From The Corner:

Ramesh, I don’t blame Romney for taking that position if that is how the question was worded. To ask whether “the president should have the authority to arrest U.S. citizens with no review” is confusing. Presidents do not have such authority. During times of armed conflict, they have authority to arrest and detain American citizens who are enemy combatants with no trial, but not with no review.

The Justice Department conceded in connection with the Supreme Court’s 2004 Hamdi case (involving an American citizen enemy combatant) that U.S. persons (a category broader than U.S. citizens) are entitled to challenge their detention by petition for a writ of habeas corpus. The Supreme Court agreed that this was the case. What principally divided the Court, and divides scholars, is not whether there is review but what that review should entail.

On that, opinion seems to range from (a) the purist Scalia/Stevens position that, absent a suspension of the writ by Congress, an arrested American is entitled to an indictment and trial in the civilian courts if they are open and functioning; to (b) a majority falling in the middle, holding that Americans alleged to be enemy combatants are not entitled to a full-blow trial but, rather, to a meaningful opportunity to challenge the president’s determination of their status — with the caveat that such a proceeding must be deferential to the executive branch in wartime; to (c) the Thomas position that the president’s determination that a person — even an American — is an enemy combatant is essentially unreviewable by the courts. (If Thomas’s position were the law, the question put to Romney would be of greater moment. But the remaining eight justices rejected this interpretation.)

Guided by Hamdi, the military is now giving each enemy combatant a Combatant Status Review Tribunal. Although almost all the detainees are non-Americans, I believe the administration and Congress have assumed that a CSRT satisfies (b), above. Whether that is the case is very likely to be decided by the DC Circuit and, ultimately, by the Supreme Court in the next year or so.

Posted on April 1st, 2007 by David
Filed under: Ron Paul 2008