Protecting Liberty in a Permanent War

Cato Institute ^ | June 21, 2002 | Ted Galen Carpenter

[Gurn]

They're Muslims trying to destroy our country. They don't have rights.

[BluesDuke]

The Constitution should be taken like mountain whiskey - undiluted and untaxed. - Sen. Sam J. Ervin, proving that every once in awhile (like once or maybe twice per generation), even a Democrat can make sense.

The road to Damnocratic hell is paved with Republican't good intentions.

[Dawgsquat]

Hi Blues!

I'm a bit disturbed by this part:

That is true even if the person in question is an American citizen and is apprehended on American soil.

[BluesDuke]

Hey Dawg!

That part is troubling to a good many of us. And I have noticed discomfort enough on the right over that very premise, i.e. it's one thing to capture and hold Taliban Johnny Lindh, who went to Afghanistan and all but renounced his American root, but something else entirely involving an American citizen. And I think this will be a topic that will (should) be debated ceaselessly.

[Dawgsquat]

I agree. Every American has a right to his day in court. At least they used to.

[mrsmith]

"the awesome power that President Bush has claimed"

He misses the most important point: Congress gave him this power.

"...authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.
...the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

It is quite forseeable that once the present transnational terrorists are broken up that congress will rescind this authority from the president.
Congress gets no benefit from it, in fact it strengthenss the Executive Branch at congress's expense.

What comes next, if anything, is an interesting question.

[thucydides]

Unlike Lincoln did, Bush did not suspend the writ of habeas corpus, which affords Padilla (or anyone else in similar circumstances) to secure a judicial review of whether the President's determination that he was an unlawful combatant was reasonable. This is good enough for even such left - liberals as Laurence Tribe, it should be good enough for the libertarians at Cato.

[mrsmith]

Yes, people keep ignoring that Padilla has a habeas corpus petition pending.
Findlaw has a link to his amended habeas corpus petition filed Wednesday: HERE (it's a PDF file).

[Dawgsquat]

"authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States. ...the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

This is merely authorization to use force. It has nothing to do with prosecuting those that may be complicit. I assume force to mean military force.

[Mike4Freedom]

They're Muslims trying to destroy our country. They don't have rights.

How do you know that they are trying to destroy our country without evidence? The assertion of power is an outrage. According to the President, the executive branch can label someone an enemy combatant and he thereby loses all his rights. Padilla has a lawyer now only because he was a regular prisoner for a month. Under this new rule, he would just disappear. No lawyer would know about his predicament and would not know to help him.

To make this legal, congress would have to define just what makes you an enemy combatant and then there would have to be a jury trial to judge if the facts supported the charge. Without that, this is kidnapping.

[Dawgsquat]

Another thing disturbs me. Why does Moussaoui (not a citizen) get his day in court yet Padilla (a citizen) does not?

[genefromjersey]

To paraphrase Archie Bunker : " Aw Jeez ! "

Let me see if I've got this right:
An American citizen travels to a foreign country;
undergoes military/terrorist training (thereby forfeiting his American citizenship);
returns to the USA with the stated intention of doing harm.

Whatinhell does that make him ? A victim ???

[Dawgsquat]

An American citizen travels to a foreign country; undergoes military/terrorist training (thereby forfeiting his American citizenship);

Could you cite me the law which revoked his citizenship? I'm not familiar with it.

[genefromjersey]

Good question ! I believe the laws of Treason would cover it.It is not necessary that there be a declared state of war-(there were 2 treason convictions during the so-called Whiskey Rebellion ); but generally, the statutes provide that a person "owing allegiance" to the U.S., who levies war against the US,or adheres to the enemies of the US, or gives aid and support to the enemies of the US is guilty of treason.

I may have mis-spoken in my original response : confusing US statutes with the Uniform Code of Military Justice-( which provides for dishonorable discharge and other penalties for a military member who serves in the military of another country without consent.

[alpowolf]

We therefore need to ask whether we want to give not only the current president but also his unknown successors in the decades to come the awesome power that President Bush has claimed

I think some people need to imagine HillaryBeast with this power before they say that it's hunky-dory.

[Dawgsquat]

Perhaps, but he would have to be convicted in order to strip him of his citizenship. He hasn't been convicted.

[borntodiefree]

Congress can go to hell. They can't "give" the president jack squat when it is EXPLICIT that he can not deny the writ. If he is on American soil, he is protected by the Constitution, if he is a US Citizen, he is protected by the constitution...that's it nothing else...everything else is unconstitutional...read it, it is in black and white NOT GREY

Just like they can't "give" him the trade authority. WE said it was a Congressional Power.

Hey, if the guy is guilty of sedition, treason, etc... great!!! Fry him or whatever, but do it the right way!!!

I sware...which I shouldn't...people need to think for themselves and quit relying on other's version of the information!

[borntodiefree]

Though I think Muslim's are going to hell, that does not make them criminals. Only action or proven attempted action, which seems to be the case here, is a crime.

However, in your terms, your an American who's government is hell bent on destroying Iraq, so you have no rights...is that what your saying....I didn't think so....

[mrsmith]

"I assume force to mean military force. "

Correct- that's the point!
Padilla could not be held as a military detainee if military force hadn't been authorized by the congress.