Posted on 09/04/2002 12:22:02 PM PDT by dead
Jonathan Turley is a professor of constitutional and public-interest law at George Washington University Law School in D.C. He is also a defense attorney in national security cases and other matters, writes for a number of publications, and is often on television. He and I occasionally exchange leads on civil liberties stories, but I learn much more from him than he does from me.
For example, a Jonathan Turley column in the national edition of the August 14 Los Angeles Times ("Camps for Citizens: Ashcroft's Hellish Vision") begins:
"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." Actually, ever since General Ashcroft pushed the U.S. Patriot Act through an overwhelmingly supine Congress soon after September 11, he has subverted more elements of the Bill of Rights than any attorney general in American history.
Under the Justice Department's new definition of "enemy combatant"which won the enthusiastic approval of the president and Defense Secretary Donald Rumsfeldanyone defined as an "enemy combatant," very much including American citizens, can be held indefinitely by the government, without charges, a hearing, or a lawyer. In short, incommunicado.
Two American citizensYaser Esam Hamdi and Jose Padillaare currently locked up in military brigs as "enemy combatants." (Hamdi is in solitary in a windowless room.) As Harvard Law Professor Lawrence Tribe said on ABC's Nightline (August 12):
"It bothers me that the executive branch is taking the amazing position that just on the president's say-so, any American citizen can be picked up, not just in Afghanistan, but at O'Hare Airport or on the streets of any city in this country, and locked up without access to a lawyer or court just because the government says he's connected somehow with the Taliban or Al Qaeda. That's not the American way. It's not the constitutional way. . . . And no court can even figure out whether we've got the wrong guy."
In Hamdi's case, the government claims it can hold him for interrogation in a floating navy brig off Norfolk, Virginia, as long as it needs to. When Federal District Judge Robert Doumar asked the man from the Justice Department how long Hamdi is going to be locked up without charges, the government lawyer said he couldn't answer that question. The Bush administration claims the judiciary has no right to even interfere.
Now more Americans are also going to be dispossessed of every fundamental legal right in our system of justice and put into camps. Jonathan Turley reports that Justice Department aides to General Ashcroft "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."
It should be noted that Turley, who tries hard to respect due process, even in unpalatable situations, publicly defended Ashcroft during the latter's turbulent nomination battle, which is more than I did.
Again, in his Los Angeles Times column, Turley tries to be fair: "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." (Emphasis added.)
Turley insists that "the proposed camp plan should trigger immediate Congressional hearings and reconsideration of Ashcroft's fitness for important office. Whereas Al Qaeda is a threat to the lives of our citizens, Ashcroft has become a clear and present threat to our liberties." (Emphasis added.)
On August 8, The Wall Street Journal, which much admires Ashcroft on its editorial pages, reported that "the Goose Creek, South Carolina, facility that houses [Jose] Padillamostly empty since it was designated in January to hold foreigners captured in the U.S. and facing military tribunalsnow has a special wing that could be used to jail about 20 U.S. citizens if the government were to deem them enemy combatants, a senior administration official said." The Justice Department has told Turley that it has not denied this story. And space can be found in military installations for more "enemy combatants."
But once the camps are operating, can General Ashcroft be restrained from detainingnot in these special camps, but in regular lockupsany American investigated under suspicion of domestic terrorism under the new, elastic FBI guidelines for criminal investigations? From page three of these Ashcroft terrorism FBI guidelines:
"The nature of the conduct engaged in by a [terrorist] enterprise will justify an inference that the standard [for opening a criminal justice investigation] is satisfied, even if there are no known statements by participants that advocate or indicate planning for violence or other prohibited acts." (Emphasis added.) That conduct can be simply "intimidating" the government, according to the USA Patriot Act.
The new Steven Spielberg-Tom Cruise movie, Minority Report, shows the government, some years hence, imprisoning "pre-criminals" before they engage in, or even think of, terrorism. That may not be just fiction, folks.
Returning to General Ashcroft's plans for American enemy combatants, an August 8 New York Times editorialwritten before those plans were revealedsaid: "The Bush administration seems to believe, on no good legal authority, that if it calls citizens combatants in the war on terrorism, it can imprison them indefinitely and deprive them of lawyers. This defiance of the courts repudiates two centuries of constitutional law and undermines the very freedoms that President Bush says he is defending in the struggle against terrorism."
Meanwhile, as the camps are being prepared, the braying Terry McAuliffe and the pack of Democratic presidential aspirants are campaigning on corporate crime, with no reference to the constitutional crimes being committed by Bush and Ashcroft. As Supreme Court Justice Louis Brandeis prophesied: "The greatest menace to freedom is an inert people." And an inert Democratic leadership. See you in a month, if I'm not an Ashcroft camper.
And which was which? (and if I'm being obtuse, I apologize in advance of your answer)
I get it and I am furious that it takes someone from the left to point it out.
Ahh! I hope you werent saying that Im from the left!!!
Leftists (todays flavor anyway) have no use for the Constitution.
Left Screeching at Ashcroft Again: Detaining Enemy Combatants Jonathan Rhodes |
This is garbage - a one dimensional liberal attack on the Bush Administration. Hyperbole - attack - that is the liberal playbook. It is destructive and unnecessary. Casting the US Justice Department in these screeching terms only weakens the argument for protecting Civil Liberties in these dangerous times. I wish they would grow up.
So Ashcroft's Justice Department has good legal precedence for his position arguing for more security. There are good and necessary arguments and actions that civil rights attorneys are taking to balance the administrations proposition. This is normal American jurisprudence. The courts are speaking and reviewing this issue.
Why does the left have to make this issue a screaming, name calling match? To quote former litigator with the Center For Individual Rights in Washington, DC, Ann Coulter:
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Hey, I'm with rdb3.
A "classic liberal" is someone who believes in limited government, private property, and individual liberty. In the US, those people are called "conservatives". Some US conservatives are also "classic conservatives", in the sense of having respect for tradition, but even this is different from "classic conservative" in the European mold, as US traditions are rooted in classic liberalism.
It is very annoying that the socialists have stolen our name, but oh well.
Bingo!
Yet again.
Thanks. Its easy to sound snotty when you're pounding away at the keyboard. But its meant in good humor, mostly.
Is anyone else troubled by the fact that Impeach the Boy believes that the Sun rises in the east -- in complete agreement with Osama and Saddam!
I remember the definition (or explanation of the definition) floating around FreeRepublic once, I think.
The essence of the definition was that an enemy combatant was someone who operated for the benefit of a hostile entity during a time of war or public danger. Thats from memory not verbatim.
That was further subdivided into lawful enemy combatant and unlawful enemy combatant. To be lawful you must wear a uniform, display your rank, carry some sort of identification, must not carry weapons concealed, must not target civilians or medical personnel a whole list of things. If you managed to comply with the conditions and were captured, you would qualify as a POW. If you did not do those things you could not qualify to be a POW.
If you did not do those things you were unlawful. Posing as a non-combatant while investigating ways to target civilians with dirty nukes and having ties with terrorists or people and groups sympathetic to them seems to qualify as unlawful (Padilla). So would gathering supplies or information, planning acts of sabotage, acquiring identification/clothing for other members of an operation to pass themselves off as civilians, providing disinformation etc.
Thats how I remember it, FWIW. Im sure I probably left something out.
That is the advantage of speaking out of both sides...
The answer is "both". A finding or declaration of war is legally necessary, for the reasons I have stated. Otherwise, civil and criminal law obtains, and you have to get warrants, etc...
And, in my opinion, Congress has already "recognized" that we are at war, in its authorization for military action after 9/11. So, in my opinion, nothing further is needed. But some may want a more explicit declaration before we continue, and I am ok with that.
Yes, posters conveniently forget that the administration is using military force against those congress authorized it to use it against.
Public Law 107-40 put no limits on the location or citizenship of those subject to military force.
A balanced look at these detentions would include considering that the President would and should be subject to impeachment and removal if he did not at least detain those he thought participated or aided in the 9/11 attacks.
(at the risk of diverging for a moment) Although I think the "war on drugs" is not working, I don't think an amendment is necessary to wage it. We've got no business amending the Constitution lightly or at every drop of a hat.
That being said, I understand where you are going in the earlier statement. Unfortunately, earlier laws had determined that blacks - free or otherwise - did not have full citizenship status prior to the enactment of the 14th Amendment. That amendment (at least Section 1) provided remedy for this.
If I'm understanding your point, you take issue with Section 3, where members of the Confederacy are prohibited from holding office. If I also understand correctly, that portion of the amendment is what caused the "under duress" ratification of the amendment. Unfortunately or fortunately, as the case may be, whether or not they ratified under duress is immaterial.
The one key is that Section 3 removed the opportunity for anyone tied to any form of sedition to hold office.
If Congress has already recognized a state of war exists through it's war powers and military action authorization last year, then the remaining point is moot. Also rendered moot is any arguement regarding the Feds picking up anyone on "enemy combatant" status. They get to do it whether you (or Tom Daschle and the rest of the Dems for that matter) like it or not.
And there's not a blasted thing anyone can say about it, because the executive branch has already been granted the power, period. There is no need - based on those grounds - to have a "formal declaration" of war.
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