Court: President cannot detain U.S. citizen as enemy combatant

[whitefork]

Breaking news, link here. http://www.cnn.com/2003/LAW/12/18/padilla.case/index.html

[Vorticity]

You know, I heard that on the radio this morning and I got to thinking:

The court order says Bush must release this guy within 30 days, for a civilian trial.

What happens if he doesn't?

I mean, the court itself has no real ability to enforce this ruling. What are they going to do, send a team of armed prosecutors to raid the naval brig and get the guy out? No. What could the court do? They can't impeach the president, that's up to the legislature. They can't arrest the president, he's immune to arrest unless impeached.

Would it be a major constitutional crisis if the executive branch refused to obey the lawful order of the judicial branch (after all appeals have run out, I mean)? Has that ever happened before? What would that mean for the future legitimacy of the constitution?

Just some random thoughts, since it probably wouldn't happen in real life...

[whitefork]

How did that go? "Mr. Marshall has made his decision, now let him enforce it" said by Andrew Jackson about a case involving the Cherokee, I seem to recall.

Of course, it extends way beyond Jose Padilla.

[fishbob]

Hmmmm. Throwing someone into a cellar, no trial, no charges, no contact with legal representation. Sounds like kidnapping to me. Send in the FBI.

[Vorticity]

Originally posted by Kullervo
How did that go? "Mr. Marshall has made his decision, now let him enforce it" said by Andrew Jackson about a case involving the Cherokee, I seem to recall.
You're right. I had forgotten all about that. Here is a link which describes that episode:

http://www.pinzler.com/ushistory/indremsupp.html

There is a slight difference between that and what is happening now: the SCOTUS ruling in Worcester v Georgia (1832) stated that the State of Georgia could not remove the Indians by force. It would have been up to President Jackson to enforce this order. That wasn't specifically part of the ruling, but it was implied by our constitution.

In this case, the Court is specifically ordering the president to do a specific thing, which seems subtly different to me.

Has a sitting president ever refused a Court ruling that he perform a specific action? I don't know. If so, what does that precedent say about the actual legitimacy of Court decisions?

[whitefork]

Andrew Johnson and the Tenure of Office act, possibly, but that was more of a refusal to obey a law passed by Congress. I don't know if it had been specifically upheld by the Supreme Court.

And look what it got him.

[Upchurch]

Originally posted by Vorticity
Would it be a major constitutional crisis if the executive branch refused to obey the lawful order of the judicial branch (after all appeals have run out, I mean)? Has that ever happened before? What would that mean for the future legitimacy of the constitution? Well, wouldn't the legitimacy of the Constitution be preserved if congress impeached the president for defying a legal court order? Further, if the president prevents a US citizen from getting due process under the law, he's breaking his oath to "preserve, protect and defend the Constitution of the United States."

I think the constitutional crisis would come not if the executive branch refuses to bay the lawful order of the judicial branch, but rather if the legislative branch refuses to enact its impeachment powers.

[Vorticity]

Originally posted by Kullervo
Andrew Johnson and the Tenure of Office act, possibly, but that was more of a refusal to obey a law passed by Congress. I don't know if it had been specifically upheld by the Supreme Court.

And look what it got him.
Sure, but he was aquitted. At any rate, that was an act of Congress, which has enforcement powers (in the form of impeachment).

If the Court has no actual enforcement powers, especially over the executive branch, then what legitimacy does it actually have in the face of an administration that has shown a somewhat less-than-reverent attitude towards Constitutional traditions in the past?

[Vorticity]

Originally posted by Upchurch
I think the constitutional crisis would come not if the executive branch refuses to bay the lawful order of the judicial branch, but rather if the legislative branch refuses to enact its impeachment powers.
Sure, but what do you suppose are the chances that this particular Congress would move to impeach the president at this particular time?

[aerocontrols]

As long as we're dealing in hypotheticals...


Suppose Bush ignores this court's ruling, then Congress moves to impeach? Bush could just send a military force to apprehend all the Congressmen who voted against him and have them shot and replaced with neoconservatives.

Wouldn't that be a major constitutional crisis if the executive branch refused to obey the lawful order of the judicial branch and then eliminated those Congressmen who stand in his way? Has that ever happened before? What would that mean for the future legitimacy of the constitution?

Man, these speculations can get scary.



MattJ

[Vorticity]

Originally posted by aerocontrols
As long as we're dealing in hypotheticals...


Suppose Bush ignores this court's ruling, then Congress moves to impeach? Bush could just send a military force to apprehend all the Congressmen who voted against him and have them shot and replaced with neoconservatives.

Wouldn't that be a major constitutional crisis if the executive branch refused to obey the lawful order of the judicial branch and then eliminated those Congressmen who stand in his way? Has that ever happened before? What would that mean for the future legitimacy of the constitution?

Man, these speculations can get scary.



MattJ
Now, now, tut, tut :)

That eventuality is not something I'd expect to have any probability of happening. It would amount to GWB overthrowing our existing form of government and making himself king. I'm not a huge fan of GWB, but I don't see that happening. Even if he tried, I doubt he'd get enough support from the military to pull it off.

The hypothetical of him disobeying a direct Court order seems much more plausible to me, since it's seemingly subtle enough to pass under the radar of public notice, especially if the media is distracted by something else. Furthermore, I'd guess that the current Congress would be a bit leary of trying to impeach a relatively popular president at this time.

For the record, if I had to bet money, I'd bet that GWB will obey the court (perhaps after some appeals/legal wrangling) and let the guy go.

[jj]

Originally posted by Vorticity
You know, I heard that on the radio this morning and I got to thinking:

The court order says Bush must release this guy within 30 days, for a civilian trial.

What happens if he doesn't?


Then the president would be in revolt against the country.

Unfortunately, the only way to deal with that is congress, and they won't, because they all fear for their campaign funding.

[aerocontrols]

Originally posted by Vorticity
That eventuality is not something I'd expect to have any probability of happening. It would amount to GWB overthrowing our existing form of government and making himself king.

We agree on that at least.

Originally posted by Vorticity
The hypothetical of him disobeying a direct Court order seems much more plausible to me, since it's seemingly subtle enough to pass under the radar of public notice, especially if the media is distracted by something else. Furthermore, I'd guess that the current Congress would be a bit leary of trying to impeach a relatively popular president at this time.

I think you're insane if you believe that Bush would just leave the guy locked up past 30 days without getting a stay on that order from an appeals court. Your assertions about a Press that wouldn't notice or a Congress afraid to impeach him after such an act seem equally lacking in sanity.

Originally posted by Vorticity
For the record, if I had to bet money, I'd bet that GWB will obey the court (perhaps after some appeals/legal wrangling) and let the guy go.

Again we agree, except that I think that the decision will be overturned on appeal. But if it isn't, I expect Bush will have the Justice Dept. prosecute him in Federal court, not let him go.

MattJ

[aerocontrols]

Originally posted by jj


Then the president would be in revolt against the country.

Unfortunately, the only way to deal with that is congress, and they won't, because they all fear for their campaign funding.

What you describe is a presidential attack on the authority of the Judicial branch, which (in this case, claims to be) acting in support of the Legislative branch against overreach by the Executive.

If the ruling is correct, why exactly do you think that campaign funding figure more into their decision-making process more than balance of powers?

"We'll let Bush usurp the Judicial branch, because if we don't, we'll lose campaign money. After all, he wouldn't usurp our authority."

Is that it, or are you thinking some other reasoning would lead them to the decision you describe?

MattJ

[Vorticity]

Originally posted by jj
Then the president would be in revolt against the country.
Yeah, but there's revolt and then there's revolt.

I don't think GWB disobeying a court ruling would be the same order of magnitude as what aerocontrols suggested above. It wouldn't sweep away our form of government and our way of life in one fell swoop. It would just sort of chip away at it a little.

Let me try to make what I mean more clear:

Consider impeachment. For nearly 100 years after the formation of our country, there were no impeachments. Then, in 1865 (or was it 1866?) Johnson is impeached. Then nothing for over a hundred years. Then, suddenly, in the space of less than 30 years, Congress votes in favor of two separate impeachments. And now the word "impeachment" is on everybody's lips. It seems that perhaps the public's perception of the gravity of impeachment has decreased in the last few decades. Familiarity breeds contempt.

I envision the same sort of thing hypothetically happening with the notion of high government officials disobeying the Court's direct orders. How many times would that have to happen for it to become sort of standard in the eyes of the electorate, and then tolerated. At that point you have no Court.

At any rate, this is all hypothetical ramble, and again: I don't actually expect GWB to disobey the ruling.

[Vorticity]

Originally posted by aerocontrols
...But if it isn't, I expect Bush will have the Justice Dept. prosecute him in Federal court, not let him go.
Of course. I didn't really mean "let him go", I meant let him out of the naval brig for prosecution in a civilian court.

And yes, it may be that this will be overturned on appeal. But if I had to bet money, I'd bet against it. ;)

[jj]

Originally posted by aerocontrols


What you describe is a presidential attack on the authority of the Judicial branch, which (in this case, claims to be) acting in support of the Legislative branch against overreach by the Executive.

If the ruling is correct, why exactly do you think that campaign funding figure more into their decision-making process more than balance of powers?

Because a majority of congress members are willing to allow the incursion into the balance of power as regards the judiciary. Just look at the words coming out of various congress critters regarding the pledge battle.

"We'll let Bush usurp the Judicial branch, because if we don't, we'll lose campaign money.

Yep, that's it. Short-sighted thinking.

After all, he wouldn't usurp our authority."

They aren't even thinking about that. That would require too long a wisdom horizon.

Is that it, or are you thinking some other reasoning would lead them to the decision you describe?

MattJ
You seem to think that they actually THINK. If they thought, why do so many votes come down straight on party lines?

[aerocontrols]

Originally posted by jj

You seem to think that they actually THINK. If they thought, why do so many votes come down straight on party lines?

How many?

[hgc]

Originally posted by Vorticity
...
Consider impeachment. For nearly 100 years after the formation of our country, there were no impeachments. Then, in 1865 (or was it 1866?) Johnson is impeached. Then nothing for over a hundred years. Then, suddenly, in the space of less than 30 years, Congress votes in favor of two separate impeachments. And now the word "impeachment" is on everybody's lips. It seems that perhaps the public's perception of the gravity of impeachment has decreased in the last few decades. Familiarity breeds contempt.
...I think the data (3 occurences out of 43 presidents) here is way insufficient for identifying an impeachment trend. (I also count Nixon as an "occurence," not that he was impeached, but because he would have been, absent resignation.)

I don't hear the word impeachment much in regards to Bush. I do think though that in the very unlikey event he were to defy this court order, we would be hearing it a lot. There would also be defections in his administration. Remember Nixon's "Saturday Night Massacre," where he fired 2 attorneys general in on night, because they refused, in succession, to fire the special prosecutor? (Bit of trivia, the acting attorney general, the then solicitor general, who did fire Archibald Cox, was none other than Robert Bork.)

[Vorticity]

Originally posted by hgc
I think the data (3 occurences out of 43 presidents) here is way insufficient for identifying an impeachment trend.
Maybe. I hope so. At any rate, I wasn't really trying to make a point about impeachment. I was just trying to construct an analogy.

Let's see, what would be a better analogy to illustrate the public growing used to practices which were in the past considered more serious? Undeclared wars? I dunno...
(I also count Nixon as an "occurence," not that he was impeached, but because he would have been, absent resignation.)
Sure. That's why I worded it "...Congress votes in favor of two separate impeachments...".
I don't hear the word impeachment much in regards to Bush.
Come to Berkeley! :D
I do think though that in the very unlikey event he were to defy this court order, we would be hearing it a lot. There would also be defections in his administration.
I hope so.

Remember Nixon's "Saturday Night Massacre," where he fired 2 attorneys general in on night, because they refused, in succession, to fire the special prosecutor? (Bit of trivia, the acting attorney general, the then solicitor general, who did fire Archibald Cox, was none other than Robert Bork.)
Yeah, there's that.
Correct me if I'm wrong*, though, but in this instance the guy is being held in a naval brig. Wouldn't the prez, as Commander-in-Chief of the armed forces have the sole authority to enforce this Court ruling? Do military tribunals fall under the authority of the Attorney General? Would GWB's cabinet necessarily have to enter into the equation at all, as they did in the Nixon situation?

*which I very well may be; I'm no lawyer.

[Chaos]

Originally posted by aerocontrols
As long as we're dealing in hypotheticals...


Suppose Bush ignores this court's ruling, then Congress moves to impeach? Bush could just send a military force to apprehend all the Congressmen who voted against him and have them shot and replaced with neoconservatives.

Wouldn't that be a major constitutional crisis if the executive branch refused to obey the lawful order of the judicial branch and then eliminated those Congressmen who stand in his way? Has that ever happened before? What would that mean for the future legitimacy of the constitution?

Man, these speculations can get scary.



MattJ

Wouldn´t an order to release Gitmo prisoners be "hindering the war on terrorism", or however this is called?

I mean, couldn´t Bush - theoretically - declare that the Supreme Court, by giving such orders, is aiding terrorism against America, and have the Judges sent to Gitmo themselves?

Far-fetched, I know, but while we are speculating anyway, we might as well speculate about the really weird stuff.

[Luke T.]

Originally posted by Kullervo
Breaking news, link here. http://www.cnn.com/2003/LAW/12/18/padilla.case/index.html

From the first paragraph of the story:


In a setback to the Bush administration's anti-terrorism policies, a federal appeals court ruled Thursday that the president does not have the power to detain an American citizen seized on U.S. soil as an enemy combatant.

I guess the Civil War doesn't count as a precedent. Or were the rebels not considered U.S. citizens?

[Furious]

Originally posted by Vorticity

Yeah, but there's revolt and then there's revolt.

I don't think GWB disobeying a court ruling would be the same order of magnitude as what aerocontrols suggested above. It wouldn't sweep away our form of government and our way of life in one fell swoop. It would just sort of chip away at it a little.

Let me try to make what I mean more clear:

Consider impeachment. For nearly 100 years after the formation of our country, there were no impeachments. Then, in 1865 (or was it 1866?) Johnson is impeached. Then nothing for over a hundred years. Then, suddenly, in the space of less than 30 years, Congress votes in favor of two separate impeachments. And now the word "impeachment" is on everybody's lips. It seems that perhaps the public's perception of the gravity of impeachment has decreased in the last few decades. Familiarity breeds contempt.

I envision the same sort of thing hypothetically happening with the notion of high government officials disobeying the Court's direct orders. How many times would that have to happen for it to become sort of standard in the eyes of the electorate, and then tolerated. At that point you have no Court.

At any rate, this is all hypothetical ramble, and again: I don't actually expect GWB to disobey the ruling.

While I think there are some minor holes in the checks and balances system and Bush could theoretically not enforce the order, there is another "check".

We thankfully have freedom of information, so if Bush were to disobey the court order, if enough people got riled up about it, he wouldn't be president beyond this term.

If this sort of thing started to become normalized, you'd most likely have a LOT of people that would put aside their political differences in order to restore the integrity of our democratic system.

Bush might be able to get away with onesy/twosy violations, but if it started becoming systematic, he'd find himself unpopular very quickly, especially if a couple of prisoners end up being totally innocent.

Other presidents like FDR certainly took liberties with interring U.S. citizens he didn't like, but I would hardly call imprisoning Japanese-American citizens more normalized today. All it takes is a leader going overboard to swing the pendulum the other way.

[Furious]

Originally posted by Vorticity

Yeah, but there's revolt and then there's revolt.

I don't think GWB disobeying a court ruling would be the same order of magnitude as what aerocontrols suggested above. It wouldn't sweep away our form of government and our way of life in one fell swoop. It would just sort of chip away at it a little.

Let me try to make what I mean more clear:

Consider impeachment. For nearly 100 years after the formation of our country, there were no impeachments. Then, in 1865 (or was it 1866?) Johnson is impeached. Then nothing for over a hundred years. Then, suddenly, in the space of less than 30 years, Congress votes in favor of two separate impeachments. And now the word "impeachment" is on everybody's lips. It seems that perhaps the public's perception of the gravity of impeachment has decreased in the last few decades. Familiarity breeds contempt.

I envision the same sort of thing hypothetically happening with the notion of high government officials disobeying the Court's direct orders. How many times would that have to happen for it to become sort of standard in the eyes of the electorate, and then tolerated. At that point you have no Court.

At any rate, this is all hypothetical ramble, and again: I don't actually expect GWB to disobey the ruling.

While I think there are some minor holes in the checks and balances system and Bush could theoretically not enforce the order, there is another "check".

We thankfully have freedom of information, so if Bush were to disobey the court order, if enough people got riled up about it, he wouldn't be president beyond this term.

If this sort of thing started to become normalized, you'd most likely have a LOT of people that would put aside their political differences in order to restore the integrity of our democratic system.

Bush might be able to get away with onesy/twosy violations, but if it started becoming systematic, he'd find himself unpopular very quickly, especially if a couple of prisoners end up being totally innocent.

Other presidents like FDR certainly took liberties with interring U.S. citizens he didn't like, but I would hardly call imprisoning Japanese-American citizens more normalized today. All it takes is a leader going overboard to swing the pendulum the other way.

[Vorticity]

Originally posted by Luke T.

I guess the Civil War doesn't count as a precedent. Or were the rebels not considered U.S. citizens?
Interesting point. What was the status of captured Confederates? If citizens, then could they legally be held as enemy combatants (was that term used then?). If not citizens, then the whole purpose of the Civil War is rendered moot!

Of course, just because there's a precedent doesn't necessarily mean it's law. The Court can, and has, frequently changed it's mind.

[hgc]

Originally posted by Vorticity
...

Yeah, there's that.
Correct me if I'm wrong*, though, but in this instance the guy is being held in a naval brig. Wouldn't the prez, as Commander-in-Chief of the armed forces have the sole authority to enforce this Court ruling? Do military tribunals fall under the authority of the Attorney General? Would GWB's cabinet necessarily have to enter into the equation at all, as they did in the Nixon situation?

*which I very well may be; I'm no lawyer. Well, I'm no lawyer either, but they're way overrated anyway when it comes to legal opinions. :p

This is an interesting question. Bush is undeniably the boss when it comes to civil beauracracy (ie., Justice Dept) and the DOD. But who will be called by the court to account directly if the order is not followed (to release the prisoner from the brig)? Will it be Rumsfeld? A general or base commander? Bush? I have no idea. Ultimately, though, impeachment is a political process, and Bush would be held accountable in the political arena.

I don't think military tribunals fall under the Justice Dept. The cabinet as a whole has no official part of the process (but for Rumsfeld as Sec. of Def., Ashcroft as Attorney General).

[Vorticity]

Originally posted by Furious
While I think there are some minor holes in the checks and balances system and Bush could theoretically not enforce the order, there is another "check".

We thankfully have freedom of information, so if Bush were to disobey the court order, if enough people got riled up about it, he wouldn't be president beyond this term.

If this sort of thing started to become normalized, you'd most likely have a LOT of people that would put aside their political differences in order to restore the integrity of our democratic system.

Bush might be able to get away with onesy/twosy violations, but if it started becoming systematic, he'd find himself unpopular very quickly, especially if a couple of prisoners end up being totally innocent.
I hope that the above is all true, and that "voter apathy" wouldn't allow such (hypothetical) violations to go unpunished.

[epepke]

Originally posted by Vorticity
You know, I heard that on the radio this morning and I got to thinking:

The court order says Bush must release this guy within 30 days, for a civilian trial.

What happens if he doesn't?

He could be impeached by the normal process and charged with treason, which carries the death penalty. It would take a long time, but it could happen.

[Furious]

Interesting point. What was the status of captured Confederates? If citizens, then could they legally be held as enemy combatants (was that term used then?). If not citizens, then the whole purpose of the Civil War is rendered moot!

It appears they were considered to be simple criminals committing treason:

http://www.altonweb.com/history/civilwar/confed/

That site doesn't describe the confederate POWs in direct legal terms, but does mention they were jailed for treasonous acts and "classified as bushwhackers or guerillas, were imprisoned for acts against the government such as bridge burning and railroad vandalism."

So it appears the Union still considered them US citizens, but jailed them for being misguided. :D

[Vorticity]

Originally posted by epepke
He could be impeached by the normal process and charged with treason, which carries the death penalty. It would take a long time, but it could happen.
Now, I doubt it would be called "treason". It certainly wouldn't constitute an attempt to overthrow the government or anything like that.
After all, people are charged with violating a court order all the time without being found treasonous.

[Vorticity]

By the way, some possibly relevant excerpts from the article in the opening post:
...The U.S. government could ask for a stay of the order or ask the full panel of the appeals court to hear the case...
...Some legal analysts have said the Padilla case may eventually head to the Supreme Court. The government has maintained that Bush's military moves in the war on terrorism were not subject to judicial review...
Three guesses what happens next.

[TillEulenspiegel]

O jeeze this is unbelievable.
Pres. Bush is no more a jailer of this man then he was in the squad that wrestled Saddam's inpentrable Styrofoam brick from the ground and captured him.
He ( well not him , he's not bright enough ) is the architect of the policies that resulted in both actions no less , no more.

The people directly responsible for capturing Saddam was some kid from podunk, Iowa, and freezyerass Minnisota not G.Bush.

The people directly responsible for jailing ( as a matter of legal advice to the Prez. )and ignoring the court order is AG John "speaks to snakes" Ashcroft as AG he must accept or appeal the order and if it is upheld, must serve the commandant of the holding facility with a Writ of Habius Corpus ,if Ashcroft refuses he can be removed from station ( YES!YES!,PLEASE!) if the commandant refuses he can be arrested and it gets kicked upstairs from there if anyone feels like arguing. Anyone remember the Satarday night massacre under Nixon? If it goes too far then the Pres. can be held in criminal contempt. Dubya will never let it go that far.. ( Altho the Veep is still playing coy n shy with the SCOTUS in re the party list of the energy policy gangbang )

Now the holding facility is a naval base, but at least it's on American soil ( you think they put those people at gitmo for nothing do ya ;-) )

Latest quote from Bush, Uberlord of freedom " The unlawful combatants ( at Gitmo ) can be held without charges for an indefinite time"

[swellman]

Originally posted by Vorticity
The court order says Bush must release this guy within 30 days, for a civilian trial.

What happens if he doesn't?

I mean, the court itself has no real ability to enforce this ruling. What are they going to do, send a team of armed prosecutors to raid the naval brig and get the guy out? No. What could the court do? They can't impeach the president, that's up to the legislature. They can't arrest the president, he's immune to arrest unless impeached.

Would it be a major constitutional crisis if the executive branch refused to obey the lawful order of the judicial branch (after all appeals have run out, I mean)? Has that ever happened before? What would that mean for the future legitimacy of the constitution?

Lincoln did that by suspending Habeas Corpus during the civil war. He ignored a SCOTUS decision that this act was illeagal and refused to comply with orders from SCOTUS on the matter.

[Vorticity]

Originally posted by TillEulenspiegel
Pres. Bush is no more a jailer of this man then

... snip...

The people directly responsible for jailing ( as a matter of legal advice to the Prez. )and ignoring the court order is AG John "speaks to snakes" Ashcroft as AG he must accept or appeal the order
... snip...
Now, the above statements are false as far as I can tell. From the following link

http://www.defenselink.mil/news/Jun2002/t06102002_t0610dsd.html

we have the following quote from Deputy Secretary of Defense Paul Wolfowitz:

"Yesterday, at the direction of the president, the Department of Justice transferred control of Jose Padilla, who is a U.S. citizen, to the Department of Defense. As of today, he will be held at the Naval Consolidated Brig in Charleston, South Carolina."

...snip...

"Under the laws of war, Padilla's activities and his association with al Qaeda make him an enemy combatant. For this reason, Jose Padilla has been turned over to the Department of Defense."

Thus, he is under the control of the Department of Defense, which has as its head Donald Rumsfeld.

But, GWB is commander-in-chief, so he controls the DoD, right? :confused:

[aerocontrols]

Originally posted by Vorticity
Thus, he is under the control of the Department of Defense, which has as its head Donald Rumsfeld.

But, GWB is commander-in-chief, so he controls the DoD, right? :confused:

What's to be confused about? You are correct that TillEulenspiegel is wrong about who is responsible for Padilla at this point.

Ashcroft has nothing to do with this decision except in that he acts as the Government's lawyer. The prisoner is not in his custody, he is in DoD custody.

In either case, whether Rumsfeld (yes) or Ashcroft (no) has custody, Bush is ultimately responsible.

MattJ

[TillEulenspiegel]

Originally posted by TillEulenspiegel
Pres. Bush is no more a jailer of this man then

... snip...

The people directly responsible for jailing ( as a matter of legal advice to the Prez. )and ignoring the court order is AG John "speaks to snakes" Ashcroft as AG he must accept or appeal the order
... snip...

Quote "Now, the above statements are false as far as I can tell.
See post for links


we have the following quote from Deputy Secretary of Defense Paul Wolfowitz:
quote:

"Yesterday, at the direction of the president, the Department of Justice transferred control of Jose Padilla, who is a U.S. Citizen, to the Department of Defense. As of today, he will be held at the Naval Consolidated Brig in Charleston, South Carolina."
Endquote

I'm speaking as a matter of law. No court has decided that his being held at a navel brig is de facto unlawful. The order as it stands at this time is lawful. That Bush and co. are trying to circumvent the law is a given, that is why I raised the Gitmo scheam.He and his administration are extremely dangerous to the ideas and ideals of freedom. Informed people from BOTH sides of the political spectrum are up in arms about the usurpation of these constitutional freedoms driven by presidential fiat.

Real conservatives are as adamant about the freedoms we enjoy as citizens as any other group. The rest of the folks who enjoy a readers digest understanding of the Constitution and condemn any objection of these attempts of George II to be king ( which as with the other side of the coin enjoys a truly disappointing portion of the American people.) with thier follow the leader blank minds will not be convinced. Well if they consider themselves real conservatives go read the writing of real conservatives intellectual's like Goerge Will or W.F.Buckely

Quote
"...snip...

"Under the laws of war, Padilla's activities and his association with al Qaeda make him an enemy combatant. For this reason, Jose Padilla has been turned over to the Department of Defense."
End quote

The opinion is based on someone's interpretation of the law. It should be AG Ashcroft if it is , then the advice is wrong ( as the court agrees) and Ashcroft as the highest law officer in the country MUST enforce the courts finding or appeal it. That explanation is a sound bite for those of weak mind and not any argument that will stand in court.

Quote
"Thus, he is under the control of the Department of Defense, which has as its head Donald Rumsfeld.

But, GWB is commander-in-chief, so he controls the DoD, right? "
End quote

Yes, but as with other branches of government all must ultimately be accountable to the law and it's application, and as with all other branches of government you address the issue of accountability at that level it is executed.

If the commandant is served with the Writ and fails to produce the prisoner , he may be arrested or prosecuted under civil law ( see O.North ) He may ALSO be charged under under the Uniform Military Code of conduct with obeying an unlawful order...Dammed if ya do damned if ya don't.

The idea is basic Bush is trying to smear the jurisdictional grasp of the case while invoking the seperation of powers ( to further confuse the issue and give him time) People here , as elsewhere are confused because that is the intent ( which proves my former statment that the policy was not designed by Bush , he's not smart enough )

Bottom line is Bush and Co. are operating under some delusion of monarchy, and we are a constitutional republic.

[whitefork]

Originally posted by Vorticity

Interesting point. What was the status of captured Confederates? If citizens, then could they legally be held as enemy combatants (was that term used then?). If not citizens, then the whole purpose of the Civil War is rendered moot!

Of course, just because there's a precedent doesn't necessarily mean it's law. The Court can, and has, frequently changed it's mind. Lincoln's suspension of Habeas Corpus nationwide from 1862 to 1866 (restored after his death, by the Supreme Court, I believe) was a precedent, but also illegal in the judgment of Chief Justice Roger B. Taney. Lincoln and the military ignored the ruling and there were no sanctions imposed.

Whether the suspension of Habeas Corpus was justified is a different question. And then the deeper matter as to whether an illegal act serve as a legal precedent.

[Ed]

Originally posted by TillEulenspiegel
Originally posted by TillEulenspiegel

The opinion is based on someone's interpretation of the law. It should be AG Ashcroft if it is , then the advice is wrong ( as the court agrees) and Ashcroft as the highest law officer in the country MUST enforce the courts finding or appeal it. That explanation is a sound bite for those of weak mind and not any argument that will stand in court.

.

Like the idiot with the ten commandments?

[Luke T.]

Originally posted by swellman


Lincoln did that by suspending Habeas Corpus during the civil war. He ignored a SCOTUS decision that this act was illeagal and refused to comply with orders from SCOTUS on the matter.

Section 9, Clause 2 of the U.S. Constitution.

"The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. "

[Tmy]

These hypos are just the reason why we have the 2nd amendment. One person with a gun could change the whole landscape.

Just think how different things couldve been if a lone gunman took out Saddam about a year ago.

[swellman]

Originally posted by Luke T.


Section 9, Clause 2 of the U.S. Constitution.

"The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. "

This is the Suspension Clause, and it was Lincoln's justification for his action. However, SCOTUS Chief Justice (while acting as a U.S. Circuit Court judge) claimed Lincoln's action was unconstitutional in Ex parte Merryman (http://www.civil-liberties.com/pages/suspension.htm). Lincoln and the military ignored his decision without sanction, though it should be noted that the matter never made it to the SCOTUS.

So, in answer to Vorticity's original question, yes there is precedent where the Executive branch ignored the Judicial. This is a famous case, but there are likely others.

[whitefork]

Good reference, there Luke.Originally posted by Luke T.


Section 9, Clause 2 of the U.S. Constitution.

"The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. " The passive voice is a wonderful thing. Note, too, that his is section 9 of Article 1 which defines the powers of the legislative branch, not the executive. I guess the question is whether the executive has the power to suspend Habeas Corpus under the constitution. Looks like it.

[TillEulenspiegel]

swellman: "So, in answer to Vorticity's original question, yes there is precedent where the Executive branch ignored the Judicial. This is a famous case, but there are likely others."

Yes there are precedents , Nixon was one, the current Veep is jockeying to be another.

Kullervo: "I guess the question is whether the executive has the power to suspend Habeas Corpus under the constitution. Looks like it."


Yes there is a provision , but thank god for a free press, TV ( as VS mail by horse) and a strong separate independent
Judicary ( more inclined today to take unpopular positions ) and an additional ~ 150Yrs of stable democracy where people are not afraid to assault the Kings castle.

edit to add : if the court order stands and SOCTUS refuses ( which they should ) to review, If Ashcroft dosn't exicute the writ he will be out on his ass faster then you can say Ex-Judge Moore and G.Bush will have a peck O' trouble.