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Protecting Liberty in a Permanent War
Cato Institute ^ | June 21, 2002 | Ted Galen Carpenter

Posted on 06/21/2002 2:58:14 PM PDT by Dawgsquat

With the detention of Jose Padilla (aka Abdullah al-Mujahir), the Bush administration has made an extraordinary assertion of power. It is sweeping and unnerving. The administration contends that, by merely designating a person as an "enemy combatant," the government can hold him in prison without according him a trial. Indeed, the government does not have to charge him with any criminal offense, much less present evidence of an offense. That is true even if the person in question is an American citizen and is apprehended on American soil.

Civil libertarians are justifiably alarmed at such an ominous shadow over the constitutional rights of all Americans. But there is another aspect that has received less attention even though it is equally alarming. It is a truism that civil liberties have suffered in most of America's wars. But in all of those earlier episodes there was a certainty that the conflict would end someday. A peace treaty would be signed, or the enemy country would either surrender or be conquered. In other words, America would someday return to normal and civil liberties would be restored and repaired.

The war against terrorism is different. Because the struggle is against a shadowy network of adversaries rather than a nation state, it is virtually impossible even to speculate when it might end. President Bush's initial comment that it might last "a year or two" was long ago consigned to the discard pile.

Indeed, it is not clear how victory itself would be defined. Even if the war is confined to combating al-Qaeda, there is no way to confirm at any point that the organization's operatives have been neutralized. The concept of victory becomes more elusive if the goal is the eradication of all terrorism from the planet, as administration officials have sometimes hinted. That is a guaranteed blueprint for perpetual war.

Nor would the mere prolonged absence of attacks on American targets be definitive evidence of victory. How long a period of quiescence would be enough? A year? Five years? Ten years? The reality is that no president would want to risk proclaiming victory in the war on terrorism only to have another terrorist attack occur on his watch. The political consequences of such a gaffe would be dire indeed. (For similar reasons, the color-coded warning system adopted by the Office of Homeland Security will likely never go below yellow). The safe political course would be always to emphasize the need for continuing struggle and vigilance.

In short, America is now waging a permanent war. That reality makes civil liberties considerations even more important than in previous conflicts. Whatever constitutional rights are taken from us (or that we choose to relinquish) will not be restored after a few years. In all likelihood, they will be gone forever.

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. It is chilling to realize that the president is insisting that all he must do is invoke the magical incantation "enemy combatant" and an American citizen can be stripped of his most fundamental constitutional rights without any meaningful scrutiny by the judicial branch. A place where that is possible is not the America we have known. It is not an America that we should want to know.


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Government
KEYWORDS: liberty; terrorism; war
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To: NMC EXP
Absolutely!

Congress gave him this power, and they can take it away.
They can also pass legislation requiring that American detainees be treated differently than others IMHO.

41 posted on 06/21/2002 6:26:05 PM PDT by mrsmith
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To: cascademountaineer
Is the Emergency Detention Act of 1950 still on the books?




INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS

BOOK II

FINAL REPORT OF THE SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES

UNITED STATES SENATE

TOGETHER WITH ADDITIONAL, SUPPLEMENTAL, AND SEPARATE VIEWS

APRIL 26 (legislative day, April 14), 1976

a. The Emergency Detention Act

In 1946, four years before the Emergency Detention Act of 1950 was passed, the FBI advised Attorney General Clark that it had secretly compiled a security index of "potentially dangerous" persons. 186 The Justice Department then made tentative plans for emergency detention based on suspension of the privilege of the writ of habeas corpus. 187 Department officials deliberately avoided going to Congress, advising the FBI in a "blind memorandum:"

The present is no time to seek legislation. To ask for it would only bring on a loud and acrimonious discussion. 188

In 1950, however, Congress passed the Emergency Detention Act which established standards and procedures for the detention, in the event of war, invasion or insurrection "in aid of a foreign enemy," of any person: as to whom there is reasonable ffround to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or sabotage.

The Act did not authorize the suspension of the privilege of the writ of habeas corpus, and it provided that detained persons could appeal to a review board and to the courts. 189

Shortly after passage of the Detention Act, according to a Bureau document, Attorney General J. Howard McGrath told the FBI to disregard it and to "Proceed with the program as previously outlined." Department officials stated that the Act was "in conflict with" their plans, and was "unworkable." FBI officials agreed that the statutory procedures - such as "recourse to the courts" instead of suspension of habeas corpus - would "destroy" their program. 190 Moreover, the Security Index used broader standards to determine "potential dangerousness" than those prescribed in the statute; and, unlike the Act, Department plans provided for issuing a Master Search Warrant and a Master Arrest Warrant. 191 Two subsequent Attorneys General endorsed the decision to ignore the Emergency Detention Act. 192

b. Withholding Information

Not only did the FBI and the Justice Department jointly keep their noncompliance with the Detention Act secret from Congress, but the FBI withheld important aspects of its program from the Attorney General. FBI personnel had been instructed in 1949 that :

no mention must be made in any investigative report relating to the classifications of top functionaries and key figures, nor to the Detcom and Comsab Programs, nor to the Security Index or the Communist Index. These investigative procedures and administrative aides are confidential and should not be known to any outside agency. 193

FBI documents indicate that only the Security Index was made known to the Justice Department.




Regards

J.R.



42 posted on 06/21/2002 6:50:14 PM PDT by NMC EXP
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To: Dawgsquat
Haven't we always been at war with Oceania?
43 posted on 06/21/2002 6:59:38 PM PDT by Tourist Guy
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To: Tourist Guy
What is the legal speak here for a "War on Terrorism" which is nothing more than politcal speak, unless congress declares war?
44 posted on 06/21/2002 7:03:21 PM PDT by flyer182
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To: luvzhottea
Didya ever notice that when there are "celebrity" versions of gameshows (Jeopardy, Millionaire et.al.) they have to dumb down the questions for them?

Yet it is the Tom Cruises of this world that get airtime.
Put a few of these well-versed FReepers on the air for some "makes sense" viewpoints.

45 posted on 06/21/2002 7:04:56 PM PDT by Tourist Guy
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To: flyer182
The war that has no end...yet is not a "war" at all?

Bleat.

46 posted on 06/21/2002 7:13:11 PM PDT by Tourist Guy
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To: NMC EXP
Its my understanding the Emergency Detention Act of 1950 was repealed in 1971 after hearings by the Internal Security Committee in 1970.

One portion of the Detention Act of 1950 which was the cause of great concern read and caused questions about its Constitutionality read:

Sec. 103. (a) Whenever there shall be in existence such an emergency, the President, acting through the Attorney General, is hereby authorized to apprehend and by order detain, pursuant to the provisions of this title, each person as to whom there is reasonable ground to believe probably will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage,

The problem with the above section is that it violated the 5th and 6th amendment rights of those arrested.

47 posted on 06/21/2002 7:36:20 PM PDT by cascademountaineer
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To: Tourist Guy
Please no common sense allowed, and besides who do you think the ladies watching Tom would believe me and you or Cutey Cruise? LOL
48 posted on 06/21/2002 9:08:01 PM PDT by luvzhottea
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To: Dawgsquat
That is true even if the person in question is an American citizen and is apprehended on American soil.

I'm a bit disturbed by this part:

I've got a whole trainload of "disturbance" over this whole thing.

Anyone want to start a pool on when the gov't can't get the goods on someone who is hiding a few bucks down in the Caribbean, they will label him a "enemy combatant" (for funding terrorism, you see...) and get out the thumbscrews, and hot pokers?

As much as this guy may be a threat, he is an American citizen, has killed no one (that we know of), is not accused of killing anyone, and was arrested on US soil. He is entitled to his day in court, and each and every one of his Constitutional rights.

Where in the Constitution does it give the gov't the right to strip someone of their rights, just because they think they can't get a conviction? Think about that. Think real FReaking hard...

49 posted on 06/21/2002 9:49:27 PM PDT by Orion
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To: genefromjersey
undergoes military/terrorist training (thereby forfeiting his American citizenship);

No.
You may lose your citizenship under some pretty dire circumstances, but affiliating with a group, and not of a state, is not one of them.

Did this guy kill any Americans? Was he part of the 9/11 conspiracy? No. He received training (perfectly legal) joined a group (perfectly legal), was in the US (perfectly legal), and had $10526 in cash (illegal by $527). The fact that he hates America is perfectly legal. If it were not, entire cities would be wiped off the map (Berkeley, Cambridge, Seattle, most of Marin County-CA, etc). He has a right to walk the streets and burn our flag, chant 'death to America,' and say really mean things about GWB. That is all protected under the First Amendment (provided he does not take out advertising within 60 days of a Presidential election).

Did he have bomb materials? Did he kill any Americans?

Sorry, but he must be charged within 48 hours, or released.

50 posted on 06/21/2002 9:58:40 PM PDT by Orion
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To: Gurn
"They're Muslims trying to destroy our country. They don't have rights."

Wake up dammit. The Moslem jihadists are trying to destroy Blue Nation, and really just its two capitals (Washington, Manhattan) at that. And as a citizen of Red Nation, I'll be damned if I'll live in a police state just so the elites of Manhattan can have some illusion of safety. My father's father didn't risk instant death guarding ammo dumps from sub-landed Nazi saboteurs in WWII for me to have fewer rights than he had as a birthright for being just born an American - and he didn't have to live in any police state even during an all-out world war when the Nazis landed saboteurs inside the U.S. from submarines.

51 posted on 06/22/2002 1:40:16 AM PDT by glc1173@aol.com
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Precriminals are doubleplusungood:
"We need some new system to handle suspected terrorists, outside the standard criminal and military paradigms that have proven a worse fit with each successive case. We need some forward-looking system, based on the likelihood of future danger.
       We need a Bureau of Precrime."

Department of Precrime


52 posted on 06/22/2002 1:51:21 AM PDT by Mong
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To: Orion
Not if he is an actual combatant. One can be a combatant without picking up a weapon, or participating in an actual/successful attack.
53 posted on 06/22/2002 6:38:33 AM PDT by genefromjersey
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To: genefromjersey
Not if he is an actual combatant. One can be a combatant without picking up a weapon, or participating in an actual/successful attack.

Then ANYONE is a combatant!!!! Affiliation with a group is not a crime. Actions are crimes, not affiliations.

I am against abortion and support pro-life causes, therefore I am guilty of captial murder because someone else with my beliefs murdered abortionists.

Because some in the KKK lynched blacks does not mean that everyone in the KKK is guilty of that crime.

Nate Newton got busted with 100kilos of ganja. Therefore all of the Dallas Cowboys should be locked up.

I was a Naval Aviator in September 1991 and at Tailhook, therefore I am guilty of sexual assault.

When he was originally detained, they had no intention of treating him as a combatant, until they realized they had no case. Why was it the customs service that nabbed him, rather than some security agency? He is a citizen, and on US soil. Hating America is NOT a crime. Receiving training is not a crime, affiliating with a private orgainization is not a crime. This is why he has to be held without rights - because he committed no crime. I have received training on how to smuggle drugs, dodge taxes, kill people, covert communications, and how to use airplanes in many a nefarious manner. If I suddenly hated America, would I be a combatant?

54 posted on 06/22/2002 8:41:56 AM PDT by Orion
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To: Orion
I would rather think so-IF-you went to another country,joined a group dedicated to terrorism, and undertook training designed to harm your native land.
55 posted on 06/22/2002 9:02:36 AM PDT by genefromjersey
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To: Dawgsquat
There is no need to quote the Constitution, or even read it. Those in Washington don't refer to it anymore.
56 posted on 06/22/2002 10:41:19 AM PDT by B4Ranch
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To: genefromjersey
I would rather think so-IF-you went to another country,joined a group dedicated to terrorism, and undertook training designed to harm your native land.

So, if you even think about a crime against the gov't, you don't have any rights. However, if you perpetrate a crime against a non-gov't citizen, then you have every protection under the law

If three people get together and discuss how to repel ATF agents, are they combatants?

Remember, Padilla only received training. That is his crime. The gov't does not have anything on the guy, that is why he is being held without charge, trial, or representation - in COMPLETE violation of most of the Bill of Rights.

THAT'S OK!!! OUR GUYS ARE RUNNING THE SHOW, SO DONT MESS WITH US!!

When the next Dem takes office, and some crackpot blows up an abortion mill, I'm going to weep for all my fellow conservatives who are rounded up under the very laws we are pulling out of thin air. Don't think it will happen? We have already arrested some preacher for reading his bible on public property, in the vicinity of an abortion mill.

Keep cheering on our JBT gov't. It's OK, because "we" are the JBTs.

57 posted on 06/22/2002 11:16:21 AM PDT by Orion
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To: B4Ranch
There is no need to quote the Constitution, or even read it. Those in Washington don't refer to it anymore.

...or many FReepers, for that matter. It's all about power. "We" have it, so there.

58 posted on 06/22/2002 11:17:47 AM PDT by Orion
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To: Orion
It's well to declaim :

To what avail
The plow or sail
Or land, or life
If Freedom fail ?

John Donne's sentiments are indeed worthwhile; but I feel constrained to add:

And yet
Should Freedom's castle fall
I fear we'd have
No rights at all !

59 posted on 06/22/2002 12:37:24 PM PDT by genefromjersey
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To: PoppingSmoke
Guess what? This does not overshadow the Constitution! The fact is plain. This
guy is a Citizen, he was arrested on US Soil, he must be tried by the US Courts.
Heck we have one FOREIGN NATIONAL being tried by US LAW. Since
when does a foreign national have more rights than any US Citizen. The
Administration is nuts in this case.


Not so, this is very simple: Any citizen taking up arms against
the United States no longer has any rights as he has forfeited
them by his own act of treason. It is not a matter of the President
suspending "Habeous Corpus" for this person as this person has
suspended it for himself. His hope would be that the president
would allow this right to be restored to him. Do you really think
that president Bush will pardon this guy...would you want him to?


60 posted on 06/22/2002 1:04:29 PM PDT by RAWGUY
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