Attorney General John Ashcroft was on Fox News Sunday this morning. Brit Hume asked him about the Patriot Act and this particular exchange just floored me:

HUME: Let me ask you about a particular case that I think has troubled some people: Jose Padilla. An American citizen, captured on American soil, held now for however many months it’s been, unable to talk to lawyers. And a lot of people look at that and say, “If I’m an American citizen, that shouldn’t happen to me.”

What do you say to that?

ASHCROFT: Well, first of all, he’s not held in the judicial system. He’s held as an enemy combatant. And he was …

HUME: I understand that, but, I mean, someone could — presumably someone less scrupulous than I’m sure you feel this administration is being could pick me up and hold me as an enemy combatant, could he not?

ASHCROFT: Well, I don’t think there’s any basis for doing that. I …

HUME: Well, I understand that, but, I mean, who would decide? There would be no judge involved, there’s no review here. It seems like a very — a power that would be subject to abuse. Wouldn’t you agree?

ASHCROFT: Well, the law on enemy combatants includes a petition for habeas corpus, but the — and the court in the Kerran (ph) case indicated that it would entertain habeas corpus jurisdiction to determine if there was any basis upon which the claim could be made for enemy combatant status.

This has happened in less than a handful of people. I think there are three individuals who have been detained in the United States as enemy combatants, and they weren’t necessarily apprehended in the United States.

This is really the business of deciding, if someone is fighting against you, do you have the right to detain them as part of the military operation to resist the fight?

When a person is detained as an enemy combatant, that’s similar to being detained as a prisoner of war. And if you happen to be fighting on the United States’ soil against the United States, you shouldn’t have any more significant rights than if you’re fighting against the United States in Afghanistan or somewhere else.

Allow me to retort:

U.S. Constitution
Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Now, pretty clearly, US citizens who are not members of the armed forces who are charged with crimes committed on US territory must be dealt with according to the due process requirements of the Constitution. What’s so difficult about that?

Update: I should probably also cite Art. I, Sec. 9, specifically:

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

FILED UNDER: Afghanistan War, Law and the Courts, , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. The Padilla case disturbs me. Let me play Devil’s Advocate: how should we weigh the risks of a public trial where the accused can question witnesses when it could compromise intelligence and endanger anti-terrorist activities?

  2. Spoons says:

    That’s not clear at all.

    The armed-forces issue just has to do with whether we need to use a grand jury.

    The rest of that is all specifically limited to “criminal prosecutions”. Detentions of enemy combatant means you’re deciding not to criminally prosecute them.

    I’m not saying there aren’t concerns and potential for abuse in the way we deal with “enemy combatants”, but neither of the two amendments you cite are directly relevant on the issue.

  3. James Joyner says:

    The same way we typically handle sensitive matters–we have the judge carefully review the questions that are to be asked and otherwise do the gathering in the judge’s chambers. Presumably, any criminal prosecution of, say, an organized crime figure would compromise all manner of intelligence-gathering activities. We’ve figure out procedures for that, although I don’t know exaclty what they are.

  4. Devil’s advocate, part 2: Padilla is not being held for “criminal prosecution,” but as an enemt combatant.

    However, it’s long past time for the administration to fish or cut bait on this case. If he really is an enemy combatant, then it seems to me that treason is the appropriate charge, and the Constitution establishes how that is to be handled, too.

    My guess is that there are other reasons they want to sit on the case, probably having to do with intelligence collections and methods, and the reluctance to establish a precedent so early in the terror war.

  5. James Joyner says:

    Spoons: I should also have cited the right of habeus corpus in Art I, Sec. 9. I’ve remedied that now.

    Rev. Don: I agree all around. I wouldn’t have had any problem treating, say, John Walker Lindh as an enemy combatant since he was captured in Afghanistan and was indeed acting as an enemy combatant there. I’m a little skeptical of using that designation for acts committed on US soil by US citizens. Treason would seem a more appropriate charge.

  6. On the treason charge, unless they can get two witnesses to testify or Padilla confesses, there’s no case.

    On the habeas corpus, James, couldn’t the “invasion the public safety” phrase cover Padilla. Or does the President have to specifically suspend habeas corpus?

  7. John Lemon says:

    Can we declare Kobe Bryant an enemy combatant (even though I am a longtime Lakers fan)? This would spare us all the agonizing navel-gazing on Court TV and the slow motion Bronco chase that is likely to ensue.

  8. Spoons says:


    How does the habeas corpus provision change this? Padilla, or anyone else in the U.S., could file a petition for habeas tomorrow. The writ hasn’t been suspended.

  9. James Joyner says:

    Sean: Honestly, I’m not sure. I haven’t studied the legal precedents on this one. But if Padilla qualifies as an enemy combatant simply because there is a generic terrorism threat to public safety, then the Constitution is meaningless.

    Spoons: I’m not sure this is the case. DOJ has essentially refused to carry out judge’s orders on these cases.

  10. Babe says:

    And what about the members of the armed forces who are denied constitutional rights under the UCMJ? spare me. Homeland Security and the Patriot Acts I and II are designed to rob Americans of their rights under the Constitution and who is to decide what ‘due process’ is when
    you are the leader? I have seen too many abuses by leaders in the military and abuses by the previous administration to believe that others will be scrupulous in maintaining the rights of the accused…especially when it comes to what constitutes an ‘infamous crime.’