December 21, 2003

Jurisprudence or Politics?

Blackfive points to Darren Kaplan's explanation of the Padilla vs. Rumsfield decision. Kaplan lays it out in simple terms for those of us who struggle with legalese.

Here's why the Second Circuit Decision on Padilla is Wrong This is my take on Padilla v. Rumsfeld. Iím going to write for the general public on this, which means Iím going to take it slow and use as little legal jargon as possible. That necessarily means that Iím going to oversimplify and ignore some lesser points, so apologies to all you Constitutional scholars out there.

In a nutshell, hereís why the Second Circuit majority decision in Padilla v. Rumsfeld is wrong. First, letís be clear, the decision in Padilla was not based on Padilla's constitutional rights per se, in fact, his rights ended up being irrelevant to the decision the Second Circuit rendered. Rather, the constitutional issue at the heart of Padilla is the separation of powers between the different branches of the federal government. Briefly summarized, the following separate branch powers are relevant to Padilla:

1) The President is Commander in Chief of the armed forces of the United States;

2) Congress has the power to make law and declare war;

3) The federal courts have the power to determine the constitutionality of law and Congressional acts and Presidential actions and regulations.

All branches of government have other powers, but for our purposes, the above list will suffice.

The President's role as Commander in Chief should be the role most protected from court scrutiny. The Constitution is silent as to how war is to be conducted by the President and that leaves little room for the federal courts to interfere in the prosecution of war given that the courtís only role is to determine the constitutionality of Presidential action. Likewise, while Congress has the authority to declare war, the Constitution does not give Congress any voice in how the war is conducted (though in practice, the Congressís control of funding is a powerful mechanism for overseeing the conduct of war). Note also that it has come to be accepted that a formal declaration of war by Congress is unnecessary and that more informal Congressional authority will suffice for the President to properly engage in armed conflict. More importantly, as Commander in Chief, the President is assumed to have some inherent power to defend the Nation in the face of actual or threatened attack even in the absence of any Congressional action.

Eugene Volokh renders an opinion about the Ninth Circuit's ruling on the Guantanamo detainess in his usual cogent manner.

Judge Reinhardt on detentions: Some lines from Judge Reinhardt's Ninth Circuit opinion about the Guantanamo detainees are telling: Gherebi has not been subjected to a military trial. Nor has the government employed the other time-tested alternatives for dealing with the circumstances of war: it has neither treated Gherebi as a prisoner of war (and has in fact declared that he is not entitled to the rights of the Geneva Conventions [citation omitted]), nor has it sought to prosecute him under special procedures designed to safeguard national security. See U.S. v. Bin Laden, 2001 WL 66393 (S.D.N.Y. Jan. 25, 2001) (limiting access to confidential information). Instead, the government is following an unprecedented alternative: under the governmentís theory, it is free to imprison Gherebi indefinitely along with hundreds of other citizens of foreign countries, friendly nations among them, and to do with Gherebi and these detainees as it will, when it pleases, without any compliance with any rule of law of any kind, without permitting him to consult counsel, and without acknowledging any judicial forum in which its actions may be challenged.

What Judge Reinhardt is describing and condemning in the last sentence is the standard way that enemy detainees are treated. When the U.S. took German and Japanese soldiers prisoner during World War II, it imprisoned them without a fixed term (it did release them after the end of hostilities, but no-one knew how long this would be). It imprisoned them regardless of their formal citizenship. It did not give them access to civilian courts, or allow challenges in any civilian judicial forum (the judicial forum that Reinhardt seems to be calling for). Imagine what it would have been like if the government had to defend hundreds of thousands of habeas cases brought by enemy soldiers. Giving such rights to enemy soldiers would simply give them an extra weapon they could have used to fight us. That's no way to effectively wage war.

My WWII generation mother and I often had discussions about the Japanese detainees, being a 60's child I thought it wrong on every level and had peers who were born in the camps. Mother's conviction could not be shaken " You don't understand, you haven't witnessed an attack on America, you were not in California in 1941, we were at war with Japan, fighting for our lives, for your future. "

So we are once more. While I couldn't support the wholesale detainment of a group of Americans based solely on their ethnicity, and still do not agree, in a post-9/11 world, I do better understand her point of view.

One doesn't have to be a lawyer or a legal scholar to understand that these decisions are ideologically based and underscores the Left's determination to keep Bush's nominees off the appellate bench.

Posted by feste at December 21, 2003 09:49 AM | TrackBack
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