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View Diary: Why a Constitutional Law Professor Cannot Sign NDAA, Allowing Military Detention of Americans (64 comments)

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  •  that's not quite accurate (5+ / 0-)

    existing law, i.e., the 4th circuit decision, allows for indefinite military detention of US citizens.  This Bill codifies that.  All Feinstein's Amendment accomplishes is to maintain the difference between Padilla's status as an enemy combatant (detention allowed) and status as a covered person under the statute (arguably a somewhat broader category).  The number of people protected by the Amendment is minimal, and the precedent for Padilla-type detention is cemented.

    It's bad.  It really is bad.  

    "Rules must be binding. Violations must be punished. Words must mean something." President Obama in Prague on April 5

    by jlynne on Thu Dec 15, 2011 at 03:59:51 AM PST

    [ Parent ]

    •  Codifying and cementing (1+ / 0-)
      Recommended by:
      Cedwyn

      So you are saying that it does affect current law? Cementing sounds like an effect to me.

      Seems like the ACLU or whoever wants to defend the likes of Padilla would still be able to argue from the same grounds as before, as this bill explicitly does not "affect existing law or authorities relating to the detention of United States citizens" etc.

      •  the 4th Circuit opinion is Padilla's case (0+ / 0-)

        It is the current law.  It allows for indefinite detention of US citizens.  The Bill won't change that, so it "cements" it.

        I guess I'm not understanding your point.

        "Rules must be binding. Violations must be punished. Words must mean something." President Obama in Prague on April 5

        by jlynne on Thu Dec 15, 2011 at 04:49:00 AM PST

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        •  If Padilla truly was an Al Qaida operative, then (0+ / 0-)

          he ceased to be an American citizen. There's a law that says that an American citizen who serves in a foreign army "expatriates" himself; that is to say, ceases to be an American citizen. I don't know if this point was raised in Padilla's case.

          Lea: "You're not going to fly into an asteroid field, are you?" Han Solo: "They'd be crazy to follow us, wouldn't they?"

          by Kimball Cross on Thu Dec 15, 2011 at 05:23:05 AM PST

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        •  also current law (0+ / 0-)

          http://www.dailykos.com/...

          § 4001. LIMITATION ON DETENTION; CONTROL OF PRISONS

          (a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

          difi's amendment passed:

          Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.

          more info:  http://www.dailykos.com/...

          My goal is to make the world safe for anarchy. - 4Freedom

          by Cedwyn on Thu Dec 15, 2011 at 05:57:37 AM PST

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          •  The NDAA and the AUMF (1+ / 0-)
            Recommended by:
            thegood thebad thedumb

            are Acts of Congress that permit detention of citizens so Sect. 4001 (of Title 18 U.S.C) affords no protection.

            I addressed the effect of DiFi's Amendment above.

            I think your diary was off the mark.

            Your first DK link is broken.

            Honestly Cedwyn, I have a lot of respect for you, but if you think this thing is a case of "no harm, no foul", please think again.

            "Rules must be binding. Violations must be punished. Words must mean something." President Obama in Prague on April 5

            by jlynne on Thu Dec 15, 2011 at 06:31:51 AM PST

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            •  the broken link (0+ / 0-)

              was just to the u.s. code where that law resides.

              anyhoo, SCOTUS said nothing on rumsfeld v padilla regarding detention:

              His counsel then filed in the Southern District a habeas petition under 28 U. S. C. §2241, which, as amended, alleged that Padilla’s military detention violates the Constitution, and named as respondents the President, the Secretary, and Melanie Marr, the brig’s commander. The Government moved to dismiss, arguing, inter alia, that Commander Marr, as Padilla’s immediate custodian, was the only proper respondent, and that the District Court lacked jurisdiction over her because she is located outside the Southern District.

              ...Held:

              1. Because this Court answers the jurisdictional question in the negative, it does not reach the question whether the President has authority to detain Padilla militarily. P. 1.

              judge floyd of the 4th circuit court of appeals said this:

              Judge Floyd upheld essentially all the contentions of Padilla’s lawyers, who charged that his indefinite detention violated the Second, Third, Fourth, Fifth and Sixth Amendments of the Constitution, as well as the Non-Detention Act, an act of Congress which explicitly prohibits arbitrary detention of any US citizen on the basis of executive fiat.

              Floyd flatly rejected the claim that Bush has the authority to order the indefinite detention of a US citizen arrested on American soil. “The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant,” he wrote.
              In a remarkably scathing passage, Floyd challenged the claim that presidential authority in wartime is absolute and unquestionable.

              i take it that's the 4th circuit decision you mean?  or were you referring to a different padilla case?

              My goal is to make the world safe for anarchy. - 4Freedom

              by Cedwyn on Thu Dec 15, 2011 at 07:14:19 AM PST

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              •  the 4th Circuit case that (0+ / 0-)

                Lindsay is talking about,  the one referenced in the diary, and the one to which I refer is Judge Luttig's September, 2005 habeas decision in which he upheld  the government's right to detain Padilla indefinitely.  Here  The decision was made based on stipulated facts, the court did not inquire into the validity of those facts.

                I think Luttig wrote the decision the way he did in order to ensure SCOTUS review and reversal.

                Three months later, as the world waited for SCOTUS review, the government decided to transfer Padilla out of military custody, thus mooting the issue.  They asked Luttig to withdraw his Sept. opinion to allow the transfer.

                Luttig went postal.  He accused the government of trying to evade SCOTUS review, refused to withdraw his opinion and he refused to approve the transfer of custody pending SCOTUS review.  His December, 2005 opinion is here.  

                In this context, in January, SCOTUS refused to grant cert.  That means that Luttig's September decision stands as the law of the land.  

                Luttig tried to play activist and we all lost.

                "Rules must be binding. Violations must be punished. Words must mean something." President Obama in Prague on April 5

                by jlynne on Thu Dec 15, 2011 at 12:47:13 PM PST

                [ Parent ]

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