In other news
Sep. 9th, 2005 10:14 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumAnyone can be named an enemy combatant.
Based (so it seems from the decision.pdf) on secret evidence (it's redacted) Jose Padilla has been (for the nonce) legally stripped of all his rights as a citizen.
From the decision
The Authorization for Use of Military Force Joint Resolution
(AUMF), upon which the President explicitly relied in his order
that Padilla be detained by the military and upon which the
government chiefly relies in support of the President’s authority
to detain Padilla, was enacted by Congress in the immediate
aftermath of the September 11, 2001, terrorist attacks on the
United States. It provides as follows:
[T]he President is authorized to use all necessary and
appropriate force against those nations, organizations,
or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred
on September 11, 2001, or harbored such organizations
or persons, in order to prevent any future acts of
international terrorism against the United States by
such nations, organizations or persons.
Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (September 18, 2001).
The Supreme Court has already once interpreted this Joint
Resolution in the context of a military detention by the
President. In Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), the
Supreme Court held, on the facts alleged by the government, that
the AUMF authorized the military detention of Yaser Esam Hamdi,
an American citizen who fought alongside Taliban forces in
Afghanistan, was captured by United States allies on a
battlefield there, and was detained in the United States by the
military.2 Id. at 2635-37, 2641.
The “narrow question,”, addressed by the Court in Hamdi was “whether the Executive
has the authority to detain citizens who qualify as ‘enemy
combatants,’defined for purposes of that case as
“individual[s] who . . . [were] ‘“part of or supporting forces
hostile to the United States or coalition partners”’ in
Afghanistan and who ‘“engaged in an armed conflict against the
United States”’ there,” id. The controlling plurality of the
Court answered that narrow question in the affirmative,
concluding, based upon “longstanding law-of-war principles,”
that Hamdi’s detention was “necessary and appropriate”
within the meaning of the AUMF because “[t]he capture and
detention of lawful combatants and the capture, detention, and
trial of unlawful combatants, by ‘universal agreement and
practice,’ are ‘important incident[s] of war,’”
(quoting Ex parte Quirin, 317 U.S. 1, 28 (1942)).
The rationalefor this law-of-war principle, Justice O’Connor explained for the
plurality, is that “detention to prevent a combatant’s return to
the battlefield is a fundamental incident of waging war.”
As the AUMF authorized Hamdi’s detention by the President,
so also does it authorize Padilla’s detention. Under the facts
as presented here, Padilla unquestionably qualifies as an “enemy
combatant” as that term was defined for purposes of the
controlling opinion in Hamdi. Indeed, under the definition of
“enemy combatant” employed in Hamdi, we can discern no difference
in principle between Hamdi and Padilla.
On the upside, as Scotusblog points out, this was not a blanket approval of the assertions of power the White House has been making. The holding limited the authority to make such a decision to an act of Congress, not to any inherent power of the Oval Office. Which means, what the Legislature giveth, said Legislature may take away.
The Supreme Court similarly avoided the "inherent authority" claim when it upheld detention of citizens captured in foreign battle zones in its decision in Hamdi v. Rumsfeld -- so far, the only other case of detention of a citizen named as an "enemy combatant."
The home team is holding its own on this.
Based (so it seems from the decision.pdf) on secret evidence (it's redacted) Jose Padilla has been (for the nonce) legally stripped of all his rights as a citizen.
From the decision
The Authorization for Use of Military Force Joint Resolution
(AUMF), upon which the President explicitly relied in his order
that Padilla be detained by the military and upon which the
government chiefly relies in support of the President’s authority
to detain Padilla, was enacted by Congress in the immediate
aftermath of the September 11, 2001, terrorist attacks on the
United States. It provides as follows:
[T]he President is authorized to use all necessary and
appropriate force against those nations, organizations,
or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred
on September 11, 2001, or harbored such organizations
or persons, in order to prevent any future acts of
international terrorism against the United States by
such nations, organizations or persons.
Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (September 18, 2001).
The Supreme Court has already once interpreted this Joint
Resolution in the context of a military detention by the
President. In Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), the
Supreme Court held, on the facts alleged by the government, that
the AUMF authorized the military detention of Yaser Esam Hamdi,
an American citizen who fought alongside Taliban forces in
Afghanistan, was captured by United States allies on a
battlefield there, and was detained in the United States by the
military.2 Id. at 2635-37, 2641.
The “narrow question,”, addressed by the Court in Hamdi was “whether the Executive
has the authority to detain citizens who qualify as ‘enemy
combatants,’defined for purposes of that case as
“individual[s] who . . . [were] ‘“part of or supporting forces
hostile to the United States or coalition partners”’ in
Afghanistan and who ‘“engaged in an armed conflict against the
United States”’ there,” id. The controlling plurality of the
Court answered that narrow question in the affirmative,
concluding, based upon “longstanding law-of-war principles,”
that Hamdi’s detention was “necessary and appropriate”
within the meaning of the AUMF because “[t]he capture and
detention of lawful combatants and the capture, detention, and
trial of unlawful combatants, by ‘universal agreement and
practice,’ are ‘important incident[s] of war,’”
(quoting Ex parte Quirin, 317 U.S. 1, 28 (1942)).
The rationalefor this law-of-war principle, Justice O’Connor explained for the
plurality, is that “detention to prevent a combatant’s return to
the battlefield is a fundamental incident of waging war.”
As the AUMF authorized Hamdi’s detention by the President,
so also does it authorize Padilla’s detention. Under the facts
as presented here, Padilla unquestionably qualifies as an “enemy
combatant” as that term was defined for purposes of the
controlling opinion in Hamdi. Indeed, under the definition of
“enemy combatant” employed in Hamdi, we can discern no difference
in principle between Hamdi and Padilla.
On the upside, as Scotusblog points out, this was not a blanket approval of the assertions of power the White House has been making. The holding limited the authority to make such a decision to an act of Congress, not to any inherent power of the Oval Office. Which means, what the Legislature giveth, said Legislature may take away.
The Supreme Court similarly avoided the "inherent authority" claim when it upheld detention of citizens captured in foreign battle zones in its decision in Hamdi v. Rumsfeld -- so far, the only other case of detention of a citizen named as an "enemy combatant."
The home team is holding its own on this.
