Posted on 06/21/2002 4:24:55 PM PDT by Anthem
The Washington Post reports today that whether Yaser Esam Hamdi is an "enemy combatant" or not, he is entitled to a lawyer and a chance to hear the government's proof against him, a federal public defender argued yesterday in a brief to an appeals court.
Hamdi, 21, was captured in Afghanistan with retreating Taliban forces in November, and he has been in U.S. custody ever since. He was moved from Guantanamo Bay, Cuba, to a Navy brig in Norfolk after disclosing that he was born in Louisiana and might be a U.S. citizen.
When Public Defender Frank W. Dunham Jr. tried to meet with him last month, the government resisted, saying that Hamdi is an enemy combatant and that he is not entitled to a lawyer and does not enjoy other constitutional rights.
Timothy Lynch, director of the Cato Institute's Project on Criminal Justice had the following comments on the issue:
"The implications of the federal government's brief go far beyond the Hamdi matter. The Bush administration has now asserted that (a) citizens can be taken into custody as enemy combatants; (b) that, beyond such battlefield detainees, citizens can also be taken off the streets of any American town; and (c) that civilian courts cannot intervene to inquire into the legality of such arrests and detentions. When these propositions are taken together as a whole, the implications are very disturbing.
"The bottom line is that President Bush and Attorney General Ashcroft are attempting to suspend the 'Great Writ' of habeas corpus, which allows Americans to get into a court of law to challenge the legality of their arrest and to have their liberty restored if the court agrees that the arrest was unlawful. Without judicial review, the police can arrest people without warrants and jail people without trials.
"The controversial 'military order' that Bush issued last November has, in effect, now been extended to American citizens--and the writ of habeas corpus is now under assault. President Bush seems to believe that his commander-in-chief power gives him the authority to ignore every other part of the Constitution when he deems it necessary. The president is profoundly mistaken about that -- and the judiciary should resist this power grab."
Lynch is the author of the new Cato Institute report, "Breaking the Vicious Cycle: Preserving Our Liberties While Fighting Terrorism."
He is being tried as an enemy combatant.
End of story.
IMO he should have been shot on sight.
LVM
If they have good evidence, get his butt in court and fry the bastard.
Why on earth would they hold the guy for over half a year if they did have good evidence? ("We wanna' talk to him!" Well convict the dork and chat away when he's in prison. If you don't have a prayer to convict a guy, then find some other penpal!)
If they don't, no reason to hold him. Without strong evidence to prove otherwise, he could be some schmuck wannabe grabbed when some bird colonel needed a bod to make his charts look good. (That worked for a long time in S.E. Asia, but enough is enough.)
As luck would have it, my daughter (lawyer) and some of her law school buddies dropped by to bring me supper. I hoped to talk about soccer. Now I'm in the middle of a flippin' debate on you name it.
What is coming out, is our historic view of war law vs civilian law vs international law is so out of date.
Here are some interesting points coming out.
USA never formally delared war on Afghanistan, or any other sovereign nation. Nor vice versa.
So how can Hamdi be a prisoner of war? His internationally recognized uniform is what? His national flag?
Valid point that our Constitution does not travel internationally with our citizens. When in Rome, tough beans.
But, he's here. He's on our soil. Citizen or not, our Constitution has applied to occupants of any birth. One of the houseguests here participated in the local conviction of a German tourist. Death penalty. Our soil, our rules, adios!
That German tourist murderer did get as speedy a trial (faster 'n seven months) and a court appointed atty, i.e. all the trappings of our Constitution. Including the chair.
That was for a crime committed on our soil.
This Hamdi guy apparently had intent, or intentions to intend, but didn't actually do anything, and he's getting crappier treament than a tourist who did murder.
Sorry, time to close up and either I eat here or go somewhere else.
Looks to me like it depends upon whether this guy is a citizen or not. If so, charge him with treason, and habeas corpus applies. If not, then he is a POW or a captured spy/sabotuer. Either way his status should be clarified.
All except petitioner Haupt are admittedly citizens of the German Reich, with which the United States is at war. Haupt came to this country with his parents when he was five years old; it is contended that he became a citizen of the United States by virtue of the naturalization of his parents during his minority and that he has not since lost his citizenship. The Government, however, takes the position that on attaining his majority he elected to maintain German allegiance and citizenship or in any case that he has by his conduct renounced or abandoned his United States citizenship.
We have gone to war in the past against groups who were not nations. (Barbary pirates). We have also had a whole bunch of wars lately against nations without ever declaring war. (Korea, Vietnam, Kosovo, etc.)
I think he ought to be tried in court for taking up arms against the US, and then have his citizenship revoked.
We have what passes for a declaration of war these days, a declaration of intent to disable the organization that attacked the US which includes "the use of any and all necessary force". An attack on our soil by an organization, governmental or not, constitutes an act of war (or rebellion) against us, declared or not.
HABEAS CORPUS - Lat. "you have the body" Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.
In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed that the Supreme Court has "recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.' Harris v. Nelson, 394 U.S. 286, 290-91 (1969). " Therefore, the writ must be "administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris, 394 U.S. at 291.
The writ of habeas corpus serves as an important check on the manner in which state courts pay respect to federal constitutional rights. The writ is "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Harris v. Nelson, 394 U.S. 286, 290-91 (1969). Because the habeas process delays the finality of a criminal case, however, the Supreme Court in recent years has attempted to police the writ to ensure that the costs of the process do not exceed its manifest benefits. In McCleskey the Court raised barriers against successive and abusive petitions. The Court raised these barriers based on significant concerns about delay, cost, prejudice to the prosecution, frustration of the sovereign power of the States, and the "heavy burden" federal collateral litigation places on "scarce federal judicial resources," a burden that "threatens the capacity of the system to resolve primary disputes." McCleskey, 499 U.S. at 467.
The Court observed that"[t]he writ of habeas corpus is one of the centerpieces of our liberties. `But the writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly administration of justice and therefore weaken the forces of authority that are essential for civilization.' " McCleskey, 499 U.S. at 496 (quoting Brown v. Allen, 344 U.S. 443, 512 (1952) (opinion of Frankfurter, J.))
The predominant inquiry on habeas is a legal one: whether the "petitioner's custody simpliciter" is valid as measured by the Constitution. Coleman v. Thompson, 501 U.S. 722, 730 (1991). The purpose of the great writ is not to relitigate state trials.
Dismissal of habeas petition under the "total exhaustion" rule of Rose v. Lundy, 455 U.S. 509, 520 (1982) (each claim raised by petitioner must be exhausted before district court may reach the merits of any claim in habeas petition).
Jury exposure to facts not in evidence deprives a defendant of the rights to confrontation, cross-examination and assistance of counsel embodied in the Sixth Amendment. Dickson v. Sullivan, 849 F.2d 403, 406 (9th Cir. 1988); see also Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993) (introduction of extraneous prior bad acts evidence during deliberations constitutes error of constitutional proportions), cert. denied, 114 S.Ct. 1294 (1994). However, a petitioner is entitled to habeas relief only if it can be established that the constitutional error had "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 & n.9 (1993). Whether the constitutional error was harmless is not a factual determination entitled to the statutory presumption of correctness under 28 U.S.C. S 2254(d). Dickson, 849 F.2d at 405; Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir. 1987).
In a habeas corpus proceeding, a federal court generally "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2553-54 (1991). This doctrine applies to bar federal habeas review when the state court has declined to address the petitioner's federal claims because he failed to meet state procedural requirements. Id. at 2254; see also Sochor v. Florida, 504 U.S. 527, 119 L. Ed. 2d 326, 337 (1992). Thus, the independent state grounds doctrine bars the federal courts from reconsidering the issue in the context of habeas corpus review as long as the state court explicitly invokes a state procedural bar rule as a separate basis for its decision. Harris v. Reed, 489 U.S. 255, 264 n.10 (1988).
Habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice. O'Neal v. McAninch, 115 S. Ct. 992, 994-95 (1995). It is the responsibility of the court, once it concludes there was error, to determine whether the error affected the judgment. If the court is left in grave doubt, the conviction cannot stand. Id.
On a petition for a writ of habeas corpus, the standard of review for a claim of prosecutorial misconduct, like the standard of review for a claim of judicial misconduct, is " 'the narrow one of due process, and not the broad exercise of supervisory power.' " Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). "The relevant question is whether the prosecutor['s] comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Id. (quoting Donnelly, 416 U.S. at 643).
A federal court has no supervisory authority over criminal proceedings in state courts. The only standards we can impose on the states are those dictated by the Constitution. Daye, 712 F.2d at 1571. Objectionable as some actions might be, when considered in the context of the trial as a whole they are not "of sufficient gravity to warrant the conclusion that fundamental fairness has been denied." Id. at 1572. See Gayle v. Scully, 779 F.2d at 807 (trial judge's caustic, sarcastic comments and offensive conduct, although perhaps inconsistent with institutional standards of federal courts, did not violate due process); Daye, 712 F.2d at 1572 (trial judge's skeptical attitude toward defendant's testimony, and his reinforcement of identification evidence by government witnesses, "approached but did not cross the line that permits [a ruling] that the Constitution has been violated").
The fact that a jury instruction is inadequate by Federal Court direct appeal standards does not mean a petitioner who relies on such an inadequacy will be entitled to habeas relief from a state court conviction. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). In habeas proceedings challenging state court convictions, relief is available only for constitutional violations.
Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Cupp v. Naughten, 414 U.S. at 147 (constitutionality determined not by focusing on ailing instruction "in artificial isolation" but by considering effect of instruction "in the context of the overall charge."). See also Henderson v. Kibbe, 431 U.S. 145, 155 (1977) (recognizing that "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law" and, therefore, a habeas petitioner whose claim of error involves the failure to give a particular instruction bears an "especially heavy" burden).
Shackling, except in extreme forms, is susceptible to harmless error analysis. Castillo v. Stainer, 997 F.2d at 669. In a habeas case dealing with a state court sentence, the question is whether the shackling "had substantial and injurious effect or influence in determining the jury's verdict." Id. (quoting Brecht v. Abrahamson, 113 S. Ct. 1710, 1714 (1993)). If we are in "grave doubt" whether the error affected the verdict, the error is not harmless. O'Neal v. McAninch, 115 S. Ct. 992, 994 (1995).
The risk of doubt, however, is on the state. Id. at 996 (rejecting language in Brecht v. Abrahamson which places on defendant burden of showing prejudice). See Castillo v. Stainer, 983 F.2d at 149 (finding shackling at trial harmless error because defendant only wore waist chain that could not be seen by jury).
That suspension was done by Abraham Lincoln.
The Bush administration is not doing anything that Abraham Lincoln did not do. Oh yes Lincoln suspended it for Southerners who had been american citizens until they delcared war on the US and for southern symphathisers who had not yet taken up arms against the US.
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