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The "Enemy Combatant" Attack on Freedom (Part One)

by JACOB HORNBERGER

Since an attack on Iran could result in heightened “war-on-terrorism” emergencies here in the United States, this would be a good time to review the issue of “enemy combatants,” especially as the concept applies to American citizens. To analyze the critical importance of the “enemy-combatant” doctrine, we will examine the cases of two people who were incarcerated as “enemy combatants” — Jose Padilla, an American citizen, and Ali al-Marri, a citizen of Qatar. Both were taken into custody on American soil, labeled “enemy combatants,” and incarcerated by the U.S. military.

Padilla was initially arrested in May 2002 at Chicago’s O’Hare International Airport after returning from a trip to Egypt, Saudi Arabia, Afghanistan, Pakistan, and Iraq. At first he was moved to New York and held in custody by U.S. civilian authorities as a “material witness.” The following month, however, he was labeled an “enemy combatant” by President Bush as part of the president’s “war on terror.” Padilla was then transferred to the custody of the U.S. military, which removed him to a military brig in South Carolina.

Padilla’s attorney filed a petition for writ of habeas corpus in New York federal district court. The origins of this particular writ stretch back to medieval England, where the king would oftentimes take citizens into custody and punish them for political reasons. Habeas corpus, which the Framers expressly guaranteed in the Constitution, provides the means by which a person in custody can test the legal validity of his detention.

Here is the way that habeas corpus works: The detainee files his petition for a writ of habeas corpus with a court. The judge issues the writ, commanding the person who is holding the petitioner in custody to appear in his court with the petitioner and show cause for holding the person. There is an evidentiary hearing.

If the judge concludes that there is just cause for holding the detainee, he will deny the petition. On the other hand, if he concludes that there is not just cause, he will order the release of the petitioner. Each side can appeal the judge’s decision to the higher courts. In the federal system, this would mean an appeal to the federal court of appeals in which the district court is situated. Each side can then appeal that decision to the U.S. Supreme Court.

There are two important factors to keep in mind about the habeas corpus proceeding. First, the judge must decide whether the reason for the detention is valid, and, second, assuming the reason is valid, he must decide whether there is sufficient evidence to support the detention.

For example, suppose the president ordered the arrest and incarceration of a person who gave a speech critical of the president’s foreign policy. At the habeas corpus hearing, the government might submit a videotape of the petitioner that actually does show him giving a speech criticizing, say, the invasion of Iraq.

In this case, the judge would order the release of the petitioner because the government would have failed to meet both prongs of the test. Even though the government produced evidence showing that the petitioner delivered the speech, it failed to show that giving a speech critical of foreign policy is against the law. And even if Congress had made such speech illegal, the court could still order the release of the petitioner on the ground that such a law was in violation of the Constitution.

Suppose the president orders the arrest of a person who has shot a federal officer performing his duties. At the habeas corpus proceeding, the government fails to produce any evidence that the petitioner has committed the offense. Even though the reason for the detention is valid ( i.e., there is a federal law against shooting federal officers doing their duty), the judge would nonetheless order the release of the prisoner because the government failed to provide any evidence that the petitioner was, in fact, the one who did the shooting.

Thus, in a habeas corpus proceeding involving a suspected terrorist who has been labeled an “enemy combatant,” a court must resolve two issues. The first issue is: Is the “enemy-combatant” doctrine valid? Second, if it is valid, is there any evidence that the petitioner is, in fact, an “enemy combatant”? And actually, there is a third issue: How much evidence and what type of evidence must the government produce at the habeas corpus hearing?

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.

 

 

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