A clear and present danger: Ashcroft scheme simply chilling

HoustonChronicle.com ^ | Aug. 16, 2002, 7:49PM | Turley is a professor of constitutional law at George Washington University, in Washington, D.C.

[BellStar]

ATTORNEY General John Ashcroft's announced desire for camps for U.S. citizens he deems to be "enemy
combatants" has moved him from merely being a political embarrassment to being a constitutional menace.

Ashcroft's plan, disclosed earlier this month but
little publicized, would allow him to order the
indefinite incarceration of U.S. citizens and summarily
strip them of their constitutional rights and access
to the courts by declaring them enemy combatants.

The proposed camp plan should trigger immediate
congressional hearings and reconsideration of
Ashcroft's fitness for this important office. Whereas
al-Qaida is a threat to the lives of our citizens,
Ashcroft has become a clear and present threat to our liberties.

The camp plan was forged at an optimistic time for
Ashcroft's small inner circle, which has been carefully
watching two test cases to see whether this vision
could become a reality. The cases of Jose Padilla and
Yaser Esam Hamdi will determine whether U.S. citizens
can be held without charges and subject to the
arbitrary and unchecked authority of the government.

Hamdi has been held without charge even though the
facts of his case are virtually identical to those in
the case of John Walker Lindh. Both Hamdi and Lindh
were captured in Afghanistan as foot soldiers in
Taliban units. Yet Lindh was given a lawyer and a
trial, while Hamdi rots in a floating Navy brig in
Norfolk, Va.

Last week, the government refused to comply with a
federal judge who ordered that he be given the
underlying evidence justifying Hamdi's treatment. The
Justice Department has insisted that the judge must
simply accept its declaration and cannot interfere with
the president's absolute authority in "a time of war."

In Padilla's case, Ashcroft initially claimed that the
arrest stopped a plan to detonate a radioactive bomb in
New York or Washington, D.C. The administration later
issued an embarrassing correction that there was no
evidence Padilla was on such a mission. What is clear
is that Padilla is an American citizen and was
arrested in the United States -- two facts that should
trigger the full application of constitutional rights.

Ashcroft hopes to use his self-made "enemy combatant"
stamp for any citizen whom he deems to be part of a
wider terrorist conspiracy.

Perhaps because of his discredited claims of preventing
radiological terrorism, aides have indicated that
a "high-level committee" will recommend which citizens
are to be stripped of their constitutional rights and
sent to Ashcroft's new camps.

Few would have imagined any attorney general seeking to
re-establish such camps for citizens. Of course,
Ashcroft is not considering camps on the order of the
internment camps used to incarcerate Japanese American
citizens in World War II. But he can be credited only
with thinking smaller; we have learned from painful
experience that unchecked authority, once tasted,
easily becomes insatiable.

We are only now getting a full vision of Ashcroft's
America. Some of his predecessors dreamed of creating a
great society or a nation unfettered by racism.
Ashcroft seems to dream of a country secured from
itself, neatly contained and controlled by his
judgment of loyalty.

For more than 200 years, security and liberty have been
viewed as coexistent values. Ashcroft and his aides
appear to view this relationship as lineal, where
security must precede liberty.

Since the nation will never be entirely safe from
terrorism, liberty has become a mere rhetorical
justification for increased security.

Ashcroft is a catalyst for constitutional devolution,
encouraging citizens to accept autocratic rule as their
only way of avoiding massive terrorist attacks.

His greatest problem has been preserving a level of
panic and fear that would induce a free people to
surrender the rights so dearly won by their ancestors.

In A Man for All Seasons, Sir Thomas More was
confronted by a young lawyer, Will Roper, who sought
his daughter's hand. Roper proclaimed that he would cut
down every law in England to get after the devil.

More's response seems almost tailored for
Ashcroft: "And when the last law was down and the devil
turned round on you, where would you hide, Roper, the
laws all being flat? This country's planted thick with
laws from coast to coast and if you cut them down --
and you are just the man to do it -- do you really
think you could stand upright in the winds that would blow then?"

Every generation has had Ropers and Ashcrofts who view
our laws and traditions as mere obstructions rather
than protections in times of peril. But before we allow
Ashcroft to denude our own constitutional landscape, we

must take a stand and have the courage to say, "Enough."

Every generation has its test of principle in which
people of good faith can no longer remain silent in the
face of authoritarian ambition. If we cannot join
together to fight the abomination of American camps, we
have already lost what we are defending.

Turley is a professor of constitutional law at
George Washington University, in Washington, D.C.

[Don Joe]

"Am I missing something?"

Understatement of the epoch.

Put it in lights and wear it with pride.

[Don Joe]

"Clearly."

A sock it to 'im *bump*!

[jwalsh07]

Battlefield, by this definition, seems to be a euphemism for "wherever the heck we find you," including the town you and I are living in.

Now you're getting it. Your town, my town, any town USA is the battlefield. 9/11 proves it and so does the anthrax incidents.

Furthermore, you argue the evidence, and if the evidence is that strong, why isn't the government arguing the evidence?

I don't know how strong the evidence is. What I know is that Hamdi was captured on the battlefield in Afghanistan and Padilla was arrested at O'Hare for lying to customs and carrying in more cash than is allowed by law. The Justice Department states in their filings that PAdilla met with Al Qaeda.

For me, this is enought evidence to decalre these guys enemy comabatants and for me to call them traitors,taht is if their allegiance was ever to America and in Hamdi's case I suspect that isn't true.

If the SOB is that obviously guilty, try him and execute him. It's not that hard. Please explain to me why we need to set a remarkably dangerous precedent to deal with this guy.

Perhaps the only law that Padilla has broken is one that would put him on the street forthwith. The JD's view is that he is an enemy combatant. I agree. Now you ask why not try him and be done with it?

My answer is this. When the One Eyed Sheik was tried in NY for the first WTC bombing, bin Laden found out that intelligence knew his cell phone number. He threw the cell phone away. There was also volumes of evidence regarding the structure of the WTC and this found its way into the public domain. The rest is history.

Padilla and Hamdi have not had Habeus Corpus suspended, their cases are being litigated. Generous enough if you ask me.

[jwalsh07]

Victimize is a better term. Yup. THEN incarceration, after the FBI comes up with "evidence" which fits the prosecutor's needs.

Can you clarify what you are talking about? The Rules of War and Ex-Parte Quirin do not address the subjects you are referencing.

[ninenot]

Let me help you understand.

HRC is a power-mad woman who has made it clear that anti-abortion protesters are TERRORISTS.

Under the current law (the Patriot Act,) the AG or President can determine that 'terrorists' may be held for extended periods without trial.

Don't think for a minute that HRC would hesitate to use the power of the State against a particularly devoted protester. Must I remind you of Waco? There were at least 40 US citizens who were flat-out executed without trial, and against whom NO CHARGES COULD BE PREFERRED: they were children.

Bush and Ashcroft I trust, at least so far. The rest--well, I don't.

[atlaw]

"After the declaration of war between the United States and the German Reich, petitioners received training at a sabotage school near [***9] Berlin, Germany, where they were instructed in the use of explosives and in methods of secret writing. Thereafter petitioners, with a German citizen, Dasch, proceeded from Germany to a seaport in Occupied France, where petitioners Burger, Heinck and Quirin, together with Dasch, boarded a German submarine which proceeded across the Atlantic to Amagansett Beach on Long Island, New York. The four were there landed from the submarine in the hours of darkness, on or about June 13, 1942, carrying with them a supply of explosives, fuses, and incendiary and timing devices. While landing they wore German Marine Infantry uniforms or parts of uniforms. Immediately after landing they buried their uniforms and the other articles mentioned, and proceeded in civilian dress to New York City."

And you see no factual difference between this case and the Padilla case? The Quirin case had a plethora of incriminating facts developed by the prosecutor to support the Court's legal conclusions, (not to mention a pre-existing declaration of war).

Again, you seem to be suggesting that the facts are so incriminating against Padilla, that he should obviously be drawn and quartered. This may indeed be the case. But why then is the argument that extra-factual govermental powers are the primary basis for holding this miscreant without charges? I frankly don't care how patriotic and heaven-sent everbody thinks Ashcroft is. This is un-precedented action (and Quirin is not the panacea you are hoping for, the Fourth Circuit notwithstanding).

[jwalsh07]

Let me help you understand.

HRC is a power-mad woman who has made it clear that anti-abortion protesters are TERRORISTS

Your analogy is lacking. For the situations to be analagous Congree would have to draw up a resolution, pursuant to the War Powers Act????, declaring right to lifers as the enemy in a war. Clearly nutty.

[atlaw]

Your sarcasm notwithstanding, you fail to address the primary question -- should we have a general policy that, in an undeclared war, alleged combatants who are citizens of the U.S. (and if you think that Padilla is a titular citizen only and therefore subject to extraordinary treatment, recall that the government has made no such argument as a predicate to internment, and it is doubtful that they will) should be subject to internment for an indefinite period without charge? Divorce yourself from this case in particular, and think about it as a policy question, one with ramifications that extend well beyond the present circumstances. This is a fairly serious question about which people can disagree without being implicated as ignorant or un-patriotic. Indeed, I am at a loss to explain why this particular precedent could not have been applied to the Oklahoma City bombing, or the Atlanta Olympics bombing. Why didn't we hold every suspect from those two "battlefields" without charge for an indefinite period (which would have been great for Mr. Jewell), and why the heck did we provide McVeigh with a jury trial, let alone charge him with anything?

Oh yeah, and screw you, you prick. I've particpated in discussions on this board for a long time, and you're the first truly insulting bastard I've run across.

[jwalsh07]

You're not getting it again. Would you like me to post the Congressional Authorization for the CIC to conduct this war? There was none in Atlanta or Oklahoma City.

[j271]

Thanks for the Findlaw reference.

IMO, the definition of "unlawful combatant" from Quirin is in these passages, with underlining showing the relevant points:

By a long course of practical administrative construction by its military authorities, our Government has likewise recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants

Specification 1 states that petitioners 'being enemies of the United States and acting for ... the German Reich, a belligerent enemy nation, secretly and covertly passed, in civilian dress, contrary to the law of war, through the military and naval lines and defenses of the United States ... and went behind such lines, contrary to the law of war, in civilian dress ... for the purpose of committing ... hostile acts, and, in particular, to destroy certain war industries, war utilities and war materials within the United States'.

[atlaw]

I agree. But that still begs the question. Had either of those two events been subject to a congressional declaration authorizing combative counter-measures, would you have supported detention of U.S. citizens without charge at the time? This still seems to me to be executive branch overkill, almost an exuse to suspend judicial guarantees where there is no need to do so. And it is no less an objectionable precedent if it is said that the guy simply has to be detained without charge because we cannot make the charges stick, but we really, really know that he is otherwise a threat. (And by the way, I meant none of my last comment to Don Joe to be directed to you. I can't say I've ever taken umbrage at a fellow poster before, but his comments really chapped me, perhaps unnecessarily).

[William Terrell]

Have you read these documents? Hamdis' may have some sufficient cause for detainment, but the court essentially dismisses his detention as a political question, not for the court to challenge the executives authority in matters of war.

Nothing is given as material evidence for the detainment of Padilla. Just an attempt to dismiss the case on technical questions about jurisdiction - the respondents have no possession of the body and the one that did was outside the courts jurisdiction. The bringer of the Habeas Corpus failed the next friend test.

The same vague political statements about the prosecution of the war.

So, no real evidence was presented for the detainment for American citizens, Hamdis' facts were closer to Ex Parte Quirin that Padills's, and as far as Hamdis is concerned, in my opinion he gave up his American citizenship when he fought for a foreign country against America. But this question wasn't raised. His citizenship wasn't questioned.

I'm not satisfied. And the notion that a president can just "designate" a citizen as an "enemy combatant" is dangerous and frightful. What if Bubba was in office at this time? I'll bet I wouldn't be having this conversation.

[William Terrell]

The 4th Circuit Hamdis court agrees with me. They just sluff it off as a political question. In other words, if you don't like it, vote the president out or vote out the members of Congress out that gave the president his powers.

The government in the Pedilla writ didn't even address the issue, just technical questions.

[Don Joe]

"Oh yeah, and screw you, you prick."

So's your mom, counselor.

"I've particpated in discussions on this board for a long time,"

atlaw signed up 2001-09-06.

"and you're the first truly insulting bastard I've run across."

Don Joe signed up 1999-08-19.

Whatever, toots.

PS: invest in a mirror, post haste!

[donozark]

You simply are not following the thread. The words I have posted in reference to Ex Parte Quirin were for the most part, what DOD/DOJ is using as basis for establishing "enemy combatant" status of Padilla, as put forward by the Professor McGinniss from NW Univ. IMO, entirely legal. Time will tell...

[donozark]

From Quirin:

"The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life and property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war, subject to trial and punishment by military tribunals."

------------------

I believe this provides the basis for AG Ashcroft's position.

Also, OBL declared war on USA several years ago. The fact our miscreant President Klinton did nothing is a reflection on HIM. Not USA. We had the right to respond then, and certainly after 9-11 do likewise. Massively I would hope...

[jwalsh07]

Perhaps a writ of Habeas Corpus. Why no such write been filed on the case of the men detained after all this time? Or has there been, and it was disallowed by a tame federal judge. Such a writ doesn't have be filed by a lawyer, a next friend will do. The writ is simple and straight forward.

Remember this? I'm getting you up to snuff WT.

Hamdi was in the prison where Johnny Spann was beaten to death. Did you know that? The government has stated in court filings their particulars against Padilla including meetings with Al Qaeda in Pakistan.

My question is, how can you inquire about my mental state when you are not even minimally informed about the questions involved?

And by the way, the Fourth Circuit doesn't agree with you and even if they did why would it matter? You've already made clear that the they can't be trusted.

Nobody can be trusted except of course Padilla and Hamdi.

[William Terrell]

Why, thank you for bringing me up to snuff.

And by the way, the Fourth Circuit doesn't agree with you and even if they did why would it matter? You've already made clear that the they can't be trusted.

"The government urges us not only to reverse and remand the June 11 order, but in the alternative to reach further and dismiss the instant petition in its entirety. In its brief before this court, the government asserts that "given the constitutionally limited role of the courts in reviewing military decisions, courts may not second-guess the military's determination that an individual is an enemy combatant and should be detained as such." The government thus submits that we may not review at all its designation of an American citizen as an enemy combatant -- that its determinations on this score are the first and final word. Any dismissal of the petition at this point would be as premature as the district court's June 11 order. In dismissing, we ourselves would be summarily embracing a sweeping proposition -- namely 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. Given the interlocutory nature of this appeal, a remand rather than an outright dismissal is appropriate."

"If dismissal is thus not appropriate, deference to the political branches certainly is. It should be clear that circumspection is required if the judiciary is to maintain its proper posture of restraint. The Prize Cases, 67 U.S. at 670 ("[T]his Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted."). "

"The standards and procedures that should govern this case on remand are not for us to resolve in the first instance. It has long been established that if Hamdi is indeed an "enemy combatant" who was captured during hostilities in Afghanistan, the government's present detention of him is a lawful one. See, e.g., Quirin, 317 U.S. at 31, 37 (holding that both lawful and unlawful combatants, regardless of citizenship, "are subject to capture and detention as prisoners of war by opposing military forces"); Duncan v. Kahanamoku, 327 U.S. 304, 313-14 (1946) (same); In re Territo, 156 F.2d 142, 145 (9th Cir. 1946) (same). Separation of powers principles must, moreover, shape the standard for reviewing the government's designation of Hamdi as an enemy combatant. Any standard of inquiry must not present a risk of saddling military decision-making with the panoply of encumbrances associated with civil litigation."

Even though the appeals court agrees with my viewpoint, the use the "political question" argument won the day against judicial review. Many judges can't be trusted, not all. An example would be the 9th circuit. But I was talking about legislative and executive trust. In my opinion, if you trust on the good intentions of the elected officials and bureaucrates instead of strict walls of limitations, you are crazy, especially if the procedures are passed from one administration to the next.

Like I stated before, if Bubba was the president and Reno was Justice when all this happened, we wouldn't be having this conversation.

And again, in Ex Parte Quirin, the American citizen was caught red-handed at espionage. While Hamdi was caught fighting in Afghanistan, the other citizen found fighting there is in the civilian courts now. Padilla has vague and circumstantial evidence against him, if that.

They may be both guilty. I'd say certainly Hamdi is. But for a nation that awards citizenship to an illegal alien who drops a baby between two rows of corn, and the Supreme Court holding that its citizenship can't be touched, the mere sayso of the executive that that citizenship is void for their purposes is irregular as hell.

You, and people who argue for that priviledge, don't see the egregious lengths to which it can be taken in a more hostile administration. If you don't, you're crazy. If we don't dot every "i" and cross every "t", we will find ourselves without i's and t's.

Other ways of questioning American citizens about their activities without holding them incommunicado are available. For instance, eavesdropping on accused and councel is now available, so access to councel is not a secretive affair and can't compromise any interrogation.

Again, thank you for posting the Habs. Otherwise, I would have to have been just suspicious instead of convinced.

[LostTribe]

>The skin of Constitutional protections is thin and easily broken, and, once broken is more easily rebroken, until it's fragile and no protection at all.

Right on target!

[angkor]

Demonstrate where the United States Congress has declared a state of war as defined by the United States Constitution. I'll give you $1,000 when you provide facts to bolster your ridiculous assertion.

"U.S. Constitution: Section 8. The Congress shall have power ... To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."

On Sept. 14, 2001, both chambers of Congress passed resolutions that did not use the word "war," but instead authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons" responsible for the September 11 attacks.

Sorry, we are not in a state of war. Doesn't really matter what you think, those are the facts.