squinney wrote:Quote:US Court Decision a Setback for Government Terror Case
By Sonja Pace
Washington
22 December 2005
A U.S. federal court has handed the government a stinging defeat in the terrorism case against Jose Padilla, a U.S. citizen held for more than three years in military detention as an enemy combatant.
A Federal Appeals Court has denied a Justice Department request to transfer Jose Padilla from military detention to civilian custody to stand trial on criminal charges in Miami.
Mr. Padilla, an American citizen, was arrested at Chicago's O'Hare airport in 2002 as he returned from a trip to Afghanistan. The Justice Department alleged he planned to set off "dirty bombs" in the United States that could spread radioactive material. The department won an initial ruling from Judge J. Michael Luttig to detain Mr. Padilla as an enemy combatant.
Last month a grand jury in Miami charged Mr. Padilla with belonging to a North American terrorist cell that helped finance and recruit fighters for attacks outside the United States, making no mention of the dirty bomb allegations or attacks in the U.S. The Justice Department subsequently asked the Appeals Court to allow Mr. Padilla's transfer to Miami to stand trial.
In writing Wednesday's court's decision, Judge Luttig, noted that the government left the "impression" that Jose Padilla may have been mistakenly detained these past three-and-a-half years and was now changing tactics to avoid further judicial review of the case, possibly by the U.S. Supreme Court.
David Remes is a Washington lawyer, specializing in constitutional law. He told VOA the court's decision is a sharp rebuke of the government's handling of the case.
"The court clearly felt that the government was playing games," he said. "The government had made a very strong argument that Padilla was very dangerous, had to be treated like an enemy combatant and that the government needed very wide latitude in dealing with him. And, then the government says, well, never mind."
A Justice Department spokeswoman said the department is disappointed by the court's decision and is leaving its options open on how to proceed.
Judge Luttig also wrote that the Padilla case should be brought before the Supreme Court.
David Remes says that is now very likely. He says the case goes far beyond the specific charges brought against Mr. Padilla and is less about terrorism than about a struggle between two branches of the federal government, the executive and the judiciary.
"These are major, major issues of constitutional law," he added. "They go to the heart of the separation of powers. They go to the heart of the system of checks and balances. They go to the heart of the right of Americans."
Mr. Padilla's lawyers welcomed the Appeals Court decision. They have questioned the administration's authority to detain him under such conditions. Human rights groups and critics of the Bush administration have also denounced the practice of detaining terrorism suspects, indefinitely and without the promise of a trial.
The September 9, 2005, Fourth Circuit Court of Appeals decision contains a footnote that refers to the Hamdi case: "Having concluded that detention was authorized
on the facts alleged by the government, the [Supreme] Court in Hamdi remanded the case for a hearing to determine, pursuant to the due process requirements set forth in its opinion,
whether those alleged facts were true."
If I remember correctly, rather than prove that the alleged facts were true, the government released Hamdi to Saudi Arabia on the condition that Hamdi surrender his U.S. citizenship and agree NOT to sue for wrongful detention.
Certainly, on the facts alleged by the President, the Fourth Circuit previously ruled that the government is allowed to detain Padilla (in the same manner that government was authorized to detain Hamdi) as an enemy combatant for so long as the hostilities last. However, the government must PROVE those alleged facts justifying the enemy combatant status are true.
The government's CREDIBILITY has been flushed down the toilet. Over and over again, the Bush administration is appearing to be nothing but a bunch of liars. President Bush has claimed power to detain people indefinitely as enemy combatants and to conduct warrantless domestic spying upon U.S. persons. He demands that we trust him because his power grab is necessary for national security--yet, he avoids accountability--he avoids PROVING the truth of his words.
Quote:Jose Padilla and the Fourth Circuit: To Be or Not To Be an 'Enemy Combatant'
by Christopher Brauchli
Liars ought to have good memories. -- Algernon Sidney, Discourses on Government (1698)
Jose Padilla may be about to get a New Year’s present to add to his Christmas present.
The Christmas present was the news Mr. Padilla received that he had been indicted for a crime, conviction of which could result in a sentence of life in prison. Though not everyone’s cup of tea as a Christmas present, Mr. Padilla welcomed the indictment because it meant he would no longer be considered an “enemy combatant”. So long as he was an “enemy combatant” he could be held in prison for life without ever having the chance to prove his innocence. Once indicted he was entitled to a trial at which he could prove his innocence. (There remains the risk that if tried and found not guilty, the government will once again call him an “enemy combatant” and keep him in jail for the rest of his life. That is a bridge to cross another day.) Now there is a new turn of events that suggests the Bush administration has overstepped itself and Mr. Padilla may find the very conservative United States Court of Appeals for the Fourth Circuit on his side. Should that happen it would suggest that that court has no tolerance for lying. What remedies the court might then afford Mr. Padilla cannot be known. Here is what happened.
No longer called an “enemy combatant” by the government, Mr. Padilla is no longer entitled to accommodations in solitary confinement in the Navy brig in Charleston, South Carolina. He must await trial in a civilian jail. Out of deference to the 4th Circuit Court of Appeals that had been hearing the “enemy combatant” issues, the prosecution sought permission of the court to move Mr. Padilla. To the prosecution’s great surprise, the court recalled what it had been told by the prosecution on July 19, 2005 and did not like what it was told in December.
In the opinion issued September 9, 2005 affirming Mr. Padilla’s indefinite incarceration as an “enemy combatant” and relying on what it had been told by the government, the court said Mr. Padilla, a United States citizen, had come to the United States after being trained by al Qaeda, in order to blow up apartment buildings in this country. (He was going to do this not as a disgruntled former tenant in one of the buildings but as a terrorist. The court didn’t say that but it can logically be inferred from other language in the opinion since it said, “blowing up apartment building was part of the al Qaeda’s war of terrorism against the United States.”)
The court quoted the president’s redacted memorandum to the Secretary of Defense that justified holding Mr. Padilla as an “enemy combatant” and at one point in the opinion the court said, “he entered this country bent on committing hostile acts on American soil.” That wasn’t, of course, all the court said. It took 17 pages explaining why it was OK to lock Padilla up forever and not let him be tried. It was based on two things: the fact that Mr. Padilla was a bad person and the fact that George W. Bush is a truth teller. Then came the indictment and the motion to hand Mr. Padilla over to the civilian authorities. When that happened the court was confronted with the dreadful possibility that others in the country were right. Mr. Bush and some members of his administration are liars.
The indictment didn’t say that Mr. Padilla was a dreadful man who planned to blow up apartment buildings. According to Attorney General Gonzales who announced the indictment, it says, among other things, that Mr. Padilla “traveled overseas to train as a terrorist with the intention of fighting in ‘violent jihad.’”. It says he was in a terrorist cell from 1993-2001. It observes that he applied for a passport in 1996. Aside from the passport application the things he was doing don’t sound nice but they’re not the same as blowing up apartment buildings in the United States.
Although I’m not a part of the Justice Department, I can state with complete certainty that it has not learned anything new about Mr. Padilla’s conduct since the 4th Circuit said he was an “enemy combatant”. Instead Mr. Bush and the Justice Department have decided that it no longer suits their purposes to stand behind what they told the court a few months ago. Mr. Bush, if asked, would probably say that when he prepared the memorandum that formed the basis for designating Mr. Padilla an “enemy combatant” he had his fingers crossed, believing from his childhood days that crossed fingers exonerate a liar. The rest of us know better. Time will tell if the 4th circuit knows better.
http://www.commondreams.org/views05/1217-24.htm
