Constitutional Law Class Notes 2/23/04


All this week, weíll talk about Padilla in some sense.Weíll dance around, but wonít read, the Youngstown Sheet case.Chemerinsky will talk about it.The concurring opinion of Justice Jackson is considered even more important than the majority opinion of Justice Hugo Black.


We also saw references to two old cases from WWII and the Civil War: Ex Parte Quirin and Ex Parte Milligan.Weíll read both of those later this week.Donít read the account of the oral arguments for the latter.They go on forever.


Next week is also on the Separation of Powers Doctrine.


Shape up or ship out!Donít play games!


Padilla v. Rumsfeld


Foley thinks that the organization of this case is all backwards.


There is no bigger case than this one.This is the case of the century!The Supreme Court has granted cert.They will decide the case by July 4th this year.Does the president have the power to detain citizens?Or does the Constitution guarantee citizens certain inalienable rights?Does the Constitution forbid the government from engaging in unlimited detention?


The Supreme Court has also granted cert in the Hamdi case and the Guantanamo Bay cases.


Hamdi is also an American citizen.He was captured in Afghanistan allegedly fighting alongside the Taliban.He was caught in the zone of combat with an AK-47 in his hand.He was captured abroad, not on U.S. soil, and he was captured in a context where the government alleges that he was in a combat posture as a member of the Taliban militia, if not an enlisted member of their army.That case went up through the Fourth Circuit Court of Appeals, which held that the president has the authority to detain Hamdi.Hamdi is in custody at the same place that Padilla is in South Carolina.The Fourth Circuit said that the president had authority under the Constitution and also was granted authority based on the Join Resolution of Congress after September 11.


Hamdi raised many of the same issues as Padilla.It is claimed that the president doesnít have the authority to detain citizens indefinitely and that Congress hasnít given the president this authority.


What are the circumstances under which Padilla was captured?Padilla was coming back from overseas.He was arrested by the FBI pursuant to a material witness warrant that had been issued by a judge.Padilla had been in Pakistan.Why does the government think he was in Pakistan?The government has reason to suspect that he has ties with al Qaeda.Why is it important to find out if there was a judicial finding of fact?What evidence does the court have that Padilla has al Qaeda ties?


We havenít taken Evidence, but we have taken Criminal Law.If this were a criminal trial, has the government presented any evidence against Padilla?There is a declaration by Michael Mobbs.He isnít a witness before the court.He didnít sign an affidavit.What about the hearsay rule?Youíre not allowed to testify to what someone else said.You can only testify to what you know. From a legal standpoint, thereís nothing here that counts as evidence that Padilla has ties to al Qaeda or was involved in a plot to detonate a dirty bomb.The court canít make any findings of fact because no facts have been presented.The government asserts that they need not provide any such evidence, but need only assert that the president has made this determination.


There are sealed and unsealed declarations.The sealed declaration asserts that there is evidence, but that evidence hasnít been presented judicially.Even the sealed version just says that people in the Justice Department have evidence.That evidence has not been presented in court.That doesnít necessarily mean anything, but itís just a fact about how the litigation is proceeding.This is a lot different from an ordinary criminal trial context.In that context, you couldnít lock Padilla up indefinitely until he is convicted.Everything Padilla is accused of doing is a crime and he could have been prosecuted in an ordinary criminal proceeding.


The government doesnít want a criminal trial in this context.They donít want to have to expose who their secret witnesses are.So: Can the government lock someone up who they think is a bad guy without a criminal trial if they donít want to have one?


Consider the Oklahoma City bombing.Suppose that was the work of a larger conspiracy than just Timothy McVeigh involving, for example, a militia-type organization.The government captures McVeigh but wants to prosecute the people heís working for.If the government thinks that McVeigh is guilty, they must put him on trial!


Padillaís lawyer said that Padilla canít be moved from the criminal system to the military justice system because Padilla is a United States citizen.In response, the Department of Defense says that the president does have the authority to impose such a transfer based on the presidentís own determination that Padilla is an enemy combatant.We might ask whether, on the presidentís theory of the case, he would have to do anything more than assert that Padilla is an enemy combatant.But thatís not what he did; he attached the declaration of Undersecretary Mobbs.


There wasnít really a trial here.Maybe we want to prevent overseas agents from having their cover blown.But also, there are lots of evidentiary problems.The ďevidenceĒ in the military papers has nothing to do with ďevidence as advocacyĒ, but only with ďevidence as factĒ.


The District Court and dissenting judge in this case believe that although the president has some inherent authority to detain Padilla indefinitely, there is some judicial oversight over this.The District Court and dissent donít believe that this is a probably criminal trial.There may be a small fact-finding role to take place: a ďsome evidenceĒ standard.


President Bush asserts that there is no judicial fact finding role at all.The extent to which the Mobbs declaration gets tested in court is important, but also rests on some basic legal questions that will soon be decided.


Has Congress given the president the authority to detain Padilla indefinitely?We will apply the Justice Jackson analysis to this set of facts.


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