Wednesday, April 28, 2004
UPDATE: No sign of a free transcript, but I've gone ahead and transcribed one exchange that's worth taking a look at--from Deputy Solicitor General Paul Clement's argument on behalf of Secretary of Defense Rumsfeld:
Justice Anthony KENNEDY: What rights does Padilla have--if any, in your view--that a belligerent apprehended on the battlefield does not have? Is Padilla just the same as someone you catch in Afghanistan?
Deputy Solicitor General Paul CLEMENT: I think for purposes of the question before this court--the authority question--he is just the same. It may be that [at] an appropriate juncture, when the court has before it the question of what procedure should be applied, that you would want to apply different procedures in a case like this--
KENNEDY: And can you punish him?
CLEMENT: Could we punish him? Certainly, we could punish him if we decided to change the nature of our processing of him. I mean, as this court made clear in a hearing--
KENNEDY: Could you shoot him when he got off the plane?
CLEMENT: No, I don't think we could for good and sufficient reasons of discretion...
Justice Ruth Bader GINSBURG: What inhibits it? If the law is what the executive says it is...what is it that would be a check against torture?
CLEMENT: Well, first of all, there are treaty obligations, but the primary check is that, just as in every other war, if a US military person commits a war crime by creating some atrocity on a harmless, a, y'know, a detained enemy combatant or a prisoner of war, that violates our own conception of what's a war crime, and we'll put that US military personnel on trial in a courtmartial...
So there you have it. It's not the federal constitution that prevents the government from summarily executing American citizens. It's good and sufficient reasons of discretion.
And the only thing that limits this authority is the nation's treay commitments and the Uniform Code of Military Justice.
Guess it's a good thing we have such benevolent, farsighted generals...
UPDATE UPDATE: The New York Times has a bit more.