Skip to comments.Reagan-appointed judge has words for Ashcroft
Posted on 07/15/2002 8:25:01 AM PDT by count me in
If he can spare a few hours from announcing new restrictions on civil liberties, Attorney General John Ashcroft might stop by to hear one of Ronald Reagan's best judicial appointees.
Ashcroft doesn't do much listening, but U.S. District Judge John Coughenour, in his annual address to Western Washington University's Munro Teachers Seminar, might have set him straight on a fundamental truth that has escaped our nation's chief law enforcement officer.
"The Constitution of the United States says what it means and means what it says" is a basic mantra to Coughenour, the chief federal judge for Western Washington.
Coughenour has had occasion to repeat those words, not only at Western but when FBI chief Robert Mueller suggested to him in a conversation that security has supplanted civil liberties concerns in post-9/11 America.
Protestations of a liberal judge?
Jack Coughenour is one of Republican former Sen. Slade Gorton's closest friends. He was Reagan's first nominee to the federal bench in these parts. His screener at the Justice Department was Ted Olson, who is now U.S. solicitor general.
He is, as well, renowned as a no-nonsense courtroom disciplinarian.
Woe be unto any attorney who arrives late in Coughenour's courtroom. Or any male barrister who does not don a coat and tie, even for the briefest status conference. Or who dares plunk a briefcase on top of the judge's desk.
But it's not hard to see how President Bush's we-are-at-war policies could alarm a stickler for procedure and believer in the rule of law. Or one who concurs, as the late Texas Rep. Barbara Jordan put it, "The Constitution is absolute."
Overriding constitutional guarantees, and daring federal courts to do anything about it, is Bush's battle strategy.
In particular, Coughenour cites the case of Jose Padilla, the one-time Chicago street criminal arrested entering the United States in May and alleged to be in the initial stages of what Ashcroft called a plot to set off "dirty" radioactive bombs.
Padilla has not been charged with a crime. He is being held as an "enemy combatant." Ashcroft claims the government can keep people sitting indefinitely in military brigs, without charge and no access to counsel.
"Mr. Padilla is an American citizen," Coughenour said. "He is before a military tribunal. This is unprecedented."
In 1942, the FBI apprehended German saboteurs landed by submarine on Long Island with the assignment of disrupting American war industries. One turned out to be an American patriot, who turned in his cohorts. The German saboteurs were eventually executed.
They were enemy combatants in every sense of the word. They had a specific mission. Seven were German citizens. The U.S. Congress had officially declared war on the Third Reich.
Does prosecution of this war on terror require running roughshod over our Founders' rules of civil society? Does it make sense to do so?
Judiciously, Coughenour raised these questions Friday before the Munro Seminar (which was taped by TVW and will be broadcast statewide).
In 21 years on the bench, the judge said, what he's come to appreciate most about the American government is the First Amendment -- guaranteeing freedom of speech and assembly -- as well as the right of a defendant to face a jury of his or her peers.
"The commitment to a jury trial -- the idea of putting ordinary citizens between the accused and their government -- is a rather extraordinary thing: It is not universal," Coughenour said.
"What it means is: The government cannot send someone to jail unless 12 ordinary people say, 'The government got it right.'"
Under Bush's rules of detention, the government doesn't have to get it right. Or disclose its evidence. Or even charge someone with a crime.
With Ashcroft questioning the patriotism of anyone who questions him, the administration appears to be getting its way.
Friday, a 4th U.S. Circuit Court of Appeals panel reversed a district court judge's ruling that the "Sec- ond American Taliban," a young man born in Louisiana to Saudi parents, had a right to an attorney.
The appellate judges did stop short of approving the Justice Department's sweeping claim that the president has an absolute right to decide who is an unlawful combatant, and that the courts should butt out. They sent the case back to district court for consideration.
The 4th Circuit panel noted, however, that the Supreme Court has shown great deference to the federal government in deciding matters of national security.
Egregious, needless violations of individual rights have stemmed from that premise. Just remember those 1942 pictures of Japanese Americans on the dock at Bainbridge Island, their internment in remote camps upheld by the Supremes.
The basics of American democracy -- the right to trial, the right to counsel, the rule of law -- need defenders these days.
A man put on the bench by Republicans, Coughenour wonders when Congress' loyal opposition will find a voice.
"In my view, the Democratic Party has a responsibility to speak up on these issues," he said. "It isn't happening. Why aren't they speaking out? I don't understand it."
Not words of a liberal.
Coughenour: "Padilla... is before a military tribunal"
No he isn't.
Mr. Padilla is a foreign agent of influence. Mr. Padilla is a threat to national security. Mr. Padilla foreswore his "rights" as soon as he decided that a leader of a radical form of Islam located in another country was his man.
I have no sympathy, none whatsoever. This ain't a carjacking, you judicial idiot.
Who? There is nobody by that name. There are some Islamic names that I've heard that are attached to a terrorist who lived in Florida, but this Padilla person ceased to exist some time ago.
Unfortunately, it's now very clear that we do not have a robust, engaged democracy. Our politics have become stagnant and listless, as both parties are now hellbent on giving more power to the federal government, rather than existing to keep the feds in continual check.
Fact of the matter is, we've now had two presidential administrations back-to-back that don't give a flying rat's butt about the Constitution, and very few people of our elected officials really mind that it's happening. The judge is right: the Constitution means what it says, to hell with "expert" interpretation.
You know, I'm going to do a search on this judge. Reagan-appointed or not, I suspect that his affinity for the Democratic party is not newly-minted.
If "[t]he Constitution of the United States says what it means and means what it says", then why is it under constant assault by judicial activists?
Why is the Second Amendment treated differently than the First?
How is it that the "law" has seen fit to allow a mother to kill her unborn child for any reason, just cause she "chooses" to? What about the rights of the child? The law sees fit that the unborn child has a claim that can be made against the father? But, the unborn child doesn't have a right to live? If the constitutions has granted that a mother has a right to choice, doesn't the father too?
Where is this judge and his retort when it comes to these issues?
If the Constitution says what it means and means what it says, why aren't you out fighting the liberals who are actively (EVERY FRIGGIN' DAY) seeking the destruction of it? You know, if you are going to critcize the AG, why not criticize some other cupable people...Clinton, Dasshole, Gephardt, and the other socialist who have enabled our enemies to attack us? Just think, Mr. Wizard, if these A-HOLES would have done their job, instead of lined their pockets, we probably wouldn't be having this discussion!
However it's more likely that he gave a speech defending the role of the Judiciary in times of crisis and the author picked out a very few excerpts that he could twist to make the judge sound that way.
The big clue, to me, is the paucity of actual quotes.
Here's a Real Audio of the speech, I couldn't find a transcript: HERE
Bravo Judge Coughenour. If any of you think that Judge Coughenour is a liberal then you don't understand what a Conservative is. The point the Judge is making with regards to the Democrats is valid. The Republicans are not going to voice objection. Even the most strident Republican Attorneys are having a problem defending this policy of detention without due process. But very few are focused on the Constitutional implications. That alone should alarm everyone. Again this is easily solved. Allow the Military to try both Foreigners and Americans with regards to these cases.
In fact, the only "conservative" case I can find is where he ruled TCI cablevision can censor things that are placed on its cable system.
Here's a great quote: Coughenour was appointed to the federal bench by conservative president Ronald Reagan in 1981. But he hold's some decidedly liberal views for an American judge. He's perturbed by "the insanity of our gun laws." He is an admirer of Canada's rehabilitative justice system.
Fact is, any fair judge is likely to come out on the left side of an issue once in a while and based on cursory reading, I'd agree with 1-4. But this guy is a 100% liberal who has some problems with his own conscience, IMHO.
The date of the article: July 18, 2001
Not according to your posts, oh dissenting one.
The ACLU is a liberal organization, at the very least by virtue of the cases that they choose, regardless of the high-mindedness of their mission statement. Other than getting Klan march permits, very little of the ACLU's work does not aid and abet liberal causes.
The liberal desire to reinterpret the Constitution to give the Judicial Branch the power to try combatants- like all liberal schemes to write new rights into it (for our own good of of course)- disgusts me.
If you don't like what the Founders did you should try to amend the Constitution.
And you can pass that on to your ACLU buddies.
Please take you index finger and point it at this reply I am posting. Notice there are three fingers pointing back at yourself?
BTW, have you ever been a Federal judge?
The point is that Judge Coughenour rulings are based on a solid foundation of law and the case as presented. Nothing you presented shows me where Judge Coughenour has ruled based on a liberal political point of view. Besides what is the problem with a Judge with a conscience? Its refreshing at least.
You should take your own advice:
Article III Section. 3.
"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted (CONVICTED, AS IN TRIAL) of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court" (COURT, AS IN THE PLACE TRIALS ARE HELD).
"The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted."
The Constitution is crystal clear in these matters. Americans who levy war against their own country are considered treasonous, by definition. Americans accused of treason are constitutionally guaranteed a trial.
Really? In every single case? How remarkable. Does the "solid foundation of law" include sending "a clear message". And what about the extra-judicial quotes attributed to him? Do they bear any weight?
Perhaps conscience doesn't convey I was expressing. How about "guilty conscience"?
Nope. Too smart. Law degree is a step waaaaaaaay down.
No wonder this case bothers you- you have it confused with some other case- one that probably doesn't exist in this universe.
What due process do you think Padilla has been denied? Please tell me!
I remind you: His habeas corpus petition is before a court right now.
Honestly, if someone would state a specific complaint about the Constitutionality of the handling of this case, I'd be very interested.
Last time I looked, unprecedented meant "never happened before".
Perhaps Judge Coughenour should read a little history. In 1942, a U.S. military tribunal tried eight Nazi saboteurs. Two of them were U.S. citizens. One of the two citizens was executed on the day after the verdict was read. The second received a prison sentence.
Um, no. I think he is being held indefinitely without being charged or having a trial. That's the source of the controversy concerning this case, remember? Please try to keep up.
No wonder this case bothers you
Yah, when the Constitution is brazenly and openly violated it bothers me. Imagine that.
I hope you've got plenty of time.
Yes, morally and ethically. What lawyers really learn in school, is how to 'legally' plunder the system.
Wow, you learned something already! I'm impressed.
So your new claim is that the Constitution should be changed to give the Judicial Branch exactly what new power so they can do more than hold a habeas corpus hearing for an accused citizen combatant?
You answered your own question."I remind you: His habeas corpus petition is before a court right now." If there was no violation of the Constitution and the Sixth Amendment there would be no standing for a writ of Habaes Corpus in this case. You cannot detain a US Citizen arrested on US Soil for an indefinite period without charged and without representation because you fell like it or label someone something. This is the basic foundation of our Constitution and Bill of Rights. Now what is the problem you are having with this?
No takers- no one ever wants to admit they're advocating new powers for the Judiciary.
I don't mind those who are wrining their hands over this conflict between the laws of war and the Constitution- that's a good thing to do, we should all be very concerned.
But I turn to the Founders for guidance in how to handle it and those who ignore the balancing of powers and rights the Founders attained in the Constitution are foolish IMHO.
Congressional authorization for the president's use of military force and Habeas Corpus to object to it's use against citizens- that's a commendable process that is being followed.
No. My claim is that Mr. Padilla is accused of levying war against our country. And the Constitution explicitly defines this behavior as the crime of Treason. Furthermore, the Constitution guarantees those accused of Treason a trial, during which no fewer than two witnesses must testify in order to gain a conviction.
That is what the Constitution says, in very plain words that even the most obtuse individual can understand. I advocate no changes to the Constitution, rather I would prefer that our government adhere to its crystal clear mandates in this case.
This really isn't all that difficult to understand.
It is???? Where? Please show me this? If your referring to EX PARTE QUIRIN, 317 U.S. 1 (1942). you are absolutely wrong.
You wacky right-wingnut, you. Gratuitous ad hominem and ungermane swipes at Scalia are right out of the VRWC handbook, aren't they?
The ACLU took those cases, too.
Man, is this the civil-rights-movement tactic of referring to decades-old actions to ameliorate current sins? And talk about your non-sequitors!
But what's interesting is that the first 6 items I found were the first 6 distinct items I found on a Google search. I didn't look past the fifth page. I didn't pick and choose. I expected to see some very boring, pedestrian and non-political decisions. Silly me.
Exactly so mrsmith.
Some of my best friends are lawyers. No, really. Not criminal defense attorneys, of course . . .
But I should have added at least half a
If there was no claim of a violatin of the Constitution and the Sixth Amendment there would be no standing for a writ of Habaes Corpus in this case.
He has the right to claim that he should not be held as a combatant. The court has the power to decide the worth of that claim.
If the military does not convince the judge that he is lawfully considered a combatant the judge will order that he be released; if they do he may be held until the Congressional authority is rescinded.
That is not only the proper Constitutional way to handle this- it is a dam* impressively fair one.
Show you what- specifically. Your question is, to me, ambiguous.
And thanks for being specific in your earlier question!
I'll try to be too.
Imagine that. Perhaps we should entrust national security to attorneys??
Show me where Congress or the President has charged the US Military with trying Americans arrested on US Soil as either Lawful or Unlawful belligerents?