How you feel about the indefinite military detentions of Yaser Esam Hamdi and Jose Padilla will turn largely on what you think life will look like when it starts. By "it," I mean the moment at which fundamental liberties are curtailed by well-meaning governments and the legal system becomes unable to offer relief. Never having seen "it" happen in my lifetime, I'm hardly an expert. German Jews who survived the Holocaust will tell you that it's hard to know at exactly which instant you've crossed the line into "it."Fred Korematsu, a Japanese American detained during World War II, knows what "it" looks like, and he says it looks a bit like this. Professor Jennifer Martinez, Padilla's oral advocate at the Supreme Court this morning, says we are at the line separating "it" from "not it" right now, today—as the court stands poised to decide whether "the government can take citizens off the street and lock them up in jail forever."
The crucial issue for both Hamdi and Padilla is whether the courts will hand the president the power to detain alleged "enemy combatants" indefinitely, without charges or access to counsel. The president says he already has that power anyhow: The Constitution gives it to him in his role as commander in chief, and Congress gave it to him, right after Sept. 11, when it authorized him to "use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks." The president says this isn't the beginning of "it." This is the middle of a war.
Hamdi, as you'll recall, was captured on the battlefield in Afghanistan with an AK-47 in his hand. Transferred to Guantanamo, he was moved to a military brig when it became clear he was born in the United States. No charges have ever been filed against him, he only recently met with his attorney, and his case has been a protracted slap-fight between the district court judge and the 4th Circuit Court of Appeals, which ruled most recently that the president's powers rightfully permit him to detain Hamdi indefinitely. Padilla, a former gang member and convert to Islam, allegedly conspired with high-ranking al-Qaida members to detonate a "dirty bomb" against U.S. targets. He was picked up in a Chicago airport, held as a material witness in New York, then labeled an enemy combatant and moved to a Navy brig, where he has been confined ever since. Padilla fared better in the appellate courts than Hamdi, with the 2nd Circuit Court of Appeals ruling that a criminal statute, 18 U.S.C. Sec. 4001(a)—which bars the detention of citizens without express congressional authority—means "the President does not have the power ... to detain as an enemy combatant an American citizen seized on American soil." They all appealed, and each case was given an hour this morning for argument.
Frank Dunham, on behalf of Hamdi, says that seeking a writ of habeas corpus from a court can hardly violate the notion of separation of powers since the whole purpose of habeas relief is to "challenge extrajudicial executive detentions."
Justice Sandra Day O'Connor asks Dunham for precedent involving U.S. citizens who are enemy combatants, and he offers up Ex Parte Quirin, a World War II case involving eight Nazi spies (one of whom claimed to be an American) who snuck into the United States with the intention of blowing things up. The Quirin court held that a military commission, as authorized by the president, was sufficient due process and the spies were not entitled to habeas relief.
Dunham points out that the words "enemy combatant" have no legal meaning; they are "not defined in the case law, not defined by statute." Justice Antonin Scalia breaks in to say that they are, nevertheless, "English words, meaning someone who is combating. ..." O'Connor queries whether habeas relief is available to every American citizen caught fighting for the enemy. Dunham replies that this assumes Hamdi was fighting for the enemy, which has never been proved in a court.
Justice Ruth Bader Ginsburg asks whether there are military regimes to determine whether someone was indeed fighting for the enemy. Dunham says such military proceedings exist but were never used for Hamdi. Chief Justice William Rehnquist asks: "What evidence are you going to get now about what happened on the battlefield?" And Scalia adds: "He wasn't even captured by our forces. You want us to run down members of the allied forces?" "You want us to send a Gulfstream over with 10 witnesses?" adds Justice Anthony Kennedy. "We are not living in World War II," says Dunham. "We have fax machines, phones, pictures."
"What if we get a deposition from an American colonel?" asks Scalia. Would that be enough? "We would not accept it without Hamdi having a right to be heard," responds Dunham. "He has never been allowed to give any kind of explanation of his side of the story."
Justice David Souter joins other justices in wondering whether a military-type trial would suffice for Hamdi. Dunham says yes. When Justice Stephen Breyer asks what the courts should do if the government refuses to hold a military-style hearing, Dunham responds that the court should undertake to do a similar inquiry itself, as District Judge Robert Doumar attempted to do in the Hamdi case before the 4th Circuit slapped him into last week.
When Dunham argues that Congress never authorized these detentions, O'Connor stops him to say Congress did pass the authorization to use military force. "It doesn't have the word 'detention' in it," says Dunham. "It's a declaration of war."