Anderson: Those who do not care about national honor, accurate intelligence, or the rule of law are free to idolize Mr. Yoo.

As indeed they do. This thread, like so many others, shows some Americans prefer bad intelligence obtained by sadistic methods to good intelligence obtained by establishing rapport with the prisoner. Intelligence isn’t the point for them, instead the process is some sort of collective Viagra for the humiliated.

Uh, no, because penalizing those who conspire to torture prisoners does not “undermine” our war; it *aids* our war by helping to rebuild our national honor, improve our intelligence gathering, and restore the rule of law.

Those who do not care about national honor, accurate intelligence, or the rule of law are free to idolize Mr. Yoo.

Cheers,

Rather than claiming you have bigger crystal balls than anyone else, you should instead argue the merits of the issues. If you assert that the Court was just about to reverse all its previous positions to completely change the law and agree with you, only they didn’t get a chance … well do you really expect to convince anyone who didn’t already agree with you?

The DOJ already argued the Padilla case in front of the Supreme Court on appeal from the Second Circuit. They were prepared for a decision on the merits, but got one based on procedural issues. So why do you assert so blandly that they were afraid to argue the same set of issues before the same Court a second time, especially when the Forth Circuit decision was so strong and in the interim the Supreme Court had, in Hamdi, already overturned the logic that the Second Circuit used to rule in Padilla’s favor. So the second time around their case was, in every possible way, vastly stronger than it had been the first time they argued it.

Since Padilla asks for summary judgment, the Fourth Circuit begins by accepting the facts as alleged by the government (which is why in Oren’s previous comment the quoted section of the decision is not “argument by assertion”. In summary judgment the court must decide by assuming the assertions of fact of the other party since there has been no opportunity yet to determine facts.)

The Fourth Circuit makes two redundant arguments based on two Supreme Court precedents. Padilla could be classified as an enemy combatant and held under the facts and law as defined by Hamdi (because like Hamdi he was present on the battlefield in Afghanistan fighting with the Taliban forces). In addition, Padilla could independently be classified as an enemy combatant under facts and law that match Haupt in the Quirin decision (captured in Chicago attempting to enter the US pretending to be a civilian while on a mission of sabotage).

The Supreme Court would have had the same obligation under summary judgment to simply accept the government allegations of fact and then consider, assuming Padilla was an enemy combatant as defined by Hamdi and Quirin, whether the law required that he be released from military custody. There is no reason to believe that the Court was interested in either overturning the recently delivered Hamdi ruling or the Quirin decision (that O’Connor so clearly cautions Scalia against overturning in the quote I previous cited).

Of course, the Supreme Court might have done something completely unexpected again. I do not preclude this, but summary judgment is a pre-trial motion and there is no particular legal reason why the court, if it were inclined to do something for Padilla, would decide to act now before any facts had been established in a real trial. The other consistent behavior of the Court has been that it never misses an opportunity to put off a decision on the merits when it can rule on some narrow or procedural ground. Ruling against Padilla here would simply return the case to District Court to begin the real trial, and then they would have a third shot at it when there was an actual verdict.

Having received a 100% vindication from the Fourth Circuit, the government had no reason to keep Padilla in military custody. It had been two years since they had even bothered to ask him questions. He was simply taking up expensive space, and there was a criminal case in Miami that needed him as a defendant. That, rather than some imagined fear of what the Supreme Court would do with a premature appeal, determined what happened next.

Padilla v Hanft is “discredited”, except that the Fourth Circuit continues to quote it and rely on it as precedent in other decisions.

No, it’s discredited because the author of opinion came out and said that the government blatantly lied to his court, manipulated our system of justice and publicly discredited itself in the process.

It’s further discredited by the fact that the only reason that it was not overturned by the SCOTUS is that such a decision was so inevitable they chose to withdraw the case to avoid review. You can call that persuasive precedent if you like. Here on planet earth, the fact that the DOJ yanked the case right before the SCOTUS overturned it generally suffices to prove the proposition that it is no longer good law.

As to the claim that criminal prosecution was a key factor, consider what the text of the decision has to say about that:

As to the fact that Padilla can be prosecuted, the availability of criminal process does not distinguish him from Hamdi. If the mere availability of criminal prosecution rendered detention unnecessary within the meaning of the AUMF, then Hamdi’s detention would have been unnecessary and therefore unauthorized, since he too was detained in the United States and amenable to criminal prosecution. We are convinced, in any event, that the availability of criminal process cannot be determinative of the power to detain, if for no other reason than that criminal prosecution may well not achieve the very purpose for which detention is authorized in the first place — the prevention of return to the field of battle. Equally important, in many instances criminal prosecution would impede the Executive in its efforts to gather intelligence from the detainee and to restrict the detainee’s communication with confederates so as to ensure that the detainee does not pose a continuing threat to national security even as he is confined — impediments that would render military detention not only an appropriate, but also the necessary, course of action to be taken in the interest of national security.

It would appear that the decision does not logically depend on the question of criminal prosecution. However, there is a difference between national security viewed going back and going forward. The question before the court was whether Padilla’s detention was legally justified. Clearly his first year of military detention (while he was being actively interrogated as a key source of military intelligence) was absolutely essential to national security. The court needed to issue a decision that clearly established the precedent that such detention is completely legal.

However, military interrogation of Padilla ended after the first 20 months. After that date, his continued detention served no military purpose. He probably would have been transferred to Miami years earlier than he was, except that once his case was in litigation the government needed a total victory, like the Fourth Circuit gave them, before it could terminate military custody and transfer him to the civilian criminal system.

Given that during the first year “Padilla could not be tried in a civilian court without risk to national security” (although that was no longer the case) the question before the Fourth Circuit was properly presented. The decision affected the interpretation of law during that period and not the disposition of Padilla after he was long past his “best if used by” date. Given that the Fourth Circuit continues to cite it as precedent and has never doubted its validity, claiming that it is “less than persuasive” is just another way to try and ignore the decisions that prove conclusively that you are wrong.

The Allies routinely shot enemy troops caught out of uniform as saboteurs and so did the Germans. Indeed if I recall correctly while a number of Germans were (rightfully) executed for war crimes, none were executed for executing Allied soldiers caught out of uniform such as commandos.

Walker should have summarily executed in Afghanistan when captured and Padilla should have been interrogated and then shot for being caught out of uniform attempting to commit sabotage. The constitution is not a suicide pact and these attempts to use our legal system to subvert our ability to prosecute the war is alarming.

Does it not scandalize any of those commenters posting here that an illegal combatant who waged war upon the United States is being allowed to use our legal system to undermine the government’s ability to prosecute the war against that very same enemy?

Haupt, like Padilla, was captured in Chicago. In fact, Haupt’s case was stronger because he had been in Chicago for a week living with his parents, while Padilla was captured at the customs counter of the airport (at the boarder requesting entry into the US).

Citizens of the United States of America do not request entry. Try again.

Thus confined, Milligan is inapposite here because Padilla, unlike Milligan, associated with, and has taken up arms against the forces of the United States on behalf of, an enemy of the United States.

Argument by assertion. Until his (eventual) conviction, Padilla was only accused of taking up arms against the US.

Moreover, Luttig wrote a scathing opinion basically noting that the entire premise of the government’s argument was fraudulent. The DOJ asserted, in a court of law, that Padilla could not be tried in a civilian court without risk to national security. It then did exactly that, and in doing so fatally undermined the conclusion in Padilla v. Hanft. Far from preserving the decision as binding precedent then, Padilla v. Hanft is now entirely discredited as a product of blatant government misconduct — quoting it as authority is somewhat less than persuasive.

Ex parte Milligan, 4 Wall. 2, 125 (1866), does not undermine our holding about the Government’s authority to seize enemy combatants, as we define that term today. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. Id., at 118, 131. That fact was central to its conclusion.

Haupt, like Padilla, was captured in Chicago. In fact, Haupt’s case was stronger because he had been in Chicago for a week living with his parents, while Padilla was captured at the customs counter of the airport (at the boarder requesting entry into the US). Of him, the Hamdi majority noted:

The Court in Quirin found him “subject to trial and punishment by [a] military tribunal[ ]” for those acts, and held that his citizenship did not change this result. 317 U.S., at 31, 37—38.

Quirin was a unanimous opinion. It both postdates and clarifies Milligan, providing us with the most apposite precedent that we have on the question of whether citizens may be detained in such circumstances. Brushing aside such precedent–particularly when doing so gives rise to a host of new questions never dealt with by this Court–is unjustified and unwise.

Rather than repeating the argument, the application of Quirin and Hamdi to Padilla’s individual circumstances is thoroughly covered in the Fourth Circuit decision in Padilla v Hanft.

In Milligan, the Supreme Court held that a United States citizen associated with an anti-Union secret society but unaffiliated with the Confederate army could not be tried by a military tribunal while access to civilian courts was open and unobstructed. Id. at 6-7, 121. Milligan purported to restrict the power of Congress as well as the power of the President. Id. at 121-22 (“[N]o 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 . . .”). Quirin, however, confirmed that Milligan does not extend to enemy combatants. 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.” See 317 U.S. at 45. The Hamdi plurality in turn reaffirmed this limitation on the reach of Milligan, emphasizing that Quirin, a unanimous opinion, “both postdates and clarifies Milligan.” 124 S. Ct. at 2643. Thus confined, Milligan is inapposite here because Padilla, unlike Milligan, associated with, and has taken up arms against the forces of the United States on behalf of, an enemy of the United States.

As a New Yorker who watch the towers fall, and apparently one of those “leftists” despite being a libertarian, all I can say is I hope that not everyone with whom I disagree with on the topic of defending civil liberties in this country is such a bed wetter.

Interesting also that actual New Yorkers are still rather liberal…

Now, you appear to concede that Padilla can indeed be charged for his “military” training in Afghanistan. At the same time, you conceded that John Walker Lindh could have been prosecuted for treason had the U.S. had the inclination to do so. This would be in addition to violations of 2399A and B which, I believe, he plead guilty to.

Why do we need any concession on the matter. Padilla WAS convicted of just those offenses, in a regular Federal Court, affording him all the protections recognized as essential to due process. It’s absurd to continue to debate this factual point.

However, criminal charges in general require a criminal act, and conspiracy requires a conspiracy.

And those criminal acts were documented in a long indictment, which you can read. He went before a jury of his peers and was convicted. That generally closes the case on whether there were actionable criminal acts.

Otherwise, you have to answer the question that the majority asks here: by what theory of law do you assert that once the question of enemy combatant status is contested in any way, the government is then precluded from presenting evidence to prove the contested question of fact and must then abandon the question entirely and proceed to prove some other charges?

Why should I have to answer the question? Milligan stands for the proposition that you may not charge a US citizen in a military Court so long as the Federal District Court in the area in which he is seized functions. The District Court in Chicago functions, ergo he should have been charged there.

Leftists oppose every method of finding them that’s normally allowed in war but unavailable to the NYPD, from intercepting their communications to using methods short of torture to compel terrorists to reveal plans before our citizens die from them.

In an attempt to score political points, some people seem to be eager to demonstrate just how afraid of teh terror they are.

As a New Yorker who watch the towers fall, and apparently one of those “leftists” despite being a libertarian, all I can say is I hope that not everyone with whom I disagree with on the topic of defending civil liberties in this country is such a bed wetter.

Since everyone seems to like to quote Scalia’s dissent in Hamdi, maybe it would be helpful to cite the majority opinion that actually says what the law is:

To the extent that Justice Scalia accepts the precedential value of Quirin, he argues that it cannot guide our inquiry here because “[i]n Quirin it was uncontested that the petitioners were members of enemy forces,” while Hamdi challenges his classification as an enemy combatant. Post, at 19. But it is unclear why, in the paradigm outlined by Justice Scalia, such a concession should have any relevance. Justice Scalia envisions a system in which the only options are congressional suspension of the writ of habeas corpus or prosecution for treason or some other crime. Post, at 1. He does not explain how his historical analysis supports the addition of a third option–detention under some other process after concession of enemy-combatant status–or why a concession should carry any different effect than proof of enemy-combatant status in a proceeding that comports with due process. To be clear, our opinion only finds legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact, an enemy combatant; whether that is established by concession or by some other process that verifies this fact with sufficient certainty seems beside the point.

Padilla stated that he was an enemy combatant after being detained by the FBI. Unlike Hamdi and al Marri, he never contested his combatant status in his extensive litigation. Even by Scalia’s analysis as cited here by the majority, Quirin applies to Padilla. If you insist otherwise, then the clear opinion of the majority is that the government must be given an opportunity to present its overwhelming evidence that Padilla was an enemy combatant. Otherwise, you have to answer the question that the majority asks here: by what theory of law do you assert that once the question of enemy combatant status is contested in any way, the government is then precluded from presenting evidence to prove the contested question of fact and must then abandon the question entirely and proceed to prove some other charges?

With regard to the criminal charges cited by Scalia, all of them involve civilian US citizens. None of them (except for Haupt) involve US citizens who traveled overseas and enlisted in a foreign army. He even repeats the distinction I made in an early comment, Haupt was charged in military court, but his father who had stayed in the US and was a civilian was convicted in civilian court of Treason.

What would be more convincing would be a claim that Gaetano Territo (in re Territo, Nith Circuit, 1946) or any other US citizen held as a POW during WWII was charged with some civilian crime simply for his service in an Axis army (don’t cite Tokyo Rose, she was never in an army).

You started this debate by stating that the U.S.’s hands are essentially tied when dealing with U.S. citizen enemy soldiers. Since it cannot try them for any crime it must either hold them as enemy combatants or release them. Clearly, this argument is incorrect. Scalia’s dissent in Hamdi provides a lot of good material showing a long history of the U.S. criminally charging American citizens for joining an enemy country or fighting force and fighting against the U.S. He points to another case less famous than Quirin where Americans were criminally charged for espionage while the Germans who worked alongside them were not criminally charged. The evidence here is just overwhelming that American citizens can be criminally prosecuted for joining forces hostile to the U.S.

So he was not a criminal, nor did the government ever claim that he was or could be charged with a crime (for anything he did after enlisting in the Afghan Army).

Except that could, in fact, be charged with a crime. We know this because he was, in fact, charged with a crime. So everything passed this point in your post makes no sense.

You do understand the difference between putting a man in shackles at O’Hare airport, and butchering 687 civilians [who] have been killed along with 14 al Qaeda leaders in some 60 drone strikes since January 2008—just over 50 civilians killed for every al Qaeda leader, right, Oren?

Indeed. The former is a matter of US Constitutional law, the latter is not.

Your concern over the inhumanity of Padilla’s treatment rings extremely hollow when you so casually dismiss the murder of almost 700 innocent people by targeted extrajudicial military strikes into a sovereign country with whom the U.S. is not at war.

(1) I have not ever claimed that Padilla was treated inhumanely. As far as I know, there is no evidence to support a claim of mistreatment. My claim was that, legally, as a citizen of the United States, he was entitled to due process under Ex Parte Milligan.

(2) If Pakistan wants to assert their sovereignty and start shooting down predator drones (they have a few dozen F16s — it would be a slaughter), that’s their prerogative. The fact that they don’t makes your point about their supposed objection somewhat odd.

(3) Even if Pakistan objected, it wouldn’t be a legal matter. As far as I can tell, there is nothing in the laws or Constitution of the US that forbids a President (unless acting in defiance of Congress and certainly not when armed with an AUMF) from engaging enemy forces in a 3rd country in whatever way he sees fit. He is constrained by diplomacy, not law.

Howard Gilbert: However, his loss of combatant immunity is not retroactive and does not extend back to his training in Afghanistan.

This is not correct. See 18 U.S.C. §2339D:

(a) Offense.— Whoever knowingly receives military-type training from or on behalf of any organization designated at the time of the training by the Secretary of State under section 219(a)(1) of the Immigration and Nationality Act as a foreign terrorist organization shall be fined under this title or imprisoned for ten years, or both…
(b) Extraterritorial Jurisdiction.— There is extraterritorial Federal jurisdiction over an offense under this section. There is jurisdiction over an offense under subsection (a) if—
(1) an offender is a national of the United States (as defined in [1] 101(a)(22) of the Immigration and Nationality Act) or an alien lawfully admitted for permanent residence in the United States (as defined in section 101(a)(20) of the Immigration and Nationality Act);
…
(3) after the conduct required for the offense occurs an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States;

Your legal theories are nowhere to be found in the text of either the Constitution nor in the laws of the United States. 2339A,B, and C also apply to Americans or foreigners with some connection to the U.S. in regards to other kinds of support activities for terrorist organizations.

Lindh plead guilty. So has pretty much everyone who could have claimed combatant status. They prefer a fixed prison term to indefinite detention in military custody or a Treason conviction (in Lindh’s case, they had the required two witnesses to the same overt act).

So you seem to be conceding that Lindh could indeed have been charged and convicted of treason. If he can be convicted of treason, it stands to reason he could be convicted of a lesser offense like 18 U.S.C. §2339A,B,C, or D since the U.S. clearly has jurisdiction over him as a U.S. national.

However, as I pointed out in my comment, a spy or saboteur loses his combatant immunity when he, wearing civilian clothes and pretending to be a civilian, attempts to pass through lines of defense. That is true no matter what his mission may be. Thus Padilla had no combatant immunity when he was captured at the airport. However, his loss of combatant immunity is not retroactive and does not extend back to his training in Afghanistan. Padilla’s statement to the FBI that he intended to blow up apartment buildings establishes intent, which is a requirement of a criminal charge but not by itself sufficient. The problem is that there was no criminal act in the airport, and combatant immunity prevents the government from using military training in Afghanistan as the missing criminal act (just as the Quirin saboteurs could not be criminally charged for their intent to blow up factories by using their demolitions training in Germany as the missing criminal act).

“U.S. citizens do not have the legal right to join a foreign fighting force” You mean like the AVG, better known as the Flying Tigers. It was part of the Chinese Air Force fighting against the Japanese while the US was neutral before Pearl Harbor. They didn’t arrest and prosecute those guys, they made them part of the US forces after we joined the war. Today we call them heroes.

A country that exists only thanks to the efforts of Lafayette and von Steuben has never and will never prohibit Americans from going overseas and joining a foreign army. There simply is no law against it. Of course, when you do this you should be careful to choose an army that will not go to war with the US. A Yank in the RAF becomes a hero. One who, like Haupt, goes to Germany and joins the Wehrmacht becomes a Traitor.

Lindh plead guilty. So has pretty much everyone who could have claimed combatant status. They prefer a fixed prison term to indefinite detention in military custody or a Treason conviction (in Lindh’s case, they had the required two witnesses to the same overt act). This question will not be resolved until someone has the nerve to make the claim of combatant status in court and litigate the question through appeals.

Padilla is sitting in prison now because between 1996 and 1998 he worked with some guys in Miami to raise funds to support rebels in Chechnya. He was a civilian at the time, and his conviction has nothing to do with his service after enlistment in Afghanistan or his subsequent capture or military detention. They are completely independent and unrelated matters. He could have done the Miami thing without going to Afghanistan, and he would still be sitting in jail. He could have joined the Afghan Army without the Miami stuff, and then he would probably still be in military detention in Charleston.

“And your source for this assertion would be . . .” The government revealed what Padilla said to the FBI and to military interrogators in documents filed during his court case. In mid March 2002 he left Abu Zubaydah and went to KSM. He then had a two week training session with KSM, Binalshib, Amar al Baluchi, Mustafa al Harsawi (the guys responsible for 9/11 awaiting trial on that charge before a military commission). They gave him disposable cell phones, e-mail addresses, phone numbers, travel documents, electronic funds transfer instructions, and a really weak cover story. After capture, he told the FBI and then the military everything he could remember about them. This is all on tape and some of it might be introduced either in this case or in the trial of KSM.

The only thing that has not been stated was how important Padilla’s information was in capturing Binalshib on 9/11/2002 or KSM on 3/1/2003. That last part of the story may not be written until historians look back on these events.

Howard Gilbert: Padilla was held without access to lawyers for over a year, while the government used the information he supplied to round up all the people responsible for 9/11.

Nineteen of those people died on 9/11, Osama bin Laden is at large, and KSM, who was already well-known as a lieutenant in Al Qaeda, was located through a Pakistani tipster. Padilla probably didn’t know the accurate location of anybody important at the time he was arrested. This assertion comes from a parallel universe (run by Fox News??).

And your source for this assertion would be . . . ?

tettyan: Yes, you just quoted the Arar hypo, but not every opinion is limited only to the specific hypo at issue. The Arar opinion goes on to discuss at length the reluctance of SCOTUS and lower fed courts to infer a broad Bivens remedy against federal policy-makers on the theory that the policies somehow led to abuses of constitutional rights down the road. The court has never allowed a Bivens remedy against a policymakers for a macro-policy judgment, much less against the legal advisors advising the policymakers. It’s all in the brief, which is rock solid IMHO.

The court allowed Arar to refile a lawsuit alleging Constitutional violations based on the conditions of his confinement and his denial of representation during the period of his detention in the U.S. It also said that he needed to be very specific about who exactly did what and how each alleged action led to a violation of his rights while on U.S. soil. The fact that the court did not dismiss his due process claims suggests the court did not reach a conclusion as broad as you are implying.

Ricardo:
I don’t see what the Arar case has to do with this one.The 2nd Circuit said it was unwilling to extend Bivens to case of a foreign national who suffered harms at the hands of non-American officials outside the U.S. based on the theory that U.S. government officials conspired with Syria to torture Arar.

Yes, you just quoted the Arar hypo, but not every opinion is limited only to the specific hypo at issue. The Arar opinion goes on to discuss at length the reluctance of SCOTUS and lower fed courts to infer a broad Bivens remedy against federal policy-makers on the theory that the policies somehow led to abuses of constitutional rights down the road. The court has never allowed a Bivens remedy against a policymakers for a macro-policy judgment, much less against the legal advisors advising the policymakers. It’s all in the brief, which is rock solid IMHO.

Howard Gilbert: Therefore, the months of special demolition training Padilla had at a facility near the Kandahar airport cannot be used as an element of a domestic US criminal charge.

Again, this is wrong. U.S. citizens do not have the legal right to join a foreign fighting force or terrorist organization to give aid, comfort, support, resources or services to a foreign fighting force or terrorist organization. The criminal justice system provides for severe punishment for any citizen who does these things. Combatant immunity does not apply. For that matter, there was never a serious argument that John Walker Lindh was entitled to combatant immunity for fighting for the Taliban since, among other things, he did not wear a uniform on the battlefield. That’s why both Padilla and Lindh are sitting in civilian federal prisons these days.

Congress changed the law so an expatriating act must be done “with intent”. Nobody knows what that means with regard to Padilla. So he remains presumptively a US Citizen. However, if he confesses to Treason in open court, he can still dodge the immediate bullet by filing an affidavit saying he engaged in hostilities against the US with intent to give up his citizenship. Then he is not a Traitor, but he becomes a man without a country.

Huber Hans Haupt was convicted and executed for “passing though lines without uniform”. His father, Hans Haupt, who had never left the US and never joined the German Army, but who helped his son because he was a Nazi sympathizer, he was convicted of Treason.

Afghanistan is a country on every map. It was a member of the UN and a signatory to the Geneva Convention. On 9/10 it had an army of 45,000 light infantry, a standing army larger than 60% of the other UN members. On July 24,2000 Padilla signed up and enlisted in that army. Over the next two months he went through basic training at the al Farouq camp. Then he pulled three months of military standard, hurry-up-and-wait infantry guard duty, standing with his AK-47 guarding a worthless outpost near Kabul. He was in the army now, it was just the Afghan Army.

The main force of the Afghan Army was engaged in a conventional battle with a similar force of the “Northern Alliance”. The 055 Brigade provided one to two thousand foreign fighters to this army who had been recruited, trained, and supplied by al Qaeda. On the side, al Qaeda also sent 19 men to the US to hijack airplanes.

Curiously enough, one of the documents attributed to Yoo mentioned in the brief submitted today is a legal finding that members of the Afghan Army under the Taliban and members of al Qaeda were not entitled to status under the Geneva convention. I regard this argument as equivalent in legal quality to the Torture Memos. In any event, this question has never been litigated, subject to any adversarial process, or decided by any impartial tribunal.

Although al Qaeda certainly engaged in terror, so did the US with the bombing of Japan. In fact, terror has been an element of US military strategy going back to Sherman and the burning of Atlanta. Engaging in terror is not incompatible with a military force. The North Vietnamese called us pilots “terrorists” because they bombed cities. Now KSM and al Qaeda are clearly criminals, but that doesn’t make every Afghan or foreign solder in the 45,000 man army suddenly a civilian. This is one of the questions that you would think we would be able to resolve after 8 years, but both administrations have plead out every case that might have raised the question.

And if I were Yoo, I think I would be filing some interpleader/joinder motions so that Bush, Cheney, Rummy, et. al. would be sitting in court beside me.

I think Rumsfeld’s spirit is already at Yoo’s side. Mr. Estrada’s brief is permeated by a Rumsfeldian admonition:

“In some cases, Miguel, you go to appeal with the law you wish you had, not the law that actually exists.”

Quirin confirms this. When the eight German saboteurs were arrested by the FBI, everyone expected them to be charged with crimes in a Federal court. But then the Justice Department realized that their planning and training in Germany were protected by combatant immunity, and in the week they were in the US they had committed no criminal actions. In the end, the only civilian crime Huber Hans Haupt, a US citizen, could be charged with is that, having entered the US at a point that was not a Port of Entry, he failed as required by law to proceed to the nearest Customs office to file the appropriate forms. In 1942 this would have resulted in a maximum 18 month sentence. This means that if the civilian criminal system did its best, the saboteurs could serve their entire sentence, return to Germany, and rejoin the army long before they had a chance to shoot down US soldiers coming ashore on D-Day. The only way to detain them longer was to transfer them to military custody where they could be held as prisoners of war for the duration of the war.

Yes, Padilla could have been tried as a spy and saboteur. The formal charge is “attempting to pass through lines of defense without uniform.” The administration choose not to prosecute the charge, and that was their right. The Supreme Court explicitly said that they had that right in the Hamdi decision. O’Connor noted that while Haupt had been charged in a military court, that the government was under no obligation to bring the charges and he could have just been held as an ordinary prisoner of war for the duration of the war. Thus the Supreme Court specifically found that there was no obligation to charge a US citizen like Hamdi or Padilla with a civilian or military crime, and they could just be detained without charges during hostilities (although they had a right to contest the detention in court).

Padilla was held without access to lawyers for over a year, while the government used the information he supplied to round up all the people responsible for 9/11. Then the courts ordered that he be allowed to speak with his lawyers. Then two years passed in which he was in contact with counsel and in litigation before the courts, but he did not dispute his combatant status, did not ask for his Hamdi tribunal, and did not say he was being tortured. I am not talking about what he did not ask for during the months he was held in isolation. I am talking about what he did not do in the subsequent years when he had access to counsel.

Yes, there is a shortage of admissible evidence. Padilla was questioned without a Miranda warning and without an attorney. He had no right to a warning or to an attorney when he was originally arrested as a Grand Jury witness, nor later on when he was determined (by his own statements) to be an enemy combatant. Everything he said can be admitted in any civil trial that seeks only to determine if he was an enemy combatant and his detention was lawful. However, in any criminal charge (civilian or military) the statements it was legal to gather from a captured enemy soldier are not admissible against the same person as an accused criminal.

There is overwhelming evidence. Hundreds of recorded hours of statements. Details he provided about the group of men responsible for 9/11 that he knew from personal contact and that would be verified when these men, and their paper documents and laptop computers were captured months later. Viewed from a military intelligence point of view, Padilla’s detention and interrogation were strictly according to law.

If you want to charge Padilla with a crime, then his questioning did not meet Constitutional standards and his statements have to be excluded. But he was never charged with a crime, nor was he ever held as a criminal, nor did the government ever suggest that he would be or could be charged, at least for anything he did after enlisting. He was, of course, convicted of crimes he committed 2-4 years before he enlisted while he was a civilian in Miami.

In the face of the massive evidence of his military status, claiming that he was held at “executive whim” sounds a bit like Creationism or holocaust denial. What is missing is judicial process. It is missing because it is not withing the executive’s power to initiate it. Of course, there certainly was no shortage of litigation. It started two days after Padilla was transferred to military custody and continued throughout his detention. However, this litigation was in the form of “summary judgment” and involved no hearing of evidence.

The power of the executive to detain enemy combatants without criminal charges is certainly a potential matter of concern. However, it has only been used by three presidents for 12 people. There were the original 8 German saboteurs in the 1942 Quirin case (FDR), then Harry Truman used it in 1945 with the last two German saboteurs, and then Bush used in in 2002-3 for Padilla and al Marri. In every case the evidence is overwhelming that the power was used properly, except for al Marri who just plead guilty last week without the evidence against him being disclosed.

Even demanding suspicion is imposing too much of a burden on the Executive branch, it seems. A more precise way to phrase that view would be to say the President can lock you up forever based on nothing more than the President’s willingness to say you are a terrorist.

Howard Gilbert: When first interviewed by the FBI, Padilla told them that he was a soldier in the Army of Afghanistan and was on a mission assigned to him by his commanding officer (KSM). He was to enter the US in civilian clothes pretending to be a civilian. A soldier in a foreign army has combatant immunity and cannot be charged with civilian crimes… However, since he was taken into custody as an enemy combatant (a.k.a prisoner of war, unprivileged belligerent, spy and saboteur) he cannot be charged by the government in court. Detaining a soldier from an enemy army is a clerical function of the military.

This is completely wrong. Padilla was not a soldier in “the Army of Afghanistan” — he was an admitted member of the terrorist organization Al-Qaeda. Likewise, KSM was a senior member of that group — he was not an officer in any military organization. But leaving this aside, suppose Padilla was an enlisted member of a foreign army or intelligence service. The Constitution defines treason as follows:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

So your contention that the U.S. could not charge Padilla with any crime is false. It chose not to charge him but that’s quite different from saying there was no basis for criminal charges in the first place.

Howard Gilbert: A soldier in a foreign army has combatant immunity and cannot be charged with civilian crimes.

I think this is where the argument begins to go astray. Foreign soldiers can most certainly be charged with civilian crimes; the Japanese recently charged one of our soldiers with rape, didn’t they? And then the argument continues to run downhill: for example, since Padilla was held incommunicado and without any sort of counsel, it’s rather presumptuous to talk about what he did and didn’t demand. Nor does this argument explain why, like the German dual-citizens in Quirin, Padilla couldn’t be tried by a military court as a saboteur. Except, given how Padilla was transferred back to civilian court, maybe there was a shortage of evidence. Even saboteurs are entitled to such a tribunal. What was never intended was the adoption of the tyrannical system of detention at executive whim.

But Yoo has been committed for years, long before he joined DOJ, to a theory that believes that executive power should be broadly construed.

Prior to writing these memos, Yoo was principally known for his criticisms of Bill Clinton’s excessive use of executive power and the dangers of the Imperial Presidency. See, e.g., here.

You do understand the difference between putting a man in shackles at O’Hare airport, and butchering 687 civilians [who] have been killed along with 14 al Qaeda leaders in some 60 drone strikes since January 2008—just over 50 civilians killed for every al Qaeda leader, right, Oren?

Your concern over the inhumanity of Padilla’s treatment rings extremely hollow when you so casually dismiss the murder of almost 700 innocent people by targeted extrajudicial military strikes into a sovereign country with whom the U.S. is not at war.

It’s clear certain commenters are only concerned about military events and government misbehaviour they can milk for political advantage; for some reason the deadlier and more widespread war crimes which killed hundreds of innocents but were conducted by both political parties — and which are still ongoing — just don’t garner as much outrage or attention.

As I understand you, I think you’re correct — there’s no way to convict Yoo simply for writing an objectively incompetent memo.

What you call “subjective” sounds to me like “intent.” Yoo had to know that the issue was, at best, doubtful, but write a memo that forced a conclusion that the conspiracy wanted, secure in the knowledge that the memo would immunize torturers from liability. I think you’ve got to have some element like that — presumably, these bogus tax opinions had the same element.

(Really, he could’ve written a memo that covered both sides of the issue and fudged more elegantly, concluding that the law was doubtful; Yoo hurt himself with the grandiosity of his argument.)

he argued they nevertheless were written in “good faith.”

And Goldsmith knew this … how? I’m happy for the light Goldsmith has cast, but the man may have his own liability if all the facts were known.