Supreme Court will Hear Padilla Case

[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...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/prin...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%2...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.

[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:

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/suprem...-1027.pet.html

http://supreme.lp.findlaw.com/suprem...-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.