla, the alleged “dirty bomber” arrested in May of 2002 and held ever since, without charge and without the right to see a lawyer, in a naval brig in South Carolina. The Bush administration argues that Padilla, who is a U.S. citizen, is an “enemy combatant” and as such forfeits key constitutional rights — such as the right to due process. The court’s ruling in his case — as in those of U.S. citizen Yaser Esam Hamdi and the Guantanamo detainees, also under consideration this month — will go a long way toward defining the parameters of executive power in the open-ended war on terror.

Padilla was arrested coming into the U.S. through Chicago O’Hare airport. At that time, says the New York Times, Padilla had been living outside the U.S., in Egypt and Yemen, for almost four years. John Ashcroft claimed that Padilla was “exploring a plan to build and explode a radiological dispersion device, or ‘dirty bomb.'”

What the Attorney General didn’t mention was that the evidence against Padilla came from informants described by Pentagon lawyer Michael Mobbs as less than “completely candid,” and whose information “remain[ed] uncorroborated and may be part of an effort to mislead or confuse U.S. officials.” And, according to Deputy Secretary of Defense Paul Wolfowitz, there was certainly no specific plan of attack though, in press conferences following the arrest, Wolfowitz noted that Padilla did appear to have “some knowledge of the DC area.”

Also before the court is the case of Yaser Esam Hamdi, also being held in North Carolina as an “enemy combatant.” Hamdi was captured in Afghanistan fighting for the Taliban, in light of which government lawyers argue that Hamdi had forfeited his right to habeas corpus (which requires that law enforcement officials appear in court with a prisoner to help the judge determine whether the prisoner is lawfully in prison or jail). This view was upheld by a federal appeals court last year but is being challenged by legal and civil rights groups. In a brief written on behalf of Hamdi, Cato Institute lawyers called the government’s argument a “shocking assertion that strikes at the heart of habeas corpus.”

The White House claims that both Padilla’s and Hamdi’s arrests are justified in the context of the “war on terror.” As Commander and Chief, the President has the right to imprison citizens if they pose a threat to national security. According to Theodore Olson, Bush’s solicitor general, quoted in the Village Voice, “the Constitution leaves these core political questions to the president … The courts have no jurisdiction … to evaluate or second-guess the conduct of the president and the military.” In court documents Olson adds,

“The authority of the Commander in Chief to engage and defeat the enemy encompasses the capture and detention of enemy combatants wherever found, including within the nation’s borders.”

In an amicus brief written in support of the government’s position, lawyers from the American Center of Law and Justice, a public interest law firm, operate from the premise that the U.S. is at war: “The Congress, agreeing with the President that the [9/11] attacks constituted acts of war, enacted legislation authorizing the President to use military force to respond to the attacks. … This Congressional action constituted a de jure authorization of war and ratified the President’s actions.” As such,

“Pursuant to the law of war, enemy combatants—irrespective of their nationality—may be detained for the duration of hostilities without being charged with any crimes and without access to counsel to challenge the legality of their detention.”

Padilla’s lawyers and civil rights experts vehemently disagree: “to jail an American citizen indefinitely on one person’s unreviewable declaration that he is the ‘enemy’ —even if that person is the president of the United States of America—is fundamentally in opposition to his rights as an American,” says John W. Whitehead, president of the conservative Rutherford Institute, which has also submitted an amicus brief in support of Padilla. A grand total of 23 amicus briefs have been written in favor of Padilla, only five supporting the administration.

According to the American Civil Liberties Union, Padilla’s treatment violates two fundamental principles of U.S. law. “The first principle is so basic that the need to restate it only highlights the radical nature of the government’s position in this case: individuals in this country cannot be imprisoned without due process of law. … If [the government] wished to detain him … he is entitled to be formally charged, and tried before a jury with the assistance of council.” Second, the principle that “the government may not subject civilians to military trials if the civilian courts are open and functioning.”

Concerns have also been raised over the term “enemy combatant” itself. Officially,

“enemy combatants are “[c]itizens who associate themselves with the military arm of the

However, according to Global Rights, an international human rights legal group, the term “enemy combatant” is an “invented classification” that “is both undefined and unrecognized at law.” In their amicus brief Global Rights lawyers go on to say that, “the government is engaging in the very practice of arbitrary detention that it has condemned worldwide for decades.”

Defining Padilla as an “enemy combatant,” has allowed the White House to proceed, at least up to now, free of what administration lawyers have called “second-guessing” and “micromanaging” by the federal courts. This was not the situation in the trial of John Walker Lindh, another American citizen arrested in Afghanistan amongst a group of his fellow Taliban fighters. Lindh was never defined as an “enemy combatant” and thus managed to avoid the ‘legal limbo’ suffered by Padilla; Lindh was properly charged, represented and eventually sentenced to 20 years in jail.

Padilla, by contrast, was shipped from Chicago, to New York, where he was given a court-appointed lawyer, Donna Newman, who is still a member of his defense team. “When I first met him, he was brought in, in a ‘three-piece-suit’ – shackles, leg irons and a metal belt” said Newman when interviewed by New York Times reporter Deborah Sontag, “I was handed an affidavit alleging that he was involved in a plot, according to informants, and saying the informants were unreliable.” Dale Watson, formerly the FBI’s executive assistant director for counterterrorism and also interviewed by the Times, recalled that, “My recollection was that this was a rather weak case. There was some information, but it needed a lot more work on the investigative side to flush out all the details.”

According to the Times report, Newman was allowed to meet with Padilla several times before Padilla was shipped, unexpectedly, to North Carolina, where he stayed, incommunicado for the next year and a half. During this time, the legal battle of Padilla’s fate continued. In 2003 a federal judge agreed that the government had the right to detain “enemy combatants” but requested that Padilla be allowed to see a lawyer. This demand was refused for the reason that those in the Defense Department felt that access to a lawyer would make Padilla less likely to cooperate; “Only after such time as Padilla has perceived that help is not on the way can the U.S. reasonably expect to obtain all possible intelligence information from Padilla” wrote Vice Admiral Lowell E. Jacoby in a declaration produced by the administration in response to the judge’s request.

Later that year, the Second Circuit appeals court, in a 2-to-1 decision, demanded that Padilla be freed within 30 days unless he was formally charged with a crime. Following this decision, Padilla was visited by the Red Cross and allowed to see his lawyers, who were by that time, appealing to the Supreme Court on Padilla’s behalf.

It’s hard to overstate the importance of the Padilla and Hamdi cases. The Supreme Court is being asked not only to define the limits of executive authority, but to protect the nation’s founding values. The Founding Fathers, in the Declaration of Independence, ranked civil above military authority and criticized the King of England for “rendering the military independent of and superior to Civil Power.” As American citizens, regardless of there crimes, Padilla and Hamdi both deserve due process – after all, if we are at war, isn’t this one of the most fundamental rights we are trying to defend?

“The greatest danger to the United States is not catastrophic attack, as awful as it would be. The greatest danger is our reaction:” writes University of North Carolina at Chapel Hill history professor Richard H. Kohn, a former Chief of Air Force History for the Air Force, in the St. Louis Post Dispatch. “Believing ourselves in a war — something temporary — we rebalance liberty and security in a way that becomes permanent. Suddenly we panic, and the judiciary, in a war frame of mind, stands aside.”


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