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Why a Constitutional Law Professor Cannot Sign NDAA, Allowing Military Detention of Americans


By Ralph Lopez - Posted on 15 December 2011

There has never been a better time to take a close look at how we got here, with Obama, a former Constitutional law professor,  about to sign a law which overnight turns the U.S. into a Third World country, where anyone can be swept off the streets by the military to rot forever, or even be killed.  Some people say wearily that the new powers for the indefinite military detention of Americans are not new at all.  That this is nothing the government cannot, and has not, already done.  

What this misses is that the new government powers seek to codify, "hard-wire" if you will, an area of law which is in flux, and far from settled in the courts.  Sen. Lindsey Graham (R-SC) proclaimed in his momentous speech on the Senate floor that:

“1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”

Graham goes on to say that the proposed law is simply based on the "law of the land" in the Fourth Circuit Court decision in the case of Jose Padilla, the first American arrested in the US and declared "enemy combatant" in the war on terror.  Padilla was held for 3 1/2 years in isolation, tortured, and given, according to his lawyer, some kind of hallucinogenic drug such as LSD.  His attorney Andrew Patel said that after a time, according to brig staff, “Mr. Padilla's temperament was so docile and inactive that his behavior was like that of a piece of furniture. ”  

An examining psychiatrist before his eventual trial said that after the 3 1/2 years, Padilla exhibited "facial tics, unusual eye movements and contortions of his body.”

Mr. Graham, University of South Carolina School of Law, the man who at the moment occupies one of the US Senate seats for the Great State of South Carolina, got wrong what any eighth-grader would know from civics class were he no more than a "C" student.  A higher authority than Graham, the Founding Fathers, declared in Article VI that not the Fourth Circuit, but the Constitution, was the "supreme law of the land":

<blockquote>"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, <strong>shall be the supreme law of the land</strong>; and the judges in every state shall be bound thereby..."</blockquote>

The Fourth Circuit decision to which Graham was referring, upholding the Bush administration's authority to hold Padilla indefinitely, without trial if it wished, was handed down by Judge Micheal Luttig.  Luttig, University of Virginia School of Law, gave Bush the benefit of the doubt believing that the question would go before the US Supreme Court to be properly deliberated.  Luttig in essence relied on the World War II precedent <em><a href="http://en.wikipedia.org/wiki/Ex_parte_Quirin">Ex parte Quirin</a></em>, in which a number of German-Americans were held as enemy combatants after being accused of spying for Germany during World War II.

Luttig must have known that, were the Padilla case to be properly deliberated, one of first questions to arise would be the applicability of a WWII precedent.  

One of the most fundamental understandings of American-English jurisprudence is that precedents can only apply when a case has a similar set of operative facts.  Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases."  This is not to say precedents cannot apply to cases with very different circumstances: different times, different places.  But the "operative" pieces, i.e. the major assumptions, must be substantially the same.  

Since a war which lasts forever is substantially different from than one that does not,  Luttig must have suspected that previous precedents on enemy combatants, cannot apply.  The war on terror is the first war which by definition has no end, in which the "enemy" is an amorphous network rather than the kind of military hierarchy we have opposed in every previous war.  This is the first war in  which there is no one from whom to accept surrender.

George Bush clearly defined the war on terror as lasting forever when he said to a joint session of Congress on September 20, 2001, that it the war on terror was  "a task that does not end."

Perhaps, then, this is why Luttig was livid when Bush released Jose Padilla to civilian trial before his case could come before the Supreme Court:  

Judge Luttig Slams Bush Administration in Padilla Case

    The appeals court opinion reflected a tone of anger that is rare for a federal court addressing the United States government, particularly in a matter of presidential authority.

    Luttig said the government's actions created the appearance "that the government may be attempting to avoid" Supreme Court review in a matter of "especial national importance."

Why would Luttig be so angry?  No one but Luttig knows.  What we do know is that the Bush razzle-dazzle prevented his administration's declaration of permanent wartime powers from being struck down, and it made Luttig the man on whose written opinion Graham relied to abolish the Bill of Rights.  This would be Luttig's place in American history.  

The adjudicated wartime powers now being codified have never been put to the test in the Supreme Court.  Yasar Hamdi in Hamdi v. Rumsfeld carried the crucial difference that Yasar Hamdi was captured in Afghanistan, arguably behind true "enemy lines."

You don't need to be a meteorologist to know if it's raining outside, and you don't need to be a constitutional scholar to know that permanent wartime powers amounts to the overthrow of the Bill of Rights of the US Constitution.  Common sense alone says you might have unlimited powers in a war of limited duration, or you might have limited powers in a war of unlimited duration, but the plain language of the Constitution tells us you cannot have both: unlimited powers in a war of unlimited duration.  

This is the question which has been ignored since 9/11.  Instead of addressing it, the Congress, and the Executive, are jumping on a flawed Appeals Court decision and rushing to codify it.  But Appeals courts make bad rulings all the time, and there is no rush to codify the error.  Judge Luttig may not be a bad man.  But his place in history may be assured, and it is not an enviable one.  Could it be that his anger was not misplaced?

Fourth Circuit Court Judge Michael Luttig

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