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."
Said Who?
We can't "profile," we have to pat down old white women at the airport, and we have to file motions in the ICC on behalf of the "victims of American terror" in Gitmo.
You need to go somewhere more compatible with your notions of "civil liberties," like Saudi Arabia. They'd love your soft heart over there.
My ONLY problem is PROCEDURAL! Padella is being detained by an Executive Order. This is not a Declared War. Since war has not been officially declared by Congress, the Articles of War are limited. Regulations governing Military Tribunals do not pertain to US Citizens at this time. There are no charges present or pending. Padella's due process rights are being violated by; (a)the rights to unreasonable search and seizure, (b) right to counsel, (c) right to trial by a grand jury, and (d) excessive abuse of regulatory powers by the Executive Branch.
It is very simple to me. Empower the Military to try Americans. Do it by an Act of Congress. this makes things very simple.
The plain language of the Resolution- "persons"- indicates to a reasonable person that it does apply- by definition.
You must give reasons for your bald assertion that the Resolution exempts Americans. All your arguments on based on that claim.
Offering two more arguments based solely on this opinion of yours does not give it any more credence.
Citing law or precedence or by looking in the congressional debate for intent- for examples- would be a constructive response.
The public record shows that Padilla has exercised his Constitutional right to Habeas Corpus.
One was properly denied, as usually is done, because the petitioner was no longer in the jurisdiction of that court.
The other is presently under consideration. The administration has responded that it should not be considered for the same standard reason.
This court IMHO will and should rule on it anyway, in the interest of justice, since one has already been denied for that reason.
IMHO, again at the risk of insulting you by trying to be helpful, is that the point you wish to argue is not that the present process is unconstitutional but that using one based on the UCMJ would be better.
Ok you want a military reason?
Lets start with:
Foreign Terrorist Military Tribunal Authorization Act of 2001- Authorizes the President to convene military tribunals for the trial of individuals who are charged with offenses arising from the September 11, 2001, terrorist attacks on the United States. Permits such a trial to be held only at a location outside the United States. Makes this Act applicable to an individual who is not a United States citizen or an alien lawfully admitted to the United States for permanent residence and who is apprehended outside the United States. Treats as an offense arising from such attacks an offense relating to: (1) planning, authorizing, committing, or aiding those attacks; and (2) harboring any organization or individual that planned, authorized, committed, or aided those attacks.
Bars any military order, executive order, regulation, or other directive of the executive branch from limiting the rights or privileges of any individual under provisions relating to habeas corpus. Allows the privilege of the writ of habeas corpus to be suspended only in cases of rebellion or invasion and only by law.
Additionally The Resolution Summarizes: "Authorization for Use of Military Force" - Authorizes the President 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.
Try the Resolution is not a Declaration of War, thus the "ARTICLES OF WAR", “The Legal Foundations” which are the governing regulations for the Military are limited in Scope. “individual” by “Legislative Intent” of the Resolution means persons other than Citizens of the United States. The Resolution give the President power to use the Military abroad not domestically. Thus there are no venues for any Military Tribunals governing US Citizens, the reason why Padella has been declared an enemy combatant by Executive Order and not by the an Act of Congress. Ask your Representative if the word “Individual” in the Joint Resolution means US Citizen. They will tell you no. The Congressional Research Service the Investigative Arm of Congress has done a lot of research on this.
The reason why the USSC upheld Quirin was because the “Articles of War” included US Citizens to be Arrested, Detained, and tried by the US Military, an “ACT” passed by Congress not an Executive Order. Simply it was spelled out. Simply the “Legislative Intent” was spelled out to include US Citizens as potential “Enemy Combatants”. The current articles of war do not nor was it the Legislative Intent of Congress to include Americans under these provisions.
Once again the Executive Order is at odds with statutory and constitutional law. Yes the Courts need to decide this. But in the meantime any “INDIVIUAL” meaning Citizen or Non-Citizen can be subjected to what mounts to be a suspension of they’re Due Process Rights.
My argument has been and will remain that Congress must “REVISE” The Legislation governing Military Tribunals and The articles of war to include US Citizen and give formality to the US Military. Otherwise there is an excessive abuse of regulatory and judicial powers by the Executive Branch. With the recent Judicial decisions in NY and NJ with regards to some of these excesses the Government is going to be hard pressed to support their case.
[Page: S9948] of the Senate record October 01, 2001:
Sen. Byrd: "The resolution Congress approved gives the President broad authority to go after the perpetrators of the terrorist attack regardless of who they are or where they are hiding. "
That bill for trying Americans by tribunal is worth consideration, I'd likely support it after I saw it's final draft.
In the Padella case which is totally separate and very different. Padella does not fit the LEGAL discription of an Enemy Combatant by either US Law or the UCMJ. Padilla was ARRESTED on US Soil by the FBI. Padella's Status was Changed after the Government could not get an indictment. The changed was done by the President by Executive Order. Our Constitution does not give the Executive Branch this right and especially without a Declared War, by Congress. Only Congress by the Constitution has this right. The Joint Resolution does not apply at all or at any time to Padella. The Administration has not reported back to Congress explaining the actions it took and why in the Padella Case.
Unlike WWII where Congress Declared War, enabled the Military Tribunals we have done either as of this date. Nor have we followed International Law totally. In absence of a set of legally established rules set by Congress, the President has two choices. One, Detain off of US Soil, and Two, follow the law as prescribed. The President has no option to change the mechanics in mid flight without an ACT of Congress.
Now mrsmith, you show me what law supports your case that the Joint Resolution allows this or is there none?
TITLE 50, United States Code, Chapter 22, Chapter 33 Sec, 1542 to 1548, Chapter 34 Sec. 1651.
Uniform Code of Military Justice, 10 U.S.C. 802. ART. 2, 831 ART. 31. 832. ART. 32, 838. ART. 38.
Title 18, United States Code and sections 113 (a), (b), (c), or (f), 114, 1111, 1112, 1201, or 1363.
Military Order--Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism , November 13, 2001
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Adopted by General Assembly resolution 43/173 of 9 December 1988
1949 Geneva Conventions and 1977 Additional Protocols
Lastly, The Intent of Congress under the Current Resolution was never and is still today NOT to include US Citizens in any form of Military Tribunals. Nor was it ever to allow the President this power. Since you have been most insistent I have taken the opportunity to CALL the Senate Committee on Judiciary to confirm this. IT IS THE FULL INTENT OF CONGRESS AS OF THIS WRITING TO HAVE US CITIZENS TRIED UNDER US LAW>
Additionally the current LEGISLATION on Military Tribunals has yet to be fully established by Congress as of this writing. So the Congress and the Tribunals Presiding Judge have yet to set any standards governing the tribunals.
Now you so me LAW supporting your claim.
habaes corpussel:"The Intent of Congress under the Current Resolution was never and is still today NOT to include US Citizens in any form of Military Tribunals. Nor was it ever to allow the President this power. Since you have been most insistent I have taken the opportunity to CALL the Senate Committee on Judiciary to confirm this. IT IS THE FULL INTENT OF CONGRESS AS OF THIS WRITING TO HAVE US CITIZENS TRIED UNDER US LAW> "
I appreciate and commend your contacting the committee.
Your question had no bearing to our discussion : I have never said the resolution authorized trying Americans by tribunal.
What is this- the tenth time you haven't offered any support for your opinion? Why keep pretending that you are?
Either defend it or drop it.
Once again Mrsmith I offer:
Authority under the Constitution, Article I, Section 8, which gives to the Congress the responsibility and authority "To define and punish . . . Offenses against the Law of Nations."
TITLE 50, United States Code, Chapter 22, Chapter 33 Sec, 1542 to 1548, Chapter 34 Sec. 1651.
Uniform Code of Military Justice, 10 U.S.C. 802. ART. 2, 831 ART. 31. 832. ART. 32, 838. ART. 38.
Title 18, United States Code and sections 113 (a), (b), (c), or (f), 114, 1111, 1112, 1201, or 1363.
Military Order--Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, November 13, 2001
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Adopted by General Assembly resolution 43/173 of 9 December 1988
1949 Geneva Conventions and 1977 Additional Protocols
Now either dispute these citations as meaningless or show me what legal precedence allows the Joint Resolution on the use of Force that set the standard to allow the President to do what he has done in the Padella case.
One last time Mrsmith. The Intent of Congress in passing Joint Resolution has nothing to do with the actions taken by the President in the Padella case. That sir, is the point.
Lastly, Mrsmith nowhere on this thread have you posted any legal precedence to support your case either. All you have done is cite your opinion. Now respectively shut me up.
IF a fully informed impartial Judge rules that "Osama Bin Lopez" is NOT a security threat, then "'Let 'er Rip" to defend his "Rights!"
If the "guy" is what the 'Feds believe----SQUEEZE HIM UNTIL HE SQUEALS!!
Doc
In this Country you are innocent until proven quilty. In this Country a Citizen has rights right up to the time the jail door slamming behind them. Then they even have the right to appeal. The Rule of Law remember that phrase? Or maybe you don't mind if some jack-booted thug breaks down your door because someone in the TIPS program said they saw your reading terrorist materials?
I agree that a Judge needs to make a ruling. But the ruling needs to be a Constitutional one.
Anyone can determine for themselves the meaning of the word "persons". Thank you, I think we're through here.
Doc
Lastly.
Title 18 USC Section 4001(a). Limitation on detention; control of prisons. (a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.
There is NO ACT OF CONGRESS that allows this. The Resolution is an open question and the Courts will decide this issue. If you are an Attorney I hope you don't prepared cases and arguments in this manner or you practice Real Estate Law. If your not then I completely understand. .
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.