Earth to Second Circuit

The Wall Street Journal ^ | January 1, 2004 | BRADFORD A. BERENSON

[neverdem]

"How can the President of the United States detain a U.S. citizen on American soil and hold him without charge and without a lawyer, perhaps for years?" This is the question that apparently boggled the judicial mind in the Second Circuit's recent decision directing that Jose Padilla be turned loose by the U.S. military or surrendered to civilian prosecutors in the criminal justice system. Given the near certainty of further review by the full Second Circuit or the Supreme Court, the question remains important.

[neverdem]

Happy New Year!!!

[taxcontrol]

I disagree with the starting assumption that this person must be tried by the Military. This person is a criminal and should be charge, tried and punished as such. I also feel that treason charges would be appropriate.

I'm in agreement with the Second on this on. Far better to try him as a criminal and still protect the Constitutional rights of the other 300 million or so citizens of the US than to empower the Government with a new procedure to circumvent the rights and protects of our judicial system.

[pabianice]

Liberals don't care about threats to other people. Liberals care about threats only when personally threatened.

[vto]

Mr. Berenson, a Washington lawyer, was associate White House counsel to President Bush.


I think that's called a paid mouthpiece?

[spoonfork2000]

The only people who have anything to worry about from this are terrorists. Anyone who thinks that the Military should not try terrorists is just a Liberal windback.

Now is not the time for idealism, now is the time for action.

[John Beresford Tipton]

"Mr. Berenson, a Washington lawyer, was associate White House counsel to President Bush.
I think that's called a paid mouthpiece?"

Sure is, and this guy acts as though he never read the opinion. He trys to make it into a battle between the President and the judiciary, whereas anyone who has read the opinion realizes it is between the Congress and the President.

Briefly, in the early 1970's Congress was concerned with the President's having thrown Japanese Americans into camps during WWII, and passed the Non Detention Act which said the president could not use the military to detain US citizens except in very limited situations.

The 2nd Circuit looked at the petitioner's situation, and found the petitioner was not covered. Therefore Congress had forbidden the President to use the Military to detain him.

So if anyone thinks Congress made a mistake in the Non Detention Act, he can write to his congresscritters.

Funny that this mouthpiece never explained the opinion. An oversight I'm sure.

[flashbunny]

Hey - we can trust the government. I'm sure president hillary would never abuse this new power to declare a us citizen an enemy combatant and hold them without trial and without access to a lawyer.

Just be careful you don't have a "clandestine publication" like shotgun news in your posession...you too could be a terrorist in hillary's america...

[John Beresford Tipton]

"Just be careful you don't have a "clandestine publication" like shotgun news in your posession.."

But, I am using a cover of Shotgun News to wrap around my Almanac!!

[flashbunny]

That's okay during the bush administration - for now. Just be sure when hillary takes power, you cover up your shotgun news with the almanac cover. Or a copy of 'jihad weekly', whichever hillary likes better that day.

[elbucko]

I disagree with the starting assumption that this person must be tried by the Military. This person is a criminal and should be charge, tried and punished as such. I also feel that treason charges would be appropriate.

I split the concept. First, try him for treason. If found guilty, strip him of US citizenship and hand him over to the military as an enemy combatant. This should cover the BOR's requirement of due process.

[inquest]

A person making war on the U.S. who seeks to slaughter thousands of our citizens in the streets of our cities must face our military, not our judges.

Sounds like what the author's describing is treason. Under the Constitution, treason, like other crimes, is to be punished by a court.

[Congressman Billybob]

Wars are not fought by lawyers and judges, wearing robes and armed with gavels. The case referred to, but not named in this article, is In Re Quirin. In that, the Supreme Court unanimously (8-0) upheld the military tribunal for eight German saboteurs, who entered the US from submarines, with plans and equipment to bomb US facilities.

One of those eight defendants was named Haupt, born in Chicago, trained for his "mission" in Berlin. The facts that he was a US citizen, captured in the US, were irrelevant to the outcome. All eight were found guilty. Six were executed.

THAT is the proper way to conduct a war involving saboteurs or terrorists. Your idea of turning such people over to the civilian courts is nonsense, both legally and militarily.

Congressman Billybob

Click here to stick a thumb in the eye of CFR, "Hugh & Series, Critical & Pulled by JimRob."

[Congressman Billybob]

Since the Supreme Court said, unanimously, that someone in Padilla's position could be tried by a military tribunal and executed as the maximum sentence, it is the 2-1 majority of the Circuit panel that is misreading the law. Not the author of this article.

John / Billybob

[Congressman Billybob]

No, no, no. Treason is a civil crime that is deliberately defined very narrowly in the Constitution. The Padilla case has nothing to do with treason, for the exact same reason that former Vice President Aaron Burr was acquitted of treason for failure of the proof to match the constitutional requirements.

Other than for debating purposes, it would be wise for most FReepers to forget the word "treason." There are sound reasons why there are very few such trials.

John / Billybob

[John Beresford Tipton]

I am aware of In Re Quirin.

It looks to me as though the Second Circuit chose wanted to avoid the Constitutional question re power of commander in chief vs. Congress.

Instead they went to a strictly statutory interpretation route, deciding that whatever the state of the law was in Quirin's day it was changed in the early 1970's by the Non Detainder Act. I think they felt that if Congress wanted the petitioner to be held by the military, Congress would change the law, and it would not make much difference because the petitioner sure was going to be around for a while (though in civilian custody).

[inquest]

Treason means making war against the U.S., does it not? That's exactly what Padilla's accused of doing. If that forms the legal basis for turning him over to a military tribunal, why does it not form the legal basis for a treason conviction?

[John Beresford Tipton]

Because the founding fathers were aware of how easy for the party in power to accuse the opposition of "Treason" they made it particularly difficult to prove, defining it in the Constitution. So if you have to charge a defendant you do not charge with the damn near impossible to prove if the easier to prove is available.

[inquest]

But in order to legally justify sending someone to a military tribunal, it seems you'd have to establish the same thing you'd need to establish in order to convict someone of treason. Right?

[Mark]

This person is a criminal and should be charge, tried and punished as such. I also feel that treason charges would be appropriate.

Informants from other countries who refused to testify in a criminal court in our country would cause the case to collapse- a not guilty verdict, and no criminal charges for this crime could ever be brought against him.

[John Beresford Tipton]

"But in order to legally justify sending someone to a military tribunal, it seems you'd have to establish the same thing you'd need to establish in order to convict someone of treason. Right?"

Well, the Second Circuit said that post 1970's the Executive couldn't send a citizen to a military tribunal (except for some non applicable circumstances) regardless of what they charged him with.