Padilla finally charged

[Cylinder]

And what makes those folks so different from Al-Queda that they are not the target of a war?

The main difference is that of jurisdiction. The US can hunt down and arrest domestic terrorists within its own borders. Not so, al Qaeda and associated groups. Others include the scope of the conspiracy, its ability to achieve spectacular attacks, the prospect of capability-building outside of US control and the resulting risk associated with domestic stability.

 

[Elind]

And what makes those folks so different from Al-Queda that they are not the target of a war? Remember, on a victims-per-terrorist basis, McVeigh´s attack was worse than 9/11.

Besides that, the abortion clinic bombers are terrorists, and fanatical groups like the Militia of Montana, Aryan Nations, and what the hell else is crawling around out there in your backyard, are very probably planning terrorist attacks against the US.

What the F is your point?

You think there should be a war against an executed McVeigh, and against anything else crawling around, and that this has anything remotely relevant to a war that doesn't exist?

Please, stop these ignorant analogies and just tell us what the hell your problem is with a war against Islamist Facisism (to use one term only, Jordan calls it "Takfiri" others call it Wahabi, and some call it perversion).

To tell the truth, I can't figure out what your position is, except to keep making meaningless analogies (at least you don't keep posting meaningless links like someone else does).

 

[Cylinder]

1. The war on terror will likely never be over (at least not in our life time); meaning anyone who is declared an enemy combatant just received an automatic life sentence.

I think that the AUMF would not be left unaltered for any protracted length of time after the shooting war is over.

2. I think all of us can agree that when the government labels a US citizen an enemy combatant, this label should at least be reviewed by a judge to insure it has not been misapplied.

I agree with these safegaurds in principle myself. It cannot be, however, that we allow courts to overstep their constitutional authority in meddling in strategic and tactical matters for the executive branch and US military. I think the the proper balance has already been articulated by Justice O'Connor in Hamdi v Rumsfeld:

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 assertions before a neutral decisionmaker. See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case’ ” (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)); Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 617 (1993) (“due process requires a ‘neutral and detached judge in the first instance’ ” (quoting Ward v. Monroeville, 409 U.S. 57, 61—62 (1972)). “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’ ” Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864); Armstrong v. Manzo, 380 U.S. 545, 552 (1965) (other citations omitted)). These essential constitutional promises may not be eroded.

At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. 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 ensuring 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 the words of Mathews, process of this sort would sufficiently address the “risk of erroneous deprivation” of a detainee’s liberty interest while eliminating certain procedures that have questionable additional value in light of the burden on the Government.
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. The Government has made clear in its briefing that documentation regarding battlefield detainees already is kept in the ordinary course of military affairs. Brief for Respondents 3—4. Any factfinding imposition created by requiring a knowledgeable affiant to summarize these records to an independent tribunal is a minimal one. Likewise, arguments that military officers ought not have to wage war under the threat of litigation lose much of their steam when factual disputes at enemy-combatant hearings are limited to the alleged combatant’s acts. This focus meddles little, if at all, in the strategy or conduct of war, inquiring only into the appropriateness of continuing to detain an individual claimed to have taken up arms against the United States. While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here.

 

[fishbob]

I agree with these safegaurds in principle myself. It cannot be, however, that we allow courts to overstep their constitutional authority in meddling in strategic and tactical matters for the executive branch and US military. I think the the proper balance has already been articulated by Justice O'Connor in Hamdi v Rumsfeld:

Thanks for these details.

These essential constitutional promises may not be eroded.

Compare the specific requirements described in Hamdi v Rumsfeld with the actions of the government in the Padilla case. Clearly the government has failed to meet its constitutional obligations. Therefore my question: 'how is Padilla's treatment different from the crime of kidnapping' still stands.

 

[Cylinder]

Compare the specific requirements described in Hamdi v Rumsfeld with the actions of the government in the Padilla case. Clearly the government has failed to meet its constitutional obligations.

How exactly? Padilla had his writ heard in federal court. The executive branch doesn't decide these matters - the judiciary does.

Therefore my question: 'how is Padilla's treatment different from the crime of kidnapping' still stands.

You get the same answer as before - Congress authorized Padilla's detention.

 

[fishbob]

How exactly? Padilla had his writ heard in federal court. The executive branch doesn't decide these matters - the judiciary does..

From Hamdi:
"It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner."

Has Padilla an opportunity to be heard yet? No.

From Hamdi:
"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."

Has Padilla had a chance to rebut the Government's evidence yet? No.

You get the same answer as before - Congress authorized Padilla's detention.

2 comments:

1 - Eventually, the Supreme Court will decide the constitutionality of whatever half-assed thing Congress passes. In this case, it is pretty clear that the Government has not been playing fair.

2 - Congress ( based on faulty information and, IMO in a fit of hysteria ) authorized the President to use his discretion in dealing with terrorists. I didn't see anywhere in that authorization where Congress said it was OK to ignore civil rights and the rule of law. Congress probably did not imagine that that this administration would ignore the limitations and the responsibilities of the government as laid out in the Constitution.

 

[Kevin_Lowe]

I'm sorry. I could elaborate further but I don't see the point. There are many here who see the distinctions, and some who don't, but we've been down this path before and I think you have a political rather than pragmatic approach to anything.

There is out there a cultural regression that does have a characteristic, and danger, that goes well beyond simple criminal and antisocial behaviour. You are unable to see it, and you think those who claim to do so are delusional.

This is a classic woo-woo cop out: "My psychic powers tell me that rationally defending my views will be totally unproductive. So I am not going to even try".

This is exactly like a discussion between an established atheist and a firm creationist. There will not be a meeting of minds.

We don't have one, so let's just save our sarcasm, or worse, for more entertaining discussions and let it drop.

As you wish.

 

[Chaos]

What the F is your point?

You think there should be a war against an executed McVeigh, and against anything else crawling around, and that this has anything remotely relevant to a war that doesn't exist?

Please, stop these ignorant analogies and just tell us what the hell your problem is with a war against Islamist Facisism (to use one term only, Jordan calls it "Takfiri" others call it Wahabi, and some call it perversion).

To tell the truth, I can't figure out what your position is, except to keep making meaningless analogies (at least you don't keep posting meaningless links like someone else does).

My point is, the Bush administration is completely ignoring some kinds of terrorism. You guys keep pretending McVeigh was just one lone nutcase -while at the same time implying that most of not all Muslims are somehow to blame for Al-Quaeda terrorism.

When your government starts hunting down and destroying domestic terrorist groups with the same zeal as it invades Muslim countries that may or may not have anything to do with terrorism, then I will believe that this war you´re waging is about terrorism.

And that doesn´t even touch the fact that you guys don´t have the least ****ing clue what fascism is.

 

[rikzilla]

My point is, the Bush administration is completely ignoring some kinds of terrorism.

Eh? What kind of terrorism is "the Bush administration" ignoring??

You guys keep pretending McVeigh was just one lone nutcase

That's because McVeigh and two of his closest friends were the only bad actors that had sufficient proof against them. Now McVeigh has assumed room temperature, and Terry Nichols has a life-long lease in a federal super-max prison, and Michael Fortier coped a plea. Can you please tell us whom you think the Bush admin should war on? If you can name a person or group for them to war on; perhaps you could also offer some proof against those persons which would justify war??

-while at the same time implying that most of not all Muslims are somehow to blame for Al-Quaeda terrorism.

Well of course not all Muslims are to blame for AQ! Who has said that? Of course all AQ members ARE Muslims...I don't suppose you'd care to dispute that one? But I sincerely doubt anyone here is silly enough to blame all Muslims... A fine example of straw in your argument.

When your government starts hunting down and destroying domestic terrorist groups with the same zeal as it invades Muslim countries that may or may not have anything to do with terrorism, then I will believe that this war you´re waging is about terrorism.

Again; which groups? Care to elaborate?

And that doesn´t even touch the fact that you guys don´t have the least ****ing clue what fascism is.

Well; I doubt anyone could argue that they have a better concept of fascism than you do, eh? The world just won't let you guys forget. Nor should they. I loved my time in Germany; and met many great German friends; regretably yours is a history that must be remembered well and forever lest anyone ever repeat it.

-z

 

[Chaos]

Eh? What kind of terrorism is "the Bush administration" ignoring??

I already told you: domestic terrorism, perpetrated by Christian, American patriots. At leas that´s what they call themselves.

*snip*Well of course not all Muslims are to blame for AQ! Who has said that? Of course all AQ members ARE Muslims...I don't suppose you'd care to dispute that one? But I sincerely doubt anyone here is silly enough to blame all Muslims... A fine example of straw in your argument.

Well, I´ve heard enough "nuke the ragheads" and "turn Mecca into a parking lots" and "start killing Muslims until the terrorism stops" to come to the conclusion that "all Muslims are evil" is an opinion held by at least a sizeable minority of Americans.

Again; which groups? Care to elaborate?

Militia of Montana, Michigan Militia, North American Volunteer Militia, Aryan Nation, ...

Well; I doubt anyone could argue that they have a better concept of fascism than you do, eh? The world just won't let you guys forget. Nor should they. I loved my time in Germany; and met many great German friends; regretably yours is a history that must be remembered well and forever lest anyone ever repeat it.

-z

It´s actually rather simple, if one chose to stop and think and look at the issue, instead using cheap polemics.
The central idea of fascism is that a new political force, created by the people, replaces the corrupt and traitorous establishment and counters the thread of the evil communists. It´s really more a capitalist version of communism than anything else.
This fascist force has, whenever it actually was successful, enjoyed enthusiastic support of conservatives, who could not look beyond their own rabid hatred of the left wing.

 

[rikzilla]

I already told you: domestic terrorism, perpetrated by Christian, American patriots. At leas that´s what they call themselves.

Eh? Sorry but I don't know of any such groups. There were a few abortion clinic bombings a few years back...but other than that I can't recall there being much of a problem over here. Really...you want domestic unrest you need to go to Paris these days.

Well, I´ve heard enough "nuke the ragheads" and "turn Mecca into a parking lots" and "start killing Muslims until the terrorism stops" to come to the conclusion that "all Muslims are evil" is an opinion held by at least a sizeable minority of Americans.

Shadownexius? I think we've all called that guy a kook...yes even us conservatives.

Militia of Montana, Michigan Militia, North American Volunteer Militia, Aryan Nation, ...

The militia movement as such is not against the law. They bear watching of course....but are likely easier to watch when gathered together legally. Really; I've looked at some of these militia websites and all they look like to me are redneck weekend weenie roasts.

It´s actually rather simple, if one chose to stop and think and look at the issue, instead using cheap polemics.

That's what I'm trying to do. I've not taken any digs at you. That really was the main gate of Drake-Edwards Kaserne when I was over there...I think the gate was finally removed but as of 1980 it was still there. I thought it was a cool picture...but also a good reminder that you're talking to someone who served through the cold war era in your country. I think I know what fascism brought to Germany....I'm sure I know what it is. I also know what the Marxist paradise of East Germany looked like. Not pretty.

The central idea of fascism is that a new political force, created by the people, replaces the corrupt and traitorous establishment and counters the thread of the evil communists. It´s really more a capitalist version of communism than anything else.
This fascist force has, whenever it actually was successful, enjoyed enthusiastic support of conservatives, who could not look beyond their own rabid hatred of the left wing.

The evil of communism was real....as real as the Nazis. Capitalism has it's evils too...but they are manageable and predictable. A capitalistic democracy has it's problems....but people are not comonly found risking a messy death to escape from such places.

-z

 

[Chaos]

*snip*
Shadownexius? I think we've all called that guy a kook...yes even us conservatives.

He´s not the only one, and I´m not only talking about here in particular.

The militia movement as such is not against the law. They bear watching of course....but are likely easier to watch when gathered together legally. Really; I've looked at some of these militia websites and all they look like to me are redneck weekend weenie roasts.

Interesting. Over here, we take that kind of thing a little more serious - but then, we´ve had our experience with the Freikorps, SA, SS, and so on.

That's what I'm trying to do. I've not taken any digs at you. That really was the main gate of Drake-Edwards Kaserne when I was over there...I think the gate was finally removed but as of 1980 it was still there. I thought it was a cool picture...but also a good reminder that you're talking to someone who served through the cold war era in your country. I think I know what fascism brought to Germany....I'm sure I know what it is. I also know what the Marxist paradise of East Germany looked like. Not pretty.

And you´re talking to someone who lived through the cold war era in this country. If the Soviets had ever broken through at the Fulda Gap, their tanks would have rolled through my hometown.
And I´m reasonably familiar with the other side, too, since I have relatives over there - and for the last year or so, I´ve spent a lot of time talking about this (among other things) to a co-student who grew up in Kiev.

The evil of communism was real....as real as the Nazis. Capitalism has it's evils too...but they are manageable and predictable. A capitalistic democracy has it's problems....but people are not comonly found risking a messy death to escape from such places.

-z

I´m not trying to gloss over the evils of communism - in fact I´m saying the fascism is a lot closer - in overall ideology as in its methods and overall appearance - to communism than to Muslim fanaticism of any brand. Just because it isn´t fascist - or communist - that doesn´t make it good, though.
BTW I also disagree with, for example, Tony (or anyone else) calling the US government fascist.

 

[luchog]

Interesting. Over here, we take that kind of thing a little more serious - but then, we´ve had our experience with the Freikorps, SA, SS, and so on.

Showing you know nothing at all about the groups you mentioned. Compared to those guys, our militias are a bunch of old ladies sitting at tea and complaining about all the darkies in the neighborhood. Sure, they could be worse, but so far they do nothing but spout the occasional racist diatribe and try to look tough.

The Aryan Nation is a bit more problematic, but they never manage more than the occasional armed robbery, or shoot up with other gangs over drug territory. And they are dealt with appropriately when they do. Aside from a few lone individual nutcases, we simply don't have any real home-grown terrorists. Even Koresh was little more than another isolationist religious nutball until the BATF overreacted.

 

[CapelDodger]

Showing you know nothing at all about the groups you mentioned. Compared to those guys, our militias are a bunch of old ladies sitting at tea and complaining about all the darkies in the neighborhood. Sure, they could be worse, but so far they do nothing but spout the occasional racist diatribe and try to look tough.

The Aryan Nation is a bit more problematic, but they never manage more than the occasional armed robbery, or shoot up with other gangs over drug territory. And they are dealt with appropriately when they do. Aside from a few lone individual nutcases, we simply don't have any real home-grown terrorists. Even Koresh was little more than another isolationist religious nutball until the BATF overreacted.

Zappa's "It Can't Happen Here" is playing in my head, dug out from a deep and dusty corner.

The Freikorps operated legally, just as the Gymnasia para-militias did before them, and at a time of social and economic crisis they could come into their own. The SA and SS operated legally in an environment that had been shaped by the Freikorps. Hitler became Chancellor in an environment shaped by the SA and SS. None of this would have happened without the social and economic crisis.

The militias in the US are well aware of this history, and are preparing for a social and economic crisis which they will attempt to exacerbate by actions we would all describe as terrorist. Can you be absolutely sure there won't be such a crisis in the US in the near future? How would the US have fared in the Great Depression with the modern neo-nazi movement in place? How would the Union have fared?

 

[rikzilla]

Zappa's "It Can't Happen Here" is playing in my head, dug out from a deep and dusty corner.

Love Zappa...saw him 4 times at the Frankfurt Festhalle..amazing guy!

The Freikorps operated legally, just as the Gymnasia para-militias did before them, and at a time of social and economic crisis they could come into their own. The SA and SS operated legally in an environment that had been shaped by the Freikorps. Hitler became Chancellor in an environment shaped by the SA and SS. None of this would have happened without the social and economic crisis.

Gymnasia? Like the Greek word "Gymnos"??? Does this mean the SA and SS started out as a naked athlete/warrior fraternity? But all kidding aside; I do not dispute this point...

The militias in the US are well aware of this history, and are preparing for a social and economic crisis which they will attempt to exacerbate by actions we would all describe as terrorist. Can you be absolutely sure there won't be such a crisis in the US in the near future? How would the US have fared in the Great Depression with the modern neo-nazi movement in place? How would the Union have fared?

Okay; you don't like neo-nazis. Hey I agree, they are rather unsavory and perhaps capable of violent acts in the future. But what are we to do? Trump up some charges and lock em up? Say that they have WMD's and invade them?? If so then why argue that OIF was wrong to do basically the same stuff to Saddam? You like Saddam better than the neo-nazis maybe?? Really now...Saddam led a nation known to lay down the red carpet for dangerous terrorists. If the Aryan Nations had 1/1000th the capabilities of Saddam's Iraq you may have a point....but as you know we can't go around arresting citizens for the stuff they might be thinking of doing someday....right?

-z

 

[Elind]

Zappa's "It Can't Happen Here" is playing in my head, dug out from a deep and dusty corner.

What can't happen here? Of course it could, but which is your concern? The worries of the good guys or those of the bad guys?

 

[Roadtoad]

A couple of things about this bother me:

1.) If Padilla could have been tried as an enemy combatant, (and forgive me, but I've only read some of the high points of this thread), why wasn't he? Holding him for three years without even the most basic of rights, refusing to get this underway, refusing him justice, ultimately: it smacks of what happened with Nelson Mandela in South Africa. We've made a martyr of someone who might damned well want to do harm to his fellow Americans.

2.) If they could have tried him on the civil charges, why didn't they do that? Why the games with a military tribunal? In other words, why give your enemies ammunition to use against you, both in the political arena, and in the PR arena, especially with groups like Al Quaeda, who will use this on Al Jazeera to further their agenda?

 

[Cylinder]

A couple of things about this bother me:

I think it's because (as is common and easy to do with this issue) you are confusing combatant detention with judicial punishment. The issues of detaining Padilla to prevent him from attacking the United States and sentencing him to a prison term for crimes are completely separate.

1.) If Padilla could have been tried as an enemy combatant, (and forgive me, but I've only read some of the high points of this thread), why wasn't he?

Because the POTUS, using his powers as Commander-in-Chief decided that he would not try Padilla for war crimes. Being an enemy combatant is not illegal per se, it's the things you do as an enemy combatant and the way you go about doing them that can be punished as war crimes.

Even if Padilla was not accused of war crimes, his detention for the course of the conflict is a well-established executive power both in US and international law.

Holding him for three years without even the most basic of rights, refusing to get this underway, refusing him justice, ultimately: it smacks of what happened with Nelson Mandela in South Africa. We've made a martyr of someone who might damned well want to do harm to his fellow Americans.

The government conceded Padilla's right to habeas corpus. Padilla had a court-appointed attorney who filed his writ less than two days after his designation as enemy combatant.

2.) If they could have tried him on the civil charges, why didn't they do that? Why the games with a military tribunal? In other words, why give your enemies ammunition to use against you, both in the political arena, and in the PR arena, especially with groups like Al Quaeda, who will use this on Al Jazeera to further their agenda?

Because there are competing jurisdictions. Padilla is accused of civil crimes and (presumably) crimes of war. The president has the constitutional authority to at least designate which enemy combatants will face military tribunals. This does not necessarily negate the ability of the government to place Padilla in front of a tribunal, though it seems unlikely at this point.

 

[fishbob]

I think it's because (as is common and easy to do with this issue) you are confusing combatant detention with judicial punishment. The issues of detaining Padilla to prevent him from attacking the United States and sentencing him to a prison term for crimes are completely separate.

Because the POTUS, using his powers as Commander-in-Chief decided that he would not try Padilla for war crimes. Being an enemy combatant is not illegal per se, it's the things you do as an enemy combatant and the way you go about doing them that can be punished as war crimes.

Even if Padilla was not accused of war crimes, his detention for the course of the conflict is a well-established executive power both in US and international law.

The government conceded Padilla's right to habeas corpus. Padilla had a court-appointed attorney who filed his writ less than two days after his designation as enemy combatant.

Because there are competing jurisdictions. Padilla is accused of civil crimes and (presumably) crimes of war. The president has the constitutional authority to at least designate which enemy combatants will face military tribunals. This does not necessarily negate the ability of the government to place Padilla in front of a tribunal, though it seems unlikely at this point.

2 points:

1 - Look back at Hamdi. Pretty clearly, the President has exceeded his authority as commander-in-chief.

2 - Padilla was not captured on the battlefield or even in a foreign country, so your version of 'well-established executive power' is not actually well established.

3 - Why would the President (not really a detail kind of guy) bother to make a special case for Padilla? Why would he devote that much attention to what should have been a technical detail? Why publicize Padilla? My bet is that he was playing politics.

 

[Kevin_Lowe]

Okay; you don't like neo-nazis. Hey I agree, they are rather unsavory and perhaps capable of violent acts in the future. But what are we to do?

Grab them off the street? Detain them indefinitely in undisclosed locations? Torture them? Kill a few? Hand over some others to foreign powers to be tortured at arm's length? Ignore Supreme Court orders that they be given legal counsel?

I'm just asking for consistency here, towards people vaguely associated (allegedly) with groups who use violence against US citizens for political ends.

If there is a problem with treating alleged Aryan Nation members and associates this way, there surely is a problem dealing with alleged Al Qaeda members and associates this way. If the issue is really about protecting US citizens from politically motivated violence anyway.