Friday, September 30, 2005

Case of the Month: Padilla v. Hanft

On this last day of September I would nominate Padilla v. Hanft as the most important international law case of the month. The Fourth Circuit decision, per Judge Michael Luttig (on the short list for a Supreme Court nomination), is a great example of the potential impact that international law principles may have on statutory interpretation under the so-called Charming Betsy doctrine.

The case involved the prolonged detention as an enemy combatant of the alleged “dirty bomber” Padilla, an American citizen. Padilla fought in Afghanistan against the United States, but was captured while attempting to enter the United States allegedly to perform a terrorist act on our soil. As an enemy combatant he faces detention until hostilities cease, which in the war on terror is on a date uncertain. If charged and convicted he could well face the death penalty for his treasonous conduct. The Fourth Circuit relied principally on Hamdi v. Rumsfeld, 542 U.S. 507 (2004), which in turn relied on “longstanding law-of-war principles” in its interpretation of the congressional authorizing statute (the AUMF). The Supreme Court in Hamdi concluded that Hamdi’s detention was “necessary and appropriate” within the meaning of the congressional statute because “[t]he capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by universal agreement and practice, are important incident[s] of war.” Consistent with that decision, the Fourth Circuit interpreted the AUMF as authorizing “the President to detain all those who qualify as ‘enemy combatants’ within the meaning of the laws of war, such power being universally accepted under the laws of war as necessary in order to prevent the return of combatants to the battlefield during conflict.”

International law, consistent with Charming Betsy, was imported into the statute in Hamdi, and now the plurality in Hamdi controls Padilla. The statute implicitly authorized detentions of enemy combatants consistent with the laws of war, and the Executive branch, the Fourth Circuit held, is acting consistent with those obligations. No meaningful distinction was made between an American and non-American enemy combatant. Nor was there any meaningful distinction made between the conventional war at issue in Hamdi (the ongoing war in Afghanistan) and the unconventional war at issue in Padilla (the war on terror).

Although many international law academics may resist the decision, Hamdi and Padilla both represent a win for international law in an obvious way: the laws of war were clearly interpreted to circumscribe congressional authorization for executive action. Of course, precisely what the laws of war require in an unconventional war on terror is an exceedingly difficult question. But the Charming Betsy doctrine only mandates that we endeavor to interpret ambiguous statutes consistent with the “law of nations as understood in this country.”

10 Comments:

Blogger Charles Gittings said...

That is one of the most preposterous claims I've heard in awhile.

The 4th Circuit's decision in Hamdi III was a prejudiced, fraudulent, judicial atrocity -- and the neo-fascist proposition that allowing a war criminal like George Bush to operate like a roman dictator subject to no law at all is somehow a "triumph for international law" is idiotic to whatever extent it isn't just utterly dishonest.

You will find my writings on the topic here:

Articles by Charles Gittings

Including a commentary on Hamdi III and my S. Ct. amicus brief in the case. See also my commentary on the equally fraudulent Hamdan decision of the D.C. Circuit:

Hamdan Commentary

Consider yourself challenged to a a debate on the issues of those opinions in FULL.

Yours very truly,

Charles Gittings, pro se

cbgittings@yahoo.com

PEGC

9/30/2005 4:09 PM  
Blogger Charles Gittings said...

Dear Prof. Alford,

Looks like I owe you and apology: on re-reading your post it appears that you werre refering to the Hamdi opinion in the S. Ct,. NOT Hamdi III in the 4th Circuit.

I therefore retract my previous post and will have to reconsder your arguments.

Cleary I've been working too hard the last couple of months.

Sincerely,

Charles Gittings

9/30/2005 6:21 PM  
Blogger Charles Gittings said...

Well gee, I've re-read it, and while I don't see it quite as harshly as I first did, I still think you are mistaken and misrepresent things a good bit.

First of all, the court did not rule as you claim. They found that detaining "enemy combatants" in a war was necessary and appropriate in general, not that it was so in Hamdi's case, which was simply vacated and remanded. You are presupposing that the government's "interpretation" of the law is sound, when in fact it is plainly fraudulent.

Second, you are reading way more into the opinion than is there: basically the decision was that Hamdi might actually have a case that could not simply be dismissed on the government's say-so, and on remand, the government promptly made a deal that made it obvious that their supposed national security concerns were grossly exaggerated and that their main concern was to keep the case from being litigated on the merits becasue they in fact had no case: Hamdi's detention was unlawful regardless of whether or not he was an enemy combatant, for the simple reason that his detention was in violation of the Geneva Convnetions either way, and the Geneva conventions are the controlling law, while the government's "interpretation" is in fact a smoke screen to enable such war crimes.

Third, customs do not trump statutes, and the government's assertion concerning customary law are patent frauds.

Finally, the two cases are completely different. The Government has no case against Padilla at all: the D.S.C. got it exactly right. I guess I don't need to elaborate further on the opinion in Hamdi III -- the 4th Cir. opinion in Padilla was just as atrocius.

There simply isn't anything in the Constituion or customary law that would allow George Bush to operate like Caligula, and to claim other wise is, as Judge Doumar so eloquently in Hamdi, "idiotic".

George W. Bush is a war criminal.

9/30/2005 10:28 PM  
Blogger Charles Gittings said...

Well gee, I've re-read it, and while I don't see it quite as harshly as I first did, I still think you are mistaken and misrepresent things a good bit.

First of all, the court did not rule as you claim. They found that detaining "enemy combatants" in a war was necessary and appropriate in general, not that it was so in Hamdi's case, which was simply vacated and remanded. You are presupposing that the government's "interpretation" of the law is sound, when in fact it is plainly fraudulent.

Second, you are reading way more into the opinion than is there: basically the decision was that Hamdi might actually have a case that could not simply be dismissed on the government's say-so, and on remand, the government promptly made a deal that made it obvious that their supposed national security concerns were grossly exaggerated and that their main concern was to keep the case from being litigated on the merits becasue they in fact had no case: Hamdi's detention was unlawful regardless of whether or not he was an enemy combatant, for the simple reason that his detention was in violation of the Geneva Convnetions either way, and the Geneva conventions are the controlling law, while the government's "interpretation" is in fact a smoke screen to enable such war crimes.

Third, customs do not trump statutes, and the government's assertion concerning customary law are patent frauds.

Finally, the two cases are completely different. The Government has no case against Padilla at all: the D.S.C. got it exactly right. I guess I don't need to elaborate further on the opinion in Hamdi III -- the 4th Cir. opinion in Padilla was just as atrocius.

There simply isn't anything in the Constituion or customary law that would allow George Bush to operate like Caligula, and to claim other wise is, as Judge Doumar so eloquently in Hamdi, "idiotic".

George W. Bush is a war criminal.

9/30/2005 10:29 PM  
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