Home | About | Columnists | Blog | Subscribe | Donate
Jose Padilla and the Military Commissions Act
by Jacob G. Hornberger
by Jacob G. Hornberger
DIGG THIS
Anyone who hoped that U.S. military detention of Americans accused
of terrorism expired with the transfer of American citizen Jose Padilla from
military custody to Justice Department custody have seen their hopes dashed by
the Military Commissions Act that the president signed into law yesterday.
Although the act limits to foreign citizens the use of military tribunals and
the denial of habeas corpus, any person, including American citizens, can still
be labeled and treated as an "unlawful enemy combatant" in the war on
terrorism.
What does that mean for the American people? It means the same
thing it did for Jose Padilla. You'll recall that Padilla was arrested in
Chicago for terrorism and transferred to military custody, where, according to
Padilla, he was tortured and involuntarily injected with drugs.
The government's position is that since the entire world is a
battlefield in which the war on terrorism is being waged, U.S. officials now
have the power to arrest any American suspected of terrorism, place him in
military custody, and subject him to the same "unlawful enemy combatant"
treatment that Padilla received, until the war on terrorism has finally been
won, no matter how long that takes.
You'll recall that the government's position was that Padilla, as
an "unlawful enemy combatant" suspected of having committed terrorist acts, was
not entitled to the procedural rights guaranteed to criminal defendants in the
Bill of Rights, including the rights to counsel, due process, and trial by
jury.
The district court ruled in favor of Padilla at his habeas corpus
hearing, but the Second Circuit Court of Appeals reversed that decision,
upholding the government's "unlawful enemy combatant" argument for Padilla and,
by implication, all other Americans.
Before the Supreme Court could rule on Padilla's appeal from the
Second Circuit's decision, the government announced that it wished to transfer
him from military control to federal-court control on the basis of a grand jury
indictment charging him with terrorism. The Supreme Court permitted the
transfer and declined to hear Padilla's appeal because the case was now "moot,"
given that Padilla was no longer being held by the military but instead was
being held by the Justice Department as a criminal defendant. That left the
Second Circuit decision upholding the "unlawful enemy combatant" designation
intact.
Even if Padilla is acquitted in the federal-court action, there is
little doubt that the Pentagon will immediately take him back into military
custody as an "unlawful enemy combatant" in the war on terrorism, requiring
Padilla to once again embark, in a habeas corpus proceeding, on a long legal
journey to the Supreme Court.
Currently, under the Second Circuit's decision in Padilla, and now
also under the Military Commissions Act, the president has the power to order
the military arrest and incarcerate any number of Americans suspected of
terrorism. Americans would still have the right to file a petition for writ of
habeas corpus in federal court because the Military Commissions Act cancelled
that right only for foreigners, not Americans. Keep in mind, however, that a
habeas corpus hearing is not a full-blown trial to determine guilt or innocence
but is simply designed to determine whether the government has legal
justification for holding a prisoner. All the government would have to do at
the habeas corpus hearings is provide some evidence that the Americans it is
holding in military custody have engaged in some act of terrorism and then cite
the Second Circuit opinion and the Military Commissions Act in support of its
power to continue detaining them.
Of course, the cases would ultimately go to the Supreme Court, but
that would inevitably entail a lengthy delay, a period of time during which
lots of Americans could be tortured, abused, and even "accidentally" killed,
just as foreign "unlawful enemy combatants" in U.S. military custody have been.
Moreover, there is no guarantee that the Supreme Court will rule against the
government.
How does an American who is labeled an enemy combatant ultimately
get tried? Answer: he doesn't. Under the Military Commissions Act, trial by
military tribunal is limited to foreigners. So, even though Americans still
have the use of habeas corpus (so far) to test whether their detention is
lawful, if the Supreme Court ultimately upholds the "unlawful enemy combatant"
designation for people accused of terrorism, Americans will be returned to
indefinite military custody as "unlawful enemy combatants" if the government
has provided some evidence of terrorism at the habeas corpus hearing.
The irony is that while foreigners will be accorded the kangaroo
tribunal treatment, Americans accused of terrorism will continue to languish in
military prison indefinitely without the benefit of a trial. Of course, given
that the tribunals will have the power to impose the death penalty, Americans
might do well not to complain about their indefinite detention.
October 19, 2006
Jacob Hornberger [send him mail] is founder and president of The
Future of Freedom Foundation. He will be among the 22 speakers at FFF's
upcoming conference on June 1-4 in Reston, Virginia: "Restoring the
Constitution: Foreign Policy and Civil Liberties."
Copyright © 2006 Future of Freedom Foundation
Jacob Hornberger Archives
Back to LewRockwell.com Home Page
[Non-text portions of this message have been removed]
ForumWebSiteAt http://groups.yahoo.com/group/Libertarian
Yahoo! Groups Links
<*> To visit your group on the web, go to:
http://groups.yahoo.com/group/Libertarian/
<*> Your email settings:
Individual Email | Traditional
<*> To change settings online go to:
http://groups.yahoo.com/group/Libertarian/join
(Yahoo! ID required)
<*> To change settings via email:
mailto:[EMAIL PROTECTED]
mailto:[EMAIL PROTECTED]
<*> To unsubscribe from this group, send an email to:
[EMAIL PROTECTED]
<*> Your use of Yahoo! Groups is subject to:
http://docs.yahoo.com/info/terms/
