Petitioner, a presumed American citizen, has been imprisoned without charge or hearing in the Norfolk and Charleston Naval Brigs 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 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. Although I share the Court's evident unease as it seeks to reconcile the two, I do not agree with its resolution.

Where 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. Where the exigencies of war prevent that, the Constitution's Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below.

See also Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (taking CB's argument and obliterating it, with the sole exception of Justice Thomas.) For God's sake, this is Scalia's dissenting opinion:

I'm not sure this can be applied to the situation of targeting Al-Awlaki. If one of your citizens is leading a military organization that is engaged against you, I think it should be pretty clear that it's OK to target them and "shoot back."

I do agree with you that I have concerns about the legal process needed to do this. Cheney and Bush did a lot of damage to the US by their flagrant violations of US law, and I don't want someone like them being able to use this as a precedent to target individuals they just don't happen to like. I'd like to think that the Obama team, whom I see as having much more integrity that the Bush cabal, has taken whatever steps are necessary to ensure that there is clear legal precedent in this case.

I haven't followed the Al-Awlaki situation -- but if he is affiliated with Al Qaeda, then he is as much a target as any other combatant. I don't get this concept that somehow American citizens are cloaked in some sort of special "due process" protection that means they can somehow join an army at war with the US and be exempt from the ordinary consequences of being at war with the US.

In February 2010, Amnesty International suspended one of its senior officials, Gita Sahgal, head of the organisation's Gender Unit, after she criticized Amnesty for its links with Begg and Cageprisoners. She called the links "a gross error of judgment", and said it was wrong to ally with "Britain's most famous supporter of the Taliban". Sahgal argued that by associating itself with Begg and Cageprisoners, Amnesty is risking its reputation on human rights. Salman Rushdie said: "Amnesty ... has done its reputation incalculable damage by allying itself with Moazzam Begg and his group Cageprisoners, and holding them up as human rights advocates. Journalist Nick Cohen wrote in The Observer: "Amnesty ... thinks that liberals are free to form alliances with defenders of clerical fascists who want to do everything in their power to suppress liberals, most notably liberal-minded Muslims."

American War Criminal Barack Obama has been killed by Pakistani security forces in the UK, Prime Minister Hasan Abdullah of Pakistan has said.

I guess the Pakistanis think about that on occasion when they are flying their AMERICAN made, bought, and paid for F-16 Fighter Fleet to repel the foreign devils. Lots of pilost are thankful when they fly them against the Chinese junk the Indian Air Forces bought.

It is in the news again for [warning: graphic] BREAKING NEWS: BARACK OBAMA IS DEAD

Clarification of Cageprisoners piece on the fictional killing of Barack Obama
Written by CP Editor
Wednesday, 11 May 2011

While many have read the Cageprisoners article in the spirit it was written, there are some who have chosen to ignore the satire.

Cageprisoners is a human rights NGO dedicated to due process and rule of law. We unequivocally condemn extrajudicial killings, regardless of who they are against. Indeed, the purpose of this piece was to highlight that very fact.

The article went further to court controversy by suggesting that the fictional burial of Barack Obama be done in a way that would be distasteful to those of the Christian faith. Again, the purpose was to highlight the sense of outrage in the Muslim world, that Muslims were being told that the manner in which Osama Bin Laden’ body was disposed of was somehow dignified, acceptable and in accordance with Islamic teachings and practices.

It was clear that this was a satirical piece highlighting the fact that the episode raised many questions which were pertinent to the application of the rule of law and international norms and principles. It was not in any way as some have alleged a wish or notice of intention. This is a distorted reading of the article and reflective of the Islamophobic lens through which Muslim writers are seen. The limited opportunity to engage in a rational and reasoned debate without being accused of supporting terrorism caused us to sanction the use of satire to highlight the issues. It was a difficult decision and there was always a danger that the piece would be deliberately misconstrued.

This is a distorted reading of the article and reflective of the Islamophobic lens through which Muslim writers are seen.

It seems that freedom of expression and satire are the preserves of a few.

The latest edition of The New Yorker has an outstanding history of the relationship between the United States and Pakistan/India, dating back to World War 2 (India gained independence, and Pakistan was created, in 1947).

American War Criminal Barack Obama has been killed by Pakistani security forces in the UK, Prime Minister Hasan Abdullah of Pakistan has said.

http://www.cageprisoners.com/our-work/o ... rack-obama

Here it is:

The Double Game
The unintended consequences of American funding in Pakistan.
by Lawrence Wright

You're dead wrong, notwithstanding the arrogance of your tone.

But rather than my wasting time trying to educate you, I suggest readers check the Supreme Court's rulings in Hamdan, Padilla and related progeny to understand the flat rejection by the courts of the notion that "war" alone trumps constitutional principles under all circumstances,

What's "affiliated?" We can just murder someone because they gave a cab ride to someone in al-Qaeda?

I'm setting you to "ignore" so I won't be bothering responding to you after this one post. I don't have time for tantrums.

Hamdan & Padilla apply to treatment and detention of prisoners. Once an enemy is captured, they are hors de combat -- that is, out of battle -- and generally subject to appropriate treatment as a prisoner of war. (Padilla is distinguishable because it is a stretch to claim he was ever akin to a soldier on the battlefield - he was apprehended at an airport in Chicago). Hamdan - who is a citizen of Yemen - was captured in Afghanistan -- I don't know the circumstances of his capture, but depending on when and where they found him, it may have been perfectly appropriate to target and shoot him. He was Osama Bin Laden's personal driver, so I would think that any car he happened to be driving in Afghanistan would have been a very good military target.

The Hamdan & Padilla cases were mostly about the Bush administration's attempt to carve out a new category of "enemy combatant" that is outside the ordinary laws of war -- that is, individuals that could be detained indefinitely as prisoners being classified as neither prisoners of war nor criminal detainees. That didn't wash --but the Obama administration has never followed that rationale, and has at all times agreed that captured Al Qaeda or Taliban are prisoners of war.

If this is your method of avoiding admitting that you were wrong, by all means.



Which completely sidesteps the issue. The Bush administration could see the writing on the wall as far as Padilla was concerned: an American citizen who the President deemed to be an enemy combatant not entitled to any due process protections because of his affiliation with Al Qaeda, which is the mirror argument you have asserted. The Supreme Court avoided ruling on that argument on procedural grounds, but it was only a matter of time before it was going to lay the smackdown on the Administration. So, Bush preempted a litigation defeat by surrendering his position and agreeing to subject Padilla to judicial process after all. He was tried, in a courtroom.

I don't see a response by you to Ramdi.

And I don't see a response by you to the fact that there is no practical reason not to allow judicial review.

How could such judicial review take place? The absence of the accused would seem to present a major hurdle, and I was not aware that there was anything in either current law or the Constitution that would provide for in-absentia, appeal-less, capital cases.

That's an honest question, by the way. I'm not a lawyer, and I'm not an expert in international law. I've yet to see a possible solution to the problem posed by Al-Awlaki that does not trouble me to some degree.

And it's a good question. FISA courts routinely (in fact, exclusively) engage in judicial review of executive requests when the suspect is not present either. It's not an adversarial proceeding. No search warrant proceeding is, by its inherent nature. The purpose of the proceeding is to serve as a check and balance on some action taken by the executive branch. The courts essentially say to law enforcement: you say you want to bust into this guy's house and arrest him because he's evil, and that's fine. Just come in to court before a detached, impartial judge, and explain why. By doing so, the Constitution is satisfied. A similar process could take place for some kind of death warrant to be issued against a character like Al-Awlaki.

...A similar process could take place for some kind of death warrant to be issued against a character like Al-Awlaki.

Would we know whether such a process has been followed for Al-Awlaki?

I simply meant that if he is an active participant of Al Qaeda, which the US apparently believes him to be. See http://www.csmonitor.com/World/Middle-E ... overstated

The thing that bugs me there is that it's not an adversarial proceeding. It's one thing to use that kind of procedure to justify a search and/or an arrest. In those cases, the search or arrest is an early step in the broader criminal justice process, and additional proceedings and protections will likely be triggered as a result later on. In the case of a kill list, we're talking about a non-adversarial process being used as the terminal review step. That's kind of troubling to me.

There's also the political question issue. Again, I'm not a lawyer, but as far as I know the Constitution places the burden of waging war on the Executive and Legislative branches, not the Judiciary. Here, we'd be setting up a circumstance where the Federal courts play a role in target selection and approval during military operations. That's also kind of troubling.

At the same time, killing an American citizen without due process of law is, well, kind of troubling. The fact that the citizen in question could negotiate his own surrender at any time does very little to mitigate that. Leaving him free to continue to participate in a de facto war against the country is another bad idea. So is restricting our military from using the most expeditious means possible to remove the threat. There are no good solutions here, at least as far as I can see.

To be sure, certain types of permissible noncriminal detention–that is, those not dependent upon the contention that the citizen had committed a criminal act–did not require the protections of criminal procedure. However, these fell into a limited number of well-recognized exceptions–civil commitment of the mentally ill, for example, and temporary detention in quarantine of the infectious. See Opinion on the Writ of Habeas Corpus, 97 Eng. Rep. 29, 36—37 (H. L. 1758) (Wilmot, J.).[highlight]It is unthinkable that the Executive could render otherwise criminal grounds for detention noncriminal merely by disclaiming an intent to prosecute, or by asserting that it was incapacitating dangerous offenders rather than punishing wrongdoing.[/highlight] Cf. Kansas v. Hendricks, 521 U.S. 346, 358 (1997) (“A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment”).

Subjects accused of levying war against the King were routinely prosecuted for treason. E.g., Harding’s Case, 2 Ventris 315, 86 Eng. Rep. 461 (K. B. 1690); Trial of Parkyns, 13 How. St. Tr. 63 (K. B. 1696); Trial of Vaughan, 13 How. St. Tr. 485 (K. B. 1696); Trial of Downie, 24 How. St. Tr. 1 (1794). [highlight]The Founders inherited the understanding that a citizen’s levying war against the Government was to be punished criminally.[/highlight] The Constitution provides: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort”; and establishes a heightened proof requirement (two witnesses) in order to “convic[t]” of that offense. Art. III, §3, cl. 1.

In more recent times, too, [highlight]citizens have been charged and tried in Article III courts for acts of war against the United States, even when their noncitizen co-conspirators were not[/highlight].

Further evidence comes from this Court’s decision in Ex parte Milligan, supra. There, the Court issued the writ to an American citizen who had been tried by military commission for offenses that included conspiring to overthrow the Government, seize munitions, and liberate prisoners of war. Id., at 6—7. The Court rejected in no uncertain terms the Government’s assertion that military jurisdiction was proper “under the ‘laws and usages of war,’ ” id., at 121:

“It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed.” Ibid.1

Milligan is not exactly this case, of course, since the petitioner was threatened with death, not merely imprisonment. But the reasoning and conclusion of Milligan logically cover the present case. The Government justifies imprisonment of Hamdi on principles of the law of war and admits that, absent the 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 unlawful than Milligan’s trial by military tribunal.

Milligan responded to the argument, repeated by the Government in this case, that it is dangerous to leave suspected traitors at large in time of war:

“If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty, because he ‘conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection,’ the law said arrest him, confine him closely, render him powerless to do further mischief; and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended.” Id., at 122.

Thus, [highlight]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[/highlight].

The Founders well understood the difficult tradeoff between safety and freedom. “Safety from external danger,” Hamilton declared,

“is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free.” The Federalist No. 8, p. 33.

The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.

Many 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, inter arma silent leges. 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.