Emergencies, constitutions, Milligan and Padilla

Fri Sep 9 11:38:15 PDT 2005

I dunno.  Reading the Luttig opinion, Milligan was merely a speed bump at the very tail-end of the course, and it barely slowed Luttig down for a nanosecond.  "Grappling" is probably giving the treatment too much justice -- shoving to the side is more like it.

Of course, if Milligan -- or any other SCOTUS case -- had instead held that "In times of emergency, anything goes, notwithstanding what Congress has provided" -- we'd be in a very different, and more perilious, situation now, in all these cases.  And better a neutered version of Milligan than that.  But are those our only options?  How about taking Milligan seriously -- and treating Quirin as the aberration?  Or better still, is it too much to ask whether any of these presumptions about legislative intent come anywhere close to discerning what the legsilature would truly have wanted/expected when it enacted such AUMFs?

  ----- Original Message ----- 
  From: Gordon Silverstein 
  To: CONLAWPROF at lists.ucla.edu 
  Sent: Friday, September 09, 2005 1:53 PM
  Subject: RE: Emergencies, constitutions, Milligan and Padilla

  One slight thought-experiment digression ... does it matter that the court (at least) had to grapple with Milligan in this case? In other words, how much more pernicious a decision here (or in other cases) might have come about had the Milligan precedent said this: "In times of emergencies, the President of the United States has the constitutional authority to act in the best interests of the nation. This includes the power unilaterally to suspend habeus corpus."

  In other words - posing a counter-factual thought experiment ... Milligan perhaps has not been used to explicitly stop the exercise of emergency power without constitutional foundation ... but has it, perhaps, tempered, framed, shaped and constrained those exercises?

  - Gordon Silverstein

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  From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Edward A Hartnett
  Sent: Friday, September 09, 2005 10:33 AM
  To: Douglas Laycock
  Cc: conlawprof-bounces at lists.ucla.edu; CONLAWPROF at lists.ucla.edu
  Subject: RE: Emergencies, constitutions, Milligan and Padilla

  On a first quick read, it seems to me that the opinion relies on facts that were _stipulated_ for purposes of summary judgment and only decides the legal authority of the President on those facts, thereby leaving for further proceedings whether those facts are true or not.  It would appear that the opinion envisions Padilla being entitled to the same process as Hamdi to determine the truth of those facts.  It is not entirely clear what that process is -- and it  may not be much -- but it is not nothing.   

  Do others read the opinion differently? 

  Ed Hartnett 
  Seton Hall 

        "Douglas Laycock" <DLaycock at law.utexas.edu> 
        Sent by: conlawprof-bounces at lists.ucla.edu 
        09/09/2005 12:20 PM 
       To <CONLAWPROF at lists.ucla.edu>  
              cc  
              Subject RE: Emergencies, constitutions, Milligan and Padilla 

  Whatever the differences in the government's  allegations about Milligan and Padilla, we have only allegations and no idea  whether there are differences in fact.  Padilla appears to mean that the  government could arrest any one of us tomorrow, allege that we had been on a  battlefield somewhere, with no obligation to prove it, and hold us without trial  for years.  The legal framework appears to be in place for a return to the  days of Henry VIII. 

  Douglas Laycock 
  University of Texas Law  School 
  727 E. Dean Keeton St. 
  Austin, TX  78705 
     512-232-1341  (phone) 
     512-471-6988  (fax) 

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  From: conlawprof-bounces at lists.ucla.edu  [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford  Levinson 
  Sent: Friday, September 09, 2005 11:07 AM 
  To: Marty  Lederman; Gordon Silverstein; CONLAWPROF at lists.ucla.edu 
  Subject: RE:  Emergencies, constitutions, Milligan and Padilla 

  Many thanks to the inimitable Marty.  (Actually, I  hadn't heard of the decision, so, once more, I am grateful to Marty for his  almost literally incredible real-time knowledge of what is going on in the  federal judiciary.) 

  One quick reaction:  THIS is the issue on which John  Roberts should be grilled, but will any of the Democratic senators actually do  so?  Although I am on now on the fence as to whether, for political  reasons, I want to see Roe overruled, it seems to me obvious, with regard to the  future of American constitutionalism, emergency power is far more important than  the Court's keeping a thoroughly hollowed-out Roe on the books.  The Bush  Administration must be thrilled to death that almost all of the opposition to  Roberts is predicated on his views on abortion.  

  What is going on now in New Orleans is illustrative of what  may be the new constitutional reality of rule by fiat.  Although the left  probably doesn't wish to concede the point, I think there IS a serious  constitutional issue involved in the confiscation of legally-possessed guns from  presumptively law-abiding citizens.  I also don't find it crystal clear  where the state gets the authority to drive people out of their households when  they threaten no one and are willing to accept the risks of living in New  Orleans.  

  sandy 

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  From: Marty Lederman  [mailto:marty.lederman at comcast.net] 
  Sent: Friday, September 09, 2005  11:53 AM 
  To: Sanford Levinson; Gordon Silverstein;  CONLAWPROF at lists.ucla.edu 
  Subject: Emergencies, constitutions,  Milligan and Padilla 

  Good timing, Sandy and Gordon.  You may have  already heard that the Fourth Circuit (per Luttig and two Clinton  appointees) today affirmed the Padilla detention as being authorized by the  AUMF:  http://pacer.ca4.uscourts.gov/opinion.pdf/056396.P.pdf.   A full account from Lyle Denniston here:  http://www.scotusblog.com/movabletype/archives/2005/09/padilla_detenti.html. 

  Although I find it very difficult to believe that  Congress actually "intended," through the AUMF, to authorize the indefinite  detention of American citizens captured in the U.S. under cicumstances similar  to those in the Padilla case, I must concede that it's very difficult to figure  out how to challenge Luttig's logic about how that conclusion follows from  Hamdi (and from Quirin, to the extent one thinks that  case should have any precedential value), especially in light of this  "fact," on which Luttig places great emphasis: 

  The Government's explanation of why Padilla  was a covered person have been a constantly moving target.  Most recently,  however, the Administration alleges that Padilla fought on the actual  battlefield in Afghanistan and that his detention at O'Hare therefore  is an appropriate means of keeping him from returning to  Afghanistan to fight.  This  strikes me as extremely counterfactual, but it looks as though that's the  story the Administration is now pressing. 

  So, what about Milligan?  The panel's  last, most difficult, task is to distinguish Milligan.   Here's what Luttig writes: 

  Finally, Padilla argues that, even if his detention is  authorized by the AUMF, it is unlawful under Ex parte  Milligan, 71 U.S. (4 Wall.) 2 (1866). In Milligan, the  Supreme Court held that a United States citizen  associated with an anti-Union secret society but  unaffiliated with the Confederate army could not be tried by a military tribunal while access to civilian courts was  open and unobstructed. Id. at 6-7, 121. Milligan  purported to restrict the power of Congress as well as  the power of the President. Id. at 121-22 ("[N]o usage  of war could sanction a military trial . . . for any  offence whatever of a citizen in civil life, in nowise  connected with the military service.  Congress  could grant no such power . . .").  Quirin, however, confirmed that Milligan does not extend to enemy combatants. As  the Court in Quirin explained, the Milligan Court's  reasoning had "particular reference to the facts before  it," namely, that Milligan was not "a part of or  associated with the armed forces of the enemy." See 317  U.S. at 45. The Hamdi plurality in turn reaffirmed this  limitation on the reach of Milligan, emphasizing that  Quirin, a unanimous opinion, "both postdates and clarifies Milligan." 124 S. Ct. at 2643. Thus confined, Milligan is  inapposite here because Padilla, unlike Milligan,  associated with, and has taken up arms against the  forces of the United States on behalf of, an enemy of  the United States. 

  So, here's the distinction:  Both Padilla and  Milligan allegedly took up arms against the U.S.  But whereas Padilla --  not a member of Al Qaeda -- was "associated with" Al Qaeda,  Milligan was "unaffiliated with the Confederate army," but was merely  "associated with an anti-Union secret society." 

  It is, of course, preposterous to think that  Milligan actually turned on the crucial fact that his affliations were with  a secret society rather than the Confederate army.  But, per Quirin, as  construed in Hamdi, as construed in today's Padilla decision, that's  apparently what is left of Milligan.  

  ----- Original Message ----- 
  From: "Sanford Levinson" <SLevinson at law.utexas.edu> 
  To: "Gordon Silverstein" <gsilver at berkeley.edu>;  <CONLAWPROF at lists.ucla.edu> 
  Sent: Friday, September 09, 2005 10:17  AM 
  Subject: RE: Another question related to  emergencies and constitutions 

  I would be interested in knowing how often Ex Parte Milligan has in  fact 
  served to defend defendants' rights during times of war.  The US  Supreme 
  Court certainly didn't seem to pay it much heed last year in Hamdi,  for 
  example.  It is probably true that we're better off with Milligan on  the 
  books than not, but it is still unclear to me (probably because  I 
  haven't done the research--has anybody?) on the actual impact  of 
  Milligan. 

  sandy 

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