I received the following post from Bruce, which bears examination. It refers to an article by Charles Krauthammer, published in the Washington Post [article]
Krauthammer (who, I believe, is a lawyer) gives his suggestions about Mr Hamdi. Sounds reasonable to me. Hamdi was siezed on the field of battle at arms against the US soldiers who siezed him, and would qualify on that basis as an enemy combatant. Mr K's interpretation would imply that John Lindh's treatment was the legally improper one. He was just as much an enemy combatant as Hamdi, and should not (or is it merely need not?) have been extended the rights of an ordinary civilian defendant that he, in fact, got to enjoy.
Yes. I agree that Hamdi's case is an anomaly. He is a US citizen almost purely by accident (his parents are non-citizens, and he was born here while they were living here, briefly, and then he was raised in Saudi Arabia). And he was captured on a field of battle bearing arms against the United States. That leads to two possible conclusions: either he is a citizen and therefore he should be tried for treason (the constitutional remedy for betraying your country); or he is a citizen, but that status is now, by executive fiat, a conditional one that may be revoked for all intents and purposes if you are deemed an "enemy combatant". The first possibility has the virtue of being consistent with precedent, but imposes a strict and difficult standard of proof, so it may not be possible to charge him or, if charges are possible, to convict him, of treason. The second possibility flies in the face of our notions of citizenship, but has the virtue of being both expedient and perhaps necessary in the circumstances.
There is a third possibility that would finesse the virtues and vices of the two possibilities I just described, without resort to a new "rule" such as the one that Krauthammer proposes: there is already a law that states that if a citizen takes up arms for a foreign government, that act may result in a revocation of citizenship (it's a problem for Americans who maintain dual citizenship in countries with compulsory military service; in those cases, the view of the State Department has been that if you are drafted into a foreign army, you did not voluntarily take up arms, and therefore did not violate the statute); what if by taking up arms, Hamdi merely forfeited his citizenship? If that is the case, he can be labeled an "enemy combatant" with no constitutional infirmity. The problem, of course, is that by the logic of the third possibility, Hamdi or Lindh are indeed being treated inconsistently, since both were captured while bearing arms against the United States.
Mr K's interpretation also tries to give due weight to citizens' concerns about an out of control military or other part of our government operating independently of normal judicial protections. Does he succeed? A U.S. citizen not seized on the field of battle or taking up arms against the U.S. might still turn out to be an enemy combatant (e.g. a spy directly furnishing infrormation detrimental to U.S. interests to enemy combatants with which the U.S. was currently engaged). But the government would have to bring argument before a court, and overcome some burden of proof, before a U.S. citizen not seized on the field of battle could be designated an enemy combatant. Siezed on the field of battle, you would not enjoy those civil rights. It may not be enough protection, depending on how terms are specified. A crucial term is "field of battle" or perhaps "area of hostilities". If we are engaged in campaigns against international terrorists, who make try to strike anywhere, then everywhere is, arguably, where the field of battle is. Our greatest concern is attacks here, and that might imply that our home territory is the primary field of battle. If so, Mr K's recommendations would come down to treating people in the U.S. suspected of planning military strikes here differently depending on whether they were U.S. citizens or not (which is sort of where I think we are now, but maybe it would help to draw some of the lines a bit more clearly). So, on Krauthammer's rule, could you or I be picked up by the government and held as enemy combatants on the whim of some unaccountable official? No. But non-citizens could. Is this a fair compromise? I'm not sure. Would it quiet critics? Some, not others.
I think a fair place to start in defining the "field of battle" is to presume that until we are invaded, the field of battle can't include the territorial possessions of the United States. Krauthammer's rule has the virtue of being bright-line; moreover, a field of battle seems to me to be fairly narrowly circumscribed location, rather than a nebulous and somewhat philosophical construct. If we are looking to guide the judiciary, in my opinion, it helps to be as concrete as possible.
Expanding Krauthammer's test, as you suggest, to include an "area of hostilities" risks two related problems: first, what is included in the "area" of hostilities -- so far, the hostilities have been limited to New York, Washington, Shanksville, PA and Afghanistan. But Jose Padillo was picked up in Chicago, and recently, a purported al-Qaeda cell was picked up in Seattle. Are these within the "area of hostilities"? To my mind, it smacks of Philip K. Dick to define the "area" to include any place where hostilities are planned, without regard to if, and if so, where they are carried out or where "overt acts" in furtherance of hostilities are committed (not to mention the territorial difficulties posed by cyberspace -- fodder for another discussion).
The second problem is, what are "hostilities"? I don't have a good answer for this, but at the very least, if Congress passes a declaration of war, then we can rely on that definition to fix in both time and scope when "hostilities" begin and end. In the present situation, however, "hostilities" means what the Bush administration says it means, which is precisely the problem with the term "enemy combatant". Dig too deeply, and it all begins to be circular. In any event, since the term "area of hostilities" sheds no light on question of enemy combatant status, I would be more comfortable (relatively speaking) with Krauthammer's definition -- if the suspect is apprehended in the United States, there ought to be a rebuttable presumption against "enemy combatant" status.
Where is the third branch of government? Congress seems to not want to touch this, but at least some of those lines could be sketched by legislation (followed by judicial review, of course). For some in Congress, I think it is a principled ceding of broad authority to the President when it comes to conducting military affairs. For others, it is a reluctance to tie the administration's hands because they hope to be the administration soon and might find it hard to argue out of the precedent. Others might just find the puzzles too hard, and turn to other things. I suppose that speculating about other people's motives is fruitless and impertinent, so I'll stop for now.
Good question. Legislative abdication is certainly nothing new, but in the circumstances, it remains appalling.
Krauthammer (who, I believe, is a lawyer) gives his suggestions about Mr Hamdi. Sounds reasonable to me. Hamdi was siezed on the field of battle at arms against the US soldiers who siezed him, and would qualify on that basis as an enemy combatant. Mr K's interpretation would imply that John Lindh's treatment was the legally improper one. He was just as much an enemy combatant as Hamdi, and should not (or is it merely need not?) have been extended the rights of an ordinary civilian defendant that he, in fact, got to enjoy.
Yes. I agree that Hamdi's case is an anomaly. He is a US citizen almost purely by accident (his parents are non-citizens, and he was born here while they were living here, briefly, and then he was raised in Saudi Arabia). And he was captured on a field of battle bearing arms against the United States. That leads to two possible conclusions: either he is a citizen and therefore he should be tried for treason (the constitutional remedy for betraying your country); or he is a citizen, but that status is now, by executive fiat, a conditional one that may be revoked for all intents and purposes if you are deemed an "enemy combatant". The first possibility has the virtue of being consistent with precedent, but imposes a strict and difficult standard of proof, so it may not be possible to charge him or, if charges are possible, to convict him, of treason. The second possibility flies in the face of our notions of citizenship, but has the virtue of being both expedient and perhaps necessary in the circumstances.
There is a third possibility that would finesse the virtues and vices of the two possibilities I just described, without resort to a new "rule" such as the one that Krauthammer proposes: there is already a law that states that if a citizen takes up arms for a foreign government, that act may result in a revocation of citizenship (it's a problem for Americans who maintain dual citizenship in countries with compulsory military service; in those cases, the view of the State Department has been that if you are drafted into a foreign army, you did not voluntarily take up arms, and therefore did not violate the statute); what if by taking up arms, Hamdi merely forfeited his citizenship? If that is the case, he can be labeled an "enemy combatant" with no constitutional infirmity. The problem, of course, is that by the logic of the third possibility, Hamdi or Lindh are indeed being treated inconsistently, since both were captured while bearing arms against the United States.
Mr K's interpretation also tries to give due weight to citizens' concerns about an out of control military or other part of our government operating independently of normal judicial protections. Does he succeed? A U.S. citizen not seized on the field of battle or taking up arms against the U.S. might still turn out to be an enemy combatant (e.g. a spy directly furnishing infrormation detrimental to U.S. interests to enemy combatants with which the U.S. was currently engaged). But the government would have to bring argument before a court, and overcome some burden of proof, before a U.S. citizen not seized on the field of battle could be designated an enemy combatant. Siezed on the field of battle, you would not enjoy those civil rights. It may not be enough protection, depending on how terms are specified. A crucial term is "field of battle" or perhaps "area of hostilities". If we are engaged in campaigns against international terrorists, who make try to strike anywhere, then everywhere is, arguably, where the field of battle is. Our greatest concern is attacks here, and that might imply that our home territory is the primary field of battle. If so, Mr K's recommendations would come down to treating people in the U.S. suspected of planning military strikes here differently depending on whether they were U.S. citizens or not (which is sort of where I think we are now, but maybe it would help to draw some of the lines a bit more clearly). So, on Krauthammer's rule, could you or I be picked up by the government and held as enemy combatants on the whim of some unaccountable official? No. But non-citizens could. Is this a fair compromise? I'm not sure. Would it quiet critics? Some, not others.
I think a fair place to start in defining the "field of battle" is to presume that until we are invaded, the field of battle can't include the territorial possessions of the United States. Krauthammer's rule has the virtue of being bright-line; moreover, a field of battle seems to me to be fairly narrowly circumscribed location, rather than a nebulous and somewhat philosophical construct. If we are looking to guide the judiciary, in my opinion, it helps to be as concrete as possible.
Expanding Krauthammer's test, as you suggest, to include an "area of hostilities" risks two related problems: first, what is included in the "area" of hostilities -- so far, the hostilities have been limited to New York, Washington, Shanksville, PA and Afghanistan. But Jose Padillo was picked up in Chicago, and recently, a purported al-Qaeda cell was picked up in Seattle. Are these within the "area of hostilities"? To my mind, it smacks of Philip K. Dick to define the "area" to include any place where hostilities are planned, without regard to if, and if so, where they are carried out or where "overt acts" in furtherance of hostilities are committed (not to mention the territorial difficulties posed by cyberspace -- fodder for another discussion).
The second problem is, what are "hostilities"? I don't have a good answer for this, but at the very least, if Congress passes a declaration of war, then we can rely on that definition to fix in both time and scope when "hostilities" begin and end. In the present situation, however, "hostilities" means what the Bush administration says it means, which is precisely the problem with the term "enemy combatant". Dig too deeply, and it all begins to be circular. In any event, since the term "area of hostilities" sheds no light on question of enemy combatant status, I would be more comfortable (relatively speaking) with Krauthammer's definition -- if the suspect is apprehended in the United States, there ought to be a rebuttable presumption against "enemy combatant" status.
Where is the third branch of government? Congress seems to not want to touch this, but at least some of those lines could be sketched by legislation (followed by judicial review, of course). For some in Congress, I think it is a principled ceding of broad authority to the President when it comes to conducting military affairs. For others, it is a reluctance to tie the administration's hands because they hope to be the administration soon and might find it hard to argue out of the precedent. Others might just find the puzzles too hard, and turn to other things. I suppose that speculating about other people's motives is fruitless and impertinent, so I'll stop for now.
Good question. Legislative abdication is certainly nothing new, but in the circumstances, it remains appalling.
posted by Daniel at 2:18 AM
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