Thinking about detention [with apologies for cross posting]

[Michael MASINTER]

If the district courts do not have jurisdiction to inquire into whether,
in fact, a U.S. citizen detained indefinitely by the United States in the
United States is an enemy combatant, then the rest of the constitution is
little more than wallpaper.  Think what Richard Nixon could have done with
this power during the Mayday demonstratons.

Is this really just a forum shopping exercise, undertaken with the
expectation that the judges of the fourth circuit will, by reason of
their conservative bent, reflexively rule for the government?  When did
conservative become a synonym for authoritarian?

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Tue, 11 Jun 2002, Volokh, Eugene wrote:

>         Can standard court martial proceedings be used to try a U.S. citizen
> for sabotage or espionage that occurred *before* he became a prisoner?  This
> isn't a rhetorical question -- I'm genuinely interested in the question, and
> when I did some research on the subject, I couldn't find much of an answer.
>
>         Also, In re Territo, 156 F.2d 142 (9th Cir. 1946), holds that a U.S.
> citizen can be held as a prisoner of war -- it seems to treat POW status not
> as a matter of lack of jurisdiction for habeas, but rather as a permissible
> return to the writ.  I assume that the same would apply to an alleged
> unlawful combatant being held as a detainee rather than a POW (because of
> his unlawful combatant status).  What, though, do you with the "alleged"
> part?  Would the district court have jurisdiction to inquiry into the
> evidence that the person is an unlawful combatant?
>
>         Eugene
>
>
> > -----Original Message-----
> > From: Chris SCHROEDER [SMTP:SCHROEDER at LAW.DUKE.EDU]
> > Sent: Tuesday, June 11, 2002 7:50 AM
> > To:   CONLAWPROF at listserv.ucla.edu
> > Subject:      Re: Thinking about detention [with apologies for cross
> > posting]
> >
> > 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.)
>