The Volokh Conspiracy - The <i>Padilla</i> Military Detention Case:

The Fourth Circuit has just held that Jose Padilla -- a U.S. citizen and alleged al Qaeda combatant who was captured in the U.S. -- can indeed be kept in military detention. In Hamdi v. Rumsfeld, the Supreme Court took this view as to Yaser Hamdi, a U.S. citizen and alleged al Qaeda combatant who was captured overseas. The question before the Fourth Circuit was whether the place where Padilla was captured should make a difference, and the Fourth Circuit said no. (The Court in Hamdi concluded that the military had to provide detainees some review procedure to determine whether they are indeed enemy combatants; but Padilla's challenge was apparently to the government's very power to detain him, and not to the process it has used to decide whether he's a combatant, see n.4 of the Fourth Circuit decision.)

So here's an interesting twist: The Hamdi decision rested on the votes of five Justices -- Rehnquist, O'Connor, Kennedy, Thomas, and crossover sensation Breyer; but in Rumsfeld v. Padilla, the dissent of Justices Stevens, Souter, Ginsburg, and Breyer opined that "American citizens arrested in the United States" could not be detained (at least for "protracted" times and "incommunicado"). Thus, it looks like Justice Breyer, the necessary fifth vote in the Hamdi precedent on which the Fourth Circuit relies, saw a distinction between detentions of U.S. citizens arrested in the U.S. and those arrested overseas, the very distinction that the Fourth Circuit quickly (and plausibly, given the reasoning of Hamdi) rejected.

When I wrote about this shortly after the Supreme Court's decisions in Hamdi and Padilla, I said,

I suspect that many lower courts would be reluctant to mix four Justices' views from one case (Hamdi) with one extra Justice's views in another (Padilla), especially when those views came in a footnote to a dissenting opinion written by another Justice (though, to be sure, an opinion that Justice Breyer did join without reservations). So in future cases involving Padilla . . . lower courts would be free to conclude that Padilla loses . . . .

This seems to have happened here: The Fourth Circuit followed the five Justices' view in Hamdi, and ignored Justice Breyer's endorsement of a limiting principle in the Padilla dissent. (Note, incidentally, that if Justice Breyer wanted to, he could have written a concurrence in the judgment in Hamdi that expressed the view that Hamdi was limited to U.S. citizens detained abroad. That would have affected the precedential weight of Hamdi; but his joining the dissent in Padilla didn't have that effect.)

But, as I also wrote, "What the Supreme Court will do with that, when and if Padilla's case comes back to the Justices, is impossible to tell." If the Court grants certiorari here, then Justice Breyer might well join Justices Stevens, Scalia, Souter, and Ginsburg -- the Hamdi dissenters -- in reversing the Fourth Circuit's decision.

(link)

Anderson (mail) (www):

I will be very interested in Scalia's vote on this case. Padilla appears to be a much less savory character than Hamdi, and this could be a decisive case for whether Scalia's jurisprudence is result-oriented (as his critics have claimed) or not. Because it's very difficult to read his Hamdi dissent &see him voting to affirm the 4th Circuit here.

9.9.2005 4:15pm

Pritesh:

http://tinyurl.com/dw6xj

9.9.2005 4:28pm

Paul Gowder (mail):

Eugene: factual correction. You say "The Hamdi decision rested on the votes of five Justices -- Rehnquist, O'Connor, Kennedy, Thomas, and crossover sensation Breyer." This is untrue. Thomas dissented in Hamdi. Souter joined the judgment, but not the (plurality) opinion. Ginsburg joined Souter's opinion.

O'Connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Kennedy and Breyer, JJ., joined. Souter, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which Ginsburg, J., joined. Scalia, J., filed a dissenting opinion, in which Stevens, J., joined. Thomas, J., filed a dissenting opinion.

In terms of the substance, my highly off-the-cuff hip-shooting commentary is here.

9.9.2005 4:30pm

Or were you asserting that Thomas's dissent supports O'Connor's opinion? I mean, sure, it supports a more extreme view, but I don't think we can fairly call that precedent: add a dissent onto the majority and count up the votes that way.

9.9.2005 4:34pm

Eugene Volokh (www):

I touch on Paul Gowder's point in this post; the short answer, I think, is that the governing rule in Padilla is the plurality's rule chiefly because Justice Thomas would have gone even further than the plurality would have.

9.9.2005 4:58pm

Seamus (mail):

It looks like the Fourth Circuit simply decided to make what it believed to be the best decision that would be consistent with the holding of the court in Hamdi, and not to bother reading the individual justices' opinions in order to predict how the Court would rule if this case came before them. Given that the membership of the Supreme Court is now up in the air, this is actually a fairly reasonable course of action. Of course, the result sucks, but as Bertie Wooster would say, that's the way the hoop rolls.

9.9.2005 5:54pm

Glancing around, the subject of whether or not the President can indefinitely detain U.S. citizens apprehended in this country, doesn't appear to be nearly as interesting as shooting looters or firing the FEMA chief.

"A republic, if you can keep it," indeed!

9.9.2005 6:15pm

Shelby (mail):

Anderson:

For myself, I feel more comfortable "sounding off" on more political or theoretical issues. On this one, I would want to do a bit of legal research before commenting.

9.9.2005 6:18pm

The Original TS (mail):

If the Court grants certiorari here,

If?

The real question here is how will the new CJ vote?

Frankly, I'm deeply disturbed that there is even a legitimate debate on this issue. It is chilling to think that the Executive can declare an American citizen detained on American soil to be constitutionally persona non grata.

"Enemy combatant" sounds far too much like "enemy of the state" for my peace of mind. We don't need to go down that road.

9.9.2005 6:38pm

4th Circuit Clerk (not of the panel):

I like this decision.

I'd also like to point out, for the reflexive "The Fourth Circuit is crazy" types that the decision was unanimous, and that Luttig is the only Republican appointee on the panel- Judges Michael and Traxler are both Clinton appointees.

Furthermore, the court's practice is to circulate all opinions, both published and unpublished, for comment before they're submitted. This isn't just pro forma, eitehr- I've seen replies from non-panel judges that describe in detail things that they believe should be changed and indicate that they would consider calling for an en banc poll if they aren't. Sometimes this works, sometimes it doesn't, but it does keep a bit more consistency in the output.

I haven't seen any correspondence of that sort from this case- we wouldn't get it since my judge wasn't on the panel, but I would be surprised if Judge Motz didn't have something to say about this.

I too, have something to say: go team! Hopefully this will be upheld.

9.9.2005 6:45pm

how will the new CJ vote?

Much like the old CJ, is my guess. "Meet the new boss ..."

Shelby, point well taken. Still, there seems something visceral about the abolition of habeas corpus, at least at a law blog. (And I should note that it follows from my comment that I very much appreciate the attention of Profs. Volokh and Kerr to the case.)

9.9.2005 6:47pm

how will the new CJ vote?

Much like the old CJ, is my guess. "Meet the new boss ..."

I dunno. This question cuts across some traditional liberal/conservative lines. Remember, Scalia dissented in Hamdi.

Absent some compelling evidence to the contrary, I think Roberts' vote is up for grabs.

9.9.2005 7:44pm

Nat (mail):

Judges Michael and Traxler are both Clinton appointees

All this proves is that overtly liberal judges can be as boneheaded as overtly conservative judges, as Stevens definitively proved in both Raich and Kelo just this summer. And on the other hand, Scalia and Stevens wrote a fairly blistering opinion in Hamdi that demolished the administration's case. I enjoyed reading it almost as much as reading "The Road to Serfdom."

I too, have something to say: go team! Hopefully this will be upheld.

Why? I don't care for the unchecked expansion of executive power, and even though I'm neither a lawyer or a law student all of the justifications I've seen for these detentions seem transparently absurd and predicated more on logic ("terrorists don't deserve rights") than legal reasoning. Justice Scalia certainly agrees with me on this.

9.9.2005 7:55pm

predicated more on logic

Oops. "predicated more on emotion."

9.9.2005 7:57pm

cfw (mail):

1) Having been in Luttig's classes, I sure do not recall any professor at UVA in 78-81 suggesting US law would support what L just wrote. Looks like something we will want to forget in 20 years.

2) I am surprised the 4th circuit cirulates draft opinions outside the panel charged with deciding the case. Seems like ex parte communication. I thought such communications needed to be shared with the parties.

3) I am not too hopeful about Roberts, given the result in Hamdan. Do not see Scalia standing behind the 4th circuit here, absent another terrorist even on US soil of 9/11 magnitude.

9.9.2005 7:58pm

Monkberrymoon (mail):

I'm not sure I understand the carping about how obviously wrong this opinion is (like whether there should be a "legitimate debate"). After all, Quirin seems to answer most of this stuff. And if it doesn't (for the reasons Scalia gives in Hamdi), it certainly isn't unreasonable to rely on it for an application of those issues to Padilla's case. I mean, Haupt was an American seized on US soil.
In other words, it's one thing to disagree with this opinion, it's another to pretend that this is some bizarre new land Luttig has thrust us into (and at the same time ignoring the existence of sixty-year old precedent).

9.9.2005 8:04pm

SimonD:

Do not see Scalia standing behind the 4th circuit here.

I agree. I'd go so far as to say that I can't see enough clear blue water between this case and Hamdi to suggest that anyone's views on this case aren't going to be wholly controlled by their views on latter.

9.9.2005 9:27pm

I can't see enough clear blue water between this case and Hamdi to suggest that anyone's views on this case aren't going to be wholly controlled by their views on latter.

But the facts in Padilla make the government's position much more dubious than the facts in Hamdi did. Hamdi was, as it were, caught red-handed and arrested on a foreign battle field. Padilla was arrested in a U.S. airport while doing nothing in particular. To the extent that the strength of the case is relevant (and I'm not at all sure it should be) you have to take the government's word that they've got a slam-dunk case against Padilla. There are three words you have to remember when evaluating this claim -- Wen Ho Lee.

If I were reading the tea leaves, I'd say that the Court tried to give the government a nudge in Padilla by disposing of it on procedural grounds. The government pointedly refused to take the hint. It's quite possible that even some members of the Hamdi majority will be a lot less comfortable with the idea of the federal goverment rounding up not-obviously-guilty American citizens in New Jersey than they were with American military forces capturing American citizens on battlefields in Afghanistan.

9.9.2005 9:58pm

PersonFromPorlock:

It ought to be pointed out that in this case, the government's practice of holding the plaintiff incommunicado makes it impossible to say if the evidence against Padilla justifies the plaintiff's detention, because there is no way to know if he is Padilla.

9.10.2005 6:39am

Antinome (www):

I yield to no one a greater outrage at the fact that President Bush claimed that he had a right to detain and hold deny all basic rights to a U.S. citizen on U.S. soil solely on an affidavit. When I saw the headline yesterday about the opinion I was angered and began composing in my head a pretty good rant about it.

That being said, when I read the opinion, I actually found myself maybe okay with the Court's position, (though I am little confused as to Padilla's attorney's strategy). The key to me is footnote one. When I first scanned the opinion, I kept wondering why is the Court just accepting that he is an enemy combatant, but then I actually read the footnote and it became clear. For the purposes of the summary judgment motion, Padilla stipulated that the govenrment allegations are true. To me this seems to be stipulating away the best part of his case. The Court is left with the question of whether the the president has the authority to detain an undisputed current member of Al Qaeda captured on U.S. soil.

There is an opinion by Charles Lee, the third attorney General under Washington that frames the issue nicely:

21 Aug. 17981 Ops. Atty. Gen. 84
Having taken into consideration the acts of the French republic relative to the United States, and the laws of Congress passed at the last session, it is my opinion that there exists not only an actual maritime war between France and the United States, but a maritime war authorized by both nations. Consequently, France is our enemy; and to aid, assist, and abet that nation in her maritime warfare, will be treason in a citizen or any other person within the United States not commissioned under France. But in a French subject, commissioned by France, acting openly according to this commission, such assistance will be hostility. The former may be tried and punished according to our laws; the latter must be treated according to the laws of war.

I have thought it my duty to make this communication in consequence of the information you received from Rhode Island, of the intentions of a Frenchman, whose name I do not now call to mind, who is said to be somewhere in this country, on the business of buying ships and supplies of a military kind, for the West Indies. He should be apprehended and tried as a traitor, unless he has a commission, and acts according to it; in which case he should be treated as an enemy, and confined as a prisoner of war.

If Padilla admits the things in the affidavit he should be tried for treason and be found guilty. Treating him as an enemy combatant with a "commission" is actually doing him a favor.

The problem, of course, is that Padilla probably does not actually admit the allegations or have a "commission". Therefore, in my view, he must be charged and tried for treason and given all related process. The limits on treason are one of the great rights the Founders put in the Constitution itself. But given the posture of the summary judgment, the Fourth Circuit did not reach that question.

9.10.2005 12:17pm

Antinome, I may be mistaken (&where else am I more likely to be corrected?), but in a summary judgment motion, the version of the facts favorable to the non-movant is usually assumed. The idea is that the movant's saying "hey, even on my opponent's version of the facts, I win as a matter of law."

Padilla's contention, as I understand it, was that--"enemy combatant" or no--he's a U.S. citizen apprehended on U.S. soil, and is thus entitled to be tried in the civilian courts, not by a military kangaroo court--excuse me, tribunal. (Folks, even some *prosecutors* have been complaining that the tribunals are too weighted against the detainees.)

Whether Padilla's in custody is not the issue. It's whether he's in the custody of the U.S. courts or of the executive branch.

At this late date, 3+ years after being picked up, I strongly suspect they're resisting the courts because the evidence against Padilla is inadmissible (i.e., hearsay, or torture-produced). Maybe one day we'll see.

Original TS: I hear ya, but I'll bet a silk pajama that Roberts's nomination rests 1st &foremost on assurances that he'll back Bush's expansion of C-in-C power, which certainly seems to matter to Bush more than anything else under the sun.

9.10.2005 3:48pm

Hmm, I am now more than a bit confused by the 4th Court's opinion. Here is what footnote one says:

For purposes of Padilla’s summary judgment motion, the
parties have stipulated to the facts as set forth by the
government. J.A. 30-31. It is only on these facts that we
consider whether the President has the authority to detain Padilla.

Amongst the facts that the Court recites is the following sequence:

Upon his escape to Pakistan from the
battlefield in Afghanistan, Padilla was recruited, trained,
funded, and equipped by al Qaeda leaders to continue prosecution
of the war in the United States by blowing up apartment buildings
in this country. Padilla flew to the United States on May 8,
2002, to begin carrying out his assignment, but was arrested by
civilian law enforcement authorities upon his arrival at O’Hare
International Airport in Chicago.

I was puzzled why Padilla would be even for the purposes of the motion stipulate to this ( I assumed that the argument was basically the president had no power to detain even if he was unabahedly an enemy combatant). Readign over the district Court's opinion though, it seems to me the 4th Circuit is playing fast and loose with what was stipulated. It looks like Padilla only stipulated to the circumstnces of his arrest.

Given this, I am back to thinking this opinion is a travesty.

9.10.2005 5:54pm

Duncan Frissell (mail):

Those who doubt the legality of holding US citizens indefinitly as POWs should be directed to the some 200,000 native-born US citizens held as prisoners by the Union forces in the Civil War. Some of those were no doubt irregular forces. Almost as many native-born US citizens were held by the government of the Confederacy.

Perfectly legal.

9.10.2005 6:55pm

Very interesting, Antinome. I'm not sure that the district court's recitation of some stipulated facts doesn't mean there were others stipulated to as well, but without access to the file, there's no way I know to tell.

Either way, the *rhetoric* of the 4th Circuit's op is interesting. Notice how heavily they lead with the "facts," especially as compared with the district court's op. One could say that the appeals court is showing a greater sensitivity to the real-world issues that the President must take into account. Alternatively, one could say that the 4th is substituting emotive reaction for dispassionate legal reasoning.

9.10.2005 7:00pm

Duncan, I'm not so eager to equate "done in the past" with "perfectly legal," though I'd study with interest any citations you may have to caselaw citing those detentions.

Antinome, &others, I was skeptical we could know what was stipulated to. The indispensable Marty Lederman has posted on the "return to the battlefield" argument; anyone interested in Padilla's case should read this &his previous posts.

Lederman included a link to part of the Joint Appendix, cited in Antinome's quote above as "J.A. 30-31."

Unfortunately, 30-31 contains no such stipulations, and the table of contents of the J.A. represents the stipulation as starting at pg. 92 of the J.A.---which the link gives only up to pg. 91.

Anyway, according to Lederman, the 4th got the "return to Afghanistan" bit *not* from any stipulations, but from the "Rapp declaration" by the feds. And that info wasn't known to the feds when they nabbed Padilla, but rather came out after what Lederman calls "highly coercive interrogation," which I suspect is equivalent to the kind that won't produce admissible evidence.

9.10.2005 7:37pm

Jimbeaux (mail):

Well, leading with the stipulated facts in this case strikes me as pretty important. Especially since precedent (the Haupt case) would make it necessary to determine if Padilla was acting as an "enemy soldier." If he wasn't, he can't be detained as a combatant and must be charged with a crime. If he was, well, it doesn't matter whether he was a US citizen or not (after all, American POW camps during the war had US citizens of Japanese and German parentage who fought for those respective countries).

9.10.2005 7:41pm

True as far as it goes, Jimbeaux, but see Lederman's post for some good discussion.

9.10.2005 8:21pm

And in case any of the Powers-That-Be should be lurking hereabouts, the color of the already-visited-page links is awfully low-contrast with the rest of the text. Just sayin'.

9.10.2005 8:22pm

Patrick (mail):

Er, Anderson, I'd be surprised if Robert's nomination had anything to do with any kind of deal. There is an argument that ex-DoJ Justices defer more readily to the executive, perhaps mainly by contrast with liberal judges, but then again see Scalia in the cases discussed in this thread.

So maybe Bush is counting on that, or on his knowledge of Robert's thinking - but a deal??

9.11.2005 9:07am

Patrick, I was vaguer than that: "assurances," not necessarily from Roberts himself. (No "deal" would work anyway: what's Bush going to do, sue Roberts for breach of contract if he votes against the White House?)

Assuming, of course, that someone at the White House has put a little more thought into this nomination than went into, say, Souter's.

9.11.2005 2:54pm

Oh, and if anyone's interested, Eric Muller leaves a smoldering crater where formerly stood Judge Luttig's "reading" of Ex parte Endo. Take a look---Luttig would at best eke out a low C on a law school exam.

9.11.2005 2:59pm

Considering historical examples, the Alien and Sedition Acts come to mind, as compared to what happened in the Civil War or WWII. Adams reacted to real treason (what we would now consider treason) in ways now condemned as over-reaction. Tensions with England and France then might have justified indefinite detention of supposed enemy combatants (disputing over wastern lands, searches of ships, impressment, Hamilton's secret plan to lead an army to topple Spain in North America and Mexico, etc.). Instead, the constitutional approach (within US borders) generally understood since then, calls for treason trial, due process, etc.

The Civil War was an exception involving vastly different facts. I am not aware of any 200,000 detentions analogous to those of Padilla. Detentions of 200,000 civilians by Lincoln happened where? I suspect the procedure was to rely on parole (written promises to return home and fight no more, as when 35,000 surrendered to Grant after Vicksburg).

What we want to avoid, it seems to me are 2 things: 1) over-reaction of the sort that led to detention of tens of thousands innocent Japanese Americans duing WWII without charges; and 2) releasing the equivalent of a Willie Horton who will promptly blow himself to smithereens in some public place, killing innocents. Twenty years from now, historians will be hard to persuade that Bush, the FBI, the CIA, the police, the military, etc. could not release and shadow Padilla (legally) instead of resorting to indefinite detention without trial.

Bush does not have the 200,000 hostiles (or questionables) within his jursdiction that Lincoln had to deal with, or the hundreds of thousands detained in foreign lands (generally) that FDR had to neutralize.

9.11.2005 3:13pm

I'm not sure why Endo should apply one way or the other. After all, she wasn't an "enemy soldier" trying to blow up crap in America (like those German dudes).

As for the Civil War, I think that when "200,000 civilians" is used, you probably mean citizens. Those were soldiers, so they were simply detained until the end of hostilities (or when, as you point out, it seemed a better idea to just let 'em go). As for civilians who were detained by Lincoln, he did go through the rudiment of suspending habeas corpus (as Scalia suggested). The stickier question is what do you do with a US citizen who also happens to be an enemy soldier? Obviously, if you catch him on a foreign battlefield, you can treat him like a war prisoner. If you catch him on US soil, apparently, a lot of you think you can't (or shouldn't) I'm not sure why. If there was a mass invasion of Canadians tomorrow (snicker), and battles were being fought in Vermont and Minnesota, should we have to give the captured American citizens in the Canadian Army (and I'm sure there would be some) access to US courts?

9.11.2005 6:22pm

One point that's being lost here, I think, is that Bush is claiming the authority to label as an "enemy combatant" *anyone he sees fit.* All the esoteric discussions of whether Padilla is more or less like an enemy soldier are irrelevant, as near as I can tell, b/c Bush thinks that "I say he's an enemy combatant" should be "enough to satisfy the Supreme Court," to paraphrase Julius Caesar.

9.11.2005 7:33pm

Perhaps that point is being lost here because it's not really at issue. The question is whether, assuming that the prisoner is an enemy combatant, can he be held in a military brig. The answer to the question you raise (who gets to decide enemy combatant-status) I guess has to wait for another day.

9.11.2005 8:37pm

POW status does not offend me. But a POW has a right to a hearing with court martial proceedings, as I understand the Geneva Convention. That is not what is proposed for Padilla. He gets to sit as a pretrial detainee until hell freezes over. Brig or jail is not the point, in my view. Point as I understand it is does he get some sort of hearing, with rules of evidence, on no.

9.11.2005 11:34pm

Well, not every prisoner is an according-to-Hoyle Geneva Convention prisoner. Conducting warfare without "fixed and distinctive emblems" sort of craps on one's POW status (although I'm aware of the controversy WRT to who gets to determine the prisoner's status -- this is just an arguendo kinda thing). It's like that Haupt guy (also a US citizen) who was in the German Army, ditched his uniform when he arrived here, and then stupidly got caught. He was tried before a military commission and executed. That wouldn't happen to a Geneva convention POW.

I'm not sure what you mean by "pretrial detainee." I don't think he's under indictment, nor has he been charged with anything (but I could be wrong). If he's treated as a soldier, he gets to be a prisoner until the end of this war. Then, I suppose, he could be tried for some crime he may have committed (assuming the statute of limitations hasn't run).

9.12.2005 3:18am

I am still not seeing why one cannot try folks like Padilla and the Orange County nut now threatening LA for treason. Bush has no faith in the jury system, lawyers, etc. He probably knows he will lose with Padilla, or at least be in trouble based on coercive interrogation. Fine. Take the medicine and move on. A military commission, if it provides modern court martial procedural protections, does not offend me. So far, Bush has offered nothing like modern court martial procedural protections.

9.12.2005 10:10am

I'm not sure I agree that it's legally necessary to try him (of course, I'm not sure it isn't), but it would certainly solve a lot of problems.

Maybe he's gonna spend the rest of this war in a brig b/c the gov't doesn't wanna admit that he's John Doe No. 2. :}

FWIW, a military commission won't have the same procedural safeguards as a court martial (but I don't think it's fair to characterize it as a rubber stamp thing)

9.12.2005 11:14am

Matt Barr (mail) (www):

cfw: The answer the Fourth Circuit gives to that question is that the point of detaining an enemy combatant is to keep him from returning to the field of battle, which prosecuting him doesn't guarantee. I think that's wrong and that the real point is to be able to interrogate him without his having an attorney present or the right to remain silent. Either one is attractive to the President in the case of an al Qaeda operative, I'm sure.

9.12.2005 11:21am

"I'm not sure I agree that it's legally necessary to try him (of course, I'm not sure it isn't), but it would certainly solve a lot of problems." I'm not sure how one gets around having some sort of trial without appearing uncivilized. It seems like Bush wants to pretend there is no judicial function that should concern us here. Wrong structurally, in my view.

"Maybe he's gonna spend the rest of this war in a brig b/c the gov't doesn't wanna admit that he's John Doe No. 2. :}" If we had in mind a 3-4 year war, this might not look extreme, at least at this point. But we may have a 20-30 year sort of cold war on terror.

FWIW, a military commission won't have the same procedural safeguards as a court martial (but I don't think it's fair to characterize it as a rubber stamp thing)Military commission procedures were one thing in 1945, and can be something more elaborate now. The President simply signs an executive order saying the manual for courts martial, UCMJ procedures will apply. Bush wants to go back to procedural rules from 1945, and then hack back the rights of the defense still furthter. I am not seeing how he will be able to convince the JAG Corps that this treats Padilla et al fairly. As a former Army JAG, I would be disappointed if the relevant JAG lawyers now blithely let themselves be used as Bush now suggests. So far, the relevant JAGs, or at least a reasonable number, seem to have resisted.

9.12.2005 12:40pm

I don't think the potential length of a war should influence whether we let an enemy soldier recirculate back to the battlefield. There are many circumstances under which World War II (at least in Europe) could have dragged on for years. In that case, it wouldn't have been a good idea just to let prisoners go because we're worried that they're gonna be under confinement for an undetermined period of time. (And of course, I'm talking about Congress' declared war on the entity known as Al Qaeda, not some vague WOT or war on drugs or whatever).

If AQ was concerned about its soldiers wasting away in prisons, they could surrender. Or arrange for an exchange. Or something. But I don't think the continued (i.e., potentially indefinite) detention of AQ terrorists should be the concern of the US.

Your point about military commissions is well-taken.

9.12.2005 1:20pm

I like the idea of detaining AQ terrorists for life, once a fair trial has rationally shown the AQ member remains someone who probably return to the battle and blow himself to smithereens killing innocents. That would be a great result.

But one needs a really high-class, state of the art trial procedure to make that sort of call fairly and reasonably, in my view. I would not want to make that call as a Rumsfeld, Bush or Myers without trial procedures that comport with due process as we now understand it.

Sexually violent predators in CA have due process rights of the sort I could see being given to folks like Padilla.

Skimpy commission procedures of the sort now proposed make us look like uncivilized pikers and "scaredy cats", in my view. UCMJ Article 15 non-judicial punishment for minor offenses (drunk driving, etc.) gives a citizen soldier more procedural protections than the commission procedures proposed.

I am not sure I would have said what I now say in October 2001, or 1943, or 1863, or 1798, but times change, and we need to build procedural rules from reason, without too much emotion.

9.12.2005 2:29pm