Saturday, December 9, 2006

The Constitution and a Trip to the Dentist

This is my first entry in to the world of blog, because I am astonished by the lack of outrage over the case of Jose Padilla---an American citizen who has been held in solitary confinement for 31/2 years, been deprived of the right to counsel for 21 months, all as a result of the unfettered discretion of the President in designating Mr Padilla as an "enemy combatant". The N.Y. Times (12/4/06) reported that during a recent trip to the dentist, Mr. Padilla's legs were shackled, his wrists cuffed and "noise-blocking headphones placed over his ears and blacked-out goggles over his eyes".
Mr. Padilla was originally arrested and publicly charged with plotting a dirty bomb attack in the United States. He was eventually charged with conspiracy and of providing material support to terrorists. The recent indictment was not in recognition of his constitutional rights as an American citizen, but rather a strategic decision by the administration to avoid what undoubtedly would have been an adverse judicial decision condemning the confinement and treatment of Mr. Padilla. The alleged dirty bomb plot is nowhere mentioned in the indictment against him. Mr. Padilla may be guilty of something, but the administration is guilty of far worse.
The administration has justified (and to large extent the public has accepted) wiretapping, these detentions, and possibly even torture, on the basis that these methods fight terrorism and confine terrorists. But what if they are not terrorists? Hundreds have been released after extended confinement without charges. They are all someone's husband, son, brother or father. For many such persons, the government has now suspended habeas corpus ("the best and only sufficient defense of personal freedom" Justice Chase, 1868), thus denying the means and opportunity for those detained to establish their innocence of any wrongdoing.
American soldiers are dying to win freedom for the people of Iraq, while we are losing freedom for the people of America.


Anonymous said...

"Hundreds have been released after extended confinement without charges. They are all someone's husband, son, brother or father. For many such persons, the government has now suspended habeus corpus" ?

I didn't realize that that many "American citizens" had confined without charges. Indeed, I'm quite certain that that is NOT the case.

If, as I suspect, you're referring to enemy combatants taken on the battlefield in Afghanistan and Iraq then, well, they don't have constitutional rights, and shouldn't be afforded any.

Alykhan Velshi said...

It would be nice if his honor knew that it's spelled 'habeas corpus', not 'habeus corpus.'

But why care about the spelling of legal concepts when you're an expert on its particulars?

H. Lee Sarokin said...

Got me--on the spelling of habeas. Knew it, but didn't know how to correct it. Learning the blog methods. Please bear with me.

Never meant to suggest that additional U.S. citizens were being held, but the assumption that detainees were taken "on the battlefield in Afghanistan and Iraq"is like presuming a criminal defendant is guilty. Suppose they weren't? How do they establish it?
Shouldn't there be some method by which they can demonstrate they are not terrorists? Would you feel the same way if it were a relative of yours being held indefinitely without charges?

fooburger said...

We must accept the military's jurisdiction over enemy they have captured in war. Is there precedent for doing otherwise?
They have rules and laws for resolving such status. Is there something in particular in military law with which you disagree? Should this really be something over which the US judicial branch assumes jurisdiction?

I think I can agree with you about the Padilla case in particular, to some extent, without giving an inch on the status of those who are not US citizens and are picked up on the battlefield by US forces.

g said...

I would be lothe to leave The judicial branch of Govt. especially with the incompetence and corruption that is rife in it -esp at the lower level courts, have anything to do with terrorism.

I am anon lawyer who works in chicago. *I was a defendant in some civil litigation recently, the complete moral and intellectual bankrupcy and lazyness of the judges involved. and the inability of the judges to apply the law in their courtrooms amazed me.We won BTW but no thanks to the judge.

So to allow anti- terrorism efforts to be subject to the whims and fancieds of idiots like these is not high on my agenda.

Anderson said...

Welcome to the wonderful world of the blogosphere, Judge ... I hope you don't reconsider including the comments feature on your blog.

I appreciate your post on the Padilla case, and I hope you'll continue to blog on whatever strikes your fancy.

Jake said...

Welcome to the blogosphere judge. I hope the comments don't get you down too much. Maybe limit them relevant regarding the post or topic?

I am a first year law student I enjoy your perspective, especially on the Padilla case. I look forward to your next post. It would be helpful if you could provide more insight on your thoughts regarding the Padilla case. Thanks!

Andrew Donald said...

An enthusiastic welcome to the blogosphere, Judge. As an Australian spectator, I am reassured to see US democracy reasserting itself under the rule of law. Thank you for a lucid contribution and please don't be discouraged by the ankle-biters.

Daniel said...

I think Your Honor is correct in placing the fault with the People.

Mr. Padilla should have been tried in the criminal courts, not pushed into an open-ended military detention. Terrorism is more rightfully the province of the criminal law. The military has neither the capacity nor the duty to give individuals the fair trial to which they are Constitutionally entitled.

We, the People, have allowed the circumvention of the processes that Constitutional Law has helped us set up over two centuries. We have placed our liberties in the hands of those who would rule by Presidential fiat.

The question might best be, then, how do we turn this ship around and revitalize due process?

Ian said...

Thanks for contributing to the discussion---you are in a unique position to do so.

Nicole Black said...

Welcome to the wonderful world of blogging, Judge. And, may I introduce you to what I presume are charming Volokh referred visitors. They're not always pleasant, but will keep you on your toes.

As for your first post--I really enjoyed it. You make some great points and raise many of the concerns about the loss of our civil rights that I've blogged about for the last year.

Padilla's treatment has been outrageous--and your assessment of the motivations of ths adminstration in ultimately deciding to charge him criminally are spot on.

Thanks for your unique perspective and I look forward to reading more from you in the future.

Robert said...

The clever division into "us" and "them" (e.g., those 'taken on the battlefield', where in fact many in Gitmo were not captured by American forces, nor were taken anywhere near a battlefield) is the root of the problem. In this division, the concept is that those of "us" deserve rule of law -- and those of "them" don't. Except for the small detail that the root concept of 'rule of law' means that we are all "us". But a large fraction of the American people don't believe this.

Sudha Shenoy said...

Robert: hear, hear! Also: POWs are held only for the duration of the war, & are protected by the Geneva Convention. The Red Cross has access, they receive letters & parcels. Gitmo detainees are held indefinitely, & most certainly _not_ under POW conditions. Why? Are only US citizens human? All others are untermenschen?

MMF said...

I look forward to reading this blog. Your perspective is going to be very useful, I think.
Like you, I am disturbed by the seeming lack of outrage over the habeas question. I am a 3L and don't really even see alot of concern about it on campus.

David said...

"But what if they are not terrorists?"

The perfect is often the enemy of the good. The Constitution should never become a suicide pact. I am good and fed up with so-called legal scholars who wish to endanger our lives. These foolish individuals are obligated to provide us with balanced responses---and not hysterical rants.

22state said...

Thank you for blogging.

I look forward to more insights.

Al said...

Judge writes: "Never meant to suggest that additional U.S. citizens were being held, but the assumption that detainees were taken "on the battlefield in Afghanistan and Iraq"is like presuming a criminal defendant is guilty. Suppose they weren't? How do they establish it?"

If the person is not a US citizen, then he may establish at a Combatant Status Review Tribunal (CSRT), which every person that the military purports is an enemy combatant is entitled to. At the end of the CSRT, the person may appeal to the DC Circuit.

If the person is a US citizen, then he is entitled to habeas review in a regular District Court.

Welcome to the blogosphere, Judge. I hope your future posts are more informed than this one was.

Scott said...

I think we should remember that the suspension of habeas corpus is explicitly allowed for in Article I, Section 9 of the Constitution -- even without the designation of "enemy combatant".

I suppose we can disagree about whether or not the stated conditions have been met for that. But the USSC, in Hamdan, implored the administration to seek Congressional approval of the detention and trial process -- which it did and received (with pretty broad bipartisan support, I might add).

I'm not quite sure which branch of government is left to speak to this matter.

And as for the wiretaps, let's please not forget Truong -- and the 2002 dictum from the FISA Court of Appeals which recounted its existence.

I think, once again, Congress ought to revisit the NSA wiretaps and put in place a workable judicial oversight apparatus. But it may well be that a standard of reasonable suspicion would need to be employed rather than probable cause to allow for the surveillance as I understand it to continue.

I'd at least hope that we'd all want it to continue -- and I certainly don't think it amounts to our losing our freedoms here at home.

That's all too common a meme these days -- and one always necessarily made in the abstract. I'm no less free than I was on September 10, 2001. And neither is anybody else.

Nathan said...

Wouldn't it be nice if we didn't have to choose between a party that wants to capriciously detain citizens and one that wants to trust the corrupt UN with national security? The decay of informed democracy has birthed a poverty of leadership across the political spectrum; policies that are both ineffective against our enemies and insensitive to our principles result.

Scott said...

mmf: "Like you, I am disturbed by the seeming lack of outrage over the habeas question. I am a 3L and don't really even see alot of concern about it on campus."

Well, mmf, you have to remember that it was a very, very limited suspension. There really aren't that many people who are considered enemy combatants -- much less American citizens who enjoy Constitutional protection.

For purpose of comparison, when Lincoln suspended HC in 1861, he did so for the entire state of Maryland!

And, what's more, it's no longer suspended -- and hasn't been for nearly a century and a half.

I think the lesson there is that the feared "slippery slope" of these kinds of things is really more of a rhetorical bogeyman than a historical phenomenon.

Or are there still Japanese internment camps operating that I'm not aware of?

David Thomson said...

Our host, deep in his heart of hearts, does not believe that we are in a fight to the death with Islamic nihilism. He likely suspects that it is merely a scam to enhance the power of the neo-cons. So far, his writings lack a true understanding of the peril we face today.

submandave said...

While I understand this is your blog debut, I feel the phrase "For many such persons [released after extended confinement without charges], the government has now suspended habeus corpus" does, indeed suggest that the right of habeas corpus has somehow been extended beyond U.S. citizens and includes anyone savvy enough to ask for it. While you are correct that hundreds of people previously held have been released, you fail to mention the many who have been reaprehended either (once again) on the battle field or actively engaged in terrorist support activities.

As another commenter said, no system is perfect. As for the enemy combatants being held, of whom we have good reason to believe in active cooperation with if not committed membership in organizations that both avow a desire to harm America and Americans and have clearly demonstrated an ability to do so it seems only prudent to hold these men until we also have a reasonable belief that they will be of no danger once released. I honestly do not understand the desire so many exhibit to skip the fighting part of a war and go straight to the criminal trials and repatriation. A bit of cart before the horse, if you ask me.

As for Mr. Padilla, while I do not envy his position I think the fact that he is the only poster child civil libertarians have with which to claim we are living in a fascist state speaks volumes to the accusation. There are likely thousands of people the FBI are watching based upon past activity and associations, but only one that has been apprehended and held. Perhaps I am more trusting of the government (or this specific administration?) than you, but a single case, while violating perceived rules of purity, does not itself set off any bells in my head.

Chapman For President 08 said...

Thanks for blogging Judge. Add a free sitemeter and see what kind of traffic you're getting.


Gandalin said...

Welcome to the blogosphere, Judge. Your insights will be welcomed.

Count me among those who think that your willingness to champion the "rights" of those who openly proclaim their intention to destroy us and our laws is misguided. On the traditional battlefield, unlawful combatants who did not represent a lawful State and who operated without uniforms or other recognizable military insignia were not granted the legal rights of American citizens; they were shot on the spot. Or hanged, at the discretion of the commander who captured them.

On the other hand, it is expressly forbidden to try in a military or civilian court lawful combatants who are captured in the normal course of warfare -- unless of course they are guilty of truly egregious crimes.

What these enemies of life and of freedom want is contradictory: on the one hand, they want to be treated as lawful combatants under the rules of the Geneva Convention, while on the other hand they insist that they deserve to be tried in US Courts.

What they really want however is to subjugate America and place us all under the heels of the shariah.

In which case, Judge, you'd probably just be sent to a re-education gulag or a death camp with the rest of us.

So thanks for doing everything you can to enable the killers to successfully demoralize and discourage the only major Western nation that is still willing to oppose them.

See you on line for the "selection," I guess.

alexjared said...

Good luck on your venture in blogging. As a former Appeals Court Judge, I am a little surprised at the subjective nature of your first rant. As one of the commenters noted, people who read blogs with a legal slant like,, Prof. Volokh's blog, and the constitutional writers at National Review provide ample evidence of the errors in your line of reasoning. Sept. 11 was an act of war; the President, immediately afterwards at least, did have "unfettered discretion" as you put it, to keep our country safe. His administration has been responsible and and careful, and you do the civil servant attorneys at the Department of Justice, Nastional Security Agencies, and the White House Attorneys a grave injustice to besmirch their reputations with innuendo. What you see as a "strategic decision by the administration to avoid what undoubtedly would have been an adverse judicial decision" I may agree with; your trying to read tea leaves selectively forgets the facts that anyone on the computer can read the indictment of Mr. Padilla and come away with 2 conclusions; 1) he was an active supporter of or member of al-Quaida (sp?); 2) an over-reaching Judicial branch could have forced the government to reveal secrets that could have jeopardized our safety, including your family and mine, judge. I simply do not understand this naivete. The Constitution gives the President wide latitude in protecting the American people...We know now the legal blockades that could have possibly saved the lives of 3000 people and stopped over 7000 children from losing a parent that day judge. How could another President justify an even worse attack by saying "this Judge from the FISA court stopped me from listening in on a phone conversation that would have saved hundreds of thousands of lives".
Personally, I think having to back one's opinions by saying they "are all someone's husband, son brother or father" or "American soldiers are dying to win freedom for the people of Iraq" reveals what Milton Friedman once said (I paraphrase) "the problem of the do-gooders is not a softness of the is when it extends to their brains"....
I know this went a little long, but as a close judge, I AM a dentist and as my patients could tell you, it is a blessing to be able to place a walkman on to cover the sound of the drill and to put sunglasses on the block the brightness of the light...if you're trying to create a sense of outrage over that judge, you've struck out!!!! Good luck and welcome to the real world....

Adam said...

It takes a lot of courage to accept the unavoidable truth that to pursue (true) freedom and the ideals which our country was founded upon we will inevitably let go some wrongdoers who may have meant us harm.

The suspension of habeas is not "getting tough" on anything. It is an act of cowardice.

Christopher said...

(Shaking my head) You, sir, are another moonbat idiot who cares far more about the letter of the law and not the spirit of the law.

Scott said...

to pursue (true) freedom and the ideals which our country was founded upon...

The suspension of habeas is not "getting tough" on anything. It is an act of cowardice.

The irony of these two thoughts in the same post, Adam, is that the founders of our country actually envisioned the need to suspend habeas -- which they deemed a "privilege" and not a "right" (a distinction that is not unimportant).

Go find your copy of the Constitution and read Article 1, Section 9. There you will find that the framers did, in fact, make preparations for the suspension of habeas.

Now, you have to ask yourself why they did this. Because they didn't do much of anything without purpose or deep consideration.

That's not to say that this is something we ought to celebrate. But it certainly isn't some deviation from our founding principles as you suggest.

The provision for the (temporary) suspension of HC has been there every day since 1789.

MMF said...

Sheesh, people, nice tone....

There has been exactly one post by the Judge and already terms like "moonbat" and "idiocy" are flying around. (and aimed apparently at the host, who may be better off moderating comments for a bit...)

A reasoned debate about things like whether or not 9/11 was an act of war or a criminal act does seem in order, but unlikely to occur if we can't all keep our powder dry....

H. Lee Sarokin said...

Thank you all for your comments and criticisms of my debut blog. I appreciate the words of encouragement and the education from those who disagree. Being a neophtye to blogging, however. I was a little taken aback by the sense of hostility out there, but I guess I will get used to it (or quit blogging). I expressed my outrage over an American citizen held for years in solitary confinement without charges and without access to a lawyer.That doesn't make me unaware of the real world or the difficulties in combating terrorism. I recognize the need to confine the "enemy", as long as it really is the enemy. I am only concerned that the fear of terrorism, which is both real and justified, does not cause us to surrender what makes us great and different from most of the world. My motto as a judge was: Be kind, fair and patient and try to get it right.Please be kind and patient. in return. Thanks

Nilk said...

Your Honour, I found you via Instapundit and thought I'd have a look around.

Welcome to the blogosphere, and please keep your thick skin ready. You will need it, as there are some subjects which raise hackles.

I have a sneaking suspicion that I will disagree with a lot you might believe in, but that's all part of living in a "diverse" world.

Well, until our overlords pull the plug on the net, of course.

cheers and good luck with your blog.

Comrade O'Brien said...

Attention Comrades,
Please visit to learn about our creative protest of the Military Commissions Act.

lucia said...

I read your blog announcement at I'm hoping you will continue to blog. The first entry looked like what has become the traditional:

"This is who I am. This is why I've decided to blog article."

Ordinarily, bloggers have the luxury of posting a few (or hundreds) of articles before anyone arrives to comment. You're in the unusual position of posting on a contentious subject and having your blog announced on big audience lists. On the one hand, I don't envy you. On the other hand I do! (Most bloggers want an audience. )

Best wishes.

Fare said...

I agree with the Judge.

As for the criticism against his position, it seems to boil down to this: we are faced with such a tremendous threat that sacrifice of procedural rights is justified.

That we are faced with such a tremendous threat weighs in favor of rigorous procedural rights. It's more likely that in the face of such a threat that the government might overreact.

Moreover, I simply don't see how affording procedural rights to determine guilt or innocence would compromise national security. Am I missing something?

Matt Ehling said...

A few thoughts regarding the Padilla matter, and its broader relation to the recently passed Military Commissions Act ...

Since there is activity afoot in Congress to amend the Military Commissions Act, it is worth noting that any alterations made to the MCA could (and should) be made in tandem with changes to other federal statutes, in order to prohibit the President from detaining U.S. citizens in military custody without charges. These issues are related, and they should be addressed in a joint fashion.

The MCA makes an oblique reference to the administration's theory of domestic military detention in section 948a by broadly defining unlawful enemy combatants to include "persons" and not just "alien unlawful enemy combatants." While the bulk of the MCA does not apply to U.S. citizens (see section 948c), its Congressionally approved definition of "unlawful enemy combatants" may give legal cover to the administration if it chooses to classify another U.S. citizen in this manner, at least for the purposes of domestic military detention, if not military trial. This is due to the nature of court rulings that followed in the wake of the Hamdi decision.

Many civil libertarians would argue that the only way that the President may detain a U.S. citizen in military custody without charges is through a Congressional suspension of habeas corpus, specifically tailored to American citizens. This is exactly what Justice Scalia argued in his Hamdi dissent. In addition, Scalia noted that the Authorization to Use Military Force (AUMF) passed after 9/11 did not include such content. Although Scalia's reasoning was correct (regarding both the Constitutional question, and the scope of the statute) his argument did not carry the day. Instead, the Supreme Court found that the AUMF did indeed authorize the military detention of American citizens, but only in Hamdi's narrow circumstances (capture abroad, in a military combat zone.) Afterward - as is often the case with these things - those circumstances were expanded in the 4th Circuit Court of Appeals decision regarding the Padilla matter. In his opinion, Judge Luttig read the AUMF more broadly, amplifying the findings of Hamdi, even though Padilla was captured on American soil:

"As the AUMF authorized Hamdi’s detention by the President, so also does it authorize Padilla’s detention. Under the facts as presented here, Padilla unquestionably qualifies as an “enemy combatant” as that term was defined for purposes of the controlling opinion in Hamdi."

A Congressional definition of "unlawful enemy combatant" that could include U.S. citizens (such as the one in the MCA), coupled with the 4th Circuit opinion, could give the administration additional legal ammunition in upcoming court battles. Such a definition could be construed as a reaffirmation of the intentions of Congress in the AUMF, if the court was inclined to follow Luttig's argument, and to read the AUMF broadly.

The practical result of all this, is that Congress should act now to refute Luttig's reading of the AUMF, and to deprive the executive branch of any legal cover for its domestic military detention scheme. Just because the White House has transferred Jose Padilla to the criminal justice system, does not mean that it would refrain from employing the "Padilla option" in the future. As the old saying goes, Luttig's opinion lies about like a loaded weapon, ready to be wielded again at any time. To prevent this from happening, Congress must knock out one of the main pillars of his argument by adding clarifying language to the AUMF, prohibiting the President from detaining U.S. citizens in military custody without charges. A similar update should also be made to the Non-Detention Act, in order to end-run the legal argument that the AUMF trumped the 1971 law. Likewise, the Military Commissions Act must also be amended, to change the definition of "unlawful enemy combatants" to exclude U.S. citizens captured on U.S. soil.

If a future Padilla-like case ends up on the Supreme Court docket, one hopes that the court would follow Scalia's compelling logic, and prohibit executive detentions without an explicit suspension of habeas corpus. However, that result is not guaranteed (given the vagaries of the court), and thus Congress should act to disallow the executive from employing detention tactics that it has become unnervingly fond of.

Scott said...

In response to fare,

I think you need to be a bit careful with your language. Constitutionally, habeas corpus is not deemed a right. In fact, it's explicitly referred to as a privilege -- and a suspendable one, at that. And that's for US persons -- let alone foreign nationals.

Judge James Robertson recently upheld the MCA on another challenge from Salim Ahmed Hamdan. It's important that he did it -- because he was the district judge who first ruled against the administration's detention policy as being beyond its sole authority.

FTR, I think your general question is a fair one -- why suspend HC at all? I tend to think that the answer is that we have an active, ongoing war going on that is largely being fought through means intelligence. One of the tenets of HC, of course, is that the accused can see the evidence being used to detain him.

Surely you can see the problem inherent in showing an al-Qaida operative this evidence -- when there are still thousands of his compatriots on the lam.

Scott said...

In response to Matt Ehling...

I'd be pretty surprised if the MCA was successfully altered. Let's keep a couple things in mind here.

First, it would have to get the president's signature -- which it isn't going to get (in the next two years, anyway).

Second, the MCA was passed with pretty broad bipartisan support. IIRC, it got around 65 votes in the Senate -- which indicates a fair amount of Democratic support.

Third, it's already passed its first hurdle in the courts. And, importantly, the judge who upheld the MCA was the same one who first ruled against the administration's detention policy in Mr. Hamdan's first challenge.

And fourth, I don't think the Democrats are going to be in any mood to give the Republicans the rope to hang themselves with. And using their newfound majority status to fight for the legal rights of jihadists would be (politically speaking) just that.

You can make a perfectly fine legal, or even moral, argument along these lines. But when it enters a political context, things change.