Posted on 06/24/2002 7:16:31 AM PDT by xsysmgr
Jose Padilla, a.k.a. Abdullah al-Muhajir, supposedly plotted to build and detonate a radiological "dirty bomb." He is a U.S. citizen. Yet he's being detained by the military — indefinitely, without seeing an attorney, even though he hasn't been charged with any crime. Yaser Esam Hamdi is also a U.S. citizen. He, too, is being detained by the military — indefinitely, without seeing an attorney, even though he hasn't been charged with any crime. Meanwhile, Zacarias Moussaoui, purportedly the 20th hijacker, is not a U.S. citizen. Neither is Richard Reid, the alleged shoe bomber. Both have attorneys. Both have been charged before federal civilian courts.
What gives? Four men: two citizens and two non-citizens. Is it possible that constitutional rights — like habeas corpus, which requires the government to justify continued detentions, and the Sixth Amendment, which assures a speedy and public jury trial with assistance of counsel — can be denied to citizens yet extended to non-citizens? That's what the Bush administration would have us believe. Citizen Padilla's treatment is perfectly legitimate, insists Attorney General John Ashcroft, because Padilla is an "enemy combatant" and there is "clear Supreme Court precedent" to handle those persons differently, even if they are citizens.
Ashcroft's so-called clear precedent is a 1942 Supreme Court case, Ex Parte Quirin, which dealt with Nazi saboteurs, at least one of whom was a U.S. citizen. "Enemy combatants," said the Court, are either lawful — for example, the regular army of a belligerent country — or unlawful — for example, terrorists. When lawful combatants are captured, they are POWs. As POWs, they cannot be tried (except for war crimes), they must be repatriated after hostilities are over, and they only have to provide their name, rank, and serial number if interrogated. Clearly, that's not what the Justice Department has in mind for Padilla.
Unlawful combatants are different. When unlawful combatants are captured, they can be tried by a military tribunal. That's what happened to the Nazi saboteurs in Quirin. But Padilla has not been charged much less tried. Indeed, the president's executive order of November 2001 excludes U.S. citizens from the purview of military tribunals. If the president were to modify his order, the Quirin decision might provide legal authority for the military to try Padilla. But the decision provides no legal authority for detaining a citizen without an attorney solely for purposes of aggressive interrogation.
Moreover, the Constitution does not distinguish between the protections extended to ordinary citizens on one hand and unlawful-combatant citizens on the other. Nor does the Constitution distinguish between the crimes covered by the Fifth and Sixth Amendments and the terrorist acts Padilla is suspected of planning. Still, the Quirin Court justified those distinctions — noting that Congress had formally declared war and thereby invoked articles of war that expressly authorized the trial of unlawful combatants by military tribunal. Today, the situation is very different. We've had virtually no input from Congress: no declaration of war, no authorization of tribunals, and no suspension of habeas corpus.
Yet those functions are explicitly assigned to Congress by Article I of the Constitution. It is Congress, not the executive branch, which has the power "To declare War" and "To constitute Tribunals inferior to the supreme Court." Only Congress can suspend the "Privilege of the Writ of Habeas Corpus … when in Cases of Rebellion or Invasion the public Safety may require it." Congress has not spoken — except by enacting the USA Patriot Act. And there, we do find authorization for detention of persons suspected of terrorism — but only non-citizens and only for seven days, after which they must be released unless criminal charges are filed or deportation proceedings commenced.
Without either constitutional or statutory authority, the administration has decided that it will set the rules, prosecute infractions, determine guilt or innocence, then review the results of its own actions. That's too much unchecked power in the hands of the executive branch — making a mockery of the doctrine of separation of powers that has been a cornerstone of our Constitution for two-and-a-quarter centuries. Even persons convinced that President Bush cherishes civil liberties and understands that the Constitution is not mere scrap paper, must be unsettled by the prospect that an unknown and less honorable successor could exploit some of the dangerous precedents that the Bush administration has put in place.
In a nutshell, we cannot permit the executive branch to declare unilaterally that a U.S. citizen may be characterized as an enemy combatant, whisked away, detained indefinitely without charges, denied legal counsel, and prevented from arguing to a judge that he is wholly innocent.
That does not mean the Justice Department must set people free to unleash weapons of mass destruction. But it does mean, at a minimum, that Congress must get involved, exercising its responsibility to enact a new legal regimen for citizen-detainees in time of national emergency. That regimen must respect citizens' rights under the Constitution, including the right to judicial review of executive branch decisions. Constitutional rights are not absolute. But they do establish a strong presumption of liberty, which can be overridden only if government demonstrates, first, that its restrictions are essential and, second, that the goals it seeks to accomplish cannot be accomplished in a less invasive manner. When the executive, legislative, and judicial branches agree on the framework, the potential for abuse is significantly diminished. When only the executive has acted, the foundation of a free society can too easily erode.
— Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.
Ever heard of TREASON!?! This converted Muslim loser is not the only one who has Rights! All Americans have the the Right to LIFE, Liberty, and the pursuit of happiness. This means that we all have the Right to live and be alive, and not be nuke toast just because some loser is angry at the whole world! You would release an enemy agent to perpetrate a heinous attack against your own countrymen!! Personally, I don't care what it takes I want Padilla held in custody for the duration of the war!!!
I stated that the defendent could be freed to plan further terrorists attacks. Then, I said the poster was nuts. Then, you piped in and loudly proclaimed your ignorance of the problems associated with due process for terrorists. Perhaps you are just ignorant to the many ways prisoners can be set free due to technical problems associated with an arrest? Perhaps you don't know how many such criminals repeat their crimes once freed? I'll err on the side of ignorance for your sake.
Now, outlined below is a good summary of some problems associated with terrorist trials in civilian courts. Perhaps you'd like to take back your words?
Can U.S. citizens who commit acts of terrorism be tried in civilian courts?
Terrorists with U.S. citizenship can be tried in civilian courts, as illustrated by the case of Timothy McVeigh, who was convicted in federal court of the 1995 bombing of a federal office building in Oklahoma City that killed 168 people and injured hundreds more. A co-conspirator, Terry Nichols, was sentenced to life in prison for his role in the bombing. John Walker Lindh, the “American Taliban” captured in Afghanistan, faces federal trial on charges of aiding terrorist organizations and conspiracy to kill Americans.
Are criminal defendants charged with acts of terrorism entitled to constitutional protections?
Yes. The Constitution requires that courts follow certain procedures in all criminal trials, even when terrorism is involved and even when the defendants are not U.S. citizens. Still, as Supreme Court Justice Arthur Goldberg noted in 1963, “while the Constitution protects against invasions of individual rights, it is not a suicide pact.” U.S. laws give the government considerable flexibility to prosecute terrorists while upholding the criminal-procedure rules of the Constitution. The ultimate arbiter of these rules is the Supreme Court.
Do any other courts play a role in the war on terrorism?
Yes. The little-known Foreign Intelligence Surveillance Court authorizes the surveillance of people in the United States thought to be agents of foreign powers, including terrorist groups. Wiretaps authorized by the court have been used to charge the head of a Chicago-based charity accused of helping fund al-Qaeda and to indict a lawyer to the mastermind of the 1993 World Trade Center bombing for allegedly helping him plan further attacks.
Civilian Courts
Could a terrorist convicted in a civilian court get the death penalty?
Yes. In certain circumstances, such as cases where murder is committed in a federal building, the death penalty may be imposed—as it was on McVeigh for his role in the Oklahoma City bombing. Prosecutors are seeking the death sentence for Moussaoui, the alleged September 11 conspirator. Terrorist acts involving murder can also be prosecuted in state courts, which in many states—including New York and Virginia, both affected by the September 11 attacks—can impose the death penalty.
Can someone sue a terrorist for damages in a civil suit?
Yes. Federal law allows victims of terrorism to file suit in federal court against foreign countries alleged to have sponsored crimes committed against them. Several judgments have been rendered against Iran, which the State Department considers to be the world’s leading state sponsor of terrorism. But collecting damage awards in these cases has proven difficult. Countries that have been sued do not accept the authority of these legal decisions, and even when a foreign government’s assets have been seized, as Iran’s have, the U.S. government has forbidden using these assets to pay legal judgments.
What problems arise in using federal courts to try terrorists?
Terrorists might threaten to harm judges and jurors. U.S. Marshals provide protection, and jurors can remain anonymous, but no one is sure whether these measures would guarantee their safety. Such dangers are common in mob-related trials, and threats against judges, U.S. attorneys, and other court officers have increased dramatically in recent years. The Constitution gives defendants the right to face their accusers, so trials might endanger witnesses who appear in court, since the alleged terrorists could then identify the witnesses. Some witnesses might refuse to testify, even if they are given access to the federal witness-protection program. The need to rely on classified evidence might force prosecutors to choose between divulging intelligence secrets and seeing defendants go free. Some legal scholars say that rules allowing defendants to see only summaries or portions of evidence against them, rather than the classified evidence in its entirety, can ease such dilemmas. But these arrangements do not always work, critics say. In 1991, for example, the main criminal charges against Marine Lieutenant Colonel Oliver North in the Iran-contra case were dismissed because the government did not want to reveal intelligence information. If prosecutors cannot establish a suspected foreign terrorist’s guilt beyond a reasonable doubt in a civilian court, that person could be freed and might plan other terrorist attacks. But U.S. officials say that the United States can detain suspected terrorists indefinitely as unlawful combatants in an ongoing conflict, even if they are acquitted. Federal courts do not permit criminal trials to be televised, but some officials express concern that trials of suspected terrorists could become international spectacles that for the audience turn on matters not of law but of prejudice or public opinion. Many legal scholars say there are ways to make trials of terrorists in U.S. federal court work. Others say military tribunals may work better in some cases. But all agree that prosecuting suspected terrorists in civilian courts poses formidable challenges.
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I do hope this clears things up for you, TomJeff.
I'll go real slow for you, y o u - a r e- a - m o r o n.
If he has no rights you have no rights, get it now moron?
I never did that, and it's not possible to know if he is a terrorist. He hasn't been charged with anything. His rights have been suspended on the say so of the AG.
I think you are a terrorist and as soon as I find out who you are, I'm going to see to it that you are taken into custody and have no rights. You will not be charged or be allowed any of the rights you were born with. You will never have a day in court.
So? Today the federal troops attack the citizens (as seen at Waco, Ruby Ridge, and numerous drug raids). Does that somehow make it better? And you said it yourself. Seven states passed legal legislation that codified secession, not rebellion. Rather getting into another discussion of whether that was right or wrong, wasn't Maryland still in the union? Doesn't then all laws under the Constitution apply? I don't remember reading about Washington suspending habeas corpus in the first use of the almighty Militia Act, yet I imagine there was a troop or two attacked then. You know why? Because he understood he DID NOT have the right to do so!!
Fact is, the governor made the decision, Merryman, while at fault maybe for being a freedom fighter in this case, had not as yet broken any laws, except for thinking something outside of the union box. If you start locking up people for thought at any time whether it be war, peace, legal secession, or rebellion, we become no better than the tyrants this nation of states fights against
Ummmm, no. The justice didn't put sarcasm tags in. He wrote, "Again, the power of repealing a law and that of suspending it (which is a partial repeal) are Legislative powers."
That's not what I said, black knight.
Walt
Why did you not include this?
As in the whole article cited, no mention is made of the power of any other branch of government but the Legislative, it cannot be said that any of the limitations which it contains extend to any of the other branches.
The case you cite doesn't support your position.
Walt
If he has no rights you have no rights...
Oh okay, you never did that. Sure, whatever...I get your argument. I've gotten it all along. I just don't buy into it. The difference between you & I is whether you are paranoid about the government. I am not. I look around me and see people going to court every day in defense of all kinds of charges. But, if we are to believe you, these folks would all be rounded up as terrorists without evidence.
If the government had no evidence against Padilla, I'm sure they wouldn't stick their necks our so far as to be exposed to the Liberaltarians (such as you) and your ACLU classmates. No, I just don't buy your BS.
They're coming to take you away, he he ha ha ho ho!
Now answer my question or else I will lob the Holy Hand Grenade at Antioch at you!!
When they are coming for you, tell us whether you still feel like singing about it. If you can ever get a word sneaked out, that is.
As G. K. Chesterton said, a white post left to itself soon becomes a black post.
I see nothing suggesting that Padilla isn't guilty as h*ll, but suppose he isn't? Will he ever get a chance to prove it before this endless undeclared "War on Terrorism" comes to a close (ha, ha)? You think that you could not be framed into such a Kafkaesque trap?
He writes, "If, therefore, this suspending power exist in the executive (under whose authority it has been endeavoured to exercise it) it exists without any limitation, then the president possesses without a limitation a power which the Legislature cannot exercise without a limitation. Thus he possesses a greater power alone than the house of representatives, the senate and himself jointly."
It's not declatory, it's supposition. He's arguing that your reasoning would give the President more power than the Congress (who was delegated the power).
Just to make sure he's understood he adds, "Again, the power of repealing a law and that of suspending it (which is a partial repeal) are Legislative powers."
I'll turn that around. Suppose he IS, and through the civilian court system, he gets set free to blow up tens of thousands. Then, where would you stand? Is it better to protect the many or worry about the one? Now, this philosophical arguement does bring up important constitutional questions and the Supreme Court will NO DOUBT be the final arbitrar of that case. Until then, we can argue all day and it changes nothing.
For me, it's a question of protecting the many (women, and innocent children- and Bubbas like you and me) or protecting the due process of what is more than likely a terrorist hellbent on destroying you and all of your freedoms.
You have been wielding that statement as though it were some kind of decisive club. The truth is that the SCOTUS frequently overturns lower courts, and the practical result of applying Quirin the way the lower court did would be to disallow judicial exoneration in perpetuity for certain charges. I am confident that the SCOTUS will see the reductio ad absurdam here.
You have been wielding that statement as though it were some kind of decisive club. The truth is that the SCOTUS frequently overturns lower courts, and the practical result of applying Quirin the way the lower court did would be to disallow judicial exoneration in perpetuity for certain charges. I am confident that the SCOTUS will see the reductio ad absurdam here.
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