[Troll]

Excellent news!! Haven't had a chance to read the judgements yet, but it seems the US Supreme Court doesn't accept Bush's screwball legal argument either.

http://news.bbc.co.uk/2/hi/americas/3847539.stm

The US Supreme Court has ruled that terror suspects held at Guantanamo Bay in Cuba can use the US legal system to challenge their detention.
The six-to-three ruling is seen as a major blow to the Bush administration and could herald hundreds of appeals in US courts on behalf of the inmates.

If nothing else, this will be an incentive to the Bush Administration to start dealing with these people properly.

[zachs]

Great!

Well, I guess the only part that isn't so great is that they can still hold American citizens indefinately without charging them.

[spauldingg]

Justice Sandra Day O'Connor said that a state of war was "not a blank cheque for the president when it comes to the rights of the nation's citizens".

[Zimphire]

I am just glad we didnt have this mindset during WWII.

We might have lost.

[Drifter]

Really. We held suspected Nazis and people loyal to the enemy in internment camps. If one secret was let out about anything, we would have lost the war. If more details were leaked concerning the Manhattan Project, there would have been hell to pay. And what if we were exposed for the misleading fake troop movements and tactics we used?

If one person of suspicious nature is let go without questioning, he could be the one that blows **** up.

[gatekeeper]

If we can't disappear people - the terrorists have already won.

[RonnieoftheRose]

Originally posted by Drifter:
Really. We held suspected Nazis and people loyal to the enemy in internment camps. If one secret was let out about anything, we would have lost the war. If more details were leaked concerning the Manhattan Project, there would have been hell to pay. And what if we were exposed for the misleading fake troop movements and tactics we used?

If one person of suspicious nature is let go without questioning, he could be the one that blows **** up.

That's fascist. Many regular Japanese Americans were held in camps and starved. Henry Ford was a Nazi sympathizer who wrote a book full of anti-Semitic diatribe but was not arrested. Companies like IBM collaborated and sold equipment to the Nazi regime. No arrests. So it all boils down to elitism. You're an innocent member of the ethnic minority with no money = imprisonment. You're a corrupt member of the ethnic majority with lots of money = freedom.

That's disgusting. We don't want to see it again even if it's already happening. Stomp it out.

[CD Hanks]

On second thought, nevermind.

[swrate]

Originally posted by Troll:
Excellent news!! Haven't had a chance to read the judgements yet, but it seems the US Supreme Court doesn't accept Bush's screwball legal argument either.

http://news.bbc.co.uk/2/hi/americas/3847539.stm
If nothing else, this will be an incentive to the Bush Administration to start dealing with these people properly.

yes, good news, I hope one day that detention zone will be closed.
That pic is terrible,,,, red objects.

[Spliffdaddy]

yay!

reckon the US won't be taking any more prisoners.

I always said a 7.62mm round @ $0.77 was a lot cheaper than air transport to Cuba - plus food and lodging.

[swrate]

Originally posted by Spliffdaddy:
yay!

reckon the US won't be taking any more prisoners.

I always said a 7.62mm round @ $0.77 was a lot cheaper than air transport to Cuba - plus food and lodging.

sure, you are for death penalty.

[Spliffdaddy]

only in the proper circumstances.

[SimeyTheLimey]

A couple of notes. Coincidentally, I was in the Supreme Court to see the opinions being read today (with a law firm I'm working for). I didn't know that these would be the opinions being read.

The BBC says "The US Supreme Court has ruled that terror suspects held at Guantanamo Bay in Cuba can use the US legal system to challenge their detention."

From what I gathered, this is correct. However, "challenge" means "prove you aren't factually a combatant." If the government can show that an individual was a combatant, then the Supreme Court seems to say the US can continue to hold the detainee. In other words, from what I gathered, the Supreme Court did not disagree with the idea that terrorists can be unlawful combatants, and that unlawful combatants (even US Citizens like Mr. Hamdi) can be detained in wartime. It was just that there is jurisdiction in the US Courts to contest the factual status. But if the person detained is who the government says he is, he's not going anywhere.

One thing I don't understand is how this is supposed to fit in with military commissions, or whether it all has to go to civilian court. I asked Justice Ginsberg that question (we had a meeting with her afterwards), and she told me that was one of the issues they specifically didn't decide today.

In all, these opinions seem to leave more unanswered than answered. Really, the only thing fully decided is that Gitmo is under the jurisdiction of US courts. But other than that, it is still pretty open. The Padilla case, in particular, was a complete punt by the Court. All they did was say he brought his Habeas writ in the wrong jurisdiction and against the wrong defendant (Rumsfeld, not the commander of the brig). That was a waste of a decision if you ask me.

[Dale Sorel]

Originally posted by Zimphire:
I am just glad we didnt have this mindset during WWII.

We might have lost.

Amen

[Spheric Harlot]

Originally posted by Spliffdaddy:
only in the proper circumstances.

Like those guys they had to let go from Gitmo after two years because they turned out to be innocent...

The point of court access is *determining* whether "proper circumstances" apply.

The order in which things happen *can* be important sometimes, Spliffy.

-s*

[phoenixboy70]

Originally posted by Spliffdaddy:
yay!
reckon the US won't be taking any more prisoners.
I always said a 7.62mm round @ $0.77 was a lot cheaper than air transport to Cuba - plus food and lodging.

yay!

then bush can finally take his rightfully deserved place next to milosevic in den haag.

[Troll]

Originally posted by SimeyTheLimey:
The BBC says "The US Supreme Court has ruled that terror suspects held at Guantanamo Bay in Cuba can use the US legal system to challenge their detention."

From what I gathered, this is correct. However, "challenge" means "prove you aren't factually a combatant." If the government can show that an individual was a combatant, then the Supreme Court seems to say the US can continue to hold the detainee. In other words, from what I gathered, the Supreme Court did not disagree with the idea that terrorists can be unlawful combatants, and that unlawful combatants (even US Citizens like Mr. Hamdi) can be detained in wartime. It was just that there is jurisdiction in the US Courts to contest the factual status. But if the person detained is who the government says he is, he's not going anywhere.

I think you�re playing down the significance of these decisions, which is to be expected I suppose since you have defended the arguments that the Court shot down. Notably, it's significant that the Court passionately rejected the Bush Administration's core legal argument that the executive branch has the last word in imposing open-ended detention on citizens and noncitizens. If their reasoning differed, the condemnation of the Administration's methods did not.

The three cases involve different kinds of detainees: Hamdi - a US citizen captured in Afghanistan; Padilla - a US citizen captured in Chicago and Rasul - foreign nationals detained in Guantanamo. The Court has always been careful to deal with these people separately and I'm not sure it would be correct to amalgamate the decisions in Hamdi and Rasul the way some commentators have. That aside, I think these opinions ring in a number of significant changes.

First, the fact that the detainees in Guantanamo can challenge their detentions necessarily means that the Government will have to formulate a case against them. That is massively significant. If this had been the rule from the start, some of the people that have now been released without charge in the UK would never have wasted part of their lives detained without cause.

Second, the passion of the Court's rejection of most of the Government's arguments is signigicant.

"[T]he risk of erroneous deprivation of a citizen's liberty in the absence of sufficient process here is very real. Moreover, as critical as the government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat."

"[T]he risk of erroneous deprivation" of a detainee's liberty interest is unacceptably high under the government's proposed rule."

"Hamdi's "private interest ..." is the most elemental of liberty interests -the interest in being free from physical detention by one's own government. "In our society liberty is the norm," and detention without trial "is the carefully limited exception." "We have always been careful not to 'minimize the importance and fundamental nature' of the individual's right to liberty," and we will not do so today."

Thirdly, whilst you are right that the Court seems to affirm the notion of an unlawful combatant, it seems to have an entirely different notion to the Government (and you) of what an unlawful combatant is.

The decision in Hamdi suggests that Padilla may not qualify as an unlawful combatant at all. For purposes of the Hamdi case, at least, the four-justice plurality considered only people "part of or supporting forces hostile to the United States or coalition partners" who "engaged in an armed conflict against the United States" as potentially subject to detention as unlawful combatants. Padilla wasn't engaged in armed conflict; he was picked up at the Airport. The same would apply to some of the Guanatanamo detainees who were picked up in Pakistan.

The Court also doesn't accept the Government's argument that unlawful combatants have no rights. The argument I, and others, made here was that even if there is such a thing as an unlawful combatant, you cannot either simply accuse someone of being an unlawful combatant without testing the finding nor can you say that such people have no rights at all. The decisions confirm this saying that even unlawful combatants have the right to habeas corpus without limitation on other rights they may have. In fact, the entire treatment offered to Hamdi seems consistent with the Geneva Conventions. They seem to be saying that Hamdi can be held without trial for as long as the combat continues. They also seem to be saying that he would need to be tried or released at the end of hostilities. In those two respects, there doesn't seem to be a difference between an unlawful combatant and a Prisoner of War. Again, this is a rejection of the Administration's argument.

Furthermore, there is a lot in the opinions to suggest that the courts will not see the War on Terror as a real war. In Hamdi the Court says that he can be held for so long as the war continues, but the judges define the war as traditional combat operations in Afghanistan. They would apparently not sanction the continued detention without trial of Hamdi thereafter even if the War on Terror continues. That seems a mighty blow to the Government's argument that you have brought in these fora. As the New York Times puts it:

Some justices suggested that detentions may not exceed the duration of traditional combat operations, seeming to reject the notion that people may be held for as long as efforts to combat terrorism persist. Others said that the extraction of information from prisoners was not by itself enough justification to hold prisoners for long periods.

Another huge development is the apparent extension of the right to file suits challenging the legality of detentions not only to Guantanamo Bay but to anywhere in the world that the US holds people of any nationality captive away from the battlefield.

On a balance I think these opinions are a huge victory for human rights and freedom. The next phase, being the cases that will now be brought, is also important, but the second phase could never have happened without these decisions and these decisions guide the way in which that phase will proceed.

[SimeyTheLimey]

Originally posted by Troll:
I think you�re playing down the significance of these decisions, which is to be expected I suppose since you have defended the arguments that the Court shot down. Notably, it's significant that the Court passionately rejected the Bush Administration's core legal argument that the executive branch has the last word in imposing open-ended detention on citizens and noncitizens. If their reasoning differed, the condemnation of the Administration's methods did not.

The three cases involve different kinds of detainees: Hamdi - a US citizen captured in Afghanistan; Padilla - a US citizen captured in Chicago and Rasul - foreign nationals detained in Guantanamo. The Court has always been careful to deal with these people separately and I'm not sure it would be correct to amalgamate the decisions in Hamdi and Rasul the way some commentators have. That aside, I think these opinions ring in a number of significant changes.

First, the fact that the detainees in Guantanamo can challenge their detentions necessarily means that the Government will have to formulate a case against them. That is massively significant. If this had been the rule from the start, some of the people that have now been released without charge in the UK would never have wasted part of their lives detained without cause.

Second, the passion of the Court's rejection of most of the Government's arguments is signigicant.
Thirdly, whilst you are right that the Court seems to affirm the notion of an unlawful combatant, it seems to have an entirely different notion to the Government (and you) of what an unlawful combatant is.

The decision in Hamdi suggests that Padilla may not qualify as an unlawful combatant at all. For purposes of the Hamdi case, at least, the four-justice plurality considered only people "part of or supporting forces hostile to the United States or coalition partners" who "engaged in an armed conflict against the United States" as potentially subject to detention as unlawful combatants. Padilla wasn't engaged in armed conflict; he was picked up at the Airport. The same would apply to some of the Guanatanamo detainees who were picked up in Pakistan.

The Court also doesn't accept the Government's argument that unlawful combatants have no rights. The argument I, and others, made here was that even if there is such a thing as an unlawful combatant, you cannot either simply accuse someone of being an unlawful combatant without testing the finding nor can you say that such people have no rights at all. The decisions confirm this saying that even unlawful combatants have the right to habeas corpus without limitation on other rights they may have. In fact, the entire treatment offered to Hamdi seems consistent with the Geneva Conventions. They seem to be saying that Hamdi can be held without trial for as long as the combat continues. They also seem to be saying that he would need to be tried or released at the end of hostilities. In those two respects, there doesn't seem to be a difference between an unlawful combatant and a Prisoner of War. Again, this is a rejection of the Administration's argument.

Furthermore, there is a lot in the opinions to suggest that the courts will not see the War on Terror as a real war. In Hamdi the Court says that he can be held for so long as the war continues, but the judges define the war as traditional combat operations in Afghanistan. They would apparently not sanction the continued detention without trial of Hamdi thereafter even if the War on Terror continues. That seems a mighty blow to the Government's argument that you have brought in these fora. As the New York Times puts it:
Another huge development is the apparent extension of the right to file suits challenging the legality of detentions not only to Guantanamo Bay but to anywhere in the world that the US holds people of any nationality captive away from the battlefield.

On a balance I think these opinions are a huge victory for human rights and freedom. The next phase, being the cases that will now be brought, is also important, but the second phase could never have happened without these decisions and these decisions guide the way in which that phase will proceed. [/B]

I don't disagree with most of your analysis except that you seem to be making the same sin of conflation of different cases that many of the commentators are doing. Two of the cases involve US citizens, and that fact is absolutely central to the analysis. That's where most of the passionate language that is being quoted is coming from. Without US Citizenship, the individuals would not have the rights the court has askribed to them. Actually, in those cases I am rather sympathetic to Justice Scalia's dissent. The traditional way of dealing with a US Citizen who levies war against his own country is to try him as a traitor. I'm all for that.

But notice that Scalia also dissented in the Rasul case. That's the one that says that enemy combatants can take to US courts to contest their detention as POWs (or any other kind of detention). I think the Court made a profoundly stupid decision there, but I think it may have been forced by the briefs. The case came up on a jurisdictional argument, and that is what the Court decided. What they didn't decide is whether the tribunal that the Court has said must be allowed to review cases must be civilian, or if it can be military. That was what I asked Justice Ginsberg. She seemed to say that this is still an open question.

I still think that is a mistake that will burden the military. Soldiers who capture combatants will have to testify against them in some kind of hearing. That's unprecidented and dumb. The 4th Circuit was right -- the circumstances alone are sufficiently clear. But nevertheless, such proof is doable if the burden isn't placed too high. That will also have to be decided on remand, but I suspect it won't be as high a burden as the police have for civilian arrests.

But again, just to reemphasise, with respect to foreign nationals captured, if they are who the government says they are, they stay put for the duration of hostilities. The Court did not change that basic issue. It just remanded for more factual determinations. This is still the law of war, it is not civilian law enforcement.

I want to comment on what you wrote here:

entire treatment offered to Hamdi seems consistent with the Geneva Conventions. They seem to be saying that Hamdi can be held without trial for as long as the combat continues. They also seem to be saying that he would need to be tried or released at the end of hostilities. In those two respects, there doesn't seem to be a difference between an unlawful combatant and a Prisoner of War. Again, this is a rejection of the Administration's argument.

Actually, this is exactly what the Admnistration argued. Unlawful combatants can be held for the duration of hostilities. They do not have to be tried as civilians for civilian crimes. That, of you recall, is what you argued. You argued there were only two categories -- combatant POWs who are members of national armed forces subject to all the POW protections, and civilians only subject to criminal law. If you aren't the former, you argued, you are the latter.

The Supreme Court rejected that, and adopted a position more like I have argued. People who wage private wars are subject to the laws of war, not only civilian jurisdiction. Hamdi doesn't have to be charged with a crime to be held. The government just has to prove to a tribunal that he really was a combatant and not just a relief worker as he claims.

[Troll]

Originally posted by SimeyTheLimey:
Actually, this is exactly what the Admnistration argued. Unlawful combatants can be held for the duration of hostilities. They do not have to be tried as civilians for civilian crimes. That, of you recall, is what you argued. You argued there were only two categories -- combatant POWs who are members of national armed forces subject to all the POW protections, and civilians only subject to criminal law. If you aren't the former, you argued, you are the latter.

The Supreme Court rejected that, and adopted a position more like I have argued. People who wage private wars are subject to the laws of war, not only civilian jurisdiction. Hamdi doesn't have to be charged with a crime to be held. The government just has to prove to a tribunal that he really was a combatant and not just a relief worker as he claims.

If it wasn't clear from my last post, I wholeheartedly agree with you that the court seems to accept that an unlawful combatant exists. However, they didn't seem to decide the matter under the Geneva Conventions. Our argument was always under the GC's. I never said US law didn't (or wouldn't) define an unlawful combatant. I still think that that part of the finding is inconsistent with international law and I hope that the inconsistency is raised at some point. I don't think the way in which they almost casually approve of the unlawful combatant issue is satisfactory, but the issue is less important now.

The Court's decision is easier for me to digest than the Bush Administration's argument because now the definition of who qualifies is more restricted and what their rights are is wider. I agree that the Hamdi decision doesn't necessarily apply to Rasul, but it will almost certainly apply to Padilla and it seems unlikely that the court will run two different definitions of unlawful combatant.

In any event, Padilla the administration considers an unlawful combatant. The Court does not. The limitation imposed by the Court means that fewer people fall under the definition of unlawful combatant. Once they do, the consequence of the Court's opinions in Rasul and Hamdi mean that all people who are captured (lawful or unlawful combatants) will have rights either under the GC's and US law or under US law through this decision. They're not saying that the GC's don't apply to these people as far as I can see. Finally, the Court seems to say that when hostilities have ended the unlawful combatant can no longer be held without trial. Hostilities seem to be defined as the war within the WOT rather than the WOT itself.

So, we have a narrower definition of unlawful combatant, more rights for people that fall within the definition and shorter time periods for holding them. For me that's a considerable improvement over the situation we've had for the last 2 years. That's a far cry from the unlawful combatant paradigm that the Bush Administration argued for and one I'm far happier to live with. From now on, only people picked up in a combat zone can be held as combatants and of those captured, those not accorded POW status can petition the US Courts.

In relation strictly to Guantanamo, the important thing has always been that these people have access to justice. I have always said that I have faith in the American justice system and that I expect it will be able to separate the dangerous terrorists from the footsoldiers and innocent bystanders. Now that they have the right to appear before that court, their position is improved to no end.

Must have been cool to be in the Court yesterday. A bit of history being made. Law students will debate these cases on MacNN in 20 years time and old farts like you can say you were there.

[SimeyTheLimey]

Originally posted by Troll:
If it wasn't clear from my last post, I wholeheartedly agree with you that the court seems to accept that an unlawful combatant exists. However, they didn't seem to decide the matter under the Geneva Conventions. Our argument was always under the GC's. I never said US law didn't (or wouldn't) define an unlawful combatant. I still think that that part of the finding is inconsistent with international law and I hope that the inconsistency is raised at some point. I don't think the way in which they almost casually approve of the unlawful combatant issue is satisfactory, but the issue is less important now.

The Court's decision is easier for me to digest than the Bush Administration's argument because now the definition of who qualifies is more restricted and what their rights are is wider. I agree that the Hamdi decision doesn't necessarily apply to Rasul, but it will almost certainly apply to Padilla and it seems unlikely that the court will run two different definitions of unlawful combatant.

In any event, Padilla the administration considers an unlawful combatant. The Court does not. The limitation imposed by the Court means that fewer people fall under the definition of unlawful combatant. Once they do, the consequence of the Court's opinions in Rasul and Hamdi mean that all people who are captured (lawful or unlawful combatants) will have rights either under the GC's and US law or under US law through this decision. They're not saying that the GC's don't apply to these people as far as I can see. Finally, the Court seems to say that when hostilities have ended the unlawful combatant can no longer be held without trial. Hostilities seem to be defined as the war within the WOT rather than the WOT itself.

So, we have a narrower definition of unlawful combatant, more rights for people that fall within the definition and shorter time periods for holding them. For me that's a considerable improvement over the situation we've had for the last 2 years. That's a far cry from the unlawful combatant paradigm that the Bush Administration argued for and one I'm far happier to live with. From now on, only people picked up in a combat zone can be held as combatants and of those captured, those not accorded POW status can petition the US Courts.

In relation strictly to Guantanamo, the important thing has always been that these people have access to justice. I have always said that I have faith in the American justice system and that I expect it will be able to separate the dangerous terrorists from the footsoldiers and innocent bystanders. Now that they have the right to appear before that court, their position is improved to no end.

Must have been cool to be in the Court yesterday. A bit of history being made. Law students will debate these cases on MacNN in 20 years time and old farts like you can say you were there.

First the important thing. Yes, it was really, really cool to be there. Actually, in addition to these cases, the Court also announced a couple of important criminal procedure cases. One to do with Miranda (the court strengthened Miranda significantly), and the other to do with the Fruit of the Poisonous tree doctrine (the court kind of gutted it). So this really was an important day and that is wonderful. I had never been to the Supreme Court before, and most of its cases are pretty boring. So a nice coincidence indeed. Plus, I had never met a Supreme Court justice before. Even if it was Ginsberg.

On any conflict between US domestic law and (your view of) international law. If the Court perceives a conflict, it would try to reconcile the difference (Paqete Habana), but I am sure you are aware by now that the US Constititutional doctrine is that if there is a direct conflict, US law takes precidence. The US is a strictly dualist jurisdiction.

I haven't read any of the cases, but my understanding from hearing the opinions summarized by the Justices, Padilla was not decided on the merits at all. The court just remanded for consideration in the correct judicial venue. Since Padilla was always in the US, the complicated jurisdictional questions weren't at issue in that case. But I don't think that it can really be said that the Court didn't consider him to be an unlawful combatant because as I understand it, the Court never considered that question.

[Troll]

Originally posted by SimeyTheLimey:
I haven't read any of the cases, but my understanding from hearing the opinions summarized by the Justices, Padilla was not decided on the merits at all. The court just remanded for consideration in the correct judicial venue. Since Padilla was always in the US, the complicated jurisdictional questions weren't at issue in that case. But I don't think that it can really be said that the Court didn't consider him to be an unlawful combatant because as I understand it, the Court never considered that question.

Yes, you're right. What I'm saying is that if you apply the unlawful combatant test set out in Hamdi to Mr. Padilla then he isn't an unlawful combatant since he wasn't fighting the US forces in a warzone. Whilst I agree that the two cases would be treated separately, I can't see them applying two different tests to US Nationals.

[SimeyTheLimey]

Originally posted by Troll:
I can't see them applying two different tests to US Nationals.

The Justices for both the plurality and the concurrences in Hamdi made a great deal of Hamdi's US citizenship. I can absolutely see them (or courts reading the Court) seeing US Citizenship as a defining issue. Although the test for whether you are a combatant or not might be the same (it is simply a factual condition), the Court did seem to say that what you can and ought to do with a combatant is different if the combatant is a US Citizen, and if he is not. I suspect this will pan out as expanded Habeas rights for US Citizens as opposed to non-citizens. But this will be played out against the Rasul decision, and I don't know what a court will do with that.

Originally posted by Troll:
What I'm saying is that if you apply the unlawful combatant test set out in Hamdi to Mr. Padilla then he isn't an unlawful combatant since he wasn't fighting the US forces in a warzone.

I don't understand this to be the test set out by Hamdi. I think it is simply that Hamdi's facts were different from Padilla. If the test were simply geographic, then the Court could have ruled on the merits and freed Padilla. They didn't do that, meaning that the issue of whether he was or was not a combatant is still open to question when facts are developed.

I don't have to tell you that there are precedents for enemy combatants captured inside the US. Ex Parte Quirin is one.

[Troll]

Originally posted by SimeyTheLimey:
I don't understand this to be the test set out by Hamdi. I think it is simply that Hamdi's facts were different from Padilla. If the test were simply geographic, then the Court could have ruled on the merits and freed Padilla. They didn't do that, meaning that the issue of whether he was or was not a combatant is still open to question when facts are developed.

I don't have to tell you that there are precedents for enemy combatants captured inside the US. Ex Parte Quirin is one.

Here's the relevant quote from Hamdi:

Under the definition of enemy combatant that we accept today as falling within the scope of Congress' authorization, Hamdi would need to be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States" to justify his detention in the United States for the duration of the relevant conflict.

I see no reason why that test wouldn't be applied to Padilla. Padilla, like Hamdi, is a US national. In the Padilla case, there doesn't appear to be any allegation that he was engaged in armed conflict against the United States. It is common cause that he was picked up at O'Hare International, unarmed, and accused of being on a reconnaissance mission for Al Qaeda. On the test applied in Hamdi, he cannot be classified as an unlawful combatant.

As to why they didn't decide the matter on that basis, not only did his lawyers approach the wrong court, but my understanding is that the State's case doesn't turn on him being classified as an unlawful combatant.

http://caselaw.lp.findlaw.com/script...;invol=03-6696

[SimeyTheLimey]

Originally posted by Troll:
Here's the relevant quote from Hamdi:

I see no reason why that test wouldn't be applied to Padilla. Padilla, like Hamdi, is a US national. In the Padilla case, there doesn't appear to be any allegation that he was engaged in armed conflict against the United States. It is common cause that he was picked up at O'Hare International, unarmed, and accused of being on a reconnaissance mission for Al Qaeda. On the test applied in Hamdi, he cannot be classified as an unlawful combatant.

As to why they didn't decide the matter on that basis, not only did his lawyers approach the wrong court, but my understanding is that the State's case doesn't turn on him being classified as an unlawful combatant.

http://caselaw.lp.findlaw.com/script...;invol=03-6696

You seem to equate participating in an armed conflict with being under arms at any given moment. I see no reason to make that equation and I don't think the Court intended to be so simplistic or literal.

To make this clear, would you say that in a conventional war, a soldier in a headquarters unit (say, the Pentagon) is, or is not a combatant? What if the only weapon he ever carries is a pen? Isn't it reasonable to say that the soldier is a member of an organization engaged in an armed combat, and as a part of that organization, he is a combatant?

Padilla was captured in Chacago O'Hare airport (if reports are accurate) on a mission for al Queda. He was a member of an organization engaged in an armed conflict with the United States. That is what Congress has determined. The courts aren't going to directly contradict that. Therefore, anyone part of al-Queda is a participant in an armed campaign against the United States. He is a combatant.

To make it even more stark, consider that most of the team that carried out 9/11 would not be combatants under your definition. Most were probably unarmed. And all of them were surely unarmed at some point prior to executing their plot. What made them combatants were their goals, plans, and affiliation. It has nothing to do with the happanstance of whether they had a weapon in their hands at the time.

After all, bare hands can be a weapon.

[SimeyTheLimey]

By the way, Troll, the way you quoted the Court was a bit misleading. The Court didn't adopt a definion of enemy combatant in a way that could be applied in other cases. The Court merely adopted language from the Government's brief for the purposes of this case.

The threshold question before us is whether the Executive has the authority to detain citizens who qualify as "enemy combatants." There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the "enemy combatant" that it is seeking to detain is an individual who, it alleges, was "_'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. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

Tut tut.

[BlackGriffen]

Originally posted by SimeyTheLimey:
You seem to equate participating in an armed conflict with being under arms at any given moment. I see no reason to make that equation and I don't think the Court intended to be so simplistic or literal.

To make this clear, would you say that in a conventional war, a soldier in a headquarters unit (say, the Pentagon) is, or is not a combatant? What if the only weapon he ever carries is a pen? Isn't it reasonable to say that the soldier is a member of an organization engaged in an armed combat, and as a part of that organization, he is a combatant?

Be careful, Simey. That's the very same logic used by Al Qaeda to attack civilians (just, maybe, one more step).

BG

[SimeyTheLimey]

Originally posted by BlackGriffen:
Be careful, Simey. That's the very same logic used by Al Qaeda to attack civilians (just, maybe, one more step).

BG

Yes, just a little bit more of a step.

I don't care what insane rationalizations terrorists use. I'm concerned that our own law not make absurd and self-defeating distinctions that hand terrorists the advantage. But I don't think that the Court did that (at least not on this point).

[Troll]

Originally posted by SimeyTheLimey:
By the way, Troll, the way you quoted the Court was a bit misleading. The Court didn't adopt a definion of enemy combatant in a way that could be applied in other cases. The Court merely adopted language from the Government's brief for the purposes of this case.

No, Simey. I think you're confusing a statement of fact (at II) with a statement of law (at IIIB). The quote you supplied does not support your argument. Your quote comes from section II of the opinion where the Court is setting out the facts of the case. Read your quote again. It says, "[T]he Government has never provided any court with the full criteria that it uses in classifying individuals as [enemy combatants]. It [as in the Government] has made clear, however, that, for purposes of this case ..." Your quote is just a statement of fact. The Court is merely saying there that the Government has never provided any court with a universal definition of enemy combatant; the Government has only supplied a definition whose application the Government restricts to the Hamdi case. That's just a statement of the Government's case. The Court wasn't bound to accept that restriction when making its finding and indeed it didn't.

Later on (at IIIB - the part I quoted), the Court makes its finding of law: "Under the definition of enemy combatant that we accept today ..." There is no qualification on the finding of law there. They don't say that the definition of unlawful combatant that they accept applies only to Hamdi. Unfortunately, if you ask me, the Court sides with the Government when they make their decision, although they do dodge the issue somewhat in that the lower courts will now have to deal with the conflict between the Supreme Court's definition and the Geneva Convention. From the Washington Post:

QUESTION: What do you think about the lack of discussion in the cases about the arguably arbitrary category of "enemy combatant" to sidestep established protections such as the Geneva Conventions? Do you think it simply falls under the Court's deference to the Executive in times of national crisis? Do you think it will be regrettable in the long run that the Court did not reach this issue and thus, did not officially denounce such an arguably manipulative tactic?

Elisa Massimino, director of the Human Rights First Washington, D.C.:
"I agree, this is a huge gap in the decisions. The Geneva Conventions, ratified by the US and as such part of the supreme law of the land under the constitution, does not recognize the category of "enemy combatant", and you're right to point out that the Administration has used it here explicitly to sidestep the protections of the Geneva Conventions. I don't think that we've heard the last of that issue, though, and I'm sure it will be aired by the parties as the Hamdi and Padilla cases work their way back through the courts."

As I pointed out before, my view that the decision in Hamdi will apply to Padilla is one that is shared by many commentators. In fact I haven't read a single commentary on the cases that didn't make the point that the enemy combatant definition applied by the court in Hamdi will make Padilla's life easier.

From the New York Times:
"The decision in the Hamdi case suggests that Mr. Padilla may not qualify as an unlawful combatant at all. For purposes of the Hamdi case, at least, the four-justice plurality considered only people "part of or supporting forces hostile to the United States or coalition partners" who "engaged in an armed conflict against the United States" as potentially subject to detention as unlawful combatants.

Mr. Padilla, who was captured at an airport in Chicago and who has been accused of contemplating various terrorist acts, may not fit that definition."

Elisa Massimino quoted in the Washington Post:
"Many people predicted that the Padilla case would be the hardest for the government to prevail on, since it involves not only a US born US citizen, but one picked up on US soil. I think, while today's decision punts on the merits of the Padilla case, the ruling in Hamdi means that it will be difficult for the government to prevail without convincing a court that it's allegations about Padilla -- of which we know more now that the Justice department has released its intelligence about Padilla's activities -- are sufficient to classify him as an enemy combatant."

[Troll]

Originally posted by SimeyTheLimey:
You seem to equate participating in an armed conflict with being under arms at any given moment. I see no reason to make that equation and I don't think the Court intended to be so simplistic or literal.

The Court made it clear that enemy combatants are people captured in a WAR. It made it clear that the purpose of holding them is to prevent them returning to the battle field. It made it clear that it does not accept the Administration's notion of a War on Terror but only sees conventional wars within that war.

In order to clarify the matter, the court set up a two part test for unlawful combatant which recognises the need for there to be a situation of war (armed conflict):

1) You must be "part of or supporting forces hostile to the United States or coalition partners"

AND (note the operator)

2) "engaged in an armed conflict against the United States".

In Padilla's case, he satisfied 1 but he probably does not satisfy 2. That means he is probably not an enemy combatant. Which is logical since the rules of war shouldn't apply to someone that wasn't involved in a war (war being conventional wars like Afghanistan not the WOT). All that means is that the rules that apply to enemy combatants don't apply to Padilla. He can still be charged with terrorism or crimes. Note, I say probably above because I guess it's up to the lower courts to decide whether being part of a reconnaissance mission is tantamount to engaging in an armed conflict. I guess you'd have to show a link between Padilla and the armed conflicts in Afghanistan or Iraq which I think the Government hasn't alleged.

What the court is basically doing is drawing a distinction between normal acts of terrorism which are criminal matters subject to criminal laws and acts of war which are subject to the rules of war. As far as the application to 9/11 goes, I think that if the Government had captured the hijackers, they would not have been unlawful combatants under the definition the Supreme Court applied. They could only have been held under the normal rules for criminals. Unlawful combatants is a term that is restricted to Al Qaeda members who fought against the Coalitions in Afghanistan and Iraq.

[SimeyTheLimey]

Originally posted by Troll:
No, Simey. I think you're confusing a statement of fact (at II) with a statement of law (at IIIB). The quote you supplied does not support your argument. Your quote comes from section II of the opinion where the Court is setting out the facts of the case. Read your quote again. It says, "[T]he Government has never provided any court with the full criteria that it uses in classifying individuals as [enemy combatants]. It [as in the Government] has made clear, however, that, for purposes of this case ..." Your quote is just a statement of fact. The Court is merely saying there that the Government has never provided any court with a universal definition of enemy combatant; the Government has only supplied a definition whose application the Government restricts to the Hamdi case. That's just a statement of the Government's case. The Court wasn't bound to accept that restriction when making its finding and indeed it didn't.

You are still misstating it. What the Court is doing is limiting its holding to the facts of this case. It's a trick the Court uses frequently when confronted by a controversial decision. Bush v. Gore is the most extreme recent example, and Justice O'Connor is notorious for using this trick as well. Her judicial philosophy emphasises case-by-case adjudication. When she does lay down a test, it is usually in the form of one of her multi-prong balancing tests, which many jurists decry as providing no guidance.

What the Court did here was state explicitly that it was only adopting the Government's definition taken from its brief for the purposes of this case, then in the part you quote, the Court applied that definition to its holding in this case. If the intent were to establish a definition of universal applicability it would have said so. It would not have attached the qualification I directed you to.

It may be that some "commentators" have misread the case in the way you do. I suspect that some are looking for things to hang their arguments on. And anyway, the opinion has only been available for 3 days. But if you were to quote that "definition" back to the Court, they would reject it unless the facts were identical. And since the facts in Padilla are not identical, the "definition" you point to is inapplicable. That test identifies only one scenario where a person can be legally a combatant. But it isn't the only scenario, and the Court doesn't suggest that it is and indeed deliberately leaves itself open to other definitions in other cases.

[SimeyTheLimey]

Originally posted by Troll:
The Court made it clear that enemy combatants are people captured in a WAR. It made it clear that the purpose of holding them is to prevent them returning to the battle field. It made it clear that it does not accept the Administration's notion of a War on Terror but only sees conventional wars within that war.

In order to clarify the matter, the court set up a two part test for unlawful combatant which recognises the need for there to be a situation of war (armed conflict):

1) You must be "part of or supporting forces hostile to the United States or coalition partners"

AND (note the operator)

2) "engaged in an armed conflict against the United States".

In Padilla's case, he satisfied 1 but he probably does not satisfy 2. That means he is probably not an enemy combatant. Which is logical since the rules of war shouldn't apply to someone that wasn't involved in a war (war being conventional wars like Afghanistan not the WOT). All that means is that the rules that apply to enemy combatants don't apply to Padilla. He can still be charged with terrorism or crimes. Note, I say probably above because I guess it's up to the lower courts to decide whether being part of a reconnaissance mission is tantamount to engaging in an armed conflict. I guess you'd have to show a link between Padilla and the armed conflicts in Afghanistan or Iraq which I think the Government hasn't alleged.

What the court is basically doing is drawing a distinction between normal acts of terrorism which are criminal matters subject to criminal laws and acts of war which are subject to the rules of war. As far as the application to 9/11 goes, I think that if the Government had captured the hijackers, they would not have been unlawful combatants under the definition the Supreme Court applied. They could only have been held under the normal rules for criminals. Unlawful combatants is a term that is restricted to Al Qaeda members who fought against the Coalitions in Afghanistan and Iraq.

You are seeing what you want to see. Al Queda is engaged in hostlities against the United States (remember that big hole in Manhattan?). Congress has identified al-Queda as being engaged in armed hostilities against the US and has authorized the President to respond. The Court isn't going to contradict both political branches on a political decision within their sphere of Constitutional competance.

Here is the opening passage of Hamdi, where the Court sets out the legal backdrop, the Congressional declaration. The bit you should see is in bold.

On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack prominent targets in the United States. Approximately 3,000 people were killed in those attacks. One week later, in response to these "acts of treacherous violence," Congress passed a resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" 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." Authorization for Use of Military Force ("the AUMF"), 115 Stat. 224. Soon thereafter, the President ordered United States Armed Forces to Afghanistan, with a mission to subdue al Qaeda and quell the Taliban regime that was known to support it.

You are simply reading the case wrong. There is nothing in Congress' declaration that limits combatants to geographical areas, and there is nothing that says that a person isn't aiding terrorist attacks if he isn't carrying a weapon at the particular moment he is captured.

It is true that this particular case (Hamdi) was factually connected to a conventional war. The facts come with this case. You don't have to be on a traditional battlefield, but it just happens that in this case, Hamdi was. However, the Court cited ex parte Quirin with approval. The person detained there was caught inside the US (as Padilla was). He was also caught in civilian clothes and I believe was unarmed (he was a German sabateur). That case stands for the very proposition you strain the facts of this case to refute, yet the Court in Hamdi did not overrule it.

I know you desparately, desparately, want a judge to say that the war on terror isn't a war, but it didn't say that. And in fact, even if it had said that in Hamdi, it would have been dicta and therefore not relevant.

[Troll]

Originally posted by SimeyTheLimey:
What the Court did here was state explicitly that it was only adopting the Government's definition taken from its brief for the purposes of this case,

The quote you have already supplied does not support your point. It says that the Government adopted a definition for the purposes of this case. It does not say that the COURT is adopting a definition only for the purposes of this case.

I cannot see anywhere in the judgement that the Court states "explicitly" that the Court is adopting the definition only for the purposes of this case. Perhaps you could point me (and the other people that read the case the way I do) to the part where they do this explictly.

In any event, on what basis do you think the court would apply a different test in the case of Padilla?

[SimeyTheLimey]

Originally posted by Troll:
The quote you have already supplied does not support your point. It says that the Government adopted a definition for the purposes of this case. It does not say that the COURT is adopting a definition only for the purposes of this case.

the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the "enemy combatant" that it is seeking to detain is an individual who, it alleges, was "_'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. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

It's clear enough. The Court only answered "the narrow question before us." You want it to answer a broad question not before them.

[Troll]

Originally posted by SimeyTheLimey:
You are seeing what you want to see. Al Queda is engaged in hostlities against the United States (remember that big hole in Manhattan?). Congress has identified al-Queda as being engaged in armed hostilities against the US and has authorized the President to respond. The Court isn't going to contradict both political branches on a political decision within their sphere of Constitutional competance.

The Court says that the fact that the WOT is open-ended means that if they allowed the definition of unlawful combatant to be extended to the WOT, then people would be held indefinitely. It specifically rejects that. Ergo, there can be no unlawful combatants out of the War on Terror, the WOT is not a real war. I'm not seeing what I want to see. If I was doing that, I would reject the whole notion of unlawful combatant.

Originally posted by SimeyTheLimey:
You don't have to be on a traditional battlefield, but it just happens that in this case, Hamdi was. However, the Court cited ex parte Quirin with approval. The person detained there was caught inside the US (as Padilla was). He was also caught in civilian clothes and I believe was unarmed (he was a German sabateur). That case stands for the very proposition you strain the facts of this case to refute, yet the Court in Hamdi did not overrule it.

I see Quirin and Hamdi as being combatible. I specifically said that it is possible that Padilla might be found to have been engaged in armed conflict. But you'd need to link him to an armed conflict that the Court recognises as giving rise to unlawful combatants. The Court specifically rejects the notion that the WOT can give rise to unlawful combatants. Which means that you'd need to link Padilla to one of the conventional wars. If he was on a reconnaissance mission for the Taliban then he might be an unlawful combatant just as Quirin was. WWII was a conventional armed conflict and Quirin was participating in it.

[Troll]

Originally posted by SimeyTheLimey:
It's clear enough. The Court only answered "the narrow question before us." You want it to answer a broad question not before them.

Again, you bring the same dud quote. All that says is that the GOVERNMENT never supplied a universal definition. There is no finding of law in that quote. The finding of law is in the bit I quoted - IIIB. Come on Simey, identifying dicta in a judgment is elementary stuff!

[SimeyTheLimey]

Originally posted by Troll:
In any event, on what basis do you think the court would apply a different test in the case of Padilla?

The Court isn't applying any test to Padilla. It could have applied the test that you erroneously pulled out of Hamdi, but declined. The Court remanded Padilla and the lower courts will figure it out. Doubtless they will look at Hamdi as the Court's most recent statement, but they will also doubtless look at ex parte Quirin, which Hamdi cites with approval, and which is factually closer. Actually, it is just about on all fours, which is rare. I don't see how any court could ignore that.

[SimeyTheLimey]

Originally posted by Troll:
The Court says that the fact that the WOT is open-ended means that if they allowed the definition of unlawful combatant to be extended to the WOT, then people would be held indefinitely. It specifically rejects that. Ergo, there can be no unlawful combatants out of the War on Terror, the WOT is not a real war. I'm not seeing what I want to see. If I was doing that, I would reject the whole notion of unlawful combatant.

This is simply torturing the language. O'Connor is uncomfortable with an indefinite duration that is a probable consequence of an unconventional war. She thinks that reasonably gives rise to Citizen detainees having a right to a habeas hearing. That much is clear. But she isn't calling off the war on terror. That is absurd. Her whole opinion is suffused with deference to the political branches. That she found against the US on one narrow point doesn't mean she agrees with you on all points, or that she would even entertain questions from well outside the record before her.

[Troll]

Originally posted by SimeyTheLimey:
The Court isn't applying any test to Padilla. It could have applied the test that you erroneously pulled out of Hamdi, but declined. The Court remanded Padilla and the lower courts will figure it out. Doubtless they will look at Hamdi as the Court's most recent statement, but they will also doubtless look at ex parte Quirin, which Hamdi cites with approval, and which is factually closer. Actually, it is just about on all fours, which is rare. I don't see how any court could ignore that.

Wait a minute. Are Quirin and Hamdi compatbile or aren't they? I read them as compatible. Where there is an armed conflict, there can be unlawful combatants. That's what they say no?

[SimeyTheLimey]

Originally posted by Troll:
Again, you bring the same dud quote. All that says is that the GOVERNMENT never supplied a universal definition. There is no finding of law in that quote. The finding of law is in the bit I quoted - IIIB. Come on Simey, identifying dicta in a judgment is elementary stuff!

You haven't read many O'Connor decisions, have you? I'm right about this. Sorry. That passage tells you the question the plurality answered. They didn't answer anything else.

[Troll]

Originally posted by SimeyTheLimey:
This is simply torturing the language. O'Connor is uncomfortable with an indefinite duration that is a probable consequence of an unconventional war. She thinks that reasonably gives rise to Citizen detainees having a right to a habeas hearing. That much is clear. But she isn't calling off the war on terror. That is absurd. Her whole opinion is suffused with deference to the political branches. That she found against the US on one narrow point doesn't mean she agrees with you on all points, or that she would even entertain questions from well outside the record before her.

I didn't say she's calling off the WOT. I just said that they don't think the rules of WAR apply to that "War." Basically, the rules of war, including the rules that allows the Government to hold unlawful combatants indefinitely, don't apply in an unconventional war. This isn't controversal. You don't have unlawful combatants out of the war on drugs either.

[SimeyTheLimey]

Originally posted by Troll:
Wait a minute. Are Quirin and Hamdi compatbile or aren't they? I read them as compatible. Where there is an armed conflict, there can be unlawful combatants. That's what they say no?

Yes, that is what they say. And al-Queda's campaign against the US is an armed conflict.

The defendant in Quirin was caught inside the US. I think it was New Jersey. He was an agent of a power engaged in an armed conflict against the US. Padilla was caught in Chicago. He was an agent of a power engaged in a conflict against the US. How would you distinguish those cases (without telling Congress it can't do what the Constitution says it can do)?

[SimeyTheLimey]

Originally posted by Troll:
I didn't say she's calling off the WOT. I just said that they don't think the rules of WAR apply to that "War." Basically, the rules of war, including the rules that allows the Government to hold unlawful combatants indefinitely, don't apply in an unconventional war. This isn't controversal. You don't have unlawful combatants out of the war on drugs either.

You have this entirely backwards. And I think that your "war on drugs" analogy is the reason why. Because you don't think that the WOT is a war, you will read everything with that assumption.

Well, it is wrong here. Whether individual justices think the WOT is a war or not isn't the point. Congress does, and that is what the Court follows. In the case of Hamdi, the Court is attempting to reconcile different cases where American Citizens have been detained in previous wars. Those are the precedents they use -- war precedents. They aren't using law enforcement precedents. If they agreed with you, they would use the latter, not the former. The War on Terror is legally a war. And the Court begins and ends with that assumption. If you try to read that assumption out, then of course you will misread the case.

[Troll]

Originally posted by SimeyTheLimey:
The War on Terror is legally a war. And the Court begins and ends with that assumption. If you try to read that assumption out, then of course you will misread the case.

When did Congress say that the War on Terror is a real war? In 1971 Nixon declared War on Drugs. In the 80's Reagan repeated the declaration. In 1989 the US military was authorised to use military force against drug traffikers on the US border. That seems to me similar to the AUMF. How come you don't say that in 1989 Congress made the War on Drugs a real war?

Originally posted by SimeyTheLimey:
You have this entirely backwards. And I think that your "war on drugs" analogy is the reason why. Because you don't think that the WOT is a war, you will read everything with that assumption.

Well, it is wrong here. Whether individual justices think the WOT is a war or not isn't the point. Congress does, and that is what the Court follows. In the case of Hamdi, the Court is attempting to reconcile different cases where American Citizens have been detained in previous wars. Those are the precedents they use -- war precedents. They aren't using law enforcement precedents. If they agreed with you, they would use the latter, not the former.

The Court in Hamdi uses war precedents because it is dealing with a case of war - the war in Afghanistan. The rule the Hamdi case establishes is a rule of war - namely that a US citizen held in the US as an enemy combatant must be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

I'm not saying that the Court rejects the War on Terror completely. I'm saying that they don't see the rules of war as applying to unconventional wars like the WOT. They say that the President was empowered to use military force against terrorism and that he exercised his authority by invading Afghanistan. THAT is the use of force that they recognise. That is the armed conflict they recognise and the one which the rules of war apply to. Nowhere do they say that the rules of war apply to the War on Terror. In fact they seem to say the opposite to the extent that they express any opinion at all. They say for example that the people arrested during the war in Afghanistan would need to be released at the end of the war in Afghanistan and could not be held for the duration of the WOT. If, as you say, the Court recognises the Afghan war as a war within the WOT, then the Court should have said that they can be held until the end of the WOT. They specifically rejected that argument in Hamdi and Rasul.

The Court also sets out what would need to be established for a person to be held as an unlawful combatant. It's not sufficient that you are merely a member of Al Qaeda. You need, in addition, to be engaged in armed conflict with the US. There doesn't seem any room in your analysis for the possibility of an Al Qaeda member not being an unlawful combatant: a possibility the test in Hamdi specifically recognises. In the case of Afghanistan, the Hamdi test works nicely because the Al Qaeda member that merely stayed in his cave and didn't fight is not an unlawful combatant. He may be a terrorist in that he may have been involved in plotting 9/11 but he isn't an unlawful combatant. The same rules of war apply to him as apply to anyone else. It doesn't work in the context of the WOT because if you say that the armed conflict there is one between the US Army and terrorists, then there is no need for the second part of the test. Because if the armed conflict is with terrorists then all members of Al Qaeda are necessarily engaged in armed conflict with the USA.

I'm not sure I understand why you want the rules of war to apply outside of zones of conventional war anyway. Under the rules of war, the people you capture are either prisoners of war who get better treatment than common criminals or apparently they can be unlawful combatants under US law. Either way, they have to be released when the war is over. Under criminal law, mere membership of a terrorist organisation is a crime that you can go to jail for, the conditions you're held in are worse than under the Geneva Convention and you can be executed or jailed for life! The Government liked the concept of the unlawful combatant before Hamdi because it left them with free reign to interrogate and indefinitely detain people without charge which they though made prosecuting terrorism easier for them. After Hamdi all that has changed and it seems to me that now the advantage gained by applying the rules of war to a detainee is outweighed by the disadvantages of applying the rules of war; not the least of which is that you don't have to give them the good treatment pow's get or release them when the war is over.

At the end of the day, the lower courts are going to be doing precisely what we are. I don't think everything you're saying is wrong. There's room for interpreatation of course but the Court has shown the direction they want this to go in and so far it's not looking good for the Bush Administration.

[SimeyTheLimey]

I hate doing the interweaving thing, but it is the easiest way here. There are some specious arguments here that are pretty easy to knock down.

Originally posted by Troll:
When did Congress say that the War on Terror is a real war? In 1971 Nixon declared War on Drugs. In the 80's Reagan repeated the declaration. In 1989 the US military was authorised to use military force against drug traffikers on the US border. That seems to me similar to the AUMF. How come you don't say that in 1989 Congress made the War on Drugs a real war?

When Congress used words like attacked, Congress made pretty clear that this is a "real war" and not just an analogy to war like the war on drugs, the war on poverty, and so on. That the war on terror is a real war is assumed here. Your assumption is way out of left field. Given that you are advancing something so bizarre, the burden is on you to show that Congress agrees with you. Please find me law that says Congress said "sorry, we didn't really mean it." Not a third party argument, but law. I'll take a statute, or persuasive legislative history.

The Court in Hamdi uses war precedents because it is dealing with a case of war - the war in Afghanistan. The rule the Hamdi case establishes is a rule of war - namely that a US citizen held in the US as an enemy combatant must be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

I'm not saying that the Court rejects the War on Terror completely. I'm saying that they don't see the rules of war as applying to unconventional wars like the WOT. They say that the President was empowered to use military force against terrorism and that he exercised his authority by invading Afghanistan. THAT is the use of force that they recognise. That is the armed conflict they recognise and the one which the rules of war apply to. Nowhere do they say that the rules of war apply to the War on Terror. In fact they seem to say the opposite to the extent that they express any opinion at all. They say for example that the people arrested during the war in Afghanistan would need to be released at the end of the war in Afghanistan and could not be held for the duration of the WOT. If, as you say, the Court recognises the Afghan war as a war within the WOT, then the Court should have said that they can be held until the end of the WOT. They specifically rejected that argument in Hamdi and Rasul.

No, that's just wrong. The war in Afghanistan is simply an aspect of the war on terror. It doesn't have independent significance. The reason US forces went to Afghanistan is because the organization that waged war inside the US (in New York, Virginia, and Pennsylvania, as well as points in between) planned their attacks in Afghanstan. If you plan a war in place A, and carry out the attack in place B, it's kind of hard to say that place A is a war zone, and place B is a peaceful oasis. The only reason place A became a war zone is because the US responded to an attack in place B. But the war is in both locations and an active foot soldier of an organization waging that war doesn't go from being a combatant to a non-combatant the closer to his ultimate target he travels. That is an utterly perverse and ridiculous idea.

However, not all of the combatants belong to the same organization. Some are Taliban, and some are al-Queda. Afghanistan is still in a state of conflict, but it is concievable that the conflict will die down there. When that happens, active combat in that location will have ended. At that point, those no longer engaged in active combat against the US can (and under the laws of war) ought to be released. But not those belonging to forces still arrayed against the US. Meaning, not al-Queda. This is analogous to releasing POWs in Germany in May 1945 while the Second World War was still ongoing in Japan. World War II hadn't ended, but a theater had closed.

The Court also sets out what would need to be established for a person to be held as an unlawful combatant. It's not sufficient that you are merely a member of Al Qaeda. You need, in addition, to be engaged in armed conflict with the US. There doesn't seem any room in your analysis for the possibility of an Al Qaeda member not being an unlawful combatant:

No, they don't. I have already explained that this isn't a universal test. However, to the extent it describes something that could be applied, it clearly applies to anyone actively supporing an organization actively engaged in an armed conflict against the US or an ally. That describes al-Queda. Concievably, if al-Queda were to sue for peace, then this situation could end. But right now, they are the enemy.

I'm not sure I understand why you want the rules of war to apply outside of zones of conventional war anyway. Under the rules of war, the people you capture are either prisoners of war who get better treatment than common criminals or apparently they can be unlawful combatants under US law. Either way, they have to be released when the war is over. Under criminal law, mere membership of a terrorist organisation is a crime that you can go to jail for,

The balance is better for us if they are combatants. Combatants can be dealt with as combatants are dealt with -- which is more effective than the relatively hamstrung law enforcement approach. They can also be detained for the duration. Criminal prosecutions (or the empty threat of them) has failed. However, an enemy combatant can be tried for war crimes and crimes against humanity under the laws of war. That's quite sufficient.

[Troll]

I'm not going to rehash the arguments I raised above. Your counters are very thin on actual law. You repeat the mantra that the War on Terror is a real war without giving me anything to back that up. Congress no more authorised the application of the rules of war to the WOT than they did authorise the application of the rules of war to the War on Drugs. The funny thing is that in the War on Drugs, the opposite was done - the rules of war were excluded so as to prevent those detained from being released. Far smarter if you ask me:

From Bush Snr's memo on the military operation to oust the drug traffiking regime in Panama:
"In the course of carrying out the military operation in Panama which I have directed, I hereby direct and authorize the units and members of the Armed Forces of the United States to apprehend General Manuel Noriega and any other persons in Panama currently under indictment in the United States for drug-related offenses.

I further direct that any persons apprehended pursuant to this directive are to be turned over to civil law enforcement officials of the United States as soon as practicable. I also authorize and direct members of the Armed Forces of the United States to detain and arrest any persons apprehended pursuant to this directive if, in their judgment, such action is necessary."

Part of the problem in our debate is the use of the words "real war". I interpret you to be saying that the war on terror is a war just like any other but maybe that's not what you mean by "real". Perhaps it's better to talk about conventional and unconventional wars. I disagree with you that the WOT is the same as a conventional war and it seems clear to me that the Supreme Court disagrees with you too. There is a clear distinction drawn by the Supreme Court between conventional wars like Afghanistan and unconventional wars like the War on Terror. I don't find any support for your argument that the WOT is governed by the rules of war.

In the Hamdi case, the Government presented the WOT as equivalent to WWII. The Court didn't accept that parallel. Whenever the Supreme Court in Hamdi refers to the WOT, it puts it in inverted commas or specifically calls it an "unconventional war." That seems to me to be a clear rejection of your argument that the WOT has the same status as other wars. On the other hand, the Supreme Court sees the War in Afghanistan as a conventional war governed by the rules of war. I have already shown you with reference to the cases and to practice in other unconventional wars that the rules of war don't apply to conventional wars. Below is another quote where clearly the two are distinguished. Yours seems to me to be an argument of what you think the law should be rather than what the law is.

The question then is, what rules apply to "unconventional wars". The Court in Hamdi ducks the question by defining the conflict as conventional. It says that Hamdi was detained during the War in Afghanistan and can be released when that war is over. Why didn't they define the conflict as the WOT or authorise his detention until the end of the WOT? Why they didn't just say unconventional wars are the same as conventional wars and the rules of war apply to them as well instead of specifically distinguishing the two types of conflict and applying the rules of war only to the conventional war? Why the kid gloves applied to the rules of an unconventional war if it's so clear that the WOT is a "real war"?

I've given you my answer already. I think the Court applies the rules of war only to the War in Afghanistan, it defines unlawful combatant as someone who actually engages in combat with US military forces because if they don't do that, the rules of war can be arbitrarily applied anywhere. If the rules of war can be applied to the WOT, if they apply to any action taken against terrorists, then missiles could be fired by the Army into Lower Manhattan, people could be arrested at O'Hare and held as prisoners of armed conflict! Perhaps we put a pin in this discussion and see what the lower courts say.

By way of backing up the point I'm making:

From the plurality opinion in the Hamdi Case:
"We recognize that the national security underpinnings of the "war on terror," [Note the use of inverted commas] although crucially important, are broad and malleable. As the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life.

...

Further, we understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. ... The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.

[SimeyTheLimey]

Originally posted by Troll:
I'm not going to rehash the arguments I raised above. Your counters are very thin on actual law. You repeat the mantra that the War on Terror is a real war without giving me anything to back that up. Congress no more authorised the application of the rules of war to the WOT than they did authorise the application of the rules of war to the War on Drugs. The funny thing is that in the War on Drugs, the opposite was done - the rules of war were excluded so as to prevent those detained from being released. Far smarter if you ask me:
Part of the problem in our debate is the use of the words "real war". I interpret you to be saying that the war on terror is a war just like any other but maybe that's not what you mean by "real". Perhaps it's better to talk about conventional and unconventional wars. I disagree with you that the WOT is the same as a conventional war and it seems clear to me that the Supreme Court disagrees with you too. There is a clear distinction drawn by the Supreme Court between conventional wars like Afghanistan and unconventional wars like the War on Terror. I don't find any support for your argument that the WOT is governed by the rules of war.

In the Hamdi case, the Government presented the WOT as equivalent to WWII. The Court didn't accept that parallel. Whenever the Supreme Court in Hamdi refers to the WOT, it puts it in inverted commas or specifically calls it an "unconventional war." That seems to me to be a clear rejection of your argument that the WOT has the same status as other wars. On the other hand, the Supreme Court sees the War in Afghanistan as a conventional war governed by the rules of war. I have already shown you with reference to the cases and to practice in other unconventional wars that the rules of war don't apply to conventional wars. Below is another quote where clearly the two are distinguished. Yours seems to me to be an argument of what you think the law should be rather than what the law is.

The question then is, what rules apply to "unconventional wars". The Court in Hamdi ducks the question by defining the conflict as conventional. It says that Hamdi was detained during the War in Afghanistan and can be released when that war is over. Why didn't they define the conflict as the WOT or authorise his detention until the end of the WOT? Why they didn't just say unconventional wars are the same as conventional wars and the rules of war apply to them as well instead of specifically distinguishing the two types of conflict and applying the rules of war only to the conventional war? Why the kid gloves applied to the rules of an unconventional war if it's so clear that the WOT is a "real war"?

I've given you my answer already. I think the Court applies the rules of war only to the War in Afghanistan, it defines unlawful combatant as someone who actually engages in combat with US military forces because if they don't do that, the rules of war can be arbitrarily applied anywhere. If the rules of war can be applied to the WOT, if they apply to any action taken against terrorists, then missiles could be fired by the Army into Lower Manhattan, people could be arrested at O'Hare and held as prisoners of armed conflict! Perhaps we put a pin in this discussion and see what the lower courts say.

By way of backing up the point I'm making:

You quote the Supreme Court discussing the national security underpinnings of the war on terror. That is the key distinction. The war on crime, or the war on drugs aren't real wars, they are analogies to war. When politicians say "war on drugs" what they are saying is "this is something I think is very important, and deserves a national effort as is used in a war." But it isn't a real war, because it lacks the national security underpinnings. A war on drugs isn't predicated Constitutionally on the war powers. It is predicated on the police powers.

In contrast, the War on Terror is predicated on the war powers. That's why it began (legally) with a presidential statement in response to an armed attack on the US (this follows Article II and the responsibilities of the Commander in Chief), and was continued by Congress when they assembled and authorized the use of military force. This follows Article I. That is quite well understood here, because here for the most part people aren't trying their hardest not to see the obvious. Congress understood it was taking the Country to war, not just in Afghanistan, but globally. There was no sense that this was all just an analogy to war. It is true that the war is largely unconventional. There is no Berlin to capture, no conventional army to defeat. But there is still an enemy and an ideology to defeat, and there is a national security threat. That is what makes it a war, combined with the tools we use to win it.

The Court in Hamdi recognizes that the war powers inherently include the power to detain combatants -- including US citizens. In the case of Hamdi himself, the detention took place in Afghanistan. But the Court did not overturn Ex Parte Quirin, where the detention took place in New Jersey. There is no requirement that conventional forces be fighting in a given territory for the war powers to have effect. That the Court in Hamdi said Citizen-detainees have the right to a habeas hearing doesn't make this not a real war any more than the habeas hearing in Ex Parte Quirin made World War II not a real war.

The rest of your argument is simply assertion. I asked you to show me that Congress intended for the President to have no war powers, and merely intended the war on terror to be a figurative term for a law enforcement operation. You have not come up with that. All you point to are judicial statements. But the Court doesn't decide whether or not a state of war exists. It isn't the province of Article III to do so. The statements of Article I and Article II govern. That's why the discussion of the existing state of war was discussed right at the beginning as a fact that the Court took judicial notice of.

Notice, for example, that there is no discussion of Hamdi's other constitutional rights. No discussion of the 4th Amendment, 5th Amendment, or 6th Amendment, and no discussion of Miranda. No discussion of these whatsoever. There is no talk of indictments, probable cause, or other rules of evidence. If he were a criminal detainee, we would be talking about these, and we wouldn't be entertaining the idea of detaining him (or Padilla, the same applies to him) for the duration of hostilities. You only get to detain for the duration of hosilities under the war powers. But first you have to have a war. In the case of Padilla, if the Court had held that there was no state of war, then it would have ordered his release. But it didn't. It ordered remand to a court that will still begin with the assumption that the war powers could apply. And that is because Congress has said that they do apply to terrorists engaged in armed attacks on the US. That is quite different from the situation that would have applied before Congress made its resolution. Before then, there would be no question that criminal law, not the law of war, applies. What changed was Congress took us to war, not in Afghanistan, but globally. Globally inludes Chicago.

As for scare quotes used by the Court around the term war on terror. The term isn't a term of art. It isn't used in any official authorizations. It's something that a collection of legal principles and policies have been dubbed by the Press, and by politicians. That the Court decided to place a non-legal term in quotation marks isn't a legal argument. Neither would it have been a legal endorsement if they had used the term without quotation marks. How they punctuate is irrelevant.

[SimeyTheLimey]

Troll, one thing that I should add. You and I are obviously both formalists. But O'Connor is not. You can't read one of her opinions as if it were the opinion of a formalist. When O'Connor puts a restriction on the government's exercise of its inherent war powers, and makes that restriction only apply to a narrow group in a narrow circumstance, she doesn't think of it as undermining or destroying the government's entire formalistic edifice. She just thinks of it as a minor tweak which she justifies as not undermining the government's exercise of its war powers as a whole. Read the opinion again with this in mind.

[Troll]

Originally posted by SimeyTheLimey:
But it isn't a real war, because it lacks the national security underpinnings.

The whole basis of the Nixon declaration of war on drugs was that they were a threat to national security. Reagan even identified USERS of drugs as a threat to national security.

"Drug users are as dangerous to our national security as any terrorist."
U.S. President Ronald Wilson Reagan, 1986.

In response to the threat, the US Army invaded a sovereign country and toppled its government. It did so acting under war powers and with the authorisation of Congress didn't it? You're going to have to come up with a better reason for distinguishing the WOT and the War on Drugs than that!

I think the Court's distinction between conventional and unconventional wars and the classification of the War on Terror as an unconventional war reflects the distinction most people make. Congress too I think. Most of us have a good idea what kinds of situations criminal law can't handle. Criminal law can handle an unarmed terrorist arriving at an airport or Timoth McVeighs bombing buildings. Criminal law can't handle conventional war situations such as Americans soldiers fighting with the Taliban at Tora Bora (Hamdi) or German soldiers infiltrating the US during WWII (Quirin).

You say that the Court recognises at the beginning of its judgements (in Rasoul and Hamdi I assume) an existing state of war. They say that Congress AUTHORISED the president to use force and he EXERCISED his authority by invading Afghanistan. The only war situation they recognise is the war in Afghanistan.

Originally posted by SimeyTheLimey:
Notice, for example, that there is no discussion of Hamdi's other constitutional rights. No discussion of the 4th Amendment, 5th Amendment, or 6th Amendment, and no discussion of Miranda. No discussion of these whatsoever. There is no talk of indictments, probable cause, or other rules of evidence. If he were a criminal detainee, we would be talking about these, and we wouldn't be entertaining the idea of detaining him (or Padilla, the same applies to him) for the duration of hostilities.

Your point here illustrates the difference between your (and that of the Government prior to Hamdi) understanding of what's going on in the world and the one I share with the Supreme Court. You evidently see Hamdi as having been detained as part of the War on Terrorism and because that war is a "real war" (can we apply for a trademark on this term), the rules of war were applied. That is not what the Court said though. It could have said that because the Government raised the point but it didn't. The Court applied the rules of war because Hamdi was detained during a conventional war in which he was fighting for the national forces of Afghanistan against the US. There's nothing controversial about applying the rules of war in that circumstance. The Court specifically acknowledged that it was not dealing with a situation of unconventional war like the War on Terror.

Padilla's case has been referred because his lawyer brought the case in the wrong state and because apparently there are factual issues that aren't settled. It seems highly likely, however, that Padilla never fought for the Taliban and never engaged in armed combat against the United States. Bush could absolutley have authorised the Army to attack Padilla as he stepped off the plane. That would, arguably, have created an armed conflict between the US and a person under the AUMF and would have meant that the rules of war apply had he been captured. But that isn't what happened.

In Padilla's case it seems that if the Government wants the rules of war to apply, they're most likely going to have to argue the case you're making - that the rules of war apply not only to conventional war (as has been affirmed by the Court in Quirin and Hamdi) but to unconventional wars like the War on Terror.

Stay tuned!

[demograph68]

Wow, you two are on a roll! *brain fart*

[eklipse]

Originally posted by demograph68:
Wow, you two are on a roll! *brain fart*

You ain't seen nothing yet - they're still on page one.