The UN, US and Iraq IV

August 21, 2003

Jose Padilla: No Charges and No Trial, Just Jail

by Robert A. Levy

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.

Jose Padilla is the U.S. citizen who supposedly plotted to detonate a "dirty bomb." Since his capture -- not on the battlefields of Afghanistan or Iraq, but at Chicago's O'Hare Airport -- he has not been charged with any crime. Yet, for more than a year, Padilla has been held incommunicado in a South Carolina military brig.

Padilla's indefinite detention, without access to an attorney, has civil libertarians up in arms. That's why the Cato Institute, joined by five ideologically diverse public policy organizations -- the Center for National Security Studies, the Constitution Project, the Lawyers Committee for Human Rights, People for the American Way, and the Rutherford Institute -- filed a friend-of-the-court brief in Padilla v. Rumsfeld, now pending before the U.S. Court of Appeals for the Second Circuit in New York.

Consider this specious logic, endorsed by the Bush administration: Under the Sixth Amendment, the right to counsel does not apply until charges are filed. The government has not charged Padilla. Ordinarily, U.S. citizens cannot be detained without charge. But the administration has avoided that technicality by designating Padilla as an "enemy combatant," then proclaiming that the court may not second-guess his designation.

Essentially, on orders of the executive branch, anyone could wind up imprisoned by the military with no way to assert his innocence. That frightening prospect was echoed by J. Harvie Wilkinson, the respected and steadfastly conservative chief judge of the Fourth Circuit. In a case involving another U.S. citizen, Yaser Hamdi, Wilkinson warned, "With no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel." Judge Wilkinson upheld Hamdi's detention but pointedly noted that Hamdi's battlefield capture was like "apples and oranges" compared to Padilla's arrest in Chicago. "We aren't placing our imprimatur upon a new day of executive detentions," Wilkinson cautioned.

An unambiguous federal statute and the U.S. Constitution both prohibit the executive branch from doing to Padilla what it is now doing. More than three decades ago, Congress passed Title 18, section 4001(a) of the U.S. Code. It states, "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Today, we have not had from Congress any statute that authorizes Padilla's detention.

Yes, Congress enacted the PATRIOT Act, which says that non-citizens suspected of terrorism can be detained, but only for seven days. After that, they have to be released or charged, unless the attorney general certifies every six months that they present a security risk. Two months earlier, Congress had passed a resolution empowering the president to use all necessary force against the 9/11 terrorists. But that resolution surely did not give the administration unfettered discretion to detain citizens without charge. If it had, then the ensuing PATRIOT Act would have afforded more protection to aliens than to citizens. In the wake of the 9/11 attacks, that proposition is incredible.

Reasonably construed, Congress' resolution on the use of military force triggered the president's commander-in-chief authority. He could then order seizure of enemy soldiers and detention of persons found in a zone of active combat. But he could not order the imprisonment, without charge, of an unarmed non-soldier far from active combat, especially a U.S. citizen on our own soil.

Nor is the administration justified in its reliance on Ex parte Quirin, the Supreme Court case involving eight Nazi saboteurs, one of whom was an American citizen. The executive branch acted in Quirin in accordance with congressional authorization. The eight Nazis were represented by counsel, charged, tried, and convicted. Here, by contrast, Padilla has been denied any chance to defend himself. He has seen no lawyer; he has not been charged, much less tried and convicted. And he has been imprisoned notwithstanding a 30-year-old statute that expressly forbids the unauthorized detention of U.S. citizens.

Padilla may deserve the treatment he is receiving -- perhaps worse. That is not the point. When Americans are taken into custody, they have the right to retain an attorney. Congress must first set the rules. Then an impartial judge, not the president, should make the ultimate decision as to whether the arrest and imprisonment comport with the Constitution. James Madison, in Federalist No. 47, put it succinctly: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny."

This article was published in the Chicago Sun-times, Aug. 11, 2003.

Quote:

lots of folks who saw Wes and Tim fencing this morning were more than a little taken with the impression that Wes was more hothead than hero .

This is an issue that has bothered me about Wesley Clark. I'd like to know more about why he was suddenly decommissioned.

So do you like any of the Dem candidates, Timber?

Memo to self: Ask not and you shall not receive.

Timberlake is real typical of these Repub. smear masters. No evidence but then their motto is: Facts? We don't need no stinkin' facts.

Timber

Quote:

Gel, lots of folks who saw Wes and Tim fencing this morning were more than a little taken with the impression that Wes was more hothead than hero ... I suspect he'll take some heat for that venture into near intemperance from among The Other Eight

Timber, could you put more of a face than 'lots of folks' on your rheoric? Why the **** is it that republicans think that just because they utter it ..... its true? Back up what you claim for gospel just once ... give a source !!!!!!

DAMN

Oh, yeah ... it was that "lots of folks" thing that got all this goin' wasn't it? Haven't really hunted down any links on that. Here's one, and another... its an active topic in the conservative blogosphere; I've gotten quite a few emails. While its purely anecdotal, clients and business associates discussing it have expressed sentiment similar to mine, but then none of them are real liberal either. Its gotten next to no TV play, as far as I'm aware. I imagine NewsMax and that crowd are having fun with it too, but I haven't checked. Interesting that my comment stirred up so much fuss here ... musta hit a nerve, I guess. Then, my opinions often do.

Just for the heck of it, pistoff,

you wrote:

Timberlake is real typical of these Repub. smear masters. No evidence but then their motto is: Facts? We don't need no stinkin' facts.

Care to trot out independently verifiable data, peer-reviewed studies appearing in accredited journals, academic books or other scholarly, non-partisan publications, sworn testimony or other legal documents, multiple independently sourced corroborative news articles, exclusive of opinion or commentary, or any of that sort of real evidence stuff, or is your comment, which contains, but does not support, at least four individual assertions of condition, performance, or state of being merely a statement of personal opinion lacking external validation?

And thanks, rog, for pointing that out ... I did get a little distracted there.

Slain troops' parents could be hard on Bush
Tue 18 November, 2003 12:37

By Peter Graff

LONDON (Reuters) - Reg Keys, whose son Thomas was killed in Iraq, is not on the list of family members of fallen British servicemen invited to meet George W. Bush this week, but he wishes he was: he has a message for the U.S. president.

"I'd love to meet him, but I'd refuse his hand," he said. "I'd say: 'I can't shake that hand. It's stained with the blood of my son.'"

Bush's meetings with families of soldiers killed in Iraq have been billed as one of the centrepieces of his state visit to wartime ally Britain this week.

But as Prime Minister Tony Blair has already learned, the president is likely to find them a difficult audience.

Over the past months, parents and widows of slain soldiers have emerged as some of the war's most potent critics, many trying to balance pride in their husbands' and sons' sacrifice with anger over what they see as false justifications for war.

Lance-Corporal Thomas Keys, 20, was one of six British Royal Military Policemen who was killed by an angry mob while training Iraqi police on June 24 in a town near the southern city of Basra.

"I want to challenge Bush to meet me," Reg Keys told Reuters by telephone from his home in Wales. "I think I know more about what's going on in Iraq than he does, from phone calls with my son who was on the ground out there."

In interviews ahead of his visit to London, Bush stressed his plans to meet the families of soldiers who died in Iraq, to "tell them their loved ones did not die in vain. The actions we have taken will make the world more secure and the world more peaceful in the long run."

But Bush's comments have been partly overshadowed by widows and parents, several of whom have said they want no part of what Keys called "a propaganda means for his re-election".

"I'm proud of my son. He died doing his duty," he said. "But what you have to bring out is: Was their duty justified?"

His son died believing he had gone to war to protect his country from Iraq's weapons of mass destruction, which have yet to be found, Keys said.

"I think we were all deceived and I think (Bush) has got a nerve to show his face after the deceit he's pointed toward us," he added. "My son goes off to war thinking he's protecting the country -- he's gone off deceived and lost his life deceived."

The Ministry of Defence said the meetings with the families of service members would be private and gave no details as to who had been invited or how they were selected. The MoD lists 53 British servicemen as having died in the conflict.

At a memorial service for them in London's St Paul's Cathedral last month, Blair did not speak. The sermon was given by Archbishop of Canterbury Rowan Williams, one of the war's steadiest critics.

Several family members said they did not want Blair to attend that service at all. Keys said he sought out the prime minister at a reception afterwards.

"I said that the blood of my son is on your hands. 'You are responsible. How do you react to that?'" Keys said.

"He looked white. I have to be fair to the man. He didn't dodge the question. He did say that he was responsible for the deaths, that he was trying to make Iraq a better place."

"I said: 'All you've done is kick the lid off a hornets' nest.'"