The Bush preventive detention system has been implemented with little regard for the law.Posted on 07/22/2002 8:07:11 AM PDT by white trash redneck
To understand the Bush administration's preference for military detention over criminal prosecution -- and the dangers of its approach -- compare the case of American Taliban John Walker Lindh with those of Jose Padilla, the suspected dirty-bomb-plotter who was arrested after flying into Chicago; and Yasser Esam Hamdi, the Louisiana-born Saudi Arabian captured in Afghanistan.
| The Bush preventive detention system has been implemented with little regard for the law. |
The Bush military-detention regime is part of a broader system of "preventive detention" -- incarceration of people who are neither convicted nor charged with any crime but who are perceived as dangerous -- that the administration has been cobbling together. This system represents the sharpest departure since September 11 from centuries of Anglo-American jurisprudence, and it is the most worrisome flirtation with police-statism.
Even the conservative U.S. Court of Appeals for the 4th Circuit raised an eyebrow at the administration's "sweeping proposition... that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so." The July 12 ruling suggested that the military has the power to detain enemy combatants and stressed that judges should be deferential to military judgments. But the court brushed aside as "premature" the administration's assertion that the court must dismiss a petition to release Hamdi without hearing evidence, because courts "may not second-guess" the military's basis for branding him (or anyone) an enemy combatant.
The administration's overreaching should not obscure the fact that the case for some kind of preventive detention has never been as strong as now. Al Qaeda's capacity to inflict carnage dwarfs any previous domestic security threat. Its "sleeper" agents are trained to avoid suspicion, so the careful ones cannot be arrested on criminal charges until it is too late. And their lust for martyrdom renders criminal punishment ineffective as a deterrent.
Without preventive detention, the government would have no plausible legal basis for detaining Padilla and Hamdi, no matter how dangerous they might be. It would have had no plausible basis for detaining any of the September 11 hijackers if it had suspected them of being linked to Al Qaeda before they struck. Nor could it legally have detained the so-called "20th hijacker," Zacarias Moussaoui -- who was suspected of terrorist intent -- had he not overstayed his visa. Nor, for that matter, could it hold at Guantanamo Bay more than 500 noncitizens captured in Afghanistan.
What should the government do when it is convinced of a suspect's terrorist intent but lacks admissible evidence of any crime? Or when a trial would blow vital intelligence secrets? Or when ambiguous evidence makes it a toss-up whether a suspect is harmless or a threat? There are only four options: Let the suspect go about his business unwatched; assign agents to tail him; prosecute him by stretching the definition of "criminal conspiracy" so far as to make it almost a thought-crime; or incarcerate him through preventive detention.
History shows that preventive detention is prone to abuse. We should be concerned that starting down that road could undermine the Bill of Rights and infect the entire criminal justice system. But these dangers can be controlled by wise legislation.
"No civilized nation confronting serious danger has ever relied exclusively on criminal convictions for past offenses. Every country has introduced, by one means or another, a system of preventive or administrative detention for persons who are thought to be dangerous but who might not be convictable under the conventional criminal law." So writes Alan Dershowitz of Harvard Law School, a passionate civil libertarian. And while the indiscriminate detention of 110,000 Japanese-Americans during World War II is almost universally condemned today, the confinement of thousands of German and Italian aliens -- based on individualized investigations and hearings to separate the loyal from the disloyal -- has attracted relatively little criticism.
The Bush preventive detention system has been implemented with little regard for the law, the rights of many detainees who turned out to be innocent, or international opinion. It began with Ashcroft's roundup of more than 1,100 noncitizens last fall, ostensibly for immigration violations, for crimes, and as material witnesses. This when-in-doubt-detain approach effectively reversed the presumption of innocence, in the hope of disrupting any planned follow-up attacks. It may have succeeded in this vital objective. But the legal and moral bases for holding hundreds of apparently harmless detainees, in conditions of unprecedented secrecy, seemed less and less plausible as weeks and months went by. Those classed as material witnesses, for example, were held far longer than necessary to secure their testimony. That was preventive detention in disguise. Worse, the administration treated many (if not most) of the mostly harmless detainees shabbily, and some abusively.
The Guantanamo detentions rest on legal doctrines allowing detention of enemy combatants until hostilities have ended. But the administration has violated at least the spirit of the 1949 Geneva Conventions by refusing to create a fair, credible process for determining which of these men are in fact enemy combatants.
It's past time for Congress to authorize and circumscribe a regime of temporary preventive detention, with strong safeguards against abuse, for suspected international terrorists. It should mandate that even people captured on or near foreign battlefields be given the chance to contest their "enemy-combatant" designations at hearings before military tribunals.
For suspects arrested in this country, Congress should authorize preventive detention without criminal charges if, and only if, the attorney general certifies that he has reasonable grounds to believe that 1) the suspect is a member of an international terrorist group or conspiracy; 2) his release would endanger public safety; and 3) prosecution is not a viable option, either because he has committed no crime or because the evidence is inadmissible or too sensitive for a public trial. The procedural safeguards should include these:
The President cannot just put anybody into detention at guantanamo- authority for this is in public law 107-40:
"authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States. "
The same authority under which Padilla and Hamdi are being held in military brigs.
Consider the consequence of Taylor's false argument:
By ignoring the congressional authorization to use the military against these people, it tries to justify a permanent law granting authority to detain anybody suspected of terrorism!
With "civil-libertarians" like these who needs tyrants?
The use of the Constitutional war powers is much more limited, and thus the better method.
FISA courts and the new Patriot Act powers are sufficient for use against those terrorists whom the congression has not authorized the use of the military against.
according to his own opinions and whims,
according to his authorization under the Constitution or by congress- if you don't like these limits then amend the Constitution.
with no necessity of evidence before a court. "
Evidence must be presented in court for the determination: as is presently being done for Padilla and Hamdi. If you don't like Habeas Corpus then suspend it or amend the Constitution.
This is my point! The Joint Resolution does not allow for this. Mrsmith is being plainly dense as normal. I dare mrsmith to get me one Congressional Legislator to say that the Joint Resolution gives the President the power to detain US Citizens by the US Military on US Soil without charge or representation. Just One. Mrsmith is good at making an opinion based on pure uneducated assumptions and not based on any legal citations. Even the Patriot Act does not allow for this. Mrsmith either is just plainly ignoring the "Legislative Intent" of the Resolution or just doesn't care.
People who support this type of power based solely on assumptions are just as dangerous as those who enact it by executive order. I am normally supportive of President Bush. But not in this case.
You've had your chance to show why Americans aren't "persons" but you haven't.
And you still won't.
Note: Courts often look to legislative intent for guidance in interpreting and applying a law. The legislative history, the language of the law, and the wrong to be corrected may provide indications of the legislative intent.
I have cited 18 USC 4001(a) as the standing statutory rewuirement with regards to this subject. Under our form of government mrsmith, the President cannot without an ACT of Congress overshadow any Federal Statute by Executive Order.
Mrsmith all you have presented is your interpretation of the Resolution. I ask you to make your case with statutory evidence? If you cannot not then state that it is just your opinion.
Stop being so thickheaded and lazy call the Senate Judicary Committee 1-800-648-3511 and get it from the horses mouth.
The language of the law is "persons".
Now, you cite something from "The legislative history, the language of the law.." or base an argument on "the wrong to be corrected " instead of just contituing your rant from the previous thread.
It is not good behavior to just continue an argument from a previous thread over onto another.
If you wish to , just start the argument all over again.
This practise makes it impossible to lie about what was previously said- and keeps over-excited people from spamming threads.
I do not wish to spam this thread.
INTENT MRSMITH ITS ALL ABOUT INTENT. From your boy Senator BYRD.
USE OF FORCE AUTHORITY BY THE PRESIDENT -- (Senate - October 01, 2001)
"Two aspects of the resolution are key: First, the use of force authority granted to the President extends only to the perpetrators of the September 11 attack. It was not the intent of Congress to give the President unbridled authority--I hope it wasn't--to wage war against terrorism writ large without the advice and consent of Congress. That intent was made clear when Senators modified the text of the resolution proposed by the White House to limit the grant of authority to the September 11 attack.
“Those persons, organizations or nations that were not involved in the September 11 attack are, by definition, outside the scope of this authorization.”
“ The President, of course, does have limited authority under the War Powers Resolution to prosecute terrorist organizations that operate against our interests and the interests of all peace-loving nations. He has that power regardless of whether Congress has passed a resolution granting him specific authority. He has that inherent power under the Constitution, but he may not exercise it without triggering the reporting and termination requirements of the War Powers Resolution. In his address to Congress, the President cited organizations which are known terrorist organizations in the world. Regardless of their history, if those organizations were not involved in the September 11 attack, they fall outside of the broad grant of authority provided by the Congress for the President to act in S.J. Res 23 . “
“The intent of the use of force authorization Congress approved in the aftermath of the attack on America is clear. It is firmly anchored to those individuals, organizations, or nations who were complicit in the September 11th attack. Extended operations against other parties or nations not involved in the attack would require--or would it--additional specific authorization beyond the 60 day period provided for in the War Powers Resolution. Whether the language of S.J. Res . 23 adequately supports the intent is another matter.”
What can't bebate like a human being? Cite me law mrsmith not your own arrogant opinions.
Why would I not support Habeas Corpus and wish to suspend it???
Well, you said the President could hold him "with no necessity of evidence before a court. "
Since Padilla, like Hamdi, has Habeas corpus proceedings in court now, at which the government must show it's reasons for holding them as combatants- I assumed you disagreed with their use of Habeas Corpus petitions.
What makes you think the president musn't show evidence before a court?
Look at any of the amendments you care to consider. You'll find a law - indeed, whole groups of laws - that violate the spirit if not the letter of the Bill of Rights.
Will we draw a line in the sand? Will we say "Here, and no further!"? Well, perhaps...but it would be very much out of character for the vast majority of the electorate. I dare say that not one voter in ten could name all 10 amendments without help.
And so, our hypothetical young lady who is a little bit pregnant grows more so. And the orbit of our freedoms diminishes apace.
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