As Ghostdancer points out, critical parts of the constitution have just been overturned.
The decision by the U.S. Court of Appeals for the 4th Circuit came in the case of Jose Padilla, a former Chicago gang member who was arrested in Chicago in 2002 and designated an “enemy combatant” by President Bush.
Washington Post
Padilla is accused of conspiring to blow up apartment buildings. Kind of like Putin did in Moscow (then blaming it on the Chechens, and launching a second war in the former soviet socialist republic).
Here’s my question: how the fuck do we know whether Padilla intended to bomb apartment buildings? Obviously the government doesn’t have enough evidence to win a prosecution in a court of law. If they come arrest me and accuse me of having some plan to do American’s harm, how will you know whether they are telling the truth? How will you get me out of jail?
Padilla’s case will be appealed to the Supreme Court. If the court agrees to hear the case, and I suspect they will, there is a chance the one of the same judges that ruled on this case will be ruling on the case again. Will he have to recuse himself? Should he have recused himself from this appeals ruling?
So, how did Luttig reconcile the indefinite detention of an American citizen without charges? I mean let’s look at the constitution:
Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…
Sixth Amendment:”In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
Luttig argues that these important constitutional principles have been rendered inoperative by a clause in post 9/11 legislation:
It should be impossible to pass a resolution, bill, or anything else that violates the constitution. Furthermore, he may have entered the country to commit a crime, but he has the right to enter the country because he is a fucking citizen. And, how can the court rule that his avowed purpose was to prosecute war without giving us any evidence to back up their allegation? This is simply trampling the fifth and six amendments.
In my opinion, this ruling is totally irresponsible and the most threatening thing to happen under the Bush administration. The fact that the judge who wrote this opinion is on the short-list for a Supreme Court nomination is incredible.
More exploitation of 9/11 in furtherance of Bush’s drive to take over the world. Due process is thrown out the window and justified by insinuating a paranoia about terrorism into the American psyche. And this:
The ruling by a three-judge panel limits the President’s power to detain Padilla to the duration of hostilities against al Qaeda, but the Bush administration has said that war could go on indefinitely.
So there is no time limit! Yikes!!!
Bush just declared a war on hurricanes and began rounding up meteorologists!
To me, this is a more grevious concern than the ineptitude displayed by the wing-nuts in their response to Katrina. You asked a very fundamental question. What is to stop them from declaring any of us enemies of the state, and denying us the Constitutional protections enshrined in the 4th, 5th and 6th amendments. The right to counsel, right to a trial by jury, right to due process of law — these are the only things protecting us from the awesome power of the State. At least they were the only things. I still have some glimmer of hope that even the conservative Supreme Court will not let this stand. But, then again, little suprises me here in post-9/11 America.
till they get Roberts and Gonzales (or Luttig himself) on the SC.
The Bush regime has no regard for real democracy or our constitution at all. The central theme they follow is authoritarian in every respect, despite all the grandiose rhetoric to the contrary.
knocking on the door people, they are hear and multiplying like vermin on a homeless derelict. These scum are going to trample our Constitution into the ground and set up their Theocratic/Corporate/Fascist state, where only those who have money will be allowed to participate in the Government.
The rest of us will relegated to serfdom, slave labor or worse. I weep for the destruction of my nation and my people.
deja vu
knocking on the door people they are here and trampling our beloved Constitition into the Abyss. They are striving to develop and implement a Theocratic/Corporate/Fascist government controlled and organized around the Corporate churches and business.
The rest of us are simply fodder for their wars and corporate business. Slaves to be used and cast off like Bushco did to the people of the Gulf coast.
These fascists care little for anything other than their own self interest and power grabbing.
I weep for my nation and my people.
Dan Gillmor is with you, BooMan.
They are all cashing in, taking as much of the national treasury as they can line their fucking pockets with, before the house of cards completely collapses.
there are 535 members of both houses of congress and there are not more than 30 mmembers if that, who give a damn whether or not the rest of us survive bush. They are stealing and pocketing as much as they can, as fast as they can, so they can ride out the storm in some safe non extraditionable country. While the US turns into a third world dictatorship and all of our rights are completely stripped from us.
The interesting aspect of the decision is that the 4th Circuit rejected the MUCH SCARIER BUSH ARGUMENT: that the President had the power to detain absolutely anyone as an enemy combatant as an inherent power of being commander in chief – no Congress required.
The 4th Circuit said they don’t have completely unbridled power, but they could get the same power from the fig leaf of a Congressional resolution authorizing the use of military force. So Bush can’t declare himself Emporer, but a Rethuglican Congress can.
This is where the Judiciary is supposed to step in and draw the line – telling the President and the Congress that they have gone too far. Alas, the 4th Circuit has never been a big fan of individual rights. Hopefully a majority on the SCOTUS remembers why we have THREE branches of government.
Which is why they want to get Roberts and Gonzales/Luttig/Jones/whoever confirmed ASAP.
why Dems must fillibuster anyone who supports putting the President above the law – beginning with Roberts – if we want to come out of this period with anything even remotely resembling a republic.
Let me get this straight: The superior court decided that a piece of legislation passed by congress, has the power to alte the Constitution (such that no less than 3 amendments have been ignored/considered invalid in the case of Jose Padilla), and one of those judges that made the decision today is a likely candidate for the supreme court, where he may rule on the same case again when it is appealed?
Didn’t altering the constitution used to involve a whole amendment/ratification process, whereby each state needs to vote on it’s approval?
And the worst thing is, we the citizens are complicit through our silence. Between this and the appalling lack of response to Katrina, I’m ashamed. People in the Ukraine know more about democracy than we do.
The Consititution is what the judicial system says it is. All our system needs is the right justices and it can become radically different.
This is necessarily a permanent repeal of rights.
Terrorism is by definition an action of individuals. Since every human on the planet is a potential terrorist, there can never be an end to “war” on terror so long as there are humans capable of acting individually. There can be no criteria for victory, there can be nobody trustable to sign an instrument of surrender.
The only out is some kind of minor insurrection on the right willing to ally with the left to pass a Constitutional ammendment defining “war” in such terms that wartime powers cannot be permanent and eternal.
They had a Constitution no one paid any attention to also.
It’s funny you should say that.
I just bought a hybrid the other day.
The salesperson was a man who had spent half of his life in the Soviet Union and half here (he came to the U.S. in ’85).
He was shocked at how willing we are to let our rights get eaten away. He was also amazed at how few of us vote.
and FOX = Pravda
Flipping back and forth between NPR and BBC’s Katrina coverage, I became convinced beyond any doubt that NPR was Pravda. It was seriously frightening. (Obviously I’m not literally saying forget about Fox; it’s a figure of speech.
If we have enough to prosecute him – do so. If not, but there is reasonable suspicion that he may intend to commit a crime, let him go and keep a close watch on him. There is no fricking reason why basic rights should be jettisoned to fight terror. It’s not as if there aren’t often people at liberty who are likely to commit crimes. I don’t see why terrorism should bet e any different. You get court orders for phone taps. You put cops on their tail etc. Sure that might fail, then again it might lead you to co-conspirators and foil a terrorist attack.
…he may have entered the country to commit a crime…
Let me start by stating that I understand that booman is not stating this to be a fact, but is explaining the government’s argument.
Now, this is an insane assertion. They are predetermining what his intent was. They are telling us, and his attorneys, as well as him what was in his mind! HIS MIND! Even if the intent was in his mind, are we to believe that the contents of our minds has now become cause for arrest? If so, slap the cuffs on every human being in America! The last person left will then need to arrest his/herself.
This is so absurd that it defies its own absurdity. Douglas Adams couldn’t write this level of judicial satire if he were alive.
Without the benefit of a trial this man is indefinitely behind bars for thoughtcrime people!
And sadly, the appellate court is using Katrina as the cover to announce this torrid and unconstitutional ruling!
Read the opinion and you will see that Padilla stipulated to certain facts in order to try to obtain summary judgment. Thus, the Court was presented with undisputed facts that included that Padilla DID IN FACT take up arms with al-Qaeda against the United States and DID IN FACT reenter the United States with the intent of blowing up apartment buildings.
Given those facts, how is this opinion wrongly decided? I completely understand why non-lawyer liberal-minded folks like those around here whom I respect tremendously would be up in arms about this, but you have to read the opinion carefully and understand the context behind the opinion.
I will read the decision as soon as I get a chance.
However, what does it mean to stipulate to certain facts after 3 years of detention in order to get a ruling?
It may limit the risk to random americans, so it’s an important point you are making. But from Padilla’s point of view, it doesn’t seem like we can take his stipulations at face value.
Padilla (i.e., his attorneys) stipulated to certain facts for purposes of this motion only. We do this all the time. In other words, we are saying EVEN IF the facts are X, Y, and Z, we win anyway because the law says [fill in argument]. Usually it is done to obtain victory without having to go to trial.
I do not know whether these stipulated facts are true or not, and neither did the 4th Circuit in making this ruling. The point is that the Court was presented with certain stipulated facts, and limited its ruling to those facts. In short, this ruling has no affect on anyone who isn’t taking up arms with our enemies.
Now, the much more important problem is HOW a person is declared an enemy combatant. Here is where I believe there has to be due process and where the Bush Administration has gone horrifically wrong, and the Supreme Court has already agreed and required all persons declared enemy combatants to be afforded at least some modicum of process so that the President does not have unilateral authority in this regard. This is the issue that was focused on by 60 Minutes some time ago.
Thank you for that explanation.
By the way, one more comment here.
Note that, from what I was told, two Clinton appointees joined in the decision. That’s probably because the decision is rightly decided on the facts presented.
in fact are not self serving self appointed guardians of the reichwing fascists a sincere apology.
I allowed my prejudice to heat my brain to a point of speaking in a manner that is truly inconsistent with my belief system.
I hope that you accept this apology and know that I believe there are legal minds that truly believe that our Constitution is a living breathing instrument to further the freedom of human beings not just in the US but in the world.
Again, my prejudice for whatever reason was not warranted nor deserved by you and I ask that you forgive me for my assault upon your profession.
Thank you
Ghostdancers_way
Just a question from a non-lawyer: Wouldn’t Padilla’s stipulating to certain facts be akin to a coerced confession, and isn’t that illegal? After all, he was being held indefinitely without charges, and I would think he was desperate for any chance to get to a court, as there’s seems to be no evidence that he had actually done anything wrong.
I have to confess I’m aware of the circumstances of his case, but not the details…
I would not equate it to a coerced confession. I don’t know the circumstances behind the stipulation, but it was done with many lawyers on his side. His lawyers saw an opportunity to win even if they conceded these facts, and took that opportunity.
This is not an end to the case, it is only an end to one specific argument (and even that can be appealed to the Supreme Court, but I’m almost certain he will lose).
The question is whether the Authorization for Use of Military Force Joint Resolution (AUMF) enacted Sept. 18, 2001, allows the President to militarily detain a U.S. citizen who has been taken into custody on U.S. soil. As the U.S. Court of Appeals for the Second Circuit ruled back in 2003, it doesn’t.
Here’s what the AUMF says:
appropriate force against those nations, organizations,
or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred
on September 11, 2001, or harbored such organizations
or persons, in order to prevent any future acts of
international terrorism against the United States by
such nations, organizations or persons.
Doesn’t say a damn thing about detention. The Second Circuit found that to be important because 18 U.S.C. § 4001(a) says this:
According to the Second Circuit:
Long story short, if Congress is going to authorize detentions of American citizens, it has to specifically authorize detentions of American citizens. Otherwise, detentions are not allowed under § 4001.
The Fourth Circuit opinion doesn’t even cite § 4001.
Now why, you might ask, is the Fourth Circuit deciding this case when the Second Circuit already issued an opinion finding that Padilla was being unconstitutionally detained? Well, the Supreme Court found that the Second Circuit didn’t have jurisdiction over the case because Padilla was being held in a brig in South Carolina. He’s been held without trial since 2002. Apparently he can be detained as long as the “War on Terra” continues–i.e., as long as the “duration of hostilities” covered by the AUMF goes on. Or until he manages to prove that he’s not an enemy combatant–i.e., guilty until proven innocent.
Links to text of relevant cases here.
supercede The Constitution.
Mr. Luttig has made it clear that he has a poorer understanding of American civics then I do. If it can be argued that this resolution attempted to trump Constitutional Rights then the resolution is unconstitutional by definition. It therefore should have been sruck down by Mr. Luttig and the rest of the court not upheld.
If the congressional resolution is legal and therefore does not suspend American rights as guarenteed in the Bill of Rights then Mr. Luttig and the rest of the court have clearly not shown the ability to understand congressional resolutions (having read a few of those I am less inclined to hold that as damning evidence against them).
In any event the Constitution of the United States of America clearly shows this behavior by the government to be outlawed. The government is wrong. The court is wrong. Whether Mr. Padilla is wrong or not becomes irrelavent in light of unconstitutional behavior on the part of the government and court.
We’re only 1 ruling short of this being settled Constitutional law aren’t we? Aren’t we depending ultimately on the George Bush Court to rule against his government?
It matters… please see this response to Alohaleezy:
http://www.boomantribune.com/comments/2005/9/9/18414/89613/9#9
Apparently Mr. Luttig is willing to overturn the doctrine of judicial review from the precedent in Marbury v. Madison. No wonder the Liberty Bell cracked when John Marshall died.