Posted on 12/18/2003 8:10:02 AM PST by Dog
They do dispute his right to any counsel for it at all- they're wrong there IMO, unlike Hamdi there are issues and facts which can be presented here to contest his detention.
The hard decision, which these living constitution fantasists cowardly avoided, is just how to give Padilla that counsel.
That is what the judge, defense and government asked these clowns to decide and instead they overturned Quirin for their own political reasons.
Ok, my mistake.
I'm apt to trust the CINC on this one
I understand. Please remember he'll only be there for a few more years at best. Then who knows who'll inherit these powers. When I look at the Constitution I see many checks and balances built in because we're not supposed to trust government to control itself. We know from observing human history that eventually unchecked power will be abused, its only a matter of time.
Imagine what Hillary would do to gun owners....
Fantasist activists.
Vermont was "outside a zone of actual combat" in 1864 when the St. Albans raiders came over from Canada. The federal government then could not have held those guys under military jurisdiction under the 2nd Circuit decision had it caught them crossing the border before they acquired weapons in Vermont to attack the town with. See this URL:
http://www.vermontcivilwar.org/staraid/index.shtml
The 2nd Circuit's ruling ignores 9/11. References to "a zone of actual combat" are inane in this conflict. This seems to be a paradigm shift issue - those on the wrong side will never understand.
I agree 100%. Terrorists don't confine themselves to traditional battle lines.
In fact, they rely on making every place a potential zone of actual combat, and you don't know where that zone is until it's too late.
Chicago is in the United States isn't it?
Your treason argument is still the strongest persuasion I've heard to change sides. This one doesn't work for me: evil men will do evil things with or without the law. That's why I don't buy the Ashcroft is the Devil line spouted by the left and, sadly, some here....Janet Reno didn't have the Patriot Act and she acted in a more unconstitutional way than any AG in recent memory.
But wait, maybe we ought to handle Jose Padilla like your run-of-the-mill arsonist or pipe bomber...oh, wait, that would be giving aid and comfort to a sworn enemy of the country wouldn't it???
Maybe its best we let them rant...and ignore them.
BTW, there are some on the other side who are reasonable in their rhetoric. But the loonies, well, you'll just have to laugh at. :) Let 'em rant...
Ok, lets take her for example. Say some group aggravates her. The NRA might, but they're too big to all throw in jail. Say she wants to pick on the Tyranny Response Team. They're small, unknowns with less resources so they'll do just fine.
She points her fat finger at them and says they're a bunch of terrorists. She has them rounded up in the middle of the night as domestic terrorists and traitors. The ones that live through the raid are jailed.
What happens next? Well, under this ruling they get their day in court. Reno has to present evidence to another branch of government. The TRT is acquitted and released.
Barring this ruling they could very well sit in jail for the rest of their lives without a shred of evidence or any charges against them. Just her word and her word alone is all that's needed. I fail to see the difference between that and many countries I'd be ashamed to call home.
This isn't far fetched at all. It's a very plausible situation under most Rat administrations. It horrifies me.
Unpredictably scary.
The guy was planning to set off a dirty nuke in the US for Christ sake. Do you think he is every going to see the light of day again? People would be lining up for a chance to whack him if they turned him loose!
The legal precedent for taking Mr. Padilla into custody couldn't be any clearer. Speaking for the Supreme Court majority in the 1987 Salerno case, Chief Justice Rehnquist held that the incarceration for more than two years without trial or bail of an accused organized crime leader did not under the circumstances violate due process of law:---Robert F. Turner, co-founder of the Center for National Security Law at the University of Virginia School of Law, and former chairman of the ABA Standing Committee on Law and National Security.
"We have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest."
Referring specifically to periods of "war or insurrection," the Chief Justice added that "the Government may detain individuals whom the government believes to be dangerous." In the 1961 Lawless case, the European Court of Human Rights similarly upheld as legitimate the extended detention without trial by Great Britain of an accused IRA terrorist because of the national-security emergency.
Especially in times of crisis, our government is often forced to balance competing interests and, to quote the unanimous Supreme Court in the 1909 case of Moyer v. Peabody, "what is due process of law depends on circumstances."
In that case, the governor of Colorado had ordered the arrest by military authorities of an accused insurrection leader. Charles Moyer was confined for months without being charged or tried for any crime and then was released once peace had been restored.
Noting that as commander in chief Governor Peabody was entitled to order the killing of citizens engaged in insurrection, the Court reasoned that he might use the "milder measure of seizing the bodies" of those who stood in the way of peace. This was distinct from the criminal justice process.
"Such arrests are not necessarily for punishment, but are by way of precaution, to prevent the exercise of hostile power." Similarly, when enemy combatants are captured during periods of armed conflict, it is normal practice among civilized nations to confine them-without trial or access to legal counsel-for the duration of the crisis. Mr. Padilla is in a somewhat analogous position today.
In reversing the order of a federal district court judge that Yaser Esam Hamdi (a Taliban combatant born in Louisiana of Saudi parents who now claims U.S. citizenship) was to be given immediate access to legal counsel, a unanimous three-judge panel of the Fourth Circuit U.S. Court of Appeals noted last month that under our Constitution the Executive was entitled to considerable deference from the judiciary on matters involving foreign policy, national security, or military affairs. "This deference extends to military designations of individuals as enemy combatants in times of active hostilities, as well as to their detention after capture," the court noted, adding that the authority "to capture those who take up arms against America belongs to the commander in chief" rather than to the judiciary.
The panel relied in part upon the unanimous 1942 Supreme Court Quirin case, which upheld the apprehension, conviction by military tribunal, and execution of at least one American citizen who had entered the United States with other Nazi saboteurs during World War II. Like Mr. Padilla, the Quirin saboteurs wore civilian clothes and were apprehended unarmed before they actually had an opportunity to engage in violent behavior.
The critics are certainly correct that we must remain eternally vigilant about our civil liberties. But we are in a period of crisis, a crisis legally the equivalent of a declared war. Formal declarations of war are an anachronism -- no country has issued a true declaration of war in more than half-a-century, and such instruments were historically necessary only to initiate major acts of international aggression, which is now illegal under the U.N. Charter. But the Supreme Court held as early as 1800, in Bas v. Tingy, that Congress could "authorize war" by joint resolution without framing it as a formal declaration of war. Last Sept. 14, Congress did precisely that by a combined vote of 516-1.
To date, I believe the president has exceeded reasonable expectations in his handling of the crisis. If the government becomes unnecessarily destructive of civil liberties -- as occurred when Americans of Japanese ancestry were incarcerated during World War II -- there will be ample time for protests and for both Congress and the Courts to act. But the Jose Padilla matter is clearly not such an occasion.
Depends upon your proximity to ground zero. How dead is dead? How many rems would you like today?
Honest question. Let me try to answer it the same way.
Let me start by saying that I have grown a deep distrust of the federal courts. I have little faith in their judgement and find it amusing when they claim that politics has no place in their business. The catch is that they are unelected and thus unaccountable when they ignore the constitution, precedent and 200 years of American jurisprudence.
The Padilla case is a tougher call than Hamdi but basically the same. Both aligned themselves with al Qaeda and waged war on America. I really don't give much weight to the geography of the situation because I don't believe that rights have borders.
Having said that, I think suspending Habeas in Padillas case is one of those bridges too far. But if you agree that Padilla is a case where he needed to be squeezed for intel then you already agree that at least some of his constitutional rights should be abridged. I'm with you there, it would be lunacy to afford Padilla his 5th Amendment rights if he had knowledge of possible attacks on America and terrorists on our shores.
Probably where we depart is that in a time of war, I place my trust in the elected CIC to make the proper judgement rather than the courts. That is the CIC's constitutional duty, to execute the wars that COngress authorises. A CIC who abused that trust would at least face the voters at the ballot box.
I'm not buying the hyperbole about a rogue President with a split Congress morphing into Benito Mussolini. Too many of us who would rather fight than bow to that nonsense if the Congress didn't act.
So, here's what I think. I would have no problem with Padilla being represented by a court appointed attorney in a Habeas hearing but I would be disappointed if he escaped military justice.
I must need a break from politics because I am feeling really defeated re: the whole thing. I went to an outsourdcing thread and someone(s) were extolling the virtues of becoming a nurse, glass installer and short order cook and then this crap.
Seriously, you can learn something new on FR every day!
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