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."
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?
What? If the claim did not have merit there would be no standing.
My point stands- he is getting his H_C rights. Didn't you claim he wasn't? Forgive me if I misunderstood- that certainly seemed to be your point.
If we are finished with that, as a JAG vet, you could tell every one here what Constitutional rights an unlawful combatant has.
That's going to be a matter of interest very soon.
Not what I was thinking. I had left off "former". As well as "icer".
Whether the claim has merit is what is to be determined by the court.
That is what our right to Habeas Corpus secures us- a petition. It does not give every claim merit.
I'm so glad you've learned that Padilla has exercised his Privilege of the Writ of Habeas Corpus, as guaranteed him by the Constitution, to petition a court for his release
So you no longer claim that he has been denied it?
Or, as a ACLU devotee, does the fact that you know he has exercised his habeas corpus right not matter to your complaint that he has been denied it?
So who should do it, the Catholic heirarchy?