General Ashcroft's Detention Camps: Time to Call for His Resignation

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 Rumsfeld—anyone 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 citizens—Yaser Esam Hamdi and Jose Padilla—are 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] Padilla—mostly empty since it was designated in January to hold foreigners captured in the U.S. and facing military tribunals—now 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 detaining—not in these special camps, but in regular lockups—any 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 editorial—written before those plans were revealed—said: "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.

Left Screeching at Ashcroft Again:
Detaining Enemy Combatants

Jonathan Rhodes
efreedomnews.com
September 4, 2002

General Ashcroft's Detention Camps: Time to Call for His Resignation
"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." Nat Hentoff September 4 - September 10, 2002 Village Voice
"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." August 8, 2002 New York Times editorial

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.

Let's look at the facts:

This is an old - and necessary - argument about the balance between the rights of one to justice and the rights of many to security.

"No civilized nation confronting serious danger has ever relied exclusively on criminal convictions for past offenses. Every country has introduced, by one means or another, a system of preventive or administrative detention for persons who are thought to be dangerous but who might not be convictable under the conventional criminal law." So writes Alan Dershowitz of Harvard Law School.

Mr. Ashcroft said there was legal authority "under the laws of war and clear Supreme Court precedent, which establishes that the military may detain a United States citizen who has joined the enemy and has entered our country to carry out hostile acts".

The Supreme Court precedent he refers to dates from the Quirin case in 1942. Quirin (an American Citizen) and seven other German saboteurs were landed on beaches on Long Island and in Florida by submarine. All were arrested and handed over to the military. The court held that they were "unlawful combatants" who had entered the country secretly like spies.

The Supreme court stated: "All citizens of nations at war with the United States or who give obedience to or act under the direction of any such nation shall be subject to the law of war and to the jurisdiction of military tribunals."

In 1946, the federal appeals court in San Francisco arrived at a similar conclusion in the case of an Italian-American captured while fighting with Mussolini's troops in Sicily. He was transferred to the United States and held indefinitely until the war ended.

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.

Two American citizen prisoners, Yaser Hamdi (captured as an armed combatant in Afghanistan) and Jose Padilla (seized after disembarking from an airplane in Chicago’s O’Hare International Airport after arriving on orders from al-Qaida who trained him to work on a "dirty" nuclear bomb), are the only ones being held in these "camps" - to denigrate the use of that term is obvious.

US District Judge Robert G. Doumar granted a legal petition by Hamdi’s father compelling the government to allow Hamdi to consult with a court-appointed lawyer.

The Bush administration appealed this finding to the Fourth Circuit Court of Appeals which vacated the US district court’s ruling and sent the case back for reconsideration “because the district court appointed counsel and ordered access to the detainee without adequately considering the implications of its actions”. (regarding precedence of military rules in wartime)

The cases of Yasser Esam Hamdi and Jose Padilla, two U.S. citizens whose detentions are being challenged in court, will likely determine whether the Justice Department can indefinitely detain terrorist suspects without trials and without lawyers.

"I am not ashamed to say we have used every legal weapon available in order to prevent and disrupt future terrorism acts," Larry Thompson, the deputy U.S. attorney general, told a recent meeting of the National Association of Black Prosecutors in Los Angeles. "We have been especially aggressive with respect to detention and surveillance."

Michael Chertoff, head of the Justice Department's criminal division, also offered a strong defense.

U.S. Attorney General John Ashcroft "is very, very conscious of civil liberties issues," Chertoff told the American Bar Association's annual meeting last month in Washington. "In our discussions, he told us he wanted people to think outside the box, but never outside the Constitution. . . . You shouldn't think you are dealing with a bunch of barbarians."

Chertoff added, "The basic issue is this: We are in a time of war. The consequences of missing another effort of conducting mass killing in the United States are horrendous."

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:

This is how six-year olds argue: They call everything "stupid." The left's primary argument is the angry reaction of a helpless child deprived of the ability to mount logical counterarguments. Someday we will turn to the New York Times editorial page and find the Newspaper of Record denouncing President Bush for being a "penis-head." The "you’re stupid" riposte is part of the larger liberal tactic of refusing to engage ideas. Sometimes they evaporate in the middle of an argument and your left standing alone, arguing with yourself. More often, liberals withdraw figuratively by responding with ludicrous and irrelevant personal attacks. Especially popular are non-sequiturs that are savagely cruel. A vicious personal smear, they believe, constitutes a clever counterargument. Your refusal to submit to name-calling means you are overwhelmed by the force of their argument that you are a penis-head."
"Liberals conceive of news reporting as political propaganda and assume, therefore, that everyone else does too."

"The law imposes rules precisely so that liberals cannot endlessly jawbone hypothetical possibilities until they have their way."

Slander : Liberal Lies About the American Right

… the fundamental problem is that we don't have a clear definitions of "enemy combatant".

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. That’s 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.

That’s how I remember it, FWIW. I’m sure I probably left something out.

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