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Procedural History of Jose Padillau0092s Petition for Writ of Habeas Corpus

Through the Courts, With Additional Cases

Jose Padilla was arrested upon his arrival at Chicagou0092s Ou0092Hara Airport. The arrest was based on a material witness warrant issued by the U.S. District Court for the Southern District of New York the same day. Padilla was removed to a federal detention center in New York State and filed a motion to dismiss the warrant in the New York district court. While the motion was pending a hearing, the Government secretly informed the judge that Padilla had been removed from jail in New York and dumped in a navy brig in South Carolina, thereby rendering the motion to dismiss moot. Padilla then petitioned the New York district court for a writ of habeas corpus which the court denied..


December 4, 2002:

Padilla v. Rusted U.S. District Court for the Southern District of New York. (233 F.Supp. 2d 564)




Does the President have the authority to detain an American citizen without trial, having designated him an u0093enemy combatant?u0094 The basis of the Presidentu0092s authority arises both from the Force Resolution (Congress passed), and from the constitutional authority as Commander-in-Chief.


u0093The Force Resolution is not called an `Act,u0092 but there is no difference between a bill and a resolution. Thus it should be regarded as an `Act of Congressu0092 for purposes of the Non-Detention Act.u0094


As the district court in New York was ruling on Padillau0092s writ, the Federal Government took Padilla to South Carolina and placed him in a Navy brig at Charleston. Padilla brought a petition for writ of habeas corpus in the New York district court.


Padilla appealed this ruling to the Court of Appeals. While that appeal was pending Padilla moved for an order allowing him access to a lawyer.


March 11, 2003:

Padilla v. Rumsfeld, U.S. District Court u00a0(243 F.Supp. 2d 42)


The government refuses to allow Padilla to have access to a lawyer. The Court rejects the governmentu0092s position.


Padilla wins in the Court of Appeal:

December 18, 2003:

Padilla v. Rumsfield, U.S. Court of Appeals for the Second Circuit

(352 F.3d 695)



u0093Where, as here, the Presidentu0092s power as Commander-in-Chief of the armed forces and the domestic rule of law intersect, we conclude that clear congressional authorization is required for detentions of American citizens on American soil because the Act of Congress, the u0093Non-Detention Actu0094 18 U.S.C. 4001(a), prohibits such detentions absent specific congressional authorization. Congressu0092s Authorization for Use of Military Force Joint Resolution is not such an authorization. In light of this express prohibition, the government must undertake to show that Padillau0092s detention can nonetheless be grounded in the Presidentu0092s inherent constitutional powers. (See Youngstown, Sheet & Tube Co. 343 U.S. 579, 637-38.)u0094


We conclude that the government has not made this showing, and we remand to the District Court with instructions to issue a writ of habeas corpus directing Secretary of Defense Rumsfeld to release Padilla from military custody, at which point the government can act within its legislatively conferred authority (i.e., indict Padilla under the criminal law and try the issue of his guilt by trial by jury.)


The u0093evidenceu0094 upon which the Presidentu0092s detention order was based is this:


u0093Michael H.Mobbs, a special advisor to the Undersecretary of Defense, who claims no direct knowledge of Padillau0092s actions or of the interrogations that produced the information discussed in his declaration, set forth the information the President received before he designated Padilla an `enemy combatant.u0092u0094


According to Mobbs, Padilla was closely associated with al Qaeda operatives, and became involved in a plot to explode a bomb in the United States. Upon instructions from his operatives he returned to the United States where he was arrested upon his arrival at Chicagou0092s Ou0092Hara airport.


(The case is here on certified questions asked us by the District Court after several hearings between Rumsfeld and Padilla.)


u0093The District Court concluded, and the government maintains here, that the indefinite detention of Padilla was a proper exercise of the Presidentu0092s power as Commander-in-chief. The power to detain Padilla is said to derive from the Presidentu0092s authority, settled in Ex Parte Quirin 317 U.S. 1 (1942), to detain enemy combatants in wartime (who are seized on American soil)".u00a0 The District Court found that the u0093Force Resolution (passed by Congress a week after 9/11) engages the Presidentu0092s full powers as Commander-in-Chief and acts as the necessary express authorization under the Non-Detention Actu0093.


The Youngstown Sheet & Tube Case


"Our review of the exercise of the Presidentu0092s war powers in the domestic sphere starts with the template the Supreme Court constructed in Youngstown Sheet (citing Justice Jacksonu0092s concurring opinion at pp. 635-38.) When the President acts without congressional authority he must rely upon his own u0093independent powers.u0094"


The Scope of the Presidentu0092s Inherent Power to Strip American Citizens

of Their Constitutional Rights

u0093The government contends that the President has the inherent power to detain Padilla pursuant to Art II, Section 2 of the Constitution, which makes him Commander-in-Chief, and that the exercise of these powers domestically does not require congressional authorization. Moreover, the argument goes, it was settled in Quirin that the militaryu0092s authority to detain enemy combatants in wartime applies to American citizens. The `laws of waru0092 hold, it is argued, that `lawful combatants are subject to capture and detention as prisoners of war and unlawful combatants (Padilla) are likewise subject to capture and detention, plus the latter category are subject to trial and punishment by military tribunals.u0092


u0093We agree that whether a state of armed conflict exists against an enemy to which the laws of war apply is a political question for the President, not the courts. (citing Johnson v. Eisentrager 339 U.S. 763, 789 (1950).u0094


u0093However, it is a different proposition entirely to argue the President even in times of grave national security threats or war, whether declared or undeclared, can lay claim to any of the powers, express or implied, allocated to Congress. Where the exercise of Commander-in-Chief powers, no matter how well intentioned, is challenged on the ground that it collides with the powers assigned by the Constitution to Congress, a fundamental role exists for the courts. (citing Marbury v. Madison 5 U.S. 1 (1803).u0094


u0093To be sure, when Congress and the President act together in the conduct of war, `it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.u0092 (citing Hirbayashi v. United States 320 U.S. 81, 93 (1943). But when the Executive acts, even in the conduct of war, in the face of apparent congressional disapproval, challenges to his authority must be examined and resolved by the Article III courts.u0094 (citing again Justice Jacksonu0092s concurring opinion in Youngstown)


u0093Thus, we do not concern ourselves with the Executiveu0092s inherent wartime power, generally, to detain enemy combatants on the battlefield. Rather, we are called on to decide whether the Constitution gives the President the power to detain an American citizen seized in this country until the war with al Qaeda end (i.e., forever).u0094


u0093The government contends that the Constitution authorizes the President to detain Padilla as an enemy combatant as an exercise of inherent executive authority. Padilla contends that, in the absence of express congressional authorization, the President has by his detention order engaged in `lawmakingu0092 which is entrusted by the Constitution to the Congress.u0094


We distinguish Quirin from this case, because there the Congress had acted to establish military tribunals which authorized the President to try the alleged American citizen as an enemy combatant in such tribunal where he was sentenced to death and executed. And, at the time of Qurin the Congress had not yet enacted the Non-Detention Act which prohibits the Executive detaining a person unless Congress has expressly enacted legislation that permits it.


During the Civil War the Congress authorized the President (in 1863) to suspend the writ of habeas corpus, but limited his power to detain indefinitely. In Ex Parte Milligan 71 U.S. 2 (1866) the Court concluded that u0093Congress could grant no power to authorize the military trial of a civilian in a state where the courts remained open (because such authority would strip the civilian of its rights under the 4th, 5th, and 6th amendments).u0094


u0093Thus, Quirin and Milligan are consistent with the principle that primary authority for imposing military jurisdiction over American citizens lies with Congress. Even though Quirin limits the broader holding ofu00a0 Milligan u00a0that citizens cannot be subjected to military jurisdiction while the courts continue to function, both cases teach that an Act of Congress is required to expand military jurisdiction.u0094 (Quirin adopted Chief Justice Chaseu0092s point of view.)

The New York Times
June 8, 1863

One Hundred and Fifty Years Later,
And We Get The Same Story

xPart 1
Read the full Article

Congressional Acts


u0093The Non-Detention Act provides, `No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.u0094


u0093The plain language of the Force Resolution contains nothing authorizing the detention of American citizens captured on United States soil, much less the clear express authorization required by the Non-Detention Act.u0094


Conclusion: Padilla is ordered released from military custody. He can be tried in criminal court or held as a material witness in connection with grand jury proceedings, but he cannot he imprisoned in a brig, without trial.


Padilla loses in the Supreme Court on procedural grounds

The Supreme Court reviews, and reverses the Court of Appeal on the ground that the court lacks jurisdiction because Padilla sued the wrong person, he should have sued the commanding officer of the brig he was spirited off to. The Justices indicate what their holding would have been had they reached the merits of the case as framed by the Court of Appealu0092s decision.




Rumsfeld v. Jose Padilla

(2004) 542 U.S. 426


C,.J. Rehnquist delivered the opinion of the court in which Ou0092Connor, Scalia, Kennedy, and Thomas joined.


Jose Padilla, an American citizen arrived on an airplane at Chicago and was arrested by federal officers under an arrest warrant issued by the federal district court in New York. Padilla moved to dismiss the warrant and the government made an exparte communication with the judge, informing the judge the government was dismissing the warrant and taking Padilla to the Navy brig in Charleson where he has remained incommunicado ever since.


The majority refused to reach the merits of the case, that is, was it lawful for the government to strip Padilla of his constitutional rights, deciding that, because the government had secretly dropped the warrant and spirited Padilla out of the lower courtu0092s jurisdiction, Padilla had brought his petition for writ of habeas corpus in the wrong court and therefore the Supreme Court had no jurisdiction to hear the case.


Justices Stevens, Ginsberg, Souter, and Breyer dissented from this.


u0093On Sunday, June 9, 2002, (before the hearing on Padillau0092s motion to dismiss could be heard) the President issued a written command to the Secretary of Defense: `Based on information available to me from all sources,u0094 [I] determine that Padilla is an enemy combatant, that is closely associated with al Qaeda. . . Accordingly you are directed to receive Mr. Padilla from the Department of Justice and detain him as an enemy combatant.u0092u0094


Thus, whereas Padillau0092s custody during the period between his arrest and June 9, was pursuant to a judicially authorized seizure, he has been held thereafter pursuant to a warrantless arrest.



u0093This case is singular not only because it calls into question decisions made by Secretary Rumsfeld himself, but also because those decisions have created a unique and unprecedented threat to the freedom of every American citizen.u0094 (461)


Note: Hardly u0093unprecedented;u0094 what Bush did to Padilla, Lincoln did to Merryman and Milligan, Roosvelt did to the Japanese-Americans of 1941..


u0093The Non-Detention Act 18 USC section 4001(a) prohibits, and the Authorization for Use of Military Force Joint Resolution, adopted on 9/18/01, does not authorize, the protracted, incommunicado detention of American citizens arrested in the United States.u0094


Rumsfeld is candid in saying that he is holding Padilla to extract what he knows.


Note: In point of fact, Padilla u0093knowsu0094 nothing. He is merely a petty criminal with a big mouth and some stupid acquaintances.


u0093At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the peopleu0092s rulers and their successors is the character of the restraints imposed on the Executive by the rule of law. Unconstrained executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber.u0094 (465)


u0093Executive detention of subversive citizens. . .may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure.u0094


u0093If this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.u0094


Note: This is the language of Justice David Davis, in Ex Parte Milligan (1866)


Padilla, now imprisoned in the Navy brig at Charleston South Carolina, begins again. He petitions the United States District Court for the District of South Carolina to issue a writ of habeas corpus. He wins.


February 28, 2005:

Padilla v. Rumsfeld (389 F.Supp. 2d 678)




u0093Quirin and Milligan stand for the proposition that the detention of a United States citizen by the military is disallowed without explicit congressional authorization.u0094


The government contends that the Force Resolution provides the necessary explicit congressional authorization.


u0093The Court finds this contention without merit.u0094


u0093We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the lawmakers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used. There is no language in the Force Resolution that clearly and unmistakably grants the President the authority to hold Padilla as an enemy combatant. Therefore, the governmentu0092s argument must fail.u0094


The Government argues:


The government argued that, u0093if there is any doubt about whether the Force Resolution encompasses Padilla, such doubt should be resolved in favor of the Presidentu0092s determination that Congress did in fact authorize Padillau0092s detention.u0094


The Court rejects this argument


u0093Certainly, the government does not intend to argue that, just because the President states that Padillau0092s detention is `consistent with the laws of the United States,u0092 that makes it so. Not only is such a statement in direction contravention to the well settled separation of powers doctrine, it is simply not the law. Moreover, such a statement is deeply troubling. If such a position were ever adopted by the courts, it would totally eviscerate the limits placed on Presidential authority to protect the citizenryu0092s individual liberties.u0094


Note: The District Court is speaking the language, here, of Justice Davis.


The Government argues:


The Government next argues that, regardless of the absence of express congressional authorization, the President has the inherent power to imprison Padilla without trial or representation by counsel. (This is Lincolnu0092s and Rooseveltu0092s position.)


The Court rejects this argument


The Government argues that, u0093The Presidentu0092s decision to imprison Padilla as an enemy combatant represents a basic exercise of his authority as Commander-in-Chief to determine the level of force needed to prosecute the conflict against al Qaeda.u0094


u0093The Court has not found any law that supports the contention that the President enjoys the inherent authority pursuant to which he claims he holds Padilla. As Justice Jackson stated (in his concurring opinion in Youngstown Sheet), `Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.. . There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute the President also Commander-in-Chief of the country, its industries and its inhabitants.u0092u0094


u0093Accordingly, the Court is of the firm opinion that it must reject the position of the government. To do otherwise would not only offend the rule of law and violate this countryu0092s constitutional tradition, but it would also be a betrayal of this Nationu0092s commitment to the separation of powers that safeguards our democratic values and individual liberties. Therefore the Court finds that the President has no power, neither express or implied, neither constitutional nor statutory, to hold Padilla as an enemy combatant.u0094


u0093Simply stated, this is a law enforcement matter, not a military matter. The civilian authorities captured Padilla just as they should have. At the time that Padilla was arrested pursuant to the material witness warrant, any alleged terrorist plans that he harbored were thwarted. From then on, he was available to be questioned, and was indeed questioned, just like any other citizen accused of criminal conduct. This is as it should be.u0094


The privilege of the writ of habeas corpus has not been suspended by Congress, and neither the President or this Court has the power to do so. Padilla must be released from military custody.

The Court of Appeals Reverses the Decision of the District Court

July 19, 2005:

Padilla v. Rumsfeldu00a0 The U.S. Court of Appeal for the Fourth Circuit. (423 F.3d 386)



u0093The question is whether the President possesses the authority to detain militarily a citizen of this country who is [(alleged to be) closely associated with al Qaeda, an entity with which the United States is at war. We conclude that the President does possess such authority pursuant to the Force Resolution.u0094


The Court of Appeal based its decision on the plurality opinion of the Supreme Court in Hamdi v. Rumsfeld (as u0093reinforced by Quirin) which found that the Force Resolution authorized the President to detain an American citizen alleged to have been captured on the battlefield of Afghanistan as a member of the Taliban.


u0093As the Force Resolution authorized Hamdiu0092s detention by the President, so also does it authorize Padillau0092s detention. . . Because, like Hamdi, Padilla is an enemy combatant (who found this fact? The President), and because his detention is no less necessary than was Hamdiu0092s in order to prevent his return to the battlefield (no evidence Padilla was ever on a u0093battlefieldu0094), the President is authorized by the Force Resolution to detain Padilla as a fundamental incident to the conduct of the war.u0094


Note: Out the window goes all that rhetoric about the u0093rule of lawu0094 and u0093this countryu0092s traditions.u0094


As the Supreme Court said in Hamdi, u0093it is of no moment that the Force Resolution does not use specific language of detention.u0094


u0093The Congress, in the Force Resolution, provided the President all powers necessary and appropriate to protect American citizens from terrorist acts by those who attacked the United States. As would be expected, and as the Supreme Court has held, those powers include power to detain identified and committed enemies such as Padilla, who (allegedly) associated with al Qaeda and the Taliban regime, who took up arms against this Nation in its war against these enemies, and who entered the United States for the avowed purpose of further prosecuting that war by attacking American citizens and targets on our own soil. . . The detention of Padilla being fully authorized by Act of Congress, the judgment of the district court that the detention of Padilla by the President is without support in law is hereby reversed.u0094


Note: Everything in the above paragraph which constitutes a statement of fact about Padillau0092s motives and actions is based on nothing more that the Presidentu0092s u0093belief.u0094 Recognizing this, the u00a0Court of Appeal remanded the case to the District Court to conduct a hearing on the issue of whether Padilla was, in fact, an u0093enemy combatant.u0094


But, then, something bizarre happens. While Padillau0092s petition for review was pending in the Supreme Court, the Government filed a petition with the Court of Appeals for authorization to transfer Padilla from military custody in the State of South Carolina to civilian law enforcement authority in the State of Florida, and sought to have the Court of Appeal withdraw its opinion of July 19, 2005, thereby rendering Padillau0092s petition for review in the Supreme Court, moot.

The Court of Appeal Responds to the Governmentu0092s Bizarre Request.


December 21, 2005:

Padilla v. Hanft (Brig Commander) Court of Appeals (432 F.3d 582)




u0093We believe that the transfer of Padilla and the withdrawal of our opinion at the governmentu0092s request while the Supreme Court is reviewing this Courtu0092s decision would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court.u0094


u0093The government has held Padilla militarily for three and a half years, steadfastly maintaining that it was imperative in the interest of national security that he be so held. However, a short time after our decision issued. . . the government determined that it was no longer necessary that Padilla be held militarily. Instead, it announced, Padilla would be transferred to the custody of federal civilian law enforcement and criminally prosecuted in Florida for alleged offenses considerably different from, and less serious than, those (alleged) acts for which the government had militarily detained Padilla.


Note: It doesnu0092t take the intellect of a Enstein to recognize that Bush and Rumsfeld knew they had no facts to support their u0093beliefu0094 that Padilla was, in fact, an u0093emeny combatant.u0094 They dangled him on their string as long as they could manipulate the judicial process and then, to avoid explaining themselves in a court hearing, they put Padilla back at square one.


u0093The government now takes the position that our opinion should be withdrawn entirely.u0094


u0093We should regard the intentional mooting by the government of a case of this import as an admission of attempted avoidance of review. The government cannot be seen as conducting litigation with the enormous implications of this litigationu0097litigation imbued with significant public interest (to say the least)u0097in such a way as to select by which forum it wishes to be bound.u0094


u0093The government could have come to believe that the information on which Padilla has been detained is in fact not true or, even if true, not sufficiently reliable to justify his continued military detention. . . u0093


Note: This is an awesome statement: The government could have come, after three years of imprisonment, to believe that the information on which it justified its exercise of military force against Padilla was not in fact true? This is what the criminal justice system, as codified in the 4th, 5th, and 6th amendments to the Constitution deals with on a daily basis. The government is playing games here, with a citizenu0092s constitutional rights, pure and simple, and getting away with it because the Judiciary at the top is a political institution in substance, if not form.


u0093No legitimate reasons (for the governmentu0092s conduct) is evident and the government has offered no explanation.u0094


u0093For four years, since 9/11, a centerpiece of the governmentu0092s war on terror has been the Presidentu0092s authority to detain militarily persons who have crossed our borders with the avowed purpose of attacking this country. . . The President himself acted upon the belief that he possessed such authority when he designated Padilla an enemy combatant and directed the Secretary of Defense to detain Padilla militarily. On an issue of such surpassing importance, we believe that the rule of law is best served by maintaining on appeal the status quo.u0094


u0093The governmentu0092s actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistakeu0097an impression we would have thought the government could ill afford to leave extant. . . And [this] impression has been left, we fear, at what may ultimately prove to be substantial cost to the governmentu0092s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective could be.u0094


The Government next attempted to convince the Supreme Court to allow Padilla to be transferred to civilian authorities, thus mooting Padillau0092s petition for review of the Court of Appealsu0092 decision. The Supreme Court denied the Governmentu0092s motion, but, ultimately, in April 2006, denied Padillau0092s petition.


April 3, 2006:

Padilla v. Hanft (547 U.S. 1062


The Supreme Court denies review with remarks


Padilla is a United States citizen. Acting pursuant to a material witness warrant issued by the United States District Court of the Southern District of New York, federal agents apprehended Padilla at Chicagou0092s Ou0092Hara airport. Padilla moved to vacate the warrant. While his motion was pending, and without notice to his attorney, President Bush issued an order to Donald Rumsfeld, the Secretary of Defense, to take Padilla into military custody, remove him from the jurisdiction of the district court and imprison him in a Navy brig in Charlestown. Padilla moved the district court in South Carolina for a writ of habeas corpus, challenging the lawfulness of his imprisonment. The District Court granted the petition, but the Court of Appeal reversed. After Padilla sought review in this Court, the government obtained an indictment charging him with various federal crimes. The Government filed a motion to allow Padilla to be turned over to civilian authorities and asked that the Court of Appeal withdraw its decision.u00a0 We deny review in the ordinary course of things.


Justice Ruth Bader Ginsburg dissents


u0093Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil, based on an executive declaration that the citizen was, at the time of his arrest, an `enemy combatant?u0092 It is a question the Court heard, and should have decided two years ago. Nothing the government has done purports to retract the assertion of executive power Padilla protests.u0094


u0093Although the government has now lodged charges against Padilla in a civilian court, nothing prevents the Executive returning to the road it earlier constructed and defended. A partyu0092s voluntary cessation does not make a case less capable of repetition or less evasive of review.u0094




Jose Padillau0092s journey through the federal courts as an ordinary criminal defendant

On August 18, 2006, Jose sought to get the district court to dismiss two of the three charges filed against him as redundant. Count II of the indictment alleged Padilla had violated two distinct statutes: One statute was a u0093general conspiracyu0094 statute, the other was a u0093specific conspiracyu0094 statute. The Court found that indeed Count II was u0093duplicitousu0094 but decided it would be sufficient to instruct the jury about the duplication issue and denied Padillau0092s motion to dismiss.


The district court dismissed Count I which charged various crimes u0093arising from [Padillau0092s] alleged participation in a `support cellu0092 with the aim of promoting violent jihad.u0094 The Court of Appeals, on January 30, 2007, reversed the district court and reinstated the count.


On January 22, 2007, Jose moved the district court to suppress all evidence seized from him on the day of his arrest, because the arrest warrant was based on information gained from two informants whom the government had tortured. The court denied the motion.

u0093In his motion to dismiss for outrageous government conduct, Mr. Padilla made specificand detailed allegations of the conditions of his confinement and the torture he endured. These allegations include isolation; sleep and sensory depravation; hoodings; stress positions; exposure to noxious fumes; exposure to temperature extremes; threats of imminent execution; assaults; the forced administration of mind-altering substances; denial of religious practices; manipulation of diet; and other forms of mistreatment. Despite these specific allegations, the government does not make any effort to deny or confirm that Mr. Padilla was subjected to the conditions he has alleged. If Mr. Padillau0092s allegations were false it would be a simple matter for the government to deny that Mr. Padilla was ever deprived of sleep or sensory stimuli, or assert that he was never assaulted or administered mind-altering substances against his will. The governmentu0092s silence on these issues speaks volumes of Mr. Padillau0092s allegations of torture. Mr. Padilla asserts that he was not treated humanely, but instead was tortured and that the governmentu0092s conduct was outrageous.u0094


On April 9, 2007, Jose moved the district court to dismiss the indictment, in its entirety, on the ground of the governmentu0092s u0093outrageous conductu0094 in holding him in a military prison and torturing him. The motion was denied.


On January 23, 2008, a jury of his peers, in a federal district courtroom in Miami, found Mr. Padilla guilty of conspiring to aid Islamic militants in Chechnya, Somalia, and elsewhere. Upon considering sentence, the trial judge said, u0093There is no evidence that these defendants personally maimed, kidnapped, or killed anyone.u0094 She sentenced Padilla to 17 years in prison, giving him creditu0097over the objection of the governmentu0097for time served in miliary detention.


Amazingly, perhaps extremely frightening to some Americans, the government had abandoned all claims that Padilla was a u0093terroristu0094 who u0093explored a plan to blow up apartment buildings in Chicago.u0094


What is truly cause for serious worry for the future of the country is the startling fact that the President of the United States seized an American citizen, stealing him from timely justice in the courts for crimes he may have committed, and locked him up in a military prison and threw away the key, with not even a wink and a nod at the citizenu0092s constitutional rightsu0097the right to an attorney, the right to confront witnesses, the right to jury trial, to name only three. And, on top of this, for three years while so imprisoned, the President held his captive incommunicado; from family and friends, caused him to be interrogated rentlessly by oppressive and, perhaps, violent means. Thenu0097the gall must rise in the throat of any reasonable Americanu0097after Padilla petitioned the Supreme Court for review of the decision of the Court of Appeal, that held he was at least entitled to some kind of fair hearing on the issue whether the President was right to label him an u0093enemy combatant,u0094 the President caused his legal officers to beg the courts to withdraw the Court of Appeal decision and let them take Padilla back to criminal court.


There can be only one fair and reasonable conclusion to draw from this record of conduct on the part of the President of the United States: That he knew no factual basis for his claimed u0093beliefu0094 that Jose Padilla was an u0093enemy combatantu0094 actually existed, and he knew that the very best he could expect from the United States Supreme Court was that it would uphold the Court of Appeals decision which would expose the true nature of his behavior to the world. Still, the Supreme Court, as urged by Justice Ginsburg, should have granted Padilla review of the court of appeal decision, to give some semblance to its claim it functions as a u0093checku0094 on unbridled executive power, but instead it avoided decision by denying review. The President got away with it.


Still, Jose Padilla, from his prison cell, does have one hand clinging to the Presidentu0092s coattails.


Jose Padilla filed a civil suit for damages, seeking one dollar, against the Presidentu0092s minion, one John Yoo, sometime professor of law, author, and leading member of the Presidentu0092s u0093war council,u0094 who designed and implemented the theory that the President can imprison indefinitelyu00a0 any American citizen, residing in America, who he believes poses a threat to the national security of the United States, without any judicial process..Dismissed February 17, 2011.


Dismissing a Lawsuit — and the Constitution

Written by Michael Tennant
Saturday, 19 February 2011 06:00  

On February 17, U.S. District Judge Richard Gergel, seated in Charleston, South Carolina, dismissed a lawsuit filed by Jose Padilla against Defense Secretary Robert Gates, former Defense Secretary Donald Rumsfeld, and other Bush administration officials for their participation in violating his constitutional rights.

Padilla was arrested in Chicago in 2002 and publicly accused of planning to build and detonate a radioactive “dirty bomb” by then-Attorney General John Ashcroft. Designated an “enemy combatant” by President George W. Bush despite the fact that he is a U.S. citizen and was arrested on U.S. soil long before he could have carried out his alleged plot, Padilla was whisked off to a military brig in South Carolina, where he was held incommunicado for two years and given only limited access to an attorney for the remaining 19 months he was imprisoned there. Padilla alleges, in great detail, that he was brutally tortured during his time in the brig: isolated from both other prisoners and the outside world, deprived of sleep and sunlight, put in stress positions for lengthy periods, forced to breathe noxious fumes, deceived and threatened by his interrogators, drugged, and generally treated in such a way as to destroy his physical and mental health.

Padilla was eventually permitted to seek relief in civilian courts, and his case made it all the way to the Supreme Court. The Bush administration, obviously fearing the court would rule in Padilla’s favor and throw out the whole policy of presidential “enemy combatant” designation, suddenly changed course. Having argued for the previous four years that it would be too dangerous to try Padilla in civilian courts, the administration decided it was time to do just that. He ended up being convicted not of the sensationalist charge of planning to detonate a dirty bomb but merely of “conspiracy to support Islamic terrorism overseas.” He was sentenced to 17 years in prison.

Now, seeking redress for the unconstitutional and inhumane treatment to which he was subjected, Padilla has been rebuffed by a federal judge who takes seriously the old jibe about the “just us” system.

Salon’s Glenn Greenwald weighed in on the ruling:
In dismissing Padilla’s lawsuit, the court’s opinion relied on the same now-depressingly-familiar weapons routinely used by our political class to immunize itself from judicial scrutiny: national security would be undermined by allowing Padilla to sue; “government officials could be distracted from their vital duties to attend depositions or respond to other discovery requests”; “a trial on the merits would be an international spectacle with Padilla, a convicted terrorist, summoning America’s present and former leaders to a federal courthouse to answer his charges”; the litigation would risk disclosure of vital state secrets; and “discovery procedures could be used by our enemies to obtain valuable intelligence.”

In other words, our political officials are Too Important, and engaged in far Too Weighty Matters in Keeping Us Safe, to subject them to the annoyance of the rule of law. It’s much more important to allow them to Fight The Terrorists without restraints than to bother them with claims that they broke the law and violated the rights guaranteed by the U.S. Constitution.... Executive Branch officials and the federal judiciary have conspired to ensure that the former are shielded from judicial scrutiny even for the most blatant and horrifying crimes.

Indeed, there is a bipartisan consensus that government officials should be able to get away with “the most blatant and horrifying crimes.” Richard Nixon, for example, was not threatened with impeachment over his bombing of Cambodia but over a comparatively minor burglary and cover-up. Bill Clinton, similarly, was tried for lying about a sexual relationship with an intern rather than for unleashing destruction upon the former Yugoslavia. And when it comes to the Bush administration’s policies of indefinite detention without charges, lack of due process of law, torture, and rendition to foreign countries for the purpose of torture, Bush’s successor has done very little to reverse these policies, instead defending them in court and refusing to investigate the crimes of his predecessor. Judge Gergel, by the way, was appointed to the bench by none other than Barack Obama.

Writing for National Review, Charles “Cully” Stimson of the Heritage Foundation hailed Gergel’s decision, calling it “a win for the United States” — by which he means the U.S. government, not the American people — “and a win for constitutional values.” Perhaps it is too much to ask of a man who took part in the Bush administration’s lawlessness (Stimson was Deputy Assistant Secretary of Defense for Detainee Affairs from 2006 to 2007), but Stimson really ought to pick up one of those “pocket Constitutions” that Heritage is always giving away before opining again about “constitutional values”; and Heritage might want to reconsider the company it keeps.

One need not be a constitutional scholar — these days, in fact, it might be an impediment — to see that the treatment afforded Padilla was blatantly unconstitutional. Article I, Section 9, for example, guarantees the writ of habeas corpus, which is to say it prohibits imprisonment without charges. The Fifth Amendment requires an accused person to be given due process of law before being “deprived of life, liberty, or property.” The Sixth Amendment mandates “a speedy and public trial” by jury and “the assistance of counsel” for persons accused of crimes. The Eighth Amendment forbids “cruel and unusual punishments.” Every one of these provisions was openly violated by the government in regard to Padilla. Gergel’s dismissal of Padilla’s lawsuit is, therefore, a win for the U.S. government, but it is a huge loss for constitutional values and, by extension, not just American citizens but anyone who comes into contact with the U.S. government anywhere in the world.

Ben Wizner of the American Civil Liberties Union, one of the attorneys representing Padilla, summed the situation up well: “The court today held that Donald Rumsfeld is above the law and Jose Padilla is beneath it. But if the law does not protect Jose Padilla, it protects none of us, and the executive branch can simply label citizens enemies of the state and strip them of all rights — including the absolute right not to be tortured. If Jose Padilla is not allowed his day in court, nothing will prevent future administrations from engaging in similar abuses.”

And yet again, the government pulls the same stunt and gets away with it.

u00a0Ali Saleh Kahlah Al-Marri, an alien, was lawfully residing in Peoria, Illinois, in 2003, when he was seized by the President and thrown in a military prison where he was held for four years. In 2007, as the result of the Supreme Courtu0092s decision in Hamdi v. Rumsfeld, Al-Marri, like Padilla, filed a petition in the District Court for the issuance of a writ of Habeas Corpus. The District Court denied the petition and Al-Marri appealed the decision to the Fourth Circuit Court of Appeals.


On June 11, 2007, u00a0the three judge panel of the Court of Appeal published its decision, reversing the district court and ordering Al-Marriu0092s release from military imprisonment. Al-Marri, of course, could be tried in criminal court for any offenses the government might prove he had committed.


The general rule, the Court said, is that u0093no manu0092s liberty be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal.u0094 There is an exception to this rule, the Court went on, applicable to Al-Marri. It is that Congress may constitutionally authorize the President to order military detention, without criminal process, of persons who qualify as enemy combatants.u0094 (Citing Hamd).

u0093If the government asserts this exception, it must proffer evidence to establish that the individual qualifies for this exceptional treatment. Only after the government has put forth credible evidence that an individual meets enemy combatant criteria does the onus shift to the individual to demonstrate that he falls outside the enemy combatant criteria., particularly when the sole process leading to his imprisonment is a determination by the Executive that the imprisonment is necessary.u0094


The writ of habeas corpus provides a remedy to challenge collaterally the legality of the ongoing imprisonment. Although the habeas remedy follows from the Suspension Clause in the Constitution, the Supreme Court in Hamdi borrowed the due process balancing approach from other cases, to design the specific requirements of this remedy in the context of the military imprisonment of persons accused of being enemy combatants.


In finding that the evidence the President offered did not support the finding Al-Marri was an u0093enemy combatant,u0094 the Court of Appeals said: Quirin, Hamdi and Padilla all emphasize that Milliganu0092s teachingu0097that our Constitution does not permit the Government to subject civilians within the United States to military jurisdictionu0097remains good law.u0094 Though Milligan was alleged to have been a dangerous character, willing and able to do bad acts against the Union forces in Indiana, he was not in fact an enemy combatant. He could be indicted, tried by jury, and convicted of crimes, but he could not be seized by military authorities and imprisoned without judicial process.


u0093Thus, although Hamdi, Quirin and Padilla distinguish Milligan, they recognize that its core holding remains the law of the land. That is, civilians within this country (even u0093dangerous enemiesu0094 like alleged Milligan, a u0093treasonous citizenu0094) may not be subjected to military control and deprived on constitutional rights.u0094


Note: Yet the history of these cases frankly demonstrates that, indeed, the President has been allowed by the Judiciary, repeatedly over the course of one hundred and fifty years, to subject American citizens to his military control and deprive them of their constitutional rights. Thus security trumps liberty.


u0093The core assumption underlying the Governmentu0092s position seems to be that persons lawfully in this country, lose their civilian status and become enemy combatants if they have allegedly engaged in criminal conduct on behalf of an organization seeking to harm the United States.u0094


u0093We recognize the understandable instincts of those who wish to treat domestic terrorists as `combatantsu0092 in a global war on terror. Allegations of criminal activity in association with a terrorist organization, however, do not permit the government to transform a citizen into an enemy combatant.u0094


u0093The President maintains that his war making powers include the authority to capture and detain individuals involved in hostilities against the United States. In other words, according to the Government, the President has inherent authority to subject persons legally residing in this county to military arrest and detention, without the benefit of any criminal process. This is a breathtaking claim, for the Government nowhere represents that this u0093inherentu0094 power to order indefinite military detention extends only to aliens, or only to those who `qualifyu0092 within the legal category of enemy combatants.u0094


u0093In light of Al-Marriu0092s due process rights under our Constitution and Congressu0092s express prohibition in the Patriot Act on the indefinite detention of those civilians arrested as `terrorist aliensu0092 within the country, we can only conclude that in the case at hand, the President claims power that far exceeds that granted him by the Constitution.u0094


Al-Marri won! Opps, Wait a Minute.


The full panel (u0093en bancu0094) of the Court of Appeals rehears the case and issues a u0093per curiamu0094 opinion.


On July 15, 2008, the full court published its per curiam decision (this means a decision without stating reasons, just stating the conclusion.) By a vote of 5 to 4, the majority said this is the law in the Fourth Circuit:


u0093If the Governmentu0092s allegations about Al-Marri are true, Congress has empowered the President to detain him as an enemy combatant.u0094 (In other words, an alien who actually aids a terrorist organization in some way, collecting money, laundering money etc, in the United States, the Fourth Circuit is willing to stick inside the legal category of u0093enemy combatantu0094 which then allows the President to lock him up in a military prison.


The per curiam opinion went on to state that Al-Marri had not received u0093sufficient process to challenge his detention as an enemy combatantu0094 and remanded the case to the district court to provide the process as defined by Hamdi..


The four dissenters had this to say, over 88 pages:


u0093Our colleagues hold that the President can order the military to seize from his home and indefinitely detain anyone in this countryu0097including an American citizenu0097even though he has never been affiliated with an enemy nation, fought alongside any nationu0092s armed forces, or borne arms against the United States anywhere in the world. . . .Finding scant legal support for their positions, our hardworking colleagues resort to inventing new definitions of enemy combatant.u0094


The Government won! Its position prevailed! Wait! Al-Marri petitioned the Supreme Court for review of this decision! Here is another opportunity for the Government to vindicate itself before the highest tribunal in the land.


Instead, obviously in the same boat he was with Padilla, the President sent his legal officers into the Supreme Court with an application to allow him to release Al-Marri from military detention and turn him back over to the civil authorities who were originally, four years earlier, prosecuting Al-Marri for money laundering. If the Supreme Court granted the application, it meant that the Opinion of the Fourth Circuit Court of Appeals would be vacated as the issue involved had become u0093moot.u0094 Clearly the President did not think his u0093beliefu0094 Al-Mari was an u0093enemy combatantu0094 would hold up in the open light of an American courtroom.


This is what our Supreme Court, led by Chief Justice John Roberts, did:



And so all of us American citizens are at risk and always will be at risk that the President of the United States might one day reach out for any one of us, lock us up in a military prison, and throw away the key, on the ground that he suspects us of being disloyal citizens, like President Lincoln thought Mr. Milligan was, in 1863, and President Roosevelt thought all Japanese-Americans were in 1941.


al-Marri was convicted of money laundering and sentenced to 8 years in federal prison


More Examples Of The Supreme Courtu0092s Failure To Support Liberty Over Security

Hamdi v. Donald H. Rumsfeld

542 U.S. 507 (2004)


A plurality of four justices were of the view that, even though the Congress had not in fact suspended the privilege of the writ of habeas corpus, President Bush could imprison a United States citizen, because the Congress, by resolution, had authorized the President to use military force against the Taliban in Afghanistan which necessarily included the right to detain u0093enemy combatantsu0094 But, to bridle the Presidentu0092s u0093inherentu0094 powers with at least some due processu00a0 the Supreme Court held that, nonetheless, Hamdi was entitled to a hearing over the issue whether he was in fact an u0093enemy combatant.u0094 In doing this, the plurality ignored the plain language of the Sixth Amendment and switched to burden of proof from the Government to Hamdi and severely limited his ability to prove he was not an enemy combatant.


Justice Sandra Day Ou0092Connor delivered the opinion announcing the judgment of the court in which Chief Justice Rehnquist, and Justices Kennedy and Breyer joined.




Yasar Hamdi was born in Louisiana in 1980. He moved, as a child, to Saudi Arabia with his parents. In 2001 he was seized by the Northern Alliance in Afganistan. The Northern Alliance turned him over to U.S. forces, claiming that he had been a Taliban fighter. The President ordered Hamdi imprisoned at Guantanamo Bay, Cuba, then, later, had him confined in a Navy brig in Charleston, South Carolina. During his confinement Hamdi was denied access to a lawyer. His father filed a petition with the Federal District Court seeking a writ of habeas corpus which would require the government to produce Hamdi in court and prove, under the rules of the criminal law, that it had a legal basis for holding Hamdi without trial.


The government responded to the writ application by presenting to the district court a declaration signed by a man named Mobbs who swore u0093Hamdi was affiliated with a Taliban unit and that the unit surrendered.u0094 The district court ordered the government to produce Hamdiu0092s actual statements and any notes taken during the interrogations that had occurred. The government appealed this ruling to the Fourth Circuit Court of Appeals which overturned the district courtu0092s order, holding that u0093no factual inquiry or evidentiary hearing allowing Hamdi to rebut the governmentu0092s contention was necessary.u0094 Concluding that Hamdi was held on the basis of the u0093Presidentu0092s war powers,u0094 the Court of Appeals ordered the habeas corpus petition dismissed. The Supreme Court vacated this judgment and remanded the matter to the district court for further proceedings.


The Pluralityu0092s Reasoning


u0093We agree that the Congress has in fact authorized Hamdiu0092s detention, through the resolution Congress passed after 9/11, authorizing the President to `use all necessary and appropriate force against those persons he determines planned, committed, or aided the terrorist attacks. . .u0092u0094


u0093Hamdi contends that his detention is forbidden by the Act of Congress (18 USC 4001(a).) which states `No citizen shall be imprisoned by the United States except pursuant to an Act of Congress.u0092 Because we find that the above referenced u0093resolutionu0094 is sufficient to constitute the requisite u0093Actu0094 of Congress, we reject Hamdiu0092s position.u0094 (paraphrased for lucidity)



How Does the Resolution u0093Authorizeu0094 Hamdiu0092s Summery Imprisonment?



u0093The resolution (AUMF) authorizes the President to use `all necessary and appropriate forceu0092 against `nations, organizations, or personsu0092 associated with the 9/11 terrorist attacks. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban are individuals Congress sought to target. We (the plurality) conclude that detention of individuals (in Hamdiu0092s alleged shoes) is accepted as an incident of war as to be an exercise of the `necessary and appropriate forceu0092 Congress authorized the President to useu0094


Note: Simple isnu0092t it? But what does this business about u0093accepted as an incident of waru0094 really mean? Whatever it means, it certainly appears to be the predicate for the pluralityu0092s conclusion, and what does this have to do with the fact that the Constitution plainly states the writ of habeas corpus shall not be suspended unless the Congress explicitly says so? The execution of the writ means that the government must prove the defendant has committed a crime, and the government ordinarily must prove this by reference to the rules of evidence and the burden of proof is on it, not the defendant who is ordinarily presumed to be innocent. Yet, the plurality, as will be seen, turns all of this on its head, simply by announcing its belief that Hamdiu0092s imprisonment is no big deal, simply an u0093exerciseu0094 of an accepted u0093incident of war.u0094


Hereu0092s How The Plurality Explains the Deal


Citing international rules dealing with persons held as prisoners of war (which the President was desperate to avoid calling Hamdi) the plurality seized upon the fact that u0093The purpose of detention (imprisonment) is to prevent captured individuals (Hamdi) from returning to the field of battle and taking up arms again. (Makes sense) u0093A prisoner of war is no convict; his imprisonment is a simple war measure.u0094


u0093Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. We take Hamdiu0092s objection to be the substantial prospect of perpetual detention.u0094 Too bad, the plurality says, the war in Afghanistan is still going on and may go on forever.


The Civil War Precedent of Ex Parte Mulligan


u0093Ex Parte Mulligan does not undermine our holding.u0094 That case was factually different in that Mulligan was not a prisoner of war, but a resident of Indiana at the time of his arrest and detention by military authority. Had Mulligan been captured with Confederate soldiers, he would have been in Hamdiu0092s shoes.


So What Legal Process Will the Court Allow Hamdi

u00a0to Prove He is Not a u0093Enemy Combatant?


u0093Our resolution of this requires an examination of both the writ of habeas corpus and the due process clause which dictates the procedure to be followed when the writ is issued.u0094


Both sides agree that Congress has not suspended the writ; thus Hamdi has a right to challenge his imprisonment. The government claims that its hearsay declaration, that Hamdi was a Taliban fighter captured on the battlefield, is sufficient, without more, to support the Presidentu0092s order of imprisonment of Hamdi. In other words, all that Hamdi is entitled to, in terms of due process, is a showing by the government that there is u0093some evidenceu0094 to support the Presidentu0092s determination Hamdi is an enemy combatant.


The plurality then proceeded to u0093balanceu0094 Hamdiu0092s rights under the Constitution against the Presidentu0092s war powers and Hamdi lost. The plurality then held that Hamdi was entitled u0093to receive notice of the factual basis for his classification, and a fair opportunity to rebut the Governmentu0092s factual assertions before a neutral decisionmaker (which could be a military officer).u0094


Just what does this mean for Hamdi? u0093The exigencies of the circumstances may demand that enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of [neverending] military conflict. Hearsay may need to be accepted as the most reliable evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Governmentu0092s hearsay evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided.u0094


There the Bill of Rights went, out the window!


Having Stripped Hamdi of his Ordinary Constitutional Rights, The Plurality

Pays Lip Service to Itself


u0093In so holding, we necessarily reject the Governmentu0092s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forego examination. . . is an approach which only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nationu0092s citizens.u0094 (Here the plurality cites one case, Youngstown Sheet & Tube, 343 U.S. at p. 587, a case that had nothing to do with the Presidentu0092s power to summarily imprison citizens of the United States during wartime)


u0093Likewise we have made clear that, unless Congress acts to suspend it, the Great Writ of Habeas Corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executiveu0092s discretion in the realm of imprisonments.u0094


Note: This is just rhetoric, not substantive law: A search of Supreme Court cases will turn up hardly any decision where the Court, in wartime, slapped the President down; in all times, from the Civil War onward, the Court has stood by while the President acted the role of tyrant. The reason: The Survival of the Nation Trumps All.

Justice Antoine Scalia, with Justice John Paul Stevens concurring, Dissented

u0093Petitioner Yaser Hamdi, a presumed American citizen, has been imprisoned without charge or hearing for more than two years, on the allegation that he is an enemy combatant who bore arms against his country for the Taliban. His father (standing in for him as he is held incommunicado) claims to the contrary, that he is an inexperienced aid worker caught in the wrong place at the wrong time. This case brings into conflict the competing demands of national security and our citizensu0092 constitutional right to personal liberty.u0094


u0093When the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Absent suspension of the Writ of Habeas Corpus, by Congress, the Presidentu0092s mere assertion of military exigency has not been thought sufficient to permit detention without charge.u0094


u0093The very core of the concept of liberty has been freedom from indefinite imprisonment as the will of the President. The gist of the due process clause, as understood by the Founders and since, was to force the Government to follow those common law procedures traditionally deemed necessary before depriving a person of life, liberty, or property. These procedures typically require indictment and trial. These due process rights have historically been vindicated by writ of habeas corpus.


u0093The text of the 1679 Habeas Corpus Act makes clear that indefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ. The Act specifically provided a remedy if they were not indicted and tried, but that remedy was not a bobtailed judicial inquiry into whether there were reasonable grounds to believe the prisoner had taken up arms against the King. Rather, if the prisoner was not indicted and tried, u0093he shall be discharged from his imprisonment.u0094 Writings from the founding generation also suggest that, without exception, the only constitutional alternatives are to charge the crime or suspend the writ.u0094


u0093President Lincoln, when he purported to suspend habeas corpus without congressional authorization during the Civil War, apparently did not doubt that suspension was required if the prisoner was to be held without criminal trial. In his famous message to Congress on July 4, 1861, he argued only that he could suspend the writ, not that even without suspension, his imprisonment of citizens without criminal trial was permitted.u0094


u0093Further evidence comes from this Courtu0092s decision in Ex Parte Mulligan. There the court said, `It can serve no useful purpose to inquire what the laws and usages of war are; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are in open operation.u0092u0094


u0093The Government justifies imprisonment of Hamdi on principles of the law of war and admits that, absent war, it would have no such authority. But if the law of war cannot be applied to citizens where courts are open, then Hamdiu0092s imprisonment without criminal trial is no less lawful than Mulliganu0092s trial by military tribunal.u0094


Thus criminal process was viewed as the primary meansu0097and the only means absent congressional action suspending the writu0097not only to punish traitors, but to incapacitate them.u0094 There is simply no exception to the right to trial by jury for citizens who could be called `belligerentsu0092 or u0091prisoners of war.u0092u0094


Justice Scaliau0092s Conclusion:


u0093It follows from what I have said that Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus.u0094


Note: The difference between Justice Scaliau0092s view and the pluralityu0092s, is that the plurality, while recognizing Hamdiu0092s right to a hearing, refused to recognize his right to being discharged unless the Government promptly brought criminal proceedings against him. Instead, the plurality allowed the President to hold Hamdi indefinitely without trial as long as he had u0093some evidenceu0094 Hamdi was in fact a u0093enemy combatantu0094 and Hamdi could not conclusively negate it.


In finishing his argument, Justice Scalia observed that there are u0093many who think it not only inevitable but entirely proper that liberty give way to security in times of national crisisu0097that, at the extremes of military exigency, the law must be silent. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.u0094


Justice Clarence Thomas Has His Own Idea


As far as Justice Thomas was concerned, the President has the sole authority to determine whether Hamdi was in fact an enemy combatant and lock him up without judicial oversight of his decision. This unbridled power, Thomas said, u0093falls squarely within the Governmentu0092s war powers.u0094 Indeed, Justice Thomas, unlike the plurality and Justice Scalia, is ready to go so far as to rule that the President u0093has inherent authority (this is what Lincoln claimed for himself) to detain those he considers arrayed against the government.u0094


Justice David Souter and Ruth Ginsberg Offer Their Ideas

u0093The Government contends that Hamdiu0092s incommunicado imprisonment as an enemy combatant seized on the field of battle falls within the Presidentu0092s power as Commander-in-Chief under the laws and usages of war, and is in any event authorized by two statutes. And that while Hamdi can challenge the assumption he is in fact an enemy combatant that challenge may go no further than to enquire whether `some evidenceu0092 supports Hamdiu0092s designation; if there is `some evidence,u0092 in other words, Hamdi should remain locked up at the discretion of the President.u0094


u0093The plurality, accepting the fact Hamdi is entitled to a habeas corpus hearing, nonetheless holds that Hamdiu0092s detention is authorized by an Act of Congress as required by section 4001(a), that is, by the Authorization for Use of Military Force resolution. At the same time the Government argues that, in detaining Hamdi, the President is acting as Commander-in-Chief under Article II of the Constitution, which brings with it the right to invoke authority under the accepted customary rules of waging war.The Government has not made a case on either theory.u0094


u0093The threshold issue is how broadly or narrowly to read the Non-Detention Act, the tone of which is severe: `No citizen shall be imprisoned by the United States except pursuant to an Act of Congress.u0092 Should the severity of the Act be relieved when the President is acting pursuant to congressional action (the Force Resolution) that falls short of explicit authority to imprison individuals? The answer must be no for a number of reasons.u0094


u0093First, the circumstances in which the Non-detention Act was adopted point the way to interpretation. Congress meant to preclude another episode like the one described in Korematsu v. United States 323 U.S. 214 (1944). The fact that Congress intended to guard against a repetition of the World War II internments when it gave us Section 4001(a) provides a powerful reason to think that 4001(a) was meant to require clear congressional authorization before any citizen can be placed in a cell.. . One must recall that the internments of the 1940s were accomplished by Executive action. Internment camps were creatures of the President, and confinement in them rested on his assertion of Executive authority. When Congress passed 4001(a) it intended to preclude reliance on vague congressional authority as authority for imprisonment at the discretion of the Executive.u0094


u0093Finally, even if history had spared us the example of the internments in World War II, even if there had been no Korematsu, there would be a compelling reason to read Section 4001(a) to demand manifest authority to detain. The defining character of American constitutional government is its constant tension between security and liberty, serving both by partial helpings of each. In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war is not well entrusted to the Executive Branch, whose particular responsibility is to maintain security. For reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nationu0092s entire reliance in striking a balance between the will to win and the cost in liberty on the way to victory. Hence the need for an assessment by Congress before citizens are subject to lockup.u0094


Under this interpretation of the meaning of Section 4001(a) none of the Governmentu0092s arguments suffices to justify Hamdiu0092s imprisonment.


There is the Governmentu0092s claim, accepted by the plurality, that the terms of the Force Resolution are adequate to authorize imprisonment of an enemy combatant. The focus of the Force Resolution is clear: it is on the use of military power. It is fairly read to authorize the use of armies and weapons. But it never so much as uses the word detention, and there is no reason to think Congress might have perceived any need to augment Executive power to deal with dangerous citizens within the United States, given the well stocked arsenal of defined criminal offenses a citizen sympatric to terrorists might commit.u0094


Because the Force Resolution authorizes the use of military force, the argument goes, it is reasonably clear that the military and its Commander-in Chief are authorized to deal with enemy belligerents according to the treaties and customs known collectively as the laws of war. Thus, the Government argues that Hamdenu0092s detention amounts to nothing more than customary detention of a captive taken on the field of battle. There is no need to address the merits of this argument in all possible circumstances. For now it is enough to recognize that the Governmentu0092s stated position is apparently at odds with its claim here to be acting in accordance with customary law of war and hence to be within the terms of the Force Resolution in its detention of Hamdi.u0094


u0093The Government says that `the Geneva Convention applies to the Taliban detainees.u0094 Hamdi therefore would seem to qualify for treatment as a prisoner of war under the Third Geneva Convention, to which the United States is a party. But, by holding him incommunicado, the Government obviously has not been treating him as a prisoner of war, and in fact the Government claims that no Taliban detainee is entitled to prisoner of war status. Thus there is reason to question whether the United States is acting in accordance with the laws of war it claims as authority to hold Hamdi. Accordingly, the Government has not made out its case that it is holding Hamdi under the authority of the Force Resolution.u0094


u0093Beyond this, it is instructive to remember that the President is not Commander-in-Chief of the country, only the military. Whether insisting on the careful scrutiny of emergency claims or on a vigorous reading of Section 4001(a), we are heirs to a tradition given voice 800 years ago by Magna Carta, which, on the baronsu0092 insistence, confined executive power by `the law of the land.u0092u0094


u0093Because I find Hamdiu0092s detention forbidden by Section 4001(a) and unauthorized by the Force Resolution, I would not reach any questions of what process he may be due in litigating the disputed issue of his status as an enemy combatant. For me it suffices that the Government has failed to justify holding him in the absence of either a further Act of Congress, or bringing criminal charges against him, or a showing that the detention conforms to the laws of war.u0094




In essence, the plurality (a majority only in the sense that five of the nine justices agreed on remanding the case for further hearing in the District Court, the five justices not agreeing on what should happen next) rejected the Presidentu0092s claim that he alone had the authority to decide whether Hamdi would be imprisoned without trial. They allowed the President to get through the hearing by showing u0093some evidenceu0094 that Hamdi was an enemy combatant and put the burden on Hamdi to rebut this evidence with something that conclusively negated it. For different reasons, Justices Scalia, Stevens, Souter and Ginsberg would have discharged Hamdi from the brig unless the Government brought criminal charges against him, which means thatu00a0 the Government would have the burden of showing, beyond a reasonable doubt, that Hamdi was in fact an enemy combatant.



The Supreme Court Injects a Little Due Process

Hamdan v. Rumsfeld

548 U.S. 557 (2006)




On September 11, 2001, Saudi Arabia nationals, agents of the al Qaeda terrorist organization hijacked commerical airplanes and crashed them into the World Trade Center Towers and the Pentagon.u00a0 Several days later, Congress adopted a u0093Joint Resolutionu0094 authorizing the President to u0093use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks.u0094 Acting pursuant to this u0093Force Resolutionu0094, the President determined that the Taliban in Afganistan had supported al Qaeda and ordered the United States Armed Forces to invade that country. Hamdan, a sometime chauffeur of Usama Bin Laden, was captured in Afganistan and taken to the military prison at Guantanamo Bay.


On November 13, 2001, the President issued an order intended to govern the detention and trial of such persons as Hamdan. The order vested in the Secretary of Defense the power to appoint military commissions to try persons subject to the order for their u0093participation in terrorist activities harmful to the United States.u0094 The Scretary of Defense delegated this power to John Altenburg, a retired army major general and military lawyer.


On July 3, 2003, the President announced his determination that Hamdan was subject to the order and thus triable by military commission. Altenburg thereafter ruled that Hamdan was not subject to the jurisdication of the Uniform Code of Military Justice and, hence, not entitled to any of its procedural protections such as a statement of charges, the right to confront witnesses, and a speedy trial by court martial. Hamdan petitioned the U.S. District Court for a writ of habeas corpus. The District Court granted the writ, but the Court of Appeal reversed. While Hamdanu0092s writ proceeding was pending in the courts, Altenburg, in July 2004, charged Hamdan with u0093conspiracy to commit offenses triable by military commission.u0094 There is no allegation that Hamdan had any command responsibility, played a leadership role, or participated in the planning of any terrorist activity, other than that he u0093acted as Usama bin Ladenu0092s bodyguard and personal driver.u0094 After this charge was filed, a u0093Combatant Status Review Tribunalu0094 decided that Hamdan was an u0093enemy combatant.u0094


Note: An u0093enemy combatantu0094 is defined as a person u0093who was part of the Taliban or al Qaeda forces.u0094

On November 4, 2004, the District Court granted Hamdanu0092s petition for habeas corpus. It concluded that the Presidentu0092s authority to establish military commissions extends only u0093to offenders triable by military commission under the law of war,u0094 that the law of war includes the Third Geneva Convention Rules regarding treatment of prisoners of war, and that the military commission was in violation of both the conventionr rules and the UCMJ because it had the power to convict based on evidence the accused would never see or hear. The Court of Appeal reversed, on the ground that the convention rules were not judicially enforceable. On November 7, 2005, the Supreme Court granted Hamdan review of the Court of Appeal decision, to decide whether the military commission had authority to try Hamdan and, if it did, whether the convention rules must be applied to the process.


In the course of these events, the Congress rushed to plug the gap in the Presidentu0092s authority to try Hamdan by military commission. It adopted the u0093Detainee Treatment Act of 2005.u0094 As soon as the Act passed the Presidentu0092s lawyers rushed to the Supreme Court with a motion to dismiss Hamdanu0092s appeal, on the ground that the Act stripped the Court of jurisdiction to hear the case (much in the fashion the Congress, in 1866, stripped the Court of jurisdiction to hear appeals from Southerners tried by military commission). The Court denied the Presidentu0092s motion to dismiss, refusing to apply the Act to u0093pending cases.u0094


Majority Opinion by Justice John Paul Stevens


The occasion for the military commission arises principally from the fact that the jurisdiction of the court martial proper, in our law, is restricted by statute almost exclusively to members of the military force and to certain specific offenses defined in the UCMJ. The military commission, a tribunal neither mentioned in the Constitution nor created by statute, was born of military necessity, foreshadowed by the tribunal convened to try British Major Andre for spying during the Revolutionary War.


u0093Exigency alone will not justify the use of penal tribunals not contemplated by Article I, section 8, and Article III, Section 1, of the Constitution unless some other part of the document authorizes it. And that authority, if it exists, can derive only from the powers granted jointly to the President and the Congress in time of war.u0094


u0093The Consitution makes the President the `Commander-in-Chiefu0092 of the Armed Forces, but vests in Congress the powers to `declare war and make Rules concerning captures on land and water.u0092


u0093Whether Chief Justice Chase (in Exparte Milligan) was correct in suggesting that the President may constitutionally convene military commissions `without the sanction of Congressu0092 in cases of `controlling necessityu0092 is a question that this Court has not answered definitively. And need not answer today. (and never will) For we held in Quirin (a 1944 involving German sabateurs) that Congress had, through Article of War 15 (a rule governing forces), sanctioned the use of military commissions in such circumstances. We have no occasion now to revisit Quirinu0092s controversial characterization of Article 15 as congressional authorization for military commissions. Contrary to the Presidentu0092s assertion, however, even Quirin did not view the authorization as a sweeping mandate for the President to `invoke military commisions when he deems it necessary.u0092u0094


Neither the UCMJ, or the Detention Act can be read to authorize the military commission impaneled to try Hamdan. Together they at most acknowledge a general Presidential authority to convene such commisions where justified under the u0093Constitution and the laws, including the law of war.u0094 Thus, the task before the Court is to decide whether Hamdanu0092s military commission is so justified.


The only possible form of military commission that might properly be authorized under the law of war, is the type of commission convened as an u0093incident of waru0094 when there is a need to u0093seize and subject to disciplinary measures those enemies who in their attempt to thwart our military effort have violated the law of war.u0094 (citing Quirin) u0093Not only is this type of commission limited to offenses cognizable during time of war, but its role is primarily a fact-finding one, to determine, typically on the battlefield itself, whether the defendant has violated the law of war. The last time the U.S. Armed Forces used the law of war type military commission was during WW II. In Quirin, this Court sanctioned President Roosveltu0092s use of such a tribunal to try Nazi sabateurs captured on American soil during the war. And in Yamashita, (another judicial atrocity) we held that a military commision had jurisdiction to try a Japanese commander for failing to prevent troops under his command from committing atrocities in the Philppines.u0094


u0093The charge against Hamdan alleged a conspiracy extending from 1996 to 2001. All but two months of this period occurred before September 11, 2001. Neither the purported agreement with bin Laden to commit war crimes, nor a single overt act, is alleged to have occurred after 9/11. None of the overt acts that Hamdan is alleged to have committed violates the law of war. These facts alone cast doubt on the legality of the charge and, hence, the commission.u0094 Furthermore, u0093the offense that is alleged is not triable by law of war military commission.u0094


u0093Conspiracyu0094 is not a war crime. It is not enough to intend to violate the law of war and commit overt acts in furtherance of that intention unless the overt acts either are themselves offenses against the law of war or constitute steps sufficientlyubstantial to qualify as an attempt. There can be no violation of the law of war, triable by military commission, without the actual commission of or attempt to commit u0093a hostile and warlike act.u0094 Because the charge against Hamdan does not support the commissionu0092s jurisdiction, the commission lacks authority to try Hamdan.u0094


u0093The chargeu0092s shortcomings are indicative of an inability on the Presidentu0092s part here to satisfy the most basic preconditionu0097namely military necessity. Hamdanu0092s tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from the actual hostilities. Hamdan is charged not with an overt act for which he was caught red-handed in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which predated 9/11. That may well be a crime, but it is not an offense that `by the law of war may be tried by military commission.u0092 These simply are not the circumstances in which, by any stretch of the historical evidence or this Courtu0092s precedents, a military commission established by Executive Order may lawfully try a person and subject him to punishment.u0094


Justice Stevens Turns to the Issue of the Commissionu0092s Procedures


Whether or not the government has charged Hamdan with an offense triable by military commission, the commision lacks power to proceed, because a law of war military commission must comply with the UCMJ itself, and with the rules and precepts of the law of nations inccluding the rules of the Geneva Conventions. The procedures that the President has decreed will govern Hamdanu0092s trial by commission violate these laws.


Hamdan, under the Governmentu0092s rules, does have access to counsel, and to a statement of the charges against him. However, the u0093accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding that either the major general or the presiding officer decides to `close.u0092u0094 Another striking feature of the rules of procedure is that they permit u0093the admission of any evidence that, in the opinion of the presiding officer, u0093would have probative value to a reasonable person.u0094 Under this test, not only is testimonial hearsay and evidence obtained through coercion fully admissible, but neither live testimony nor witnessesu0092 written statements need be sworn. Moreover, the accused and his counsel may be denied access to evidence in the form of u0093protected information.u0094


This kind of procedural circus was the case of the Japanese commander, Yamashjita, who in late 1944 was the commading general of the 14th Army Group of the Imperial Japanese Army, which exercised control over the Phillippine Islands. After the American forces captured the Phillippines, Yamashjita was arrested and charged with violating the law of war. On December 7, 1945, Yamashjita was found guilty, by a military commission, of allowing his troops (of which he had no actual control of) to commit atrocities. He was sentenced to death and hanged.


u0093We agree that the procedures adopted to try Hamdan deviate from those governing courts martial in ways not justified by any evident practical need.


Justice Breyer, joined by Ginsburg, Kennedy, and Souter, Concurs


u0093The Courtu0092s conclusion, here, ultimately rests upon a single ground: Congress has not issued the President a `blank check.u0092 Indeed, Congress has denied the President the legislative authority to creat military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary. Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nationu0092s ability to deal with danger.u0094


Dissent by Justices Scalia, Thomas and Alito, (C.J. Roberts did not participate)


These three justices believe that Congress, in the enactment of the Detainee Treatment Act, stripped the courts of jurisdiction to hear Hamdanu0092s appeal from the Court of Appeal ruling, denying his petition for the issuance of the writ of habeas corpus. In other words, the congressional act, as far as these three justices of the supreme court are concerned, effectively suspends the writ of habeas corpus as to Hamdan and any one like him.


u0093The Courtu00a0 (referring to the majority) hints ominously that `the Governmentu0092s preferred readingu0092 would `raise grave questions about Congressu0092 authority to impinge upon this Courtu0092s appellate jurisdiction, particularly in habeas cases.u0092 It is not clear how there could be any such lurking questions, in light of the aptly named Exceptions clause of Article III, Section 2, which, in making our appellate jurisdiction subject to `such excetions, and under such regulations as Congress shall make,u0092 explicitly permits exactly what Congress has done here.u0094 (The operative word, here in Scaliau0092s reasoning, is explicitly.


Note: Article III, Section 2 reads: u0093The Judicial power shall extend in all cases, arising under this Constitution, the laws of the United States, and treaties made; to controversies to which the United States may be a party; . . .In all cases affecting ambassadors, . . ., and those in which a State shall be party, the supreme court has original jurisdiction. In all the other cases, the supreme court shall have appellate jurisdiction, with such exceptions, and under such regulations as the Congress shall make.u0094 The Republican Party, in total control of the Congress in 1866, stripped the Supreme Court of jurisdiction to hear appeals from courts in the Southern States that challenged in any way the Partyu0092s military rule over them.


u0093The reason for the Courtu0092s `blinkered studyu0092 of this question is not hard to fathom. The principal opinion on the merits makes clear that it does not believe that the trials by military commission involve any `military necessityu0092 at all. This is quite at odds with the views on this subject expressed by our political branches. Because of `military necessity,u0092 a joint session of Congress authorized the President to use force against those he determines participated somehow in 9/11. It is not clear where the Court derives the authorityu0097or audacityu0097to contradict this determination. If `military necessityu0092 relating to `dutyu0092 requires this courtu0092s absention, military necessity relating to the deterrence and punishment of the mass-murdering terrorists of 9/11 require abstention all the more here.u0094


Note: Antoin and his pals are a bit scary here. Sure every American wants to see punishment meted out to the u0093mass-murdering terrorists of 9/11,u0094 but the emotionally charged phrase Scalia uses here is hardly applicable to the case at hand; one Mr. Hamdan, a u0093body guardu0094 and u0093driveru0094 for bin Laden, before 9/11, is charged with u0093conspiracyu0094 but there is no allegation of any overt act that he personally committed which constitutes his active helping of the u0093mass-murdering Saudi terroristsu0094 flying airplanes into the Twin Towers. The scary thing is that the side of the case Antoin and company come down on, is the side of the case the majority of the Court, since the Civil War, almost always comes down on. James Madisonu0092s warning bears emphasis: u0093The accumulation of all powers, legislative, executive, and judicial in the same hands may justly be pronounced the very definition of tyranny.u0094 (The Federalist No. 47 (J.Cooke ed. 1961).)


Justice Thomas, with whom Scalia joins, dissents


u0093As I explained in Hamdi, the structural advantages attendant to the Presidentu0097namely, the decisiveness, activity, secrecy, and dispatch that flow from the Presidentu0092s unity let the Founders to conclude that the `President has primary responsibility, along with the ncessary power, to protect the national security and to conduct the Nationu0092s foreign affairs.u0092 (Citation).u0094


u0093The Force Resolution represents the complete congressional sanction of the Presidentu0092s exercise of his commander-in-chief authority to conduct the present war. It is our duty to defer to the Presidentu0092s military and foreign policy judgment is at its zenith. It does not contenance the kind of second guessing the Court repeatedly engages in today.u0094 (In other words, as far as Justice Thomas is concerned, the President does, indeed, have a u0093blank check!u0094


u0093It is no surprise to see the majority go on to overrule one after another of the Presidentu0092s judgments pertaining to the conduct of an ongoing war.u0094


Note: Huh? The case is about trying Mr. Hamdan in the forum of a military commission where he can be convicted of u0093conspiracyu0094 on the basis of evidence and witnesses he never sees or hears.


What Happened to Hamdan


Salim Hamdan, a Yemeni citizen, was convicted, in August 2008, by a panel of six U.S. military officers of u0093providing material support (driving Usama) for terrorism, but acquited of u0093conspiracy.u0094 While Hamdan was convicted on five counts of providing material support for terrorism, the judge said the charges duplicated each other and ordered that Hamdan be sentenced only for one count, which he summarized as u0093driving Mr. bin Laden around Afghanistan.u0094 In October 2008, the presiding judge of the military commission that tried Hamdan, sentenced Hamdan to sixty-six months, but gave him credit for sixty months, the time he had been held in the military prison at Guantanamo Bay, Cuba. The Government moved the judge to reconsider the sentence, demanding that Hamdan be sentenced to life in prison. The judge refused, stating that the Government must release Hamdan in two months, or continue to hold him at Gitmo as an u0093enemy combatant.u0094 The Government first insisted that Hamdanu0092s status as an u0093enemy combatantu0094 was independent of any trial for his violation of the law of war, and vowed to hold him forever. But, then, eventually released him..


In a hearing held by the Senate Armed Services Committee, in July 2009, Senator Mel Martinez asked Pentagon General Counsel, Jeh Johnson, if terrorism detainees who had been acquitted by military commission would be released. Johnson replied that the Government would continue to detain the individual under the law of war. u0093If, for some reason, heu0092s not convicted for a lengthy prison sentence, then, as a matter of legal authority, I think,u0094 Johnson said, u0093itu0092s our view that we would have the ability to detain that person.u0094


Senator Martinez asked, u0093So prosecution is moot?u0094 Why bother bringing charges before a military commission, if the Government has the power to detain the defendant whether or not they are found guilty?


There are 225 u0093detaineesu0094 held at Guantanamo Bay today.



What Happened in World War II

Executive Order 9066

Februrary 19, 1942


u0093By virtue of the authority vested in me as President of the United States, and Commander-in-Chief of the Army and Navy, I hereby authorize and direct the Secretary of War. . to prescribe military areas in such places (in California) as he or the appropriate military commander may determine, from which any or all persons may be excluded.


The Secretary of War is hereby authorized to priovide for residents of any such area who are excluded therefrom, such transportation (to get them to their concentration camps) and food and shelter (when they get there) as may be necessary in his judgment.u0094


Franklin D. Roosevelt

The White House

February 19, 1942



Home  News 

News | More Science

Confirmed: The U.S. Census
Bureau Gave Up Names of
Japanese-Americans in WW II

Government documents show that the agency handed over names and addresses to the Secret Service



As with the Supreme Court in Lincolnu0092s time, so too with the Supreme Court in Rooseveltu0092s time; it put its toe in the waters only when the war was won.


Korematsu v. United States

(1944) 323 U.S. 214


Opinion of the Court Black, Frankfurter,


Korematsu was convicted in a federal court for remaining in San Leandro, California, a u0093military districtu0094 contrary to a military order issued by a army commander, in 1942. Under other similar orders Korematsu could not leave San Leandro, but was ordered to report to a u0093assembly centeru0094 where he would then have been transported to a concentration camp in Utah. The reason these orders applied to him was that, though born in the United States and, thus, was a United States citizen, he was of Japanese descent.


The majority upheld the exclusion order. u0093Hardships are a part of war.u0094


u0093Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic government institutions.u0094


Note: So exclusion of large groups of American citizens from their homes, in wartime is consistent with our basic government institutions? What does this ambigous phrase u0093government institutionsu0094 mean? Arenu0092t we talking about the Constititional rights of citizens? So the sentence should read: Exclusion of large groups of American citizens from their homes, during wartime, is consistent with their constitutional rights? It seems President Roosevelt (authorized by Congress?) did exactly what Chief Justice Chase was talking about in Milligan.


u0093When our shores are theatened by hostile forces, the power to protect must be commensurate with the threatened danger.u0094


Note: Doesnu0092t Al quaida u0093theaten our shoresu0094? In World War II there was no possibility that the Japanese Navy had the logistical ability to u0093threaten our shores.u0094 The closest land mass which could have supported the runup to an invasion of the West Coast was Hawaii, over 2,500 miles away. Compare the reality of this, to the fact that the Allies had Britain as their base to launch their invasion of France, in 1944.


Frankfurter concurs with Chase, in Milligan: u0093The validity of action under the war power must be judged wholly in the context of war. That action is not stigmatized as lawless because like action in times of peace would be lawless.u0094


Dissent by Roberts, Murphy, and Jackson


I think the indisputable facts exhibit a clear violation of Constitutional rights.


This is a case u0093of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyality toward the United States.u0094


u0093I need hardly labor the conclusion that Constitutional rights have been violated.u0094


Mr Justice Murphy


u0093Such exclusion goes over `the very brink of constitutional poweru0092 and falls into the ugly abyss of racism.u0094


u0093It is essential that there be definite limits to military discretion. . . Individuals must not be left improvished of their constitutional right on a plea of military necessity, that has neither substance nor support.u0094


u0093What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.u0094


Note: Not according to our Supreme Court in the days after 9/11


u0093The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so `immediate, imminent, and impendingu0092 as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger.u0094


u0093It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast. . . u0093 (This is myth.)


Justice Jackson


u0093When an area is so beset that it must be put under military control at all, the paramont consideration is that its measures be successful rather than legal. The armed services must protect society, not merely its Constitution. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. No court can require a commander in such circumstances to act as a reasonable man, he may be unreasonably cautious and exacting. Perhaps he should be. But such a commander is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, although they may be very bad as constitutional law.u0094


u0093But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. That is what the Court appears to be doing.u0094


u0093Even if the commandersu0092 orders are permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it.u0094


We have no choice but to accept the commanderu0092s own unsworn, self-serving statement, untested by cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.(This is Padilla, Hamdi, and Al Marri.)


u0093In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved.u0094


u0093Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military point of view.u0094


u0093A judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself.u0094


u0093The order is not apt to last longer than the military emergency. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.u0094


u0093The principle then lies like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.u0094


Cardozo described the situation as u0093the tendency of a principle to expand itself to the limt of its logic.u0094 (Nature of the Judicial Process at p. 51)


u0093A military commander may overstep the bounds of consitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.u0094


u0093Nothing better illustrates this danger than does the Courtu0092s opinion in this case.u0094


u0093I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.u0094


u0093The existence of military power resting on force, so necessariliy heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive.u0094


The Department of Justice Let The Government Lie



Department of Justice
Alien Enemy Control Unit

September 30, 1944


Re: Korematsu v. United States

I understand that the War Department is currently discussing with the Solicitor General the possibility of changing the footnote in the Korematsu brief in which it is stated that this Department is in possession of information in conflict with the statements made by General DeWitt relating to the causes of the evacuation. Mr. Burling and I feel most strongly that three purposes are to be served by keeping the footnote in its present form. (1) This Department has an ethical obligation to the Court to refrain from citing it as a source of which the Court may properly take judicial notice if the Department knows that important statements in the source are untrue and if it knows as to other statements that there is such contrariety of information that judicial notice is improper. (2) Since the War Department has published a history of the evacuation containing important misstatements of fact, including imputations and inferences that the inaction and timidity of this Department made the drastic action of evacuation necessary, this Department has an obligation, within its own competence, to set the record straight so that the true history may ultimately become known. (3) Although the report deals extensively with the activities of this Department and with the relationship of the War Department to this Department, the report was published without its being shown to us. In addition, when we learned of its existence, we were on one occasion advised that the report would never be published and, on another occasion when we asked that release be held up so that we could consider it, we were told that the report had already been released although in fact the report was not released until two weeks thereafter. In view of the War Department's course of conduct with respect to the report, we are not required to deal with the report very respectfully.

As to the propriety of taking judicial notice of the contents of the report, it will be sufficient to point out that (1) the report makes an important misstatement concerning our published alien enemy procedures; (2) the report makes statements concerning radio transmissions directly contradicted by a letter from the Federal Communications Commission, and (3) the report makes assertions concerning radio transmissions and ship-to-shore signaling directly contradicted by a memorandum from the Federal Bureau of Investigation.

The wilful historical inaccuracies of the report are objectionable for two different reasons. (1) The chief argument in the report as to the necessity for the evacuation is that the Department of Justice was slow in enforcing alien enemy control measures and that it would not take the necessary steps to prevent signaling whether by radio or by lights. It asserts that radio transmitters were located within general areas but this Department would not permit mass searches to find them. It asserts that signaling was observed in mixed occupancy dwellings which this Department would not permit to be entered. Thus, because this Department would not allow the reasonable and less drastic measures which General DeWitt wished, he was forced to evacuate the entire population. The argument is untrue both with respect to what this Department did and with respect to the radio transmissions and signaling, none of which existed, as General DeWitt at the time well knew. (2) The report asserts that the Japanese-Americans were engaged in extensive radio signaling and in shore-to-ship signaling. The general tenor of the report is not only to the effect that there was a reason to be apprehensive, but also to the effect that overt acts of treason were being committed. Since this is not so it is highly unfair to this racial minority that these lies, put out in an official publication, go uncorrected. This is the only opportunity which this Department has to correct them.

As to the relations of this Department to the report, the first that we knew of its existence was in April, 1942, when we requested Judge Advocate General Cramer to supply any published material in the War Department's possession on the military situation on the West Coast at the time of the evacuation to be used in the Hirabayashi brief in the Supreme Court. Colonel Watson, General DeWitt's Judge Advocate, stated that General DeWitt's report was being rushed off the press and would be available for consideration. I was then advised, however, that the printed report was confidential and I could not see it but I was given 40 pages torn out of the report on the understanding that I return them which, unfortunately, I have done. Because these excerpts misstated the facts as I knew them and misstated the relations between the Department of Justice and the War Department, I suggested to the Solicitor General that he might wish to discuss with the Attorney General the matter of the Attorney General taking up with the Secretary of War the question of showing us this report before it was released. Colonel Watson then advised me that Mr. McCloy was treating the report as a draft and my personal recollection is that Mr. McCloy stated in Mr. Biddle's presence that it was not intended to print this report. We did not hear about this report again until over six months later when I learned accidentally from Mr. Myer of WRA that he had a copy of the report which the War Department was going to publish. I borrowed his copy and then Mr. Burling called Captain Hall, Mr. McCloy's Assistant Executive Officer, and pointed out to him that the report undertook to discuss relations between the War and Justice Departments without giving us a chance to examine it and it was my understanding that Mr. McCloy did not intend to have the report released. Captain Hall admitted that Mr. McCloy had stated that the report was not to be issued but stated that he was sorry but the report had already been released and there was nothing that could be done. We accepted his statement as true and did not check on it until two weeks had passed without any publicity and then when the report was discussed in the newspapers we checked with the public relations office of the War Department and they advised that the report had just been released and had not been released at the time Captain Hall said it had.

It is also to be noted that parts of the report which, in April 1942 could not be shown to the Department of Justice in connection with the Hirabayashi case in the Supreme Court, were printed in the brief amici curiae of the States of California, Oregon and Washington. In fact the Western Defense Command evaded the statutory requirement that this Department represent the Government in this litigation by preparing the erroneous and intemperate brief which the States filed.

It is entirely clear that the War Department entered into an arrangement with the Western Defense Command to rewrite demonstrably erroneous items in the report by reducing to implication and inference what had been expressed less expertly by the Western Defense Command and then contrived to publish this report without the knowledge of this Department by the use of falsehood and evasion.

For your information I annex copies of (a) my memorandum of April 20, 1943 to the Solicitor General, (b) my memorandum of January 21, 1944 to the Solicitor General, (c) my memorandum of February 26, 1944 to the Attorney General, and (d) a transcript of Mr. Burling's conversation of January 7, 1944 with Captain Hall which clearly brings out the evasion and falsehood used in connection with the publication of the report.

I also annex copies of memoranda from the FBI and of an exchange of correspondence between the Attorney General and the Chairman of the Federal Communications Commission which establish clearly that the facts are not as General DeWitt states them in his report and also that General DeWitt knew them to be contrary to his report.

RECOMMENDATION: In view of the Attorney General's personal participation in, and final responsibility for, this Department's part in the broad administrative problem of treatment of the Japanese minority, I urge that he be consulted personally on this problem. Much more is involved than the wording of the footnote. The failure to deal adequately now with this Report cited to the Supreme Court either by the Government or other parties, will hopelessly undermine our administrative position in relation to this Japanese problem. We have proved unable to cope with the military authorities on their own ground in these matters. If we fail to act forthrightly on our own ground in the courts, the whole historical record of this matter will be as the military choose to state it. The Attorney General should not be deprived of the present, and perhaps only, chance to set the record straight.

/s/ Edward J. Ennis
Edward J. Ennis


The Justice Department deleted the footnote thereby hiding from the courts the truth, and Mr. Korematsu's conviction was thereby upheld.
Mr. Korematsu's 1942 conviction for refusing to go quietly to the camps was expunged and the Government gave him a metal, in 1983

LA Times May 2011


u0093If the people ever let command of the war power to fall into irresponsible and unscruplous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of the contemporaries and to the moral judgments of history.u0094 (Here Justice Jackson speaks as if he were Justice Davis in Milligan.)


(December 15, 2011)

What a pathetic state of political affairs we as a people are in: with hardly a peep from any of us, we passively sit mute in front of our television sets watching sitcoms, while the Congress—according to polls only nine percent of us respect—votes, in the House, 283 to 136 to suspend the Writ of Habeas Corpus, giving the President authority to have the military seize United States citizens and hold them, without access to lawyers or courts, indefinitely. Specifically the House of Representatives has voted to allow the President to use the military to take "custody of a suspect (United States citizen or no) deemed (arbitrarily by the President) to be a member of al-Qaida or its affiliates and hold him indefinitely. House and Senate "negotiators" added language that says nothing in the bill "will affect existing criminal enforcement regardless of whether such person is in military custody," but the president can waive the provision if he wishes.

Do you hear the founders groaning in their graves? You don't care, you say, it will never be you, the President's minions will never come for your mother, or father, sister, brother, wife, or children; it will be some strange dark person no one should care about. In Lincoln's time the "detainees" became in less than four years ten thousand! Governors and legislators of States, newpaper reporters and editors, and politicians and plain disgruntled citizens voicing their negative opinions. That will not happen now, you are assured—trust "The President" they sweetly tell you (Democrat and Republican politicians alike) with that sly phony smile they have. I say, Trust no one for your liberty. Trust the Constitution. But you don't care.


And there the matter stands, waiting for the next time, the next case, the next lot of judges to kowtow to the President as the Federal Governmentu0092s u0093war on terroru0094 proceeds ad infinitum






Joe Ryan

Ryan in his Prime

What Happened in April 1861

President Lincoln’s War Fleet

What If New York State Had Seceded

Comments and Questions to the Author

Joe Ryan

Joe Ryan Original Works


About the author:
Joe Ryan is a Los Angeles trial lawyer who has traveled the route of the Army of Northern Virginia, from Richmond to Gettysburg, several times.

Battle of Gettysburg
General Robert E. Lee
General JEB Stuart
General Jubal Early
Confederate Commanders
General Joseph Hooker
Union Generals
American Civil War Exhibits
State Battle Maps
Civil War Timeline
Women in the Civil War

Ny Times 1863

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