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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: PerConPat
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.

Actually it isn't. Congress sets the number of justices on the Supreme Court and the Senate must confirm all judicial nominations serving as an important independent check on the executive.

The Constitution basically gives the Chief Executive the powers that the people, through their elected representatives, will grant him.

You might want to read the document and notes and comments made by the Framers on the same. The powers of the Chief Executive are outlined in Article II of the Constitution. His powers are the creation of the Constitution which is the supreme law of the land and he can't revoke any of its provisions even if Congress so decides because Congress doesn't have the power to legislatively overturn the Constitution (see Marbury v. Madison). The Constitution can be amended but the President literally has no role in the process.

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.

Given that the "hostilities" are never-ending, you're effectively holding these people for life. And I'm uncomfortable with giving the President unilateral power to deprive someone of their rights.

choose, currently, to trust the Administration's actions and judgment in this case for reasons stated in my previous post to you.

And what is your basis for this trust? What if the President is lying about the evidence or that the evidence was miscollected? These are also possibilities and good reason why independent oversight is needed.

121 posted on 01/01/2006 5:27:43 PM PST by garbanzo (Government is not the solution to our problem. Government is the problem.)
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To: garbanzo

is Bush doing any of those things?

this SCOTUS you praise so highly has recently found a new constitutional right to avoid execution for Lee Malvo, totally stood the takings clause regarding private property on its head, and on and on. we are supposed to trust them?

if we had 5 Clarence Thomas on the court, the administration would win this Padilla case. its all totally arbitrary.


122 posted on 01/01/2006 5:44:52 PM PST by oceanview
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To: garbanzo

those combatants can receive due process - through military tribunal - no one is arguing that Padilla should be held forever without due process.

the courts on the other hand - are even looking to extend these rights to NON-CITIZENS. Should Khallid Sheik Mohammed have any rights in the US civilian court system?


123 posted on 01/01/2006 5:48:39 PM PST by oceanview
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To: garbanzo
Actually it isn't...

Sure it is, provided the Congress supports him/her. If the Congress is in a President's pocket, it's Katy bar the door.

You might want to read the document and notes and comments made by the Framers on the same.

All discussion fora are exasperating at times, aren't they? You are referring to my exact thinking on this. Of course, Constitutional amendment is what I had in mind. That's why I alluded to it. I am not, and have not been, suggesting that the President is all powerful. As I have said in previous posts in this thread, if a Congress gets the go ahead from the people, a President is gone. And I am especially fond of the Federalist Papers and Max Farrand's writings on these types of topics.

Given that the "hostilities" are never-ending...

Again as I stated in an earlier post on this thread, hostilities will be over when the American people, through the political process, say that they are ended--e.g.Vietnam.

And what is your basis for this trust?

The same basic reasons that that others are not willing to trust Bush 43-- a lifetime of forming a political and personal credo.
124 posted on 01/01/2006 6:33:52 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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To: oceanview
This isn't personally about Bush - we are a government of laws not men. I completely reject the idea that it's okay because Bush does it.

Secondly, I never suggested Bush is doing any of this - but arguments over enhanced war powers for the President suggest that Bush should operate independently of the Constitution if he deems it necessary for the war effort. If so, then at what point do you think that Bush has exercised way more power than he should, if you do think in fact there is such a point? Granted that the question was ducked over whether or not the President has the legal authority to do most of that list in time of war, but if you suggest that the powers of the presidency are not unlimited in wartime then what are the limits?

125 posted on 01/01/2006 7:42:16 PM PST by garbanzo (Government is not the solution to our problem. Government is the problem.)
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To: oceanview
those combatants can receive due process - through military tribunal - no one is arguing that Padilla should be held forever without due process.

A legitimate issue for the Supreme Court is whether or not a military tribunal for a civilian constitutes due process. The Court has not ruled on this particular set of facts (US citizen captured in the US) but the Bush Administration doesn't appear to want to take the chance the Court might see things differently.

126 posted on 01/01/2006 7:44:23 PM PST by garbanzo (Government is not the solution to our problem. Government is the problem.)
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To: garbanzo

they know they will lose the case based on some of Scalia's comments alone. we need more Thomas's but don't have them.

and it won't stop there. they will extend this same right to US citizen combatants on foreign soil, and have extended habeas rights to non citizens at Gitmo and will likely expand that also to include foreign prisoners - this is what is forcing the CIA to hop all over the world looking for prisons to hold them in.

terrorists are winning more often in the US judiciary, then on the field of battle.


127 posted on 01/01/2006 8:01:33 PM PST by oceanview
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To: garbanzo; oceanview
Granted that the question was ducked over whether or not the President has the legal authority to do most of that list in time of war...

Pardon the interruption, garbanzo, but are you referring to the "list" of questions you posed to me in your post #118 in this thread?
128 posted on 01/01/2006 8:08:33 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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To: garbanzo

it depends on the degree to which the things you have listed would come under the control (inside the US) of an agent of a foreign power. would you have allowed a Nazi radio station to setup and broadcast all over the US during WWII under first amendment protection? suppose it could be shown that an "organized religion" was essentially a front group for an agent of a foreign enemy inside the US, would the constitutional protection for freedom of religion mean it could not be "shut down"?


129 posted on 01/01/2006 8:14:36 PM PST by oceanview
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To: oceanview
they know they will lose the case based on some of Scalia's comments alone.

And? This is my problem more than the fate of Jose Padilla - that the adminstration is trying to do an end run around the legal process which is not something people committed to the rule of law do.

130 posted on 01/01/2006 10:51:18 PM PST by garbanzo (Government is not the solution to our problem. Government is the problem.)
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To: oceanview
would you have allowed a Nazi radio station to setup and broadcast all over the US during WWII under first amendment protection?

If by Nazi radio station, you mean a station that opposed the war or was pro-Nazi then yes I would. It would fall under free speech protection. Plenty of people in the 40s did in fact oppose the war. If the religous group were being shut down for their legitmate religious beliefs then no - if there is evidence of other criminal activity then arrest the responsible.

131 posted on 01/01/2006 10:57:32 PM PST by garbanzo (Government is not the solution to our problem. Government is the problem.)
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To: oceanview

Frankly, you are just being silly. Padilla is in this country right now. He has been held in prison for three years at substantial expense. Why can't the man have a trial before a civilian court, just as Timothy McVeigh did?


132 posted on 01/02/2006 5:25:53 AM PST by wotan
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To: xzins

Not according to the US Second Circuit Court of Appeals, which found that Roosevelt was acting in accord with Congressional authorization whereas Bush was not.

Bush has lost in 3 of 4 Federal Courts, now, which is why the administration is trying so hard to keep the Supreme Court from hearing the case.

For some reason, it is vital to certain persons in the Bush administration to ensure that any American citizen can be indefinitely detained without due process and deprived of legal representation upon the President's claim that he is an enemy combatant.


133 posted on 01/02/2006 6:55:18 AM PST by wotan
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To: wotan

Difference in times and courts, not in damning behaviors on the part of Abdullah Muhajir.


134 posted on 01/02/2006 7:44:46 AM PST by xzins (Retired Army Chaplain and Proud of It!)
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To: wotan

why can't he have a "regular" trial you ask?

what are you going to do, allow his ACLU lawyers to depose all the top AQ witnesses against him at the CIA prisons in Poland? the evidence needed to convict Padilla in open court, under normal US criminal rules of evidence, cannot be presented in that forum without compromising national security. It would be a circus.


135 posted on 01/02/2006 10:48:35 AM PST by oceanview
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To: garbanzo

its not an "end run around the legal process" - its simply an acknowldgement that the SCOTUS as currently composed, will rule against them. if we had a couple more Clarence Thomas's, the case would go the other way.


136 posted on 01/02/2006 10:50:12 AM PST by oceanview
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To: garbanzo

well, believe what you want I guess. by telling me you think the first amendment would protect the rights of a Nazi radio station to operate and broadcast whatever they wanted inside the US during WWII, you are only demonstrating that you view the constitution as a suicide pact in time of war. I suppose if this radio station came on and delivered coded messages to Nazi agents inside the US ("john has a long moustache" type stuff), that would be protected speech?


137 posted on 01/02/2006 10:55:45 AM PST by oceanview
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To: xzins
The "alleged" behaviors of Abudullah Muhajir, I would say at this point.

If we were simply going to accept the allegations as true, then what do we need a tribunal for, we should have just shot him on the tarmac. But, we don't accept allegations as true until demonstrated by due procedure. That's the American way. Allowing the President to deprive some citizens of the due process guaranteed by the Constitution is dangerous. It is even more dangerous when the President doesn't have a statute clearly allowing him to do so (as the Second Circuit noted). Actually, any such statute would be unconstitutional anyway, because Congress also has no right to deprive a person of due process.

We should be willing to spend a little on due process. Padilla is, to my knowledge, the ONLY citizen that the administration has attempted to try before a military tribunal. It didn't happen with Lindh (a citizen) or with Moussaoui (not a citizen, I believe). Why should it happen with Padilla?

The seriousness of the allegations are totally irrelevant here, because they have not been proved yet by due process.

Remember, your chance of being killed by Al-Qaida is far less than your chance of being murdered by your own government, as the 20th century clearly demonstrated. Personally, I trust Bush, but I don't trust his unknown successor (quite possibly Hillary - and she might not be the worst of the lot). Bush is creating all the tools an oppressive President would need to, uh, oppress.

138 posted on 01/02/2006 6:46:09 PM PST by wotan
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To: oceanview

This is the standard "fire-in-a-crowded theater" anti-free speech strawman. There's a difference between a station actively being used for espionage activities and simply opposing the war effort or actively arguing in favor of the Nazi regime. The former is not protected by free speech. The latter is. The government can prosecute criminal activity but not expession of ideas, which is point I was making in the list above.


139 posted on 01/02/2006 8:17:56 PM PST by garbanzo (Government is not the solution to our problem. Government is the problem.)
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To: oceanview
its not an "end run around the legal process" - its simply an acknowldgement that the SCOTUS as currently composed, will rule against them

The 4th Circuit Appeals Court seems to disagree. It doesn't matter if the Supreme Court is made up nine Clarence Thomas' or nine Stevens' it's still the Supreme Court of the United States. As the 4th Circuit Appeals suggested, it damages the credibility of the government when the ducks having its legal position reviewed by the highest court in the land because it's afraid it might lose.

140 posted on 01/02/2006 8:22:06 PM PST by garbanzo (Government is not the solution to our problem. Government is the problem.)
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