Skip to comments.Court rules prisoner, an American-born suspected Taliban, can't meet with lawyers
Posted on 07/12/2002 9:24:50 AM PDT by OldeconomybuyerEdited on 04/13/2004 2:40:33 AM PDT by Jim Robinson. [history]
RICHMOND, Va. (AP) -- A federal appeals court ruled Friday that a suspected American-born Taliban fighter cannot meet with his lawyers because the judge who ordered the meetings did not adequately consider the government's position that the prisoner is an enemy combatant.
(Excerpt) Read more at sfgate.com ...
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
(No longer relevant - see: Deconstructing the Second Amendment
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
(No longer relevant - see: War on the Constitution
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
(No longer relevant - see: Seizure Fever: The War on Property Rights
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
(No longer relevant - see: Is This man's case worth suspending the United States Constitution?
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Even if Hilary were to be elected, I am sure that would never take advantage of the fact that our Constitution was gutted in the wake of 9/11...
I mean, it's not like she's power-hungry or anything...
We'll get all of our rights back as soon as this war on terror has been won.... (cough, cough)
More from the ruling:
"...The order arises in the context of foreign relations and national security, where a court's deference to the political branches of our national government is considerable. It is the President who wields "delicate, plenary and exclusive power . . . as the sole organ of the federal government in the field of international relations -- a power which does not require as a basis for its exercise an act of Congress." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). And where as here the President does act with statutory authorization from Congress, there is all the more reason for deference. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 & n.2 (1952) (Jackson, J., concurring). Indeed, Articles I and II prominently assign to Congress and the President the shared responsibility for military affairs.
See U.S. Const. art. I, S 8; art. II, S 2. In accordance with this constitutional text, the Supreme Court has shown great deference to the political branches when called upon to decide cases implicating sensitive matters of foreign policy, national security, or military affairs. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 660-61 (1981); Curtiss- Wright, 299 U.S. at 319-20; United States v. The Three Friends, 166 U.S. 1, 63 (1897); Stewart v. Kahn, 78 U.S. 493, 506 (1870); The Prize Cases, 67 U.S. (2 Black) 635, 670 (1862).
This deference extends to military designations of individuals as enemy combatants in times of active hostilities, as well as to their detention after capture on the field of battle. The authority to capture those who take up arms against America belongs to the Commander in Chief under Article II, Section 2. As far back as the Civil War, the Supreme Court deferred to the President's determination that those in rebellion had the status of belligerents. See The Prize Cases, 67 U.S. (2 Black) at 670. And in World War II, the Court stated in no uncertain terms that the President's wartime detention decisions are to be accorded great deference from the courts. Ex parte Quirin, 317 U.S. 1, 25 (1942). It was inattention to these cardinal principles of constitutional text and practice that led to the errors below....
the June 11 order apparently assumes (1) that Hamdi is not an enemy combatant or (2) even if he might be such a person, he is nonetheless entitled not only to counsel but to immediate and unmonitored access thereto. Either ruling has sweeping implications for the posture of the judicial branch during a time of international conflict, and neither may rest on a procedurally flawed foundation that denied both petitioners and the government a chance to properly present their arguments, or to lay even a modest foundation for meaningful appellate review. The district court's order must be reversed and remanded for further proceedings....
Any dismissal of the petition at this point would be as premature as the district court's June 11 order. In dismissing, we ourselves would be summarily embracing a sweeping proposition -- namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so. Given the interlocutory nature of this appeal, a remand rather than an outright dismissal is appropriate. "
Think about this awhile before repeating your incorrect assertions.
Because the Constitution requires conviction for treason on the testimony of two witnesses and General Ashcroft can't satisfy the burden of proof. Eliminate this requirement, and AG's like Janet Reno could churn out the treason indictments right and left.
Voters like you are a far greater threat to what's left of the Republic than any Muslim fanatic.
Well, seeing you are a new member of Free Republic, I have to admit that possibility.
"aren't POW's because their is no war"
Well, the Founders Washington, Adams, and Jefferson all ran wars under Congressional declarations very similar to Public Law 107-40 "To 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 "
Although it is commendable to be concerned with rights, you would be wise to look into how the Founders balanced the matter of rights and security in the Constitution.
No offense meant when I say they were much, much wiser than you.
I have yet to hear anyone suggest a better way than putting the War Powers in the legislature to be administered by the Executive- not by the Judiciary.
Notice the fourth Circuit has ruled only that the case be remanded so that the court can take consideration of the executive branches concerns- which the court , astonishingly, hadn't!
From the appeal court's ruling, it appears Hamdi will get monitored meetings with a lawyer, a habeaus proceeding, and due process review.
Pretty outstanding treatment of an enemy combatant by any reasonable person's measure!
That is right, the power to declare war is vested in the legislature. They have not declared a war. I wish they would, it would make these constitutional questions easier.
With new people, to be fair, we also have to consider that they are just woefully misinformed about our Constitution and history.
Of course, that's no reason not to beat on a newbie just because they're newbies! It certainly didn't do me any harm when my first innocent reply was responded to with accusations of malicious intent and depravity!
(Ah, the good old days.)
According to Washington, Adams, Jefferson- and their Congresses- the president has been given the authority to use the military in war.
That's as clear as can be. If you think there is a better way to understand the Constitution than by taking the understanding the Founders had of it- don't bother telling me cause I'm happy with their view!
I too wish they had issued a Declaration of War ( because it gives the congress less ability to intrude on the conduct of the war), but there is no Constitutionally based reason to reject the way taken.
Oh well. I suppose we can always trust government to know who its real enemies are.
Adams proposed and signed the Alien and Sedition Act. Do you really think that would be considered constitutional today, or should?
The Congress was full of Founding Fathers, but they did not all agree with his policies on the 'Quasi-War.' Neither did his Secretary of State, Timothy Pickering, who helped frame the Constitution.
Yes, even the Founding Fathers were politicians.
Yes, they were politicians: the same ones who complained of the Quasi-war were the same ones who approved of the Barbary campaign!
So they were imperfect- you are avoiding the point- "If you think there is a better way to understand the Constitution than by taking the understanding the Founders had of it-" then cough it up.
Sorry to disturb you by implying that the Bill of Rights isn't something we should just dispose of because it's no longer convenient.
Well, don't worry your pretty little head about, just meditate on the image below, it has been specially selected by a team of government psychologists who want nothing more than to relax and comfort you:
Since there were around a hundred men who were involved in the Declaration of Independence and the Constitution, it's not so easy to decide what their understanding of the Constitution was. Again, should we consider the Alien and Sedition Act constitutional because some Founders supported it? Or unconstitutional because other Founders opposed it?
Most controversial, however, was the Sedition Act, devised to silence Republican criticism of the Federalists. Its broad proscription of spoken or written criticism of the government, the Congress, or the President virtually nullified the First Amendment freedoms of speech and the press. Prominent Jeffersonians, most of them journalists, such as John Daly Burk, James T. Callender, Thomas Cooper, William Duane (17601835), and Matthew Lyon were tried, and some were convicted, in sedition proceedings. The Alien and Sedition Acts provoked the Kentucky and Virginia Resolutions and did much to unify the Republican party and to foster Republican victory in the election of 1800. The Republican-controlled Congress repealed the Naturalization Act in 1802; the others were allowed to expire (18001801).
And your complaints about Washington and Jefferson's ( and their congresses') understanding of the Constitution are?
I don't have time to give you an analysis of Washington and Jefferson's constitutional understanding. For the purposes of this argument I am satisfied to show that the Founding Fathers were in disagreement about when wars should be declared.
Why don't we just have our government contact his embassy and inform them that our President has declared war on countries that harbor terrorists and that they need to hand over anyone else with seditious or revolutionary ideas they might be harboring or face the consequences?
I believe that they knew they were not at war.
Americans are asking, ``How will we fight and win this war?'' We will direct every resource at our command - every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence and every necessary weapon of war - to the destruction and to the defeat of the global terror network. Now this war will not be like the war against Iraq a decade ago, with a decisive liberation of territory and a swift conclusion. It will not look like the air war above Kosovo two years ago, where no ground troops were used and not a single American was lost in combat.
Speech By President George W. Bush on September 20, 2002
Then satisfy yourself, you certainly haven't yet.
And clear up your statement that Pickering "did not agree with his policies on the quasi war"- do you have some citation that he opposed on Constitutional grounds the conduct of it by Acts of congress?
A rejection of the understanding of the Constitution accepted and acted on by both Federalist and Republican, the first three administrations and their congresses, is- frankly- bizarre.
If they did not refer to their congressionally authorized use of our military to kill, take prisoner, and capture lands and goods as a war- it would have exactly what relavance to whatever your contention is?
Pickering apparently felt that the U.S should go to war with France, rather than just skirmish with them. To the best of my knowledge, it was not a constitutional issue, but a policy one. The point is that there was not unanimity among the early politicians on war matters..
A rejection of the understanding of the Constitution accepted and acted on by both Federalist and Republican, the first three administrations and their congresses, is- frankly- bizarre.
I am not arguing that the Congress did not explicitly or tacitly agree to non-declared military actions. I am arguing that a military action is a military action and not a war. If we want special war-time laws and regulations in place, there should be a declared war. Those special laws seem to be warranted; so is a declaration of war.
I have some friends in 10th Mountain who would enjoy having you tell them that they haven't been fighting anyone.
Ah, there we can agree.
The congressional authorization for the use of military force has sufficed so far- it certainly allows the detaining of military combatants.
A DOW could have negated the need for the Patriot Act ( if combined with a susension of Habeus Corpus)- but then the administration would have even more extraordinary powers than we are worried about now. My view is much like I suspect Pickering's was- a DOW (a general war) gives the president more leeway to conduct a successful campaign.
Questioning the wisdom ( not the Constitutinality) of conducting limited- or declared for that matter general- war is always a commendable act of course.
BTW: the ruling in this case, which I linked to above, is very informative and is impressive whatever one's view.
If you think you can write a better constitution than they did go over to DU and be a hero!
Hatred of our Founders and the Constitution they bequethed us often looks like ignorance (some people never heard of the Indian wars, the Quasi-war, or the Barbary pirates) but a contemptuous unconcern with the Founders- like your posts evince- eventually shows through.
But you don't care- you're not "irrational" LOL!
Though, frankly, it seems to be that you don't approve of the Founders putting the War Power in the congress to give to the president- which they have done.
What suspension of our right to due process are you claiming has happened?
Please- be specific.
Rumsfeld January 27, 2002 : "There is a definition of what a lawful combatant is and there are four or five criteria that people look to historically. There's precedent to this, and there is a reasonable understanding of what an unlawful combatant is.
The characteristics of the individuals that have been captured is that they are unlawful combatants, not lawful combatants. That is why they are characterized as detainees and not prisoners of war. The al Qaeda are so obviously a part of a terrorist network as opposed to being part of an army -- they didn't go around with uniforms with their weapons in public display, with insignia and behave in a manner that an army behaves in; they went around like terrorists, and that's a very different thing. "
Here's a Founder, Patrick Henry, on the appropriate treatment of unlawful combatants:
"Those who declare war against the human race may be struck out of existence as soon as they are apprehended. He was not executed according to those beautiful legal ceremonies which are pointed out by the laws in criminal cases. The enormity of his crimes did not entitle him to it.
I am truly a friend to legal forms and methods; but, sir, the occasion warranted the measure.
A pirate, an outlaw, or a common enemy to all mankind, may be put to death at any time. It is justified by the laws of nature and nations. "
Our Founders were no fools.
I say he took a dump on his right's and his citizenship.
Tough luck missah tally-ban.
You got that right. These people that keep protecting my rights are going to get me killed one of these days.
The chief conclusion of the ruling seems to be that the judiciary traditionally defers to the Executive and Legislature on military matters. Thus the judge sidesteps the issue of whether the actions are in fact constitutional.
I think it is an appropriate ruling, but it leaves the legality of government actions the unsettled.
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