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.

Beating the Bushes

...after the hurricane

George W. Bush has a good heart. He doesn't hate anyone. He doesn't callously watch disasters on the horizon and consign thousands of people to death, evacuation, separation, starvation. When he flies into a disaster area and hugs a survivor, he means it sincerely. Unfortunately, the road to hell is paved with good intentions. In the case of George W. Bush, the good intentions are utterly disconnected from the real world. His entire presidency has resembled a child locked overnight in a candy store, or a teen-ager playing with a video game. He hasn't a clue why bad things happen to good people. He has even less clue what he should do about it. But he wants to always look like a man of action, whether he's doing any good for anyone or not.

He has always down-played obstacles and difficulties. That can be a valuable attribute of a commander, but only when the commander has the strategic skill to win, the persistence to make any effort required, never asking anyone to perform any job they would not or could not do themselves. Most of all, a successful commander in the face of daunting obstacles must know that the obstacles are REAL, and know HOW to remove them. That is what justifies confidence. That kind of commander is justified by their success, not by their breezy optimism. Commanders who know the price that must be paid, and pay it, are winners. George W. Bush is a very consistent loser. He never expects to pay any price for any reason.

He was raised on movies, and he appears to honestly believe that a good one-liner is as good as getting the job done. That is why he thought it was OK to put political cronies in charge of FEMA. Real life is not a movie. He promised Iraq would be quick and painless. Now that he has been proven wrong, he talks of making sacrifices and staying the course for a long, hard struggle. Nobody who cheered our initial incursion even thought about a long hard struggle. They cheered because it seemed cheap and easy. Because George W. Bush honestly believed it would be cheap and easy, he made no preparation for obvious military contingencies.

When asked later why he didn't commit the forces necessary to crush the possibility of an insurgency, he whined "I thought they would stand up and fight." He never considered they might run away, to fight another day. That's not how it was in the movies. Veterans return from rotation in reserve units have expressed great frustration with American civilian life. Soldiers are fighting and dying and suffering, but we haven't missed a cup of designer coffee. Our troops are committed to a seemingly endless struggle, but the civilians are deciding which expensive new form of TV to buy this year. That is precisely the war our president promised our civilians, and committed our troops to.

When it came to preparations for Katrina, George W. Bush's entire administration was ready to do everything on the cheap. First, don't pay for preventive measures to strengthen levees and prevent disaster – it is more important to cut taxes. Second, don't pay for preventive measures to strengthen levees and prevent disaster – it is more important to keep fighting in Iraq. Third, be optimistic that the damage from this hurricane won't be too bad – because we don't want to spend money. Fourth, don't rush supplies and trained personnel into the area, because we don't want to spend money.

Millions for spin control, but not one cent for security...

Now that the resulting mess has been thoroughly displayed to the entire population of America, the president did two things right. He admitted that the federal response was unacceptable, and he openly acknowledged that the buck stops at his desk. Then he proceeded to demonstrate the financial acumen that required his daddy's friends to save him from bankruptcy every time he went into any kind of business. We didn't spend $14 billion for flood control between 2000 and 2005. Now we are going to spend over $200 billion for clean-up and restoration. Where will that money come from? The president has no clue, no clue at all. He hasn't given it any thought. He just knows that he must write a blank check in order to restore some credibility to this pathetic administration.

Should we raise taxes? Or rather, should we temporarily roll back some of the tax cuts he put in four years ago, long enough to pay for the recovery? Oh no, those tax cuts were a signature of his administration. They were his biggest pay back to the cabal that turned this incompetent fool into "the front-runner" for the Republican nomination for president. He can't touch the tax cuts. So where will the money come from? "We'll have to cut other programs." Why didn't he mention which programs? Probably because he has no clue where any of the money for any program is going now. Also because he hadn't given any thought to making cuts anywhere to pay for the recovery. Also because any program he might put on the line would ignite loud protests. His real policy, as always, is to do nothing and hope it will somehow all work out in the end.

It gets even worse. When pressed on how to pay for the recovery, the president actually said "We'll have to cut unnecessary spending." A cute phrase. What unnecessary spending would that be? Why has he been spending our money unnecessarily in the first place? Last year, he was cutting money to prepare for natural disasters from the FEMA budget as "unnecessary spending." A fiscally prudent policy would be to spend what is necessary, no more and no less, in good times. In times of disaster, or war, we would of course need to increase taxes temporarily to pay for the urgently necessary additional spending. Or, a fiscally prudent government might set aside reserves for emergencies. George W. Bush has done none of the above. He doesn't believe in reserves. Every time he sees one, he gives it away to his friends. Save for a rainy day? It's always sunny at the Crawford Ranch! He is demonstrating once again that he is not in charge of anything. His evident thinking comes down to What, me worry?

In the meantime, we are mortgaging the credit of the United States of America to the banks of China, Korea, Japan, and anyone else thrifty enough to collect interest on our profligate fiscal policy. Does anyone catch the irony? For years, Republicans have been charging Democrats with "tax and spend." As soon as the Republican Party gets control of the White House and both houses of congress at the same time, they borrow our nation into the biggest annual deficits, the largest national debt, in our entire history. At the end of Bill Clinton's administration, we were on the verge of paying off the national debt for the first time in living memory. George W. Bush has treated the U.S. Treasury like a credit card to be maxed out, with no thought of how to earn the money to repay it.

The administration of George W. Bush did not create Hurricane Katrina. They may actually have turned it from a Category 1 into a Category 5 by ignoring global warming. The data on climate is too complex to ever tell for sure. It would have been a good idea to be cautious, to take preventive measures, rather than laugh it off until the evidence becomes overwhelming. The waters of the Gulf of Mexico were 2-3 degrees above normal last month. That is enough of a difference to fuel a powerful hurricane.

The administration of George W. Bush did create the horrendous aftermath of the hurricane, by every policy it has put into place, or allowed to wither away, in the past five years. Hmmm... that sounds almost Marxist. George W. Bush tried to usher in the withering away of the state... and when we needed our government to come through for us, and lead in a program only a federal-sized government can fully and rapidly handle, it wasn't there.

What are we doing now? FEMA orders truckloads of ice, in order to appear to be doing something right, sends trucks all over the country because FEMA doesn't know where to unload it. The cost for three days of this is running $9000 per truck. FEMA says in the rush to meet needs, it ordered too much ice, and now it is going to store it for future disasters??? Store ICE for future disasters? Then FEMA orders more ice, to be trucked to Louisiana and out to Maryland by way of Georgia. No doubt those responsible will be angrily denounced by the president. But if he were doing his job with any competence, they would have been doing theirs.

Well, they are spending money, and they are making speeches, but they are not doing the hard work we pay them to do. They are not getting our money's worth TO the people who need help. Neither are they sorting out HOW to pay for what everyone agrees we MUST do, if only our government were DOING what we know they must. But their priority is not to help. Their priority is to make themselves look good. They need to be able to talk about what they are doing, or at least how much they are spending. Throwing money at problems? Is this a REPUBLICAN administration?

Was government policy after Katrina racist? Not directly. George W. Bush would not go out of his way to consign people to hell on earth just because they have dark complexions. He really appreciates Condoleeza Rice and Clarence Thomas. He genuinely wants the praise of those black preachers who find homosexuality and abortion more pressing concerns than homelessness and hunger. On the other hand, George W. Bush's administration is completely callous about people who don't have money. (Most of the black preachers singing the praises of Bush DO have money, as well as palatial homes and luxury cars). For many reasons, some of them historical, others more recent, people with dark complexions make up an overwhelming portion of the people in New Orleans who had little or no money, even before the hurricane. The effect is exactly the same as if the administration intended to be racist. But the key is not, play the race card. The key is, FOLLOW THE MONEY.

George W. Bush has never successfully administered a business, he has never accomplished anything in public office worth talking about. He has a gift for gab and a sincere belief that everything is going fine, regardless of the facts. The initial and ongoing response to Hurricane Katrina are just one more symptom. True, the suffering of a million of our fellow citizens should not be used for partisan political advantage. But our suffering fellow citizens are doing to get darn little benefit, for the $200 billion our president plans to spend, if we don't fix the political atmosphere that has gripped Washington for the past five years.

Constitutional Rights

Keep It Simple Citizen

During senate hearings on his nomination for chief justice of the Supreme Court, a question from Senator Joseph Biden led John Roberts to make a very appropriate reply. He pointed out that federal judges apply the law as it is, not in accordance with campaign promises made in order to solicit support for their confirmation. That is probably not what the pressure groups making the most enthusiastic noise about Roberts's nomination want to hear. They have always sought judges who would keep promises to themselves, rather than apply the law as it is. But it speaks well of Judge Roberts.

Our constitutional rights are sacred, and fundamental to our existence as a nation. These rights would be a lot easier to preserve if we could keep them simple. Judges do not need to wrap them up in complex language. Nor do the federal courts need to paint them in broad sweeping language. American citizens and residents would be much safer with a concise application of the obvious. Oratory may be pleasing to the winning party, but it does not make for good precedent to rely on in future cases. A few examples:

There is no constitutional right to abortion. Nor does the constitution confer a right to commit homosexual acts.

There IS a constitutional right of the people "to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." Justice Louis Brandeis expounded in 1928 that the Framers of the Constitution "conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."

We each have a well-established right to make our own medical decisions, without the government telling us what treatment we should or should not take. That is part of being secure in our persons. There are, of course, "reasonable" searches and seizures of our persons. If, in my natural state, I am inclined to smash the skull of any other person who comes my way, I may be seized, restrained, possibly even medicated, without my consent.

The Supreme Court ruling in Roe v. Wade simply established that during the first trimester of pregnancy, it is not reasonable for the state to seize the person of a pregnant woman, either to require or forbid her to choose abortion. The line of "reasonable" government coercion had to be drawn somewhere. That is where the court drew it. During the second trimester, state regulation is more reasonable. During the third trimester, state intervention, or prohibition, has only one constitutional limit: the state may not REQUIRE a woman whose life is in danger to sacrifice her own life in order to save her baby.

It is no small matter that this right equally forbids the state to require a woman to abort her pregnancy. If it is none of the government's business, it is none of the government's business. Think about that, if you hold any fear that some future paternalistic regime might decree that women deemed unfit must submit to abortion, or that fetuses deemed unfit must be aborted. That would be unconstitutional, wouldn't it?

Constitutional rights are not about what is the right, or best, or most prudent choice. Constitutional rights are about who should hold power to make a decision: the individual, or the state? We all know that either one is capable of making mistakes, and both have done so. We as a people have surrendered certain powers to the state, by written constitutions, and reserved others from the reach of any branch of government. That always arouses the anger of whoever wants to use the power of the state to accomplish some purpose, when the state has no constitutional power to act.

We each have a well-established right to be secure in our homes. In Lawrence v. Texas the Supreme Court ruled that private consenting homosexual acts are not a "reasonable" purpose for the police to enter someone's private home and arrest them. It is true that Justice Kennedy's language was much broader than necessary for this simple purpose. Spare us the oratory and flourishes, a simple statement of where the constitution forbids the state to go, and what is a "reasonable search and seizure" would be sufficient. The state remains free to regulate or prohibit homosexual acts outside the privacy of the home. For that matter, the state remains free to regulate or prohibit heterosexual acts outside the privacy of the home – although probably not in lawfully rented motel rooms. The state remains free to enter a private home to suppress adult sex with a child, whether it is homosexual or heterosexual.

There is no constitutional right to serve as a troop leader in the Boy Scouts

As everyone knows, the Supreme Court rejected the lawsuit claiming such a right. It was filed by an Eagle scout who, after graduating from high school and entering college, joined a gay student organization. The constitutional principle at stake had nothing to do with whether homosexuality is or should be a crime. It had nothing to do with whether homosexuality is sinful. The jurisdiction of the Supreme court turned on one fundamental principle: the right to freedom of association. This right, like many others currently under attack, is not explicitly stated in the federal constitution.

The First Amendment. does say that "Congress shall make no law... abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble..." The Supreme Court has ruled for over a century that these rights create a right of the people to associate for any private, peaceful, lawful purpose. Neither the federal government, nor, since adoption of the Fourteenth Amendment, the state governments, may interfere in this right to association.

In the case of Boy Scouts of America v. Dale this meant that the Boy Scouts can set whatever membership standards they choose. The government may not define who is eligible, or create a "right" for an individual to join an organization that rejects them. Why not? Because "the Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people." It is not a commercial organization. It is not a public accomodation. It is a private organization.

In the earlier case of John J. Hurley and South Boston Allied War Veterans Council, v. Irish American Gay, Lesbian And Bisexual Group Of Boston, this same principle of free association meant that organizers of a traditional St. Patrick's Day parade may not be required by the government to include organizations or messages that they do not wish to include. Maybe their decision to exclude a group is wrong, but it is none of the government's business to intervene.

In neither case did the Supreme court take any position on homosexuality. Why not? Because that is not a valid issue under any clause of the constitution. Constitutional rights do not bend and vary according to the viewpoint of the parties appearing in court. A principle is a principle. It applies at all times, in all circumstances. Chief Justice Rehnquist quoted approvingly from a case that struck down criminal penalties for burning the American flag, when he wrote the decision that upheld the right of the Boy Scouts to set their own membership standards. Those who attack certain principles, because they disagree with a specific outcome, should be very cautious. Most of us find that each enduring principle serves some purpose that is very important to us.

As Judge Roberts plainly stated, the law, especially the constitution, does not change because a new justice has been elevated to the court. If the judges could keep the principles simple, it would greatly increase public respect for the court's decisions, and its role in safeguarding our republic. If the media could talk more about principles and less about the feelings of the appellants, that would increase public understanding of what a decision really means for all the rest of us.