The ninth circus in action again

[eisely 13]

This story addresses the two rulings that came down from Federal District Appeals Courts on Thursday. The Padilla case is troubling and deserves serious scrutiny, but the ruling by the Ninth Circus that the detainees at Guantanamo are entitled to lawyers is both stupid and dangerous. This is a ruling only the ACLU could love, as is indicated in the story.

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Court Rulings Slam Bush's Terror Strategy

Fri Dec 19,10:00 AM ET

 

 

By DAVID KRAVETS, AP Legal Affairs Writer

 

SAN FRANCISCO - Two federal courts ruled that the U.S. military cannot deny prisoners access to lawyers or the American courts by detaining them indefinitely, dealing twin setbacks to the Bush administration's strategy in the war on terror.

 

One of Thursday's rulings favored the 660 "enemy combatants" held at the U.S. naval base at Guantanamo Bay, Cuba. The other involved American citizen Jose Padilla, who was seized in Chicago in an alleged plot to detonate a radioactive "dirty bomb" and declared as an enemy combatant.

 

In Padilla's case, the New York-based 2nd U.S. Circuit Court of Appeals ordered the former gang member released from military custody within 30 days and if the government chooses, tried in civilian courts. The White House said the government would appeal and seek a stay of the decision.

 

In the other case, a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals ruled that prisoners held at Guantanamo Bay Naval Base should have access to lawyers and the American court system.

 

The White House said the ruling was inconsistent with the president's constitutional authority as well as with other court rulings.

 

"The president's most solemn obligation is protecting the American people," White House press secretary Scott McClellan said Thursday. "We believe the 2nd Circuit ruling is troubling and flawed."

 

An order by President Bush in November 2001 allows captives to be detained as "enemy combatants" if they are members of al-Qaida, engaged in or aided terrorism, or harbored terrorists. The designation may also be applied if it is "the interest of the United States" to hold an individual during hostilities.

 

The Justice Department this week said such a classification allows detainees to be held without access to lawyers until U.S. authorities believe they have disclosed everything they know about terrorist operations.

 

But Padilla's detention as an enemy combatant, the New York court ruled 2-1, was not authorized by Congress and Bush could not designate him as an enemy combatant without such approval.

 

Michael Greenberger, a University of Maryland School of Law professor and former Clinton administration Justice Department official, said the government "is being painted into a corner that is not very favorable. How bad of a corner will be determined by the U.S. Supreme Court."

 

The court, Greenberger said, did not address the broader question of whether constitutional rights would be violated if Bush had congressional authority to designate somebody as an enemy combatant.

 

Padilla, a convert to Islam, was arrested in May 2002 at Chicago's O'Hare airport as he returned from Pakistan. Within days, he was moved to a naval brig in Charleston, S.C. The government said he had proposed the bomb plot to Abu Zubaydah, then al-Qaida's top terrorism coordinator, who was arrested in Pakistan in March 2002.

 

In ordering his release from military custody, the court said the government was free to transfer Padilla to civilian authorities who can bring criminal charges. If appropriate, Padilla also can be held as a material witness in connection with grand jury proceedings, the court said.

 

Padilla's lawyer, Donna Newman, did not immediately return a telephone message for comment.

 

Chris Dunn, a staff attorney with the New York Civil Liberties Union, called the ruling "historic."

 

"It's a repudiation of the Bush administration's attempt to close the federal courts to those accused of terrorism," Dunn said.

 

Thursday's 2-1 decision out of San Francisco was the first federal appellate ruling to rebuke the Bush administration's position on the Guantanamo detainees who have been without charges, some for nearly two years. The administration maintains that because the 660 men confined there were picked up overseas on suspicion of terrorism and are being held on foreign land, they may be detained indefinitely without charges or trial.

 

The Supreme Court last month agreed to decide whether the detainees, who were nabbed in Afghanistan and Pakistan, should have access to the courts. The justices agreed to hear that case after the U.S. Court of Appeals for the District of Columbia ruled that the prisoners had no rights to the American legal system.

 

"Even in times of national emergency indeed, particularly in such times it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike," Judge Stephen Reinhardt wrote for the majority.

 

Stephen Yagman, the Los Angeles civil rights lawyer who filed the suit on behalf of Libyan detainee Faren Cherebi, said if the decision survives, the government "has to put up some evidence that there is a reason to hold these people and charge them, or give them up."

 

Justice Department spokesman Mark Corallo said the government's position is that "U.S. courts have no jurisdiction over non-U.S. citizens being held in military control abroad."

 

The Defense Department announced Thursday that the Pentagon had appointed a military defense lawyer for a terrorism suspect held at Guantanamo. Salim Ahmed Hamdan of Yemen becomes the second Guantanamo prisoner to be given a lawyer. Australian David Hicks got a lawyer earlier this month and recently met with an Australian legal adviser.

 

Associated Press Writer Larry Neumeister in New York contributed to this story.

 

 

 

[ScouterPaul 11]

eisley,

At this time I will only comment on the Padilla case. The last time I studied the structure of our government I understood that the Presdident was in charge of the Executive Branch and thus was charged with enforcing the laws as established by Congress. What Bush has done in the Padilla case is an obvious violation of Padilla's constitutional rights. It is a sad day when a U.S. citizen can be held without being told why he is being held and having no access to legal counsel. The criminal courts are the only place to prosecute Padilla.

[nldscout 18]

I have to agree with scouterpaul, as a US citizen, I would hope someone protects my rights. However as to the persons held at Gitmo, they got what they deserve. The liberal judges need to pack thier bags and go home and find some other cause to worry about.

[LovetoCamp 9]

Most US citizens aren't actively in bed with Al Quaida plotting to release NBC weapons on major US cities. They should've stretched his neck!

[le Voyageur 72]

GWB's war on terrorism will, in the future be looked back on by historians as a dark day in American history where a President trashed not only the Consitution for political gain, but deliberately jeopardize the safety, and well being of every member in uniform by violating international treaties on the treatment of POW's.

Additionally, this period will also reflect Congress's inability and/or lack of backbone to make a formal declaration of war to legitamize GWB's crusade. Until there is a formal declaration of war by Congress then the Detainee's at Gitmo cannot be considered enemy combants nor POWs, but simply kidnapped foreign nationals who were captured while defending their homeland from an aggressor nation...

Until this administration learns to operate within consitutional boundries, then the terrorist have won the war, and we are no longer safe from the aggresions of our own government...

[eisely 13]

I was not sufficiently clear in my original comment. I too find the administration's actions in the Padilla case troubling. It is the ruling by the ninth circus about the detainees at Guantanamo that I think is stupid and dangerous. There are two separate cases discussed in the article.

[Fat Old Guy 11]

The important distinction is that Padillia was declared an enemy combatant. This is that same as if an American joined the German army during WW II and then was captured. Different rules apply.

 

You can't throw your lot in with the enemy and then cry that you want the protections of the government that you were trying to destroy.

 

 

[eisely 13]

The problem with the Padilla case is that it opens the door to the government to declare anybody, including US citizens arrested in the US, an "enemy combatant" and deprive such persons of due process and hold them indefinitely.

 

True enemy combatants captured on the field of battle, such as those in Guantanamo, can be held until the end of hostilities. In a case such as WWII or even Viet Nam, there was a clear end to hostilities, at least for the US. Anybody care to predict whent the "war on terrorism" will end? We haven't seen any attacks on US soil in over two years, but there is still plenty going on elsewhere.

 

It seems to me that Mr. Padilla is entitled to some sort of resolution that the people in Guantanamo are not entitled to. The ninth circus is way out of line in asserting jurisdiction over the detainees held at Guantanmo, much less claiming that they are entitled to attorneys and all the rights and processes of the US legal system.

[acco40 95]

Please show respect and refer to the "circuit" court.

 

In my area of the woods, southeast Michigan, we have the nations largest concentration of Arabs. Many were rounded up and branded as "enemy combatants." I'm sure some were and a very small minority were not. The problem is, the U.S. Government can hold them, without charges, indefinately. This is wrong in my book. In these extraordinary times, I could see allowing the Government to hold for a set period of time, maybe 90 days or less, but if no charges are brought forward the detainees should be released. Also, if immigration violations are found, prosecute! But to hold with no charges until the "war on terror" is over (will it ever be over?) is unjust.

[Fat Old Guy 11]

"Please show respect and refer to the "circuit" court."

 

Why? The Ninth Circuit is indeed a circus.

 

" I could see allowing the Government to hold for a set period of time, maybe 90 days or less, but if no charges are brought forward the detainees should be released."

 

So you would also release enemy soldiers after 90 days?

[acco40 95]

No, I would not release enemy soldiers after 90 days. That is not the question.

 

The question FOG, is what constitutes an "enemy soldier?" Let's say Mr. Ashcroft came in and detained Mr. Fat Old Guy. Should his claim that your are an enemy soldier be enough to detain you as long as he wishes or should Mr. Ashcroft be burdened with showing some sort of evidence that your are indeed an enemy soldier? Should his evidence, if any, need to be shown in a public court? Only a military court? Not at all?

[eisely 13]

acco40

 

Like most folks, most of what I know I get through various news sources. I try to listen and sort out the information and assign credibility to the various reports. I always understood that all the initial arrests after 9/11 were as "material witnesses". Very few people have been designated "enemy combatants" who were arrested in the United States proper. The few of whom I am aware who have been convicted of anything at all were all convicted in civil courts through plea bargains. It is also my understanding that very few, if any, of the original detainees within the US are still being held with the likely exception of violators of immigration laws.

 

Does anybody have any better hard current information?

 

Concerning the ninth circus, I will continue to refer to that particular court in that manner. It is disrespectful, but then if I were charged with contempt of that particular court, I would just have to plead guilty. It is the most frequently overturned appeals court in the US.

[acco40 95]

Of course, those who wage battle against the United States, US citizens or not, can be labelled as enemy combatants and incarcerated. I have no problem with that. But let's say Bush/Ashcroft accuse Dean of being an enemy combatant because he opposed the war in Iraq and accuse him of giving moral support to Hussein's Fedayeen (sp?) warriors. Now, Dean is taken to Gitmo and not afforded any legal representation. Bush then promises to release him right after the War on terror ends. Is this scenario possible? No, of course not. I just wanted to point out that to my knowledge there is no real criteria for putting the enemy combatant label on someone.

 

Now the bigger questions are what does this have to do with Scouting and why am I responding? Don't have any good answers to that.

[LovetoCamp 9]

To refer to the President of the United States as Bush/Ashcroft and then ask others to be respectful to the 9th Circuit Court has got me chuckling. I say to you Dean/Padilla huggers, Thank God you're here, active on this thread instead of active in politics. Whew!!!

 

Padilla isn't innocent. He's a terrorists. That's worse than a spy and spies are shot. Bang! Game over.

 

 

[eisely 13]

The paramount responsibility of the President of the United States is to see to the safety of the republic. In times of war civil liberties are compromised. Let us remember that we were attacked on our own soil and over 3,000 people died. The guys who organized and financed that would love to do the same thing again. So far I think the Bush administration has struck a good balance between defending the US and respecting the rights of citizens and legal residents and visitors.

 

As another commentator has written, the most unfortunate thing about the Patriot Act passed after 9/11 is its name. This law really did not grant a whole lot of new powers to the executive branch, but cleared up some confusion. Among other things it authorized wire taps on individuals, not just specific telephone numbers. Given the ease with which people get cell phone accounts, I think that is a good thing.

 

Probably the one group in the US that has gotten the most hysterical about all this is the association of professional librarians. Government agencies at all levels have always had the power to investigate records of all kinds, including medical records (e.g., Rush Limbaugh) and library records, if there was probable cause to do so. Many librarians have seen this idea as a major invasion of the privacy of their patrons. Maybe so. How many times has the Dept. of Justice sought such records since 9/11? Care to guess? Zero. I wish the librarians were as concerned about the use of library computers by underage youth to surf the internet for pornography. I wish they were as concerned about Castro's recent treatment of the independent library movement in Cuba.

 

But I digress....