Posted on 07/15/2002 8:25:01 AM PDT by count me in
If he can spare a few hours from announcing new restrictions on civil liberties, Attorney General John Ashcroft might stop by to hear one of Ronald Reagan's best judicial appointees.
Ashcroft doesn't do much listening, but U.S. District Judge John Coughenour, in his annual address to Western Washington University's Munro Teachers Seminar, might have set him straight on a fundamental truth that has escaped our nation's chief law enforcement officer.
"The Constitution of the United States says what it means and means what it says" is a basic mantra to Coughenour, the chief federal judge for Western Washington.
Coughenour has had occasion to repeat those words, not only at Western but when FBI chief Robert Mueller suggested to him in a conversation that security has supplanted civil liberties concerns in post-9/11 America.
Protestations of a liberal judge?
Nonsense!
Jack Coughenour is one of Republican former Sen. Slade Gorton's closest friends. He was Reagan's first nominee to the federal bench in these parts. His screener at the Justice Department was Ted Olson, who is now U.S. solicitor general.
He is, as well, renowned as a no-nonsense courtroom disciplinarian.
Woe be unto any attorney who arrives late in Coughenour's courtroom. Or any male barrister who does not don a coat and tie, even for the briefest status conference. Or who dares plunk a briefcase on top of the judge's desk.
But it's not hard to see how President Bush's we-are-at-war policies could alarm a stickler for procedure and believer in the rule of law. Or one who concurs, as the late Texas Rep. Barbara Jordan put it, "The Constitution is absolute."
Overriding constitutional guarantees, and daring federal courts to do anything about it, is Bush's battle strategy.
In particular, Coughenour cites the case of Jose Padilla, the one-time Chicago street criminal arrested entering the United States in May and alleged to be in the initial stages of what Ashcroft called a plot to set off "dirty" radioactive bombs.
Padilla has not been charged with a crime. He is being held as an "enemy combatant." Ashcroft claims the government can keep people sitting indefinitely in military brigs, without charge and no access to counsel.
"Mr. Padilla is an American citizen," Coughenour said. "He is before a military tribunal. This is unprecedented."
In 1942, the FBI apprehended German saboteurs landed by submarine on Long Island with the assignment of disrupting American war industries. One turned out to be an American patriot, who turned in his cohorts. The German saboteurs were eventually executed.
They were enemy combatants in every sense of the word. They had a specific mission. Seven were German citizens. The U.S. Congress had officially declared war on the Third Reich.
Does prosecution of this war on terror require running roughshod over our Founders' rules of civil society? Does it make sense to do so?
Judiciously, Coughenour raised these questions Friday before the Munro Seminar (which was taped by TVW and will be broadcast statewide).
In 21 years on the bench, the judge said, what he's come to appreciate most about the American government is the First Amendment -- guaranteeing freedom of speech and assembly -- as well as the right of a defendant to face a jury of his or her peers.
"The commitment to a jury trial -- the idea of putting ordinary citizens between the accused and their government -- is a rather extraordinary thing: It is not universal," Coughenour said.
"What it means is: The government cannot send someone to jail unless 12 ordinary people say, 'The government got it right.'"
Under Bush's rules of detention, the government doesn't have to get it right. Or disclose its evidence. Or even charge someone with a crime.
With Ashcroft questioning the patriotism of anyone who questions him, the administration appears to be getting its way.
Friday, a 4th U.S. Circuit Court of Appeals panel reversed a district court judge's ruling that the "Sec- ond American Taliban," a young man born in Louisiana to Saudi parents, had a right to an attorney.
The appellate judges did stop short of approving the Justice Department's sweeping claim that the president has an absolute right to decide who is an unlawful combatant, and that the courts should butt out. They sent the case back to district court for consideration.
The 4th Circuit panel noted, however, that the Supreme Court has shown great deference to the federal government in deciding matters of national security.
Egregious, needless violations of individual rights have stemmed from that premise. Just remember those 1942 pictures of Japanese Americans on the dock at Bainbridge Island, their internment in remote camps upheld by the Supremes.
The basics of American democracy -- the right to trial, the right to counsel, the rule of law -- need defenders these days.
A man put on the bench by Republicans, Coughenour wonders when Congress' loyal opposition will find a voice.
"In my view, the Democratic Party has a responsibility to speak up on these issues," he said. "It isn't happening. Why aren't they speaking out? I don't understand it."
The Congress's joint resolution authorizing the use of force is an authorization to use military force- including capturing military detainees.
Your argument doesn't directly deny this of course- but it constanly implies otherwise.
If you do deny this please state your reason outright.
(Perhaps this is the argument that even though Washington, Adams, Jefferson and their congresses all used limited grants of the war powers to the executive to prosecute wars [Justice story 'Commentaries' 1169: "The power, to declare war may be exercised by congress, not only by authorizing general hostilities, in which case the general laws of war apply to our situation; or by partial hostilities, in which case the laws of war, so far as they actually apply to our situation, are to be observed."] , we are now to suppose that it is unconstitutional to do so?
I think it evident that, under the resolution, we must consider captures as within "the laws of war, so far as they actually apply to our situation".
The distinction between detention and trial is not a trivial one. One held solely as a military detainee (citizen, pow, unlawful or whatever) must be released at the end of the authorization of hostilities.
And, just as one has the right to a habeas corpus plea that one is not a combatant, one has the right to a h-c plea that the authority to hold him as one has expired.
When trial of an American is required, would it be better to use tribunals for Americans?
Well, first off they would only be Constitutional under the very grant of use of "military force" in the resolution which you seem to not recognize grants the power to hold military detainees- unless I have misunderstood you.
I 'll have to think on that- offhand I think it has merits; politically I think it would certainly "sound scary" to most people. Though the present way seems to too.
Let me consider that, the comparison seems a worthy one that offers insight at least.
The point is that the resolution did not include American Citizens arrested on US Soil nor did it include foreign nationals arrested on US Soil. It maintained the procedure as outlined in the 1950 ruling in Johnson v. Eisentrager again which holds that enemy aliens who have not entered the United States are not entitled to access to our courts and will be tried by a Military Tribunal. The President did the same. Congress’s Declaration of War during WWII, provided for such cases. As In Quirin the Bench held that the Tribunals were lawfully constituted. That petitioners were held in lawful custody, for trial before the military commission. In this case unless you can show me where Congress provided for such legal authority on US Soil, one does not exist. A point you seem to be stuck on. The President cannot unilaterally make these judicial rulings. What the President seems to have done is mask the scary thought of suspending habeas corpus in these cases and one can even make the argument that in certain cases declared Martial Law. Again before you can cite the Law of War, a lawfully construed military tribunal has to be convened to judicate over it. It has been done only for foreign nationals not on US Soil and also not US Citizens arrested on US Soil. What legal authority is judicating over the Law of war right now? What are the bounds of the authority? If this were not fact then the use of GITMO would not be necessary.
I believe that a military tribunal should try any persons foreign or domestic under the present circumstance. I believe at most Americans will understand this as they did during WWII. Lets stop being so PC and subverting the Constitution.
One last thought for you. Even the President is not referencing his authority by Congressional decree. All of his spokesmen have cited Quirin. "White House spokesman Ari Fleischer stated on June 12 -- that Quirin gives the government authority such that Padilla's incarceration "can last for the duration of the war."
There has never been any reference to any Congressional Resolutions in support of the Presidents case against Padella. Think that the white House would not be the first to point this out?
For the last time, by authorizing "military force" the congress has unarguably authorized the capture of combatants.
That's just the facts: "military force" includes captures.
It authorizes military force against "anyone..."- that's the plain language of the act, and there is no indication that congress intended to exempt actions, or combatants on US soil.
In fact congress specifically states in the resolution that it's intent is "to protect United States citizens both at home and abroad".
As we all know it was attacks on US soil that precipated the resolution and the great reasonable desire we, and our congress, all had for the military to protect us from such attacks. It is beyond absurd to claim the authority does not extend to US soil!
Padella was ARRESTED not CAPTURED on US Soil by the FBI not the Military. He was ARRESTED at O'Hare after coming through the Custom Zone. Read his Miranda Rights and then imprisoned. He subsequently was denied due process after his ARREST and held until the limitations of his confiment was about to expire. The Government then without due process or legal authority changed his status to a unlawful combatant citing Quirin as it sole authority. Besides Congress made no provisons for either capture or arrest on US Soil. Neither did the President by his EO.
If this is so absurd show me the authority by Congress or by the Presidential executive Order.
The actual text is" "...authorize the use of United States Armed Forces ...the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"
The use of "FORCE" means ARMED FORCE......Were there any articles or provisions? Was the war powers act enabled? This was a resolution not a "Declaration of War" Did it place all resources at the disposal of the President? If it was this simple there would be NO arguement. But it's not this simple and if it were the White House would have responded by such. It has never done such.
This is a Constitutional and commendable process.
"all resources "?????
Again you avoid the issue at hand- if it authorizes captures and detentions by the military.
Did the resolution "authorize the use of United States Armed Forces ..against those ... persons he determines..."
Does the "use of use of United States Armed Forces" include captures and detentions?
Again, if you do not think so say why it doesn't.
Do you truly claim that people in jail are Constitutionally immune from capture?
The totality of Padilla's Constitutional complaint is that his habeas corpus petition has been delayed by a month- I'll grant him that- but that's hardly a significant denial of his rights considering the circumstances.
Volume 37--Number 46 Pages 1631-1685
Week Ending Friday, November 16, 2001
Military Order--Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism
November 13, 2001
By the authority vested in me as President and as Commander in Chief of the Armed Forces of the United States by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10, United States Code, it is hereby ordered as follows:
Section 1. Findings.
(a) International terrorists, including members of al Qaida, have carried out attacks on United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces.
In light of grave acts of terrorism and threats of terrorism, including the terrorist attacks on September 11, 2001, on the headquarters of the United States Department of Defense in the national capital region, on the World Trade Center in New York, and on civilian aircraft such as in Pennsylvania, I proclaimed a national emergency on September 14, 2001 (Proc. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks).
(c) Individuals acting alone and in concert involved in international terrorism possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and prevented, will cause mass deaths, mass injuries, and massive destruction of property, and may place at risk the continuity of the operations of the United States Government.
(d) The ability of the United States to protect the United States and its citizens, and to help its allies and other cooperating nations protect their nations and their citizens, from such further terrorist attacks depends in significant part upon using the United States Armed Forces to identify terrorists and those who support them, to disrupt their activities, and to eliminate their ability to conduct or support such attacks.
(e) To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.
(f) Given the danger to the safety of the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.
(g) Having fully considered the magnitude of the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States, and the probability that such acts will occur, I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest, and that issuance of this order is necessary to meet the emergency.
MY NOTE: The Intent was for NON US CITIZENS and Resident Aliens....Additionally the President's order also purports to eliminate judicial review even for aliens “within” the United States, a position clearly at odds with statutory and constitutional law.
Sec. 2. Definition and Policy.
(a) The term ``individual subject to this order'' shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:
(1) there is reason to believe that such individual, at the relevant times,
(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and
(2) it is in the interest of the United States that such individual be subject to this order.
(b) It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4.
(c) It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense.
Sec. 3. Detention Authority of the Secretary of Defense.
Any individual subject to this order shall be--
(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States;
(b) treated humanely, without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria;
(c) afforded adequate food, drinking water, shelter, clothing, and medical treatment;
(d) allowed the free exercise of religion consistent with the requirements of such detention; and
(e) detained in accordance with such other conditions as the Secretary of Defense may prescribe.
Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order.
(a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.
(b) As a military function and in light of the findings in section 1, including subsection (f) thereof, the Secretary of Defense shall issue such orders and regulations, including orders for the appointment of one or more military commissions, as may be necessary to carry out subsection (a) of this section.
(c) Orders and regulations issued under subsection (b) of this section shall include, but not be limited to, rules for the conduct of the proceedings of military commissions, including pretrial, trial, and post-trial procedures, modes of proof, issuance of process, and qualifications of attorneys, which shall at a minimum provide for--
(1) military commissions to sit at any time and any place, consistent with such guidance regarding time and place as the Secretary of Defense may provide;
(2) a full and fair trial, with the military commission sitting as the triers of both fact and law;
(3) admission of such evidence as would, in the opinion of the presiding officer of the military commission (or instead, if any other member of the commission so requests at the time the presiding officer renders that opinion, the opinion of the commission rendered at that time by a majority of the commission), have probative value to a reasonable person;
(4) in a manner consistent with the protection of information classified or classifiable under Executive Order 12958 of April 17, 1995, as amended, or any successor Executive Order, protected by statute or rule from unauthorized disclosure, or otherwise protected by law,
(A) the handling of, admission into evidence of, and access to materials and information, and (B) the conduct, closure of, and access to proceedings; admission into evidence of, and
(B) the conduct, closure of, and access to proceedings;
(5) conduct of the prosecution by one or more attorneys designated by the Secretary of Defense and conduct of the defense by attorneys for the individual subject to this order;
(6) conviction only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present;
(7) sentencing only upon the concurrence of two-thirds of the members of the commission present at the time of the vote, a majority being present; and
(8) submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the Secretary of Defense if so designated by me for that purpose.
Sec. 5. Obligation of Other Agencies to Assist the Secretary of Defense.
Departments, agencies, entities, and officers of the United States shall, to the maximum extent permitted by law, provide to the Secretary of Defense such assistance as he may request to implement this order.
Sec. 6. Additional Authorities of the Secretary of Defense.
(a) As a military function and in light of the findings in section 1, the Secretary of Defense shall issue such orders and regulations as may be necessary to carry out any of the provisions of this order.
(b) The Secretary of Defense may perform any of his functions or duties, and may exercise any of the powers provided to him under this order (other than under section 4(c)(8) hereof) in accordance with section 113(d) of title 10, United States Code.
Sec. 7. Relationship to Other Law and Forums.
(a) Nothing in this order shall be construed to--
(1) authorize the disclosure of state secrets to any person not otherwise authorized to have access to them;
(2) limit the authority of the President as Commander in Chief of the Armed Forces or the power of the President to grant reprieves and pardons; or
(3) limit the lawful authority of the Secretary of Defense, any military commander, or any other officer or agent of the United States or of any State to detain or try any person who is not an individual subject to this order.
(b) With respect to any individual subject to this order--
(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and
(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in
(i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.
(c) This order is not intended to and does not create any right, benefit, or privilege, substantive or procedural, enforceable at law or equity by any party, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.
(d) For purposes of this order, the term ``State'' includes any State, district, territory, or possession of the United States.
(e) I reserve the authority to direct the Secretary of Defense, at any time hereafter, to transfer to a governmental authority control of any individual subject to this order. Nothing in this order shall be construed to limit the authority of any such governmental authority to prosecute any individual for whom control is transferred.
Sec. 8. Publication.
This order shall be published in the Federal Register.
George W. Bush
The White House,
November 13, 2001.
[Filed with the Office of the Federal Register, 8:56 a.m., November 15, 2001]
Note: This military order was published in the Federal Register on November 16.
Padella was not captured by the Armed Forces, meaning the US Military, like Lindh was. He was ARRESTED by the FBI a Fedaral Law Enforcement Agency on US Soil.
"Do you truly claim that people in jail are Constitutionally immune from capture?"
Are you saying that a US Citizen automatically surrenders his/hers Constitutional Rights after being captured, detained or arrested on US Soil? Capture usually involves or is related to some criminal act. Or are you masking the word captured for the word detained? We do not just capture people hold them for no legal reason. Declaring a US Citizen an Unlawful Combatant without formal charge is a crime in itself. It's called False Imprisonment.
"show me where Congress provided for such legal authority on US Soil, one does not exist. A point you we seem to be stuck on.'
Did the congressional resolution "authorize the use of United States Armed Forces ..against those ... persons he determines..."
Yes it did.
Does the "use of use of United States Armed Forces" include captures and detentions?
Again, if you do not think so say why it doesn't.
I cannot think anyone would.
I believe this is the crux of our dispute on the Consitutionality of detentions.
What have you been smoking?
Not on US Soil.......
"Does the "use of use of United States Armed Forces" include captures and detentions?"
Ok, what does this have to do with the Padella case?
"what does this have to do with the Padella case? "
You don't even know that Padila is being detained by the military (uh that's kinda central to the debate), or is this is the so-effective "brute ignorance" method of discussion?
In all kindness: review the posts.
Yeah, and damn that First Amendment!
What part of this am I not getting across to you? The central focus of this issue is not just that the Military now has custody illegally of a US Citizen. That is just one point of contention. The focus is that a US Citizen ARRESTED NOT CAPTURED on US Soil by a US Federal Law Enforcement Agency, not the US Military, read M-I-R-A-N-D-A imprisoned, then had his status changed by the Executive Branch citing only EX PARTE QUIRIN, 317 U.S. 1 (1942) not any Congressional Authority, including the motion to quash the habeas corpus petition, all while and currently being denied the due rights provisions as provided for by M-I-R-A-N-D-A, and the US Constitution.
There are two Central themes.
(a) One of substantive due process and the excessive violation of such on a United States Citizen, and
(b) Executive authority to change the status, detain, capture and try Americans captured, detained or arrested on US Soil without charge by a Military Tribunal.
Show me where either the Congress has suspended this clause on any US Citizen? Show me where the Congress and even the Executive Branch has given the authority to try, detain or even capture Americans on US Soil by the militay with or without charge in this case?
Explain how A US Citizen can be arrested, read Miranda, and then legally denied the rights provided by Miranda and the US Constitution? Show me any legal precedence to support your assumptions? Tell me what the process is of a Federal Writ of Habeas Corpus? Lastly don’t be insulting even in kindness.
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