News summation: (Jose Padilla / Enemy Combatant Civil Rights Complaint
Against the Executive Branch Filed With FBI Civil Rights Enforcement
Division In San Francisco.)
Activity: In accordance with Department of Justice procedures for filing a
civil rights complain on behalf of someone who's civil liberties have been
violated
http://www.usdoj.gov/crt/legalinfo/howtofile_CRT.htm
I filed the
following civil rights complaint with the FBI in San Francisco on Friday
October 7th 2005 as a civil rights complaint.
http://www.usdoj.gov/crt/crim/overview.htm
Grounds: This civil rights complaint addresses several unique civil rights
angels of the Jose Padilla and enemy combatant detentions, as well as
broader governmental constitutional authorities and criminal liabilities of
Government conduct. While many previous discussions have centered on the
detention aspect of Jose Padilla's incommunicado detention, this complaint
focuses largely on the incommunicado aspect of it and his 1st Amendment
privileges, and the necessity of preserving free speech rights of unacused
American citizens as well as other enemy combatant designees.
Purpose: 1) Political. The use of torture authorized by political office
holders and appointees, coercive interrogations, political grandstanding by
law enforcement personnel, including Department of Justice officials, Senate
advice and Consent on judicial nominees related to enemy combatant cases,
all political fall out from the discussion of human rights and our policies
on torture can not be debated while the victims are incommunicado
indefinitely. To act now on appointments, nominations, and elections, we
need to know now, and that means we need to hear from these "enemy
combatants" now. Chertokoff (Homeland Security,) Gonzales (Attorney General,
DOJ,) Jay Bybee (9th Circuit Court of Appeals,) Roberts (Chief Justice,
USA,) are all torture memo/detainee related people, and all ascending to
greater power while we still don't have the full story.
2) Democratic. To be publicly accused in the media by grandstanding
politicians, often engaging in fear mongering or politicizing the war on
terror, the "evil doers" should be able to respond as accused, in the press,
in the courts, etc., but the administration wants to keep it one sided.
3) Legal. Jose Padilla has rights as a US Citizen that existed prior to the
Supreme Court Hamdi decision, and the Hamdi decision re-affirmed the
requirement of due process, habeas corpus before a neutral decision maker,
status as either a POW or criminal, and if a POW, non-penal detention. The
administration continues to defy existing US law and the Supreme Courts
re-affirmation of it, and is seeking through judicial activism of friendly
lower courts to overturn the Supreme Court's majority decision. Through
Judicial activism, the judicial lawmaking the claim to so vehemently appose,
they seek to qualify Habeas Corpus to apply only to those the President
deems worthy (an argument the Supreme Court in Hamdi rejected, noting is was
for protection from the Executive branch Habeas existed,) and make the
entire Bill of Rights optional. Further, the administration argues that
foreign "enemy combatants" with no US Citizenship enjoy no Bill of Rights or
legal protections. This civil rights filing introduces another perspective
on that. As human beings, they can be victims of crimes including
kidnapping, torture, war crimes, and more. The President is not above the
law, and if these people have been subjected to any criminal treatment, they
become protected as material witnesses. To isolate them by force, to
deprive them of access to tribunal of records, lawyers, and the press, the
Bush administration may be involved in obstruction of justice. Hiding away
information related to any criminal activity, such as say information
related to Iran Contra when it was discovered, would be obstruction of
justice. People, foreigners or not, as witnesses and victims of crimes, can
not be held incommunicado by the very people who may have committed such
crimes. While campaigning upon the War on Terror, the skeletons can not be
hidden. In Latin Habeas Corpus means "show me the body" yet hiding the
skeletons is precisely what the administration is doing to protect the image
of its actions, and possibly conceal criminal activity.
4) Democratic. Most constitutional rights are based upon the citizen, and
are citizen dependant. Freedom of the press, freedom of speech, prior
restraint, these may be unique in some regards. Particularly in the case of
speech, the source of the speech is most likely irrelevant, citizen or not.
Philosophically, this makes sense. To contest and debate the US Government'
s positions, it may well be necessary to hear from foreign sources of
information and foreign government's and their perspectives. As is relevant
in the case of detainees, to debate the government's actions, it may be
necessary to hear from those effected by the government, including foreign
citizens. To interfere through prior restratint the sources of reporting,
freedom of the press may be abridged. There may be lateral precedent for
this. Free speech has been ruled applicable to entities..corporatioins,
etc., Corporations do not have citizenship, yet are still entitled to free
speech. Foreign presses, presses printed abroad but distributed in the US,
foreign citizens in the US engaging in journalism, all may well be under the
umbrella of free speech/freedom of the press because such rights relate more
to the Government's lack of justification for suppressing debate.
Other key legal grounds: The Bush administration has argued that it was the
Judicial Activism of the 1940's in a case called Ex Parte Quirin that placed
limits upon Habeas Corpus, the separations of powers, and due process of law
in time of war. New in this filing, I raise the issue of the War Powers Act,
not yet argued within the Hamdi/Padilla related cases, which anticipate and
defeats attempts at Presidential power grabs as Commander in Chief in times
of war, and re-affirms the binding nature of the laws of Congress and
existing Constitutional authorities.
About myself: I have no connection to Jose Padilla, yet that appears to be
no basis for disqualifying my complaint on his behalf. I really rather
wouldn't have done this, and would especially like to avoid publicity.
Nevertheless, lower key efforts to have a positive and democratic impact on
this development in our democracy seem unlikely to register without seeking
to get the Department of Justice on record regarding legal interpretations
to this locus point of our democracy so that it can be held accountable for
its positions publicly, should the conflicts of interests between the
political appointees of the Department of Justice and its charter mission
professional staff in fact exist, or the potential cover-up and conflict of
interests I speculatively assert may exist in fact be born out.
Ed Donegan
San Franscio, CA
Helpful news articles
From Georgtown law professor David Cole, widely regarded to be a modern day
Clarence Darrow in preserving democratic processes in the war against
terrorism.
http://www.thenation.com/doc/20051024/cole
http://www.thenation.com/doc/20040719/cole
Another article ..
http://www.washingtonpost.com/wp-dyn/content/article/2005/07/19/AR2005071901023.html
And my own "holding bin" of documents, some of which were drawn from for
this complaint, and others which go beyond it in related discussions.
http://tribes.tribe.net/sfcathoderaymission
Complaint
From: Ed Donegan (media: preferred omitted in coverage if released)
XX XXXXXX (media:please omit in coverage if released)
San Francisco, CA XXXX (media:please omit in coverage if released)
XXX-XXX-XXXX (media:please omit in coverage if released)
to: FBI Civil Rights Investigations
1) Overview:
a. Purpose: This civil rights complaint nominally regards the case of
Jose Padilla, filed on his behalf as described by Department of Justice
civil rights complaint procedures. In doing so, it more purposely raises the
significant civil rights, democratic, conflict of interest, and ethics
issues that collaterally adjoin his case, but because they are not direct
consequence to the outcome of his case, are not being fully litigated in his
case and thus are in need of broader review.
b. Architecture of Complaint: An initially dismissive, and I propose
and support, erroneous prejudice against exploring this complaint already
likely exists. Because the Jose Padilla case continues to be litigated in
federal court and a ruling currently stands in the Government' favor,
initial restraint would suggest awaiting the outcome of any further judicial
review before considering internally the case further. I suggest instead
that the collateral criminal, civil, ethical, and democratic issues require
vital action in real time, and in some cases matters of even greater
importance than this precedent are already too late to act upon. I have
therefore iteratively structured the complaint to be nearly immediately
available in its full statement and suggestions of consequence of its
implications. Following the initial summary iteration, each issue is
presented again in greater depth in additional iterations so that if your
attention is retained and you are willing to consider the complaint further,
additional detail and support for positions is provided. Ideally at the end
of the complaint you will accept and have a basis for an independent
starting point of considering and investigating those very points.
2) Initial Iteration of Complaint.
a. There are extraordinary circumstances associated with the detention
of Jose Padilla, and other enemy combatants in general. I suggest both the
Government's original arguments regarding the Authorization For Use of
Military Force are flawed in manner not yet presented in court, and the
4thCircuit Court's current opinion can be bettered by a close DOJ review of
it.
b. As important a case as Padilla is as a precedent, of even more
vital, and more current, concern are the related criminal civil, democratic,
and constitutional issue arising from the disposition of his case and the
machinery that is carrying it out.
i.
Significant legal and political exposures that are impossible to explore
based on the circumstances of Padila's (and enemy combatant's) detentions.
1. The political call to engage in acts of torture, the definitions of
torture, and actual carrying out of torture and coercive interrogation in
practice. The war on terror is highly politicized, and political appointees
to the Department of Justice (Gonzales,) and the Judiciary for lifetime
appointments (Bybee, co-author of the Torture Memo, revealed after his
lifetime appointment to the 9th Circuit Court of Appeals by the Senate,
Roberts, confirmed to the Chief Justice of the United States of the Supreme
Court, who had ruled on enemy combatants,) and the re-election of George
Bush himself in 2004 following his authorization for use of torture on
various targets in various degrees, which has not been available for public
discussion because of the prior restraint suppression of first amendment
rights of uncharged US citizens in this regard. This highly charged and
vital issue of US policy can not be effectively be debated because of the
suppression of free speech rights of the government of those who could speak
out against the governments policies. Unable to gain traction on potential
civil liberties and humanitarian issues related to such matters, the Senate
has been forced to rubber stamp nominations because the evidence needed to
contest the nominations has been suppressed by the policies of those very
people nominated for higher office. At minimum, it is an ethics violation,
and may represent unconstitutional restrictions upon the Senates ability to
provide advice and consent on such nominations. Certainly, the public is
being deprived the opportunity to fairly judge the policy of political
office holders as they ascend to higher appointments.
2. Conflicts-treatment of detainees. In addition to the political
consequences of choosing to engage in torture, there are or at least should
be legal ramifications. As for torture itself, I believe in most matters of
law where such acts are aggravating circumstances or crimes in and of
themselves, it is JURIES which decide whether the standards of torture have
been met, not the President's staff. Also, though seeking through judicial
activism to remove the requirements of Habeas Corpus, arguing it never
existed in the first place, the administration makes claims that are no more
logically sustainable than legally. The Violating the first amendment
rights may be crimninal, and this entire act could be criminal as
kidnapping. The reason I submits this to the criminal civil rights
investigations group is that unless it suddenly becomes legal to do these
things, a case exists for high crimes and misdemeanors, conspiracy against
the constitution, and criminal acts carried out within the Executive branch.
3. Conflicts regarding statements to the court regarding detainee
treatment. The Executive branch may well have committed perjury before the
court on the issue of whether they would engage in torture. Perhaps those
in oral arguments were not aware of the secret policies, but after the issue
arose, a very material issue, it should have been corrected on the record by
statements under oath. The President hiding from that because it might have
cost him in the polls or subjected him to criminal complaint is no
justification for perjury. Quite the opposite, it is motive for it.
4. Conflicts-obstruction of justice, withholding evidence. If there is
any knowledge or belief within the administration acts that could be
construed as criminal or civil rights violations are occurring and to
suppress the emergence of evidence "detainees" are being withheld from
tribunals of record and are being silenced, the implications for democracy
and government far far exceed either Iran Contra or Watergate.
5. Questions About The Role Of The Department of Justice
a. Mission statement-uphold the Constitution preferred over individual
convictions or "detainments."
b. Upholding democracy. State Dept internal analog.
c. If the Department of Justice has relinquished this area of law
enforcement to the military, why is the DOJ through its Solicitor General
being used to "front" for the military and its legal staff. Doesn't this
just give the military a softer "front" in public? Does the DOJ not have a
primary role of upholding civilian law, civilian supremacy and interests,
and the Constitution including separation of powers?
3) Second Iteration of Complaint.
1) Whitehouse position inconsistent with the War Powers Resolution.
The two together are legally definitive and binding.
AUMF+WPR.
AUMF:
AUMF (under War Powers Resolution) + WPR.
AUMF
"SECTION 1. SHORT TITLE.
This joint resolution may be cited as the `Authorization for Use of Military
Force'.
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL- That the President is authorized to use all necessary and
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.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the
War Powers Resolution, the Congress declares that this section is intended
to constitute specific statutory authorization within the meaning of section
5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution
supercedes any requirement of the War Powers Resolution.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
END"
WPR That is vital to the question of the expansive powers the Commander in
Chief claims. Section 8(A)d(1) of the War Powers Resolution, describing the
bounds the Commander In Chief must operate as entitled, states "(d) Nothing
in this joint resolution--
(1) is intended to alter the constitutional authority of the Congress or of
the President, or the provision of existing treaties;" In other words, the
WPR confines the President, as Commander In Chief, to compliance with
existing Constitutional authority, laws, and treaties. Such would seemingly
include Habeas Corpus, the Enemy Detention Act, Posse Comitatus, all aspects
of criminal and constitutional law, the UCMJ which Congress passed to
regulate the Military and bans indefinite detentions, the UN Human Rights
treaties banning detentions without court proceedings, and a myriad of other
protections of citizens. Nevertheless, the President maintains all this has
been superceded by the "power grant" of the language "necessary and
appropriate."
SUMMARY: Clear and explicit plain language law (net yet argued in court) in
clear contrast to Administration, OSG, and AG positions.
2) Did Ashcroft lie in the Great Hall of Justice, campaigning in a
politicized war against terror, that Padilla was working on a dirty bomb?
The DOJ now admits he was not, but did the DOJ knowingly release false
information against a US citizen held incommunicado, unable to respond, for
political purposes? Freedom of speech issues. The administration is now
publicly backing off earlier statements to the press and the courts
regarding Jose Padilla. Did they know all along he was not up to what they
originally accused him of, but keep up to court and public complaints
anyway?
3) The return of common law slavery enacted and enforced by Presidential
military order and backed by the Department of Justice. Declared of a class
of "combatant" too dangerous for freedom, yet said to be of great value to
the government in shackles and indefinite coerced servitude to their
ideological and spiritual enemies, the President says they are really
valuable to the US to capture (anywhere in the US,) and simply keep.
Combined with the already existing racial profiling templates to determine
who these are to be, the only answer is to immediately de-certify the
Department of Justice, remove its blight from US history, and begin
disbarment, impeachment and kidnapping proceedings against those
responsible. The Supreme Court has already stated in Hamdi combatants have a
right to contest their detainee status before a neutral decision maker, yet
the President defies.
4) Third Iteration.
1)Constitutional Principles, articles, laws, cases, and precedents at issue
in this case.
1) Civilian Supremacy: Perhaps nothing goes more to the central issue.
Written into the Constitution in a number of ways and places, enacted under
numerous Congressional laws, supported by long consistent historical
precedent, based on explicit preferences by the Founding Fathers for
civilian government and authority, civilian supremacy is the deference to
civilian justice and law, whenever possible, even in times of war. One
related example of Civilian Supremacy from the Founding Fathers was placing
the armed forces under the command of the President. While the Military
sometimes like to think the Commander In Cheifs role equal to his
presidential role, the intent was very clear. The President is a civilian
democraticaly elected office holder under which the Military is placed.
2) Posse Comitatus: The Posse Comitatus Act (1878) - Prohibits search,
seizure, or arrest powers to US military personnel. IT has been the basis
for not using the military, intended for war against foreign nations,
against the US Civilian population for law enforcement.
3) The Exclusionary Rule. From 1921, this legal foundation established
illegally obtained evidence can not be introduced in trial. "The
exclusionary rule prevents the police, in their zealousness to solve crimes,
from violating the civil liberties of American citizens. Warrants can only
be issued by judges if there is "probably cause" to believe that evidence of
wrongdoing will be found. Warrants must contain the date, location, and time
of a search, what is expected to be found, and the grounds for believing
that such an object will be found in the place indicated. Many feel that
these institutional safeguards are what distinguishes America from less
civilized nations. They maintain that our civil liberties must be protected
above all else." http://library.thinkquest.org/2760/exclude.htm
There are several relevant issues. Military Tribunals, if citizens are to
be tried by such a low standard, would allow illegally gathered evidence.
This would mean the Government could do all the illegal survellience of US
Citizens, religious, and political organizations it wanted, and introduce
the results in court. Further, because it would be doing so in secret, no
one would be the wiser. Finaly, beaten confessions can be introduced, and
the very essence of torturing people into confessions is that you are
forcing them to say whatever the government wants them to say.
4) Quirin: Described by some as a legal anomaly, a 1942 Supreme Court case
relied upon for some elements of the current case by the Supreme Court,
Quirin has foundations in the extent of Government authority in time of war.
Interpretations and applicability of Quirin gets difficult to read in some
places because two issues arise. One, is a military trial (conducted inside
the Executive branch, and subject to military rules) an acceptable
alternative to a civilian trial in time of war for caclulating due proccess
of a US citizen? Two, for purposes of Habeas Corpus, does appearing in a
military court count as a court appearence?
The Supreme Court ruled doe purposes of deciding charges in Hamdi since
citienship need not be considered in Quirin, it need not be considered in
Hamdi. Interestingly, and differently, Luttig found that for purposes of
Habeas, appearing in a military trial was indistingusable from not appearing
in court at all, thus the precedent of the President not having to honor
Habeas stood. In so ruling, he may have actually done untoward things to the
Presidents pooch. That ruling does not say much for Due Proccess if even
the Habeas bar wasn't met by military tribunal.
In WWII, one several spies who may have been US Citizens, and probably were,
were charged, tried, and sentenced by military tribunal under military law.
In defference to Bush, hoping he would concede, the Supreme Court ruled if
the court could ignore citizenship in the case of cirminals, whre it did not
matter, the Bush administration could also ignore citizenship with enemy
combatants (thus ignoring treason issues) and grant legitimate POW status to
detainees, if it wished.
5) Geneva Conventions: (1949) Signator states recognition of right to humain
treatment of captured lawfull combatants. The core principle-lawfull
combatants have done nothing wrong, are lawfull individuals in the
disciplined service and under the command of their government. Upon the
cessation of hostilities, they may be freed and returned to their lawfull
lives. Criminal defense or representation is not an issue for POWs, since to
be granted POW status means there is no presumption of wrongdoing or
criminal conspiracy.
6) UCMJ: The Consitution gives operation of the Military to the Commander in
Chief, but the regulation of the military to Congress as is outlined by the
Consitution. This too is part of Civilian Supremacy and the Seperation of
Powers. Congress (civilianly elected,) regulates, the President, civilianly
elected, operates. Congress did a major overhaul of military law in 1950
known as the Uniform Code of Military Justice. Detention without charge is
prohitted under the UCMJ. The President contends Congress'es regulation of
the Military is no longer binding on him.
7) Repeal of the Emergency Detention Act (1971) After World War II, Congress
had authorized the use of detention camps in "internal security emergencies"
in the Emergency Detention Act of 1950 That Act authorized detention if
"there is reasonable ground to believe that such person probably will engage
in, or probably will conspire with others to engage in, acts of espionage or
of sabotage." In other words, the Act authorized exactly the sort of
detention the plan envisions - detention without charge of alleged spies and
saboteurs during a time of emergency. By 1971 Congress was so fed up with
the idea, not only did it repeal its own act, it really repealed it hard,
enacting into law that not only could it not be done, it would now be
illegal to even try without Congressional authorization. After 9/11 many
roundups began, we are not sure how many were citizens because the DOJ will
not disclose who was rounded up, but of the estimated 3,000, it turns out at
least some were US Citizens.
In an attempt to further repeal th EDA, Congress recently took this bill for
consideration.
"
109th CONGRESS
1st Session
H. R. 1076
To authorize the President to detain an enemy combatant who is a United
States person or resident who is a member of al Qaeda or knowingly
cooperated with members of al Qaeda, to guarantee timely access to judicial
review to challenge the basis for a detention, to permit the detainee access
to counsel, and for other purposes. "
In other words, Congress is re-affirming, without any ambiguity, it wants
the Courts involved. These two branches want in.
8) War Powers Resolution: (1973) Reafirms Article 1 of the Constitution and
adds "definition" on Congressional powers to declare war, and Presidential
requirements in conducting them, including reporting requirements on
introductions of forces into hostilities, and limmits Presidential authority
to do so beyond limmited lengths of time without Congressional approval.
Stemmed from the introdcution ot the US into the Vietnam war without
congressional authorization. Anticipating and preventing Executive power
grabs in time of war, the resolution explicitly stated granting authority to
the Commander in Chief did not authorize additional powers to the President.
Section 8 d) Nothing in this joint resolution--(1) is intended to alter the
constitutional authority of the Congress or of the President, or the
provision of existing treaties. The relevance today is that the President is
arguing the Authorization for Use of Military Force enacted under the War
Powers Resolution frees him any obligations to Congressional law (or the
courts) or international treaty, since such things would unconstitutionally
intrude upon his authority as Commander in Chief to conduct war.
9) International Covenant on Civil and Political Rights, [per National
Association of Criminal Defense Lawyer's Amicus] Congressionally ratified
international treaty under the United Nations, (1976.)
Article 9, Section 4: Anyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings before a court, in order
that court may decide without delay on the lawfulness of his detention and
order his release if the detention is not lawful"
10) The Authorization for Use of Military Force, September 13th, 2001. The
three words that the Bush administration suggests changed the world. The
full text of the operative section is below.
"SECTION 1. SHORT TITLE.
This joint resolution may be cited as the `Authorization for Use of Military
Force'.
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL- That the President is authorized to use all necessary and
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.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the
War Powers Resolution, the Congress declares that this section is intended
to constitute specific statutory authorization within the meaning of section
5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution
supercedes any requirement of the War Powers Resolution.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
END"
All of the Presidents basic assertions relate to section 2 (a) that he is
authorized as Commander in Chief to use all "necessary and appropriate"
force to wage war. He suggested that such language was Congress's
authorization to suspend all Constitutional and international requirements
of law, including the relevant acts of Congress related to Civilian
Supremacy. Any attempts at limits of his authority as Commander In Chief as
thus authorized by Congress interferes with his ability to wage war
effectively. The Supreme Court has been highly deferential to the concept of
not interfering with the President in time of war.
Perhaps as much of interest Section 2(a) are the only other
sections,Sections 2(b)(1) and 2(b)(2), though this has not yet been argued.
Section 2(b)(1) states that this is an entirely ordinary authorization of
force under the War Powers Resolution, and as is consistent with that
section and meaning of the War Powers resolution calling for an
authorization of force. And Section 2(c,) in keeping with this AUMF being a
subordinate instrument of the War Powers Resolution, states that all
requirements of the WPR remain in effect and are not superceded.
That is vital to the question of the expansive powers the Commander in Chief
claims. Section 8(A)d(1) of the War Powers Resolution, describing the bounds
the Commander In Chief must operate as entitled, states "(d) Nothing in this
joint resolution--
(1) is intended to alter the constitutional authority of the Congress or of
the President, or the provision of existing treaties;" In other words, the
WPR confines the President, as Commander In Chief, to compliance with
existing Constitutional authority, laws, and treaties. Such would seemingly
include Habeas Corpus, the Enemy Detention Act, Posse Comitatus, all aspects
of criminal and constitutional law, the UCMJ which Congress passed to
regulate the Military and bans indefinite detentions, the UN Human Rights
treaties banning detentions without court proceedings, and a myriad of other
protections of citizens. Nevertheless, the President maintains all this has
been superceded by the "power grant" of the language "necessary and
appropriate."
MISSING: The Commander in Chief's military supremacy mandate.
In the AUMF:::granted in the Authorizatin for Use oF Armed Forces .."the
President is authorized to use all necessary and appropriate force against
those nations, organizations, or persons .."
Interesting, not the Commander in Chief, the President, the Civilian
official who also has UNDER him the Armed Forces...but a civilian selected
civilian office holder (just as the Framers wanted it with Civilian
Supremacy) is authorized to use what forces..military..of course included
..but appropriate force. This would presumably include civilian law
enforcement against criminals..armed forces against militaries in battle. It
seems the right force for the right circumstance, Congress did not eliminate
civilian functions.
11) Seperation of Powers: This is the crux of everything at stake. I argue,
and believe I suppoprt well, the AUMF was an ordinary authorization for use
of force under the standard mechanisms, carefully written not to changer or
supercede the War Powers temmplate for the use of force, and offer
throughout these documents consistent quotes from the Supreme Court
consisten with that interpretation, suggesting what, in the normal and
universaly recognnized laws and standard conventions of war are recognized.
The President though, as I equally document extensively, takes a much
different reading of the AUMF. While mentioning the phrase "neccesary and
appropriate" a great deal, and suggesting therefore anything he feels is
"neccesary and appropriate" as Commander in Chief is therefore authorized,
his much greater unarticulated reliance is upon the words "he defines" as
responsible for 9/11, and uses that very word in CAPS as he pronounces Jose
Padilla guilty in the military order arrest warrrant for him.
What the Supreme Court upheld in Hamdi is that "'necessary and apprpropriate
' force agaist those responsible .' avoiding, with the early placement of
the comma, the pesky and hastily placed words "he defines." The Supreme
Court spends the rest of the document asserting that is a a nuetral third
party, the courts, which will make the final determination of those brought
to justice, by military or civilian police force.
What is interesting, and also not yet argued, is that if you take the
Commander In Chief's position upon this, that his branch alone is the
arbitor of guilt, that detainees are combatants, not POW or criminal
suspects, that Judiciary function has been placed under his command, even
for citizen arrests, such as unarmed Padilla it is indeed the suggestion
that martial law has been declared. Further, if the President's assertion is
extended that such people, even when captured, as still "enemy combatants"
rather than either criminal suspects or POWs lawfull or unlawfull prisoners,
then nothing would suggest a limmit upon the Exectuive to simply summarily
execute the prisoners in "the conduct of the war."
The entire fucntion of our democracy is based on the seperation of powers,
dividing law making, law enforcement, and judicial function, split among
separate branches. By militarizing government, ending Civilian Supremacy, as
Commander In Chief, civilian functions of our government is transformed into
a militarily run (but not run under Military law enacted by Congress,) under
one authoritty, the Commander In Chief.
Claiming the Authorization for Use Of Military Force authorized, at
Presidentail discretion, the militarization of all aspects of Government and
Justice, all powers of Government become concentrated under the Commander in
Chief, who no longer recognizes the civilian laws and treaties of Congress,
nor the applicability of Constitutional rights for citizens his branch
declares "enemy combatants," thus militrizing them.
Under this context, the Case of Jose Padilla is about more than whether he
is innocent or guilty. It is about which branches of our Government still
retains authority over US citizens not "captured" in a combat zone. Quite
the opposite, upon his "capture" by the military, Jose Padilla was sitting
unarmed in a Manhattan Jail cell on a civilian related warrant. Arrested by
force by the military under orders of the President to the Secretary of
Defense, Donald Rumsfeild, the military is now preventing him from accessing
civilian courts and keeping him incommunicado. The President argues that any
interference from the Judicial Branch would intrude upon his powers of
Commander In Chief as he has assumed under the AUMF, and would be
unconstitutional. He declares absolute, and military authority over all
aspects of justice related to the war on terrorism now.
If indeed the AUMF was intended to grant him such authority as to suspend
all other laws, treaties, and constitutional requirements as he suggests,
the prospect becomes even more frightening considering the testimony of
Chief Justice of the United States nominee Judge Roberts, who has already
ruled against Padilla and Habeas Corpus upholding the Presidents claimed
powers while serving on the DC Court of Appeals.
In testimony before the Senate Judiciary Committee, Roberts asserted that
the question of whether congress has the power to end was as well as start
it, he described such a notion as "unsettled." In other words, he does not
at least now see a definitive basis for Congress to "undeclared" war. If
this interpretation holds, the meaning it would be that Congress lacked the
authority to take back the "powers" it granted to the Commander in Chief,"
assuming they ever intended to grant such powers in the first place.
2). Its all about Free Speech. Republicans used to love holding up signs in
Congress saying "Its Spending, Stupid" trying to pursued people that the
country's budget deficit was caused by spending, not taxation.
In the case of detainees, the issue is free speech and the first amendment.
Long critical of China, Russia, and other totalitarian states, the US had
held true to its basic ideals of rights of the accused, of free, fair, and
open trials, and a functioning criminal justice system that protected all
citizens, regardless of what the President had to say about them.
But Bush has changed that for this nation, and in so doing, he has changed
who Jose Padilla, and other detainees who will receive no or "military"
trials, really are. Bush has turned them into dissidents. Repressive
states have always made the arguments that their dissidents are really
criminals, conspiring against the state, and often, they are right. In fact,
we often even kind of liked that because we are often conspiring against
those same states as well and wouldn't mind it if they got overthrown.
That has never been enough however. We have also understood, perhaps because
of our secret empathy for dissidents of other states, the need for human
rights, fairness, and justice. Until accused criminals receive a fair trial
conducted by a neutral party, as the Supreme Court recently required of the
President in the Hamdi case (which the President still defies,) the mere
Government press accusation of criminality is not enough.
Not enough because unless the Government wants to prove it, such allegations
are meaningless in theory and in practice. In theory because ideological
enemies only, or the political enemies of Government office holders, all
start to look the same to the Government. Motive and opportunity are the
elements of crime, and anti-state ideology suddenly appear to become just
that element. In practice because the Governments public admonititions
against enemy of the state citizens rarely end up having much weight,
especially when the dissident is held incommunicado simultaneously.
Such is the case with Jose Padilla. Initially Ashcroft and a bunch of
political appointees from the Department of Justice came out grandstanding
that Jose Padilla was working on "dirty bomb," but such would never be
accused in court, because as an enemy of the state. or a enemy combatant
against our state as the language is now, as determined by the President and
his intelligence unit (both the identity of the units and the findings are
still secret though,) their would therefore be no trial.
In finding this, Bush transformed himself into a dictator, and Jose Padilla
into a dissident. And even more troubling for our history of democracy, the
realties of the Jose Padilla situation (and until we hear from Jose Padilla
himself, we are relying totally on the words of REDACTED,) is that what the
Government initially claimed about him wasn't true after all.
Initially, we and the courts were told Jose Padilla was a highly trained
unprecedentedly dangerous "super terrorist" and that he was working on a
"dirty bomb." And the Government even resents having to make one sided
accusations to the courts, and is fighting that as well. And the Government
asserted to the courts the "detainees" from battle would be humanely
treated, that our President's Executive branch was apposed to torture
Neither unchallengeable statement turned out to be true. The Government
does engage in torture, and until we are allowed to hear from former "high
value targets" of the Department of Justice and the President' spy agencies
such as the Defense Intelligence Agency, we won't know how much, which is
precisely why such "targets" are being held incommunicado indefinitely.
It also turns out that the wasn't working on a dirty bomb at all. If we
believe what the President's men say now, he once suggested that, but Al
Queda turned him down. And he also suggested once that he initiate his own
nuclear weapons program and build a real nuclear weapon. More, he actually
ended up (at most) conspiring to blow up apartment buildings by leaving the
natural gas in the units turned on (he would pre-select apartments that had
natural gas,) but even that plan, if ever carried out, was flawed because
natural gas is spiked with a pungent aroma so if can be smelled when
leaking, and only a troubled street criminal of 20 at the time, he could not
get along with his fellow conspirator and they appear to have parted ways.
Not the super terrorist we were told about at all. In fact much less
dangerous than right wing Christian terrorist Eric Rudolph, who, in
opposition to homosexuality and privacy rights bombed the US Olympics in
Atlanta and multiple abortion clinics in several states, and having carried
out those acts, killed numerous including a police officer. But the DOJ
nicely plea bargained Eric Rudolph, who was provided lawyers, and who had
long evaded capture with the help of friendly religious supporters, down to
life in prison for a confession detailing where his other 250 pounds of
explosives were hidden, a confession obtained with no "coercive
interrogation." And Eric Rudolph got his day in court. Actually, many of
them, and access to press, family, etc., in visiting.
What might make Jose Padilla more of a threat to President Bush and the
Department of Justice is not that he is more guilty than Eric Rudolph, but
instead that Jose Padilla is actually innocent of what the Bush
administration first accused him of (if you believe the Bush administration
now,) and might even be innocent of what they finally accused him of.
Perhaps he has become a witness about Bush administration perjury before the
high court or the use or the practice of torture. We just don't know, and
what of the non-secret stuff there is that the Bush administration likes to
tell to the newspapers, but even in that, the Government isn't looking to
credible just through the conflicts in their own statements.
In better times for the US, the Senate ratified the international verion of
Habeas Corpus through the United Nations Human Rights Commission. This
treaty calls for the mandatory court appearance of any person detained by a
government. Like the Uniform Code of Military Justice (itself requiring fair
trials even planned tribunals do not meet,) the Constitution, US criminal
law, the requirements of the courts and case law, the President sees none of
this as binding on him since he now "authorized to use military force." If
we take him at his word on that, what would stop him from simply executing
these combatants, or now, more precisely, dissidents.?
Some time ago, not that far from the time this rounding up of uncaused
enemies of the state began for indefinite military detentions, the Chinese
arranged to get us kicked off the UN Human Rights committee. The Republicans
were outraged. How dare they, don't they know who we are:? Well,
considering our use of torture, our treatment of "detainees," our
abandonment of criminal justice, our holding our uncaused dissidents
incommunicado indefinitely without charges other than to the newspapers by
grandstanding politicians fear mongering, perhaps they did know precisely
who we are.
5) Fourth Iteration [outlay of briefs]
The core arguments of the Bush cronies are; 1) We are quietly disappearing
Habeas Corpus itself because it is a national emergency but aren't really
saying so because 2) The Authorization of the Use of Force grants me all
"necessary and appropriate" powers I decide I need, as commander in chief,
unchallenged by the courts, beyond congressional law in matters of war.
Uh huh.
Start with argument #2. The whole idea of the War Power Resolution of 1973
(far post-dating Quirin, a Supreme Court case of WWII,) was to define the
war powers, and reign in presidents run amok marching around in their
Commander in Chief hats. The very intent, breath, spirit, and language of
the War Powers Act, which the AUMF is explicitly a subordinate element of,
is containing the power grabs of the Commander in Chief, the greatest fear
the Framers had as well.
From the AUMF, granting the President "necessary and appropriate" use of
force in response to 9/11.
"(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the
War Powers Resolution, the Congress declares that this section is intended
to constitute specific statutory authorization within the meaning of section
5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution
supersedes any requirement of the War Powers Resolution."
This is where all the President's plumbers get into trouble. Every thing in
the War Powers Resolution says that the authorizations for force under it
are ENTIRELY defined as mandates on the Commander in chief to carry out his
authority in accordance with Congressional law and treaties, and not attempt
to assume any additional "war time" authorities which otherwise do not
exist.
Among the typical language of the War Powers Resolution ..
"(d) Nothing in this joint resolution--(1) is intended to alter the
constitutional authority of the Congress or of the President, or the
provision of existing treaties; "
In other words, even when force is authorized by Congress, such as with the
Authorization for Use of Military Force enacted under 8(a) and 5(B) of the
War Powers Act, the WPR still explicitly does not allow the President any
additional constitutional or legal "extras" for time of war. All laws still
stand, Habeas Corpus, Posse Commitatus, the Uniform Code of Military
Justice, and the courts in interpreting such law. Quite the opposite,
Congress reserves itself the right to make law and treaties that are binding
on the President even in time of war. The War Powers Resolution explains ..
"(b) Under article I, section 8, of the Constitution, it is specifically
provided that the Congress shall have the power to make all laws necessary
and proper for carrying into execution, not only its own powers but also all
other powers vested by the Constitution in the Government of the United
States, or in any department or officer thereof."
(Presumably hinting at theDefense Department, though applying such law to
all Executive Branch Departmentts.)
Thus again, all Congressional law and treaty remain in effect, even when use
of force is authorized for the Commander in Chief.
So how can the President run around arguing per "quirin, " a supreme court
case 30 years or so before the War Powers Resolution was enacted, supersedes
the very specific War Powers Resolution of 1973? The AUMF is a tool of the
War Powers Resolution, and it is explicitly limiting, even demanding, in
reducing the Commander in Chiefs power to normal authorities even in time of
"authorized force."
How can the President claim such intent to reign him in is unconstrained? To
suggest the War Powers Act limits his authority is anti-matter to his 2nd
core argument that the AUMF, a statutory device and subordinate to the WPR,
is designed to GRANT him unchecked constitutional authority. The arguments
don't mix, water can not be set on fire. The language of the War Powers
Resolutions, cited in the AUMF, doom his argument #2.
Which forces him back to his first argument he tries not to rely on. In time
of special national emergency he might have some additional authority to
respond to the emergency before Congress can act, providing he report on his
actions, but even that doesn't get him very far. The most important
Constitutional provision he is trying to suspend is Habeas Corpus, the right
to appear in court. and the specific law of Habeas Corpus can not be
suspended even by the Commander in Chief in time of war.
So maybee he is just kidnapping citizens, holding them incommunicado, and
interogating them round the clock for years. That seem say it much more
simply.
6) Additional documents from earlier documents.
Part III The Supreme Court on the Yaser Hamdi case.
The new law of Detainees, until the 4th Circuit Court of Appeals, very
friendly to Bush, just basically defied it, in an interpretation not
entirely explicable. In fact, the 4th Circuit used the Supreme Court opinion
overturning their own original ruling on the issue, "citing" the Supreme
Court authorizing the very thing they were actually striking down, the
original 4th Circuit Court of Appeals decision.
Case-Hamdi: Yaser Hamdi was captured on the field of battle, perhaps, in
Afghanistan. Actually the Supreme Court wondered allowed in the Cert grant
if he wasn't just living there are the time. The details were murky, and
the case fizzled out into negotiation before resolution. The core of Hamdi's
case was similar to Padilla's except that Padilla was "captured" in a
non-combat situation (in a civilian jail) in the US. Other than that, these
cases are viewed as quite similar, and the Hamdi ruling impacts Padilla, who
the Supreme Court has not taken up.
Writ of Certiorari, Hamdi, similar to Padilla, but seized in Afghanistan
rather than in Manhattan, as Padilla was. October 2003. A Supreme Court
majority opinion authored by Sandra Day O'Connor dances fine lines in enemy
combatant decisions. While much of the language was hailed by civil
libertarians, significant issues were left undecided, or in some cases,
decided several ways which reflected choices under the law.
On detaining people from the battle field- The AUMF authorizes the President
to use "all necessary and appropriate force" against "nations,
organizations, or persons" associated with the September 11, 2001, terrorist
attacks. 115 Stat. 224. There can be no doubt that individuals who fought
against the United States in Afghanistan as part of the Taliban, an
organization known to have supported the al Qaeda terrorist network
responsible for those attacks, are individuals Congress sought to target in
passing the AUMF. We conclude that detention of individuals falling into the
limited category we are considering, for the duration of the particular
conflict in which they were captured, is so fundamental and accepted an
incident to war as to be an exercise of the "necessary and appropriate
force" Congress has authorized the Presi-dent to use.
The capture and detention of lawful combatants and the capture, detention,
and trial of unlawful combatants, by "universal agreement and practice," are
"important inci-dent[s] of war." Ex parte Quirin, 317 U. S., at 28.
Thus the pure detention of Hamdi was upheld, if the detaining principle
asserted by the government was that he was a lawful combatant, and the
government reached that decision by granting "lawful" status to the detained
even though he was a US Citizen, taking up arms against the US. Presumably,
under such determination, the detainee would be made available to the Red
Cross and other defined measures for lawful combatants would be in place.
This would go to a "least charges" option of the Government. The Supreme
Court used some inverted logic from Quirin to arrive here. In Quirin, the
Government wanted to try and execute, by military tribunal, these US spies.
In Quirin, the spy, Haupt, asserted he could not be tried by tribunal since
he was an American citizen.
The Supreme Court ruled in Quirin, in 1942 his citizenship, if it really
existed, did not matter. As an illegal combatant, he could be tried for
crimes militarily in the US by the US regardless of his citizenship. The
court today rules if the military had the authority to ignore his
citizenship in trying him for a crimes back then, it also had the lesser
authority of ignoring his citizenship and thus not charging him with
Treason, and keeping him a simple prisoner of war. It explained. While
Haupt was tried for violations of the law of war, nothing in Quirin suggests
that his citizenship would have precluded his mere detention for the
duration of the relevant hostilities. (as a lawful POW.)
By the availability of this option, this "menu choice" for the military, aka
Bush, the intent must apparently be to grant lawful status to the POW.
Citing the laws of war, the Supreme Court adds "It is now recognized that
'Captivity is neither a punishment nor an act of vengeance,' but 'merely a
temporary detention which is devoid of all penal charac-ter.' . . . 'A
prisoner of war is no convict; his imprisonment is a simple war measure.
And yet the government appears to disavow the no penal and simple detention
from the battlefield combatants characteristics. The incommunicado
detentions without regard to international treaty or human rights accords
belays the Governments use of this option and the Government is publicly
pressing these detainees as not only unlawful criminals, but among the most
dangerous there have ever been.
The Supreme Court, in the Hamdi grant of writ offered the other context as a
valid path. Going back to their instructive quote, "The capture and
detention of lawful combatants and the capture, detention, and trial of
unlawful combatants, by "universal agreement and practice," are "important
incident[s] of war." Ex parte Quirin, "
Yielding option 1, "the capture and detention of lawful combatants," option
2, "the capture, detention, and trial of unlawful combatants" appears to
come into effect by default of the first by "universal agreement and
practice" using the Quirin opinion as basis. Given that the Government is
denying the standard requisite recognized humanitarian aspects to the
detention of Hamdi (and also Padilla) the requirement of the criminal option
would appear to kick in. Interestingly, the quotes in this section were
sourced from the International Red Cross and Nuremberg laws, perhaps hinting
at the international requirements of lawful detentions.
On the AUMF: Preceding the line "the capture and detention of lawful
combatants, and the capture, detention, and trial of unlawful combatants,
but universal agreement and practice, are important incidents of war" was
the issue of the AUMF and the power it granted the President.
"We conclude that detention of individuals falling into the limited category
we are considering, for the duration of the particular conflict in which
they were captured, is so fundamental and accepted an incident to war as to
be an exercise of the "necessary and appropriate force" Congress has
authorized the Presi-dent to use. "
Here, the language is consistent with the AUMF interpretation I offer
earlier, that the AUMF authorizes, at least at minimum, normal use of
Presidential authority in the conduct of war. The O'Connor writes
"We conclude that detention of individuals falling into the limited category
we are considering, for the duration of the particular conflict in which
they were captured, is so fundamental and accepted an incident to war as to
be an exercise of the "necessary and appropriate force" Congress has
authorized the President to use."
In other words, the AUMF allows the President the ordinary act of ordinary
detentions, lawful or criminal, with an ordinary grant of power through the
AUMF. The Supreme Court, in its tradition of unnecessarily deciding matter
not required for a just conclusion, ignored any conclusion the President's
powers were expanded by the AUMF beyond normal war time authority, rather
his option to capture and detain POWs was long standing, and his option to
capture, detain, and try criminals was long standing. Congress or laws of
war already vested such powers to the President, ergo no special powers were
required to operate within those definitions given that the AUMF authorized
war.
Further on the AUMF, the Supreme Court states this. "Hamdi contends that the
AUMF does not authorize indefinite or perpetual detention. Certainly, we
agree that indefinite detention for the purpose of interrogation is not
authorized."
Nevertheless, the Supreme Court, in great deference to the President, did
not recognize the end of the War in Afghanistan, nor contest the conditions
of Hamdi's detention to date as non-POW like. This it is taking the
President at his "word," which he has not infact offered for either Padilla,
Hamdi, or any other US detainee of which secretly there are others, will be
treated as POWs. The President, in not so subtle defiance of the courts,
still refuses any conferred status or rights to the "detainees."
On the overall legality of "enemy combatant" citizen detainees held
incommunicado by the president
"We therefore hold that a citizen-detainee seeking to challenge his
classification as an enemy combatant must receive notice of the factual
basis for his classification, and a fair opportunity to rebut the Government
's factual asser-tions before a neutral decisionmaker."
Concessions to the Government, making it easier to conduct war.
"Hearsay, for example, may need to be accepted as the most reliable
available evidence from
the Government in such a proceeding. Likewise, the Constitution would not
be offended by a presumption in favor of the Government's evidence, so long
as that presumption remained a rebuttable one and fair opportunity for
rebuttal were provided. Thus, once the Government
puts forth credible evidence that the habeas petitioner meets the
enemy-combatant criteria, the onus could shift to the petitioner to rebut
that evidence with more persuasive evidence that he falls outside the
criteria. A burden shifting scheme of this sort would meet the goal of
ensur-
ing that the errant tourist, embedded journalist, or local aid worker has a
chance to prove military error while giving due regard to the Executive once
it has put forth meaningful support for its conclusion that the detainee is
in fact an enemy combatant. "
In other words, for simple "detainee" status, a neutral decision maker,
starting with the presumption the government is right, could basically be
give a quick pass on checking for a mistaken capture. This procedure,
however, appears only to contest "detainee" status. Should the government
find unlawful (criminal) conduct, there is no indication so light a
procedure would be the measure.
Also, its is ok for the Military, in conducting war, to hold people a little
while, until it can take its next step. The Supreme Court writes -
"We think it unlikely that this basic process will have the dire impact on
the central functions of warmaking that the Government forecasts. The
parties agree that initial
captures on the battlefield need not receive the process we have discussed
here; that process is due only when the determination is made to continue to
hold those who have been seized."
Finally, on the right for neutral review even just for "combatant"
determination, the Supreme Court continues "Because we hold that Hamdi is
constitutionally entitled to the process described above, we need not
address at this time whether any treaty guarantees him similar access to a
tribunal for a determination of his status. "
Interesting because the Supreme Court recognized, even for the most basic
category of combatant, accused of no wrong, a neutral review is required, it
found no reason to measure the requirements in international treaties of law
and war. However, if the Bush admin is still seeking to discount the
domestic legal obligations, the court offered no grounds one way or the
other on denying international requirements. Tellingly, however, the
willingness of the Court to review international requirements in the absence
of domestic ones may suggest a Court willingness to accept international
treaty, ratified by Congress, as binding on the President despite his
assertions about the AUMF freeing him of such.
Further, on the administrations arguments that by militarizing these
matters, all the relevant powers fall under the Commander in Chief, and are
beyond Congressional and Judicial interference, the Court disagrees, and
further states that it envisions itself as the neutral decision maker.
"In so holding, we necessarily reject the Government's assertion that
separation of powers principles mandate a heavily circumscribed role for the
courts in such circumstances. Indeed, the position that the courts must
forgo any examination of the individual case and focus exclusively on the
legality of the broader detention scheme cannot be mandated by any
reasonable view of separation of powers, as this approach serves only to
condense power into a single branch of government. We have long since made
clear that a state of war is not a blank check for the President when it
comes to the rights of the Nation's citizens."
Further -
"Likewise, we have made clear that, unless Congress acts to suspend it, the
Great Writ of habeas corpus allows the Judicial Branch to play a necessary
role in maintaining this delicate balance of governance, serving as an
important judicial check on the Executive's discretion in the realm of
detentions. See St. Cyr, 533 U. S., at 301 ("At its historical core, the
writ of habeas corpus has served as a means of reviewing the legality of
Executive detention, and it is in that context that its protections have
been strongest"). Thus, while we do not question that our due process
assessment must pay keen attention to the particular burdens faced by the
Executive in the context of military action, it would turn our system of
checks and balances on its head to suggest that a citizen could not make his
way to court with a challenge to the factual basis for his detention by his
government, simply because the Executive opposes making available such a
challenge. Absent suspension of the writ by Congress, a citizen detained as
an enemy combatant is entitled to this process."
In fact, much of the decision is peppered with pot shots at Commander in
Chiefs run amok. From here, the Hamdi decision fizzled down into an
individually negotiated agreement between him and the Government for him to
be released into the custody of a foreign government.
In short, and summarizing the Presidents attempt to become Judge, Jury, and
Executioner of US Citizens, in secret, the concluding analysis was .In so
holding, we necessarily reject the Government's assertion that separation of
powers principles mandate a heavily circumscribed role for the courts in
such circum-stances. Indeed, the position that the courts must forgo any
examination of the individual case and focus exclu-sively on the legality of
the broader detention scheme cannot be mandated by any reasonable view of
separation of powers, as this approach serves only to condense power into a
single branch of government. We have long since made clear that a state of
war is not a blank check for the President when it comes to the rights of
the Nation's citizens. Youngstown Sheet & Tube, 343 U. S., at 587. Whatever
power the United States Constitution envisions for the Executive in its
exchanges with other nations or with enemy organizations in times of
conflict, it most assuredly envisions a role for all three branches when
individual liberties are at stake. Mistretta v. United States, 488 U. S.
361, 380 (1989) (it was "the central judgment of the Framers of the
Constitution that, within our political scheme, the separation of
governmental powers into three coordinate Branches is essential to the
preservation of liberty");
Summary: The court held even for simple detentions, even in the most
difficult of circumstances, away from the courts on foreign lands of battle,
once a decision is made to hold someone, review is necessary. They also held
(by a majority of 5 plus Scalia, who was even more offended by the majority
at the unconstitutionality, thus dissented from the majority) that given the
decision to detain, non-penal human rights compliant detention standards
were required. In "upholding" this decision, Bush cronies from 4th Circuit
overruled it, and because of court appointment scandals related to this very
issue, Roberts and an additional Whitehouse Texas/Gonzales related Bush
appointee will be the final voice. Overruling of democracy complete,
evidence withheld, appointments for life finalized, new positions of power
to maintain the cover-up. Denying Habeas, kidnapping torture, political
suppression and obstruction of justice have always been illegal. Through
judicial activism. Bush has effectively already overthrown supreme court,
and packed it in defiance of advice and consent of the senate, and will make
such fiat law of the new land post legalizing it.
Part IV Padilla
Unfortunately, and it troubles me deeply to say this, the guilt or innocence
of Jose Padilla is almost irrelevant to this precedent. History makes clear
that when a military force can in a society arrest, on secret information,
and hold incognito citizens without access to a tribunal, guilt never
remains an issue for very long. In fact, Amnesty International is already
reporting that based on interviews from released Guantanamo Bay detainees,
northern alliance political affiliations seem to very credibly be the basis
for many of their detentions.
We don't really know for sure if Padilla has been tortured, but it seems
pretty certain, and it is likely that this is the reason he is
incommunicado, and the reason the Bush administration is denying him any
tribunal or hearing of record, even from within his own branch, his only
option to "speak" is to his interrogators, per the Bush administration, who
report only what they wish to report. Certainly others like Padilla who
were initially viewed as "high value targets" were, and this is the
precedent the Bush and administration has allowed to become public enough to
be the precedent, while at least six others like him are held, and possibly
hundreds of citizens after the 3,000 total rounded up after 9/11, their
names still not released.
The Bush administration admits to the use of torture, the only undefined
elements are of whom, and how much. We really don't know about Padilla. He
was incommunicado for years, and although of late he has by court direction,
and Bush's "benevolence" (he still does not acknowledge the right, but is
permitting it as a "courtesy" during this precedent case, he has not been
truly free to speak to the lawyer. Even now, that several private meetings,
albeit brief, were permitted, Padilla knows exactly what the interrogators
want him to know. He is beyond anyone's reach or help. If word gets back to
the Bush admin or their lawyers of any of his complaints, there is nothing
anyone in the US or internationally can do to help him.
The case law, precedents, and court proceedings to date in the Padilla/Hamdi
matters are vital to the shaping and scope of this county's ongoing
democratic traditions and laws. Following that developing case law, and how
it relates to the fictional scenario offered, will occupy the rest of this
document. The outcome of what has effectively become the new definition of
"enemy combatants," as the Supreme Court termed it "the addition of a third
option," neither criminal nor POW, is startling by itself.
But more pressing, if less discussed, is the political and humanitarian
backdrop of the Bush administrations arguments and motives, and what it is
trying to accomplish with its novel legal positions. It is a looming crises
for all involved, and a human rights tragedy still ongoing. This, the
political consequences of the outcomes are the high stakes that set the
stage for the legal considerations. The previous circumstances of his
incommunicado detention, the still continuing "coercive interrogation"
techniques used on him that the Bush administration has already denied to
the Supreme Court and, and his current incommunicado status, from the
public, from the courts, from the Red Cross, and other humanitarian
organizations, make the issue of the publics right to hear from Jose Padilla
central, and the necessity of the Bush administration to keep him hidden
indefinitely in military prison the guiding forces of the often bizarre
legal positions being argued and not so subtle defiance and power struggle
occurring between the various branches of government and the courts
themselves.
This may be where the Bush administration ultimately backed itself into a
corner. The situation the Bush administration now finds itself in can only
be described as "highly committed" in its strategy, and for all practical
purposes, could not survive the political impact of Jose Padilla ever been
seen in public again or having him ever heard from.
The Bush administration was already in political trouble for "overselling"
Padilla's importance in the war against terror like they over sold Sadam
Hussein. While long describing him as a "dirty bomber" it turns out that
such a plan had barely more than come up in conversation before being
rejected, and the administration has now backed off that claim. Padilla, a
troubled gang member of 20 years old, with barely sufficient technical skill
only to insert batteries into his Walkman, and only then because the lid has
pictures, allegedly suggested he start his own nuclear bomb program based on
readings from the Internet. That idea politely rejected, he suggested a
dirty bomb. Nope, the plan was that he was to blow up apartment buildings
by leaving the natural gas turned on, relying on few advanced technical
skills. And the Bush administration now concedes the little actual evidence
they have against him is based on information tortured out of others, and
would be highly inadmissible in almost any proceeding. In fact, the
unrealistic nuclear bomb idea and other signs from him indicate more of a
somewhat confused and naïve prison recruit than a highly trained super
terrorist. Even in the case of natural gas being left on, naturally odorless
natural gas is heavily spiked with a pungent aroma so leaks can be smelled.
It would be hard for a whole apartment building to fill with it undetected.
That is just what the aroma is designed to prevent. And it appears Padilla
was kind of lost loaner of twenty, much like the fumbling "shoe bomber"
having difficulty interacting with people.
With that already known, Ashcroft rushed out and publicly hailed Padilla's
capture as averting a major radiological catastrophic event, and over
exaggerating threats and intelligence and engaging in the public
grandstanding became a hallmark of Ashcroft for as long as he continued in
the DOJ. And while the campaigning and accusations have been frequently
forthcoming from the Bully Pulpit and DOJ against Padilla, it has not been
lost on political observers and those sensitive to democratic traditions
that Padilla's incommunicado status prevents him from responding. He cannot
plead innocent or guilty, he cannot beg forgiveness or throw himself upon
the mercy of the people or of a court. His side is simply not to be heard
or reported and his private interrogations will go on indefinitely, and the
matter of his innocence or guilt is never to reach the courts.
In fact Padilla already may long have been confessing and throwing himself
at the mercy of his captors for forgiveness. Such seems to have been the
goal of his interrogators. Before the torture memo became public the Bush
Administration argued before the Supreme Court why it was important he never
be allowed to meet with a lawyer, ever, not realizing the Torture Memo later
would leak out, making this an incendiary issue.
Meeting with a lawyer might interfere with them trying to break him. They
wanted to make sure he lives his life in a hopeless condition, no
expectation of release, totally powerless against his captors, with no
trial, no visits from anyone on his side or sympathetic to him, and no
suggestion that there may be any outside hope for him. As the Lt. General
for intelligence described the psychological condition he must be maintained
in, and a visit from a lawyer would interrupt it this way. He must develop
"trust and dependence" only upon his captors.
The military interrogators must be perceived to be the only and final
authorities in his life, they must be his only hope, and he must come to
believe in them, and "trust" in the in the sense of an almost spiritual
concept of them having become the supreme power in his life, those who are
his only true judges. This psychological condition must be developed and
maintained over the years of his capture, and it must be continuous and
ongoing.
From there it went downhill, and may perhaps be where the Bush
administration became locked into its position, holding a torture victim
incommunicado, who like Sadam Hussein, ended up at minimum of not being
guilty of quite that much as originally hyped, certainly at least not as
sold to the public, having already lied to the Supreme Court about the use
of torture and getting caught by a leak, and the defiance of the President
of Congressional and international law which the torture of Padilla would go
to the heart of. If Padilla has been tortured, and disturbing gruesome facts
began coming out, detail by detail, the political tides on his case could
turn fast.
Starting with the Torture Memo becoming public, authored by Alberto Gonzales
and signed by Jay Bybee, the Bush administration was acknowledging few
bounds on the use of torture for detainees such as Padilla, and outlined
such in the Torture Memo. Some of the language follows.
"Allowed are severe mental pain not intended to have lasting effects (pity
if they do.), and physical pain less than that which accompanies "serious
physical injury such as death or organ failure" (p. 46). Having opined that
some cruel, inhuman, or degrading acts are not forbidden, only those that
are "extreme acts" (committed on purpose), the memo moves on to "examine
defenses" that could be asserted to "negate any claims that certain
interrogation methods violate the statute."
Before this memo was made public, Bush had already appointed, and the Senate
confirmed, Jay Bebee, one of the memo's signators, to a lifetime appointment
to the powerful 9th Circuit Court of Appeals. It was authored by Alberto
Gonzales, his close friend and appointment to the Attorney General post.
And carry out this torture memo they did. One of the techniques of
"psychological torture (because it did not result in organ damage) is
described from a interrogation procedure.
"Definition: Waterboarding is a technique used by interrogators to extract
information from a subject. The subject is strapped to a board and lowered
into the water until the subject believes that they will drown. The subject
is then taken from the water and resuscitated. If necessary it is repeated.
The technique is designed to be more psychological than physical, as the
victim is led to believe that he or she is being killed. This technique
strengthens the interrogators control of the subject and makes the subject
experience the fear of death."
In fact there have been some documented deaths from such techniques, and
many more deaths "unexplained." In Bagdad International Facility (BIF) one
suspect drowned undergoing water boarding and another died of heart attack.
They were using a similar suffocatoin technique on him, crushing down on his
chest with so much weight that he was unable to breath. The suspect died
from a heart attack induced from the struggle of trying to get free to
breath in panic. Many other autopsies have been skipped, or access to them
have been denied. Recently a soldier was sentenced to two months after the
death on a prisoner, among other abuses they had been hoisting him up by his
ears. Among the techniques the Bush administration still ascribes to
publicly for "coercive interrogation" of enemy combatants is chaining them
up against a wall spead eagle on their toes, with all the rest of their body
weight being supported by their fingers, while their feet cramp from trying
to keep the tension of their fingers for long hours.
Maintianing Padilla as an incommuncado prisoner is being justified under the
same basic authority of "the Commander In Chief's" power to conduct war,
whch any interference from other branches would unconstitutionaly intrude
upon, leaving it up to him to decide how he needs to fight the war.
This is a typical analysis of the Walker Memo, the compainion document to
the Torture Memo, outling the Presidents righ to use torture.
"This memo also has a full dose of the royalist vision of the Presidency
that informs the Draft Walker memo. In the views of the author(s), there's
basically nothing Congress can do to constrain the President's exercise of
the war power. The Geneva Conventions are, by inevitable implications, not
binding on the President, nor is any other international agreement if it
impedes the war effort."
In fact, "coercive interrogation" is banned by international law, but Bush
does not recognize that as binding on him as Commander In Chief.
Padilla must not speak. Judge Roberts, appointed to the Chief Justice of
the United States role, authorized continuing incommunicado detentions.
Bush's Dept. of Justice head, and his 9th Circuit Court of Appeals
appointment wrote and signed the Torture Memo. Bush has deeply publicly and
legally committed himself to the stance that Padilla is protected by no
laws, domestic or international, that he is a particular deadly strategic
threat, and that he qualifies for no existing legal protection, and Bush
also argues that no law governs Bush himself in exercising his powers as
Commander In Chief upon his own discretion. Padilla can be and has been
tortured, and Bush has the authority to torture him. The Bush administration
now has more or less acknowledged the use of various tortures at various
times, but no high profile torture victim with a human face and a human
story has been able to come forward in public and describe it, particularly
one they already claimed they wouldn't torture under oath.
Despite Padilla having at most two moths training by the Taliban, they have
built him up in public and in repeated testimony to the courts to be an
almost unfathomable strategic threat and unprecedented danger to the United
States. Too dangerous for anything but indefinite incommunicado detention.
For the political fortunes for the war against terror, the Bush
administration's credibility before the courts, the public, and the world
and his appointees, and his overall agenda, that perception must be
maintained. What is at stake here, and what the Bush legal team is focused
on, is keeping this issue under the rug and Padilla in indefinite legal
limbo, lest these issues Padilla surface through public forum or trial.
6) Fifth Iteration. More democracy related docs regarding civilian
justice. Part V of a previous document and part VI of that document, how it
is the law of the land.
PART V - ARREST SCENARIO
The door goes crushing down off its hinges to the floor of the living room
and soldiers stream in fanning out, pushing your family back as you are
thrown to the ground and your arms and legs are wrestled behind you. You can
hear screaming but at first you can't tell if it is your wife or your
daughter and you can't turn you head, someone's knee is blocking your view
anyway.
Your cuffed, lifted back up by your cuffs as they bite into you and shoved
towards the door. You are forced into the back of a black SUV, one of three
in convey, and your head is pushed down below the windows.
The Commander in Chief has named you an enemy combatant, and you have been
detained from the battlefield. You don't think you know for sure about
that, but that may be the way its going to stay. You can protest being in
captivity to your interrogators, but they owe you no information, and you
wont get any. Its all over now, there will be no chance to contest it, and
this is the way its going to stay.
You don't know if you will ever see your wife again, someday, the Commander
in Chief may suddenly decide to release you, maybe not. What would you say
if you were released? What if you garnered some public support? Your not
going anywhere.
You were pulled away from more than just your family. You were pulled away
from your country. Congress can't get to you or get word to you, neither can
the courts, nor you to them. Your incommunicado, and Bush won't grant
Habeas.
Habeas went away with everything else. "By law" he refused to make you a
POW because you are a criminal. You have been deemed neither, but a
Conspirator, some one engaging in battle by conspiring, whenever you are
thinking, you are conspiring, and you are in battle. Wherever you are, by
definition it is a battlefield
The Commander In Chief was very accurate in how he described you. He
refuses any legal context or applicability of law towards you. You are no
longer in any legal system, no government process is relevant to you, and
bound hy any rights you otherwise might have had. Free speech, Habeas
Corpus, right to a speedy trial, federal law, state law, interntional
courts, animal rights laws, none of it is for you. There is no place where
law would occur. No courts, no judges, no juries, no procedures, no
proceedings. Nothing relate to you.
Of course there will be no lawyer. With no laws that apply, no courts that
have jurisdiction, you being held incommunicado from the Congress and its
laws no longer applicable to you, and no right to make a statement to anyone
or the record, if there were one, what possible use could a lawyer be when
there is no law and there is no court and there is no evidence and there is
no charge and there is no verdict.
Simply, you are a caged animal now with language abilities. Nothing else
applies. What would you use your lawyer to complain about? With no Bill of
Rights, no Constitutional rights applicable, what are you going to claim?
Cruel and Unusual Punishment? If nothing else applies, why does that? And
not being a POW and your citizenship ended on the living room floor, being
less than a criminal, no more than an animal the President posses, there is
only one other thing the Government is left to deny you. And it denies you
that too. The Emancipation Proclamation doesn't count for you either.
The Commander in Chief is allowed to capture from the field of battle, which
is everywhere, He names you a conspirator in the war of ideology and a named
combatant, which makes you subject to capture and caging by him, and perhaps
tortured and force to service as his personal reference set of information
on demand. He needs such people to name other conspirators, so you better
begin before it starts getting too unpleasant. Give them some names.
Part VI the law of Part V
"The door goes crushing down off its hinges to the floor of the living room
and soldiers stream in ."
The last tattered vestiges of Posse Commitatus, per the most recent ruling
in Padilla (4th Circuit Court of Appeals) have passed in to history, and
with it, any concept of civilian supremacy or separation of powers.
Hear first he oral augments of the Padilla Case before Luttig, author of the
4th Circuit Court of Appeals opinion, and Patel, Padilla's lawyer.
(Excerpted by Tom Jackson of the Washington Post.)
"Luttig posed a hypothetical in which the president learned that a terrorist
was about to bomb a building in Manhattan. "Does he have to call a U.S.
attorney and wait for the man to be picked up by civilian law enforcement?
If the president sends the military, it's illegal?" Luttig asked.
"If the military picks him up, he must be surrendered to civilian
authorities," Patel said.
"We might as well not have a president of the United States," Luttig said,
"if his hands are tied behind his back to protect the citizens of the United
States. . . . This is a failure to appreciate the real world circumstances
that can confront a president of the United States."
What is fascinating to this argument of Luttig, about the need for the
President to "protect" us with such powers, is that he failed with the
powers he has. Al Queda tried to hijack a French commercial jetliner in
Paris and fly it into the Eiffel Tower. Everyone know about it, even the
press. Hostilities were heating up with Al Queda, and we had just indicted
in absentia Usama Bin Laden in October, 2001. Bush received a memo from his
National Security Advisor, Condeliza Rice, that "Al-Queda was determined to
strike inside the United States" and listed possible buildings in New York.
Israel, for years has been securing the cockpits of planes so they could not
be used as aerial missiles, and using Sky Marshalls. We have for years
foreseen such possibilities, and designed reactors from planes being flown
into them. Yet the President, on hearing this briefing, ignored it. The
FAA, Department of Transportation, Department of Justice, FBI, any agency
that might have been referred this, Bush thought unimportant and moved on.
With military detentions now being used, military interrogations, military
intelligence, the appearance on RADAR of a "terrorist threat" has almost no
other possible locus of occurrence than inside the military. Apply the
standard applied rationales, "We had to act because we didn't want to tip
anybody off" "We had to act right away before the subject might have
escaped" the idea of military capture seems to be taken for granted.
If there were any doubt, consider what is now a new form of "arrest warrant"
issued by the Commander in Chief to the military in a Military Order in
frighteningly redacted fashion for the military seizure of a Citizen, a
disarmed citizen sitting in jail disarmed, not to turn him over to civilian
authorities and the courts, but to keep him away from them. Indefinitely.
Here is the "order" or the President issues arrest warrant for a guy in
Manhattan.
http://news.findlaw.com/cnn/docs/padilla/padillabush60902det.pdf Very
frightening redactions on this internal military arrest warrant for use
inside the US, and to explicitly take people out of the US criminal justice
system and courts for indefinite incommunicado detention.
As far as he Commander in Chief's rules on these internally decided military
arrests in the US on US Citizens, hearsay, that is to say info tortured out
of someone else counts, and this is the very intelligence infrastructure he
used to phony up charges against Sadam Hussein to settle a family grudge at
the cost of so many soldiers lives. And none of this is subject to any
review, even inside the military, by order of The Commander in Chief.
And as for where the battlefield is, and thus where "enemy combatants" can
be seized from? The conversation continued in the 4th Circuit, with Luttig
(the Bush appointee Bush jr is considering for the Supreme Court) and
Clement, the Bush Administration's lawyer, saying -
"Luttig repeatedly pressed Clement, even after the solicitor general noted
that Padilla's alleged intentions as a soldier of al Qaeda -- to target
civilians -- constituted "unlawful combatantcy" even if he were on a
battlefield in uniform.
"Those accusations don't get you very far," Luttig replied, "unless you're
prepared to boldly say the United States is a battlefield in the war on
terror."
Clement answered, "I can say that, and I can say it boldly."
I wonder if he included the Floor of the House and the Well of the Senate in
that?
These are now the laws of the land, unless the Supreme Court overturns, but
with Roberts already having ducked the detainees scandal and made it to
Chief Justice, it is unlikely to be reversed.
7) Conclusions. How much illegal treatment has occurred to enemy
combatants? Was there any perjury (not corrected within thirty days) before
the courts? Where there knowing misstatements to the courts and press
regarding Jose Padilla's activities? Is in fact kidnapping and torture by
the Executive branch of US and non US Citizens legal now if the President
deems it appropriate? Are Congresses laws binding on the President? Did
Luttig and the Executive friendly 4th Circuit Court of Appeals effectively
overturn the Supreme Court using the same Nolo Comprender logic of "if I don
't understand the law, I don't have to obey it" mechanisms? What is the DOJ
's rightful role in this. If it is a matter of military conflict, should it
not be international law and guided by the State Department and possible war
crimes by the Executive Branch?: Or does the President argue the military is
at war with US Citizens, thus international law is to be excluded? Can
Habeus Corpus be suspended by judicial activism, if it ever has been?
When a simple finance matter (Reagan bypassing power of purse of Congress in
conducting war) and what, if any of the speculative matter of this document
bear out, by comparison could be a relatively minor cover up by Nixon
regarding a break in, and a simple tape redaction, how could this compare?
Is an outside independent evaluation with full investigative authority
required? I believe so, no because there is necessarily strong evidence,
but because the conflicts of interest in investigating this matter do exist.
Final point of coerced servitude of captives. This is a difficult area,
since it raises the problem of not guilt by association, but value by
association, or knowledge. As with Hamdan, who even the Government asserts
has little evidence he was involved in any specific criminal illegal plan,
they mostly just assert he knew such people. That is what establishes his
guilt, and even more ominously, his value as a captive. The degree to which
the Government is allowed to continue to argue before he courts that it is
of good value to capture people for who they might know, or locations
drivers of dissidents may have dropped of or picked up people at, or
describe what people might be able to name names or implicate others..this
should not be a basis for capturing people. This is plain old traditional
fascist "we have ways of making you talk" information gathering.
Appendix
[on radicalism, also from an earlier document I wrote.]
Old doc of mine (month ago) on radicalism
(old and long doc) Terrorism not new, closely associated with valued
radicalism.
Radicalism and the "new threat" of asymetric terrorism.
This is from a much older (a month ago) doc I had worked up. Summary:
Radicalism has always been the heartbeat of american social progress.
Radicalism is always tied to fringe element politics and violence, even
mainstream religions. Catholics and Protestants aliike in the Irish
Troubles, Eric Rudolph, abortion clininic bomber, McVay, right wing
extremist, etc., But more often than not, trimming away the violence with a
fair criminal justice system respectfull of politics, underneath social
upheavel is found the causes of social unrest and thus social progress.
_________
US Citizens, attacking the US both at home and abroad, are being captured.
Though citizens, they hate us and our policies, and are pledged to our
destruction. They are in loose "cell" structures plotting significant
criminal attacks, and doing so at the calling of ideological opponents of
the US.
Is this a new "asymmetric threat" the commander in chief needs new authority
to address? Its war upon an ideology rather than a country, though foreign
countries are supporting our ideological enemies who are calling for our
downfall. Is this new? Hatred of the US, political agendas, loosely aligned
terrorist organizations carrying out attacks on the US and civilian targets,
moderates from the extremists, foreign enemies and involvements?
Such unrest has existed throughout our history, and in fact has almost
always been the epicenters of our most now treasured social and legal
changes. Consider first Marxism. Marxism was spread across multiple
countries communist countries actively exporting their call for guerilla
warfare and revolution, as multiple Arab states call for Islamic revolution.
Communism came to the US political stages starting in the fifties at the
same time we squared off with our former ally the Soviet Union. Initially it
was seen as enemy ideology, which it was, and government acting upon a very
political stage attempted to root it at through loyalty oaths, Un-American
Activities hearings, and general acts of repression which met with public
disapproval and in fact were so un-American in their own right may have
spurred the communists on.. Marxism got its chance to play out on the US
political stage, subversive activities and all, where it thrived before the
US adoption of more progressive social and political policies which were the
direct result of the movement.
But they were not easy times. Cells, groups like the Weather Underground and
Symbioneese Liberation Army sprang up with attacks, murders, and bombings
such as one conducted against the US Capital, and there were hijackings. A
loosely aligned maladjusted follower, not dissimilar in profile to Jose
Padilla or Mousoaui, assassinated our President John F. Kennedy, one of the
world's most beloved leaders. And this assassin had visited our communist
adversaries including Cuba, with whom we had just recently averted a nuclear
war with, and the Soviet Union. Those visits were in support of those
countries (our adversaries) attempts at exporting communism.
Yet in spite of all this, America looked underneath the violence, listened
to the politics, and openly debated the issues. In fact, Americans not only
participated in the political debate, they insisted on it. Efforts by the
Department of Justice and FBI to act too secretively or undemocratically
towards even radical political organizations were carefully monitored for
democratic protections. And those who were the violent extremist faced their
days in courts, criminal courts, where they answered for their crimes before
the public. The history is relatively clear now, the movements were made up
of a spectrum of moderates to extremists to criminals, and the criminal
justice system is what sorted them out, while the politics were aired out in
full. International political and religious discord and subversion are older
than our country itself, and nothing our framers did not anticipate.
Many important precedents may have been set during the later half of the
Twentieth Century, including non-precedents in prosecution. Consider the
case of Jane Fonda, who in time of war, visited a North Vietnamese Army
camp, posed with anti-aircraft guns, spoke of shooting down American pilots,
and like many others, engaged in fundraising for Communist activities, which
were sometimes most likely difficult to trace on how they got used. Was she
a foreign combatant in foreign training camp? On return to the US, should
Nixon have had the military arrest her at the airport, declared her an enemy
combatant, held her incommunicado as an enemy of the US in a military brig
until Marxism could be defeated? Were preachers of communism in general who
openly called for the downfall of the US and attacks against it terrorist
who also belonged in a military brig without a lawyer, effectively silenced?
Was that incitefull hate speech? Were they crying "fire?"
But this was not the only violence prone social phenomenon of the modern
era. Consider the Civil Rights movement, and its ties to groups like the
Black Panthers, still openly guerillas to this day. Just visit their web
site. www.marxists.org/history/u...-panthers. Malcom X and others in today's
world could easily find themselves seized off the streets by the military
and held incommunicado indefinitely under orders from the president as a
domestic terrorist. But what then about those ties to the outlawed African
National Congress and criminal conspirator (against our South African alley)
Nelson Mandela? Perhaps it was international terrorism?
At most, we have prosecuted politically motivated crime, with intent even
upon the death of our beloved President, as just that-crime. Actually, self
styled revolutionaries from the IRA on have demanded POW status, and we have
long denied them that protection from criminal prosecution. Attacks upon us
are criminal, and will be tried as such, while an atmosphere of free speech
and public trials are held intact. Even treasonous collusion with our enemy
is a criminal act. This model is very much like the British and Irish
troubles. The militant Irish Republican Army has long been a politically
motivated domestic terrorism organization, whose members, like Bobby Sands
(who desperately wanted POW status) have always been prosecuted as criminal,
where as the political wing of the IRA, Sien Fein, has long been a domestic
player in Irish politics, accepted by all. Much like Communist ideologists,
who called for our destruction, and the criminal underground cells that
attempted it. We differentiated between the crime and the ideology, and we
tried the criminals in court.
Who might the religious extremists, the criminal terrorist be today? The
Islamics? Perhaps, many things about Western society they don't like,
because it contradicts their religious teachings. Some are given to violence
and terrorist acts against us. Or perhaps is the Protestants, or the
Catholics. Consider the public threats and bombings carried out against
medical facilities that provide abortions by Christian extremists. And when
Eric Rudolph went on the run, after bombing the US Olympics on the world
stage-post 9/11, killed cops with bombings, many right wing protestant
organizations were quietly suspected of aiding his escape and hiding. Yet do
you see our Protestant President offending the base by naming his fellow
right wing Christian's "terrorists" seeking out "cells" who supported him,
and throwing them into military prisons incommunicado? Precisely the
opposite, Rudolph got a softball life in prison plea instead of death in the
criminal civilian courts, and Bush continues to name activists Christian
appointees to the courts.
More on Presidential authority and politics later. But for the historical
context of the war against terror, its worthy of note that in the past we
have suffered greatly from terrorism, but actually managed to increase
federal authorities sensitivity to democracy, free speech, and the open
political debate while relying on the criminal justice system to preserve
order, and open public debate and the market place of ideas to remain open
to such "radical" ideas (as they seemed at the time, so recently) equal
rights, improved legal, housing, and other social safety nets for the poor,
and political openness and constraints on federal intrusions into domestic
politics and surveillance, all the while facing the same kind of threat we
face to today.
Are Islamics parrellel to Protestants? To Communists? Are the Black Panthers
similar to Al-Queda or the IRA? Were the Weather Underground just
radicalized followers of Marxists, like Alqeda follows Islam? Were the
foreign ties of the civil rights struggles for blacks or the Marxists
ideologies un-American and criminal? Is ideological struggle, the call for
the downfall and attacks upon the US, and criminal groups aligning
themselves with radical beliefs a new challenge for the country that must be
met with what amounts to a dictatorial internal war against "hate speech?"
Historically, the challenges for our democracy or for our law enforcement do
not seem as new as those calling for new powers and the curtailment of
access to the cours would like us to believe.
It is also potentially telling that out of our worst and painful upheavals
have been the sources of our most valued discoveries of social injustice and
progress. This may not be counter-intuitive. To the degree that anger,
malcontent, discord, and disaffection reach such levels as to become
socially disruptive and take on a political manifestation it has often been
a red flag to some level of underlying social injustice. History has not yet
been played out on this, but it is likely that in dispassionate evaluation
of the historical context of 9//11, great pain and suffering in the Middle
East, systemic US foreign policy oversights in addressing the humanitarian
issues, and lower than optimal understanding of Islamic perspectives in the
region by US policy makers, and politicians, will have played a role in the
foundations of the hate. If the perspective of the Islamic terrorist is
considered rather than suppressed, we will arrive upon our societal (rather
than dictatorial) answer that much more quickly.
It is also likely that more movement towards fascim will inspire more
resentment from not only the racialy profiled, but all sectors of
dissafected populations, displaced workers, etc., and and inspire
anti-government violence across the board.
Additional links
http://slate.msn.com/id/2126681/ (UCMJ laws the President is not abiding by)
http://humanrightsfirst.org/us_law/inthecourts/hamdi_briefs/Hamdi_SCt_Decision.pdf
(Supreme Court decision on Hamdi closely related Padilla except for where he
was captured (on foreign soil, which government argued made Habeas more
difficult than would be in Padilla,)
http://sfcathoderaymission.blogspot.com (my blog, source of some of the
inserted documents into the later iterations for detail.)
http://news.findlaw.com/legalnews/us/terrorism/cases/ (FindLaw coverage of
terror cases except for Hamdi decision.) |