Supreme Court will Hear Padilla Case

[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................................ ........

[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.

[Roguish Lawyer]

http://www.cnn.com/2004/LAW/04/28/en....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/editor...l?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/co...ipt/index.html