Look back at Hamdi. Pretty clearly, the President has exceeded his authority as commander-in-chief.
There is no getting around the fact that the Court had some procedural objections with the government's handling of Yaser Hamdi, though I think it's a stretch to assert that President Bush exceeded his authority. To quote the O'Connor opinion:
The threshold question before us is whether the Executive has the authority to detain citizens who qualify as “enemy combatants.”
To which the Court answered:
We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.
and
There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen.
That clearly establishes that the the President acted within his authority in ordering Hamdi's detention. As posted above, the Court took a dim view, nevertheless, on the government's assertion that "because it is 'undisputed' that Hamdi’s seizure took place in a combat zone, the habeas determination can be made purely as a matter of law, with no further hearing or factfinding necessary."
What is equally as clear is that the government never chose to argue that - unlike non-citizen enemy combatants - citizens have a constitutional right to file
habeas petitions until such time as Congress suspends this right under Article I; Section 9 of the US Constitution:
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
In conceding the privilege of
habeas writs, the government also concedes the final judgment of the judiciary in this matter.
Padilla was not captured on the battlefield or even in a foreign country, so your version of 'well-established executive power' is not actually well established.
No. When I used the phrase "well-established" I was including US citizens determined to be enemy combatants regardless of their location at the time of detention. In
Hamdi, the Court wrote:
There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen.
What were the circumstances behind
Herbet Hans Haupt's detention?
Haupt was a US citizen who traveled to Germany before the start of the war. The government alleged that during this time Haupt received secret training on the use of explosives and secret communication methods and were sent back to the United States on June 17, 1942 to carry out attacks. He was captured in New York City in civilian clothes before any attacks actually took place. On the order of President Roosevelt, Haupt was declared an enemy combatant and subsequently faced a military tribunal.
Because of his failure to wear "a fixed distinctive emblem recognizable at a distance", to "carry arms openly" and to "conduct their operations in accordance with the laws and customs of war" , Haupt was denied designation as a POW relevant to the
Annex of the Hague Convention IV of 1907 - which governed POW detention at that time. Haupt was sentenced to death and executed in the electric chair on August 8, 1942 - a mere five months after his adventure began.
Other cases of US citizens who faced detention as enemy combatants and subsequent military tribunals:
T. E. Hogg: Captured in Panama while dressed as a civilian. The government alleged that Hogg boarded a US-flagged merchant steamer for the purpose of overtaking the vessel and converting it into a Confederate warship. Hogg was sentenced to death - the sentence was subsequently commuted to life in prison.
John Y. Beall - Captured in New York while dressed as a civilian. The government alleged that Beall and some associates overtook a Canadian steamer, disembarked on US soil on the shores of Lake Erie and attempted to derail a train in New York state. Beall was hanged.
Robert C. Kennedy - Captured in New York City. The government alleged that Kennedy tried to set fires in various parts of the city as an "undertaking to carry on irregular and unlawful warfare." Kennedy was hanged.
William Murphy - Captured at an unknown location. The government alleged that Murphy was "a rebel emissary in the employ of and colleagued with rebel enemies" and that Murphy crossed Union lines and burned a US steamship.
Some more US citizens who were designated by Pres. Lincoln to face military tribunals:
Charles H. Clifford - May 18, 1863
William S. Waller - Aug. 4, 1863
Alfred Yates and George W. Casey - Nov. 28, 1863
James R. Holton and James Taylor - May 13, 1864
James McGregory - June 4, 1864
E.S. Dodd - Jan. 5, 1864
This is not a comprehensive list, just a few cases cited in
Quirin v. Cox.
To quote the Court in Quirin:
Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, [317 U.S. 1, 38] guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war. Cf. Gates v. Goodloe, 101 U.S. 612, 615 , 617 S., 618. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused.
Nor are petitioners any the less belligerents if, as they argue, they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations. The argument leaves out of account the nature of the offense which the Government charges and which the Act of Congress, by incorporating the law of war, punishes. It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose. The offense was complete when with that purpose they entered-or, having so entered, they remained upon-our territory in time of war without uniform or other appropriate means of identification. For that reason, even when committed by a citizen, the offense is distinct from the crime of treason defined in Article III, 3 of the Constitution, since the absence of uniform essential to one is irrelevant to the other.
The same opinion goes into great detail on the well-established nature of these principles - tracing them back to before the founding of this country.
Why would the President (not really a detail kind of guy) bother to make a special case for Padilla?
Why isn't exactly a constitutional issue. I can only speculate as to the competing forces at work here. The military prosecutor may have had doubts about his ability to prosecute the war crimes charges against Padilla. The Justice Department may have wanted Padilla as their own. The Justice Department may have wanted to hold of on court appeals on the issue of military tribunals. The President may have wanted the case against Padilla in the public record. Until Congress says otherwise, the decision is his alone.
Why would he devote that much attention to what should have been a technical detail?
Some detail! Whether or not to try Padilla as an enemy combatant is probably made at the very highest level of government. At any rate, it the president who holds that sole power at this point. No-one else could execute such an order under under the current rules.
Yup. Never heard of Padilla before this development. Not once.
But all kidding aside; I do not dispute this point...
) but sports, exercise, physical health and that kind of stuff was an important part of maintaining or achieving a "gesunder Volkskörper" - roughly, a healthy population body, which also included the well-known purges of non-Aryan groups...
