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Procedural History of Jose Padilla’s Petition for Writ of Habeas Corpus

Through the Courts, With Additional Cases


Jose Padilla was arrested upon his arrival at Chicago’s O’Hara 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 “enemy combatant?" The basis of the President’s authority arises both from the Force Resolution (Congress passed), and from the constitutional authority as Commander-in-Chief.


“The Force Resolution is not called an `Act,’ but there is no difference between a bill and a resolution. Thus it should be regarded as an `Act of Congress’ for purposes of the Non-Detention Act."


As the district court in New York was ruling on Padilla’s 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 (243 F.Supp. 2d 42)


The government refuses to allow Padilla to have access to a lawyer. The Court rejects the government’s 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)



“Where, as here, the President’s 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 “Non-Detention Act" 18 U.S.C. § 4001(a), prohibits such detentions absent specific congressional authorization. Congress’s 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 Padilla’s detention can nonetheless be grounded in the President’s inherent constitutional powers. (See Youngstown, Sheet & Tube Co. 343 U.S. 579, 637-38.)"


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 “evidence" upon which the President’s detention order was based is this:


“Michael H.Mobbs, a special advisor to the Undersecretary of Defense, who claims no direct knowledge of Padilla’s 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.’"


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 Chicago’s O’Hara airport.


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


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


The Youngstown Sheet & Tube Case


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


The Scope of the President’s Inherent Power to Strip American Citizens

of Their Constitutional Rights

“The 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 military’s authority to detain enemy combatants in wartime applies to American citizens. The `laws of war’ 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.’


“We 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)."


“However, 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)."


“To 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.’ (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." (citing again Justice Jackson’s concurring opinion in Youngstown)


“Thus, we do not concern ourselves with the Executive’s 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)."


“The 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 `lawmaking’ which is entrusted by the Constitution to the Congress."


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 “Congress 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)."


“Thus, 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 of Milligan that 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." (Quirin adopted Chief Justice Chase’s 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


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


“The 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."


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 Appeal’s decision.




Rumsfeld v. Jose Padilla

(2004) 542 U.S. 426


C,.J. Rehnquist delivered the opinion of the court in which O’Connor, 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 court’s 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.


“On Sunday, June 9, 2002, (before the hearing on Padilla’s 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," [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.’"


Thus, whereas Padilla’s 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.



“This 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." (461)


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


“The 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."


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


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


“At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people’s 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." (465)


“Executive 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."


“If 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."


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)




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


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


“The Court finds this contention without merit."


“We 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 government’s argument must fail."


The Government argues:


The government argued that, “if there is any doubt about whether the Force Resolution encompasses Padilla, such doubt should be resolved in favor of the President’s determination that Congress did in fact authorize Padilla’s detention."


The Court rejects this argument


“Certainly, the government does not intend to argue that, just because the President states that Padilla’s detention is `consistent with the laws of the United States,’ 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 citizenry’s individual liberties."


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 Lincoln’s and Roosevelt’s position.)


The Court rejects this argument


The Government argues that, “The President’s 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."


“The 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.’"


“Accordingly, 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 country’s constitutional tradition, but it would also be a betrayal of this Nation’s 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."


“Simply 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."


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



“The 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."


The Court of Appeal based its decision on the plurality opinion of the Supreme Court in Hamdi v. Rumsfeld (as “reinforced 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.


“As the Force Resolution authorized Hamdi’s detention by the President, so also does it authorize Padilla’s 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 Hamdi’s in order to prevent his return to the battlefield (no evidence Padilla was ever on a “battlefield"), the President is authorized by the Force Resolution to detain Padilla as a fundamental incident to the conduct of the war."


Note: Out the window goes all that rhetoric about the “rule of law" and “this country’s traditions."


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


“The 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."


Note: Everything in the above paragraph which constitutes a statement of fact about Padilla’s motives and actions is based on nothing more that the President’s “belief." Recognizing this, the Court of Appeal remanded the case to the District Court to conduct a hearing on the issue of whether Padilla was, in fact, an “enemy combatant."


But, then, something bizarre happens. While Padilla’s 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 Padilla’s petition for review in the Supreme Court, moot.


The Court of Appeal Responds to the Government’s Bizarre Request.


December 21, 2005:

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




“We believe that the transfer of Padilla and the withdrawal of our opinion at the government’s request while the Supreme Court is reviewing this Court’s 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."


“The 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 doesn’t take the intellect of a Enstein to recognize that Bush and Rumsfeld knew they had no facts to support their “belief" that Padilla was, in fact, an “emeny combatant." 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.


“The government now takes the position that our opinion should be withdrawn entirely."


“We 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 litigation—litigation imbued with significant public interest (to say the least)—in such a way as to select by which forum it wishes to be bound."


“The 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. . . “


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 citizen’s 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.


“No legitimate reasons (for the government’s conduct) is evident and the government has offered no explanation."


“For four years, since 9/11, a centerpiece of the government’s war on terror has been the President’s 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."


“The government’s actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake—an 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 government’s 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."


The Government next attempted to convince the Supreme Court to allow Padilla to be transferred to civilian authorities, thus mooting Padilla’s petition for review of the Court of Appeals’ decision. The Supreme Court denied the Government’s motion, but, ultimately, in April 2006, denied Padilla’s 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 Chicago’s O’Hara 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. We deny review in the ordinary course of things.


Justice Ruth Bader Ginsburg dissents


“Does 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?’ 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."


“Although 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 party’s voluntary cessation does not make a case less capable of repetition or less evasive of review."




Jose Padilla’s 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 “general conspiracy" statute, the other was a “specific conspiracy" statute. The Court found that indeed Count II was “duplicitous" but decided it would be sufficient to instruct the jury about the duplication issue and denied Padilla’s motion to dismiss.


The district court dismissed Count I which charged various crimes “arising from [Padilla’s] alleged participation in a `support cell’ with the aim of promoting violent jihad." 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.

“In 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. Padilla’s 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 government’s silence on these issues speaks volumes of Mr. Padilla’s allegations of torture. Mr. Padilla asserts that he was not treated humanely, but instead was tortured and that the government’s conduct was outrageous."


On April 9, 2007, Jose moved the district court to dismiss the indictment, in its entirety, on the ground of the government’s “outrageous conduct" 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, “There is no evidence that these defendants personally maimed, kidnapped, or killed anyone." She sentenced Padilla to 17 years in prison, giving him credit—over the objection of the government—for time served in miliary detention.


Amazingly, perhaps extremely frightening to some Americans, the government had abandoned all claims that Padilla was a “terrorist" who “explored a plan to blow up apartment buildings in Chicago."


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 citizen’s constitutional rights—the 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. Then—the gall must rise in the throat of any reasonable American—after 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 “enemy combatant," 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 “belief" that Jose Padilla was an “enemy combatant" 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 “check" 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 President’s coattails.


Jose Padilla filed a civil suit for damages, seeking one dollar, against the President’s minion, one John Yoo, sometime professor of law, author, and leading member of the President’s “war council," who designed and implemented the theory that the President can imprison indefinitely 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.

Ali 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 Court’s 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, the three judge panel of the Court of Appeal published its decision, reversing the district court and ordering Al-Marri’s 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 “no man’s liberty be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal." 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." (Citing Hamd).


“If 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."


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 “enemy combatant," the Court of Appeals said: Quirin, Hamdi and Padilla all emphasize that Milligan’s teaching—that our Constitution does not permit the Government to subject civilians within the United States to military jurisdiction—remains good law." 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.


“Thus, 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 “dangerous enemies" like alleged Milligan, a “treasonous citizen") may not be subjected to military control and deprived on constitutional rights."


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.


“The core assumption underlying the Government’s 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."


“We recognize the understandable instincts of those who wish to treat domestic terrorists as `combatants’ 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."


“The 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 “inherent" power to order indefinite military detention extends only to aliens, or only to those who `qualify’ within the legal category of enemy combatants."


“In light of Al-Marri’s due process rights under our Constitution and Congress’s express prohibition in the Patriot Act on the indefinite detention of those civilians arrested as `terrorist aliens’ 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."


Al-Marri won! Opps, Wait a Minute.


The full panel (“en banc") of the Court of Appeals rehears the case and issues a “per curiam" 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:


If the Government’s allegations about Al-Marri are true, Congress has empowered the President to detain him as an enemy combatant." (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 “enemy combatant" 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 “sufficient process to challenge his detention as an enemy combatant" 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:


“Our colleagues hold that the President can order the military to seize from his home and indefinitely detain anyone in this country—including an American citizen—even though he has never been affiliated with an enemy nation, fought alongside any nation’s 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."


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 “moot." Clearly the President did not think his “belief" Al-Mari was an “enemy combatant" 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 Court’s 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 “enemy combatants" But, to bridle the President’s “inherent" powers with at least some due process the Supreme Court held that, nonetheless, Hamdi was entitled to a hearing over the issue whether he was in fact an “enemy combatant." 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 O’Connor 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 “Hamdi was affiliated with a Taliban unit and that the unit surrendered." The district court ordered the government to produce Hamdi’s 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 court’s order, holding that “no factual inquiry or evidentiary hearing allowing Hamdi to rebut the government’s contention was necessary." Concluding that Hamdi was held on the basis of the “President’s war powers," 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 Plurality’s Reasoning


“We agree that the Congress has in fact authorized Hamdi’s 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. . .’"


“Hamdi 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.’ Because we find that the above referenced “resolution" is sufficient to constitute the requisite “Act" of Congress, we reject Hamdi’s position." (paraphrased for lucidity)




How Does the Resolution “Authorize" Hamdi’s Summery Imprisonment?



“The resolution (AUMF) authorizes the President to use `all necessary and appropriate force’ against `nations, organizations, or persons’ 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 Hamdi’s alleged shoes) is accepted as an incident of war as to be an exercise of the `necessary and appropriate force’ Congress authorized the President to use"


Note: Simple isn’t it? But what does this business about “accepted as an incident of war" really mean? Whatever it means, it certainly appears to be the predicate for the plurality’s 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 Hamdi’s imprisonment is no big deal, simply an “exercise" of an accepted “incident of war."


Here’s 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 “The purpose of detention (imprisonment) is to prevent captured individuals (Hamdi) from returning to the field of battle and taking up arms again. (Makes sense) “A prisoner of war is no convict; his imprisonment is a simple war measure."


“Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. We take Hamdi’s objection to be the substantial prospect of perpetual detention." 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


Ex Parte Mulligan does not undermine our holding." 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 Hamdi’s shoes.


So What Legal Process Will the Court Allow Hamdi

to Prove He is Not a “Enemy Combatant?


“Our 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."


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 President’s 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 “some evidence" to support the President’s determination Hamdi is an enemy combatant.


The plurality then proceeded to “balance" Hamdi’s rights under the Constitution against the President’s war powers and Hamdi lost. The plurality then held that Hamdi was entitled “to receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker (which could be a military officer)."


Just what does this mean for Hamdi? “The 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 Government’s hearsay evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided."


There the Bill of Rights went, out the window!


Having Stripped Hamdi of his Ordinary Constitutional Rights, The Plurality

Pays Lip Service to Itself


“In so holding, we necessarily reject the Government’s 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 Nation’s citizens." (Here the plurality cites one case, Youngstown Sheet & Tube, 343 U.S. at p. 587, a case that had nothing to do with the President’s power to summarily imprison citizens of the United States during wartime)


“Likewise 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 Executive’s discretion in the realm of imprisonments."


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

“Petitioner 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 citizens’ constitutional right to personal liberty."


“When 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 President’s mere assertion of military exigency has not been thought sufficient to permit detention without charge."


“The 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.


“The 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, “he shall be discharged from his imprisonment." Writings from the founding generation also suggest that, without exception, the only constitutional alternatives are to charge the crime or suspend the writ."


“President 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."


“Further evidence comes from this Court’s 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.’"


“The 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 Hamdi’s imprisonment without criminal trial is no less lawful than Mulligan’s trial by military tribunal."


Thus criminal process was viewed as the primary means—and the only means absent congressional action suspending the writ—not only to punish traitors, but to incapacitate them." There is simply no exception to the right to trial by jury for citizens who could be called `belligerents’ or ‘prisoners of war.’"


Justice Scalia’s Conclusion:


“It 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."


Note: The difference between Justice Scalia’s view and the plurality’s, is that the plurality, while recognizing Hamdi’s 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 “some evidence" Hamdi was in fact a “enemy combatant" and Hamdi could not conclusively negate it.


In finishing his argument, Justice Scalia observed that there are “many who think it not only inevitable but entirely proper that liberty give way to security in times of national crisis—that, 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."


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, “falls squarely within the Government’s war powers." Indeed, Justice Thomas, unlike the plurality and Justice Scalia, is ready to go so far as to rule that the President “has inherent authority (this is what Lincoln claimed for himself) to detain those he considers arrayed against the government."


Justice David Souter and Ruth Ginsberg Offer Their Ideas

“The Government contends that Hamdi’s incommunicado imprisonment as an enemy combatant seized on the field of battle falls within the President’s 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 evidence’ supports Hamdi’s designation; if there is `some evidence,’ in other words, Hamdi should remain locked up at the discretion of the President."


“The plurality, accepting the fact Hamdi is entitled to a habeas corpus hearing, nonetheless holds that Hamdi’s 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."


“The 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.’ 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."


“First, 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."


“Finally, 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 Nation’s 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."


Under this interpretation of the meaning of Section 4001(a) none of the Government’s arguments suffices to justify Hamdi’s imprisonment.


There is the Government’s 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."


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 Hamden’s 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 Government’s 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."


“The Government says that `the Geneva Convention applies to the Taliban detainees." 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."


“Beyond 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 barons’ insistence, confined executive power by `the law of the land.’"


“Because I find Hamdi’s 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."




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 President’s 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 “some evidence" 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 that 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. Several days later, Congress adopted a “Joint Resolution" authorizing the President to “use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks." Acting pursuant to this “Force Resolution", 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 “participation in terrorist activities harmful to the United States." 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 Hamdan’s writ proceeding was pending in the courts, Altenburg, in July 2004, charged Hamdan with “conspiracy to commit offenses triable by military commission." 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 “acted as Usama bin Laden’s bodyguard and personal driver." After this charge was filed, a “Combatant Status Review Tribunal" decided that Hamdan was an “enemy combatant."


Note: An “enemy combatant" is defined as a person “who was part of the Taliban or al Qaeda forces."


On November 4, 2004, the District Court granted Hamdan’s petition for habeas corpus. It concluded that the President’s authority to establish military commissions extends only “to offenders triable by military commission under the law of war," 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 President’s authority to try Hamdan by military commission. It adopted the “Detainee Treatment Act of 2005." As soon as the Act passed the President’s lawyers rushed to the Supreme Court with a motion to dismiss Hamdan’s 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 President’s motion to dismiss, refusing to apply the Act to “pending cases."


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.


“Exigency 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."


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


“Whether Chief Justice Chase (in Exparte Milligan) was correct in suggesting that the President may constitutionally convene military commissions `without the sanction of Congress’ in cases of `controlling necessity’ 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 Quirin’s controversial characterization of Article 15 as congressional authorization for military commissions. Contrary to the President’s 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.’"


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 “Constitution and the laws, including the law of war." Thus, the task before the Court is to decide whether Hamdan’s 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 “incident of war" when there is a need to “seize and subject to disciplinary measures those enemies who in their attempt to thwart our military effort have violated the law of war." (citing Quirin) “Not 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 Roosvelt’s 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."


“The 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." Furthermore, “the offense that is alleged is not triable by law of war military commission."


“Conspiracy" 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 “a hostile and warlike act." Because the charge against Hamdan does not support the commission’s jurisdiction, the commission lacks authority to try Hamdan."


“The charge’s shortcomings are indicative of an inability on the President’s part here to satisfy the most basic precondition—namely military necessity. Hamdan’s 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.’ These simply are not the circumstances in which, by any stretch of the historical evidence or this Court’s precedents, a military commission established by Executive Order may lawfully try a person and subject him to punishment."


Justice Stevens Turns to the Issue of the Commission’s 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 Hamdan’s trial by commission violate these laws.


Hamdan, under the Government’s rules, does have access to counsel, and to a statement of the charges against him. However, the “accused 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.’" Another striking feature of the rules of procedure is that they permit “the admission of any evidence that, in the opinion of the presiding officer, “would have probative value to a reasonable person." Under this test, not only is testimonial hearsay and evidence obtained through coercion fully admissible, but neither live testimony nor witnesses’ written statements need be sworn. Moreover, the accused and his counsel may be denied access to evidence in the form of “protected information."


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.


“We 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


“The Court’s conclusion, here, ultimately rests upon a single ground: Congress has not issued the President a `blank check.’ 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 Nation’s ability to deal with danger."


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 Hamdan’s 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.


“The Court (referring to the majority) hints ominously that `the Government’s preferred reading’ would `raise grave questions about Congress’ authority to impinge upon this Court’s appellate jurisdiction, particularly in habeas cases.’ 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,’ explicitly permits exactly what Congress has done here." (The operative word, here in Scalia’s reasoning, is explicitly.


Note: Article III, Section 2 reads: “The 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." 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 Party’s military rule over them.


“The reason for the Court’s `blinkered study’ 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 necessity’ at all. This is quite at odds with the views on this subject expressed by our political branches. Because of `military necessity,’ 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 authority—or audacity—to contradict this determination. If `military necessity’ relating to `duty’ requires this court’s absention, military necessity relating to the deterrence and punishment of the mass-murdering terrorists of 9/11 require abstention all the more here."


Note: Antoin and his pals are a bit scary here. Sure every American wants to see punishment meted out to the “mass-murdering terrorists of 9/11," but the emotionally charged phrase Scalia uses here is hardly applicable to the case at hand; one Mr. Hamdan, a “body guard" and “driver" for bin Laden, before 9/11, is charged with “conspiracy" but there is no allegation of any overt act that he personally committed which constitutes his active helping of the “mass-murdering Saudi terrorists" 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 Madison’s warning bears emphasis: “The accumulation of all powers, legislative, executive, and judicial in the same hands may justly be pronounced the very definition of tyranny." (The Federalist No. 47 (J.Cooke ed. 1961).)

Justice Thomas, with whom Scalia joins, dissents


“As I explained in Hamdi, the structural advantages attendant to the President—namely, the decisiveness, activity, secrecy, and dispatch that flow from the President’s 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 Nation’s foreign affairs.’ (Citation)."


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


“It is no surprise to see the majority go on to overrule one after another of the President’s judgments pertaining to the conduct of an ongoing war."


Note: Huh? The case is about trying Mr. Hamdan in the forum of a military commission where he can be convicted of “conspiracy" 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 “providing material support (driving Usama) for terrorism, but acquited of “conspiracy." 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 “driving Mr. bin Laden around Afghanistan." 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 “enemy combatant." The Government first insisted that Hamdan’s status as an “enemy combatant" 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. “If, for some reason, he’s not convicted for a lengthy prison sentence, then, as a matter of legal authority, I think," Johnson said, “it’s our view that we would have the ability to detain that person."


Senator Martinez asked, “So prosecution is moot?" 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 “detainees" held at Guantanamo Bay today.



What Happened in World War II


Executive Order 9066

Februrary 19, 1942


“By 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."


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 Lincoln’s time, so too with the Supreme Court in Roosevelt’s 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 “military district" 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 “assembly center" 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. “Hardships are a part of war."


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


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 “government institutions" mean? Aren’t 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.


“When our shores are theatened by hostile forces, the power to protect must be commensurate with the threatened danger."


Note: Doesn’t Al quaida “theaten our shores"? In World War II there was no possibility that the Japanese Navy had the logistical ability to “threaten our shores." 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: “The 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."


Dissent by Roberts, Murphy, and Jackson


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


This is a case “of 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."


“I need hardly labor the conclusion that Constitutional rights have been violated."


Mr Justice Murphy


“Such exclusion goes over `the very brink of constitutional power’ and falls into the ugly abyss of racism."


“It 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."


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


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


“The 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 impending’ as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger."


“It 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. . . “ (This is myth.)


Justice Jackson


“When 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."


“But 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."


“Even if the commanders’ 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."


We have no choice but to accept the commander’s 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.)


“In 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."


“Hence 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."


“A 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."


“The 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."


“The 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."


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


“A 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."


“Nothing better illustrates this danger than does the Court’s opinion in this case."


“I 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."


“The 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."


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


“If 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." (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 Government’s “war on terror" 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
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Women in the Civil War

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