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."
This Socialist is all yours, he's too sick for me.
No, I'm sure you don't. What is "advancing liberty" exactly? Would not violence -- and death -- tend to restrict freedom a bit?
BTW: I didn't find anything on this in the judge's remarks I linked to, they were from Thursday. But since it was the only remarks of his mentioned at the Munro site I figured the reporter just lied about the date too.
Oh, and "count me in" is a very active newbie.
But you've been used to educate people on the Constitution, and now they love it all the more for your attacks on it- and that was putting you to a good use.
Strike three. Adieu.
LOL! He ain't the only one.
This coming from the person that didn't know what socialism meant?
You know, when you're going to try and insult someone, it's generally a good idea to get your insults right.
LOL!
My point stands- he is getting his H_C rights. Didn't you claim he wasn't? Forgive me if I misunderstood- that certainly seemed to be your point.
If we are finished with that, as a JAG vet, you could tell every one here what Constitutional rights an unlawful combatant has."
First, if you are saying that by petitioning the courts on a writ of habeas corpus Padilla is getting his Constitutional Rights that is a stretch. . The Executive Branch is operating under what Legal Authority? Also please tell me what Congressional Authority in this case you are speaking of? If you are speaking of Congress's joint resolution authorizing the use of force counts as a declaration of war that is very much a huge and open question.
The terms Unlawful and Lawful Combatants in the case of AQ and Taliban detainees is a very complex issue. Even under JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950) and EX PARTE QUIRIN, 317 U.S. 1 (1942). It’s a very complex issue especially when it comes to Taliban Detainees. AQ seem to fit the classification of Unlawful Combatants. As far as rights?
Start Reading…….
Geneva Convention (III) Relative to the Treatment of Prisoners of War; August 12, 1949
Are you one of those that claim that congress's authorization to use military force means that the president can only kill those people- not take any of them prisoner?
That's not a civilized way of running a war. I hope we are better than that!
Thanks for the links, I think the 'unlawful combatant factor' will be rearing it's head soon.
I couldn't tell if you were kidding or dangerous (or dumb). Must be one of the three--no other possibility.
The government has reportedly stated that it has no plans whatsoever to bring Padilla before any tribunal. And, unless Bush changes last year's executive order, military tribunal cannot try Padilla as an American citizen. Without one, there is no truth to what 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." So much for Quirin.
In Quinn and in many cites the Supreme Court maintained:
The Court holds:
(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.
Again the tribunal as directed by the President does not maintain a status for trying Americans formally. Congress has not specifically authorized such tribunals as it did in WWII. Furthermore 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. The Congress's joint resolution authorizing the use of force is not a declaration of war. The Presidents directive does not allow for the military to try Americans. A position I am CLEARLY at odds with. I believe a change in this Executive Order allowing Americans to be tried by the Military will meet Constitutional muster. Otherwise we open Pandora’s box and establish very dangerous presidencies.
Furthermore AQ and Taliban personnel have NOT been given POW status so the citations you cited are moot. In a POW status there is no military tribunal. War Crimes are different subjects. POW status could complicate and compound the problem. Though it would be somewhat easier as far as US and International Law is concerned. This is a point of contention even now.
The reason for Gitmo? Is because another Supreme Court decision - the 1950 ruling in Johnson v. Eisentrager - holds that enemy aliens who have not entered the United States are not entitled to access to our courts. However even if not technically prisoners of war, al Qaeda and Taliban captives still qualify for "humane treatment" under the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, a resolution adopted by the United Nations General Assembly in 1988. Which we are signatory too.
As far as the right to petition the courts for a writ of Habeas Corpus even an illegal ham and cheese sandwich has this right. It the realm of things as present to allow this to transpire in which the Government knows it will not win is going to set a legal precedence for a person “Jose Padella” that could become a determent in bringing others to trial.
Simply put, CHANGE THE EXECUTIVE ORDER!
Ruled against Microsoft on a copyright case.
How in the heck is that an example of liberalism?
Given this judges' extra-judicial remarks, I would not be surprised if that were his motives, but who can say?
As I said in a following post, I wasn't looking for liberal decisions. I was looking for the first few that come up in a Google search. It seems that this guy has NEVER ruled on a non-controversial case and that he has yet to take a conservative stance. I've done this with other judges and I often get a balanced and boring record.
Anyhow...that whole "conservatives always support Microsoft" thing just gets under my skin. Microsoft is a bunch of pro-culture-of-death liberals.
Actually, I thought that was the objection. ;) The fact is, because Sun used a variant of the word before MS, the case should have been a slam-dunk. (On the other hand, Lindows is an obvious attempt to copy the name that MS had been using.) Again, I don't see this as an ideological decision either way. One could take a look at the text of the decision itself to see what he was thinking, but I've satisfied myself that I have a handle on this judge and the overall record does not point to some right-wing ideologue by a longshot.
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