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Supreme Court Asked to Transfer Padilla (Please, Your Honor, Can we Conduct a War on Terrorism?)
Rueters ^ | Dec. 28, 2005 | unknown

Posted on 12/28/2005 6:50:02 PM PST by PerConPat

Wed Dec 28, 5:35 PM ET WASHINGTON (Reuters) - The U.S. government on Wednesday asked the Supreme Court to transfer American "enemy combatant" Jose Padilla from U.S. military custody to federal authorities in Florida -- one week after an appeals court refused a similar request.

In a filing to the high court, Solicitor General Paul Clement asked for Padilla's release so he can stand trial on charges of being part of a support cell providing money and recruits for militants overseas.

Padilla was indicted last month in Florida for conspiracy to murder and aiding terrorists abroad but the charges make no reference to accusations made by U.S. officials after his arrest in May 2002 that he plotted with al Qaeda to set off a radioactive "dirty bomb" in the United States.

Last week, in a rebuke to the Bush administration, a U.S. appeals court in Richmond, Virginia, denied the Justice Department's request to approve his transfer from military to civilian custody...

(Excerpt) Read more at news.yahoo.com ...


TOPICS: Extended News; News/Current Events; US: Florida; War on Terror
KEYWORDS: 4thcircuit; dirtybomb; enemycombatant; gwot; padilla; paulclement; radioactivematerial; scotus
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To: Cboldt

I'll re-read some of what you've posted tomorrow morning. I had thought that FNC reported today a defendant was claiming the government can't use the wiretaps against him, but I could be wrong about that; I was only half listening.


101 posted on 12/29/2005 7:48:49 PM PST by Peach (The Clintons pardoned more terrorists than they ever captured or killed.)
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To: Cboldt

Read the summary; got it.


102 posted on 12/30/2005 4:41:06 AM PST by Peach (The Clintons pardoned more terrorists than they ever captured or killed.)
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To: PerConPat

exactly right.


103 posted on 12/30/2005 4:59:57 PM PST by oceanview
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To: Peach

those cases will be entering the system soon, and you can be sure the left is simply going to shop them to a court like the 9th circuit to get a favorable ruling tossing out wiretap evidence, at which point the media will again assert the "Bush broke the law, impeach him" mantra.


104 posted on 12/30/2005 5:02:26 PM PST by oceanview
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To: wotan

they would have given Padilla his due process - a military tribunal - if the federal courts had kept their hands off this case. it is the courts that have delayed this, and resulted in his 3 year detainment without a trial (a military tribunal is a trial).

what you see now is the endgame - the administration knows they will lose the enemy combatant designation case in the SCOTUS - so they have to try Padilla on charges on which they can actually bring evidence in open court. that's what the request to transfer him to civilian court is all about. the appeals court (led by Luttig) and apparently the SCOTUS want to stick it in their eye and rule on the enemy combatant designation, setting a precedent to disallow its use in the future.


105 posted on 12/30/2005 5:06:44 PM PST by oceanview
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To: lugsoul

they only "backtracked" because they know they will lose the case in the SCOTUS. if they thought they would win it, they would be preparing Padilla for his military tribunal right now, rather then assembing this civilian case in Florida on lesser charges - to try and get him on something at least.


106 posted on 12/30/2005 5:09:00 PM PST by oceanview
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To: oceanview

Under the Constitution, US citizens are entitled to a trial by a jury of their peers. A military tribunal doesn't provide this. Such tribunals are part of the executive branch and are not subject to the usual checks and balances.

The Constitution is not, of course, a suicide pact. If we had thousands of US citizen/terrorists one might have to ignore Constitutional guarantees, but my understanding is that this was the one and only US citizen being denied his right to a speedy trial by a jury of his peers. We should not lightly discard our protections against encroachment by government.


107 posted on 12/31/2005 11:39:22 AM PST by wotan
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To: wotan

extend this concept to the battlefield. suppose instead of being caught at OHare airport, Padilla had been caught after a shootout in an Afghan cave. what happens then, does he also get the trial you say he deserves? does the army have to mirandize him? does the army have to travel with a criminalist to take evidence against him as they would for any "normal" criminal? do the soldiers at the shootout need to be deposed for his trial? how would he get a fair trial, if these normal procedures that are part of any criminal prosecution in this country, were not followed?

Padilla cannot get a trial by the standards in the civilian justice system. are the foreign wiretaps used admissable? do we have to allow his lawyers to depose the top AQ people we have captured as part of Padilla's defense?

as far as I am concerned, he gave up his citizenship when he became an agent of a foreign power.


108 posted on 12/31/2005 7:58:26 PM PST by oceanview
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To: oceanview
suppose instead of being caught at OHare airport, Padilla had been caught after a shootout in an Afghan cave. what happens then, does he also get the trial you say he deserves?

Why not? So long as we are talking about a handful of US traitors, why abandon our usual legal procedures? Consider your own example. What if he says "I wasn't firing on US soldiers. They kidnapped me because they heard I was American, but didn't kill me because they found out I'm a Muslim." Sounds implausible to me. I'd vote guilty if that's the whole defense. But what if he can bring forth credible witnesses that support his story?

Something Bush said shortly after 9/11 has stuck with me, although he quickly forgot it. To paraphrase, he said we should go about our business and not let terrorists force us to change our way of life.

109 posted on 01/01/2006 4:41:38 AM PST by wotan
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To: wotan; oceanview

What would have happened to a German-American who sided with the Nazis during WWII, went to Germany to fight against our troops, entered into a plot to return to the US to kill a massive number of civilians in America, was captured while entering the country, and was carrying proof in his possession of his contacts with top Nazi leaders?

I think he would have been (should have been) executed as an enemy spy by a military tribunal, and that his capture would have been part of the war effort and not a civil matter.


110 posted on 01/01/2006 4:48:13 AM PST by xzins (Retired Army Chaplain and Proud of It!)
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To: PerConPat
The President is now required to play "Mother, may I?" with the Judiciary while fighting a global war on terror.

Yeah...last I checked the Constitution hasn't been officially repealed. Padilla is a US citizen captured in the United States. The Supreme Court really does have a issue of law here. It is vitally important to decide if the President alone gets to decide who does and does not get the protections of the Bill of Rights.

111 posted on 01/01/2006 5:04:01 AM PST by garbanzo (Government is not the solution to our problem. Government is the problem.)
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To: xzins
What would have happened to a German-American who sided with the Nazis during WWII, went to Germany to fight against our troops, entered into a plot to return to the US to kill a massive number of civilians in America, was captured while entering the country, and was carrying proof in his possession of his contacts with top Nazi leaders? I think he would have been (should have been) executed as an enemy spy by a military tribunal, and that his capture would have been part of the war effort and not a civil matter.

No doubt you are thinking of Burger, et. al., but what does that have to do with Padilla?

112 posted on 01/01/2006 6:55:16 AM PST by wotan
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To: wotan

so you want to have the US military travel with a criminal investigation team, just in case they might encounter US citizens on the battlefield? do we have to arraign the captured person within 48 hours too?

we are either at war with these people, or we aren't. either they are agents of foreign powers, or they aren't. we can't be at war with just some of them, while any US citizens who join the cause get treated like someone who just robbed $50 from a 7-11.


113 posted on 01/01/2006 8:23:36 AM PST by oceanview
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To: garbanzo

the proponents of "trials in all cases for US citizens" believe that even if that person is not on US soil, they have the same rights.

some time ago, the CIA killed a US citizen in Yemen I believe with a drone missile. I guess those CIA agents should be arrested, they clearly violated the due process rights of that suspect by simply blowing him away as soon as they had the chance. no arrest, no trial, no due process - just a hellfire missile up his a*s.


114 posted on 01/01/2006 8:26:46 AM PST by oceanview
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To: oceanview

Thank you for all the legal reasoning you have demonstrated in this thread. I now have ample ammunition to justify the actions of my Confederate ancestors, when they summarily executed Yankee officers for inciting servile insurrection in the south. Terrorism should never be permitted to go unchalleged.


115 posted on 01/01/2006 8:58:46 AM PST by aQ_code_initiate
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To: aQ_code_initiate

well, take from it whatever you will.

however, my line of reasoning on this issue is going to lose ultimately in the SCOTUS. and don't think this will not go un-noticed by our enemies - who will seek to have their cell members in the US obtain legal resident and citizenship status as quickly as possible so they can be protected by the judicial system of the country they are trying to destroy.


116 posted on 01/01/2006 9:41:01 AM PST by oceanview
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To: garbanzo
Yeah...last I checked the Constitution hasn't been officially repealed. Padilla is a US citizen captured in the United States. The Supreme Court really does have a issue of law here. It is vitally important to decide if the President alone gets to decide who does and does not get the protections of the Bill of Rights.

Yeah...and last I checked the President is charged by the Constitution with running the war effort. Padilla has been designated an enemy combatant with the approval of the appeals court. Now there is more legal jockeying to decide if he can essentially have a dual status as a citizen and a combatant so as to avoid a likely adverse ruling by the SCOTUS on the "combatant" issue. This dilemma is one that no doubt deeply affects those who probably lose sleep over the question of whether one can pick a flower without affecting a star. However, as I've stated before in the thread, I am more concerned with the prevention of another 9/11. When I see more than a few citizens being rounded up and tossed into the slammer for being "enemy combatants," I'll take another look at it. And no, I'm not overly worried about being one of those rounded up. Lastly, the Congress has the power to impeach and convict any President who violates any citizen's the Bill of Rights.
117 posted on 01/01/2006 10:26:21 AM PST by PerConPat (A politician is an animal which can sit on a fence and yet keep both ears to the ground.-- Mencken)
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To: PerConPat
Yeah...and last I checked the President is charged by the Constitution with running the war effort. Padilla has been designated an enemy combatant with the approval of the appeals court.

Why is then the Bush Admin running from the US Supreme Court, the final arbiter of law in the US? Secondly, the mumbling about "the war effort" doesn't magically eliminate the Bill of Rights. Never has, never will - the Constituion simply doesn't give the President that power even in times of war.

Please answer the following. Would you include among the wartime powers of the Presidency as the right to suspend Congress and rule by decree?
The right to shut down dissident newspapers or TV channels?
The right to outlaw particular religions?
The right to suppress peaceful demonstrations against the war?
The right to outlaw private ownership of guns?
The right to arbitrary search and seizure?
The right to arbitrary seizure of property without compensation?
The right to hold people without indictment or trial?
The right to inflict punishment on people without trial?

I'm serious about your answer to these questions.

118 posted on 01/01/2006 2:40:03 PM PST by garbanzo (Government is not the solution to our problem. Government is the problem.)
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To: wotan

Padilla is Abdullah al Muhajir.

And that is precisely what this all has to do with the German analogy.

Padilla did exactly those things.


119 posted on 01/01/2006 4:17:42 PM PST by xzins (Retired Army Chaplain and Proud of It!)
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To: garbanzo
Why is then the Bush Admin running from the US Supreme Court, the final arbiter of law in the US?

The thread is full of my comments on this matter. What one person calls "running" another might term "using the system."

Secondly, the mumbling about "the war effort" doesn't magically eliminate the Bill of Rights.

I never said that it did. What would be your reaction if the President was able to pack the SCOTUS with justices that consistently ruled with him? That is theoretically possible.

...the Constituion simply doesn't give the President that power even in times of war.

The Constitution basically gives the Chief Executive the powers that the people, through their elected representatives, will grant him. If the Congress and the President were so directed by the people, Federal court judges could be removed and others appointed without delay, not to mention amending the Constitution itself.


Please answer the following. Would you include among the wartime powers of the Presidency as the right to suspend Congress and rule by decree...?

Allow me to sum it up this way. I think a better question would be should any of this be done? My answer is, given the current situation and any that I can envision, no.

However, I do note the use of the word "people" in the question regarding holding without indictment or trial. So, I'll expand a little here. Enemy combatants, IMHO, should be held for the duration of hostilities. US citizens in Padilla's situation ought to be handled on a case by case basis, as they are now.

I understand the actions taken thus far in the Padilla affair. And my previous posts on this thread have addressed my feelings on this subject. I choose, currently, to trust the Administration's actions and judgment in this case for reasons stated in my previous post to you. Civil liberties must always be balanced with national security concerns; and perfection will not be possible.

I'm serious about your answer to these questions.

And I have been serious in my responses, as well as respecting yours.
120 posted on 01/01/2006 4:25:52 PM PST by PerConPat (A politician is an animal which can sit on a fence and yet keep both ears to the ground.-- Mencken)
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