Gitmo (Stick) [Archive] - Professional Soldiers ®

brewmonkey

12-29-2004, 23:06

Ok, it has been a while.

Gitmo

1. Does the US Consitution apply to non-US citizens? Should it?

I do not think it applies to non citizens, nor do I think it should unless they have been granted some form of Visa other then a visit (Work/School) or unless they have been granted a green card. It should not apply to people who are within the confines of our borders (no matter how they got here) who have no desire to be constructive members of our society.

2. Should the Geneva Convention apply to detainees at Gitmo? And by principle of precedence to all others?

It should apply only to those who fit the criteria as set forth by the convention, including those of any nations military. There are 4 criteria that must be met in order to be afforded POW status as opposed to unlawful combatants according to the convention and they are,

"(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war."

It is obvious that many of those being held do not meet the criteria. So no, the convention should not be applied to all detainees and we should make every effort when we capture personnel to document as best as possible if they are in contravention of the articles.

Affording many the rights of one? Not at all. You are either a POW because you played by the rules (as stupid as that might sound) or you are an unlawful combatant IMHO.

3. Does releasing the detainees imply they were innocent and the USG made mistakes?

Not in the least. Many people are set free from the prison system guilty as hell because we could not make a case due to lack of concrete evidence (although I m sure circumstantial cases have been made successfully). It also does not mean we made any mistakes by detaining them. They were captured because they were caught red handed, dimed out by their buddies or we had enough suspicions to detain them while deciding what to do next. Guilt by association is a bitch.

4. Should they be tried?

Yes, they should indeed face trial. IF we have the evidence to do so then we owe it to the people of this country and every other country that has suffered at the hands of these people.

5. If so, how?

If the detainee is IAW the convention then obviously that is the way. For the rest we apply US law and try them by a military court, even Article 85 of the convention allows for detainees to be tried under the host nations laws for crimes occurring prior to capture.

6. If not, what should be done?

We send them to France?

Max Power

12-30-2004, 00:35

Ok, it has been a while.

Gitmo

1. Does the US Consitution apply to non-US citizens? Should it?

No, we've made ample legal means for people to be covered by our Constitution, if they choose not to abide by those means, then it doesn't apply. That applies to illegal immigrants as well. For someone that believes everything this country stands for is wrong (therefore thinking the Constitution is wrong/evil) then definitely HELL no. That applies especially well in this case, hell, it applies to a lot of countries and organizations as well.

2. Should the Geneva Convention apply to detainees at Gitmo? And by principle of precedence to all others?

As was pointed out, they are violating the rules of the Conventions by taking action as they are. Therefore, the guidance that applies to treatment of POWs does not apply, as they are not POWs. They are illegal combatants and should be prosecuted fully for that as well as any laws they have broken while taking whatever actions they have. I could see ALL of them easily being charged with attempted murder, murder (in some cases), various forms of conspiracies, etc.

3. Does releasing the detainees imply they were innocent and the USG made mistakes?

Not necessarily. But I don't think we should release them either. If we decide they are of no use to us, transfer them to another country that might want to deal with them and coincidentally has less strict laws regard interrogations.

4. Should they be tried?

Yes, in public if they can. If there are OPSEC/PERSEC reasons not to, give them a closed doors military tribunal, let people know they were found guilty of whatever charges, then lock them away again.

5. If so, how?

See above. Public if the detaining unit feels they should, and any other units involved in the detention feel they should. It should be up to the commanders of those units involved in the detention to determine whether a public trial is appropriate based on the security issues involved, or if they should be tried behind closed doors and have all of the legal proceedings classified.

6. If not, what should be done?

Again, see above.

NousDefionsDoc

12-30-2004, 09:54

When the Team Sergeant's away, the mice will play? LMAO!

I am interested in the counselors' opinions on the application of the US Constitution to non-citizens specifically and the topic generally.

NousDefionsDoc

12-30-2004, 09:55

but the fact that they are on a US Military Base can make things more complicated. Were they still in A-Stan, a lot of the rules that apply now would not apply anymore.

How is a US base in 'Stan or Iraq any different than a US base in Cuba? I'm not a lawyer, but I would think control of the base would be the issue?

NousDefionsDoc

12-30-2004, 11:02

Does releasing the detainees imply they were innocent and the USG made mistakes? Why should we release them?

Some of them already have been released

Ambush Master

12-30-2004, 11:40

Some of them already have been released
And either re-captured or killed since they returned!!

NousDefionsDoc

12-30-2004, 11:41

Terror Suspects Appear Before Cuba Panel

Thu Dec 30,12:36 AM ET

By ALEXANDRA OLSON, Associated Press Writer

SAN JUAN, Puerto Rico - Two suspected members of the al-Qaida terrorist network and an alleged Taliban official appeared Wednesday before U.S. military review tribunals in Guantanamo Bay, Cuba.

A 29-year-old prisoner appeared who was accused of leading some Taliban soldiers in northern Afghanistan in 2001, said Capt. Beci Brenton, a Pentagon spokeswoman.

The tribunals also heard from a 27-year-old prisoner who was identified as an al-Qaida member by a guard in the terrorist network, Brenton said. The detainee allegedly altered his passport to eliminate evidence of travel to Afghanistan and Pakistan.

The third prisoner to come before the panel Wednesday was also accused of belonging to al-Qaida, Brenton said. He also allegedly altered his passport, in this case after being barred from boarding a plane from Afghanistan to Pakistan.

No names were released and it was unclear what they said at the hearings. The Associated Press filed a Freedom of Information Act request more than a month ago to obtain transcripts of testimonies. The government has still not released any of the transcripts.

The cases were heard a day after the former president of Afghanistan's state-run airline made an appearance.

Brenton said the 32-year-old man headed Ariana Airlines while it was under the control of the ousted Taliban regime. The detainee was arrested in January 2003 in Afghanistan.

Brenton said the Taliban used the airline to transport military forces between the Afghan capital, Kabul, and southern Kandahar province. Much of Ariana's fleet was destroyed during the U.S.-led bombing campaign in 2001.

The Combatant Status Review Tribunals are meant to determine whether the approximately 550 prisoners at the U.S. naval base are correctly held as "enemy combatants" or should be freed.

The tribunals have considered at least 527 cases so far. They have ordered two prisoners released and another 226 to remain in custody. All the detainees are accused of links to al-Qaida or the Taliban. Many have been held for nearly three years without formal charges.

NousDefionsDoc

12-30-2004, 11:45

Released Detainees Rejoining The Fight

By John Mintz
Washington Post Staff Writer
Friday, October 22, 2004; Page A01

At least 10 detainees released from the Guantanamo Bay prison after U.S. officials concluded they posed little threat have been recaptured or killed fighting U.S. or coalition forces in Pakistan and Afghanistan, according to Pentagon officials.

One of the repatriated prisoners is still at large after taking leadership of a militant faction in Pakistan and aligning himself with al Qaeda, Pakistani officials said. In telephone calls to Pakistani reporters, he has bragged that he tricked his U.S. interrogators into believing he was someone else.

Abdullah Mehsud told reporters he fooled authorities at Guantanamo Bay for two years before his release.

Another returned captive is an Afghan teenager who had spent two years at a special compound for young detainees at the military prison in Cuba, where he learned English, played sports and watched videos, informed sources said. U.S. officials believed they had persuaded him to abandon his life with the Taliban, but recently the young man, now 18, was recaptured with other Taliban fighters near Kandahar, Afghanistan, according to the sources, who asked for anonymity because they were discussing sensitive military information.

The cases demonstrate the difficulty Washington faces in deciding when alleged al Qaeda and Taliban detainees should be freed, amid pressure from foreign governments and human rights groups that have denounced U.S. officials for detaining the Guantanamo Bay captives for years without due-process rights, military officials said.

"Reports that former detainees have rejoined al Qaeda and the Taliban are evidence that these individuals are fanatical and particularly deceptive," said a Pentagon spokesman, Navy Lt. Cmdr. Flex Plexico. "From the beginning, we have recognized that there are inherent risks in determining when an individual detainee no longer had to be held at Guantanamo Bay."

The latest case emerged two weeks ago when two Chinese engineers working on a dam project in Pakistan's lawless Waziristan region were kidnapped. The commander of a tribal militant group, Abdullah Mehsud, 29, told reporters by satellite phone that his followers were responsible for the abductions.

Mehsud said he spent two years at Guantanamo Bay after being captured in 2002 in Afghanistan fighting alongside the Taliban. At the time he was carrying a false Afghan identity card, and while in custody he maintained the fiction that he was an innocent Afghan tribesman, he said. U.S. officials never realized he was a Pakistani with deep ties to militants in both countries, he added.

"I managed to keep my Pakistani identity hidden all these years," he told Gulf News in a recent interview. Since his return to Pakistan in March, Pakistani newspapers have written lengthy accounts of Mehsud's hair and looks, and the powerful appeal to militants of his fiery denunciations of the United States. "We would fight America and its allies," he said in one interview, "until the very end."

Last week Pakistani commandos freed one of the abducted Chinese engineers in a raid on a mud-walled compound in which five militants and the other hostage were killed.

The 10 or more returning militants are but a fraction of the 202 Guantanamo Bay detainees who have been returned to their homelands. Of that group, 146 were freed outright, and 56 were transferred to the custody of their home governments. Many of those men have since been freed.

Mark Jacobson, a former special assistant for detainee policy in the Defense Department who now teaches at Ohio State University, estimated that as many as 25 former detainees have taken up arms again. "You can't trust them when they say they're not terrorists," he said.

A U.S. defense official who helps oversee the prisoners added: "We could have said we'll accept no risks and refused to release anyone. But we've regarded that option as not humane, and not practical, and one that makes the U.S. government appear unreasonable."

Another former Guantanamo Bay prisoner was killed in southern Afghanistan last month after a shootout with Afghan forces. Maulvi Ghafar was a senior Taliban commander when he was captured in late 2001. No information has emerged about what he told interrogators in Guantanamo Bay, but in several cases U.S. officials have released detainees they knew to have served with the Taliban if they swore off violence in written agreements.

Returned to Afghanistan in February, Ghafar resumed his post as a top Taliban commander, and his forces ambushed and killed a U.N. engineer and three Afghan soldiers, Afghan officials said, according to news accounts.

A third released Taliban commander died in an ambush this summer. Mullah Shahzada, who apparently convinced U.S. officials that he had sworn off violence, rejoined the Taliban as soon as he was freed in mid-2003, sources with knowledge of his situation said.

The Afghan teenager who was recaptured recently had been kidnapped and possibly abused by the Taliban before he was apprehended the first time in 2001. After almost three years living with other young detainees in a seaside house at Guantanamo Bay, he was returned in January of this year to his country, where he was to be monitored by Afghan officials and private contractors. But the program failed and he fell back in with the Taliban, one source said.

"Someone dropped the ball in Afghanistan," the source said.

One former detainee who has not yet been able to take up arms is Slimane Hadj Abderrahmane, a Dane who also signed a promise to renounce violence. But in recent months he has told Danish media that he considers the written oath "toilet paper," stated his plans to join the war in Chechnya and said Denmark's prime minister is a valid target for terrorists.

Human rights activists said the cases of unrepentant militants do not undercut their assertions that the United States is violating the rights of Guantanamo Bay inmates.

"This doesn't alter the injustice, or support the administration's argument that setting aside their rights is justified," said Alistair Hodgett, a spokesman for Amnesty International.

Roguish Lawyer

12-30-2004, 12:15

I am interested in the counselors' opinions on the application of the US Constitution to non-citizens specifically and the topic generally.

This is a deep topic and I have a busy day or two ahead of me, so give me some time. I do believe we've discussed this before, though.

NousDefionsDoc

12-30-2004, 12:18

Human rights activists said the cases of unrepentant militants do not undercut their assertions that the United States is violating the rights of Guantanamo Bay inmates.

"This doesn't alter the injustice, or support the administration's argument that setting aside their rights is justified," said Alistair Hodgett, a spokesman for Amnesty International.

I thought this was an interesting lack of common sense.

NousDefionsDoc

12-31-2004, 11:00

I think the USG needs to define this. It is not going to go away.

Roguish Lawyer

12-31-2004, 11:57

Remember, the Constitution is not just a list of rights. To the contrary, it is a list of limited powers to which a list of rights was appended.

We have a law student on the board who has committed to help us here.

NousDefionsDoc

12-31-2004, 12:01

Bravo1-3

12-31-2004, 12:49

Not a Law Student yet, but I'll be learning to apply my new Wests-Fu on this, the SEAL case, and the Musawi issue as time permits.

Roguish Lawyer

12-31-2004, 13:15

Not a Law Student yet

:confused: :munchin

ghuinness

12-31-2004, 16:41

Ok, it has been a while.

Gitmo

1. Does the US Consitution apply to non-US citizens? Should it?

2. Should the Geneva Convention apply to detainees at Gitmo? And by principle of precedence to all others?

I have read the posts thus far and I am confused by some of the responses. When I studied the Constitution for Citizenship I understood the following:

Does the US Consitution apply to non-US citizens? YES
Should it? YES

The Constitution and the Bill of Rights apply to all residents (legal and illegal) within the USA. There are certain rights that apply to Citizens only (vote) but the Constitution is applicable to all. The Gitmo detainees are on US soil so the US Constitution applies to them.

Geneva Convention: No. Gitmo detainees are not POW's.

my .02

NousDefionsDoc

12-31-2004, 16:54

FBI reports Guantanamo 'abuse'
Alleged incidents include physical abuse, 'intense isolation'

Wednesday, December 8, 2004 Posted: 4:52 AM EST (0952 GMT)

WASHINGTON (CNN) -- A memo from a senior FBI counterterrorism official has outlined three alleged cases of abuse in 2002 that FBI agents had become aware of while serving at the Guantanamo Bay Naval Base prison.

The complaints included allegations of a female interrogator grabbing a detainee's genitals and bending back his thumbs and a prisoner being gagged with duct tape.

Another complaint talked of a dog being used to intimidate a prisoner and jailers subjecting the same prisoner to what the FBI official called "intense isolation" in a "cell that was always flooded with light."

The memo was written in July 2004 by Deputy Assistant Director for Counterterrorism Thomas Harrington, and was directed to Maj. Gen. Donald Ryder of the Army's Criminal Investigation Command.

In the first incident outlined by Harrington, an FBI agent was present in an observation room while an interrogation of a detainee was under way. A "Sgt. Lacey" (the memo says her first name is unknown) entered the room and ordered a Marine to duct tape a curtain over the observation window, thereby blocking the view of the interrogation.

On a monitor showing the view of a surveillance camera, the FBI agent saw the sergeant "apparently whispering in the detainee's ear, and caressing and applying lotion to his arms.... On more than one occasion the detainee appeared to be grimacing in pain, and Sgt. Lacey's hands appeared to be making some contact with the detainee," the memo states.

Later it says the Marine who had been in the room came out, and the FBI agent asked what had happened.

"The Marine said Sgt. Lacey had grabbed the detainee's thumbs and bent them backwards and indicated that she also grabbed his genitals. The Marine also implied that her treatment of that detainee was less harsh than her treatment of others by indicating that he had seen her treatment of other detainees result in detainees curling into a fetal position on the floor and crying in pain," the memo states.

The memo included another incident from October 2002 that involved a detainee being "gagged with duct tape that covered much of his head," according to an FBI agent's account. A contractor observing the detainee's interrogation told the FBI agent the detainee "had been chanting the Koran and would not stop."

The final case involves FBI agents allegedly observing a dog being used in an "aggressive manner to intimidate a detainee," who was subject to what the FBI official called "intense isolation" in a "cell that was always flooded with light."

The FBI memo says at least the two first incidents were known to some Pentagon officials as far back as January 2003, when a U.S. Air Force captain referenced them in a timeline concerning the reported use of interrogation techniques.

Interestingly, the memo discusses a debate between FBI and Defense Department officials regarding the treatment of detainees.

The author, Harrington, said he wrote the July 2004 document because he said he had no record that the FBI's "specific concerns regarding these three incidents were communicated to DOD for appropriate action."

An FBI official confirmed the memo was authentic but refused any further comment.
Imprisoned

Many detainees at Guantanamo have been held without charge and without access to attorneys since the camp opened in January 2002. The United States has imprisoned about 550 men accused of links to Afghanistan's ousted Taliban regime or al Qaeda. Four have been charged.

The Associated Press reported it too had seen a letter from Harrington to Maj. Ryder but listed the two alleged incidents involving the same man -- relating to the dog and the period of isolation -- separately.

Ryder is the Army's chief law enforcement officer who's investigating abuses at U.S.-run prisons in Afghanistan, Iraq and at Guantanamo, AP said.

It said that three of the four incidents mentioned in the letter it saw occurred under the watch of Gen. Geoffrey D. Miller, who ran the Guantanamo camp from October 2002 to March 2004 and left to run Abu Ghraib prison.

Last month, Miller was reassigned to the Pentagon, with responsibility for housing and other support operations, AP said.

The ACLU released internal government memos Tuesday that underscore the friction between the FBI and the military over interrogation methods, AP reported. (Full story)

The documents are among 5,000 that the New York-based American Civil Liberties Union received under two Freedom of Information Act requests, the group's executive director, Anthony Romero, told AP.

In one document obtained by the ACLU and seen by AP, an FBI agent recalls Miller wanting to "Gitmo-ize" the Abu Ghraib prison, where photographs surfaced of U.S. troops forcing Iraqi prisoners to strip and pose in sexually humiliating positions. Troops often refer to the U.S. naval base in Guantanamo as "Gitmo."
Commander: Allegations taken seriously

Brig. Gen. Jay Hood, the current commander of the mission in Guantanamo, said allegations of mistreatment and abuse are taken seriously and investigated, AP reported.

"The appropriate actions were taken. Some allegations are still under investigation," Hood told AP.

None of the people named in the letter are still at the base, a Guantanamo spokesman told AP, but it was not clear if any disciplinary action had been taken. The letter identified the military interrogators only by last name and rank, and mentioned a civilian contractor.

Lt. Col. Gerard Healy, an Army spokesman, told AP the female interrogator identified as Sgt. Lacey was being investigated, but the Army would not comment further or fully identify her.

The U.S. military says prisoners are treated in accordance with the Geneva Conventions, which prohibit violence, torture and humiliating treatment. Still, at least 10 incidents of abuse have been substantiated at Guantanamo, all but one from 2003 or this year, AP reported.

NousDefionsDoc

01-01-2005, 10:10

http://writ.news.findlaw.com/dorf/20020123.html

vsvo

01-02-2005, 21:23

OK, I'm not a lawyer, I've yet to take Criminal and Constitutional Law. But RL asked for some law student-speak, so I'll take the bait. It was an academic exercise, and I learned a lot.

1. Does the US Consitution apply to non-US citizens? Should it?

In June 2004, The Supreme Court ruled in Rasul v. Bush that federal district courts have jurisdiction to hear challenges to the legality of the detention of foreign nationals captured abroad and held at Guantanamo Bay. In this case, 2 Australians and 12 Kuwaitis captured abroad and held at Gitmo filed suit in federal district court challenging the legality of their detention. The District Court ruled that based on Johnson v. Eisentrager, it did not have jurisdiction to hear what it interpreted as a habeas petition, and dismissed the case. The Court of Appeals affirmed, and the Supreme Court agreed to hear the case. In a habeas corpus proceeding, an entity holding a prisoner must bring the prisoner to the court which issued the writ and justify the imprisonment.

In Johnson v. Eisentrager, the Supreme Court held that German citizens captured and tried by U.S. forces and incarcerated in Germany could not petition for habeas relief because a District Court did not have authority to grant such relief. The Court based its holding on 6 critical facts: 1) The prisoners were enemy aliens; 2) They had never been or resided in the U.S.; 3) They were captured outside U.S. territory and held in military custody; 4) They were tried and convicted by the military; 5) They were convicted for crimes outside U.S. territory; and 6) They were imprisoned outside U.S. territory at all times. Thus, aliens detained outside U.S. sovereign territory are denied habeas relief.

In the 6-3 majority opinion of Rasul written by Justice Stevens, the Court found that under the lease and treaty agreements with Cuba, Guantanamo Bay remains under “ultimate sovereignty” of the Republic of Cuba, but that the U.S. exercises “complete jurisdiction and control” over the base so long as the U.S. does not abandon the leased areas. Therefore the Court held that a federal district court would have jurisdiction over that area.

In a strongly worded dissent, Justice Scalia wrote that the ruling was an “unprecedented holding,” and an “irresponsible overturning of settled law.” Based on the strict reading of the Habeas Corpus statute, the minority held that the “detainees are not located within the territorial jurisdiction of any federal district court,” and that should be the end of the case. Instead, by abandoning prior rulings such as Eisentrager, the Court “boldly extends the scope of the habeas statute to the four corners of the earth.”

It appears that the liberal majority was uncomfortable with the notion of the U.S. detaining terror suspects beyond the reach of the law and molded their own case precedent to justify their holding. The conservative minority felt that POTUS, fulfilling his duties as the CinC, is waging a military campaign, and that the Court should not impose the “cumbersome machinery of our domestic courts into military affairs.” I agree with Justice Scalia’s dissent. You raise a host of potential practical problems by giving detainees and POW’s access to the courts.

This holding does not mean that the detainees will be released, just that they can file suit in federal district courts. Unless Congress changes the statute, we’ll have to wait for the first challenges to work their way through the courts to see what happens next.

2. Should the Geneva Convention apply to detainees at Gitmo? And by principle of precedence to all others?

As it stands, no, because the Taliban and al Qaeda do not fit the definition of nation states and the detainees do not fit the definition of combatants. It’s been reported that the military is setting up review panels to determine the combatant status of the detainees, following guidelines in the GC for cases where there is doubt as to the status of a combatant.

Even if the GC doesn’t apply, we are still bound by applicable laws in our treatment of the detainees. That partially explains the flurry of memos regarding what does and does not constitute torture according to our own as well as international laws. There have been reports that the CIA has been employing the practice of rendition. In those circumstances, detainees under CIA control are transferred to friendly countries for further interrogation.

3. Does releasing the detainees imply they were innocent and the USG made mistakes?

Not necessarily, if you view their detention as part of ongoing operations against hostile forces. Maybe they didn’t provide any useful intelligence, or the government decided for whatever reason not to bring them to trial. The GWOT is an unprecedented campaign. Extraordinary times call for extraordinary measures.

For the remaining questions, I'll defer to Prof. Dorf's article posted by NDD.

NousDefionsDoc

01-02-2005, 23:52

Good stuff I hadn't seen before - because I'm not a geek. :lifter

Thanks vsvo. So how do they determine which district Cuba falls under?

vsvo

01-03-2005, 00:13

So how do they determine which district Cuba falls under?

Good question. This is an interesting issue and one of the reasons why Justice Scalia does not like the holding. The statute says you file in the district in which you are detained. For the Gitmo detainees, it brings a surprising result. From the dissent:

"The fact that extraterritorially located detainees lack the district of detention that the statute requires has been converted from a factor that precludes their ability to bring a petition at all into a factor that frees them to petition wherever they wish"

So before the detainees couldn't petition for habeas relief in any federal district court, after this ruling they can file in any of the 94 federal judicial districts! This is the "monstrous scheme" to which Justice Scalia refers.

NousDefionsDoc

01-03-2005, 00:15

Mmm, I don't like that.

vsvo

01-03-2005, 00:20

Maybe Gitmo is not such a bad place to be.....

***********************************************

Jet Is an Open Secret in Terror War

By Dana Priest
Washington Post Staff Writer
Monday, December 27, 2004; Page A01

The airplane is a Gulfstream V turbojet, the sort favored by CEOs and celebrities. But since 2001 it has been seen at military airports from Pakistan to Indonesia to Jordan, sometimes being boarded by hooded and handcuffed passengers.

The plane's owner of record, Premier Executive Transport Services Inc., lists directors and officers who appear to exist only on paper. And each one of those directors and officers has a recently issued Social Security number and an address consisting only of a post office box, according to an extensive search of state, federal and commercial records.

Bryan P. Dyess, Steven E. Kent, Timothy R. Sperling and Audrey M. Tailor are names without residential, work, telephone or corporate histories -- just the kind of "sterile identities," said current and former intelligence officials, that the CIA uses to conceal involvement in clandestine operations. In this case, the agency is flying captured terrorist suspects from one country to another for detention and interrogation.

The CIA calls this activity "rendition." Premier Executive's Gulfstream helps make it possible. According to civilian aircraft landing permits, the jet has permission to use U.S. military airfields worldwide.

Since Sept. 11, 2001, secret renditions have become a principal weapon in the CIA's arsenal against suspected al Qaeda terrorists, according to congressional testimony by CIA officials. But as the practice has grown, the agency has had significantly more difficulty keeping it secret.

According to airport officials, public documents and hobbyist plane spotters, the Gulfstream V, with tail number N379P, has been used to whisk detainees into or out of Jakarta, Indonesia; Pakistan; Egypt; and Sweden, usually at night, and has landed at well-known U.S. government refueling stops.

As the outlines of the rendition system have been revealed, criticism of the practice has grown. Human rights groups are working on legal challenges to renditions, said Morton Sklar, executive director of the World Organization for Human Rights USA, because one of their purposes is to transfer captives to countries that use harsh interrogation methods outlawed in the United States. That, he said, is prohibited by the U.N. Convention on Torture.

The CIA has the authority to carry out renditions under a presidential directive dating to the Clinton administration, which the Bush administration has reviewed and renewed. The CIA declined to comment for this article.

"Our policymakers would never confront the issue," said Michael Scheuer, a former CIA counterterrorism officer who has been involved with renditions and supports the practice. "We would say, 'Where do you want us to take these people?' The mind-set of the bureaucracy was, 'Let someone else do the dirty work.' "

The story of the Gulfstream V offers a rare glimpse into the CIA's secret operations, a world that current and former CIA officers said should not have been so easy to document.

Not only have the plane's movements been tracked around the world, but the on-paper officers of Premier Executive Transport Services are also connected to a larger roster of false identities.

Each of the officers of Premier Executive is linked in public records to one of five post office box numbers in Arlington, Oakton, Chevy Chase and the District. A total of 325 names are registered to the five post office boxes.

An extensive database search of a sample of 44 of those names turned up none of the information that usually emerges in such a search: no previous addresses, no past or current telephone numbers, no business or corporate records. In addition, although most names were attached to dates of birth in the 1940s, '50s or '60s, all were given Social Security numbers between 1998 and 2003.

The Washington Post showed its research to the CIA, including a chart connecting Premier Executive's officers, the post office boxes, the 325 names, the recent Social Security numbers and an entity called Executive Support OFC. A CIA spokesman declined to comment.

According to former CIA operatives experienced in using "proprietary," or front, companies, the CIA likely used, or intended to use, some of the 325 names to hide other activities, the nature of which could not be learned. The former operatives also noted that the agency devotes more effort to producing cover identities for its operatives in the field, which are supposed to stand up under scrutiny, than to hiding its ownership of a plane.

The CIA's plane secret began to unravel less than six weeks after the Sept. 11, 2001, attacks.

On Oct. 26, 2001, Masood Anwar, a Pakistani journalist with the News in Islamabad, broke a story asserting that Pakistani intelligence officers had handed over to U.S. authorities a Yemeni microbiologist, Jamil Qasim Saeed Mohammed, who was wanted in connection with the October 2000 bombing of the USS Cole.

The report noted that an aircraft bearing tail number N379P, and parked in a remote area of a little-used terminal at the Karachi airport, had whisked Mohammed away about 2:40 a.m. Oct. 23. The tail number was also obtained by The Post's correspondent in Pakistan but not published.

The News article ricocheted among spy-hunters and Web bloggers as a curiosity for those interested in divining the mechanics of the new U.S.-declared war on terrorism.

At 7:54:04 p.m. Oct. 26, the News article was posted on FreeRepublic.com, which bills itself as "a conservative news forum."

Thirteen minutes later, a chat-room participant posted the plane's registered owners: Premier Executive Transport Services Inc., of 339 Washington St., Dedham, Mass.

"Sounds like a nice generic name," one blogger wrote in response. "Kind of like Air America" -- a reference to the CIA's secret civilian airlines that flew supplies, food and personnel into Southeast Asia, including Laos, during the Vietnam War.

Eight weeks later, on Dec. 18, 2001, American-accented men wearing hoods and working with special Swedish security police brought two Egyptian nationals onto a Gulfstream V that was parked at night at Stockholm's Bromma Airport, according to Swedish officials and airport personnel interviewed by Swedish television's "Cold Facts" program. The account was confirmed independently by The Post. The plane's tail number: N379P.

Wearing red overalls and bound with handcuffs and leg irons, the men, who had applied for political asylum in Sweden, were flown to Cairo, according to Swedish officials and documents. Ahmed Agiza was convicted by Egypt's Supreme Military Court of terrorism-related charges; Muhammad Zery was set free. Both say they were tortured while in Egyptian custody. Sweden has opened an investigation into the decision to allow them to be rendered.

A month later, in January 2002, a U.S.-registered Gulfstream V landed at Jakarta's military airport. According to Indonesian officials, the plane carried away Muhammad Saad Iqbal Madni, an Egyptian traveling on a Pakistani passport and suspected of being an al Qaeda operative who had worked with shoe bomber suspect Richard C. Reid. Without a hearing, he was flown to Egypt. His status and whereabouts are unknown. The plane's tail number was not noted, but the CIA is believed to have only one of the expensive jets.

Over the past year, the Gulfstream V's flights have been tracked by plane spotters standing at the end of runways with high-powered binoculars and cameras to record the flights of military and private aircraft.

These hobbyists list their findings on specialized Web pages. According to them, since October 2001 the plane has landed in Islamabad; Karachi; Riyadh, Saudi Arabia; Dubai; Tashkent, Uzbekistan; Baghdad; Kuwait City; Baku, Azerbaijan; and Rabat, Morocco. It has stopped frequently at Dulles International Airport, at Jordan's military airport in Amman and at airports in Frankfurt, Germany; Glasglow, Scotland, and Larnaca, Cyprus.

Premier Executive Transport Services was incorporated in Delaware by the Prentice-Hall Corporation System Inc. on Jan. 10, 1994. On Jan. 23, 1996, Dean Plakias, a lawyer with Hill & Plakias in Dedham, filed incorporation papers with the Commonwealth of Massachusetts listing the company's president as Bryan P. Dyess.

vsvo

01-03-2005, 00:22

According to public documents, Premier Executive ordered a new Gulfstream V in 1998. It was delivered in November 1999 with tail number N581GA, and reregistered for unknown reasons on March 2000 with a new tail number, N379P. It began flights in June 2000, and changed the tail number again in December 2003.

Plakias did not return several telephone messages seeking comment. He told the Boston Globe recently that he simply filed the required paperwork. "I'm not at liberty to discuss the affairs of the client business, mainly for reasons I don't know," he told the Globe. Asked whether the company exists, Plakias responded: "Millions of companies are set up in Massachusetts that are just paper companies."

A lawyer in Washington, whose name is listed on a 1996 IRS form on record at the Secretary of the Commonwealth's office in Massachusetts -- and whose name is whited out on some copies of the forms -- hung up the phone last week when asked about the company.

Three weeks ago, on Dec. 1, the plane, complete with a new tail number, was transferred to a new owner, Bayard Foreign Marketing of Portland, Ore., according to FAA records. Its registered agent in Portland, Scott Caplan, did not return phone calls.

Like the officers at Premier Executive, Bayard's sole listed corporate officer, Leonard T. Bayard, has no residential or telephone history. Unlike Premier's officers, Bayard's name does not appear in any other public records.

Researchers Margot Williams and Julie Tate contributed to this report. Williams has since left The Washington Post.

12B4S

01-03-2005, 03:14

Again as is the norm on this site... incredible info and well explained....

I tend to come from the gut. Been around awhile as many here have.

Problem is, I don't want to get out of line here.

I'll try to be good. First, the hell with the GC....!!!! Go back...!! The Germans, Japs, North Koreans,Chinese, NVA/cong. In EVERY
one of these wars (and that is what they were, NOT... police actions or conflicts!!! For Christs sake..... men were dying and being messed up)..
Were any of our POW's treated by the rules of the GC in those wars???? Were any of our enemies a signatory the GC?? Those are rhetorical ?'s for most out here.OK.... I'll stop for now...... ( well at least til tomoorow) .

Tommorow, I'll continue....... cause I have to live up to my prior pledge to keep this post nice :)

Has to to do with Gitmo prisoners... as in release, questioning and the technique of "chumming" and/or rendering.........

A quick note........... No!! these tango fu*ks... have ABSOLUTELY..... NO RIGHTS!!! in ANYWAY SHAPE or FORM............ most the courts in this country are manned by libs..... (the 9th Circus court in LA for one) Those pukes, given thier own way, would love to see terrorism run rampant through this country.......... Till it came to a theatre near THEM!!!,( like..... thier own Home and Family!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!)

k, done, for now ........................

was gonna edit this some but thinkin my puter has gone haywire........

Roguish Lawyer

01-03-2005, 11:52

VSVO:

With respect to the first question, what is the effect of Article III, Section 2, Clause 1 of the United States Constitution?

(Others can also answer if they would like.)

:munchin

Roguish Lawyer

01-03-2005, 12:01

I believe that the national security of the United States justifies the suppression of these reports, as well as the imprisonment of the reporters and publishers.

:munchin

NousDefionsDoc

01-03-2005, 14:14

VSVO:

With respect to the first question, what is the effect of Article III, Section 2, Clause 1 of the United States Constitution?

(Others can also answer if they would like.)

:munchin

No thanks, I'll watch the ass kic...I mean tutoring for a while.

Roguish Lawyer

01-03-2005, 15:42

No thanks, I'll watch the ass kic...I mean tutoring for a while.

Hey! No scaring away our law students!

C'mon, someone look it up and tell me why it's important.

vsvo

01-03-2005, 16:04

Hey! No scaring away our law students!

C'mon, someone look it up and tell me why it's important.

Workin' on it...I'm being extra careful here...... :D

Ambush Master

01-03-2005, 16:16

Article III

Section 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects

************************************************

I think that the whole question is, of "What Foreign State" were these guys a member ??? They were Renegade Terrorists !!! All bets are OFF for them !!!!

Roguish Lawyer

01-03-2005, 16:28

How is a US base in 'Stan or Iraq any different than a US base in Cuba? I'm not a lawyer, but I would think control of the base would be the issue?

Very interesting question.

vsvo or anyone else:

What is the significance of this document in this context?

http://www.nsgtmo.navy.mil/gazette/History_98-64/hisapxd.htm

vsvo

01-03-2005, 16:34

With respect to the first question, what is the effect of Article III, Section 2, Clause 1 of the United States Constitution?

Ahh, the “arising under” clause, perilous territory for a law student here, but I shall plow forward. :D

First a step back. Article III, Section 1 vests judicial power in only one court, the Supreme Court. However, it allows Congress to set up a system of “inferior” courts, or the lower federal courts (subsequently created by the first Congress). Since Congress has the authority to establish the lower courts, it also has the authority to define the jurisdiction of those courts. It can bestow jurisdiction to the full extent of the Constitution, or limit jurisdiction to a subset of cases. By jurisdiction we mean what type of cases the federal courts are authorized to hear.

Article III, Section 2, Clause 1 enumerates the cases that federal courts are allowed to hear. To quote a portion:

“The judicial Power shall extend to all Cases, …, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; … and between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.”

As RL mentioned, the Constitution is a list of limited powers, Congress must bestow actual rights. In the case of subject matter jurisdiction of the federal courts, it did so in Title 28, United States Code, Section 1331.

“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”

The million dollar question is what does “arising under” mean. Reading this statute one would think that Congress bestowed authority to the full extent of the Constitution. However, the courts have interpreted the statute more narrowly than the full scope of the Constitution. The Supreme Court defined the rule in the landmark case, Louisville & Nashville R.R. v. Mottley (1908). The Court held that “a suit arises under the Constitution and laws of the United States only when the plaintiff’s statement of his own cause of action shows that it is based upon those laws or that Constitution.” Known as the “well pleaded complaint” rule, it says that for a case to properly appear before a federal district court, the plaintiff must raise a federal question in a complaint which includes only those elements needed to establish her claim.

So relating back to NDD’s 1st question, does the Constitution apply to non-US residents? The answer is yes in the sense that they can file suit in federal district court if they craft a valid “well pleaded complaint” which includes a federal question.

Thinking over RL’s question I would like to clarify my previous post regarding the Rasul holding. The plaintiffs originally filed suit in federal district court challenging the legality of their detention. The District Court interpreted the complaint as a petition for habeas relief and examined the relevant statute. It dismissed the case for lack of jurisdiction based on its interpretation of the statute and the holding in Eisentrager. Statutes can clarify jurisdiction for their respective areas. The Court of Appeals affirmed, and the Supreme Court agreed to review the case. The Supreme Court then chose to reverse the lower courts.

Roguish Lawyer

01-03-2005, 16:35

OK, I'm not a lawyer, I've yet to take Criminal and Constitutional Law. But RL asked for some law student-speak, so I'll take the bait. It was an academic exercise, and I learned a lot.

1. Does the US Consitution apply to non-US citizens? Should it?

In June 2004, The Supreme Court ruled in Rasul v. Bush that federal district courts have jurisdiction to hear challenges to the legality of the detention of foreign nationals captured abroad and held at Guantanamo Bay. In this case, 2 Australians and 12 Kuwaitis captured abroad and held at Gitmo filed suit in federal district court challenging the legality of their detention. The District Court ruled that based on Johnson v. Eisentrager, it did not have jurisdiction to hear what it interpreted as a habeas petition, and dismissed the case. The Court of Appeals affirmed, and the Supreme Court agreed to hear the case. In a habeas corpus proceeding, an entity holding a prisoner must bring the prisoner to the court which issued the writ and justify the imprisonment.

In Johnson v. Eisentrager, the Supreme Court held that German citizens captured and tried by U.S. forces and incarcerated in Germany could not petition for habeas relief because a District Court did not have authority to grant such relief. The Court based its holding on 6 critical facts: 1) The prisoners were enemy aliens; 2) They had never been or resided in the U.S.; 3) They were captured outside U.S. territory and held in military custody; 4) They were tried and convicted by the military; 5) They were convicted for crimes outside U.S. territory; and 6) They were imprisoned outside U.S. territory at all times. Thus, aliens detained outside U.S. sovereign territory are denied habeas relief.

In the 6-3 majority opinion of Rasul written by Justice Stevens, the Court found that under the lease and treaty agreements with Cuba, Guantanamo Bay remains under “ultimate sovereignty” of the Republic of Cuba, but that the U.S. exercises “complete jurisdiction and control” over the base so long as the U.S. does not abandon the leased areas. Therefore the Court held that a federal district court would have jurisdiction over that area.

In a strongly worded dissent, Justice Scalia wrote that the ruling was an “unprecedented holding,” and an “irresponsible overturning of settled law.” Based on the strict reading of the Habeas Corpus statute, the minority held that the “detainees are not located within the territorial jurisdiction of any federal district court,” and that should be the end of the case. Instead, by abandoning prior rulings such as Eisentrager, the Court “boldly extends the scope of the habeas statute to the four corners of the earth.”

It appears that the liberal majority was uncomfortable with the notion of the U.S. detaining terror suspects beyond the reach of the law and molded their own case precedent to justify their holding. The conservative minority felt that POTUS, fulfilling his duties as the CinC, is waging a military campaign, and that the Court should not impose the “cumbersome machinery of our domestic courts into military affairs.” I agree with Justice Scalia’s dissent. You raise a host of potential practical problems by giving detainees and POW’s access to the courts.

This holding does not mean that the detainees will be released, just that they can file suit in federal district courts. Unless Congress changes the statute, we’ll have to wait for the first challenges to work their way through the courts to see what happens next.

Very nice work, grasshopper. Looks like a good analysis of that case (although I have not read it myself). What about the broader question of whether the Constitution applies to non-citizens? I believe that application of the habeas statute is a different question, unless I am missing something.

I am going to defer to AL on most of the International Law issues, as that is not my area at all.

Roguish Lawyer

01-03-2005, 16:42

While not directly on point, here is something else to consider:

http://a257.g.akamaitech.net/7/257/2422/28june20041215/www.supremecourtus.gov/opinions/03pdf/03-6696.pdf

Roguish Lawyer

01-03-2005, 16:46

As RL mentioned, the Constitution is a list of limited powers, Congress must bestow actual rights.

Well, I said the first part, but not the second. If powers are limited, why do we need rights? :munchin

vsvo

01-03-2005, 16:48

I think that the whole question is, of "What Foreign State" were these guys a member ???

Good point AM. al Qaeda is an international terrorist organization, the Taliban was a rogue regime not widely recognized internationally. I think you could argue that even though the organizations are not states, the actual members might be citizens of a country such as Yemen, Syria, etc.

vsvo

01-03-2005, 16:50

Well, I said the first part, but not the second. If powers are limited, why do we need rights? :munchin

Oops, sorry. Damn! Back to the books....

Roguish Lawyer

01-03-2005, 16:55

Known as the “well pleaded complaint” rule, it says that for a case to properly appear before a federal district court, the plaintiff must raise a federal question in a complaint which includes only those elements needed to establish her claim.

There are other bases for federal jurisdiction, such as diversity, right? See 28 U.S.C. Section 1330, et seq. See any relevant provisions in there? How about 1343? 1350? Anything else?

So relating back to NDD’s 1st question, does the Constitution apply to non-US residents? The answer is yes in the sense that they can file suit in federal district court if they craft a valid “well pleaded complaint” which includes a federal question.

Excellent work. So foreigners can sue in our courts if there is jurisdiction. Do foreigners have "civil rights"?

(Anyone can join in at any time . . .)

:munchin

Roguish Lawyer

01-03-2005, 16:57

Oops, sorry. Damn! Back to the books....

Don't be sorry. There are people (both dead and alive) who agree with what you said. You touched on an important constitutional question.

You are doing awfully well for a first year.

vsvo

01-03-2005, 17:24

Very interesting question.

What is the significance of this document in this context?

http://www.nsgtmo.navy.mil/gazette/History_98-64/hisapxd.htm

This lease and treaty was critical to the holding in Rasul. It establishes that Cuba has "ultimate sovereignty" over Gitmo, but that the U.S. "shall exercise complete jurisdiction and control." The Supreme Court interpreted this to mean the courts can reach Gitmo in terms of territorial jurisdiction. You could argue that since we also maintain "complete jurisdiction and control" over the bases in 'Stan and Iraq, that there is no difference. I think the distinction between Gitmo and a base in A'stan or Iraq is that Gitmo is held under a formal treaty and lease, whereas the bases in A'stan and Iraq were established in the course of combat operations ordered by the CinC. I don't know enough to take the analysis further.

vsvo

01-03-2005, 17:36

There are other bases for federal jurisdiction, such as diversity, right?

Yes, definitely. Sec. 1332(a)(2): "...all civil actions where the matter in controversy exceeds the sum or value of $75,000,..., and is between citizens of a State and citizens or subjects of a foreign state;"

vsvo

01-03-2005, 17:40

You are doing awfully well for a first year.

Thanks! Thank you also for your time, this was a good learning experience.

Roguish Lawyer

01-03-2005, 17:48

Thanks! Thank you also for your time, this was a good learning experience.

Who said we're finished? :)

vsvo

01-03-2005, 21:20

Roger - still researching. I'm about two questions behind! :D

Roguish Lawyer

01-04-2005, 17:07

Roger - still researching. I'm about two questions behind! :D

B1-3:

WhereTF are you in all of this?

Bravo1-3

01-04-2005, 18:46

B1-3:

WhereTF are you in all of this?

Having "issues" with West at the moment.

Roguish Lawyer

01-04-2005, 23:32

Having "issues" with West at the moment.

Books are excellent sources of information.

vsvo

01-05-2005, 15:09

If powers are limited, why do we need rights? :munchin

The powers are limited in the sense that the Constitution created a broad framework, the purpose of which was to protect individual liberty against government oppression. The Framers intentionally used broad language, leaving Congress to draft the laws and the courts to interpret them.

If I'm reading your question right, that's precisely the reason some states did not like the original draft - it was too broad. They refused to ratify until a more definitive list of rights was included. Hence the Bill of Rights and additional amendments.

That's the extent of my knowledge at this point. I really need to wait until con law to build a stronger doctrinal foundation.

Still reading some cases to get back to NDD's first question......

Roguish Lawyer

01-05-2005, 15:37

The powers are limited in the sense that the Constitution created a broad framework, the purpose of which was to protect individual liberty against government oppression. The Framers intentionally used broad language, leaving Congress to draft the laws and the courts to interpret them.

If I'm reading your question right, that's precisely the reason some states did not like the original draft - it was too broad. They refused to ratify until a more definitive list of rights was included. Hence the Bill of Rights and additional amendments.

What do you mean by "broad"?

vsvo

01-05-2005, 17:04

What do you mean by "broad"?

By broad I meant general, and not specific in terms of enumerating every right in explicit detail.

vsvo

01-05-2005, 17:23

Ok, read a couple of cases including Eisentrager, and re-read some of the Rasul opinion. Back to NDD's first question.

Yes, an alien does enjoy protection under the Constitution.

Fifth Amendment: “…nor shall any person…be deprived of life, liberty, or property, without due process of law”

Notice it says “person,” not “citizen,” and the Supreme Court has interpreted that to include aliens.

“It has been settled for over a century that all aliens within our territory are ‘persons’ entitled to the protection of the Due Process Clause.” Demore v. Hyung Joon Kim (2003)

“The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society.” Johnson v. Eisentrager (1950)

Thus, a person with a green card enjoys more protection than an illegal immigrant. Then you have the friendly aliens versus the enemy aliens. An enemy alien is a citizen of a foreign state at war with the U.S. So a couple things to consider are where the aliens are located, and whether they are friendly or hostile. Up until Rasul, the law of the land was Eisentrager. A couple of quotes from the Eisentrager opinion:

“But the nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts, for he neither has comparable claims upon our institutions nor could his use of them fail to be helpful to the enemy.”

“We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.”

Therefore, the detainees in ‘Stan and Iraq, as enemy aliens detained outside sovereign U.S. territory, would remain under the jurisdiction of military authorities. Up until Rasul, you would say the same for the Gitmo detainees. One of the points the Court makes in Rasul is that, “Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States…”

A couple of other things to consider here. The POTUS is waging a campaign under authority of a joint resolution from Congress authorizing force against those responsible for the attacks on 9/11. Whether that resolution is a declaration of war or not is open to debate. The GWOT is a campaign against an international terrorist organization, not a foreign state. How does that impact the status of the detainees at Gitmo? Are they combatants, or enemy aliens - as has been pointed out earlier, the detainees are not subjects of a foreign state with which the U.S. is at war. The Rasul opinion seems to imply that they are not enemy aliens.

Bravo1-3

01-05-2005, 20:30

Simply put, at the moment I don't have the time to pay the Law Library a visit, and I'm pretty sure the answer isn't in Pacific Reporter.

According to the pwers that be, my new PIN will be here by Friday.

12B4S

01-06-2005, 00:40

Thx NND.........
And the info from RL and VSVO
(Workin VSVO hard .... huh RL? Not a lawyer, but know why...... From a regular....know zip about the law..... VSVO is nailing some stuff.......

Just a short toss into this thread.... and seems I can only get so far with Google.
What about the detainee at Gitmo a year ago or more, that saved some of his piss and sh*t under his fingernails........ when he had the chance raked a guards face ...... that American almost died!!!!!!!!....... Sorry.... the legal stuff is interesting... then again there is common sense and reality. Yeah, I know and it is a great thread.... Learning a ton. BTW... the VC used that technique on thier punji sticks/stakes.... put alot of guys out of action.

uboat509

01-06-2005, 02:12

BTW... the VC used that technique on thier punji sticks/stakes.... put alot of guys out of action.
One of my instructors at Bragg (who is a Vietnam Vet) told us that that is actually a myth. The infections that soldiers got from those things was actually caused by a natural property of the bamboo itself combined with the jungle environment wich is very bacteria friendly.

SSG W

vsvo

01-06-2005, 12:41

Thanks 12B4S. Just tryin' to earn my keep around here.

School starts back up next week. I do believe RL has gotten me back to mid-semester form already! :lifter :D

NousDefionsDoc

01-06-2005, 13:27

This lease and treaty was critical to the holding in Rasul. It establishes that Cuba has "ultimate sovereignty" over Gitmo, but that the U.S. "shall exercise complete jurisdiction and control." The Supreme Court interpreted this to mean the courts can reach Gitmo in terms of territorial jurisdiction. You could argue that since we also maintain "complete jurisdiction and control" over the bases in 'Stan and Iraq, that there is no difference. I think the distinction between Gitmo and a base in A'stan or Iraq is that Gitmo is held under a formal treaty and lease, whereas the bases in A'stan and Iraq were established in the course of combat operations ordered by the CinC. I don't know enough to take the analysis further.

Could Castro then sue POTUS in Federal court? Say about the detainees?

Roguish Lawyer

01-06-2005, 13:43

Could Castro then sue POTUS in Federal court? Say about the detainees?

Excellent question, NDD. :munchin

vsvo

01-06-2005, 15:49

Could Castro then sue POTUS in Federal court? Say about the detainees?

Two ways he can file suit in federal court. He can assert a claim under federal law, or he can file under diversity with an amount in controversy over $75,000. Now, there could be a problem with the “foreign state” part. As you know, the U.S. does not recognize the Republic of Cuba diplomatically, although there is a U.S. Interests Section located in the old U.S. Embassy building in Havana and operating under the protection of the Swiss Government. There are also special rules when anyone sues the U.S. Government.

Let’s say he is able to file suit in U.S. District Court. At some point he’s going to have to appear before the court. Once he steps foot on U.S. territory, he’s going to be subject to enforcement of any judgments secured against him in prior lawsuits. So I think that, if anything, will discourage him from filing suit in U.S. courts.

He can of course file suit in Cuban courts, then if he wins judgment he can try to enforce the judgment in international courts. I’m very light on int’l law doctrine so I’ll leave that one alone.

Roguish Lawyer

01-06-2005, 15:56

Anyone can file a lawsuit. The question is whether the suit will go anywhere or not.

NousDefionsDoc

01-06-2005, 18:38

vsvo

01-06-2005, 21:57

I meant does the SCOTUS' holding set a precedence that "the courts can reach Gitmo in terms of territorial jurisdiction" and therefore will have to hear other cases from Cuba. Say they go ahead with this and the Cuban exile community decides to use it next year.

No, the reach is only to Gitmo, which the Court said is close enough to U.S. sovereign due to the treaty and lease. The rest of Cuba is still foreign land.

Cuban exiles living in the U.S. can sue Cuba. Back in 1997 the families of the Brothers to the Rescue pilots shot down over international waters won a judgment of almost $200 MM against Cuba and its air force. The problem is enforcing that judgment.

Is that what you meant, or am I still missing the point?

NousDefionsDoc

01-06-2005, 22:40

No, that's what I meant. Thank you.

12B4S

01-06-2005, 22:45

One of my instructors at Bragg (who is a Vietnam Vet) told us that that is actually a myth. The infections that soldiers got from those things was actually caused by a natural property of the bamboo itself combined with the jungle environment wich is very bacteria friendly.

SSG W

That could be uboat, lots of fun stuff in a jungle. I'm thinkin, however the feces sure didn't help. I'll defer to the Doc's out here. Not to discount the fact that anything that puts a hole in ya, will cause some sort of infection. Some more than others. I don't personally know anyone it happened to. Should have asked the guys on my team way back then. BTW, when I was going through SFTG/Q school, that is what was taught.... either way it sucks. ;)

12B4S

01-06-2005, 22:51

Thanks 12B4S. Just tryin' to earn my keep around here.

School starts back up next week. I do believe RL has gotten me back to mid-semester form already! :lifter :D

Hell, vsvo... just go to the bar and take the test
:D If I need a lawyer, I'm hiring you. Gotta get the smart ones before they learn to charge to much :p

12B4S

01-06-2005, 22:59

That could be uboat, lots of fun stuff in a jungle. I'm thinkin, however the feces sure didn't help. I'll defer to the Doc's out here. Not to discount the fact that anything that puts a hole in ya, will cause some sort of infection. Some more than others. I don't personally know anyone it happened to. Should have asked the guys on my team way back then. BTW, when I was going through SFTG/Q school, that is what was taught.... either way it sucks. ;)

This would be a whole different thread.... carry on
;)

vsvo

01-07-2005, 14:23

I believe that application of the habeas statute is a different question, unless I am missing something.

Yes, it's a different question. I pulled this case in the beginning when I was flailing away on the constitutional questions.

After re-reading the Rasul opinion yet again, I found something that makes me want to revise my answer to NDD's question regarding the detainees in 'Stan and Iraq. I'd thought that they were beyond the reach of U.S. courts. Consider these passages from the end of Justice Stevens' majority opinion:

"...nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in military custody outside the United States from the 'privilege of litigation' in U.S. courts."

"The fact that petitioners...are being held in military custody is immaterial to the question of the District Court's jurisdiction over their nonhabeas statutory claims."

Although I believe this is dicta - or not necessary to the Court's resolution of the narrow issue before it, namely, the subject matter jurisdiction of the courts to consider the habeas challenges of the Gitmo detainees - it can be used as persuasive authority in subsequent cases in this area.

The way I read this, the Court would be inclined to rule that the detainees in 'Stan and Iraq would also be able to reach our courts.

It'll be interesting to see how this gets worked out in the courts. 9/11 and GWOT are unprecedented. Let's see how the courts adapt to these circumstances.

NousDefionsDoc

01-07-2005, 15:40

I get the impression they (the judicial) are focused more on limiting the powers of the executive than any real concern for the "rights" of detainees.

vsvo

01-07-2005, 16:04

Yeah, that could be true. It's funny they would attempt this while we're at war. You would think now is the time to step back and let the CinC do his job.

Roguish Lawyer

01-07-2005, 16:14

I get the impression they (the judicial) are focused more on limiting the powers of the executive than any real concern for the "rights" of detainees.

Well, in theory, they are just supposed to decide cases. ;)

12B4S

01-08-2005, 02:38

I have learned alot from this thread as I have stated earlier.

But to address NDD's second question at the beginning of the thread, I had learned somwhere at sometime a year or so ago, that... well let me ask this. The current Geneva Convention was ratified in 1949 (and I didn't need to know that date to know this.) Who has signed the Geneva Convention? Obivously, it didn't apply to WW2, The German and jap atrocities during that war. Yet, as far as I have learned, the first attempt was in 1925

I started Googling because of this thread and the Geneva Convention, cause I had learned years ago who the signatories were. To be accurate, I wanted to list them. I didn't find that info. But, I'll put it this way, from recollection..... Us, Britain,France and Spain. Yeah I know France is Fooooked, but they did sign. (then again they'll sign anything) Point is, throughout the years/decades only people we will never have a war with are the only signatories.

The beginning was after WW1.......

http://fas-www.harvard.edu/~hsp/1925.html

Getting at this...... the Geneva Convention means NADA!! in every war we have fought.!!........ Tell you this, if I were caputured in any war...... if all they did was strip me and put panties on my head.... I'd be goin' WHEW!!!!!!!!!

Check it out:
http://www.heritage.org/Research/MiddleEast/wm260.cfm

and yeah.. this can go on and on.... yet it is quite simple.......

The Reaper

01-08-2005, 08:26

I am sure that AL will straighten this out, but IIRC, the U.S. was not a signatory to the most recent Geneva Protocols or the Hague Conventions, but has agreed to abide by most of them.

TR

NousDefionsDoc

01-16-2005, 11:22

These people are being released because of political pressure on GWOT allies - not because they are innocent. My bet is we will see them again...

U.K., Australian Gitmo Detainees to Be Freed
Tuesday, January 11, 2005

Hamdan Lawyers File High Court Appeal
LONDON — Five Guantanamo Bay prisoners, including the last four British detainees and an Australian who allegedly knew of plans for the Sept. 11 attacks but was never charged, will be released within weeks by the United States, British and Australian officials said Tuesday.

The Pentagon later confirmed it was releasing four Britons and an Australian from Guantanamo, but it did not identify them.

The decision concerning the Britons follows months of negotiations between Washington and London and a direct appeal by Prime Minister Tony Blair to President Bush.

Foreign Secretary Jack Straw told the House of Commons that British authorities would take "every practical step ... to maintain national security and protect public safety" upon the men's return.

"Once they are back in the U.K., the police will consider whether to arrest them under the Terrorism Act 2000 for questioning in connection with possible terrorist activity. Any subsequent action will be a matter for the police and the Crown Prosecution Service."

The Australian — 48-year-old Mamdouh Habib — will be released without charge even though the United States believes he knew of the Sept. 11 attacks beforehand, Australia's attorney general said.

vsvo

01-21-2005, 01:07

We just had the first interpretation of the Rasul holding in federal court on Wednesday (1/19). In Khalid v. Bush, Judge Richard J. Leon, appointed to the bench by President Bush in Feb. 2002, declined to issue a writ of habeas corpus for seven detainees who challenged the legality of their detention in U.S. District Court, District of Columbia. Judge Leon ruled that “the petitioners lack any viable theory under the United States Constitution to challenge the lawfulness of their continued detention at Guantanamo."

Six of the detainees (five are Bosnian-Algerian, one is Algerian with Bosnian permanent residency) were captured in Bosnia, and one is a French citizen captured in Pakistan. They were subsequently transferred to Gitmo in January 2001.

When Congress passed the Authorization for Use of Military Force, it authorized the President to “use all necessary and appropriate force.” Judge Leon held that the detention order was well within the President’s war powers, exercised under authority of the AUMF.

Judge Leon chose to interpret Rasul narrowly, holding that it gave the detainees a right to bring a habeas action into court, but did not give them a basis to secure release.

“Nothing in Rasul alters the holding articulated in Eisentrager … by focusing on the petitioners’ statutory right to file a writ of habeas corpus, the Rasul majority left intact the holding in Eisentrager and its progeny.”

Roguish Lawyer

01-21-2005, 10:42

Thanks. I hope you'll continue to monitor and report on this.

Did we finish all of our discussions above? :munchin

vsvo

01-21-2005, 12:03

Did we finish all of our discussions above? :munchin

Negative. I'm still trying to get a good handle on the Hamdi opinion. There are some interesting developments that flowed from that holding, especially with regards to the ongoing tribunals in Gitmo. I will also read the Padilla opinion, to complete the detainee trilogy.

Regarding the civil rights question, I don't know if I'm ready to take that big a bite...might need a couple more courses under my belt. :D

vsvo

01-22-2005, 11:05

Last summer, in response to the Supreme Court ruling in Hamdi v. Rumsfeld (124 S.Ct. 2633 (2004)) – I’ll get to that ruling later - DOD quickly implemented a process to determine the status of every detainee at Gitmo. The Court held in the majority opinion by Justice O’Connor that an American citizen captured and detained at Gitmo was entitled to notice and an opportunity to be heard – due process. The Court suggested that a military tribunal would satisfy that requirement, and also suggested that AR 190-8 would be sufficient to meet the standard.

The Deputy Secretary of Defense signed an order on July 7, 2004 establishing the Combatant Status Review Tribunals (CSRT). Overseen by Secretary of the Navy Gordon H. England, the purpose of the CSRT is to provide every detainee a one-time opportunity for notice and review of their status and detention. The procedures are modeled loosely after AR 190-8, with some notable exceptions.

Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees

Section 1-6(a), Tribunals

In accordance with Article 5, [Geneva Conventions], if any doubt arises as to whether a person, having committed a belligerent act and been taken into custody by the US Armed Forces, belongs to any of the categories enumerated in Article 4, [Geneva Conventions], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Section 1-6(b)

A competent tribunal shall determine the status of any person not appearing to be entitled to prisoner of war status who has committed a belligerent act or has engaged in hostile activities in aid of enemy armed forces, and who asserts that he or she is entitled to treatment as a prisoner of war, or concerning whom any doubt of a like nature exists.

Since AR 190-8 references the GC, and the CSRT procedures are modeled on AR 190-8, you could say that this process is aligned with, and even enhances, the GC procedures for determining detainee status. However, the government did not explicitly implement requirements of the GC.

Each tribunal consists of a panel of 3 neutral commissioned officers. The senior officer, or President, is an O-6, both remaining officers must be at least O-4, with one being a JAG officer.

The detainees will be assigned a personal representative, an officer (O-4 and above), not a lawyer, who will assist the detainee throughout the process. This provision does not exist in AR 190-8. The idea here is that the officer will have the required security clearance to review all DOD files on the detainee, but will only share unclassified information and advise the detainee on how he could present his case. The personal representative will have an interpreter to assist in communicating with the detainee.

The detainee will not be compelled to testify, but he will be allowed to attend the hearings, to present oral testimony, to present evidence, and to call witnesses if reasonably available. Each detainee will also be advised that he can file a habeas petition in federal court (based on Rasul). There are no provisions to further assist the detainee in acquiring a civilian lawyer, but he could communicate via the International Committee of the Red Cross and have family members file on his behalf.

The tribunal will review all information using the standard of preponderance of the evidence. This is the standard used in civil cases, and it allows for the trier of fact to find for the party with the greater weight of evidence, even if the scales tip at 51-49. The Court also suggested in Hamdi that the government will have a rebuttable presumption in favor of its evidence, which the detainees will have an opportunity to rebut.

The tribunal will then determine if the detainee should be released, or held as an enemy combatant, via majority vote. For purposes of these proceedings, an enemy combatant is defined as:

“…an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

Memorandum from the Secretary of the Navy, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants detained at Guantanamo Bay Naval Base, Cuba, July 29, 2004.

The tribunal decision would go to the Legal Advisor for review, then to the Director, CSRT. The Director may approve the decision, or hand it back down to the tribunal for further proceedings. The Director is Rear Admiral (upper half, or 2-star) James M. McGarrah, a USNA grad who started his career as a Surface Warfare Officer, then transferred to the Civil Engineer Corps and subsequently the Naval Reserve. Once the decision is final, it gets sent up to Secretary England. If the detainee should be released, DOS would be notified.

As of Janury 19, 2005, 550 tribunals have been held, and Adm. McGarrah has approved 330 decisions. Of the 330, 327 were classified as enemy combatants, and 3 were released from detention. At a briefing on December 20, 2004, Secretary England stated that as of that date, 292 detainees had participated in their tribunals.

The CSRT is a one-time program put in place in response to a Supreme Court ruling. Before that, DOD had already begun the implementation of the Administrative Review Board process. This body convenes annually to reassess the threat, not the status, posed by the enemy combatants detained at Gitmo. So once the detainees go through the CSRT, they will go before the ARB every year they are held.

There is also another parallel process, the military commissions, charged with prosecuting enemy combatants accused of violating the laws of war. There are detainees in various stages of that process, and some had already been charged prior to the CSRT. Even those charged were allowed to go through the CSRT.

The Washington Post reported the other day:
“Lawyers for more than 67 detainees have filed a total of 13 petitions for habeas corpus in the U.S. District Court [for the District of Columbia], telling the six judges who are hearing the cases that detention at Guantanamo violates detainees' rights under the U.S. Constitution, federal statutes and international treaties.”

Charles Lane and John Mintz, Detainees Lose Bid for Release, Wash. Post, January 20, 2005, at A3.

vsvo

01-28-2005, 17:44

While not directly on point, here is something else to consider:

http://a257.g.akamaitech.net/7/257/2422/28june20041215/www.supremecourtus.gov/opinions/03pdf/03-6696.pdf

Yaser Esam Hamdi was born in Louisiana in 1980, but moved to Saudi Arabia with his family as a child. By 2001 he was living in Afghanistan. During 2001 he was captured by the Northern Alliance and turned over to U.S. forces. After interrogation in A’Stan, he ended up in GTMO in January 2002. In April 2002, after authorities learned of his American citizenship, he was transferred ultimately to a naval brig in Charleston, S.C. In June 2002, his father, Esam Fouad Hamdi, filed a writ for habeas corpus in the U.S. District Court for the Eastern District of Virginia. The District Court ordered that Hamdi be allowed to see a lawyer. The U.S. Court of Appeals for the Fourth Circuit reversed that order, and ordered the District Court to conduct an inquiry into Hamdi’s status.

On remand, the Government filed a motion to dismiss the petition and responded with a declaration from a DOD official (Mobbs Declaration) stating that Hamdi had joined a Taliban military unit, received weapons training, and joined the unit in fighting the Northern Alliance. During a battle, his unit surrendered, and Hamdi handed over his Kalishnikov. The Government thus considered Hamdi to be an enemy combatant, and presented the Mobbs Declaration as its only evidence. Hamdi’s father asserted that his son was in A’Stan to do relief work, and had not been in country long enough to have received military training.

The District Court found that the Mobbs Declaration was not sufficient to justify Hamdi’s detention, being in effect heresay. It ordered the U.S. to turn over materials for an in camera (in the judge’s private chambers) review. On appeal of whether the Mobbs Declaration was sufficient, the Fourth Circuit held that if it were true, it would be sufficient to detain Hamdi, and dismissed the habeas petition. The Fourth Circuit also held that the Authorization for Use of Military Force provided the required congressional authorization for the Executive to detain enemy combatants during hostilities. The Supreme Court agreed to hear the appeal, and issued its opinion on June 28, 2004.

In Hamdi v. Rumsfeld, No. 03-6696, 2004 U.S. LEXIS 4761, at *1, Justice O’Connor, in a majority opinion joined by the Chief Justice, Justice Kennedy, and Justice Breyer, held that “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” 2004 U.S. LEXIS 4761, at *14. The Court reversed the Fourth Circuit and remanded the case to the lower court for further proceedings.

The Court agreed with the Fourth Circuit that the AUMF authorizes the President to detain enemy combatants in the course of hostilities. However, the Court held that Due Process was so fundamental in protecting a citizen's liberty that it must be upheld, even during wartime.

“Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”

2004 U.S. LEXIS 4761, at *14.

This opinion also contains the oft-quoted “blank check” comment. “A state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” 2004 U.S. LEXIS 4761, at *15.

The Court did consider the circumstances of the war being waged, and developed its holding accordingly. This holding does not apply to initial battlefield captures, and only applies after initial interrogation if the Government decides to continue to hold the combatant. The Court also suggested a military tribunal in accordance with AR 190-8 would meet its standards, and that hearsay could be accepted. Furthermore, it would be constitutional to grant a rebuttable presumption in favor of the Government’s evidence. 2004 U.S. LEXIS 4761, at *14.

As a result of this ruling, DOD established the Combatant Status Review Tribunals in Gitmo. All in all, this was a balanced ruling, much more palatable than the holding in Rasul. Hamdi, regardless of his activities and allegiance, is a U.S. citizen, which distinguishes this case from Rasul.

vsvo

01-31-2005, 14:15

Another ruling handed down today at the U.S.District Court by Judge Joyce Hens Green. Apparently they've consolidated the Gitmo habeas petitions and she's handling 50 of them. I've only read the news blurb, it appears Judge Hens Green has contradicted Judge Leon and held that detainees can petition for a writ of habeas corpus. She also held that the CSRT are unconstitutional and that some detainees may have claims under GC.

I've downloaded the unclassified opinion, but cannot read it until Friday. I'll post more about the opinion after I read it.

Roguish Lawyer

01-31-2005, 14:24

Looks like you are doing some good work here, vsvo. I am too busy to read it right now, but I will get back to this when I can. Perhaps AL would like to participate? :munchin

vsvo

02-09-2005, 16:21

Another ruling handed down today at the U.S.District Court by Judge Joyce Hens Green.

I just read the memorandum opinion by Judge Green, and I stand corrected. This was not a final ruling, but a procedural ruling. Judge Green (Senior Judge Joyce Hens Green was appointed to the federal bench by Pres. Carter in 1979. She also served as the Chief Judge of the U.S. Foreign Intelligence Surveillance Court.) is handling the habeas petitions of eleven detainees, and this is a ruling on the government’s motions to dismiss and for JMOL. She denied some of the motions and granted others.

Choosing to interprete the Rasul opinion more broadly, and following the interpretation that GTMO is equivalent to U.S. territory, the court held that the detainees have rights under the Due Process Clause of the Fifth Amendment. The court also used Hamdi as a guideline to define rights to due process under the Fifth Amendment.

Some other elements of the opinion:

Held that the CSRT fail to satisfy constitutional due process requirements because:
- Detainees were denied access to material evidence because the government deemed that evidence to be classified
- Detainees were denied counsel to compensate for the refusal to review classified evidence, thus detainees were not adequately protected procedurally
- The definition of enemy combatant used by the tribunal is vague and potentially overbroad
- The tribunals did not sufficiently consider whether evidence against the detainees was obtained via torture

Afghanistan is a High Contracting Party to the Conventions, therefore GC covers the Taliban detainees. If Taliban fighters were not excluded from POW status via an Article 5 tribunal, then they have stated valid claims under the Third GC.

Roguish Lawyer

02-09-2005, 21:32

AL:

How is grasshopper doing?

Roguish Lawyer

03-01-2005, 17:55

http://www.latimes.com/news/nationworld/nation/la-na-padilla1mar01,0,658051.story?coll=la-home-nation

Judge Rules Terror Suspect Must Be Charged or Freed
By Richard A. Serrano, Times Staff Writer

WASHINGTON — A federal judge on Monday ordered the Bush administration to either charge or release an American suspected of plotting terrorist attacks with Al Qaeda, saying that his continued confinement after nearly three years would "only offend the rule of law."

The case of Jose Padilla has drawn unusual attention because it pits the rights of a U.S. citizen against the powers of the government to fight the war on terrorism. The government contends that by designating Padi lla an "enemy combatant" — not a criminal defendant — and putting him in military custody, it can hold him without charge indefinitely.

He was deemed to be an enemy combatant by President Bush in June 2002, a month after his arrest at Chicago's O'Hare International Airport. Officials accused him of participating in a plan to detonate a radioactive "dirty bomb" in the United States.

Federal prosecutors had hoped to keep the New York native behind bars in an attempt to learn all they could about his reported ties to Al Qaeda and his alleged attempt to scout targets for attack in the U.S..

But Monday's ruling by U.S. District Judge Henry F. Floyd found that Padilla's "indefinite detention without trial" violated his constitutional right to due process and ordered the administration to release him or charge him within 45 days.

"Great decision," said Donna Newman, a New York lawyer representing Padilla. "The Constitution is alive and well and kicking."

Government lawyers, who had no immediate reaction to the order, are likely to appeal the ruling quickly and forestall any immediate release of the man they have portrayed as a grave threat to American security.

The judge noted that prosecutors could either file criminal charges against Padilla within 45 days or declare him a "material witness" to a crime involving other terrorists and hold him in connection with that case.

Floyd, who was appointed by Bush in 2003, rejected the government's position that Padilla was an "enemy combatant" because he was captured during the ongoing war against terrorism.

"The president has no power," the judge said, "neither express nor implied, neither constitutional nor statutory, to hold [Padilla] as an enemy combatant."

Eugene R. Fidell, president of the National Institute of Military Justice, said Monday that Floyd's ruling was illustrative of what he called "the revolt of district judges" who were disturbed by the government's handling of terror suspects.

"District judges are used to dispensing justice to people in front of them," Fidell said. "They are down where the rubber meets the road in the administration of justice in this country, and they bring a special perspective. And they have found ways to express their discomfort."

Padilla was arrested in May 2002 at O'Hare after returning from Pakistan.

Soon afterward, then-Atty. Gen. John Ashcroft held a news conference during which he labeled Padilla a dedicated soldier for Al Qaeda who had betrayed the U.S. to fight for Osama bin Laden.

Ashcroft said the government had "disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive 'dirty bomb.' "

"Al Qaeda officials knew that as a U.S. citizen holding a valid U.S. passport, [Padilla] would be able to travel freely in the United States without drawing attention to himself," Ashcroft said.

Ashcroft further accused Padilla of returning to the United States to look for targets for a plotted chemical attack.

Padilla was held for a short time on a material witness warrant in connection with the investigation of the Sept. 11, 2001, attacks. In June 2002, Bush designated him an enemy combatant and directed that he be placed in military custody. Padilla then was moved to a military base in Charleston, S.C.

Floyd, who presides in Spartanburg, S.C., heard Padilla's claim that his constitutional rights were being violated. Key to his ruling Monday was the case of another U.S. citizen who had been held as an enemy combatant.

Yaser Esam Hamdi, born in Louisiana to Saudi parents, held dual citizenship. He was detained for several years — first at Guantanamo Bay, Cuba, then at Navy brigs in Norfolk, Va., and Charleston — until his release last year.

Like Padilla, he was designated an enemy combatant and held without criminal charges. But unlike Padilla, Hamdi was captured on the battlefield in Afghanistan, fighting for the Taliban and against the United States.

Hamdi's case made its way last summer to the U.S. Supreme Court, which ruled that the government had to charge him with a crime or release him. The Justice Department decided that he was no longer of value to intelligence officials, and he was allowed to return to Saudi Arabia after forfeiting his U.S. citizenship and agreeing to certain travel restrictions.

In Padilla's case, his lawyers argued before Floyd that the president's inherent constitutional powers did not allow him to subject U.S. citizens who were arrested in the United States to "indefinite military detention."

They also maintained that Congress never authorized that kind of indefinite confinement without trial for U.S. citizens.

Padilla grew up in Chicago, where he was arrested numerous times as a juvenile for gang activity. As an adult, he moved to Florida, married and turned to Islam. He then left his family and traveled throughout the Middle East.

The government told the judge that the president did have "constitutional authority" to detain Padilla, and cited the Hamdi case as evidence that the Bush administration was within its rights to hold Padilla indefinitely.

But the judge determined that "just because something is sometimes true, [it] does not mean that it is always true." He then cited major inconsistencies between the Hamdi and Padilla cases.

"The differences between the two are striking," he said.

He noted that a federal appellate judge earlier had found that "to compare the battlefield capture [of] Hamdi to the domestic arrest [of] Padilla is to compare apples and oranges."

Padilla, Floyd said, "is an American citizen" and "was captured in a United States airport. He is, in some respects, being held for a crime that he is alleged to have planned to commit in this country."

The judge said that the "president's use of force to capture Hamdi" on the Afghan battlefield "was necessary and appropriate." But, he said, referring to Padilla's arrest in Chicago, "that same use of force was not."

Padilla's "alleged terrorist plans were thwarted at the time of his arrest," Floyd added. "There were no impediments whatsoever to the government bringing charges against him for any one or all of the array of heinous crimes that he has been effectively accused of committing."

Using that argument, the judge wrote some of the sternest language in his order:

"This court is of the firm opinion that it must reject the position of the [government]. To do otherwise would not only offend the rule of law and violate this country's constitutional tradition, but it would also be a betrayal of this nation's commitment to the separation of powers that safeguards our democratic values and individual liberties."

In the past, the military has stressed that Padilla needed to be locked up indefinitely — and kept from defense lawyers and courtrooms — because intelligence officers were hoping to break him down in interrogations and glean information to prevent future attacks. It is on that basis that the government is likely to appeal the ruling.

But Newman, Padilla's lawyer, said: "We will continue to fight for our rights too, and his."

vsvo

03-01-2005, 20:50

Thanks RL, I missed this today. I wonder if this flowed from the Sup. Ct. remand. I'll pull the opinion this week and find out (I'm on spring break, so I have all the time in the world!).

vsvo

03-03-2005, 16:43

Just read the memorandum opinion and order. Judge Floyd (appointed to the federal bench by POTUS in 2003) granted Padilla's motion for summary judgment, as well as his writ for habeas corpus. The article summed it up pretty nicely, the judge ruled that since Padilla is a U.S. citizen arrested domestically at O'Hare International, this is a law enforcement matter, and the Executive did not have the power to subsequently detain him as an enemy combatant.

There is an interesting discussion in the opinion about judicial activism, which I'll post in the relevant thread.

vsvo

03-31-2005, 13:10

On Tuesday, March 29, 2004, in the U.S. District Court for the District of Columbia, Judge Henry H. Kennedy, Jr. (appointed to the federal bench by Pres. Clinton in 1997) granted a preliminary injunction requiring the U.S. to provide petitioners' counsel and the court with 30 days advance notice of any petitioner's transfer from Gitmo.

Petitioners are 13 Yemeni nationals picked up in Pakistan in 2001 or 2002 by Pakistani police and transferred to U.S. custody and transported to Gitmo. Their petition for habeas corpus is currently stayed while Judge Green's prior ruling is appealed by the U.S. The petitioners filed this motion for a preliminary injunction to prevent the U.S. from tranferring them to another country, allegedly for torture or to escape due process requirements, before their habeas hearings are completed.

The court used a four-part test in considering the request (I'm currently working on an appellate brief and oral argument for a preliminary injunction ruling in Legal Writing class, but it's a 2nd Circuit case, so the standard is a little bit different).

1) Irreperable Injury

Petioners must show that they are being threatened with injury which is more than "remote and speculative." (Mem. Opinion at 6 (citing Milk Indus. Found. v. Glickman, 949 F.Supp. 882, 897 (D.D.C 1996)) The court held that this standard is met because if the detainees are tranferred overseas, their habeas claims would be effectively extinguished. (Mem. Opinion at 7)

2) Likelihood of Success

Citing Federal Rule of Appellate Procedure 23(a), the court held that the petitioners would have a high likelihood of success in blocking a transfer without approval of the court. (Mem. Opinion at 9)

3) Harm to Respondents [U.S.]

The court held that while the injunction would interfere with the Executive's detention of the detainees, the consequences do not "outweigh the imminent threat facing Petitioners with respect to the entirety of their claims before the court." (Mem. Opinion at 11)

4) Public Interest

The court held that even though the CSRT designated the petitioners as enemby combatants, Judge Green ruled that the CSRTs did not satisfy constitutional requirements. In this case, "the public has a strong interest in ensuring that its laws do not subject individuals to indefinite detention without due process." (Mem. Opinion at 12)

vsvo

10-06-2005, 22:27

OK, I'm finally taking Constitutional Law. We're doing powers this semester. The professor just announced that we will cover the Gitmo detainee issue in a couple of weeks. He hasn't assigned the cases, but hopefully we will read Rasul. Of course, I might have to come back and change some of my answers after we're done. :D

One of his areas of expertise is international law, so this topic is right in his wheelhouse. The other day, while discussing the war powers, he took us on an interesting tangent questioning whatever happened to the formal declaration of war.

Next semester we will cover rights, so hopefully I will be able to answer RL's rights questions.

vsvo

10-27-2005, 22:52

Well, I missed an important constitutional issue which goes towards answering NDD's question when I read Hamdi earlier this year. Hamdi is another skirmish in the ongoing battle over the limits to executive power that exists because of the separation of powers (legislative, executive and judicial).

This line of cases can be traced back to Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), known as The Steel Seizure Case. In late 1951, steel companies and their employees were negotiating new collective bargaining agreements. When the parties failed to settle the disputes, the steelworkers’ union gave notice for a nationwide strike to begin on April 9, 1952. A few hours before the strike, President Truman, believing the strike would jeopardize national defense with the country at war, issued an Executive Order directing Secretary Sawyer to take possession of and run most of the steel mills. The President then notified Congress of his order, and Congress took no action.

The steel companies, while obeying the Order, filed suit in U.S. District Court. On April 30, the U.S. District Court for the District of Columbia issued a preliminary injunction to stop the Secretary from carrying out the seizures. The D.C. Circuit then stayed the injunction on the same day. The Supreme Court, in a 6-3 opinion, held that the lawmaking powers rested with Congress and struck down the seizure order. The Court did not find an act of Congress or express grant in the Constitution authorizing the President to take such action.

Justice Jackson, in a famous concurring opinion, defined a three-category test for gauging presidential power:

1. Congressional authorization: The President’s power is at its “maximum.”
2. Congressional silence: A “zone of twilight,” where the President’s power depends on “imperatives of events and contemporary imponderables.”
3. Congressional opposition: The President’s power is at its “lowest ebb.”

This remains good law, and we see the ideas again in Hamdi.

The Non-Detention Act, passed in 1948, states, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Hamdi argued that this Act prevents the President from detaining him indefinitely, barring Congressional authorization. This would clearly be a category 3 situation. However, the Supreme Court agreed with the Fourth Circuit that the Authorization for the Use of Military Force satisfies the “Act of Congress” requirement of the Non-Detention Act. Thus, the AUMF, while using broad language, nevertheless places the President squarely in category 1, authorizing the detention of enemy combatants.

But the Court drew the line at extending the authorization to allow indefinite detention. Here, the Court held that only Congress can suspend habeas corpus. On this point, the majority was 8-1, with only Justice Thomas dissenting.

vsvo

11-23-2005, 16:36

As we start to move into Rights in class, I need to amend some of my answers here.

The Framers intentionally used broad language…

Dead ass wrong. Apparently, I did not comprehend what I was reading at the time.:o

As RL noted, the enumerated powers are limited. The Framers originally felt this was the best way to preserve liberty. They feared that by enumerating, they might draft too narrowly, or make mistakes, thereby harming liberty.

If powers are limited, why do we need rights?

There exists another argument that by enumerating powers, however limited, you endanger liberty. The expression of certain rights implies that those not expressed are excluded. Not everyone would think this, but enough did that the Framers added the Bill of Rights to the Constitution. So the response to RL’s question is we need rights because if they are not enumerated they do not exist.

On the other hand, there is the notion of natural rights, the idea that we hold certain rights not bestowed by government. The Framers believed in this ideal (e.g., “self-evident,” 9th Amend., etc.), another reason why they thought they didn’t need to enumerate certain rights. Depending on your religious, moral and societal values, this could be a long list or a short one.

An interesting thought is Americans traditionally think of our rights as cast against the government; whereas internationally, folks think of their rights as existing “in the air,” not specifically cast against government. What do the members here and abroad think about that?

Roguish Lawyer

11-23-2005, 17:39

As RL noted, the enumerated powers are limited. The Framers originally felt this was the best way to preserve liberty. They feared that by enumerating, they might draft too narrowly, or make mistakes, thereby harming liberty.

What does "limited" mean in this context? If a governmental power is not specifically enumerated, can the government constitutionally exercise that power? What effect does a limitation on governmental power have on "rights"?

There exists another argument that by enumerating powers, however limited, you endanger liberty. The expression of certain rights implies that those not expressed are excluded.

What if you apply this analysis to powers rather than rights?

So the response to RL’s question is we need rights because if they are not enumerated they do not exist.

That is one response. Do you have another?

An interesting thought is Americans traditionally think of our rights as cast against the government; whereas internationally, folks think of their rights as existing “in the air,” not specifically cast against government. What do the members here and abroad think about that?

I do not understand the question.

CoLawman

11-23-2005, 20:35

In phrasing your question regarding rights you used "CAST" as a verb. Cast just might be the one word in the King's language with the most meanings. I was unable to figure out how you were trying to use it, thus I too don't understand the question.

vsvo

11-23-2005, 23:00

To clarify my last point and question:

At the time our Constitution was being developed, one of the goals of the document was to prevent government tyranny in the new nation. I suppose this resulted from being ruled by the Crown. Thus, we needed rights to preserve liberty from oppressive government control, to manage the tension between personal freedom and government (federal) rule. Today, do we still view the concept of rights as protecting personal liberty from oppressive government?

Contrast that to the international perspective that rights are not created to specifically protect personal liberty from governmental control, but rather exist "in the air," like natural rights. Do folks outside the US agree or disagree with this characterization?

RL, I need to put more thought into the rest of your questions.

Martin

11-24-2005, 06:37

Contrast that to the international perspective that rights are not created to specifically protect personal liberty from governmental control, but rather exist "in the air," like natural rights. Do folks outside the US agree or disagree with this characterization?
I don't believe in birth or natural rights. I believe man is born free and is obligated, held back and otherwise interact with the environment, be it natural or societal. Not a right, just the way things are.

By that very definition, any rights retained are bound to the constitution, the government. Still, it is, IMHO, dangerous to say that the government grants liberty. Government offers a way to organize society. The only thing that it can do is to be more or less restricting and repressive.

I hope that made sense.

I don't know about other Swedes. I get a feeling about Europe in general that most think that it's all just part of a set of rules. A more hierarchical societal setting, even if few levels. But the rules, or rights, are then believed to be "in the air". Things are seen as right and wrong, some gray, felt as to be universally true and accepted. When this meets other cultures, it mutates into a moral relativity where ever more is accepted as true for it to continue to function. For obvious reasons, this becomes problematic, and I think rights are becoming increasingly seen as due to institutions. Examples would be responses to youth violence and Islamism, and the motivation behind Brittain and France for their decisions in regard to the EU constitution.

Martin

vsvo

11-24-2005, 22:03

Thanks Martin. That gives me a good perspective of the meaning of "in the air."

Martin

11-25-2005, 09:36

Ningunas problemas, vsvo.

One clarification though: By youth violence and Islamism, I meant it in general (at school, downtown, you get the picture), not necessarily the past few weeks' riots.

Martin

vsvo

11-29-2005, 17:22

What does "limited" mean in this context?

It means that only a certain number of powers are explicitly defined. Thus, if a power is not enumerated, one interpretation is that it is forbidden. Another interpretation is that the enumerated powers merely serve as a guide, that the document is a constitution, not a code, and should not be read as a code. We can infer powers through other means; therefore, the actual powers are more expansive. If the Framers had intended to forbid a certain power, they would have enumerated the limitation. This relates to the next question.

If a governmental power is not specifically enumerated, can the government constitutionally exercise that power?

Yes. There are several ways to analyze and interpret the Constitution:

Textual: First, we always go to the text of the document. If we find language that answers the question, we are done. But even words can be interpreted in many ways; for example, what is a “public use” in an eminent domain case, or what are “high Crimes and Misdemeanors” in an impeachment case. Does “high” modify misdemeanors, or just crimes? If the language does not exist, or is ambiguous, we move on to the following means.

Structural: We can infer meaning based on where the language resides in the document. Many of the Articles follow the architecture of a vestiture clause, followed by housekeeping provisions, detailed powers and limits on power. If language resides in the limits section of an article, we infer the intent to make it an enumerated limit.

Historical: We look at historical documents that capture the debate among the Framers such as the records of the Constitutional Convention and the Federalist Papers. From these, we can infer the intent of the Framers beyond what is specifically enumerated in the document.

Functional: We analyze how the power or lack of power impacts the function of government. For example, the laying out in detail of every single possible power and limitation would possibly impede the goal of a “workable government.” Thus, if a power were justified via other types of analysis, we can infer that it’s allowed. Another example is would the power violate the separation of powers principle.

Therefore, if the Court can infer a power using these various methods of analysis, it would find it constitutional. If the Constitution is a guide and a framework, shouldn’t we be able to adapt it to the changing world and developing society? Is that part of the genius of the Framers in limiting the set of defined powers and limitations?

What effect does a limitation on governmental power have on "rights"?

There are four ways to view the relationship between powers and rights, basically the possible combinations:

Construe rights broadly, and powers narrowly. This is the classic Libertarian approach. This begs the question, why view one set of words narrowly, and another set broadly?
Construe powers broadly, and rights narrowly. Most folks would probably not support this viewpoint. This also begs the same question as above.
Construe both rights and powers broadly. This is the classic liberal approach.
Construe both rights and powers narrowly. This is the classic conservative approach.

Depending on the view one adopts, rights could be narrow, or broad.