They'll hear it but will they listen

Justices to Hear Challenges to Post-9/11 Presidential Powers
By DAVID STOUT

WASHINGTON, April 28 — The Supreme Court is to hear arguments today in two cases of historic importance, involving the limits of presidential power and the balance between individual freedom and national security.

What the justices decide in Hamdi v. Rumsfeld and Rumsfeld v. Padilla will be of huge importance to President Bush and his top advisers. Perhaps more important, the court's rulings in this pair of cases could affect American presidents and American law for many decades.

The cases arise from the Bush administration's response to the terror attacks of Sept. 11, 2001. Part of that response has been the open-ended detention of people whom the administration has labeled "enemy combatants."

President Bush and his aides have argued that they are operating within the Constitution and, indeed, doing what they have to to fulfill their duty to protect the country. Those who disagree have argued that Mr. Bush and his aides are shredding the very Constitution they have sworn to uphold.

Posted by Prometheus 6 on April 28, 2004 - 9:30am :: News
 
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I'm guessing the Court will split the difference between the two, given that Hamdi was captured on a battlefield there are two strong precedents ( ex Parte quirin, Johnson v. Eisentrager) to keep him locked up in a brig while Padilla was picked up at O'Hare.

I can make a good case for treating Padilla the same ( assuming bona fide al qaida membership)way but I doubt the whole Court will go for that one.

Posted by  mark safranski (not verified) on April 28, 2004 - 6:01pm.

That's pretty much how it should work, in my opinion. If you're captured on a battlefield fighting against me, you're toast. The Padilla case is the one that has my attention.

Posted by  P6 (not verified) on April 29, 2004 - 11:40am.

Mine too. If Padilla took the oath and formally joined al Qaida then he's a combatant engaged in espionage/sabotage and should be in military custody. If he's just a freelance lowlife looking to establish himself in Islamist circles then he's a criminal and a courtroom is the proper place for him.

Since there's a question here a judicial hearing on the point of Padilla's affiliation with al Qaida is probably a due process requirement because Padilla was captured outside an active war zone ( as per Ex Parte Milligan) and the Nazi saboteurs executed during WWII ( Ex Parte Quirin) had a review of their tribunal sentences by the High Court. The Germans in Johnson v. Eisentrager had their claim for similar treatment rejected because they were captured overseas.

Posted by  mark safranski (not verified) on April 29, 2004 - 2:26pm.

There's definitely a difference between the two cases, but I prefer to give people due process rights than not. If the government's case is sound, then they can win a fair trial. If not, they shouldn't continue to hold him.

Posted by  Al-Muhajabah (not verified) on April 30, 2004 - 9:45am.