US can detain ‘enemy combatant' indefinitely

[Art Vandelay]

From one resolution:

From the other resolution:

You are definitely right, I was confused.

So to which one were you referring, and what is the false information on which it is based?

I fail to see how any court interpretation of 'appropriate' can legitimately supercede the constitutional rights of US citizens.

I think that this lays bares the big elephant in the room that political scientists have ignored for centuries: how does a country which asserts that criminal defendents hold extensive rights reconcile this with the exigencies of war? The Constitution only rarely makes exceptions for military operations, which leaves us in the situation of recognizing that normal protections simply cannot be practically applied, yet lacking any constitional guide as to what to substitute in their place.

 

[fishbob]

But the point is, with the possible exception of those Al Quaeda members who are also US citizens, they don't have a right to a trial any more than they have a right to such a committee. It's simply not applicable to their situation.

We ARE talking about a US citizen, and US constitutional right to trial by jury.

Art: I was, much like Skeptic is, confused. Which I previously pointed out. Oops. Sorry.

The invasion of Iraq resolution was approved in part due to faked up information. The attack Afghanistan resolution was not. Check out the 'whereas's' that precede the actual resolutions for details.

However, this Padilla ruling still stinks.

 

[Cylinder]

I don't understand the objection. Instead of summary exectution, these guys are getting three hots and a cot. US citizens have always been subject to detention as enemy combatants such as in the US Civil war and WWII.

 

[Skeptic]

But we are talking about a US citizen, arrested in the US, who might or might not be a member of some organization, maybe Al Quada. In other words, clearly an exception even acccording to your standards.

Sorry, didn't notice that--thought you were speaking only about foreigners.

That is, of course, if you are found to be a committed enemy by ...... how was that again?

That is really the point. Presumably, and I might be wrong, "committed enemy" means "someone caught fighting for the other side in a war zone". In such circumstances, I believe US citizens could ALWAYS be detained indefinitely, historically speaking.

Of course, one needs to recall that getting a trial involves the risk of being convicted of treason and shot. I am not implying they are, though: it seems the American citizens here WANT a trial, which I think they should get. Perhaps they're innocent.

 

[Mycroft]

You know for once I'm totally with Fishbob on this one. It's wrong that US Citizens caught on US soil don't get constitutional protections.

If we were talking about foreign citizens caught on US soil or US citizens caught on foreign soil, an argument could be made otherwise, but we're not talking about those things.

 

[Ziggurat]

You know for once I'm totally with Fishbob on this one. It's wrong that US Citizens caught on US soil don't get constitutional protections.

I understand people's nervousness, but it's not that simple. And it's not even a new problem, it goes back to at least WWII, though it may get more pressing in the future. To quote from the Supreme Court's Hamdi decision (which this court seems to be following):

"A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States,"; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict."

Civil law does NOT have a remedy for such a situation. If they haven't been caught yet, the best you could hope for is a conspiracy charge, which is damned difficult to prosecute without exceptionally solid evidence, and even harder to do if you need to protect sources/capabilities from public exposure. For ordinary criminals, we accept that crimes cannot be prevented, and rely on the threat of subsequent punishment to reduce the number of such crimes to a manageable level. And that works. But that's not a model for success for what really amounts to war. The threat of subsequent punishment has already proven itself wholely inadequate, and the threat posed by successful attacks is fundamentally different than the costs of ordinary crime. The standard criminal model simply doesn't work.

If you're not satisfied with the current system, keep in mind also that it is also possible to put in place procedures and judicial oversight for such cases without resorting to ordinary civilian law.

Edit: to clarify the problem of civilian law as a model, what we normally do is capture criminals after they've committed a crime, and hope that their punishment disuades future crimes. There is nothing built into the model to *prevent* crimes before they happen. In what amounts to a war, disuasion of this sort does not work at all, and the consequences of letting attacks occur is too high. We need a model that focusses on prevention of EACH potential attack, and civilian law simply cannot fill that role, because it was designed precisely to NOT opperate that way. I wish this were not so, I wish there were no need to act this way, but there is.

 

[Mycroft]

Originally posted by Ziggurat
Civil law does NOT have a remedy for such a situation...

Doesn't it? Doesn't ordinary civil criminal law make treason a crime?

Originally posted by Ziggurat
If they haven't been caught yet, the best you could hope for is a conspiracy charge, which is damned difficult to prosecute without exceptionally solid evidence, and even harder to do if you need to protect sources/capabilities from public exposure.

Both are problems that can be fixed by modifying existing criminal law. We don't need to remove a citizens constitutional protections to deal with this.

Originally posted by Ziggurat
...The threat of subsequent punishment has already proven itself wholely inadequate, and the threat posed by successful attacks is fundamentally different than the costs of ordinary crime. The standard criminal model simply doesn't work.

I can see how the threat of a successful attack is different from ordinary crime, but only in a matter of scale for the damages. It's like saying murder is fundamentally different from shoplifting. It's true, but they're both still criminal matters. As murder is to shoplifting, so is terrorism/treason is to murder. There is no reason all three can't be criminal matters.

 

[Ziggurat]

Doesn't it? Doesn't ordinary civil criminal law make treason a crime?

Treason is not a remedy. It is something you apply after-the-fact. It's how you punish people who have already commited the crime. But it's not a way to prevent such attacks. It cannot hope to be.

Both are problems that can be fixed by modifying existing criminal law. We don't need to remove a citizens constitutional protections to deal with this.

I don't think they are solvable this way. Hell, just look at the mess Germany was having with its civilian prosecutions of a terrorist. Or look at the farce that Moussaoui's trial became. I don't see this as a tractable problem.

I can see how the threat of a successful attack is different from ordinary crime, but only in a matter of scale for the damages.

And scale matters. The fact that civil law can be scaled from shoplifting to murder doesn't mean that it can be scaled arbitrarily. I really don't think it can be. Among other things, in civilian law, there's simply NO remedy, no POSSIBLE remedy, to apply to someone on the basis that they want to commit a crime. Civilian law simply ignores that, and I actually think it SHOULD ignore that. But I don't think we can afford to do that for all possible crimes. In particular, I do not think we can just ignore people who want to destroy our country, I think we need to deal with them somehow. But civilian law CANNOT be scaled up to address that, because it purposefully ignores that. It's like multiplying zero by a number, it just won't scale.

 

[Bjorn]

Treason is not a remedy. It is something you apply after-the-fact. It's how you punish people who have already commited the crime. But it's not a way to prevent such attacks. It cannot hope to be.

I'm not a lawyer, but I think you are wrong.

In United States v. Shabani 513 U.S. 10 (1994) the United States Supreme Court ruled: "...U.S. Congress intended to adopt the common law definition of conspiracy, which does not make the doing of any act other than the act of conspiring a condition of liability..." This ruling indicates that conspiracy, without any further action, can be criminal.

http://en.wikipedia.org/wiki/Conspiracy

However, the main point here is that with yesterday's ruling, you or I or anyone can be held indefinately with no trial. All it takes is to say that it is necessary to hold you to "protect American citizens from terrorist acts".

I like to think that I live in a society where if we have no evidence, we set you free. If we have evidence, we convict you accordingly.

 

[Freakshow]

You know for once I'm totally with Fishbob on this one. It's wrong that US Citizens caught on US soil don't get constitutional protections.

If we were talking about foreign citizens caught on US soil or US citizens caught on foreign soil, an argument could be made otherwise, but we're not talking about those things.

I'll add myself to that list, too. I am with Fishbob, Fool, and Bjorn on this.

But don't get used to it, guys.

 

[Art Vandelay]

The invasion of Iraq resolution was approved in part due to faked up information. The attack Afghanistan resolution was not. Check out the 'whereas's' that precede the actual resolutions for details.

Which "whereas" in particular?

Mycroft

Both are problems that can be fixed by modifying existing criminal law. We don't need to remove a citizens constitutional protections to deal with this.

The protections which have been held to be constitutionally protected must be removed. Whether that actually constitutes removing constitutional protections is debatable.

I can see how the threat of a successful attack is different from ordinary crime, but only in a matter of scale for the damages. It's like saying murder is fundamentally different from shoplifting. It's true, but they're both still criminal matters. As murder is to shoplifting, so is terrorism/treason is to murder. There is no reason all three can't be criminal matters.

Do you think everything should be handled by civilian courts? Suppose that during the Civil War, a Union army is marching South, and they see a farmhouse that would make a perfect cover for Confederate forces. Do they

A) Find a judge, explain to him why they believe that they have "probable cause" for believing Confederates are in the building, get a search warrant, then serve that warrant or;

B) Approach the farm house, wait to be fired upon, then attempt to arrest the shooters or;

C) Set up some artillery, and blow the farmhouse to pieces

?

Civilian procedures are simply incompatible with the modern practice of war.

 

[Ziggurat]

However, the main point here is that with yesterday's ruling, you or I or anyone can be held indefinately with no trial. All it takes is to say that it is necessary to hold you to "protect American citizens from terrorist acts".

That's really a misrepresentation of the case for such detentions. It's kind of like saying you can be executed, and all it takes is the opinion of twelve know-nothing average (or below-average) schmucks who think you should die.

I haven't seen anything to suggest that there's no requirement for judicial oversight of some sort in these cases. Which means that really, it takes more than just to say that it's necessary, just like it really takes more than 12 people not liking you to get a death sentence. You might not like the process, you might think it's insufficient, but such detentions do NOT represent quite the arbitrary exercise of power you are implying.

I like to think that I live in a society where if we have no evidence, we set you free. If we have evidence, we convict you accordingly.

What are the standards for evidence? What is admissible and what isn't? What if evidence against a terrorist was obtained by a CIA agent illegally entering a terrorist safehouse in, say, Germany, and stealing a laptop with names and plots on it? That's not admissible in a civilian court. Do we ignore it, or do we act on it anyways? How can we act on it if it's not admissible in a civilian court, and so conviction isn't possible?

Or what if we managed to get an agent deep into Al Quaeda, and that agent informed us that one guy was planning an imminent attack. Do we capture and hold him without trial and let our agent keep working, do blow the cover of our agent so he can testify against the guy and convict, or do we let him go so we can protect the guy's constitutional rights without blowing the cover of our agent?

The problem is NOT simply one of either having evidence and convicting or not having evidence and releasing. There's much more to it than that. There IS no perfect solution. But I don't think relying only on civilian law is even the best imperfect solution.

 

[Mycroft]

Originally posted by Art Vandelay
The protections which have been held to be constitutionally protected must be removed. Whether that actually constitutes removing constitutional protections is debatable.

When I said, "modifying existing criminal law" I meant things like increasing the penalty on Conspiracy, making procedural changes so that evidence could be brought before a judge and jury without compromising secrets or procedures, or maybe modifying the penalty phase so that someone convicted could be turned over to military authorities for interrogation.

Originally posted by Art Vandelay
Do you think everything should be handled by civilian courts? Suppose that during the Civil War...

A) The Civil war is over.

B) I think for the duration of the war, the Confederate States could safely be considered another country and it's citizens not US citizens.

 

[Freakshow]

Do you think everything should be handled by civilian courts?

For matters where a US citizen is accused, yes. Absolutely.

Suppose that during the Civil War, a Union army is marching South, and they see a farmhouse that would make a perfect cover for Confederate forces.

False analogy.

 

[Skeptic]

I think the issue is where he is caught, too. A US citizen caught fighting against the US in a battlefield might not have constitutional protection; but a US citizen that is not in such a situation, and on US soil, is another matter.

 

[Bjorn]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

5th Amendment to U.S. Constitution

 

[Art Vandelay]

When I said, "modifying existing criminal law" I meant things like increasing the penalty on Conspiracy,

There's already a death penalty for conspiracy. What more do you want?

A) The Civil war is over.

Wow, you're completely missing the point.

B) I think for the duration of the war, the Confederate States could safely be considered another country and it's citizens not US citizens.

So if my state legislature were to declare independence, I would lose my citizenship? And how do you know the Confederate forces are residents of Confederate States?

Freadskow

For matters where a US citizen is accused, yes. Absolutely.

That's simply incompatible with reality.

False analogy.

It was a question, not a statement, so it can't be false.

 

[Mycroft]

Originally posted by Art Vandelay
There's already a death penalty for conspiracy. What more do you want?

Is there? I don't know, it doesn't come up every day.

Originally posted by Art Vandelay
So if my state legislature were to declare independence, I would lose my citizenship? And how do you know the Confederate forces are residents of Confederate States?

If your state legislature declared independence that would be a big deal and I wouldn't at all take for granted any legal niceties that would allow you to sit on the sidelines and let it all play out. If you don't declare for one side someone will assume you're for the other, and getting shot is the easiest thing to do.

Interesting question about knowing what states the Confederate forces are from. I see where you're going with that, but the truth is we're not at that bridge and we don't have to cross it. The WOT is almost entirely over seas and any individual citizen we nab at home can still be handled just fine by our criminal legal system. It's interesting to speculate how things might be handled in a civil war, but this isn't a civil war.

 

[BPSCG]

B) I think for the duration of the war, the Confederate States could safely be considered another country and it's citizens not US citizens.

That was never, ever Lincoln's position on the matter. Lincoln's position was that the union was whole and indivisible, that secession was a legal nullity, that the Confederate soldiers were in rebellion against rightful US government authority and that Jeff Davis and the rest of the Confederate government were US citizens who had usurped the lawful authority of the US government.

After Gettysburg, when General Meade wired Lincoln that "we have driven the invader from our soil", Lincoln erupted in fury. It was all "our soil", by Lincoln's reasoning; that Meade could say something like that showed he just didn't get it.

BTW, I also agree with fishbob on this (yeeks - I've agreed with a_u_p, Cleon, and now fishbob, all in the space of about a week - someone shoot me now...). My understanding is that the issue is that if Padilla were to stand trial, all kinds of national security info could be compromised. If that's the case, then some way of providing that trial without compromising national security is what's required - not compromising the Constitution. If our current legal framework doesn't provide for this type of situation, then maybe our lawmakers should be working on building that framework instead of writing anti-flag-burning amendments and other such nonsense.

ETA: But there's still part of me that wants to invoke the Dreedle solution in re Padilla.

 

[fishbob]

Civil law does NOT have a remedy for such a situation. If they haven't been caught yet, the best you could hope for is a conspiracy charge, which is damned difficult to prosecute without exceptionally solid evidence, and even harder to do if you need to protect sources/capabilities from public exposure. For ordinary criminals, we accept that crimes cannot be prevented, and rely on the threat of subsequent punishment to reduce the number of such crimes to a manageable level. And that works. But that's not a model for success for what really amounts to war. The threat of subsequent punishment has already proven itself wholely inadequate, and the threat posed by successful attacks is fundamentally different than the costs of ordinary crime. The standard criminal model simply doesn't work.

Holding someone indefinitely because they are suspected of doing something tomorrow or next year seems to rely on the premise that somebody]/i] in authority can predict the future. I don't buy that premise. The current civil system is all we have.