Supreme Court will Hear Padilla Case

[NousDefionsDoc]

WASHINGTON (Reuters) - The U.S. Supreme Court said on Friday it would decide whether President Bush has the power to order an American citizen seized on U.S. soil held as an enemy combatant in another case arising from Washington's war on terror.

Expanding its review of the government's actions, the high court agreed to decide the case of Jose Padilla, who has been held since May 2002 as a suspect in an alleged al Qaeda plot to detonate a radioactive "dirty bomb" in the United States.


His case involved fundamental constitutional questions about Bush's powers as commander in chief. It has pitted the government's national security arguments adopted after the Sept. 11, 2001, attacks against concerns that civil liberties have been violated.

___________

This should be interesting

[The Reaper]

Anyone else here feel that we toss the term "American citizen" around way to liberally, and it is far to easy a title to earn?

TR

[Gypsy]

Yes, Sir, I do.

I was blessed to be born in America and to enjoy the freedoms and rights afforded to me as a citizen, but never do I take them for granted. They were paid for long ago, and will continue to be paid for, by the Men and Women who give their blood, sweat and tears and sometimes their lives. Consequently I feel that I, and all citizens of America, have a responsibilty to be productive contributing citizens and positively impact society in whatever ways we can.

In this day and age, I fail to understand when a "citizen" plots terrorist activities against our Country how they retain their rights; they wish to destroy "the Infidel" but then expect due process to be afforded to them to protect their civil liberties. It is as if suddenly they are American Citizens once again. As far as I'm concerned these people give up their rights when they strike or plot against our Nation. Even more mind boggling for me is attempting to reason with those that feel the terrorists have more rights than the victims...real or intended. They give me a headache.

[Surgicalcric]

Very well put Gypsy.

I too do not understand how an individual can expect to be afforded rights bought and paid for by those the terrorists intended to kill in the first place.

The oath I swore on Wednesday says I will defend this country against all enemies, both foreign and domestic. It would seem to me that once an individual began to plot against andor kill the citizens of this country they would have lost their rights previously afforded them under the constitution.

[NousDefionsDoc]

Wasn't Padilla born in the US?

[The Reaper]

Originally posted by NousDefionsDoc
Wasn't Padilla born in the US?

That is how most of these dirtbags become "American citizens".

TR

[Surgicalcric]

I dont think it should matter whether or not a person is born here.

If a person takes up arms against their own countrymen they do not deserve the rights afforded them under The Constitution.

[Gypsy]

Originally posted by NousDefionsDoc
Wasn't Padilla born in the US?

NDD, yes he was born in Brooklyn. He was also a member of a Chicago gang.

Thanks Surgicalcric.

[NousDefionsDoc]

So how can we strip his citizenship before we have the trial? RL?

[The Reaper]

Originally posted by NousDefionsDoc
So how can we strip his citizenship before we have the trial? RL?

I don't believe we can.

What we should be taking a look at is the law that says being born in the U.S. makes one a U.S. citizen.

It occurs to me that this law was written with a view of the U.S. as a growing country with plenty of room for all and very slow, limited travel. The current situation seems to call for immigration reform, beginning with this.

TR

[NousDefionsDoc]

DAMN! LOL - that's pretty much the standard around the world Boss.

[The Reaper]

Originally posted by NousDefionsDoc
DAMN! LOL - that's pretty much the standard around the world Boss.

Too far over the top?

Most countries do not accord the citizenship rights that this one does.

Besides, I thought we liked controversy and bold, contentious statements here.

You have seen how the Visa guys at the AmEmbassies look at pregnant applicants.

Just my .02, regardless of how strongly I feel about it.

Discussion?

TR

[NousDefionsDoc]

Alternative criteria that is manageable?

[The Reaper]

Originally posted by NousDefionsDoc
Alternative criteria that is manageable?

Born here, specific number of years of satisfactory residency, followed by a citizenship test, or military service, like we do for adults?

Limited citizenship rights till then.

TR

[NousDefionsDoc]

I could live with it.

[Surgicalcric]

What about those that slip in under the radar?

There should also be a way to strip ones citizenship from them after having been charged with a crime during a war time against the US so said person can be tried as an enemy combatant.

[Gypsy]

Originally posted by The Reaper
Born here, specific number of years of satisfactory residency, followed by a citizenship test, or military service, like we do for adults?

Limited citizenship rights till then.

TR

TR would you also include civil service for those that could not serve in the Military for some reason? (ie: physical limitations, asthma, vision problems or the like)

[Surgicalcric]

Not speaking for TR but adding my .02... I think Fire, EMS, LEO would be included in there.

[NousDefionsDoc]

Originally posted by Gypsy
TR would you also include civil service for those that could not serve in the Military for some reason? (ie: physical limitations, asthma, vision problems or the like)

No. Serve or die!

[Gypsy]

Originally posted by NousDefionsDoc
No. Serve or die!

LOL!

[Gypsy]

Originally posted by Surgicalcric
Not speaking for TR but adding my .02... I think Fire, EMS, LEO would be included in there.

I think that would make sense as well...you are serving the community at large.

[ghuinness]

Originally posted by NousDefionsDoc
No. Serve or die!

So, would you let people with Visa's enlist?

One other change. Marrying an American should not
expedite the process.

I need to find the article about a New York woman that
married aliens for a living. She was on husband 85, or some
ridiculous number, when BCIS/INS finally caught up with her.

[Roguish Lawyer]

AP -- Fayetteville, North Carolina -- February 22, 2004:

Local authorities announced today that The Reaper has been taken into custody on charges of plotting to destroy Washington and New York with tactical nuclear devices. Authorities allege that The Reaper is the leader of an Al Qaida sleeper cell formed over 20 years ago, when The Reaper entered the United States armed forces. Authorities seized a laptop computer and satellite phone from The Reaper's residence which they say he used to communicate secretly with his Al Qaida handlers.

"The first thing we'll do is strip him of his purported citizenship under the newly enacted "Gypsy's Law," said Richard B. "Dick" White, III, the United States Attorney for the District of North Carolina. "This man obviously doesn't deserve a trial or any other protections available to patriotic, law-abiding citizens."

* * *

The laptop and sat phone were planted. The Reaper is completely innocent. But he's at Gitmo being treated like an enemy soldier.

Still want to deny U.S. citizens their constitutional rights? Or are you guys going to try to rewrite your proposed new laws?

:D

BTW, my opinion is that I want to make life difficult for criminals and terrorists, but I do support many constitutional rights for criminal defendants. Until you've been accused, you may not appreciate how important they are.

[The Reaper]

Molon Labe!

If you catch me, you can have me.

The real issue is these people's "citizenship".

TR

[Roguish Lawyer]

Originally posted by Gypsy
Yes, Sir, I do.

I was blessed to be born in America and to enjoy the freedoms and rights afforded to me as a citizen, but never do I take them for granted. They were paid for long ago, and will continue to be paid for, by the Men and Women who give their blood, sweat and tears and sometimes their lives. Consequently I feel that I, and all citizens of America, have a responsibilty to be productive contributing citizens and positively impact society in whatever ways we can.

In this day and age, I fail to understand when a "citizen" plots terrorist activities against our Country how they retain their rights; they wish to destroy "the Infidel" but then expect due process to be afforded to them to protect their civil liberties. It is as if suddenly they are American Citizens once again. As far as I'm concerned these people give up their rights when they strike or plot against our Nation. Even more mind boggling for me is attempting to reason with those that feel the terrorists have more rights than the victims...real or intended. They give me a headache.

When a citizen is convicted of a felony, the citizen's rights are impaired. You lose the right to vote, for example.

[Roguish Lawyer]

Originally posted by The Reaper
Molon Labe!

If you catch me, you can have me.

The real issue is these people's "citizenship".

TR

OK, can someone tell me what "Molon Labe" means? :(

The last sentence is understood. The fact that TR was the wrongly accused person in my example does not mean I was replying to his post. I really was responding to a bunch of posts in the thread at the same time.

[NousDefionsDoc]

BTW, my opinion is that I want to make life difficult for criminals and terrorists, but I do support many constitutional rights for criminal defendants. Until you've been accused, you may not appreciate how important they are.

Right! Until you've been unjustly accused by the Man, you just don't know. What's the reason for unjust accusations?

http://www.professionalsoldiers.com/forums/showthread.php?s=&threadid=667

LOL - coppers need to quit playing GI Joe and get right.

:D

BTW, Sacamuelas is perpetuating the problem.

[Roguish Lawyer]

Originally posted by Surgicalcric
If a person takes up arms against their own countrymen they do not deserve the rights afforded them under The Constitution.

At what point has the person "taken up arms"? When the person is accused of it?

[NousDefionsDoc]

I'm going to go off on a little tangent here. I think one of the biggest problems is that the Gov doesn't want to tell the judges how they know XYZ dude is a terrorist, sympathizer, whatever. The same problem appears to be occurring with other branches of government, like Senators, etc. Why is that? IMO, because they KNOW there will be a leak. When's the last time we tried a major pwoer figure for leaking classified information? Damn Senator's aids running to the press, judges talking more than defense lawyers, etc. The whole thing has become a whore to the press.

If we can't trust a US District Court Judge with state secrets, he shouldn't be in the damn position. Same same with Senators.

[Solid]

One argument is that leaked secure information is more than just a problem in itself- it also allows the government to be increasingly minimalistic with the truth, while maintaining public support. Some say that instead of lying, the government simply says that pertinent information exists, but can't be exposed because of potential security hazards.

In my eyes, the lack of control over individuals- aides, judges, and most importantly the press- has created this problem. On the other hand, I think that a free press is generally beneficial (although often annoying), and is a hallmark of enlightened democracy. I'm not sure that laws can solve this problem, and that it instead relies on the morality of the government.


Solid

[ghuinness]

Originally posted by Roguish Lawyer
OK, can someone tell me what "Molon Labe" means? :(



I believe it means: "Come and get them" and dates back
to the Spartans. Don't know all the details.

I may be intruding, but isn't the thread slightly off topic?
I thought TR was questioning how and when a person
is granted "Citizenship" not how to revoke rights.

Further, I thought all residents of the USA were equal under
the law regardless of Citizenship. However, the status
of Citizenship grants people access to areas that are not
normally permitted in other countries. For example: serving
in the Military or Government.

my .02

[myclearcreek]

Originally posted by Roguish Lawyer
At what point has the person "taken up arms"? When the person is accused of it?


Which half of the country would have lost citizenship in the Civil War? Those who began the offensive? Those who defended themselves? All the above? I do not have the answer to RL's question, but it will be intersting to see how that is defined in this thread.

Rhonda

[Surgicalcric]

Originally posted by Roguish Lawyer
At what point has the person "taken up arms"? When the person is accused of it?

I am not sure I have the answer.

I simply feel there should be a way to try even those who have citizenship as an enemy combatant. Citizenship does not guarantee loyalty to the country in which one is a citizen.

[Surgicalcric]

Originally posted by ghuinness
...I thought TR was questioning how and when a person
is granted "Citizenship" not how to revoke rights...

The subject is citizenship.

The two items being discussed are, IMHO, different sides of the same coin.

[Roguish Lawyer]

Originally posted by Surgicalcric
I simply feel there should be a way to try even those who have citizenship as an enemy combatant. Citizenship does not guarantee loyalty to the country in which one is a citizen.

I have not read the Padilla decisions, so I don't know the facts. But there is a difference between a U.S. citizen being captured on a foreign battlefield on which he is fighting with our enemies (e.g. Lindh), on the one hand, and arresting a U.S. citizen in the United States on charges of treason or whatever (which I believe is the Padilla situation, although I'm not sure).

I am wholly in favor of making it easier to prosecute criminal defendants. The exclusionary rule, for example, is a bit out of control at the moment from what I understand. (The rule lets lots of bad guys go free when evidence was not properly acquired, even if the guy is definitely guilty and the crime is horrific.) But if I get arrested and charged with a serious crime, I want the government to have to prove me guilty before my rights are taken away from me. That's the only point I was trying to make with the TR hypothetical. You can't just assume people are guilty first. That is the essence of tyranny.

[Gypsy]

Originally posted by Roguish Lawyer
[B]
"The first thing we'll do is strip him of his purported citizenship under the newly enacted "Gypsy's Law," said Richard B. "Dick" White, III, the United States Attorney for the District of North Carolina. "This man obviously doesn't deserve a trial or any other protections available to patriotic, law-abiding citizens."


My own law! ;) Actually it was NDD who wanted to know if his citizenship could be stripped before trial. I guess I find it ironic that these enemy combatants who intend harm and destruction now wish to take advantage of the rights of law abiding citizens of the very country they are trying to destroy.

Edited for clarity

[Roguish Lawyer]

I have to get on a plane soon, but here are some links. I'll read the stuff later if I have time. You all can have a head start. ;)

http://supreme.lp.findlaw.com/supreme_court/briefs/03-1027/03-1027.pet.html

http://supreme.lp.findlaw.com/supreme_court/briefs/03-1027/03-1027.resp.pdf

[The Reaper]

Originally posted by Roguish Lawyer
OK, can someone tell me what "Molon Labe" means? :(


http://www.thefiringline.com/HCI/molon_labe.htm

"(mo-lone lah-veh)

Two little words. With these two words, two concepts were verbalized that have lived for nearly two and a half Millennia. They signify and characterize both the heart of the Warrior, and the indomitable spirit of mankind. From the ancient Greek, they are the reply of the Spartan General-King Leonidas to Xerxes, the Persian Emperor who came with 600,000 of the fiercest fighting troops in the world to conquer and invade little Greece, then the center and birthplace of civilization as we know it. When Xerxes offered to spare the lives of Leonidas, his 300 personal bodyguards and a handful of Thebans and others who volunteered to defend their country, if they would lay down their arms, Leonidas shouted these two words back.

Molon Labe! (mo-lone lah-veh)

They mean, “Come and get them!� They live on today as the most notable quote in military history. And so began the classic example of courage and valor in its dismissal of overwhelming superiority of numbers, wherein the heart and spirit of brave men overcame insuperable odds. Today, there lies a plaque dedicated to these heroes all at the site. It reads: “Go tell the Spartans, travelers passing by, that here, obedient to their laws we lie.�

We have adopted this defiant utterance as a battle cry in our war against oppression because it says so clearly and simply towards those who would take our arms.

It signifies our determination to not strike the first blow, but also to not stand mute and allow our loved ones, and all that we believe in and stand for, to be trampled by men who would deprive us of our God-given – or natural, if you will – rights to suit their own ends."

[ghuinness]

edited: Just saw RL's links (disregard).

[HQ6]

Originally posted by The Reaper
Molon Labe!

If you catch me, you can have me.


Promises... Promises.

Originally posted by Surgicalcric
I dont think it should matter whether or not a person is born here.

If a person takes up arms against their own countrymen they do not deserve the rights afforded them under The Constitution.

RL beat me to the punch. If we strip citizens of their Constitutional rights before due process, then what good is the Constitution? If we can go around willy nilly and deny rights to people we think are terrorists, I have a list for you. It starts with a cake baker by the name of...

Originally posted by The Reaper
Born here, specific number of years of satisfactory residency, followed by a citizenship test, or military service, like we do for adults?

Limited citizenship rights till then.

TR has an interesting point. It is kind of Starship Troopers -ish. I like it. Why should we get these rights just because the place of our birth is geographically desirable?

However, to put a crinkle in your plan, what is to stop an individual from being breed in this county, raised a model citizen, and even joining the military or civil service as a rouse to gain access to rights that only citizens do have? What then?

Or were you suggesting that we take a citizenship test at 18 years-old? Something similar to a driver's license?

Originally posted by myclearcreek
Those who defended themselves?

That would be the Southern States, right? ;)

[myclearcreek]

Originally posted by HQ6
That would be the Southern States, right? ;) [/B]


Hehe. Stop laughing at my broad and out-of-context example. It's the drugs talking. And it is amazing I can still type with this broken finger.

[Surgicalcric]

Originally posted by HQ6
...RL beat me to the punch. If we strip citizens of their Constitutional rights before due process, then what good is the Constitution? If we can go around willy nilly and deny rights to people we think are terrorists, I have a list for you. It starts with a cake baker by the name of...


I did not say they should have their right to due process denied. He should however be tried as an enemy combatant.

[HQ6]

Originally posted by myclearcreek
Hehe. Stop laughing at my broad and out-of-context example. It's the drugs talking. And it is amazing I can still type with this broken finger.

That sound like it needs to be in the Narco Terrorism thread. What is it Darvocet? Valium? Lithium? LSD? :eek: BTW if it is Lithium or Valium... pass some this way!

Haha! I am just giving you a hard time waiting for Ktek to surface with a picture of Sherman or TR to sue me for sexual harassment.

[HQ6]

Originally posted by Surgicalcric
I did not say they should have their right to due process denied. He should however be tried as an enemy combatant.

Ah, but he is a US Citizen. What process would you use to determine the difference between a US Citizen and an enemy combatant?

[myclearcreek]

Originally posted by HQ6
That sound like it needs to be in the Narco Terrorism thread. What is it Darvocet? Valium? Lithium? LSD? :eek: BTW if it is Lithium or Valium... pass some this way!

Haha! I am just giving you a hard time waiting for Ktek to surface with a picture of Sherman or TR to sue me for sexual harassment.


I am actually on maximum dose ibuprofen, lol. It does not take a lot of anything to knock me out. You'll be fine. Breathe deeply.....


Pics....this I have to see.

I agree with you, however - how do you decide between enemy combatant and U.S. Citizen? The Civil War question was posed as a ridiculously broad view of that.

[Surgicalcric]

Originally posted by HQ6
Ah, but he is a US Citizen. What process would you use to determine the difference between a US Citizen and an enemy combatant?

I dont think there is a need for a seperation. I think a US citizen can still be an enemy combatant. Once convicted, if they are convicted then their citizenship is revolked.

Main Entry: en·e·my
Pronunciation: 'e-n&-mE
Function: noun
Inflected Form(s): plural -mies
Etymology: Middle English enemi, from Old French, from Latin inimicus, from in- 1in- + amicus friend -- more at AMIABLE
1 : one that is antagonistic to another; especially : one seeking to injure, overthrow, or confound an opponent
2 : something harmful or deadly
3 a : a military adversary b : a hostile unit or force

As I said above, citizenship does not guarantee loyalty to the country in which one is a citizen. If a person's loyalty lies with the enemy then they are the enemy.

[myclearcreek]

From NDD's original post:

"His case involved fundamental constitutional questions about Bush's powers as commander in chief. It has pitted the government's national security arguments adopted after the Sept. 11, 2001, attacks against concerns that civil liberties have been violated."


At what point should his civil liberties be removed/altered? When he is accused? When he is convicted? I believe it must be the latter.

[Surgicalcric]

http://www.time.com/time/pow/article/0,8599,262269,00.html


Friday, Jun. 14, 2002
An al-Qaeda plot was broken up this week — a well-organized conspiracy involving hardened, well-trained bin Laden operatives taking instructions from the surviving operational core of the organization, with the know-how, experience and the means to kill dozens of unsuspecting Americans. And it was busted through timely cooperation by a number of different intelligence agencies.

That plot, of course, had nothing to do with Jose Padilla, or his notorious alter ego, Abdullah al-Mujahir. It concerned three Saudi Arabian al-Qaeda operatives recently relocated to Morocco, who had planned to use a rubber dinghy packed with explosives to attack U.S. Navy vessels passing through the Strait of Gibraltar. The reason you're probably only faintly aware, if aware at all, of the foiled Morocco plot is that the U.S. media has been dominated this week by a mug-shot of former Chicago gangbanger Padilla, and talk of "dirty bombs."

Padilla entered public life via an announcement from Moscow on Monday, by Attorney General John Ashcroft, that an al-Qaeda operative had been captured at Chicago's O'Hare International Airport, en route to contaminate a U.S. city with a radiological bomb. Within minutes panicky cable news channels were running file footage of mushroom clouds. They then spent much of the next two days atoning via a more sober explanation of dirty-bomb scenarios — and why they're not nearly as scary as they sound.

But as the (not quite radioactive) dust settled on Ashcroft's dramatic announcement, some began asking not only why Mr. Padilla, a U.S. citizen, was being held in a Navy brig as an "enemy combatant," but also why he was dominating America's headlines — and its nightmares. Within hours of Ashcroft's announcement, administration officials were pointing out that Padilla had no radioactive material or any other bomb-making equipment. Nor had he chosen a target, or formulated a plan. And while his connections with al-Qaeda operatives were never in doubt, he suddenly began to look a lot more like the accused shoe-bomber Richard Reid (i.e. another disaffected ex-con from the West desperate to get in with al-Qaeda) than like the sophisticated professionals who put together September 11.

Details, of course, are sketchy, but it appears that Padilla converted to Islam after a prison spell in Florida, and eventually made his way to Afghanistan or Pakistan to make common cause with al-Qaeda. According to the government's account, he approached them with the idea of detonating a "dirty bomb" in a U.S. city, and they obliged by teaching him to wire a bomb. The impression, in the government's own account, is of a former street hoodlum desperate to join a new gang — and being kept at arm's length. An outsider taught to build a bomb (what's not to like, for al-Qaeda, about a U.S. passport holder asking to be taught how to kill his countrymen?) but not necessarily integrated into the organization he was desperate to join. The fact that the authorities arrested Padilla immediately on his arrival in Chicago rather than following him around in the hope that he would reveal al-Qaeda operatives already on U.S. soil says volumes about how little may have known about the organization.

There are plenty of reasons to suspect that al-Qaeda keeps men like Padilla and Reid at arm's length: Ex-convicts from Western prisons are inherently unreliable as recruits, not only because of their dubious past (Bin Laden's men tend to be repressed puritans rather than penitent sinners) but also because they'd be prime candidates for recruitment by Western intelligence agencies. And because Western volunteers are generally converts, al-Qaeda would not have the community and kinship networks available to them in the Arab world to verify the credentials of men like Padilla. That would dictate that while they would be given training and logistical means to harm al-Qaeda's enemies, they would be kept away from information that, in the wrong hands, would harm the network.

Padilla got some instruction in bomb-making, and some cash. And al-Qaeda leaders reportedly discussed with him schemes ranging from "dirty bombs" to blowing up gas stations — discussions which some captive terrorist leaders appear to have shared with U.S. agents. So Padilla flew back to Chicago under U.S. surveillance, and into the waiting arms of the FBI. That was a month ago; the story broke this week because the authorities had to move him out of the criminal justice system and into military detention, for lack of evidence (at least evidence which the government would be willing to reveal to a judge) to support keeping him in prison. By week's end, the nation's focus was on the constitutional and legal challenges posed by denying a U.S. citizen the rights of due process, rather than the threat presented by Padilla's discussions and training. Unkind voices in Washington even drew attention to the fact that the timing of the announcement had helped the administration forestall criticism over the government's handling of intelligence and security matters.

And what has almost certainly been lost in the cacophony of a news week dominated by Jose Padilla, is the recognition that a major blow has been struck against al-Qaeda — in far-off Morocco.

________________________________

I would call him an enemy combatant.

[Roguish Lawyer]

Originally posted by The Reaper
http://www.thefiringline.com/HCI/molon_labe.htm

"(mo-lone lah-veh)

Two little words. With these two words, two concepts were verbalized that have lived for nearly two and a half Millennia. They signify and characterize both the heart of the Warrior, and the indomitable spirit of mankind. From the ancient Greek, they are the reply of the Spartan General-King Leonidas to Xerxes, the Persian Emperor who came with 600,000 of the fiercest fighting troops in the world to conquer and invade little Greece, then the center and birthplace of civilization as we know it. When Xerxes offered to spare the lives of Leonidas, his 300 personal bodyguards and a handful of Thebans and others who volunteered to defend their country, if they would lay down their arms, Leonidas shouted these two words back.

Molon Labe! (mo-lone lah-veh)

They mean, “Come and get them!� They live on today as the most notable quote in military history. And so began the classic example of courage and valor in its dismissal of overwhelming superiority of numbers, wherein the heart and spirit of brave men overcame insuperable odds. Today, there lies a plaque dedicated to these heroes all at the site. It reads: “Go tell the Spartans, travelers passing by, that here, obedient to their laws we lie.�

We have adopted this defiant utterance as a battle cry in our war against oppression because it says so clearly and simply towards those who would take our arms.

It signifies our determination to not strike the first blow, but also to not stand mute and allow our loved ones, and all that we believe in and stand for, to be trampled by men who would deprive us of our God-given – or natural, if you will – rights to suit their own ends."

Outstanding! There really ought to be some sort of archive for posts like this. "The Glossary"? "The Archive"?

[myclearcreek]

Excerpts from a related article (emphasis added):
http://www.time.com/time/nation/printout/0,8816,262065,00.html

How long can you detain a U.S. citizen?

But as someone who was arrested well outside a "war zone" (as defined by traditional rules of war, anyway) should Padilla be treated as a suspected criminal? Douglas Cassel, director of the Center for International Human Rights at Northwestern University Law School, thinks so. "Charges should be brought, a trial should be scheduled, and he should be allowed to see a lawyer," Cassel says. "They're maintaining they can hold him for the duration of the war on terror — which could easily be years, or even decades — without ever charging him with a crime."

...

So how will the U.S. deal with Padilla? What are the legal options? Monday Deputy Defense Secretary Paul Wolfowitz told reporters the government would consider trying Padilla in the federal system, but that assessment has not been seconded from higher up the chain of command. Alternately, Padilla could be tried by a military tribunal. But that option would require some backtracking at the White House. When the Bush administration established guidelines for military tribunals last November, they stipulated that no American citizen would be subject to trial by that method.


In my county, you cannot complete a history course without learning about Camp Howze, where German "POWs" were detained, many without any links to our enemies other than ethnicity.

http://www.eastmill.com/103rd/Kens%20copy%20site/pages/camphowze.html

I agree Padilla should be detained. However, I see the value of the argument.

[ktek01]

I liked Starship Troopers, good movie but I don’t think that type of system would ever work that well. Instead people would "volunteer" for the Army just to gain citizenship and they would just be counting the days before basic was even over. The regular line units and support units would suffer, and its bad enough now with those that just join for the college money, don’t need anymore of that kind. We do need to tighten up on granting citizenship, you shouldn’t be able to just slip across the border and give birth and expect that child granted to be granted citizenship. The rules against dual citizenship need to be aggressively enforced, and we should have a system in place to revoke citizenship for those that take action against the US. You join AQ or some other terrorist group, go overseas and train in one of their camps, you should be banned from even stepping foot back in the US. Sneak back in and you should be arrested and tried in a Military court as an enemy combatant. The crime should be joining the terror group in the first place, we shouldnt have to wait for you to actually commit a terrorist act.

Oh, and HQ6, not gonna happen. ;)

[HQ6]

Originally posted by Surgicalcric
I dont think there is a need for a seperation. I think a US citizen can still be an enemy combatant. Once convicted, if they are convicted then their citizenship is revolked.

Agreed. Once they have received due process and are convicted they should be stripped of the privileges of citizenship.

BUT he hasn't been convicted yet.

Note: Don't take this as me sympathizing with this POS. However, I do have a healthy fear of losing my rights to a fair trail by my peers.

[HQ6]

Originally posted by ktek01
Oh, and HQ6, not gonna happen. ;)

Scared of NDD, eh?

[Surgicalcric]

Originally posted by HQ6
... Once they have received due process and are convicted they should be stripped of the privileges of citizenship.

BUT he hasn't been convicted yet.

Note: Don't take this as me sympathizing with this POS. However, I do have a healthy fear of losing my rights to a fair trail by my peers.

I am in total agreement that he should receive due process. He should be charged and he should stand trial.

My argument is why cant he be tried as an enemy combatant; is it just because he is a citizen?

JD

[ktek01]

Originally posted by HQ6
Scared of NDD, eh?

Nah, just no point in pissing of people I like. :D

[HQ6]

Originally posted by Surgicalcric
I am in total agreement that he should receive due process. He should be charged and he should stand trial.

My argument is why cant he be tried as an enemy combatant; is it just because he is a citizen?

JD

Because as an enemy combatant, if I am reading this correctly, he does not have to be afforded due process:

From MSN (http://www.msnbc.msn.com/id/4313349):
Padilla was arrested on U.S. soil, and the initial allegations against him were aired in the civilian criminal court system. He was later whisked to a military prison in South Carolina, where he was denied contact with his lawyer or other outsiders for nearly two years.

I would prefer to see him tried for treason, but I am not an attorney. There may very well be reasons why treason would not apply in this case. RL would be the man to see on that one.

The following is totally hypothetical. My Ex would never do this, but the fact that he COULD fuels my fear:

My ex-boyfriend is a Deputy Sheriff with neighboring county. He gets vindictive on me, when he finds out I am getting married. He plants evidence of terrorist activities in my home/car/computer. He designs police software on the side, so this is entirely possible. Then he makes a call to the DHS. I am a US citizen, and I have done nothing wrong. Yet I will be incarcerated for two years and my life as I knew it would essentially be over with out the benefit of a trial.

[Surgicalcric]

HQ6:


Gotcha. I must have somehow missed that part.

[CSB]

Three notes:

FIRST:

It's not just a law that makes persons born in the United States citizens, it's the United States Constitution itself:

Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

And that is the document I took an oath many years ago to preserve, protect, and defend.

Whatever Padilla may have done or failed to do, he is at this time a United States citizen, with all of the rights and duties of a citizen.

SECOND:

If the Justice Department is allowed to seize an American citizen, within the United States itself, and hold him without a trial, without an attorney, or review by any court, then we might as well call off the election to be held the first Tuesday after the first Monday in November. The president can simply declare Kerry, Dean, Edwards, yes, even General Clark "enemy combatants" and lock them up incommunicado. After all, they pose a clear and present danger to the continued exercise of the president's authority as chief executive, right?


THIRD:

I don't think anyone can challenge my devotion to the United States (after 28 years of military service) but I'll probably anger some with my last observation:

John F. Kennedy was wrong when he said "Ask not what your country can do for you, ask rather, what you can do for your county."Adolf Hitler, Chairman Mao, and Joseph Stalin could not have said it better.

Americans would reject Kennedy's words if only slightly reprased: "Government does not exist to serve the people, the people exist to serve the government!"

What is the government here for if not to serve us? I have no problems informing an elected official that he is a public servant, he works for me, I don't work for him. That includes the President and the Attorney General.


Reaper: Great quote / great post. The message of the Spartans is reflected in a memorial for Viet Nam dead in the 2d Brigade area of Ft. Campbell:

"Traveler, if you go to the land of the Spartans, tell them we lie here, still obedient to their laws. Do not forget us, for only then will we truly have died."

[Solid]

CSB,
While I am in complete agreement with you on your general point, and appreciate the colorful example you used, the pedant in me wants to point out that 'country' and 'government' are distinct entities which are often related.
In my eyes, a country is like a box and 'government' fits inside that box. However, a government can be removed and changed while the country remains. Therefore, I think that your interpretation of Kennedy's speech is slightly off.

Otherwise, great post.

Solid

[Roguish Lawyer]

Originally posted by Roguish Lawyer
I have to get on a plane soon, but here are some links. I'll read the stuff later if I have time. You all can have a head start.

http://supreme.lp.findlaw.com/supreme_court/briefs/03-1027/03-1027.pet.html

http://supreme.lp.findlaw.com/supreme_court/briefs/03-1027/03-1027.resp.pdf

OK, I just skimmed through this stuff very quickly. A few observations:

1. The facts are a little bit different than I thought. Padilla was not just hanging out at home -- he traveled abroad to Egypt, Afghanistan and a few other places. He was arrested here, but at the airport when he got home. That's an important distinction. Dude appears to have been coming home to attack his fellow countrymen.

2. There appear to be some cases that help the government quite a bit. I have not read them, but they sound good in Olson's brief.

3. There appears to be a strong case for finding Padilla to be an enemy combatant. He traveled abroad, conspired and worked with al Qaida, then came home apparently to plan and implement attacks. In times of war, civil rights are reduced -- plenty of law on that subject. Given what appears to be a strong national interest here, Padilla's rights should be limited.

4. With the above being said, I still think that U.S. citizens should have some minimal level of due process. Change my TR hypothetical. He went on vacation in Turkey. He likes the coffee. Didn't meet with any terrorists. But he got framed, and he gets arrested at the airport on the way home. He's innocent. He needs some protection, even in time of war. I don't know what the military tribunals provide in this regard, but I think U.S. citizens should get more due process than foreigners, even if it is minimal.

5. The right to counsel issue is significantly affected by intelligence concerns. The national interest has to come first IMO.

OK, that was stream of consciousness. I reserve the right to refine my thinking later.

:cool:

[NousDefionsDoc]

conspired and worked with al Qaida

I didn't read the links yet, but if they presented evidence of this, especially after 9/11 but even before, that's all it would take for me to hold him indefinitely.

[Solid]

To play Devil's advocate a little bit-
Can we trust the government to double-check the integrity of information that cannot be publically revealed for security reasons?

Solid

[NousDefionsDoc]

Originally posted by Solid
To play Devil's advocate a little bit-
Can we trust the government to double-check the integrity of information that cannot be publically revealed for security reasons?

Solid

Right now, no I don't think so. There is too much politics in all three branches. I thought that was kind of the idea of the judicial branch not being elected, but I guess I was wrong.

Maybe what we need to do is have Special Terrorism Judges with security clearances. Colombia has that and I think Peru did too. Problem is, who would appoint them and how? It always comes back to politics.

[Solid]

In my International Relations class, one of the conditions of a fully working and stable democracy was transparency. Transparency: the ability to see clearly and coherently the inner workings of the governmental system. While in International Relations, transparency was normally addressed in an international sense, where disputes did not occur because there was no chance for governmental duplicity (this is a drastic oversimplification but does not pertain to the discussion), it was generally agreed that transparency is also required internally.

I think that one major problem in regards to this current adminstration is that regardless of the truth of various circumstances (OIF, for example), many of the government's statements and actions are popularly regarded as duplicitous. As such, while in reality this government has the same ability to misinform and decieve as many of its predecessors (if not all), it seems that its actions are seen as dubious because it is percieved to not have a 'clean record' when it comes to telling the truth.
Lies, half-truths, and poorly stated truths, all exacerbated by the press, have come back to bite this administration in the rear, in my opinion.

Solid

[NousDefionsDoc]

Solid,
I don't know how old you are, but this is nothing new. The left did it to Nixon, Reagan and the first Bush and the right does it as well. Its the nature of politics.

Transparency is an idea, and like all ideas, it is impacted by circumstances. I believe that we have undergone a revolution of political/military affairs and the system has not caught up - it may never catch up. We've had discussions about the constitution before. I still fail to see the insistence on applying a 200 year-old document that voices ideas verbatim to every situation that presents itself today. When most of these ideas, laws, etc., were first given voice, the US wasn't the world's superpower, it took months not hours to travel from the US to the ME, and there was no such thing as WMD.

Colombia used their normal criminal courts to sentence drug traffickers at first. And it worked. Until the drug traffickers used terrorism to impact the system at its weakest link, which was the judges. So they went to Jues Sin Rostro, judges without faces, they wore masks to conceal their identity. Who knows who was under that mask? But it worked rather well depsite that it wasn't at all transparent.

I think transparency is a good thing 90% of the time. But if giving the defense disclosure of classified sources and methods in order to protect the rights of an accused is going to cost the life of one little guy that was willing to give us information over there, its not worth it.

The only way I see to use the current system is to wait for trial until the classified information is no longer sensitive. But if we do that, we violate his right to a speedy trial.

What I would like to see if a special set of judges with clearances that could look at the government's case and say "Yes, it has merit, defendent is remanded to custody indefinitely or will stand trial in a military tribunal." Or "No, this case can be tried in regular court." There kind of is this group already, but they don't do this I don't think. Plus, you come back to a man or men using their judgement after being appointed by politicians. No way to win. If they disclose the classified information, they should be tried for treason.

[Solid]

9/11 85, but I have history books.
I agree with you. I just wanted to state the dilemma clearly to facilitate debate.

Thanks,

Solid

[Roguish Lawyer]

Originally posted by Solid
To play Devil's advocate a little bit-

Hmmmmmmmmmmmmmmmmm................................ ........

:D

[myclearcreek]

I skimmed both the Findlaw links last night and IIRC the intelligence which caused the detainment of Padilla as an enemy combatant was unsealed for the distinct purpose of allowing the Judge(s) to read it. The Judge, whose name escapes me, found there to be sufficient evidence to name Padilla an enemy combatant.

Rhonda

[NousDefionsDoc]

Originally posted by myclearcreek
I skimmed both the Findlaw links last night and IIRC the intelligence which caused the detainment of Padilla as an enemy combatant was unsealed for the distinct purpose of allowing the Judge(s) to read it. The Judge, whose name escapes me, found there to be sufficient evidence to name Padilla an enemy combatant.

Rhonda

That's what I'm talking about. Now, if the judge just doesn't try to get his "15 minutes" the system should be working. Of course if he's a Republican appointee...

[myclearcreek]

That was a short paragraph buried in the heap, NDD, and I am thinking it was weeks ago the opinion was written. Obviously, Padilla's attorney is appealing. I am getting better at reading these, but they can be very confusing. :confused:

[Roguish Lawyer]

http://www.cnn.com/2004/LAW/04/28/enemy.combatants.ap/index.html

High court hearing cases of detainees
Attorney says president overstepped his authority
Wednesday, April 28, 2004 Posted: 3:59 PM EDT (1959 GMT)

WASHINGTON (AP) -- The Supreme Court was told Wednesday that President Bush has overstepped his authority by jailing American citizens suspected of links to terrorism and denying them access to lawyers and courts.

Justices were hearing back-to-back cases about the detentions of a former Chicago gang member and the son of an oil industry worker from Saudi Arabia, in the court's most far-reaching review to date of individual rights and liberties in a time of terrorism and war.

"We could have people locked up all over the country tomorrow, with no opportunity to be heard. ... Congress didn't intend for widespread, indefinite detentions," Frank Dunham, the attorney for one of the detainees, told Justice Sandra O'Connor, who wondered whether the president was granted detention power when Congress approved the use of military force shortly after the September 11, 2001, attacks.

"Nowhere does the (statute) have 'detention' in it," Dunham said.

But Bush administration attorney Paul Clement argued that a president as commander in chief has wide latitude under constitutional law to detain suspected terrorists as "enemy combatants" if they pose a national security risk.

"It has been well established, and long established, that the government has the authority to hold unlawful enemy combatants ... in order to prevent them from returning to the field of battle," he said.

Yaser Esam Hamdi was born in Louisiana while his Saudi father worked there, but grew up in the Middle East. Jose Padilla is a convert to Islam who was born and raised in Chicago and spent time in prison.

Both are U.S. citizens.

The Bush administration says they also are "enemy combatants," dangerous enough to warrant open-ended military detention, perhaps for the duration of the open-ended war on terror.

The line for scarce seats in the courtroom to hear arguments began forming early Tuesday evening. Would-be spectators camped out in 40-degree weather, huddled in blankets and parkas.

Brian Swenson, 24, of Washington, said he came out to see "whether the Constitution can be manipulated."

"I'm sympathetic to Padilla," he said. "If you're locked up you ought to be given a trial."

The government is holding Hamdi and Padilla in near isolation at a Navy brig in South Carolina. Until recently neither had seen his lawyer or known that his case was before the Supreme Court.

Hamdi was captured weeks after the September 11 attacks. The government says he was fighting with Taliban forces in Afghanistan, home base of the al-Qaida terrorist network, and calls him a classic battlefield detainee.

He initially was housed with hundreds of alleged foreign fighters at a Navy base in Guantanamo Bay, Cuba, but transferred to the United States when authorities verified his citizenship claim.

Padilla was arrested two years ago in Chicago on suspicion of plotting to detonate a radioactive bomb. He was first placed in custody of civilian authorities, but was transferred to military detention in June 2002.

In legal filings, the Bush administration said it has unilateral authority to order enemy combatant seizures and detentions, even inside the United States, but added that Congress also signed off on that course. Congress approved use of military force a week after the terrorist attacks of September 11, 2001.

"Congress was acting in immediate response to attacks carried out within the nation's borders" when it voted to endorse broad White House authority to go after terrorists, administration lawyers argued in a court filing.

Lawyers for Padilla say Congress did no such thing and the White House has overstepped its authority.

"If the government's position were accepted, it would mean that for the foreseeable future, any citizen, anywhere, at any time, would be subject to indefinite military detention on the unilateral order of the president," their filing said.

The Bush administration won its arguments in lower courts in the Hamdi case, but lost a federal appeals court fight in the Padilla case.

The Hamdi and Padilla cases echo World War II-era cases about prisoners of war and war criminals, but also take the Supreme Court into uncharted waters. No one knows when the war on terror will end, and it is unclear if the justices will view it as a war at all.

The cases are the last the court will hear this term. Another arising from the government response to the September 11 attacks was heard last week. Lawyers for the foreign-born suspects held in the Guantanamo prison camp argued they should be give access to U.S. courts.

Rulings in all three cases are due by summer.

The cases argued Wednesday are Hamdi v. Rumsfeld, 03-6696, and Rumsfeld v. Padilla, 03-1027.

[Roguish Lawyer]

Wall Street Journal weighs in:

http://www.opinionjournal.com/editorial/feature.html?id=110005012

REVIEW & OUTLOOK

War and the Supreme Court
Will the Justices let the President do his job?

Wednesday, April 28, 2004 12:01 a.m. EDT

As the Supreme Court weighs the rights of the captured al Qaeda fighters whose cases will be heard today, we hope it won't forget the rights of the rest of us. Namely, Americans have the right to be protected against enemy attack.

This appears to be a more open question than it should be with the current High Court, whose sense of its own importance is such that it just might think it can do a better job of running the war on terror than an elected chief executive. For more than 200 years, the Supreme Court has deferred to the executive branch on matters of national security, especially during wartime, including decisions about how to define and handle the enemy. The test for this Court is whether it will show similar restraint.


The particulars of the cases to be argued today are by now well-known. Yaser Esam Hamdi was captured on a battlefield in Afghanistan with an AK-47 in his hands fighting alongside the Taliban. Jose Padilla was apprehended on a more modern battlefield: O'Hare Airport, where he had just got off a flight from Pakistan. U.S. officials say he was plotting with Osama bin Laden lieutenant Abu Zubaydah to explode a dirty bomb in the U.S.
Both are American citizens. Both have contested their detentions through habeas corpus--the right of citizens to petition a court for release under a claim of illegal imprisonment. The dispute is not over the facts. Rather, it is over whether the government has the authority to declare U.S. citizens enemy combatants and then hold them, if it deems it in the national interest, without trial and without access to lawyers until hostilities end.

It's worth noting that the Pentagon hasn't thrown Hamdi and Padilla into a black pit and forgotten about them forever more. The war on terror could go on for years, and the Defense Department has established internal checks and balances on their detentions, including frequent reviews. The press is also paying attention. Their interrogations complete, both now have limited access to lawyers. Both may eventually face charges when the government can make a legal case without compromising intelligence sources and methods.

A 2-1 panel for the Second Circuit of Appeals, writing in Padilla, said the executive branch has no authority to designate and detain enemy combatants. A unanimous Fourth Circuit, in Hamdi, said yes it does. In the words of J. Harvie Wilkinson, then chief judge: "Hamdi's status as a citizen, as important as that is, cannot displace our constitutional order or the place of the courts within the Framers' scheme."

What a quaint notion: "the place of the courts." The Founders may have thought they were creating three equal branches of government, but the modern judiciary has taken a more exalted view of itself. There is hardly an area of modern American life--political, social, cultural--into which the Supreme Court has not asserted itself as the ultimate authority. Think abortion. Or term limits. Or homosexuality.

The trend goes back at least 50 years, beginning with the Warren Court and accelerating during the Watergate era when the "co-equal" institutions of Congress and the Presidency came under attack. Since then the Court has gradually shed any sense of its own limitations. It has reached the point where it is difficult to imagine certain Justices--even Republican appointees Sandra Day O'Connor and Anthony Kennedy--bringing themselves to utter the words, "the courts must defer to elected officials."


Last week's oral argument in the case of non-Americans being held at Guantanamo was not encouraging. At issue was whether the 600 detainees seized in Afghanistan and Pakistan during operations against the Taliban can have access to the federal courts through habeas corpus petitions.
The questions from the bench--Justice O'Connor's especially--suggest that the Justices are inclined to let the courts step in. If so, for the first time in U.S. history foreigners captured and held outside the country could ask a federal judge to review their status. Thousands of detainees in Iraq and Afghanistan could be affected. Perhaps Saddam Hussein would like to submit a habeas petition to the Ninth Circuit?

The outcome of Hamdi and Padilla is equally important and potentially just as disruptive of the President's ability to wage war. In an age when a single terrorist has the potential to cause thousands of American deaths, the task of identifying and detaining the enemy is more critical than ever. Imagine if the federal government had to argue its way through an ACLU petition and the courts every time it wants to detain someone as an enemy combatant. The delay and disruption could cost lives.

To put it another way, these cases present the clash of two Constitutional principles--the right of judicial review colliding with the Presidential obligation to protect and defend America. Throughout U.S. history, the courts have deferred to the executive on matters of war and national preservation. If a President does overstep his powers, at least he is accountable to voters through the ballot box. Judges appointed for life are not.

In an era when the concept of "rights" has come to mean individual rights only, the idea that collective rights might take precedence over those of an individual can be a difficult notion to grasp. But it's the issue at the heart of any discussion of civil liberties in wartime, and the war on terror is no different. The ultimate civil liberty is the right to life.

[Roguish Lawyer]

Lots of info just released by DOJ today. Too much to copy and paste here, but here is a link:

http://www.cnn.com/2004/LAW/06/01/comey.padilla.transcript/index.html