Thinking about detention [with apologies for cross posting]

[Chris SCHROEDER]

Some preliminary responses to Mark Tushnet's post.

1.  My understanding of the president's order establishing tribunals is
the same as Mark's:  it does not extend to Mujahir/Padilla.

2.  I know of no statute suspending the writ.

3.  I believe that there were POW camps inside Union lines.  In All the
Laws But One, CJ Rehnquist recounts the facts underlying the Milligan
case as involving an alleged conspirary to free 8000 confederate
prisoners being held at Camp Douglas, near Chicago.  I have assumed that
the "prisoners" were confederate soldiers.

4.  It would be consistent with the administration's position that Al
Qaeda members are combatants in an armed conflict with the US to surmise
that the rationale the administration will eventually assert is that
military jurisdiction and the Geneva Conventions are applicable to
Mujahir/Padilla.  This could be so regardless of the applicability of
the tribunal order.  Standard court martial proceedings could be used to
try him.  10 USC 802(a)(9) includes prisoners of war as among the
persons covered by the UCMJ.

Chris Schroeder

>>> tushnet at LAW.GEORGETOWN.EDU 06/11/02 08:45AM >>>
I've been trying to figure out how to think about the legal status of
Al
Mujahir/Padilla.  Here are some quite preliminary thoughts.

1.  Because, as I understand it, as a U.S. citizen, he is not within
the
jurisdiction of the military tribunals (and therefore the reference in
Ex parte Quirin to unlawful combatants is irrelevant), what appears to
be at stake is the detention of a U.S. citizen by the U.S. military on
U.S. soil, without any judicial order authorizing the detention.  This
seems to me the classic case for which habeas corpus was intended, to
test the legality of the detention.

2.  If the government's position is that the detention need not be
authorized (or found lawful) by a court, this is a suspension of the
privilege of the writ of habeas corpus, and the relevant cases are Ex
parte Milligan and Duncan v. Kahanamoku.

3.  Because the civil courts are open, there's a prima facie problem
with the detention understood as a suspension of the writ.  (This
morning's paper contains a suggestion by Ruth Wedgwood that the
detention is similar to those by Union forces of Confederate soldiers.
My understanding, which could be corrected by those with more
knowledge,
is that the POW camps for Confederate soldiers were in the states of
the
South -- e.g., Andersonville -- where the civil courts were not open.
Does anyone know whether there were POW camps for Confederates in
Union
states, or whether camps in the South were maintained after the civil
courts reopened [itself, I would think, a tricky question, given the
military dimensions of Reconstruction]?).

4.  The first question with respect to a suspension of the writ is
whether any statute authorizes the president to suspend the writ.
Next,
is a "suspension" targeted at a single individual permissible when a
generalized suspension would not be?  Finally, does the president have
inherent authority -- as commander-in-chief, or otherwise -- to
suspend
the writ as to an individual, even without congressional
authorization?
(I take it that the last two questions are the reason that President
Bush personally authorized the transfer to military jurisdiction.)

5.  Finally, assuming that the administration's position is that
habeas
corpus remains available to test the legality of the detention and
that
the detention is legal, what's the analysis?  (The relevant cases here
would seem to be ones dealing with preventive detention in a criminal
context, but I don't know those cases well enough to know what to
think
about their extension to the present context.)