Saturday, September 24, 2005

Enemy Combatants

The Bill of Rights is still good law

Jose Padilla remains classified as an enemy combatant, in custody in a naval brig in South Carolina. To hear some of the analysts and amicus curiae, it may seem that the same fate hangs over every law-abiding American citizen, just as in George Orwell's 1984. George W. Bush stars as Little Brother. It may be true that the president, the brains of his operation (Dick Cheney) and the court fool (Donald Rumsfeld) aspire to hold such power. But so far, the federal courts have not conceded it to them. It is the specific details known about Jose Padilla that makes him, in particular, an enemy combatant.

There is probably nobody in the United States (with the exception of potential sleeper cells working for al Qaeda) who would want Padilla walking the streets a free man. But there has been a lot of debate over whether he should be tried in the criminal courts, or kept in military custody by order of the president. For now, the United States Court of Appeals for the Fourth Circuit has ruled that the president has the authority to treat Padilla as an enemy combatant. Padilla v. Hanft .

The big worry about this case is, how much power does a president really have to detain U.S. citizens arrested on U.S. soil as "enemy combatants" and hold them indefinitely without trial? Can the president decree that anyone he wants to put away is "an enemy combatant" and therefore deny that person access to the courts, to an attorney, to contact with family? What if the president makes a mistake? Is there no review process for whether a person is rightly classified as an enemy combatant? Are they locked in a nightmare adapted from a Franz Kafka novel?

What if the president tries this against people on a politically-motivated "enemies list"? There have been such lists in American history. Ask Charles Colson – he knows all about the Nixon administration's enemies list. It was only by the grace of God, and the courage of an FBI administrator who turned in the conspirators, that Nixon was obliged to leave office, and Colson went to prison.

But those who are worried about the civil liberties implications can exhale, and inhale again. The meaning of a ruling like this lies in the details, not in the headlines and TV sound bytes. The Fourth Circuit court did find Padilla's enemy combatant status constitutional. But the decision was on narrow and precise grounds. Further, it is clear that any American citizen similarly detained does have the right to go to court to determine whether the president acted properly in classifying an American citizen as an enemy combatant. In the absence of direct collaboration with the military arm of a declared enemy, no citizen may be so designated.

First, the court relied on specific facts. The decision did not rest on anything so nebulous as an indefinite "war on terror." According to the record before the appellate panel, Padilla "took up arms against the United States" in Afghanistan, "was recruited, trained, funded, and equipped by al Qaeda leaders" and returned to the United States with a specific mission to "continue prosecution of the war in the United States by blowing up apartment buildings in this country." Accordingly, the court referred to the World War II era decision, Ex parte Quirin, 317 U.S. 1 (1942). This case concerned a United States citizen, who entered the country with orders from the Nazis to blow up domestic war facilities. Like Padilla, he was captured before he could execute those orders. The Supreme Court allowed a military trial for Haupt, the citizen referred to, because "citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of . . . the law of war."

IF (and it is a big if considering who is running the executive branch of our government) – IF these specific facts are required by the courts to approve classification of American citizens, arrested on American soil, as enemy combatants, then this decision is not the end of the Bill of Rights. The courts have not, as yet, accepted the notion that any citizen, arrested on any theory of law or evidence, in any American city, may be declared an "enemy combatant" at the whim of the president. The sole purpose cannot be simply to avoid the inconvenience of a criminal trial, a legal defense, and a burden of proof.

This hopeful reading of the decision is fortified by the panel's discussion of a civil-war era case, Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). The Supreme court ruled that Milligan could not be subjected to military trial for his activity as part of an anti-union secret society, since his crimes had no connection to the Confederate army. "No usage of war could sanction a military trial... for any offence whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power . . ."). If Milligan remains good law, and the Fourth Circuit court decision accepts that it is, then only those associated with the armed forces of a declared enemy, with which the United States is at war, can be classified as enemy combatants.

It is common knowledge that the Confederate States of America were an illegal armed conspiracy against the United States, which raised an army to futher its subversive purposes. (There were at least as many citizens in the confederate states, who remained loyal to the United States of America, as there were citizens in states that never joined the Confederacy, who nonetheless sympathized with the rebellion). The CSA was a far more serious threat than al Qaeda has ever been. Milligan was subject to criminal trial in a civilian court for covert activities in support of the Confederacy. Because he was not carrying out military missions, in cooperation with the CSA's military forces, he was not subect to military trial. In modern terms, he could not be classified as an enemy combatant – Congress had and has no authority to grant such a power to the president. As the Court in Quirin explained, the Milligan Court’s reasoning had particular reference to the facts before it, namely, that Milligan was not "a part of or associated with the armed forces of the enemy”" The Fourth Circuit panel also examined Ex parte Endo, 323 U.S. 283 (1944), reviewing the detention of a "concededly loyal" citizen, not an enemy combatant. The Supreme Court concluded that detaining Endo was not within the powers of the president or congress, because detention of a concededly loyal citizen bore no relation to the prevention of espionage and sabotage. The Fourth Circuit court observed that Padilla’s detention, by contrast, emphatically does further the purpose "to prevent any future acts of international terrorism against the United States."

Constitutional law, as applied by the federal courts at this time, accepts that an American citizen who has direct contact with an enemy military force, and accepts combat or sabotage assignments from that military, may be detained as an enemy combatant. The president has no authority to designate an American citizen as an "enemy combatant" for any other reason. Anyone so designated has a well-established right to appeal to the courts, to challenge the factual and legal basis for detaining them.

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