INDEFINITE DETENTION:
Using Outdated Precedents To Defend Unjust Policies

By JOANNE MARINER
Tuesday, Sep. 17, 2002

In fending off judicial scrutiny of its indefinite, incommunicado detention of "enemy combatant" Jose Padilla, the Bush administration has fallen back on a handful of extremely questionable legal precedents. Because prolonged detention without trial or charges has little support in American law, the administration has, by necessity, dusted off some hoary old cases of dubious pedigree.

Last June, in an order that has yet to be made public - indeed, not even Padilla's lawyer has seen it - President Bush placed Padilla in military custody. Deemed an enemy combatant, Padilla has, since then, been denied all access to counsel and other basic due process rights.

Edward Lazarus has already described on this site the troubling history of Ex Parte Quirin, a 1942 Supreme Court ruling used to justify the administration's current detention policies. An equally disturbing, if even more obscure legal precedent is the 1909 case of Moyer v. Peabody.

In a legal brief filed last month with the court hearing legal arguments over Padilla's detention, the government relies heavily on the Supreme Court's ruling in Moyer. A brief review of the case shows why.

The Arbitrary Detention of a Union Leader

The plaintiff in Moyer v. Peabody was Charles Moyer, the rabble-rousing president of the Western Federation of Miners; the lead defendant was the union-hating governor of Colorado. Determined to smash the miners' union, whose impressively large membership was on strike, the governor had declared a state of insurrection. Thereby quitting the realm of law enforcement for that of "warfare," the governor was free to call out the Colorado national guard, round up the troublemakers, and lock them up until the crisis had passed, disregarding hundreds of habeas corpus petitions in the process.

Moyer himself, one of numerous union leaders who were detained, spent two and half months in military custody without any showing of probable cause. He promptly sued and - in every court that heard the case - lost.

Rubber-Stamping Executive Actions

The Supreme Court's sympathies are evident in every line of its opinion. From its derogatory references to the "mob in insurrection" to its sympathetic allusions to the governor's role as the "captain of the ship," the Court left no doubt about who it thought was right and who was wrong. As in a prior ruling in the case by the Colorado Supreme Court, the Court found the governor's mere declaration of a state of insurrection to be proof enough that an insurrection existed - no need to examine the facts, none at all.

Noting that under the Colorado Constitution the governor is commander-in-chief of the state's armed forces, the Court found that he had the right to call out the troops and, indeed, to order them to fire on the strikers. (Here, again, it echoed the Colorado Supreme Court, which coolly explained that a military lacking the power to kill rioters would be "a mere idle parade.") Given this bloody starting point, it took little for the Court to condone the "milder measure" of arrest and detention.

The ruling's appeal to present-day government lawyers is obvious. The administration has taken pains to emphasize that the Padilla detention order - like the order establishing the ground rules for military commissions - was signed by President Bush in the exercise of his authority as commander-in-chief. And if a state governor playing commander-in-chief can persuade the courts to rubber-stamp his abusive actions, surely a President can, too.

A Precedent "Repugnant" to Civil Liberties

Not one Supreme Court justice dissented from the Moyer opinion, which was drafted by Justice Oliver Wendell Holmes. But a lengthy and impassioned dissent by Justice Steele of the Colorado Supreme Court, in that court's earlier review of the case, warned of the dangers of blind deference to executive authority.

Stating that the case would establish "a precedent that is so repugnant to my notions of civil liberty, so antagonistic to my ideas of a republican form of government, and so shocking to my sense of propriety and justice, that I cannot properly characterize it," Justice Steele explained that:

When we deny to one, however wicked, a right plainly guaranteed by the constitution, we take that same right from everyone. When we say to Moyer, "You must stay in prison because if we discharge you, you may commit a crime," we say that to every other citizen.

Steele's dissent should be necessary background reading for federal judges hearing the current crop of "enemy combatant" cases. While the courts have recently displayed signs of life in scrutinizing the government's detention decisions, it is extremely doubtful that they will challenge any of the government's most central - and most dubious - claims.

In all likelihood, the courts will evade the key question of whether the "war" on terrorism must be recognized as a real war, entailing manifold legal implications, just on the President's say-so. (The "political question" doctrine - the courts' way of saying that they believe themselves unqualified to examine a subject - will provide a convenient out.)

Steele, in his dissent, cautions against just this sort of judicial abdication of responsibility:

If a strike which is not a rebellion must be so regarded because the governor says it is, then any condition must be regarded as a rebellion which the governor declares to be such; and if any condition must be regarded as a rebellion because the governor says so, then any county in the state may be declared to be in a state of rebellion, whether a rebellion exists or not, and every citizen subjected to arbitrary arrest and detention at the will and pleasure of the head of the executive department.

Like the Moyer Case, But More So

Padilla, to start with, has already been detained longer than the two and a half months that Moyer spent in military custody. How much longer he can expect to remain in detention is an open question.

Equally significant, he has been detained without access to counsel. In a strategic bit of argumentation meant to conceal the novelty of this denial, the Bush Administration's brief in Padilla conflates the access to counsel issue with that of other due process rights. But I would challenge the administration's lawyers to come up with another case in which the courts have upheld the indefinite detention of a person who was barred all access to counsel. (Precedents from North Korea, Saudi Arabia, and Pinochet's Chile don't count.)

The substance of the Moyer case, fortunately, has been repudiated by history, or at least it seemed so until now. The last published decision to rely heavily on the case was that of a lower court dismissing a lawsuit brought by survivors of the students killed by the Ohio National Guard at Kent State University in 1970.

There, too, the court recited the expected rationales for not second-guessing executive power, even the raw, brutal exercise of such power. But the U.S. Supreme Court showed little patience for such apologies, unanimously reversing the lower court and, in the process, emptying the Moyer precedent of most of its residual authority.

Sooner or later the current Supreme Court will have to rule on the legitimacy of the President's incommunicado detention of Jose Padilla and others. Then we will find out what lessons have truly been learned over the past century.


Joanne Mariner is a FindLaw columnist and human rights attorney. She has written numerous pieces on terrorism, the detention of terrorism suspects, and the war in Afghanistan, all of which are available in the FindLaw archive.

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