posted on June 20, 2002 07:48:32 AM new
......it is encouraging to see cool, objective reasoning surfacing more often in the midst of so much power-grabbing propaganda, and also in more direct language. The bolding in the concluding paragraph is my own, of course.
The I-Said-So Test
Thursday, June 20, 2002
"A court's inquiry should come to an end once the military has shown ... that it has determined that the detainee is an enemy combatant. ... The court may not second-guess the military's enemy-combatant determination."
THESE WORDS were not written by some petty dictator whose kangaroo courts rubber-stamp his every whim and whose whims may include locking up citizens he regards as enemies. They were filed yesterday by the U.S. Department of Justice before the 4th Circuit Court of Appeals in Richmond in the case of Yaser Esam Hamdi. Mr. Hamdi is probably an American citizen, captured in Afghanistan and currently held without charge at a military base in Norfolk. He is not a sympathetic character, but that should not obscure the extraordinary power President Bush is claiming for himself in Mr. Hamdi's case: the right to detain without trial American citizens forever with no meaningful judicial review.
The government's aggressive position in this matter is unnecessary. There is little doubt a court would find Mr. Hamdi, as the government alleges, an enemy combatant, and there is clear precedent for holding such combatants even if they are U.S. citizens. It is unclear how such precedents should be applied in the context of an undeclared war of indefinite duration against a non-state actor, a subject that will require careful balancing over time. But only the most doctrinaire civil libertarian would demand the release at this stage of someone bent on doing great harm to this country.
But instead of establishing in court that Mr. Hamdi is being held lawfully, the government is fighting with all its strength to keep Mr. Hamdi from challenging his detention at all. For starters, it is holding him incommunicado and has prevented him from talking to a lawyer -- contending that access to counsel would interfere with his interrogation. When Federal Public Defender Frank Dunham sought to challenge Mr. Hamdi's incarceration for him, a judge ordered that he be allowed to speak to Mr. Hamdi. But the government persuaded the 4th Circuit to step in, arguing that Mr. Dunham -- never having met Mr. Hamdi -- could not properly file an action on his behalf; a classic Catch-22, since the government won't let him meet his would-be client. Mr. Dunham responded by filing an action on behalf of Mr. Hamdi's father. The judge once again ordered that he be allowed to meet with Mr. Hamdi. But the government asked the 4th Circuit to intervene again.
In its argument this time, the Justice Department acknowledges formally that the courts retain the authority to review a petition challenging the legality of a citizen's detention -- a basic tenet of U.S. liberty. But it contends that military detainees, even citizens, have "no right of access to counsel to challenge their detention." Moreover, the role of the courts in considering any challenges is "extremely narrow"; generally, a court "should accept the military's determination that a detainee is an enemy combatant." At most, "a court could only require the military to point to some evidence supporting its determination." The court cannot look beyond the evidence the government claims to have.
If this is correct, any American could be locked up indefinitely, without a lawyer, on the president's say-so.You don't have to believe that Mr. Hamdi is innocent to see grave peril in this.The Constitution's checks and balances don't contemplate blind trust in the wisdom or good faith of the president.And the courts must not acquiesce in Mr. Bush's claim that they are powerless to ensure the lawfulness of presidential behavior.
posted on June 20, 2002 09:56:26 AM new
In that case at least the person was associated with foreigners in a combat zone.
That lends some credence to combatant status.
However we see the same legal course of action in the case of Padilla who was arrested in Chicago with no weapons and no hard plan of action or target. There did not appear to be any determination by the military he was a combatant - It appears to be all civilian agencies. How does that work? the military don't appear to have been involved until a month later they needed to change his status or take him to a court hearing so the civilians turned him over to the military. Is there even a line between the police and the armed forces anymore? The only thing he is really guilty of is associating with the "wrong" people. If these people he was visiting with are so bad why are they not in custody? They claim to know what he was looking at on the computer when he was visiting these folks in Pakistan so they must have a pretty tight surveillance on them and they must also be combatants if they discussed the same things Padilla is accused of discussing.
When you start pulling people off the street and holding them indefinatly with no charges there is often a price. In Lebanon the custom was if someone from your family was snatched you took a hostage from the people who snatched him and if they didn't send your fellow back whole they could count on having the hostage killed - usually in an unpleasant manner - and dumped on their doorstep. Tit for tat. Is that the way we want disputes handled here instead of in court? That's how it is where there is no law and only strong men.
It is hard to live in a system like that because almost everyone comes to be viewed as associated with one side or another and nobody is safe after awhile from being snatched. You have a lot of bodyguards and armored cars. You worry about your kids every day. You are scared to go in public to shop or use a park. I'd hate to see that way of life come here as much as suicide bombing, or other things we have escaped in this country.
posted on June 20, 2002 10:17:46 AM new
But this has happened during every war. Lincoln was locking Union civilians up with the military in the same manner. The draft riots during the civil war were far worse than anything in the 1960s.
As I have stated before, we're in new terrority. What "state" are we at war against ? How could anyone even define a time frame or definitive objectives in this war ? Even if the govt defines these terms, the terrorists will use those limitations to their advantage.
As we attack Afghanistan, they move to Pakistan, Morocco, Iran, Iraq, etc..
The govt doesn't want to declare a war against a culture/religion, but that is what they would have to do to cover all the bases, and what many have said this war is actually about.
For now, the war on terrorism will just have to do.
posted on June 20, 2002 10:56:28 AM new
[i]"But this has happened during every war. Lincoln was locking Union civilians up with the military in the same manner. The draft riots during the civil war were far worse
than anything in the 1960s"[/i]
No, this is another thing entirely.
[ edited by krs on Jun 20, 2002 09:13 PM ]
I doubt that he can spell it, or pronounce it, or even define it. But if someone explained the meaning of junta very slowly and simply, I bet his reaction would be, "Hot Damn!, that's what they've been planning."
Yes, the judiciary is being hit hard; another of those quaint but obsolete ideas of the founding fathers. Perhaps in a few years as we continue to fall into unfathomable debt, we'll be given the choice of cutting either the judicial branch or social security.
Gravid,
I agree with your ideas of the inevitable results, very similar to the basis of the society in 1984 which seemed to work well for the creation of a police state. Of course, that was only a novel.
Reamond,
Well I guess that I'm of the old school of logic and don't accept that any rational behavior can follow from other than a solid epistemological foundation beginning with a discrete definition of terrorist and terrorism. To you it seems to be synonymous with muslim, but at present its potential applications are limitless since its meaning is its application.
krs,
That would be the conclusion using the old logic. But like the Constitution some believe that it's outdated.
posted on June 20, 2002 09:32:43 PM new"As I have stated before, we're in new terrority."
So has the government, often Rumsfeld and Ari Fletcher whenever highly questionable behavior - "UnAmerican" behavior crops up with the President's name.
But since we are in new stated territory, I vote that we try to protect ourselves by increasing the number of Rights and Guarantees in the Constitution, instead of decreasing it. Furthermore, this is a great time to define those practices of commonsense that up until this regime took power, we have taken for granted; i.e. that no one is above the law - not Presidents, elected officials, or the judiciary; and many other time-honored institutions that are under attack. Let us strength the Walls of Freedom and Justice against those who would deprive us of it! Let us go forth and encourage all others to do the same. An idea is a powerful thing that cannot be legislated out of existence and Personal Freedom and Liberty should be among those ideals so enshrined in the minds of the multitudes. Everywhere you go, let Freedom truly ring!
spelling >SIGH<
[ edited by Borillar on Jun 20, 2002 09:34 PM ]
