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 A09
RICHMOND, 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:
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.
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.
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?