Posted on 06/24/2002 7:16:31 AM PDT by xsysmgr
Jose Padilla, a.k.a. Abdullah al-Muhajir, supposedly plotted to build and detonate a radiological "dirty bomb." He is a U.S. citizen. Yet he's being detained by the military — indefinitely, without seeing an attorney, even though he hasn't been charged with any crime. Yaser Esam Hamdi is also a U.S. citizen. He, too, is being detained by the military — indefinitely, without seeing an attorney, even though he hasn't been charged with any crime. Meanwhile, Zacarias Moussaoui, purportedly the 20th hijacker, is not a U.S. citizen. Neither is Richard Reid, the alleged shoe bomber. Both have attorneys. Both have been charged before federal civilian courts.
What gives? Four men: two citizens and two non-citizens. Is it possible that constitutional rights — like habeas corpus, which requires the government to justify continued detentions, and the Sixth Amendment, which assures a speedy and public jury trial with assistance of counsel — can be denied to citizens yet extended to non-citizens? That's what the Bush administration would have us believe. Citizen Padilla's treatment is perfectly legitimate, insists Attorney General John Ashcroft, because Padilla is an "enemy combatant" and there is "clear Supreme Court precedent" to handle those persons differently, even if they are citizens.
Ashcroft's so-called clear precedent is a 1942 Supreme Court case, Ex Parte Quirin, which dealt with Nazi saboteurs, at least one of whom was a U.S. citizen. "Enemy combatants," said the Court, are either lawful — for example, the regular army of a belligerent country — or unlawful — for example, terrorists. When lawful combatants are captured, they are POWs. As POWs, they cannot be tried (except for war crimes), they must be repatriated after hostilities are over, and they only have to provide their name, rank, and serial number if interrogated. Clearly, that's not what the Justice Department has in mind for Padilla.
Unlawful combatants are different. When unlawful combatants are captured, they can be tried by a military tribunal. That's what happened to the Nazi saboteurs in Quirin. But Padilla has not been charged much less tried. Indeed, the president's executive order of November 2001 excludes U.S. citizens from the purview of military tribunals. If the president were to modify his order, the Quirin decision might provide legal authority for the military to try Padilla. But the decision provides no legal authority for detaining a citizen without an attorney solely for purposes of aggressive interrogation.
Moreover, the Constitution does not distinguish between the protections extended to ordinary citizens on one hand and unlawful-combatant citizens on the other. Nor does the Constitution distinguish between the crimes covered by the Fifth and Sixth Amendments and the terrorist acts Padilla is suspected of planning. Still, the Quirin Court justified those distinctions — noting that Congress had formally declared war and thereby invoked articles of war that expressly authorized the trial of unlawful combatants by military tribunal. Today, the situation is very different. We've had virtually no input from Congress: no declaration of war, no authorization of tribunals, and no suspension of habeas corpus.
Yet those functions are explicitly assigned to Congress by Article I of the Constitution. It is Congress, not the executive branch, which has the power "To declare War" and "To constitute Tribunals inferior to the supreme Court." Only Congress can suspend the "Privilege of the Writ of Habeas Corpus … when in Cases of Rebellion or Invasion the public Safety may require it." Congress has not spoken — except by enacting the USA Patriot Act. And there, we do find authorization for detention of persons suspected of terrorism — but only non-citizens and only for seven days, after which they must be released unless criminal charges are filed or deportation proceedings commenced.
Without either constitutional or statutory authority, the administration has decided that it will set the rules, prosecute infractions, determine guilt or innocence, then review the results of its own actions. That's too much unchecked power in the hands of the executive branch — making a mockery of the doctrine of separation of powers that has been a cornerstone of our Constitution for two-and-a-quarter centuries. Even persons convinced that President Bush cherishes civil liberties and understands that the Constitution is not mere scrap paper, must be unsettled by the prospect that an unknown and less honorable successor could exploit some of the dangerous precedents that the Bush administration has put in place.
In a nutshell, we cannot permit the executive branch to declare unilaterally that a U.S. citizen may be characterized as an enemy combatant, whisked away, detained indefinitely without charges, denied legal counsel, and prevented from arguing to a judge that he is wholly innocent.
That does not mean the Justice Department must set people free to unleash weapons of mass destruction. But it does mean, at a minimum, that Congress must get involved, exercising its responsibility to enact a new legal regimen for citizen-detainees in time of national emergency. That regimen must respect citizens' rights under the Constitution, including the right to judicial review of executive branch decisions. Constitutional rights are not absolute. But they do establish a strong presumption of liberty, which can be overridden only if government demonstrates, first, that its restrictions are essential and, second, that the goals it seeks to accomplish cannot be accomplished in a less invasive manner. When the executive, legislative, and judicial branches agree on the framework, the potential for abuse is significantly diminished. When only the executive has acted, the foundation of a free society can too easily erode.
— Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.
BUMP
Walt
Yes, it's true: Rush is being legally held incognito as an illegal combatant and any 'Rush' you hear on the radio is just some ringer brought in by the EIB Network to keep the show from losing money.
Or if this isn't so, how would we know?
The court stated a lot of history in that decision. "Unlawful combatants" can also be spies. The guy came to do "recon". That is "spying".
Throughout history spies have been hung. Starting with the revoulutionary war, the war of 1812, the Civil War.
This is nothing new. No precident -- we've been there, done that.
They can take it, but they need to use due process. What if the person was inncocent or a case of mistaken identity? Are they not allowed to defend themselves in Court?
Is there something that Padilla knows that makes it imperative to keep him incommunicado? Aside from the legal and constitutional issues, this just doesn't make sense, when compared to the treatment of Reid, Moussaoui and Lindh.
Tell me KC, do you think the government should have to prove you have 'taken up arms' or is some beauracrat's assertion good enough for you? If a politician's word is good enough to convict a man without trial, then I think we've already lost the war.
Is Padilla scum? Probably. Should we send him to the firing squad without any legal procedings? Absolutely NOT! Try him, then fry him, if that is what the jury of citizens demands.
I don't think anyone here is arguing that suspected terrorists should be classified as common criminals...but there at least has to be some sort of formal process for judging whether or not someone is a terrorist...
Just how does the threat increase by allowing him before a judge and giving him due process? Heis still being held, he is not allowed to communicate without the government listening, even on atty client conversations, where does the additional danger you seem to fear come from? What makes him more dangerous when he is allowed to defend himself in court?
They explain that rules of war have been in the constitution from the beginning. They are based on common law rules of war and rules of war passed by congress. They were ammended after the war of 1812 to include U.S. Citizens.
They were used extensively in the Civil War.
There is nothing new in how they are to be used.
Again, you should download the decision and read it. It is 17 pages and very enlightening. The decision was 8 to 0.
It is constitutional. Law enforcement cannot deal with preventing spies and sabatours. That is why the rules of war were passed by congress. It is a war issue not a law enforcement issue.
The nut of the problem. If the administration would stop being so dang PC and modify the order, I would not have a problem. Though they would have to follow the UCMJ. What was in their minds when they allowed this guy to reenter the US?! Pass through the Custom Zone, then arrest him reading him his Maranda Rights. DUH!
And it says, revoked at will by any legal authority, right? NO! No Federal Agency can strip you of your Citizenship without due process. This is WHAT THE CONSTITUTION AND BILL OF RIGHTS ARE FOR!
Second, any citizen should be able to file a habeas corpus petition. If he can show he isn't an illegal combatant (that's the correct standard, no crime need have been committed other than taking arms against the U.S.), then the court can order his release.
"Congress must get involved, exercising its responsibility to enact a new legal regimen for citizen-detainees in time of national emergency." That'll be the day. With the Daschle Dims in charge of the Senate, we'd get Congressional action after some Al-Qaeda nut finally succeeds in nuking us. We're in a war now; I want the enemy soldiers locked up until it's over.
This is what the US Supreme Court upheld, if you can't see the difference in these cases, then I just don't know what to tell you.
"1)That the charges preferred against petitioners on which they are being tried by military commission appointed by the order of the President of July 2, 1942, allege an offense or offenses which the President is authorized to order tried before a military commission. (2) That the military commission was lawfully constituted. (3)That petitioners are held in lawful custody, for trial before the military commission, and have not shown cause for being discharged by writ of habeas corpus.? The motions for leave to file petitions for writs of habeas corpus are denied. The orders of the District Court are affirmed. The mandates are directed to issue forthwith.
Big difference here! What trial? What Lawful Military Tribunal?
That is why the Court denied the case filed by the California Lawyers in behalf of the guys in Cuba.
The Court ruled that it has no jurisdiction because it is coverd by the rules of war passed by congress as explained by the Supreme Court.
It is constitutional. Just don't spy for the enemy and you will not get caught up in it.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.