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Judge Grants Padilla Access to Lawyer
Morphine007 writes "A judge has ordered that Jose Padilla be allowed to see his lawyer, and all I can say is it's about fscking time, I especially like the quote: "Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct further 'dialogue' about whether he is permitted to do so.""
The problem with that argument is that it has also been the law of the land, since the earliest days of this republic, that prisoners of war are not criminal suspects, but fall in a different category.
This includes enemy soldiers acting within the United States, even if they legally have citizenship. As early as the Jefferson and Madison administrations, this fact was used to detain port saboteurs working in the service of the French government.
So this is not a new practice, and indeed, it is a practice which the Supreme Court has upheld for two centuries. This most recently came to the test during World War II, when a team of German saboteurs were landed from Submarine on Long Island, with a mission to plant bombs in power plants, industrial centers, and Jewish-owned businesses. They were caught, and held as prisoners of war, and the Supreme Court was asked to review this detention, as one of those caught was a US citizen who had travelled to Germany in the thirties in order to join the SS.
The Supreme Court ruled that their detention was lawful, as their intention to commit acts of war against the US made them enemy combatants, not criminal suspects. You can find more information on the case, named Ex Parte Quirin, including a transcript of the court's ruling in this journal entry.
So in short, this is not, as you suggest, a new practice, nor is it, as you also suggest, against the intent of the Constitution (something that Madison, who employed the practice himself as president, presumably knew a thing or two about).
Bzzzt. Thank you for playing, but you're the one whose got it wrong. By declaring allegiance to a hostile power, in words or actions (such as figting for a foreign military), you give up your citizenship.
To quote the paragraph which has been printed, in one form or other, inside every US Passport ever issued:
In other words, your citizenship only lasts until you choose to renounce it, and taking up arms against the US (or even joining a foreign army, except in certain cases) counts as choosing to renounce it, and the courts have upheld this fact again and again.