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Due process

The 2nd Circuit Court of Appeals has decided that Jose Padilla cannot be detained as an enemy combatant (previous commentary here and here). The court decided that an American citizen,…

The 2nd Circuit Court of Appeals has decided that Jose Padilla cannot be detained as an enemy combatant (previous commentary here and here).

The court decided that an American citizen, on American soil, outside of a zone of actual combat, could not be classified as an enemy combatant.

It did note that the government did, in fact, have “ample cause” to link Padilla to a “terrorist plot,” but that didn’t give it the power to essentially indefniitely detain him in a military brig. On the other hand, the court’s instruction was not to release Padilla altogether, but only from military custody; it noted that he could be turned over to civilian custody under criminal charges (with the rights and protections that also provides), or even held as a material witness for grand jury hearings.

The result feels reasonable, since indefinite detention of citizens on US soil seems to be a process that(particularly in the context of the War on Terror) is most open to possible abuse by the executive branch.

No word I’ve found yet on whether the Bush Administration — which had argued that federal courts had no jurisdiction to review what it interpreted as military actions — will ask for a stay, a review by the full Circuit, or appeal to the Supreme Court.

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6 thoughts on “Due process”

  1. For all my life until the last year or so one of the defining differences between the Land of the Free and the Home of the Brave and various Commie Sh*tholes was that we did not hold people in custody without charges for long periods of time. In America, people had rights. America even treated enemies under the rule of Law. That sort of thing was what they did in China, the USSR, Cuba… and a large array of “authoritarian” (semifascist kleptocratic dictatorship) pseudo-allied third world wrecks.

    Now, due to Ashcroft, Bush and company, that distinction no longer applies. We just don’t do it as much. The detainees don’t get tortured in ways that leave marks. Yet. Probably. They don’t get tossed out of airplanes over the Atlantic. Yet. Maybe never. Maybe.

    Ushering America down that road isn’t treason, but it is a betrayal of the American dream.

  2. I agree that keeping citizens locked up is wrong. I have no idea if Padilla really was ready to do the things they claim. But he is a citizen, he has rights. What the Bush administration did was wrong, in this case.

    As for non-citizens…there, I am torn. On the one hand, I can see that the people who attacked us were not citizens–they were here illegally or for evil purposes, so we should ensure that those who are here illegally are tossed out or made legal.

    On the other hand, most of my ancestors came here illegally, so I feel that once they are made legal in status they should be offered a speedy road to citizenship (ESPECIALLY if they serve in the US military!).

    As for enemy combatants who are not US citizens…our treatment of them is nothing compared to what happened to my colleagues and associates in the WTC. Let them rot.

  3. We don’t need any extraordinary measures for dealing with non-cits suspected of crimes, conspiracy, aiding and abetting or whatever in the US. We have procedures already in place. These procedures have oversight built in though, something Ashcroft & Co. cannot abide.

    The treatment of captured enemy combatants is regulated by the Geneva Convention. (With no rules you get things like the Bataan Death March.) We either stick to the rules we’ve ratified into law by treaty or we don’t. If we don’t, without repudiating the treaty first, our word is worthless. “Words on paper,” as both Saddam and Hitler said. Not the company I want my country to keep.

  4. Here’s the White House response from spokesman Scott McClellen:

    “We believe the Second Circuit ruling is troubling and flawed. The president has directed the Justice Department to seek a stay and further judicial review.”

  5. Selfishly, I am more concerned with the abuse (actual or potential) of governmental powers against citizens than non. Thus, while I am not completely sanguine about the incarcerations down in Gitmo, they concern me less than the assertion that the President can throw anyone’s ass in the brig, indefinitely, with no review, simply by claiming it’s a military/security/terror need. Even if I thought Dubya was the most upstanding, moral, and trustworthy fellow I’d ever known, there’s always the next administration. Or the one after that. Or the one after that. Bad policies come and go; bad legal precedents go on forever.

    I can understand (or am willing to believe) that the Bush Admin is faced with a compelling security threat to the US and is responding by pushing as far as they can. I can even believe that they feel they have to push, and are willing to let the courts determine the point past which they cannot push. I don’t believe that’s a wise strategy, even from that charitable perspective — but, then, I don’t get daily briefings on security threats, either.

  6. Yeah. I don’t want me or mine to be subject to that kind of abuse. “Trust us, we’re the Government” is not an argument I find persuasive.

    “When Hitler attacked the Jews I was not a Jew, therefore, I was not concerned. And when Hitler attacked the Catholics, I was not a Catholic, and therefore, I was not concerned. And when Hitler attacked the unions and the industrialists, I was not a member of the unions and I was not concerned. Then, Hitler attacked me and the Protestant church — and there was nobody left to be concerned.”
    — Martin Niemoller

    Not that Bush or Ashcroft are Hitler but business is business. This isn’t the kind of thing a wary person can afford to let slide.

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