The entire United States is now a battlefield. That is the official position of the Bush administration as expressed by the Solicitor General to the Fourth Circuit Court of Appeals in the case Jose Padilla, a US Citizen held in a Navy Brig for the last 3 years without formal criminal charges having been filed.
Indeed, in what has to be the most egregious demand for an extension of Executive power in violation of the Constitutional guarantees set forth in the 4th, 5th and 6th Amendments, the Solicitor General argued that the President has the right to imprison Padilla indefinitely without access to his attorney or the necessity to seek a warrant for his arrest.
His reasons are after the break . . .
U.S. a Battlefield, Solicitor General Tells Judges
Case of Man Held 3 Years Without Trial Focuses Attention on Administration’s Anti-Terror Policies
By Tom Jackman
Washington Post Staff Writer
Wednesday, July 20, 2005; Page A09RICHMOND, July 19 — A top government attorney declared Tuesday that, in the war on terror, the United States is a battlefield, and therefore President Bush has the authority to detain enemy combatants indefinitely in this country.
Solicitor General Paul D. Clement’s comments came as a three-judge panel of the U.S. Court of Appeals for the 4th Circuit is considering whether to overturn a lower court ruling that Jose Padilla should be charged with a crime or released. In 2002, Padilla, a former Chicago gang member and Muslim convert, was taken into custody by the military and has been held without trial since.
Luttig repeatedly pressed Clement, even after the solicitor general noted that Padilla’s alleged intentions as a soldier of al Qaeda — to target civilians — constituted “unlawful combatantcy” even if he were on a battlefield in uniform.
“Those accusations don’t get you very far,” [Justice] Luttig replied, “unless you’re prepared to boldly say the United States is a battlefield in the war on terror.”
Clement answered, “I can say that, and I can say it boldly.”
But [Justice] Michael said Padilla wasn’t captured anywhere near a battlefield. “You captured Padilla in a Manhattan jail cell,” Michael said. “What, in the laws of war, allows you to undertake a non-battlefield capture and hold them for the duration? I don’t think you cite anything.”
Michael, addressing Clement’s claim that the United States is a battlefield, then asked: “To call the United States a battlefield, wouldn’t you have needed a specific authorization from Congress? It’s not up to us as a court to develop laws of war.”
The good news? It sounds like the three justice panel for the 4th Circuit which is hearing this case is not prepared to accept the Bush adminisration’s claim the the entire country is now a battlefield and therefore the President can detain anyone, even a US citizen, without complying with the constitutional protections found in the Bill of Rights. To jog your memory, here are the specific amendments that the terms of Padilla’s detention currently violates:
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V
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 offense 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.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
The bad news? This case is likely headed for the Supreme Court regardless of the decision in the 4th Circuit. If Roberts is sitting on that Court in place of O’Connor at that point what do you think the odds are that this whole “the entire country is a battlefield” argument for indefinite detentions just might be accepted? Certainly better than with her on the Court, I can tell you that much.
I also wouldn’t put it past the GOP Congressional Leaders to put a provision into an Omnibus bill declaring that the United States is a battlefield in order to lend credence to this bs argument. After all, whoever votes against it will be faced with the dilemma that Democrats faced in 2002 when they voted against the Homeland security law: namely the charge that they are soft on terrorism.
One question we need to have someone ask Roberts at his confirmation hearings: Do you agree that the President has the authority to declare the US a battlefield and can indefinitely detain anyone the Government suspects of terrorist connections as a battlefield combatant without meeting the requirements set forth in the Bill of Rights?
I don’t see how the court an possibly accept the AG’s argument that we are at war and therefore Padilla can be held for “the duration.” If the war he is talking about is the war on terror, it will never be over. No due process, ever? Held without charges or a lawyer until he dies of old age? How can this be acceptable under the constitution?
How can this be acceptable under the constitution?
It isnt’.
Terrorism is one of the behaviors government was created to control.
There are lots of other reasons a “war” on terror cannot have an end.
Yadda, yadda.
In that futuristic dystopian vision, the government keeps its citisens supportive of its fascist policies by using a “war on terror” as its justification. In the film, it is the government that is actually behind the terrorist acts. We haven’t gotten to that point, yet (at least I don’t think so); but it’s sure easy to see how tempting it would be to the right wing.
and Congress hasn’t even declared war.
If this works, think of all the wonderful possibilities. The Prez could jail dope smokers forever because the U.S. is a battlefield in the war on drugs.
He could even disappear unsightly cancer victims in the war on cancer.
I saw the diary title and I knew exactly what case it referred to. But I assumed you meant the panel of judges had decided in favour of the Bush admin!
Last report I heard, one judge’s questions sounded sympathetic to Padilla’s lawyer’s case, another was sympathetic to the government’s case, and a third was nearly silent. He’ll be the key vote, it would appear.
For anyone (like me) who considers civil liberties and protection of the Bill of Rights to be the foremost issue we face politically, this case is HUGE. Cross your fingers…
I agree w/ Slacker above about the importance of this case, and yet, I’m not sure it will get past the Roberts and Rove stories. The first place I read about it was on an Australian blog.
What they are arguing – the US is a battlefield and therefore the president has the right to … (imagine the possibilities) – is outrageous and very scary.
Little by little, these changes are being made to curtail citizens’ rights. It makes me think of the writing of Milton Mayer, They Thought They Were Free, especially these paragraphs:
It’s too big to understand – but we can all see these small steps. What will the end product look like if nothing is done to prevent these small changes.
And, there’s too much of it. How can a person keep track of all of these threads – and have more than a cursory understanding of the potential implications? And what exactly are the implications? I’m not sure anymore, but I know that now when I hear these stories / news items, I sense they are connected.
When I saw the title of your diary I thought it was going to be about the 63 year old woman who was shot to death while waiting for a bus in LA.
You do live in a battlefield both figuratively and literally.
Apparently the NYPD is going to start random searches of subway riders’ bags. They swear they’re not going to use racial profiling–anyone buying that? And they claim that anyone who doesn’t want to be searched can just walk away and find other transportation, but I’m sure that will work about as well as trying to avoid a highway DUI checkpoint.
I doubt they’ll find any explosives, but they’ll most likely score some weed.
The possibility that someone would board the subway with murder on his or her mind has been with us as long as there have been subways. It’s a law enforcement problem, and the Fourth Amendment governs law enforcement.
All in all, it sounds to me like the current regime is trying to implement martial law under the table.
They can’t do that without probable cause.
For an investigative stop, the police need reasonable suspicion that a person is involved in criminal activity, which is less demanding than probable cause (but still requires more than a “hunch”). Of course, stopping people at random doesn’t involve either probable cause or reasonable suspicion.
I imagine that NYC’s lawyers will argue that the police have “consent” to search because riders have the option of refusing to allow the search. Of course, if you refuse the search, you can’t ride the subway. And I’ll bet that the police will find ways of manufacturing “reasonable suspicion” to search people who refuse to be searched voluntarily, even though exercising one’s Fourth Amendment rights is not supposed to be a permissible basis for subjecting one to a search.
For years, courts have been upholding the constitutionality of DUI checkpoints, which are random investigatory stops with no reasonable suspicion attached. And, of course, everyone’s bag is searched via X-ray by government employees in government-owned airports–if you want to ride the plane, you consent to the search. Eventually, we’ll probably have to put our stuff through X-ray machines to get on the subway.