In Jose Padilla: No Charges and No Trial, Just Jail, Robert A. Levy, senior fellow in constitutional studies at the Cato Institute, wrongly criticizes the detention of suspected unlawful combatant Jose Padilla:
Consider this specious logic, endorsed by the Bush administration: Under the Sixth Amendment, the right to counsel does not apply until charges are filed. The government has not charged Padilla. Ordinarily, U.S. citizens cannot be detained without charge. But the administration has avoided that technicality by designating Padilla as an “enemy combatant,” then proclaiming that the court may not second-guess his designation.
Essentially, on orders of the executive branch, anyone could wind up imprisoned by the military with no way to assert his innocence.
Except that those detained as enemy combatants do have a way to assert their innocence, as in the very case Levy goes on to cite next, the Hamdi case:
That frightening prospect was echoed by J. Harvie Wilkinson, the respected and steadfastly conservative chief judge of the Fourth Circuit. In a case involving another U.S. citizen, Yaser Hamdi, Wilkinson warned, “With no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel.” Judge Wilkinson upheld Hamdi’s detention but pointedly noted that Hamdi’s battlefield capture was like “apples and oranges” compared to Padilla’s arrest in Chicago. “We aren’t placing our imprimatur upon a new day of executive detentions,” Wilkinson cautioned.
While Levy inexplicably fails to mention it, Hamdi’s right to a habeas corpus hearing was upheld by the courts. So, even though the Bush administration may try “proclaiming that the court may not second-guess his [Padilla’s] designation,” the courts have disagreed, making it so that those detained as enemy combatants can assert their innocence in their habeas corpus hearings. If they can show that they are not enemy combatants, then they can get out of military detention and either be turned over to the criminal justice system or be freed entirely if there are no criminal charges against them.
An unambiguous federal statute and the U.S. Constitution both prohibit the executive branch from doing to Padilla what it is now doing. More than three decades ago, Congress passed Title 18, section 4001(a) of the U.S. Code. It states, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Today, we have not had from Congress any statute that authorizes Padilla’s detention.
I’m surprised that such an eminent legal authority as Mr. Levy has never heard of the Uniform Code of Military Justice (UCMJ), enacted by Congress back in the 1950s, which authorizes the detention and trial by military tribunal of those suspected of war crimes (like unlawful belligerency), such as Padilla.
Yes, Congress enacted the PATRIOT Act, which says that non-citizens suspected of terrorism can be detained, but only for seven days. After that, they have to be released or charged, unless the attorney general certifies every six months that they present a security risk.
In other words, the PATRIOT Act authorizes the indefinite detention of non-citizens suspected of terrorism as long as the attorney general certifies every six months that they present a security risk.
Two months earlier, Congress had passed a resolution empowering the president to use all necessary force against the 9/11 terrorists. But that resolution surely did not give the administration unfettered discretion to detain citizens without charge.
Why not? There isn’t any exception made in that Congressional Resolution saying that all necessary force may be used against the terrorists who made the 9/11 attacks, except when it comes to unlawful combatants who happen to be U.S. citizens.
If it had, then the ensuing PATRIOT Act would have afforded more protection to aliens than to citizens. In the wake of the 9/11 attacks, that proposition is incredible.
Perhaps the PATRIOT Act itself doesn’t give more protection to foreigners than citizens, but the Executive Order authorizing military tribunals for captured terrorists does. Only non-citizens may be tried by military tribunal under that Executive Order, despite both case law (Quirin) and statute law (the UCMJ) saying that citizens may be tried by military tribunal. In combination with the executive detention policy, the result is that both foreigners and citizens may be indefinitely detained as enemy combatants, but citizen unlawful combatants may not be tried by military tribunal, they must be tried in the U.S. criminal courts.
Reasonably construed, Congress’ resolution on the use of military force triggered the president’s commander-in-chief authority. He could then order seizure of enemy soldiers and detention of persons found in a zone of active combat. But he could not order the imprisonment, without charge, of an unarmed non-soldier far from active combat, especially a U.S. citizen on our own soil.
Why can’t enemy combatants be detained outside “a zone of active combat”? Where, exactly, are these zones, anyway? Where are their borders? If an enemy combatant starts out in such a zone, then gets out of one in the process of fleeing from those who are chasing him in the attempt to capture him, does that mean he gets away, as far as executive detention is concerned? That would be contrary to the international laws of war as codified in the Geneva Convention, to which the US is signatory.
Levy’s portrayal of Padilla, as “an unarmed non-soldier,” and “a U.S. citizen on our own soil” (soil he loves so much that he stands accused of conspiring with Al Qaeda to detonate a radiological bomb on it) is touching, but it is a war crime for enemy combatants not to bear arms openly, as well as for them to operate out of uniform. Levy seems to take Padilla’s unarmed, un-uniformed status as evidence that he deserves to be treated better than a POW, but it is actually evidence that he deserves worse.
Nor is the administration justified in its reliance on Ex parte Quirin, the Supreme Court case involving eight Nazi saboteurs, one of whom was an American citizen. The executive branch acted in Quirin in accordance with congressional authorization.
Padilla has also been detained in accordance with congressional authorization – the Congressional Resolution, and the UCMJ.
The eight Nazis were represented by counsel, charged, tried, and convicted.
As I’m sure Padilla will be, once his detention is over and he’s turned over to the civil courts to be tried, hopefully, for treason.
Here, by contrast, Padilla has been denied any chance to defend himself. He has seen no lawyer; he has not been charged, much less tried and convicted.
Yeah, funny thing, the Bill of Rights only guarantees the right to a lawyer to those who are being criminally charged. Padilla’s not, so he has no such right until he’s charged.
And he has been imprisoned notwithstanding a 30-year-old statute that expressly forbids the unauthorized detention of U.S. citizens.
Yes, because the UCMJ authorizes the detention of U.S. citizens, including those suspected of committing the war crime of unlawful belligerency.
Padilla may deserve the treatment he is receiving — perhaps worse. That is not the point. When Americans are taken into custody, they have the right to retain an attorney.
Yes, when and if they are charged.
Congress must first set the rules.
As was done in the UCMJ.
Then an impartial judge, not the president, should make the ultimate decision as to whether the arrest and imprisonment comport with the Constitution.
Padilla still has a right to a habeas corpus hearing in which he can challenge the constitutionality of his arrest and imprisonment, just as did Hamdi.