Antonin Scalia says, "...it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face."

(I should say, unless the Writ of Habeas Corpus is properly suspended as well)

Not sure about Scalia, but the viability of US citizens as ECs thing has had precedent since WWII: Ex parte Quirin. Indefinite detention w/o trial of any sort is another matter.

That's to say, if US citizens can be classed and tried by tribunal as ECs (and I think they can), why whould we imagine that they can't be tortured in the same manner?

" A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions." Hamdi v. Rumsfeld, 542 U.S 507 (Scalia, J., dissenting).

Check it: http://supct.law.cornell.edu/supct/html/03-6696.ZD.html

Touché

(that was an xpost, as is this)

I don't think Quirin supports that viewpoint. There's a substantial difference between treating "invading" German soldiers as enemy combatants and kidnapping some crazy Chicago gangbanger as he gets off a plane *in Chicago*. Hamdi is the case that said U.S. Citizens could be treated as unlawful combatants, but all of the majority opinions in that case seemed to recognize that Hamdi was entitled to *some* additional protection because of his status as a U.S. citizen arrested on foreign soil. If the Padilla case had gotten to the Court before they charged him criminally, we would have had the real test. But the Bush Administration blinked. And that should tell you something.

There was an American citizen involved w/ Quirin. At least, that's my understanding & recollection.

I agree, re: Padilla, but I think the issue is different there. That was more about indefinite detention w/o a trial of any sort. If they'd gotten him to and through a military tribunal, they might not have been forced into the position they were.

Sorta:

"All except petitioner Haupt are admittedly citizens of the German Reich, with which the United States is at war. Haupt came to this country with his parents when he was five years old; it is contended that he became a citizen of the United States by virtue of the naturalization of his parents during his minority, and that he has not since lost his citizenship. The Government, however, takes the position that, on attaining his majority he elected to maintain German allegiance and citizenship, or in any case that he has, by his conduct, renounced or abandoned his United States citizenship . . . For reasons presently to be stated we do not find it necessary to resolve these contentions." Ex Parte Quirin, 342 U.S. 1 (1942).

More from Quirin:

"Petitioners do not argue, and we do not consider, the question whether the President is compelled by the Articles of War to afford unlawful enemy belligerents a trial before subjecting them to disciplinary measures. . . . We need not inquire whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents. For the Court is unanimous in its conclusion that the Articles in question could not at any stage of the proceedings afford any basis for issuing the writ. . . . Accordingly, we conclude that Charge I, on which petitioners were detained for trial by the Military Commission, alleged an offense which the President is authorized to order tried by military commission; that his Order convening the Commission was a lawful order, and that the Commission was lawfully constituted; that the petitioners were held in lawful custody, and did not show cause for their discharge. It follows that the orders of the District Court should be affirmed, and that leave to file petitions for habeas corpus in this Court should be denied."

Quirin is weird, because of what the Court refused to do. It specifically refused to address the question of whether Congress had the authority to proscribe the President's authority w/r/t enemy combatants (a question largely answered in the affirmative in Hamdan, I believe). Most importantly, though, this is how Quirin gets around the citizen/noncitizen problem:

"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, 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, 617-18. 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."

Again, this is not analogous to Padilla's situation, in part because he wasn't part of an invading force, and in part because he wasn't acting as an agent of a foreign government in a time of war. The Bush Admin. has also argued that because Al Queda isn't a foreign government that the laws of war don't apply to any of their associates; you can sort of see where this leads.

God I made this thread all geeky

thank you

Again, this is not analogous to Padilla's situation, in part because he wasn't part of an invading force, and in part because he wasn't acting as an agent of a foreign government in a time of war. The Bush Admin. has also argued that because Al Queda isn't a foreign government that the laws of war don't apply to any of their associates; you can sort of see where this leads.

Forgive my denseness -- and my reluctance to wade through the legal thickets of Hamdan -- but did the Court in 2004 use the Bush administration's own logic against it?

er, I meant HAMDI

that's a great post J, and it seems to highlight the central legal strategy of the Bush administration which is "the usual rules don't apply" (but of course there are no other rules to substitute so we get to make them up as we go along yay!)

a great SET of posts, I should say

I don't think so . . . what do you mean, specifically?

Handy chart:

Hamdi - citizen, captured on foreign soil
Hamdan - noncitizen, captured on foreign soil
Padilla - citzen, captured in U.S.

Also important to your question (I think): Rasul v. Bush, which dealt with the question of whether Gitmo was a U.S. controlled area sufficient to allow foreign nationals to invoke U.S. federal jurisdiction to issue a writ of habeas corpus. Scalia dissented vehemently, arguing that Gitmo was not part of the U.S., that the petitioners were non citizens, and that therefore the habeas couldn't issue because U.S. courts had no jurisdiction.

Clear as mud, right?

(xpost, thanks!)

(Note that many of the questions we thought had been answered by Rasul are being heard again this term in Boumediene v. Bush -- god knows how that's going to turn out)

I don't think so . . . what do you mean, specifically?

This was directed at Alfred, btw.

I mean that in every one of these cases I see a pattern of attempting to create a kind of legal no-man's land

oh, ok nevermind

I mean that in every one of these cases I see a pattern of attempting to create a kind of legal no-man's land

Oh yeah, that's the whole point. That's why we have Gitmo--it's the one place in the world where no law applies. Scalia's Rasul dissent spends a lot of time talking about "sovereignty," and at the oral arguments in Boumediene he got really annoying on the subject, but the bottom line w/r/t that issue is that if U.S. law doesn't even in a limited way there, then everything that the Bush Admin. does there is fine. I mean, is Castro gonna stop 'em? During the Boumediene oral argument there was all this discussion of the lease between the U.S. and Cuba relating to Gitmo . . . to the average listener, it was pretty surreal.

It's noteworthy that they didn't try to take Padilla to Gitmo. It's also noteworthy that once the Bush Administration discovered that Hamdi was a citizen, they whisked him out of Gitmo and put him in a military prison in Virginia. At a result, Scalia had no problem at all with Hamdi's habeas petition, even though he was captured on foreign soil.

and the admin also tends to favor people who are skeptical of the very idea of "international law," no?

anthony kennedy believes in the idea of international law, and it was his vote that but the 5 in the 5-4 Bush Gore decision. you could go around and around and around with this shit but why get worked up about it? yes, bush and addington and cheney are making up the laws about terror as they go; what about this surprises you?

anthony kennedy believes in the idea of international law, and it was his vote that but the 5 in the 5-4 Bush Gore decision.

not sure what the connection is between part one of this sentence and part two

kennedy is part of the admin--helped usher in the admin. i'm sure there are plenty of people in the admin who look to international law. so what?

"what about this surprises you?" is the most common response to anything said about the Bush administration on any thread on this board. The point isn't whether it's "surprising." Obviously nothing is "surprising" by now Incidentally, sometimes I feel like ILX is primarily an original opinions contest, which isn't really the most useful means of discussing an issue -- not that I'm particularly blaming you for this Que.

I'm not saying "No one in this administration believes in international law." And since Kennedy OBVIOUSLY was not a Bush appointee, I don't see what you're getting at.

What I'm trying to say is that on the one hand the administration often takes a legal strategy of placing things outside the context of U.S. law, and that on the other hand it tends to put international law in ironic quotes, thus creating the no-mans land I'm talking about.

kennedy is part of the admin--helped usher in the admin

also sorry to chain-post but this is just silly

they're not putting int'l in ironic quotes. they're mostly ignoring it. those are two separate concepts.

there are probably a few people in the admin who give a shit about int'l law. that's all i'm saying.

kennedy is a firm believer in international law. it's pretty much him who we can thank for getting us into this mess in the first place. that's all i was saying and i realize it's an overreach.

that's all i was saying and i realize it's an overreach.

LOL this should be on the ILX Crest of Arms^^

WHO cares if the Guantamano Six were tortured?

Not me, that’s for sure, but you would have thought that the world had ended the way some of the Press reported the fact that, at long last, those accused of being the masterminds behind 9/11 were going to be tried.

They talked about kangaroo courts and acted as if these six were only on trial for shoplifting, not the cold-blooded murder of 3,000 innocents.

When will the ruling liberal elite realise we are at war with an enemy that isn’t fighting by the Queensberry rules and certainly doesn’t respect the Geneva Convention.

I wish the Yanks hadn’t used waterboarding to get the confessions but, I’m sorry, these are extraordinary times and they demand extraordinary methods.

If the liberals want to talk about the horrors of torture they should listen to the answerphone messages of the passengers on the planes as they careered into the World Trade Center, or remember the pictures of people who chose to jump rather than be burned alive. That was torture. That was pain. That was injustice.

This isn’t a game, this is war.

These madmen don’t give a warning when they are going to fly planes into buildings. The nutters of 7/7 didn’t phone the police before they pulled the strings on their rucksacks and now is not the time for social niceties and manners. Now is the time to fight fire with fire.

-- Jon Gaunt in the Sun

Nino's interview with Lesley Stahl

Weeklong series of interviews of Scalia by Peter Robinson.

Not sure if I can bring myself to watch him interviewed by someone likely supportive already of Scalia's views.

To quote Frank Black, it's educational.

The interviewer is not that bad. He asks some decent questions, although certainly doesn't grill Scalia as much as I'd like.

I found the part II very revealing, actually. Scalia likes his Constitutional Law philosophy because it provides certainty and protects him from coping with scary change.