Thank the (US) Founding Fathers for an independent judiciary!

MichaeltheGreat · March 11, 2003, 17:47

It's about time: US Constitution 1, Bush-Ashcroft 0

NEW YORK (CNN) -- A federal judge Tuesday ordered the government to allow lawyers to meet with alleged "enemy combatant" Jose Padilla, an American citizen accused of being an al Qaeda operative who plotted to detonate a radioactive "dirty bomb" inside the United States.

The decision is a legal setback for the Bush administration, which sought to block Padilla from meeting his defense lawyers under any circumstances, saying national security is more important than a detainee's right to counsel.

U.S. District Judge Michael Mukasey rejected the government's argument in a 35-page decision, ordering the government to permit Padilla's New York-based attorneys to visit the prisoner, who has been held incommunicado in a South Carolina Navy brig since June.

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Quote:

"Absent agreement, the court will impose conditions," Mukasey wrote. "Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct further 'dialogue' about whether he is permitted to do so."

OUCH!!! - That's judgespeak for "shut the **** up and move on."

Lest anyone think I have a shred of sympathy or interest in Padilla himself, I think the SOB should be tried, and given the maximum sentence applicable if convicted. At least a couple of the chargeable offenses carry the death penalty, which is fine by me.

It's not the fate of one individual (who if guilty, deserves to fry) that is a concern. The Bush-Ashcroft position is the biggest, most direct assault on the Constitution in US history. The right to legal counsel is an absolute, and Padilla was arrested by law enforcement officials in the US, not captured in combat operations. The idea that one appointed law enforcement official could declare that a criminal suspect is totally beyond the reach of the Constitution and judicial system is absolutely repulsive to the system of government our founders set up.

Great job by Judge Mukasey.

Hopefully a more enlightened future administration will consider him for a higher court.

http://www.cnn.com/2003/LAW/03/11/pa...ion/index.html

Arrian · March 11, 2003, 17:52

Demerzel · March 11, 2003, 18:08

Held since June last year without being able to speak to a lawyer ( /me does quick count... erm... ), 9 mths - bloody hell.

Obviously if he's guilty then he should be punished but to f*ck around with due process, then someone in authority is taking the piss.

orange · March 11, 2003, 18:10

Shi Huangdi · March 11, 2003, 18:10

See, I told you guys the courts would be having a go at Ashcroftian nonsense.

DinoDoc · March 11, 2003, 18:16

/me is not impressed at courts dealing correctly with the easy stuff and continues to wait for a test of the Patriot Act.

OneFootInTheGrave · March 11, 2003, 18:29

carnide_ · March 11, 2003, 18:56

Here we go again:
The biggest problem the US (and the free world) faces now is the Bush administration.

SlowwHand · March 11, 2003, 19:04

Let him meet with lawyers.
He's toast, and anything to speed the process.

MichaeltheGreat · March 11, 2003, 19:06

Quote:

Originally posted by carnide_
Here we go again:
The biggest problem the US (and the free world) faces now is the Bush administration.

Take your trolling elsewhere. Or perhaps your reading comprehension is sub-optimal?

PLATO · March 11, 2003, 19:12

It is about time that the courts started to fulfill their function on this issue. I have to agree with DinoDoc however. The Patriot act has got to go. Will the judiciary please step up here!?!

PLATO · March 11, 2003, 19:13

Quote:

Originally posted by MichaeltheGreat

Take your trolling elsewhere. Or perhaps your reading comprehension is sub-optimal?

MichaeltheGreat · March 11, 2003, 19:18

Some provisions of Patriot will pass muster, particularly with this SCOTUS, which is very pro-government on Fourth Amendment issues.

So far, there's a problem with the Cases or Controversies Clause, which prevents the judiciary from either acting in anticipation of an actual case, or addressing the entirety of the Patriot act - it will have to be addressed one provision at a time, if and as claims are raised about those specific provisions.

As long as the powers given the Executive branch under Patriot are primarily used for intelligence gathering, and not directly for criminal prosecutions, it's going to be rather difficult for anyone to raise issues of law that can be brought before the judiciary.

SpencerH · March 11, 2003, 19:19

Let me play devils advocate here. Under what conditions is it appropriate to hold a US citizen without counsel?

PLATO · March 11, 2003, 19:23

Quote:

Originally posted by SpencerH
Let me play devils advocate here. Under what conditions is it appropriate to hold a US citizen without counsel?

None. It may be appropriate in some circumstances for a court to appoint an observer to ensure no matters of national security is passed on. The right to representation is absolute.

SlowwHand · March 11, 2003, 19:35

It is absolutely absolute, for U.S. citizens.
That has to stay in place.

MichaeltheGreat · March 11, 2003, 20:29

No, it's not absolute.

The right to counsel is only absolute "in all criminal prosecutions."

Judge Mukasey also ruled previously that the other American citizens detained in Guantanamo (one born in Lousiana or thereabouts to Saudi parents, IIRC, and I think there's a couple more.) could be classified as enemy combatants because they were taken prisoner overseas in actual combat operations against US forces.

John Walker Lindh was captured outside combat, so he probably wouldn't fit the enemy combatant bill, but there's been no ruling specific to his circumstance, because he was charged criminally and processed through the judicial system.

Padilla was arrested in the US, so his claimed "combatant" status was a complete reach by Ashcroft.

So if they're prisoners of war, or detained unlawful combatants, they don't have any specific right to counsel.

Also, right to counsel in all criminal prosecutions is blind to citizenship - it is one of the absolute rights which the government can not abrogate, and is not tied by the Constitution to citizenship. That is logical, because the function of the Constitution is to delineate and limit government powers, not grant specific rights to citizens or other inviduals.

Lincoln · March 11, 2003, 21:16

I always thought that Padilla was being denied his rights even though he is a jerk. The problem I have with this "war" is that there is no end in sight. Therefore there is no promise that our rights will ever be restored as they were after past wars ended. I agree with this decision but I agree that the Patriot act needs to be run through the courts as well. There is nothing patriotic about throwing citizens in jail because the "chief law enforcement officer" decides they are guilty.

Knight2003 · March 11, 2003, 21:18

The total denial of habeus corpus, due process, right to counsel,etc. for US citizens can only be exercised in a declared state or martial law. To my knowledge, this has only happened once in US history. During heavy anti-draft riots during the civil war, President Abraham Lincoln suspended these rights to quell the protestors in the interest of preserving the union. It would be hard to imagine such an action happening in modern US government.

SlowwHand · March 11, 2003, 21:22

I disagree with you MtG.
Enemy combatants do not equal American citizens.

Berzerker · March 11, 2003, 21:37

Wartime and rebellion allow for suspending habeus corpus. Since we declared war on terrorism, a somewhat ambiguous enemy, accused terrorists may not have constitutional protections even if they are US citizens. That said, I oppose suspending habeus corpus except under extreme circumstances, and "national security" is so often used to justify hiding government corruption that I cringe when I hear that as the only reason for ignoring due process. Try him in the courts and let the judge decide how to deal with national security concerns...

Btw, the courts aren't really independent, the President and Senate nominate and confirm judges. If he were alive, James Madison wouldn't stand a chance of getting nominated, much less confirmed to the SCOTUS. If the Dems and Repubs want to ignore parts of the Constitution, the courts will go out of their way to allow it unless the infringement is far too blatant to be ignored by most people.

MichaeltheGreat · March 11, 2003, 21:45

Quote:

Originally posted by SlowwHand
I disagree with you MtG.
Enemy combatants do not equal American citizens.

The Constitution states that anyone born here is a US citizen. What they do later is a different issue. Also, naturalized citizens can have their citizenship revoked, but that isn't the case with those born in the US, or who are statutory citizens by other reasons (born overseas to a US citizen, etc.)

Ramo · March 11, 2003, 21:51

Good for them.

Quote:

* DinoDoc is not impressed at courts dealing correctly with the easy stuff and continues to wait for a test of the Patriot Act.

Exactly.

This is small potatoes. The actions against Padilla are not even sanctioned by the Patriot Act. It's time for the courts to step up to Ashcroftian tyranny.

Knight2003 · March 11, 2003, 22:00

Berzerker makes a good point about the suspension of Habeus Corpus during a declared war, but this is not a declared war. That said, there has not been a declared war since WWII involving the US. So, another legal issue that needs to be decided is if it will be accepted in modern conflicts to apply the older laws that were written for declared wars. For the sake of national security the Supreme Court must address this matter decisively to establish a precedent in the first case listing it as an issue.

Ramo · March 11, 2003, 22:01

Quote:

The Constitution states that anyone born here is a US citizen. What they do later is a different issue. Also, naturalized citizens can have their citizenship revoked, but that isn't the case with those born in the US, or who are statutory citizens by other reasons (born overseas to a US citizen, etc.)

I believe a case that went in front of SCOTUS in '64 prohibited the state from revoking citizenship (regardless of naturaliziation). Hmmmm can't recall its name at the moment. Of course, if/when Patriot II passes, the floodgates'll open.

Ramo · March 11, 2003, 22:03

Quote:

Wartime and rebellion allow for suspending habeus corpus. Since we declared war on terrorism, a somewhat ambiguous enemy, accused terrorists may not have constitutional protections even if they are US citizens. That said, I oppose suspending habeus corpus except under extreme circumstances, and "national security" is so often used to justify hiding government corruption that I cringe when I hear that as the only reason for ignoring due process. Try him in the courts and let the judge decide how to deal with national security concerns...

What "exceptional circumstances" do you think could possibly justify the suspension of habeas corpus? I consider the provision that allows for the suspension of habeas corpus a fundamental error in the Constitution.

Ramo · March 11, 2003, 22:05

Quote:

So, another legal issue that needs to be decided is if it will be accepted in modern conflicts to apply the older laws that were written for declared wars. For the sake of national security the Supreme Court must address this matter decisively to establish a precedent in the first case listing it as an issue.

Habeas corpus hasn't been suspended (which only happens when Congress does so) since the Civil War, AFAIK.

Knight2003 · March 11, 2003, 22:09

I'm not talking about the suspension of Habeus Corpus Ramo. I'm talking about laws along the lines of the protection of government documents which are considered classified from the freedom of information in a time of war,etc.

Ramo · March 11, 2003, 22:18

Yep, every new administration seems to have a new interpretation of FOIA (and Ashcroft's guidelines are unusually authoritarian).

Berzerker · March 11, 2003, 22:25

Ramo -

Quote:

What "exceptional circumstances" do you think could possibly justify the suspension of habeas corpus? I consider the provision that allows for the suspension of habeas corpus a fundamental error in the Constitution.

The Framers had a reason for allowing the exception - wartime, in their minds, would likely entail the survival or destruction of the country they founded, not the wars we've started waging half way around the world in the name of protecting US "interests". So, what are these extreme circumstances? How about a rebellion instigated by hispanics in the southwest, or neo-Nazi skinheads in the Pacific northwest, or maybe a bunch of whacked out drug addicted libertarians all over the country burdening the courts with thousands, if not millions of insurgents. Do you think Lincoln should have had every Confederate soldier tried in a court of law to determine guilt or innocense via due process?