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Motion to Dismiss Denied in Padilla v. Yoo:

A federal judge has largely denied John Yoo's motion to dismiss Jose Padilla's suit against him. There's a brief NYT report here, and more on the Constitutional Law Prof blog here.

Prior posts on this litigation are here.

UPDATE: More coverage from NYT and San Francisco Chronicle.

Thackery:
This is most excellent news! That a convicted terrorist can sue a former administration lawyer over drafting legal theories regarding interrogation techniques makes perfect sense to me. After all, as judge Jeffrey White said, he's just ..."trying to balance a clash between war and the defense of personal freedoms."
6.13.2009 6:58pm
ck:
Related to this topic, a good comment on Reason's Hit and Run blog from a while back:


peachy | April 27, 2009, 6:33pm | #
One problem with this approach is that the Bushies have constructed a clever little responsibility-absolving machine - you can't prosecute the lawyers because they were only giving advice and not actually doing anything. And you can't prosecute the people who did do things, because they were just following advice from the lawyers.

Today the two-step is used to evade responsibility for torture - what will it be used to cover for tomorrow?
6.13.2009 7:15pm
ArthurKirkland:
It makes at least as much sense as the three-part series of ostensibly universal defenses -- (1) 'I was simply providing legal advice,' (2) 'I was merely creating policy,' and (3) 'I was just following orders' -- being advanced by those involved in torture and being swallowed by those who endorse torture.

Exceedingly few of those abused in U.S.-conducted and -arranged captivity have been "convicted terrorists." Most were not terrorists. Some were innocents. The abuse ranged from being humiliated to being beaten to being waterboarded to being beaten to death.

That our legal system might provide justice to those abused while in shackles (and to those who abused shackled prisoners in the name of the United States) should be a point of pride for Americans.
6.13.2009 7:22pm
Cornellian (mail):
This is most excellent news! That a convicted terrorist can sue a former administration lawyer over drafting legal theories regarding interrogation techniques makes perfect sense to me.

Feel free to cite the statute that says the government can torture you as long as you've been convicted of something.
6.13.2009 7:38pm
in addition ...:
just to add to Cornellian's response to Thackery:

Feel free also to cite to the part where those in Gitmo were "convicted" of being terrorists. Or convicted of anything at all for that matter. Last I heard we're _still_ contemplating indefinite detention without trial.
6.13.2009 8:47pm
pt98 (mail):
Well, Padilla's been convicted.
6.13.2009 8:59pm
Thackery:

Feel free to cite the statute that says the government can torture you as long as you've been convicted of something.
Where are you getting this "torture" thing from? Geez, stay on topic, please.
6.13.2009 9:04pm
zuch (mail) (www):
ck:
...what will it be used to cover for tomorrow?
I dunno. Maybe the two dozen or so homicides of detainees (for which not a single charge of murder has been pressed as yet)?

Cheers,
6.13.2009 9:22pm
David M. Nieporent (www):
Well, Padilla's been convicted.
And he has also never been in Gitmo. But other than that, "in addition"'s post is entirely relevant.
6.13.2009 9:27pm
zuch (mail) (www):
David Nieporent:

Just what significance (in your mind) does being convicted (later) have to do with treatment prior to conviction?

Cheers,
6.13.2009 9:36pm
PostNoBill:
Absolutely ridiculous outcome. Here's the way out:

If you're a citizen, and you are found to have engaged in an act of war against the United States, at that point you should have absolutely no constitutional rights on the theory that constitutional rights derive from citizenship and citizenship is forfeited when one engages in an act of war.

At that point the only rights you should have are those Congress has decided to give you by statute or those conveyed to you under American treaty obligations. As I understand the law, an illegal combatant is not entitled to the protections of most if not all treaty provisions relating to such matters.
6.13.2009 9:40pm
metro1 (mail) (www):
this will never make it by the court of appeals. even the 9th circuit won't buy this junk. if this type of complaint worked, every government lawyer would be defending civil suits weekly. government officials have immunity for their official acts - even if you disagree with them. hat tip to this District Court Judge however - now Pres. Obama will make him an appellate judge. being a successful judge require some political savvy.
6.13.2009 9:48pm
Cornellian (mail):

If you're a citizen, and you are found to have engaged in an act of war against the United States, at that point you should have absolutely no constitutional rights on the theory that constitutional rights derive from citizenship and citizenship is forfeited when one engages in an act of war.


That may be your preferred scenario but nothing in the Constitution gives the federal government the power to revoke the citizenship of a natural born citizen.
6.13.2009 9:59pm
aaronM (mail):
PostNoBill:

While your theory might be clever, it has absolutely no legal merit. See Boumediene v. Bush. Constitutional rights do not necessarily derive from citizenship. Furthermore, the Eight Amendment says that cruel and unusual punishments shall not be inflicted. It's phrased as a bar on governmental action, not as a grant of right to the citizenry.
6.13.2009 10:04pm
Anderson (mail):
I suppose we will now hear that Bowers actions aren't supposed to be brought by "convicted felons"?

RULE OF LAW, folks. It protects everybody, or it protects nobody. Pick one.

... On the merits, Padilla's suit seems a long shot; that it survived a motion to dismiss is no great shakes, since that merely judges whether the complaint states a claim; and I suppose we'll next see a motion for an interlocutory appeal to the circuit court of appeals, where Yoo may fare better.
6.13.2009 10:32pm
Anderson (mail):
Furthermore, the Eighth Amendment says that cruel and unusual punishments shall not be inflicted. It's phrased as a bar on governmental action, not as a grant of right to the citizenry.

Hey, no fair with the strict construction, Aaron.

... Re: "citizens," observe the use of the word "person" in the 14th Amendment, and google "Yick Wo."
6.13.2009 10:35pm
Mahan Atma (mail):
"government officials have immunity for their official acts - even if you disagree with them."


Eh... not quite. It's "qualified immunity", which means there is a limit to it. The judge considered and (rightly) rejected it.


"hat tip to this District Court Judge however - now Pres. Obama will make him an appellate judge. being a successful judge require some political savvy."


In all likelihood, Judge White is going to retire soon. This has nothing to do with a desire to be in the Ninth Circuit.

Lawyers who have practiced before Judge White know that he is a thoughtful, careful judge. His opinion is well-written. If you think it's incorrect, why don't you read it and tell us where he went wrong?
6.13.2009 10:39pm
Cornellian (mail):
I suppose we'll next see a motion for an interlocutory appeal to the circuit court of appeals, where Yoo may fare better.

I'm sure Judge Bybee will be sympathetic to Mr. Yoo's plight.
6.13.2009 10:42pm
aaronM (mail):
Good point, Anderson. In Padilla's case, though, he was [allegedly, cough, cough] tortured by the feds. He doesn't need number 14 to get to the Eighth. It applies directly.
6.13.2009 10:45pm
aaronM (mail):
Oh, I read that wrong. Oops.
6.13.2009 10:47pm
Mahan Atma (mail):
I don't think an appellate court can take jurisdiction over a denial of a motion to dismiss for failure to state a claim. That's off the top of my head though, I may be wrong.
6.13.2009 10:51pm
Mahan Atma (mail):
"In all likelihood, Judge White is going to retire soon"


I take that back, I'm thinking of Judge Whyte in San Jose.
6.13.2009 10:55pm
PostNoBill:
Cornellian:

My view is that a person who engages in war on the United States constructively forfeits his citizenship. No act of the federal government "revokes" it.

aaronM:

Citing U.S. Supreme Court cases isn't going to be very persuasive to me, because I believe Supreme Court jurisprudence in this area has been very wrong for a very long time. Further, what in Boumediene v. Bush contradicts what I have suggested? (Not a rhetorical question; back when I was on law review, they taught us that when we cite cases, we should include a parenthetical explaining what about the case is important when not evidence from context.)

To your point that constitutional rights do not necessarily derive from citizenship, I don't believe that's correct at all, except to say that to the extent portions of the Constitution are restatements of natural rights (as the Second Amendment is, as a prominent example) then fine, noncitizens have them. But they do not derive them from the Constitution.

And from a natural rights standpoint, an illegal combatant was entitled to very few. Summary execution has historically been allowed under the law of war in these narrow circumstances and practiced with some frequency until recent times, so a natural rights analysis would be of much help to the terrorists in this situation.

And I appreciate your textual argument re the Eighth Amendment, but my view (and I believe the correct view) is that the Eighth Amendment is applicable to punishments inflicted as a result of the criminal justice system and is not in any way applicable to warfighting. Further, from a purely textual standpoint, if torture is inflicted not as a punishment but as a means to an end, i.e. the gathering of information, then it is not barred by the Eighth Amendment. Please don't construe that as a statement in favor of torture, I firmly oppose it myself, but from a purely textual standpoint, the Eighth Amendment plainly does not prohibit the torturing of an individual apprehended while engaging in acts of war against the United States for the purpose of obtaining information about enemy plans, tactics, etc.
6.13.2009 11:55pm
Cornellian (mail):
My view is that a person who engages in war on the United States constructively forfeits his citizenship.

Can you cite anything in the text of the Constitution that supports that view?
6.14.2009 12:05am
PostNoBill:
Cornellian,

Can you cite anything in the text of the Constitution that opposes it? And if Nishikawa v. Dulles, 356 U.S. 129 (1958) was rightly decided, I win on the constitutional question, though whether the statutes governing citizenship-stripping are textually broad enough to operate under my suggestion is another question.

If you're asking "Could Congress constitutionally pass a law that someone who makes war on the United States forfeits citizenship?" The answer to that is clearly yes. Whether they have already done so, I don't know, I haven't carefully read the relevant immigration statutes, but I bet there's a catch-all provision that would be broad enough to cover this.
6.14.2009 12:35am
Mahan Atma (mail):
"Can you cite anything in the text of the Constitution that supports that view?"


Actually, there's something in the Constitution that seems to suggest exactly the opposite. Art. III, Sec. 3 requires an extra layer of proof for the prosecution of treason:

"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."


This is the only provision in the Constitution that sets added evidentiary requirements for a particular crime. You know why? Because many of the Framers were liable for treason arising our of their participation in the Revolution. So they were rather sensitive to it.

The idea that they would have eviscerated all Constitutional protections for someone accused of Treason is ludicrous.
6.14.2009 12:40am
Mahan Atma (mail):
"And if Nishikawa v. Dulles, 356 U.S. 129 (1958) was rightly decided, I win on the constitutional question..."


It seems to me there's a difference between losing citizenship and losing constitutional rights.
6.14.2009 12:47am
aaronM (mail):
1. Boumediene said that the Constitution requires that non-citizens be able to petition a court for habeas review. (And your Bluebook snark on parentheticals is off base. They're not necessary after "see," whereas they're recommended after some of the others.)

2. There's a difference between constitutional rights and constitutional commands. The former belongs to citizens, the latter is aimed at the government. I see you like the 2d Amendment. "[T]he right of the people to keep and bear Arms, shall not be infringed." The right there is "of the people to keep and bear arms." The command is that the right "shall not be not be infringed." See the difference? Now go back and read the 8th Amendment. It's clearly a command, saying only what the government may not do. It doesn't matter whether the person subjected to cruel and unusual punishment is a citizen or not--the government is not allowed to do it.

3a. The Eight Amendment doesn't say criminal punishment.

3b. I'm not touching the last bit.
6.14.2009 12:52am
PostNoBill:
aaronM,

No Bluebook snark intended, your citation to Boumediene was a bit of hand-waving in my view. Besides, Boumediene was wrongly decided; Scalia's dissent gets it mostly right.

And torturing someone to get information is not "punishment" as the word is used in the English language then and now. The person may not be guilty of any crime, merely possession knowledge that would be helpful to the government. That is not to say it is a good idea or something a civilized society should do, but it is absolutely not punishment.
6.14.2009 1:09am
ReaderY:
In states where fetuses have a state right to sue, suggest adopting this creative method and suing the lawyers who serve as counsel or draft briefs in abortion cases.

After all, the fact that something may be constitutional, even upheld on direct appeal, doesn't mean it or those associated with it can't be subjected to a variety of methods of collateral attack.
6.14.2009 1:14am
PostNoBill:
Mahan Atma,

A citizen accused of treason has the full gamut of rights. A person convicted of treason could have citizenship revoked as a penalty. Whether that is still possible from a statutory standpoint, I don't know. Whether it is constitutionally permissible, I believe the answer is yes; some U.S. Supreme Court cases leave that in doubt, however.
6.14.2009 1:14am
Oren:


If you're a citizen, and you are found to have engaged in an act of war against the United States, at that point you should have absolutely no constitutional rights on the theory that constitutional rights derive from citizenship and citizenship is forfeited when one engages in an act of war.

Even accepting this dubious logic, the government put the cart before the horse here. First it subjected Padilla to arbitrary detention and alleged other misdeeds and only later was there a finding that he engaged in war against the US.

There's a recursion problem here -- even if we accept your assertion citizen-come-terrorist ought to have no rights that doesn't imply that a citizen merely accused of being a terrorist has no rights until he is duly convicted under the rules that apply to a citizen.
6.14.2009 1:20am
2cents (mail):
PostNoBill,

If I am just misunderstanding what you are saying, please let me know. But, it appears that you are, to use a term of art, "wrong."


My view is that a person who engages in war on the United States constructively forfeits his citizenship. No act of the federal government "revokes" it.

Constructive forfeit of citizenship? How can this possibly exist without action of the Federal Government? Take a look at this:


§ 1481. Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions

(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality--
(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or
(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or
(3) entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or noncommissioned officer; or...
(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, United States Code, or willfully performing any act in violation of section 2385 of title 18, United States Code, or violating section 2384 of said title by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.

(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after the enactment of this subsection [enacted Sept. 26, 1961] under, or by virtue of, the provisions of this or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.


8 USC § 1481



Seems clear that acts of war by themselves are not enough (also requires intent to relinquish nationality). Under (a)(7), predicate to loss of nationality is conviction by court-martial or court of competent jurisdiction...which means that prior to loss, the accused is accorded...status of a US Citizen.

Are your views on constructive revocation what you wish the law to be or what you think is the state of current law. Am I missing something?
6.14.2009 1:28am
Mahan Atma (mail):
"A citizen accused of treason has the full gamut of rights."


Oh, well I'm glad we've at least come that far...

It was not very long ago that the Bush administration claimed it could declare a citizen to be an enemy combatant and refuse them any kind of trial whatsoever.

I once asked Alberto Gonzales how that squared with the Treason Clause, but obviously he had no answer.
6.14.2009 1:42am
PostNoBill:
Oren,

Your reference to Padilla's detention as being "arbitrary" is absolutely ludicrous. The government had evidence that he was an active member Al Queda.

My opinion is than an individual detained on the field of battle (wherever that may be) should have the rights associated with the person's status as a prisoner of war, illegal combatant, etc. I don't believe any portion of the U.S. Constitution guaranteeing rights was intended to in any way restrict or modify warfighting, an argument very close to the Scalia dissent in Boumediene.

Let me pose a hypothetical: a U.S. infantry company takes fire from a house and engages. The soldiers take a prisoner, fighting out of uniform, who states that he is an American citizen. May the soldiers proceed to engage in routine battlefield interrogation (no torture) without Mirandizing the prisoner?

My view is that the answer is very clearly yes, that Miranda has absolutely no application to battlefield detainees or prisoners of war, regardless of the status of their citizenship. The same result obtains with regard to other Constitutional protections as well (and frankly, Miranda-as-constitutional-requirement is pretty ludicrous anyway, but that's a different argument). Civil rights protections in the U.S. Constitution simply were not intended or designed to apply to the battlefield.

We have absolutely no problem whatsoever recognizing constitutional protections as less-than-absolute in many areas, fire-in-a-crowded-theater and all that. But the notion that individuals detained in war should be treated like a burglar arrested by the county sheriff's office is far more extreme than the idea that the First Amendment protects the right to falsely shout fire in a crowded theater.
6.14.2009 1:46am
Henry679 (mail):
Please tell me that the people here devising the ex post facto justifications for the alleged torture of American citizens are not lawyers. Please.
6.14.2009 1:53am
PostNoBill:
Mahan Atma,

You wrote:

It was not very long ago that the Bush administration claimed it could declare a citizen to be an enemy combatant and refuse them any kind of trial whatsoever.


What the Bush Adminstration did was say that when an individual is engaged in making war against the United States, that person should be treated as a warfighter rather than a criminal, even if the detainee is a citizen. That is an eminently reasonable position given the absurdity of the contrary rule, which effectively turns combat soldiers into policeman if the guy shooting at them just happens to have U.S. citizenship.

At common law, unlawful combatants were subject to summary execution. Instead of filing a lawsuit, Padilla should be happy that his end and the end of a rope did not conveniently coincide.
6.14.2009 1:58am
PostNoBill:
2cents,

Under the statute, citizenship is forfeited by the act of the (now former) citizen, not by the act of the federal government. The fact that there is an accompanying adjudicatory process doesn't mean that the federal government revokes the citizenship. The remainder of the statute shows how the federal government PROVES that the citizen forfeited citizenship by his own act.

My point, a quite modest one I believe, was that making war against the United States is incompatible with being a citizen of the United States.
6.14.2009 2:11am
Mahan Atma (mail):
"What the Bush Adminstration did was say that when an individual is engaged in making war against the United States, that person should be treated as a warfighter rather than a criminal, even if the detainee is a citizen. That is an eminently reasonable position given the absurdity of the contrary rule, which effectively turns combat soldiers into policeman if the guy shooting at them just happens to have U.S. citizenship. "


We're talking about what to do with someone who is in custody. Nobody is shooting at them, because they're no longer on the battlefield.

How do you square Bush's policy with the Treason Clause?
6.14.2009 2:30am
badger (mail):
PostNoBill,

It's clear that it's not just the act that forfeits the citizenship, but also the intent to forfeit the citizenship. It was in bold, so I'm not sure how you missed that. That this vaguely defined "making war" must always invovle an intent to forfeit citizenship seems way off. When is a person "making war" and when are they just engaging in criminal behavior? Was Timothy Mcveigh "making war"? Is there any doubt that he did not (in his own twisted mind) think that what he was doing was antithetical to being a U.S. citizen? What about the various nutjobs who have attempted to assassinate U.S. Presidents over the years? Were we wrong not to just summarily execute them all?
6.14.2009 2:44am
2cents (mail):
PostNoBill,

I think the problem with this argument is it seeks to avoid the legal questions with rhetoric. Sure, rhetoric is used all the time in making legal arguments. But it does not supersede the requirements of law.


Under the statute, citizenship is forfeited by the act of the (now former) citizen, not by the act of the federal government. The fact that there is an accompanying adjudicatory process doesn't mean that the federal government revokes the citizenship. The remainder of the statute shows how the federal government PROVES that the citizen forfeited citizenship by his own act.



By this same logic, it seems you could say, punishment is adjudged because the criminal violated a provision of the US Code, not by the act of the federal government in prosecuting him. The fact that there is an accompanying adjudicatory process (trial) doesn't mean the federal government punishes the criminal. The statute violated just shows how the federal government PROVES that the citizen voluntarily relinquished his freedom by his own act.

But, lets leave all this for a moment and return to Padilla and your post:




Absolutely ridiculous outcome. Here's the way out:

If you're a citizen, and you are found to have engaged in an act of war against the United States, at that point you should have absolutely no constitutional rights on the theory that constitutional rights derive from citizenship and citizenship is forfeited when one engages in an act of war.

The only way under the statute for this to apply to Padilla is after conviction in a criminal court. But in this suit, he is seeking to fix civil liability to Mr. Yoo for his treatment at the hands of the government without a trial or means of challenging his detention. Without the precedent trial and conviction, the government cannot apply the solution you suggest, that is denying him the rights of citizenship (not that I agree this solution would deprive him of his rights to challenge his detention and treatment in a civil suit).

You do know that citizenship is not the only basis for Constitutional rights, right? I don't see how your solution is a "way out" for what you term a "ridiculous outcome."

As for the earlier comment,


"At common law, unlawful combatants were subject to summary execution. Instead of filing a lawsuit, Padilla should be happy that his end and the end of a rope did not conveniently coincide."

Bills of Attainder were used at common law to execute people. Should Padilla be glad that that device was not used to execute him, too?
6.14.2009 2:54am
M N Ralph:

Further, from a purely textual standpoint, if torture is inflicted not as a punishment but as a means to an end, i.e. the gathering of information, then it is not barred by the Eighth Amendment.


By your reasoning, it would be permissible to torture a criminal suspect to obtain a confession or to obtain any type of information. I'm not really familiar with 8th Amendment jurisprudence, but that can't be right.
6.14.2009 3:01am
2cents (mail):
My last comment was not meant to be snarky. I am trying to point out that it has little relevance what the common law used to be when statute or current common law demand a different outcome. I think the reference to what the common law used to provide for offers little to the discussion.
6.14.2009 3:08am
aaronM (mail):
I can't believe I'm defending PostNoBill, but this,


By your reasoning, it would be permissible to torture a criminal suspect to obtain a confession or to obtain any type of information.

is incorrect.

No criminal suspect will be bringing an Eighth Amendment challenge in that scenario. The torture would be a due process violation, as well as a self-incrimination one. And the suspect would win on those challenges.

Under Post's "theory," torture is not punishment a) because it's not the result of a criminal proceeding, and b) because it's the means to an end. But even assuming the validity of this presumption, torturing criminal suspects would still violate other parts of the Constitution.
6.14.2009 3:14am
Cornellian (mail):

Can you cite anything in the text of the Constitution that opposes it?


Well, yes, there's the 14th Amendment, which provides:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

There is no exception in this language for natural born citizens who do things the government doesn't like.

"If you're asking "Could Congress constitutionally pass a law that someone who makes war on the United States forfeits citizenship?" The answer to that is clearly yes."

The 14th Amendment says anyone born in the US is a citizen. There's no exception for people who make war on the US (which, by the way, is not what Padilla was convicted of) or who do anything else, nor is there any constitutional provision saying that Congress can revoke the citizenship of a natural born citizen.
6.14.2009 3:35am
David M. Nieporent (www):
David Nieporent:

Just what significance (in your mind) does being convicted (later) have to do with treatment prior to conviction?
I don't believe I said it had any.
6.14.2009 4:03am
zuch (mail) (www):
PostNoBill:
Absolutely ridiculous outcome. Here's the way out:

If you're a citizen, and you are found to have engaged in an act of war against the United States, at that point you should have absolutely no constitutional rights on the theory that constitutional rights derive from citizenship and citizenship is forfeited when one engages in an act of war.
That would be Something Completely Different, indeed.

AFAIK, you have to voluntarily give up your citizenship under current jurisprudence. Letting governments strip citizenship of those they don't like would seem a rather blunt tool to anyone conversant with democratic theory.

Then there's this curious notion that non-citizens have no rights. Where did that come from?

And lastly, this "found to have engaged in an act of war" seems a tad nebulous ... as the Padilla case itself shows.

Cheers,
6.14.2009 7:58am
J. Aldridge:
Cornellian wrote: "That may be your preferred scenario but nothing in the Constitution gives the federal government the power to revoke the citizenship of a natural born citizen."

Congress have done mass de-naturalizations in the past. If they can give, they can take away!

Padilla isn't a natural born citizen under any stretch of the imagination, anyway. In U.S. v. Wong Kim Ark the majority held the meaning of "subject to the jurisdiction" had been fully adjudicated in Elk v. Wilkins. In Elk, the court held "subject to the jurisdiction" means not "merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other."

One BIG thing people overlook today is "subject to the jurisdiction" equally pertains to those naturalized and born. Hint: Naturalization is all about "allegiance."

If I recall correctly, Scalia stopped short of of referring to Padilla as a citizen last time he was before the court.
6.14.2009 8:00am
man from mars:
Judge White's denial of a motion to dismiss for failure to state a claim quotes from the New York Times, the Los Angeles Times, and the Washington Post! (Order p. 14-15).
6.14.2009 8:01am
zuch (mail) (www):
PostNoBill:
My view is that a person who engages in war on the United States constructively forfeits his citizenship. No act of the federal government "revokes" it.
Hey, what a neat dodge! Let's next deem that all that vote Republican also "constructively forfeit [their] citizenship".
Citing U.S. Supreme Court cases isn't going to be very persuasive to me, because I believe Supreme Court jurisprudence in this area has been very wrong for a very long time.
IOW, you're not interested in discussing what the law is. OK, nice to know....
Further, what in Boumediene v. Bush contradicts what I have suggested? (Not a rhetorical question; back when I was on law review, they taught us that when we cite cases, we should include a parenthetical explaining what about the case is important when not evidence from context.)
Did they also teach you to "proofread, proofread, proofread!"? ;-) A more direct reply: Boumediene held that non-citizens do have at least some rights in U.S. courts (the ones that petitioner Boumediene was asserting).

Cheers,
6.14.2009 8:10am
zuch (mail) (www):
PostNoBill:
Summary execution has historically been allowed under the law of war in these narrow circumstances and practiced with some frequency until recent times, so a natural rights analysis would be [sic] of much help to the terrorists in this situation.
No. Summary execution has not historically been allowed. The primary (almost exclusive) practitioners of this in recent times have been Nazi Germany and Imperial Japan, hardly role models for us. And "summary execution" away from the exigencies of the battlefield has never been the practise of any country.

Cheers,
6.14.2009 8:19am
zuch (mail) (www):
PostNoBill:
[F]rom a purely textual standpoint, the Eighth Amendment plainly does not prohibit the torturing of an individual apprehended while engaging in acts of war against the United States for the purpose of obtaining information about enemy plans, tactics, etc.
Why, when you're right, you're right. I was confoozed, but I looked again, and there it was:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted unless the gummint really, really, really needs to know something right now (or thinks it does)."
Silly me....

Cheers,
6.14.2009 8:26am
zuch (mail) (www):
PostNoBill:
Your reference to Padilla's detention as being "arbitrary" is absolutely ludicrous. The government had evidence that he was an active member Al Queda [sic].

My opinion is than an individual detained on the field of battle (wherever that may be) should have the rights associated with the person's status as a prisoner of war, illegal combatant, etc.
I've been through O'Hare during a snowstorm, and, yes indeed, the carnage was horrific. I saw one counter agent nearly flayed....

Cheers,
6.14.2009 8:39am
geokstr (mail):

zuch:
No. Summary execution has not historically been allowed. The primary (almost exclusive) practitioners of this in recent times have been Nazi Germany and Imperial Japan, hardly role models for us. And "summary execution" away from the exigencies of the battlefield has never been the practise of any country.

Forgot the socialist proletarian utopias beloved by the left, like the USSR, China, Cuba, etc, etc, didn't you? They only bothered with splashy kangaroo trials first for the big names with propaganda value. And that was in peacetime against their own citizens too.
6.14.2009 8:47am
zuch (mail) (www):
J. Aldridge:

Padilla was born here.

Cheers,
6.14.2009 8:54am
zuch (mail) (www):
geokstr:

There's a difference between summary execution and trials that might not meet the full protections of a U.S. Article III court (or of a court martial). But I'd note the rush of the Dubya maladministration (with the spineless complicity of too many Democrats) to move towards the kangaroo courts you seemingly despise. See here, here, and here (also here).

Cheers,
6.14.2009 9:09am
J. Aldridge:
Padilla was born here.

My great grand mother was born in NY and that didn't make her a citizens until her father became Naturalized.
6.14.2009 9:29am
Ken Arromdee:
My view is that a person who engages in war on the United States constructively forfeits his citizenship. No act of the federal government "revokes" it.

Even if this is all true, then how do you determine that a person has engaged in war with the United States? If the law in fact allows that someone who makes war on the United States has given up his rights, we'd still need a trial to determine that he has done such a thing. And he'd still retain those rights during the trial, since during the trial, the determination has not yet been made.
6.14.2009 10:01am
zuch (mail) (www):
J. Aldridge:
[zuch]: Padilla was born here.
My great grand mother was born in NY and that didn't make her a citizens until her father became Naturalized.
I think this is wrong:
Fourteenth Amendment:
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside...."
Unless she was born pre-14th.

Even if it were right, it would not be applicable. AFAIK, Padilla's parents were also U.S. citizens.

Cheers,
6.14.2009 10:05am
Anderson (mail):
IOW, you're not interested in discussing what the law is. OK, nice to know....

Yah, I'm a bit more interested in what the law is than in Fantasy Law League musings, tho the latter have their place in law journals ... and, admittedly, in blog comments.

The point with Padilla is this: IF what he alleges in his complaint is true, THEN he has a colorable case. That's all the district court has said at this stage.

Anyone who cares to disagree with that ruling, needs to start by citations to that complaint to demonstrate that the district court got it wrong.

(I expect Yoo will seek interlocutory appeal to avoid the burdens of discovery, and that Obama's DOJ will be right there with him, arguing that everything is a state secret, yadda yadda yadda. Remember, past crimes and injuries are something we need to move beyond. It's all about hope, which by definition pertains exclusively to the future.)
6.14.2009 11:24am
J. Aldridge:
zuch, NY law required aliens to have first declared their intent to become citizens. How did aliens naturalized become subject to the jurisdiction? It is no different with persons being born!

National law up to I think 1965 under Sec. 1992 of U.S. Revised Statutes, read: "All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States."

John Bingham said Sec. 1992 meant "every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen."

Sen. Howard said the Fourteenth's "jurisdiction" means "the same jurisdiction in extent and quality as applies to every citizen of the United States now."

Congressional Report No. 784, dated June 22, 1874, stated the "United States have not recognized a double allegiance." Anyone who is merely a citizen by being born would create double allegiances.

The 14th amendment does not create citizens from those who are subjects of other nations.
6.14.2009 11:31am
PC:
J. Aldridge,

I thought Padilla's parents were Puerto Rican, which means the Jones-Shafroth Act applies. This is the first discussion I've heard about Padilla not being a citizen of the US.
6.14.2009 11:59am
zuch (mail) (www):
J. Aldridge:

How do you avoid the plain language of the Fourteenth Amendment?

The Sen. Howard comment, if read as you intend it to read, would make the Fourteenth Amendment state that "every citizen of the United States (born or naturalized there) is a citizen of the United States". That's hardly a plausible interpretation.
John Bingham said Sec. 1992 meant "every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen."
This would come as a surprise to my sisters. They have/had U.S. passports (and no other, except the one living in Canada now). If Bingham is correct, though, then isn't Barack Obama ineligible for the office of president? Call the U.S. marshals; we need to toss the bum out....

Cheers,
6.14.2009 12:32pm
Oren:

Your reference to Padilla's detention as being "arbitrary" is absolutely ludicrous. The government had evidence that he was an active member Al Queda.

Such is the claim. Since the evidence was not presented to any independent authority, that claim is on par with the scientists that claim cold fusion and pet psychics.


My opinion is than an individual detained on the field of battle (wherever that may be) should have the rights associated with the person's status as a prisoner of war, illegal combatant, etc. I don't believe any portion of the U.S. Constitution guaranteeing rights was intended to in any way restrict or modify warfighting, an argument very close to the Scalia dissent in Boumediene.

This argument only works for incredibly disingenuous definitions of "field of battle". The core component there would be a battle and, last I checked, there has not been a battle at O'hare international airport (where Padilla was detained) since the 19th century.


Let me pose a hypothetical: a U.S. infantry company takes fire from a house and engages. The soldiers take a prisoner, fighting out of uniform, who states that he is an American citizen. May the soldiers proceed to engage in routine battlefield interrogation (no torture) without Mirandizing the prisoner?

Actually, this isn't hypothetical, it was already answered in ex parte Milligan.

... being citizens of States in which the administration of the laws had continued unimpaired in the Federal courts, who were then held, or might thereafter be held, as prisoners of the United States, under the authority of the President, otherwise than as prisoners of war, should be furnished by the Secretary of State and Secretary of War to the judges of the Circuit and District Courts.



Civil rights protections in the U.S. Constitution simply were not intended or designed to apply to the battlefield.

Provided that battlefield means "location where a battle took place".


We have absolutely no problem whatsoever recognizing constitutional protections as less-than-absolute in many areas, fire-in-a-crowded-theater and all that. But the notion that individuals detained in war should be treated like a burglar arrested by the county sheriff's office is far more extreme than the idea that the First Amendment protects the right to falsely shout fire in a crowded theater.

False dichotomy and lost distinction all at once.

First, a prisoner detained in war can be afforded more rights than nothing and less than a burglar -- that is, he can have some intermediate status.

Second, the actual circumstances in which the prisoner was detained are absolutely relevant. A suspected combatant detained on or around an actual battlefield (remember, there is a requirement of a battle to be a battlefield) is not the same as a prisoner detained outside of the battlefield and both of them are not the same as a US citizen detained on US soil.

If you want to be serious about the analysis, you have to at least distinguish those three major categories.
6.14.2009 12:41pm
Oren:

Remember, past crimes and injuries are something we need to move beyond.

So KSM is off the hook for 9/11? After all, it's in the past ...
6.14.2009 12:43pm
Cornellian (mail):

Congress have done mass de-naturalizations in the past. If they can give, they can take away!


The language of the 14th Amendment doesn't apply to someone born in another country who later becomes a citizen of the US. Congress can indeed revoke the naturalization of such people, but nothing in the Constitution gives Congress the power to revoke citizenship granted by the 14th Amendment.

Padilla isn't a natural born citizen under any stretch of the imagination, anyway.

My post referred to natural born citizens, not Padilla specifically since I'm not familiar with the details of his situations. I notice another commenter said he was born in Puerto Rico. Are Puerto Ricans not citizens in your view?
6.14.2009 12:56pm
FlimFlamSam:
zuch,

What in the Eighth Amendment prohibits torture if the torture was to gain information and not as punishment for a crime?
6.14.2009 12:59pm
geokstr (mail):

zuch:
No. Summary execution has not historically been allowed. The primary (almost exclusive) practitioners of this in recent times have been Nazi Germany and Imperial Japan, hardly role models for us. And "summary execution" away from the exigencies of the battlefield has never been the practise of any country.

geokstr:
Forgot the socialist proletarian utopias beloved by the left, like the USSR, China, Cuba, etc, etc, didn't you? They only bothered with splashy kangaroo trials first for the big names with propaganda value. And that was in peacetime against their own citizens too.

There's a difference between summary execution and trials that might not meet the full protections of a U.S. Article III court (or of a court martial). But I'd note the rush of the Dubya maladministration (with the spineless complicity of too many Democrats) to move towards the kangaroo courts you seemingly despise. See here, here, and here (also here).


My comment had nothing to do with whether our Gitmo detainees were getting Article III protection. It was only intended to refute the planted axiom in your comment that only the despicable (supposedly) right wing fascists engaged in summary execution.

So you really believe that the estimated 100 million people that died in the workers' paradises as the inevitable result of making a few omelettes were all given "...trials that might not meet the full protections of a U.S. Article III court (or of a court martial)"? Right. While many were starved or worked to death, I'm pretty certain that many others just disappeared, including both internal dissidents and the 15,000 Polish officers in the Katyn Forest, for example. Is this not "summary execution", or is it that the left is totally incapable of barbarity too because their motives are enlightened and their goals are pure?
6.14.2009 1:11pm
J. Aldridge:
How do you avoid the plain language of the Fourteenth Amendment?

I don't avoid it. I just look up what the framers said the plain words mean. More people should do that instead of making up Easter Bunny tales.
6.14.2009 1:50pm
ck:

What in the Eighth Amendment prohibits torture if the torture was to gain information and not as punishment for a crime?


This reminds me of a side-argument about Kelo. The 5th Am. doesn't actually say that takings have to be for public use, it just says that takings for public use have to be compensated. You can read this omission over-literally as saying that takings for non-public use don't have to be compensated, but that would lead to the absurd result that unjustified takings would get more protection than justified ones.

Likewise, the 8th Am. only explicitly mentions punishments, and you are reading this over-literally to mean that it doesn't apply to non-punishment treatment. But that leads to the absurd conclusion that it is ok to torture someone before conviction but not afterwards.
6.14.2009 1:59pm
PC:
I notice another commenter said he was born in Puerto Rico. Are Puerto Ricans not citizens in your view?

Padilla was born in Brooklyn, but his parents were born in Puerto Rico. Unless there has been a subsequent development I'm unaware of, Puerto Ricans have been US citizens since 1917. I read one article that called Padilla's parents immigrants which is incorrect. They migrated from Puerto Rico, but did not immigrate, since they were already US citizens.
6.14.2009 2:46pm
Oren:

Unless there has been a subsequent development I'm unaware of, Puerto Ricans have been US citizens since 1917.

Just for reference, they are US citizen by dint of Congress, not by inherent right.

Of course, if Padilla was born in Brooklyn, that's the end of the story.
6.14.2009 3:00pm
M N Ralph:

I can't believe I'm defending PostNoBill, but this,


By your reasoning, it would be permissible to torture a criminal suspect to obtain a confession or to obtain any type of information.


is incorrect.

No criminal suspect will be bringing an Eighth Amendment challenge in that scenario. The torture would be a due process violation, as well as a self-incrimination one. And the suspect would win on those challenges.

Under Post's "theory," torture is not punishment a) because it's not the result of a criminal proceeding, and b) because it's the means to an end. But even assuming the validity of this presumption, torturing criminal suspects would still violate other parts of the Constitution.


Since we were talking about the Eighth Amendment, I had intended my statement to be directed solely to it. But, as it's apparently now a real word, my statement was rather inartful. Permit me to revise to express my original intent more clearly:


By your reasoning, it would be permissible not be a violation of the Eighth Amendment to torture a criminal suspect to obtain a confession or to obtain any type of information.


I think that's the fair logical conclusion from PNB's theory of the 8th. I still find it difficult to believe that this is in fact the law.
6.14.2009 3:06pm
PC:
Just for reference, they are US citizen by dint of Congress, not by inherent right.

True. This is a derail(sorry), but if congress repealed the Jones-Shafroth Act, could they make the repeal of citizenship it retroactive? My gut instinct says no, but I don't know the legalities of doing that.

Of course, if Padilla was born in Brooklyn, that's the end of the story.

That's my understanding too, especially considering all of the handwringing about "anchor babies."
6.14.2009 3:11pm
advisory opinion:

But that leads to the absurd conclusion that it is ok to torture someone before conviction but not afterwards.

. . . which happens to be the law at present as far as the 8th Amendment is concerned. See Graham v. Connor, 490 U.S. 386, 392 n.6 (1989) ("the Eighth Amendment's protections did not attach until after conviction and sentence. This view was confirmed by Ingraham v. Wright"); Riley v. Dorton, 115 F.3d 1159, 1166 (4th Cir. 1997) ("The Eighth Amendment does not apply 'until after conviction and sentence.'"); Pierce v. Multnomah County, 76 F.3d 1032, 1042 (9th Cir.1996) ("the Eighth Amendment's prohibition against the malicious or sadistic use of force . . . does not apply 'until after conviction and sentence[]'"). See, further, Ingraham v. Wright, 430 U.S. 651, 664 (1977) ("An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes. We adhere to this longstanding limitation") (emphasis added).

Let's be clear: the Eighth Amendment does not apply until after post-conviction sentencing. One may however allege a due process violation under the 5th Amendment, or else an unreasonable seizure under the 4th. Just because a proviso of the Constitution does not cover everything that is odious does not mean that it is ipso facto "absurd."
6.14.2009 3:12pm
M N Ralph:

(I expect Yoo will seek interlocutory appeal to avoid the burdens of discovery, and that Obama's DOJ will be right there with him, arguing that everything is a state secret, yadda yadda yadda.


My fed procedure is kinda rusty, but I didn't think you could appeal a denial of a 12(b)(6) motion to dismiss. Also, it seems this ruling had nothing to do with a state secrets claim (not sure if there is one in the case or not).
6.14.2009 3:21pm
David M. Nieporent (www):
I don't avoid it. I just look up what the framers said the plain words mean.
Why? As Scalia has explained many times, Congress (and in this case the states) enact laws, not speeches by legislators about laws.
6.14.2009 3:21pm
David M. Nieporent (www):
Was Padilla born in the United States? Yes. Was he subject to the jurisdiction of the United States? Yes, duh. Does what Bingham said matter, then? No.
6.14.2009 3:28pm
M N Ralph:
J Aldridge: I am genuinely confused about your citizenship ideas. Are you saying that those born in the US to non-citizens parents are in fact not born citizens under the current state of the law. Or, are you saying that the 14th Amendment should be read to not bestow citizenship upon those born in the US to non-citizen parents?
6.14.2009 3:38pm
Father OKC (mail):
PNB said:


If you're a citizen, and you are found to have engaged in an act of war against the United States, at that point you should have absolutely no constitutional rights on the theory that constitutional rights derive from citizenship and citizenship is forfeited when one engages in an act of war.


Problem with this is that constitutional rights do not originate with citizenship. The Constitution doesn't say that only citizens enjoy rights, and the courts have decided cases based on one's humanity, not one's citizenship.
6.14.2009 4:49pm
zuch (mail) (www):
FlimFlamSam:
What in the Eighth Amendment prohibits torture if the torture was to gain information and not as punishment for a crime?
It's a pretty weird take on it that people convicted of the most horrendous crimes are protected from punishments that can be inflicted to people yanked off the streets (or moving walkways in O'Hare). I made that point here. But as Judge White stated in his opinion, the Eighth Amendment acts as a floor which you can not go beneath WRT due process (see opinion at page 35-36, essentially echoing my argument). As for the purpose of the punishment, that's irrelevant. The Eighth Amedment doesn't prohibit sadism ... it prohibits cruel and unusual punishment. That it is punishment is obvious on the face of it. That's kind of the whole point of torture.

Cheers,
6.14.2009 6:06pm
zuch (mail) (www):
geokstr:
My comment had nothing to do with whether our Gitmo detainees were getting Article III protection. It was only intended to refute the planted axiom in your comment that only the despicable (supposedly) right wing fascists engaged in summary execution.
Well, it didn't. You might try again.

Here's some prior commentary of mine from a while back to another person insisting that summary execution has always be de rigueur (see in particular my comment @ 8:44PM).

Cheers,
6.14.2009 6:18pm
zuch (mail) (www):
geokstr:
I'm pretty certain that many others just disappeared, including both internal dissidents and the 15,000 Polish officers in the Katyn Forest, for example. Is this not "summary execution", or is it that the left is totally incapable of barbarity too because their motives are enlightened and their goals are pure?
"We're not worse than the Soviet Union! Go, Yoo Ess of Effin' Aye! Hooo-rah!!!"

Cheers,
6.14.2009 6:21pm
PostNoBill:
zuch,

You are (deliberately or not) ignoring the meaning of the word "punishment." Punishment is the infliction of a negative consequence as a result of behavior deemed inappropriate by an authority. Torturing someone to get information out of them is a wholly different matter.

Now, if we had a statute that said that anyone convicted of burglary should be whipped 100 times with a cat o' nine tails, that is an Eighth Amendment violation. But a cop beating a confession out of a suspected criminal or a soldier beating tactical military information out of an enemy soldier (or an innocent noncombatant who merely happened to possess the information) does not engage in any activity proscribed by the Eighth Amendment.

I am sorry that the actual text of the Eighth Amendment does not forbid everything that you find objectionable, but it does not.

And by the way, it is not self-evident to me that execution of war criminals after an abbreviated quasi-judical process ("near summary execution" if you will) is that bad of an idea. The traditional deterrents against war crime (i.e., don't do it or it will be done back to you, belief that war can and should be fought honorably, and basic humanity) are somewhat lacking in our present geopolitical opponents, bloodthirsty savages that they are.
6.14.2009 7:00pm
Anderson (mail):
Why? As Scalia has explained many times, Congress (and in this case the states) enact laws, not speeches by legislators about laws.

Right. Thus, for instance, the Federalist Papers are irrelevant to constitutional construction.

That's why Scalia is an idiot on that topic, and why 8 other justices routinely refuse to join him in ignoring legislative history.
6.14.2009 8:16pm
advisory opinion:

As for the purpose of the punishment, that's irrelevant. The Eighth Amedment doesn't prohibit sadism ... it prohibits cruel and unusual punishment. That it is punishment is obvious on the face of it. That's kind of the whole point of torture.

Criminal punishment. So the purpose -- punishment meted out as part of or incident to the post-conviction criminal process -- is exceedingly relevant. "In light of this history, it is not surprising to find that every decision of this Court considering whether a punishment is 'cruel and unusual' within the meaning of the Eighth and Fourteenth Amendments has dealt with a criminal punishment. . . . In the few cases where the Court has had occasion to confront claims that impositions outside the criminal process constituted cruel and unusual punishment, it has had no difficulty finding the Eighth Amendment inapplicable." Ingraham v. Wright, 430 U.S. 651, 666-668 (1977) (emphasis added).

Not all torture is punishment meted out as part of the criminal process. Ergo, not all torture is "criminal punishment" under the meaning of the Eighth Amendment. Obvious.
6.14.2009 8:23pm
zuch (mail) (www):
PostNoBill:
zuch,

You are (deliberately or not) ignoring the meaning of the word "punishment." Punishment is the infliction of a negative consequence as a result of behavior deemed inappropriate by an authority. Torturing someone to get information out of them is a wholly different matter.
Battery is the intentional and harmful touching of another. Maiming is the intentional infliction of serious physical injury. Torturing someone to get information out of them is a wholly different matter. It is obviously neither battery nor maiming.

I think you will find cases (if you look) where cruel treatment not intended as "punishment" in the sense you use here was found to violate the Eighth Amendment. Hudson v. McMillan is one such. There, the prisoner was beaten by guards. This is obviously not part of the judicially prescribed "punishment". It was just something the guards wanted to do (Justice O'Connor said the guards acted "maliciously and sadistically"). Yet it was a violation of the Eighth Amendment. This supports my contention that it is not just "punishment" in the legal sense (e.g., excessive sentences), but cruel and inhumane treatment, that is within the ambit of the Eighth Amendment. Note the Thomas dissent in Hudson, where he argued that the Eighth Amendment does not reach "deprivations that were not inflicted as part of the sentence for a crime". But his view did not carry the day.

Cheers,
6.14.2009 8:59pm
zuch (mail) (www):
PostNoBill:
And by the way, it is not self-evident to me that execution of war criminals after an abbreviated quasi-judical process ("near summary execution" if you will) is that bad of an idea.
That's not my problem ... or even my concern. You'll have to deal with that on you own.

Cheers,
6.14.2009 9:02pm
zuch (mail) (www):
advisory opinion:
Not all torture is punishment meted out as part of the criminal process. Ergo, not all torture is "criminal punishment" under the meaning of the Eighth Amendment. Obvious.
Well, not quite. See comment two posts above.

I just think it weird. But as I pointed out, Judge White stated that such treatment is a violation of due process, and that the Eighth Amendment informs ... and acts as a floor, a minimum ... for what treatment is a violation thereof. If it would violate the Eighth Amendment, it's a violation of due process. He basically said that it's inconceivable that we should allow treatment of people that we wouldn't even allow done to people convicted of the most heinous crimes (which makes sense) ... and gave some cites for this proposition.

Cheers,
6.14.2009 9:12pm
David M. Nieporent (www):
Right. Thus, for instance, the Federalist Papers are irrelevant to constitutional construction.

That's why Scalia is an idiot on that topic, and why 8 other justices routinely refuse to join him in ignoring legislative history.
The Federalist Papers help show how people originally understood the Constitution. While obviously not everyone read them, they were published in newspapers and were intended to be an argument for why the Constitution should be adopted.

On the other hand, there's no reason to believe that anybody knows of a random speech on the floor of Congress.
6.14.2009 9:16pm
advisory opinion:

This is obviously not part of the judicially prescribed "punishment".

But it is incident to judicially prescribed "punishment." So again, the purpose -- punishment meted out as part of or incident to the post-conviction criminal process -- is exceedingly relevant. Torture that is neither part of nor incident to the post-conviction criminal process is simply not "punishment" for Eighth Amendment purposes.

This supports my contention that it is not just "punishment" in the legal sense

It does not, since the use of excessive force incident to the sentence meted out by the criminal process is itself "punishment" in the legal sense. The majority's own narrow construction of "punishment" is limited to criminal punishment -- Hudson was a convicted felon serving out his sentence.

But his view did not carry the day.

Nor did the contrary view, since "[w]e take no position on [that view] because we find it inapposite on this record. . . . To the extent that respondents rely on the unauthorized [non-"judicially prescribed"] nature of their acts, they make a claim not addressed by the Fifth Circuit, not presented by the question on which we granted certiorari, and, accordingly, not before this Court." Macmillian, at 12.

So the case you cite does nothing for you. Both the dissent and the majority read "punishment" narrowly to apply only to criminal punishment, narrower in the case of the dissent, but neither stood for the unvarnished proposition that any and all violence meted out outside of the criminal process is "punishment" for Eighth Amendment purposes. That view -- your view -- has been soundly rejected by the Court, and remains so.
6.14.2009 10:17pm
J. Aldridge:
I just noticed I had Yasser Hamdi in mind when talking of Padilla's citizenship.
6.14.2009 10:57pm
J. Aldridge:
On the other hand, there's no reason to believe that anybody knows of a random speech on the floor of Congress.

Yeah they did because on important bills like the Fourteenth Amendment were discussed in all of the newspapers of the day, including the floor speeches. The average person in 1866 had a better understanding of what "privileges or immunities" meant than most do today.
6.14.2009 11:06pm
zuch (mail) (www):
advisory opinion:
[zuch]: This is obviously not part of the judicially prescribed "punishment".
But it is incident to judicially prescribed "punishment."
Not even close. Getting bad food may be "incident" (but could verge on "cruel and unusual" although no case I know of has succeeded on such a basis). Getting beaten by sadistic guards is not "incident' to what the state prescribes as punishment ... and this is why it's "cruel and unusual".Nor did the contrary view, since "[w]e take no position on [that view] because we find it inapposite on this record. . . . To the extent that respondents rely on the unauthorized [non-"judicially prescribed"] nature of their acts, they make a claim not addressed by the Fifth Circuit, not presented by the question on which we granted certiorari, and, accordingly, not before this Court." Macmillian, at 12. FWIW, you left out the next sentence starting with "Moreover..." ;-) They didn't reach any conclusion on whether the conduct was "isolated and unauthorized". But they certainly did reach a decision that this behaviour, which was unarguably not part of the judicially prescribed punishment, was an Eighth Amendment violation. Even the respondents (who are arguing no Eighth Amendment violation), say this:
The beating of Hudson, they contend, arose from "a personal dispute between correctional security officers and a prisoner," and was against prison policy.
I don't think anyone disputes that.

Cheers,
6.14.2009 11:10pm
zuch (mail) (www):
J. Aldridge:

The proper followup (although you may be too young to remember) is:

<*Litella-esque*> "Nevermind......"

Cheers,
6.14.2009 11:37pm
advisory opinion:
Not even close to passable is your command of English.

in·ci·dent (ĭn'sĭ-dənt):

adj.

1. Tending to arise or occur as a result or accompaniment: “There is a professional melancholy . . . incident to the occupation of a tailor” (Charles Lamb).

2. Related to or dependent on another thing.

Hudson's beating arose in the context of his incarceration, and so is "related to or dependent on," and therefore incident to, his imprisonment -- he would not have been beaten by prison guards were he not convicted, sentenced, and incarcerated as a result. Hudson was a convicted felon serving out his sentence. There is no getting around this fact.

The case -- like all other Eighth Amendment cases before it -- applies the Eighth Amendment to punishment meted out as part of or incident to the post-conviction criminal process. The 4th Circuit in Dorton and the 9th Circuit in Pierce v. Multnomah County -- following the Supreme Court in Graham v. Connor -- have found that the Eighth Amendment does not apply "until after conviction and sentence." Torture that is neither part of nor incident to the post-conviction criminal process -- e.g., torture prior to conviction and sentencing -- is therefore not "punishment" within the meanin g of the Eighth Amendment. You claim otherwise, but your claim is contradicted by the Court's precedents in Ingraham, Connor, and Macmillian.

They didn't reach any conclusion on whether the conduct was "isolated and unauthorized". But they certainly did reach a decision that this behaviour, which was unarguably not part of the judicially prescribed punishment,

So according to you, the Court took no position on the view of whether the conduct was "unauthorized," but they nevertheless took the position that ("reached a decision that") the beating was unauthorized (i.e., "not part of the judicially prescribed punishment").

You're incoherent.

The Court did not need to reach the question of whether the guards' conduct had to be "part of" judicially authorized punishment to constitute an Eighth Amendment violation because it took the similarly narrow view that punishment incident to the prescribed punishment was sufficiently "punishment" for Eighth Amendment purposes. It therefore did not need to reach a question not presented, and took no position on it as a result. You decohere when you take this to mean that the Court took the "unarguabl[e]" position that it expressly did not take. I suggest you reread the opinion -- with the lights on this time.

I don't think anyone disputes that.

What is being disputed is your suggestion that the Court took the contrary view -- that the Eighth Amendment broadly reaches "deprivations . . . not inflicted as part of the sentence for a crime" -- when it expressly declined to reach that conclusion. From this false premise, you then try to advance the even broader proposition that the Eighth Amendment may apply outside of its traditional scope: criminal punishment. Macmillian does not overrule Ingraham or Graham, nor does it suggest that the Eighth Amendment is unmoored from the criminal process. Your contrary view has no basis in law, and is at odds with what the Court and the various circuit courts have said on the subject. If you want to disagree with the doctrinal view, feel free. Just don't pretend the courts agree with you when you're off the reservation.
6.15.2009 1:24am
zuch (mail) (www):
advisory opinion:
Not even close to passable is your command of English.
in·ci·dent (ĭn'sĭ-dənt):

adj.

1. Tending to arise or occur as a result or accompaniment: “There is a professional melancholy . . . incident to the occupation of a tailor” (Charles Lamb).

2. Related to or dependent on another thing.
Hudson's beating arose in the context of his incarceration, and so is "related to or dependent on," and therefore incident to, his imprisonment — he would not have been beaten by prison guards were he not convicted, sentenced, and incarcerated as a result. Hudson was a convicted felon serving out his sentence. There is no getting around this fact.
To the contrary, I think it is you that don't understand "incident". Or if you do, you're simply not applying it properly here. Here, he would not have been beaten by prison guards even if he were convicted, sentenced, and incarcerated ... but for the misbehaviour of the guards. There's that "tending to arise or occur" there. Such beatings don't tend to arise (at least we hope not) simply from incarceration, no matter how depressed tailors usually are and no matter how high the percentage of people get searched when arrested. And definition 2 doesn't avail you either. Beatings aren't related to any current prison sentence (or at least so we hope). This was not a normal or usual occurence, much less neccessary or "incident".

And then I'd note that the Eighth Amendment nowhere states that it relates to cruel and unusual treatment "incident" to punishment ... and the Hudson v. McMillian court never used the word in that sense either.
The case — like all other Eighth Amendment cases before it — applies the Eighth Amendment to punishment meted out as part of or incident to the post-conviction criminal process.
Except it doesn't. As I said, it doesn't use the word "incident" except as a noun.
The 4th Circuit in Dorton and the 9th Circuit in Pierce v. Multnomah County — following the Supreme Court in Graham v. Connor — have found that the Eighth Amendment does not apply "until after conviction and sentence."
I don't deny that. I think it strange, but Judge White resolves the conundrum.
Torture that is neither part of nor incident to the post-conviction criminal process — e.g., torture prior to conviction and sentencing — is therefore not "punishment" within the meaning of the Eighth Amendment. You claim otherwise, but your claim is contradicted by the Court's precedents in Ingraham, Connor, and Macmillian.
I didn't claim that torture prior to conviction is "punishment" under the Eighth Amendment. I just said (repeatedly) it was weird that the Eighth protects the most heinous criminals but not innocent civilians. Surely the Founders were not deeply concerned with the plight of convicted criminals but unconcerned about the fate of ordinary citizens (perhaps they had the Panglossian view that no rational gummint would or even could indeed inflict cruel treatment on innocents that was barred from being used even on the most hardened criminals). But as Judge White says, the Eighth informs us of what is truly beyond the pale, even if the actual Constitutional violation is couched in different terms.

And my comment about Hudson had to do with whether the Eighth only reaches actual punishment as prescribed by law, a position taken by a prior poster but which doesn't hold up.

Ingraham holds only that the Eighth Amendment doesn't apply to corporal punishment in schools and is silent as to what is "incident" to punishment post-conviction. If you're talking this Graham v. Connor, that is a Fourth Amendment case.

[more]
6.15.2009 7:36am
zuch (mail) (www):
[zuch]: They didn't reach any conclusion on whether the conduct was "isolated and unauthorized". But they certainly did reach a decision that this behaviour, which was unarguably not part of the judicially prescribed punishment, ...
So according to you, the Court took no position on the view of whether the conduct was "unauthorized," but they nevertheless took the position that ("reached a decision that") the beating was unauthorized (i.e., "not part of the judicially prescribed punishment").
Not exactly. As I said, you snipped their comment beginning with "Moreover..." But, yes, as it wasn't before the court, they didn't address it in their holding. And you keep sneaking in your 'translation' of what they said for what they actually did say. Why?
The Court did not need to reach the question of whether the guards' conduct had to be "part of" judicially authorized punishment to constitute an Eighth Amendment violation because it took the similarly narrow view that punishment incident to the prescribed punishment was sufficiently "punishment" for Eighth Amendment purposes....
Except they didn't say that. Nowhere do they use the adjective "incident".
... It therefore did not need to reach a question not presented, and took no position on it as a result....
What they didn't decide is whether the treatment was "isolated and unauthorized", not whether it was "incident" (which they also didn't decide).
You decohere when you take this to mean that the Court took the "unarguabl[e]" position that it expressly did not take. I suggest you reread the opinion — with the lights on this time.
I said (for those interested in reading with the lights on) that the beating "was unarguably not part of the judicially prescribed punishment". If you want to indicate where the judicially prescribed punishment had prescribed "malicious[] and sadistic[]" beatings, I'm all ears. And I said that the court found this beating a violation of the Eighth Amendment, which is also hard to argue against.
[zuch]: I don't think anyone disputes that.
What is being disputed is your suggestion that the Court took the contrary view — that the Eighth Amendment broadly reaches "deprivations . . . not inflicted as part of the sentence for a crime" — when it expressly declined to reach that conclusion.
Nonsense. This was Thomas's contention (in dissent) that it does not. But, as I said, the holding of the court belies that view. Had the majority agreed with Thomas here, they could not have come down as they did. Once again, what the court didn't decide is whether the behaviour was "isolated and unauthorized" ... although they hinted that it might not have been as "unauthorized" as the respondents wanted to claim.
From this false premise, you then try to advance the even broader proposition that the Eighth Amendment may apply outside of its traditional scope: criminal punishment. Macmillian does not overrule Ingraham or Graham, nor does it suggest that the Eighth Amendment is unmoored from the criminal process. Your contrary view has no basis in law, and is at odds with what the Court and the various circuit courts have said on the subject. If you want to disagree with the doctrinal view, feel free. Just don't pretend the courts agree with you when you're off the reservation.
I've just said repeatedly that this view is weird. But what I've said is that the Constitution does not countenance official gummint beatings (or torture, even to obtain information) of innocents. It does not countenance one restrictive rule for what we can do to convicted axe murderers and pederasts and another more permissive rule for what we can do to people picked up off the street (or the moving walkways at O'Hare). Even the linked comment with my criticism of Scalia refers to "due process" (as does Judge White).

Cheers,
6.15.2009 7:38am
Anderson (mail):
On the other hand, there's no reason to believe that anybody knows of a random speech on the floor of Congress.

One might suppose that the Senators and Representatives who enact the legislation in question "know of" such speeches, and that they are relevant to their understanding of the text.
6.15.2009 9:43am
Anderson (mail):
As for whether the Eighth Amendment embraces torture, let's think.

On the one hand, we have the English common-law tradition, which had held a century before the enactment of the Eighth Amendment that torture of suspects was illegal, a tradition of which the Framers were well aware.

On the other hand, we have a narrow reading of the word "punishment," and by implication the indifference of the Framers as to whether the federal government, or the states, tortured suspects -- people who had not been convicted of anything.

Which is more plausible?

Or perhaps the Fifth Amendment was considered, by anyone who even imagined the issue's arising, to be sufficient:

nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law
6.15.2009 9:50am
Kevin P. (mail):

Cornellian:
The language of the 14th Amendment doesn't apply to someone born in another country who later becomes a citizen of the US. Congress can indeed revoke the naturalization of such people...


Do you have some citation for this? I don't see how the 14th Amendment treats naturalized citizens differently from natural-born citizens. My understanding is that once naturalized, a citizen cannot be stripped of citizenship unless it was fraudulently obtained.

(I am a naturalized citizen so the question is not entirely academic to me).
6.15.2009 11:05am
MarkField (mail):

The Federalist Papers help show how people originally understood the Constitution. While obviously not everyone read them, they were published in newspapers and were intended to be an argument for why the Constitution should be adopted.

On the other hand, there's no reason to believe that anybody knows of a random speech on the floor of Congress.


This makes no sense for at least 2 reasons:

1. With the Federalist, we can guarantee that at least some of the voters did NOT consider them (because they voted before the Papers were even written or published). In contrast, speeches on the floor of Congress at least could have been heard by other members.

2. Nobody's suggesting that the test involves "anybody". The test is "people who vote on the issue". In the case of Congress, as I said above, other members of Congress at least potentially hear them.


Or perhaps the Fifth Amendment was considered, by anyone who even imagined the issue's arising, to be sufficient:

nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law


My understanding is that it's this clause which forbids torture before trial. The 8th A only forbids torture after trial (as advisory opinion correctly states).
6.15.2009 11:21am
David M. Nieporent (www):
One might suppose that the Senators and Representatives who enact the legislation in question "know of" such speeches, and that they are relevant to their understanding of the text.
...
1. With the Federalist, we can guarantee that at least some of the voters did NOT consider them (because they voted before the Papers were even written or published). In contrast, speeches on the floor of Congress at least could have been heard by other members.
Keep in mind that we're not talking about "legislation" here, but a constitutional amendment. Constitutional amendments aren't 'enacted' by Congress; they're only proposed by Congress.
6.15.2009 11:48am
Anderson (mail):
Emptywheel quotes the district court opinion on the Eighth Amendment's application:

Yoo contends that because Padilla was not convicted of a criminal offense at the time of his military detention, the Eighth Amendment prohibition against cruel and unusual punishment does not apply to him. However, “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982). “[C]onstitutional questions regarding the conditions and circumstances of [the] confinement [of detained persons not convicted of a crime] are properly addressed under the due process clause of the Fourteenth Amendment, rather than the Eighth Amendment’s protection against cruel and unusual punishment.” City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983). However, “[i]n light of the Supreme Court’s observation that the due process rights of pretrial detainees are ‘at least as great as the Eighth Amendment protections available to a convicted prisoner,’ we have recognized that, even though the pretrial detainees’ rights arise under the Due Process Clause, the guarantees of the Eighth Amendment provide a minimum standard of care for determining their rights.” Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1120 (9th Cir. 2003) (internal citations omitted).

So the 8th Amendment sets the floor for treatment under the Due Process Clause: if you can't do it to a convicted felon, then a fortiori, you can't do it to someone not convicted of anything.

Makes sense, tho I'm not quite sure why the court discusses the 14th Amendment in a case alleging federal, not state, misconduct.
6.15.2009 11:57am
MarkField (mail):

Keep in mind that we're not talking about "legislation" here, but a constitutional amendment. Constitutional amendments aren't 'enacted' by Congress; they're only proposed by Congress.


Nobody said that constitutional amendments were voted on by Congress. The only references are those to the relevant voters in the 2 cases, namely delegates to the state conventions in the case of the Constitution, and Members of Congress in the case of legislation.
6.15.2009 12:12pm
Anderson (mail):
they're only proposed by Congress

So if I present a "proposal" that I've drafted, no one should ask me what I think it means, because my opinion is of no relevance?

Scalia's approach throws out our common-sense approaches to figuring out what texts mean, in favor of a heuristic designed to uncomplicate said figuring-out. But interpretation sometimes just *is* complicated, and arbitrarily ruling out sources for intent betrays a judicial arrogance, not judicial restraint. The point is not to make things easier for the judges; it's to figure otu what is the law.
6.15.2009 12:18pm
zuch (mail) (www):
Anderson:
I'm not quite sure why the court discusses the 14th Amendment in a case alleging federal, not state, misconduct.
Because that mention of the Fourteenth was in a quote from a case against state actors. The due process clause for the Fifth Amendment is a better fit here.

Cheers,
6.15.2009 3:21pm
Anderson (mail):
Ah so. Had I been the good judge or his clerk, I would've omitted the name of the amendment &just run w/ "due process clause."

I looked up Judge White btw ... Dubya appointee, and the same judge who ruled &reversed himself in the Wikileaks case.
6.15.2009 3:27pm
David M. Nieporent (www):
So if I present a "proposal" that I've drafted, no one should ask me what I think it means, because my opinion is of no relevance?
People can ask whatever they want. But after it passes, if we want to determine how to enforce the proposal, we should read its plain text, because those words, not your opinions, are what were enacted.
6.15.2009 5:13pm
Anderson (mail):
But after it passes, if we want to determine how to enforce the proposal, we should read its plain text, because those words, not your opinions, are what were enacted.

Did anyone ever suggest otherwise? But if the "plain text" turns out to be not so plain, should the court simply craft its own solution to the interpretive problem, or is it more deferential to investigate whether the legislative debate reveals something helpful?

Legislative history is persuasive authority at best, but it makes no sense to ignore it, any more than it makes sense to ignore Madison's notes on the Constitutional Convention in ascertaining what the Framers may've had in mind when drafting some clause.
6.15.2009 5:26pm
advisory opinion:

To the contrary, I think it is you that don't understand "incident". Or if you do, you're simply not applying it properly here. Here, he would not have been beaten by prison guards even if he were convicted, sentenced, and incarcerated ... but for the misbehaviour of the guards.

Except searches "incident to arrest" is a phrase used all the time that also includes unreasonable searches. Arizona v. Gant, 556 U.S. ___ (2009) (Scalia, J., concurring) (a "search incident to arrest is ipso facto 'reasonable' only when the object of the search is evidence of the crime for which the arrest was made," and unreasonable otherwise). Yet according to you, that phrase is wrongly applied because a person "would not have been" unreasonably searched even if he were arrrested . . . "but for the misbehavior of the" arresting officers. Thus, just as cruel and unusual punishments are never incident to conviction and incarceration, unreasonable searches are never "incident to" arrest -- that phrase is incorrectly applied.

Your argument is belied by actual usage ("To the contrary, since Robinson, the Supreme Court has continued to emphasize that Fourth Amendment jurisprudence prohibits unreasonable searches incident to arrest."). Now, is Justice Scalia's usage incorrect, or the Fourth Circuit's incorrectly applied?

Beatings aren't related to any current prison sentence (or at least so we hope).

No more than unreasonable searches "aren't related to any" authorized powers of arrest, and yet we find that unreasonable searches may be "incident to" arrest. Are the courts wrong in their usage, or does the error lie elsewhere?

Yet your pedantry is beside the point, which is that you can't name a single case that applies the Eighth Amendment meaning of "punishment" outside of the criminal context, or that is unmoored from the post-conviction criminal process. Since you can cite no case to support your contrary view, your pedantry amounts to very little indeed.

I don't deny that. I think it strange, but Judge White resolves the conundrum

Judge White nowhere says that Padilla's treatment amounts to "punishment" under the meaning of the Eighth Amendment. Here's what you said:

"The Eighth Amedment doesn't prohibit sadism ... it prohibits cruel and unusual punishment. That it [Padilla's treatment] is punishment is obvious on the face of it."

Except it isn't, and that's not the reasoning Judge White used, nor what he said. He cites City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983), which states that "Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. . . . [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law." City of Revere at 244 (emphasis added) (quoting Ingraham v. Wright).

Rather, Padilla's treatment was not punishment under the meaning of the Eighth Amendment, which is precisely why his claim does not arise under the Eighth Amendment but the Fifth, even though his due process rights are "at least as great as the Eighth Amendment protections available to a convicted prisoner." In short, the Eighth Amendment acts as a minimum guide to analogous due process protections, not because Padilla's treatment is "punishment" under the Eighth Amendment, but because treatment that is violative of the Eighth Amendment for convicted prisoners is a fortiori violative of due process protections even though such treatment for non-convicted detainees is not "punishment" for purposes of the Eighth Amendment.

And I said that the court found this beating a violation of the Eighth Amendment

But they did not find a violation because of the reason you gave (that conduct that is not "part of" a judicially-prescribed sentence may be an Eighth Amendment violation). Rather, they found that conduct incident to the post-conviction criminal process counts as "criminal punishment" for Eighth Amendment purposes, and left the question open on whether such conduct incident to punishment prescribed may be (in some sense) described as "part of" the sentence. Is solitary confinement incident to or part of a prison sentence? Is "excessive force" with regards to controlling inmates incident to or part of a prison sentence? These are not "unarguably" mutually exclusive -- to the contrary. That the Macmillian Court did not take the dissent's view does not mean that it took the contrary view, since there is also a third option: that tortious conduct incident to punishment meted out may in some sense be "part of" incarceration, and therefore "punishment" under the meaning of the Eighth Amendment. The Court expressly "take[s] no position" on the "part of" question, and decides the case on different grounds. Your conclusion -- that they took a position they did not take -- stema from a false dichotomy.

But, as I said, the holding of the court belies that view.

Except that the Court explicitly said that it "take[s] no position" on that question, and so cannot "belie" that view. Your misreading of the case rests on a crude logical mistake. But since you can't comprehend the plain meaning of "take no position," expecting logical rigor from you is perhaps expecting too much.
6.15.2009 11:25pm
zuch (mail) (www):
advisory opinion:
Except searches "incident to arrest" is a phrase used all the time that also includes unreasonable searches. Arizona v. Gant, 556 U.S. ___ (2009) (Scalia, J., concurring) (a "search incident to arrest is ipso facto 'reasonable' only when the object of the search is evidence of the crime for which the arrest was made," and unreasonable otherwise). Yet according to you, that phrase is wrongly applied because a person "would not have been" unreasonably searched even if he were arrrested . . . "but for the misbehavior of the" arresting officers. Thus, just as cruel and unusual punishments are never incident to conviction and incarceration, unreasonable searches are never "incident to" arrest -- that phrase is incorrectly applied.
Beatings (particularly "sadistic" and "malicious" ones) "incident" to incarceration are never reasonable and not common. This is not something you should expect, only to quibble about the parameters. Searches incident to arrest are common, and should not surprise you should you be arrested. "Incident" is an appropriate word for searches in an arrest context (pending U.S. Supreme Court revisitation).

But your 'logic' here is wrong. "Incident" merely refers to whether something tends to happen in certain situations (your definition 1). It says nothing as to whether that something is legally permissible. Searches are incident to arrest and some of these are illegal. Severe beatings are never incident to punishment and are always illegal.

You commit a category error in analogising "unreasonable" (a legal term of art) with "severe" (or "sadistic" and "malicious"). You phrase the latter as "cruel and unusual" (which is a legal term, but this then becomes a circular argument for you). It would be like me saying that "unreasonable searches are always illegal, and thus unreasonable" (and furthermore thus not expected to be "incident" to arrest). True but not helpful.
Your argument is belied by actual usage ("To the contrary, since Robinson, the Supreme Court has continued to emphasize that Fourth Amendment jurisprudence prohibits unreasonable searches incident to arrest."). Now, is Justice Scalia's usage incorrect, or the Fourth Circuit's incorrectly applied?
As I just explained, SITA is not uncommon. Scalia is emphasising that they must nonetheless be "reasonable" (that is to say, to stay within the boundaries set for such searches). Just the same as the physical force used on prisoners (something to be expected) must stay within reasonable parameters.
[zuch]:Beatings aren't related to any current prison sentence (or at least so we hope).
No more than unreasonable searches "aren't related to any" authorized powers of arrest, and yet we find that unreasonable searches may be "incident to" arrest. Are the courts wrong in their usage, or does the error lie elsewhere?
Covered above.
Yet your pedantry is beside the point, which is that you can't name a single case that applies the Eighth Amendment meaning of "punishment" outside of the criminal context, or that is unmoored from the post-conviction criminal process. Since you can cite no case to support your contrary view, your pedantry amounts to very little indeed.
I agree that efforts to apply the Eighth to situations not involving convicted prisoners have failed (current case excepted). But that's not the point I'm making. What I have been saying is simply that Thomas's argument that the Eighth prohibits only official "cruel and unusual punishment" as part of the sentence is not the accepted view of the court. Thomas says that while conduct that goes beyond the officially prescribed criminal sanctions themselves may be illegal, they are not Eighth Amendment violations. But in Hudson, the court rejects this view.
[zuch]: I don't deny that. I think it strange, but Judge White resolves the conundrum
Judge White nowhere says that Padilla's treatment amounts to "punishment" under the meaning of the Eighth Amendment.
Nor did I say he said that.
Here's what you said:
[zuch]: "The Eighth Amedment doesn't prohibit sadism ... it prohibits cruel and unusual punishment. That it [Padilla's treatment] is punishment is obvious on the face of it."
Except it isn't, and that's not the reasoning Judge White used, nor what he said. He cites City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983), which states that "Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. . . . [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law." City of Revere at 244 (emphasis added) (quoting Ingraham v. Wright).

Rather, Padilla's treatment was not punishment under the meaning of the Eighth Amendment, which is precisely why his claim does not arise under the Eighth Amendment but the Fifth, even though his due process rights are "at least as great as the Eighth Amendment protections available to a convicted prisoner." In short, the Eighth Amendment acts as a minimum guide to analogous due process protections, not because Padilla's treatment is "punishment" under the Eighth Amendment, but because treatment that is violative of the Eighth Amendment for convicted prisoners is a fortiori violative of due process protections even though such treatment for non-convicted detainees is not "punishment" for purposes of the Eighth Amendment.
When I used "punishment" above, I meant in the sense that they wanted to hurt him. What I meant was that the prohibited act was the hurting, and not the motivation. What I'm maintaining is that this "punishment" (which it must be to invoke the Eighth) doesn't have to be an officially prescribed act to violate the Eighth Amendment (and this arises from Hudson, not Padilla). I agree that Padilla is not strictly an Eighth Amendment case, because the behaviour was prior to conviction. That's not the point I was making with Hudson. The point of Hudson is that post-conviction behaviour is constrained by the Eighth Amendment even if the behaviour is not part of the official scheme of punishment (and certainly not part of the explicit sentence). It didn't matter to the court whether the behaviour was "isolated" or "unauthorized". Thomas's view would have to insist that "unauthorized" behaviour cannot be part of an official punishment regime and thus not subject to Eight Amendment scrutiny (even if other remedies do apply).

I'm starting to repeat myself, so I will cut this short.
But they did not find a violation because of the reason you gave (that conduct that is not "part of" a judicially-prescribed sentence may be an Eighth Amendment violation). Rather, they found that conduct incident to the post-conviction criminal process counts as "criminal punishment" for Eighth Amendment purposes, and left the question open on whether such conduct incident to punishment prescribed may be (in some sense) described as "part of" the sentence.
Exactly where is this "finding" in Hudson?!?!? As I have pointed out previously, they never use the word "incident" except as a noun.

Cheers,
6.16.2009 8:09am
cmraz (mail):
The history of the adoption of the Eighth Amendment makes clear that it was intended to apply to interrogation torture -- the word 'punishment' at the time of the adoption of the 8th Amendment included pre-conviction governmental action. When the 8th Amendment was discussed at the conventions it was discussed as relevant to interrogation torture. The 5th Amendment was discussed, amended and adopted immediately before the 8th. The 5th was amended to make clear it only applied in criminal cases -- the 8th Amendment was not so amended. Ingram is a school spanking case and while the court makes a statement that the 8th Amendment doesn't apply outside the criminal context-- it does so without a complete analysis or recognition of this history. The Eighth Amendment was intended to apply to interrogation torture, whether before or after conviction. For a full analysis of these issues, which is lacking in any S.Ct. case dealing with "punishment", see Tortured History: Finding our way back to the Lost Origins of the Eighth Amendment at 31 Pepperdine L. Rev. 661.
6.17.2009 10:52am

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