[IP] MR Padilla v Hanft: A Very Dangerous Decision
Begin forwarded message:
From: EEkid@xxxxxxx
Date: September 10, 2005 11:01:59 AM EDT
To: dave@xxxxxxxxxx
Subject: MR Padilla v Hanft: A Very Dangerous Decision
Padilla v Hanft: A Very Dangerous Decision
by Michael Steinberg
Today's decision in Padilla v Hanft is bad news, though exactly how
bad it is will depend on what the Supreme Court does with it -- and
who's on that court. The long and the short of it is that the Fourth
Circuit Court of Appeals upheld the right of the government to hold
even US citizens indefinitely, or for the duration of anything the
government chooses to call a war.
Of course, the decision is more complicated than that. One of the
complications is the stance that Jose Padilla's lawyers took. They
were hoping to have a clear-cut ruling on the legal issues involved,
so instead of hearing testimony and litigating evidentiary issues --
which could take years -- they moved for summary judgment.
Padilla's lawyers were saying, Even if everything the US government
alleges were true, the President still doesn't have the power to hold
a US citizen without trial. They did not contest the government's
factual charges at this stage.
The Fourth Circuit chose to interpret this in a very odd way,
claiming that the parties had agreed to these facts. This is
something Padilla's lawyers kept denying, and the Court's insistence
on this point is one of the stranger things about the decision.
Nonetheless, you can read it as saying, The government has yet to
prove these allegations; but if it succeeds in doing so, Padilla has
to stay in jail.
That sounds like a small ray of hope. But take a look at some of the
court's reasoning and there's not much hope left.
For one thing, the government's case against Padilla always seemed to
be that he was in the US to carry out an act of terrorism. He was
supposed to have plotted to explode a "dirty bomb," and even though
the government has abandoned that contention -- now he's supposed to
have plotted to blow up apartment buildings by starting a gas leak --
he's still described in most of today's news stories as the "dirty
bomb" suspect.
But little of the Fourth Circuit decision depends on allegations of
domestic terrorism. Instead, the court relied on Padilla's supposed
activities in Afghanistan.
The court found that Padilla needed to be detained "to prevent his
return to the battlefield." Yet there was no evidence that he was
ever on a battlefield.
According to the court, "Padilla . . . received explosives training
in an al Qaeda affiliated camp, and served as an armed guard at what
he understood to be a Taliban outpost. When United States military
operations began in Afghanistan, Padilla . . . moved from safehouse
to safehouse to evade bombing or capture. Padilla was . . . 'armed
and present in a combat zone during armed conflict between al Qaeda/
Taliban forces and the armed forces of the United States.' Padilla
eventually escaped to Pakistan, armed with an assault rifle."
He was trained, hid, and escaped; that's the sum of this. At no time
did Padilla -- assuming for the moment that any of this is true --
even see an American while he was in Afghanistan. Yet the Court
concluded that Padilla had taken up arms against the United States
and found his conduct equivalent to directly bearing weapons against
American soldiers.
It is hard to see his conduct as any more reprehensible than simply
attending an al Qaeda camp. Most of it amounts to self-preservation.
The bombing of Afghanistan was intense and widespread; most people
tried to hide from it. And it should be no surprise that Padilla was
armed when he escaped. The Afghanistan/Pakistan border is one of the
world's most lawless areas at the best of times, and crossing the
border without a gun would be foolish.
In short, the Fourth Circuit set the threshold for "combat" about as
low as possible.
The next step, though, is where the decision shows its true
frightfulness. In Hamdi v Rumsfeld the US Supreme Court ruled that
the detention of an American citizen classed by the government as an
enemy combatant was justified, but it appeared to limit its decision
to the facts of that case -- Hamdi was captured in Afghanistan and
had clearly been part of a military force.
Lower courts like the Circuit Courts of Appeal are bound by Supreme
Court rulings. Padilla's lawyers had to argue that even though Hamdi
was the law, it did not permit holding someone who was arrested
within the US.
The court rejected this argument. It said that Padilla's detention
was sanctioned by the Authorization for Use of Military Force passed
by both Houses of Congress on September 18, 2001, which "applies even
more clearly and unmistakably to Padilla than to Hamdi" because
Padilla intended an act of terrorism on American soil.
This might come as a shock to most lawyers, because the AUMF (as the
court terms it) looked like something about the use of the military
against foreign enemies. It authorizes the President
to use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September
11, 2001, or harbored such organizations or persons, in order to
prevent any future acts of international terrorism against the United
States by such nations, organizations or persons.
This is a far too elastic kind of authorization, but stretch it as
you like, it does not seem to permit domestic military action.
That's surely implied, though, in the Fourth Circuit's decision.
Padilla's is a more pressing case, it stated, because he threatens to
"return to battle in the ongoing armed conflict between the United
States and al Qaeda in Afghanistan."
In other words, the Court is taking the rhetoric that "the world is a
battlefield" as literal truth. It interprets the AUMF as permitting
the President to do whatever he deems necessary to prevent domestic
terrorism, including detaining citizens indefinitely without trial.
(In citing the AUMF the Court tends to omit the qualifying phrase "by
such nations, organizations, or persons [who carried out the 9/11
attacks].)
We are close -- terrifyingly so -- to an explicit ruling that the
AUMF repeals all Constitutional restraints in the face of a
declaration by the executive that a person is contemplating an act of
terror. (The breadth of the new definitions of "terror" is also
shocking, but that is another story.) If the battle is here, and the
"laws of war" allow indefinite detention to prevent a combatant from
returning to the battlefield, then they allow arbitrary detention and
probably even the use of the military against American citizens
within the borders of the US. This is a very dangerous decision indeed.
http://mrzine.monthlyreview.org/steinberg090905.html
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