Um, yeah, actually. For example, here’s a CNN article summarizing the situation of Jose Padilla, an American citizen who was arrested in Chicago. John Ashcroft is quoted as suggesting that Padilla should be held as an enemy combatant, i.e. under indefinite detention without a trial. Thus, Mr. Ashcroft has suggested that for some crimes, Americans are not entitled to due process and can instead be detained by the government without being shown the evidence against them.
There are also the hundreds of Americans taken into custody after 9/11 and held for months without having any specific charges leveled against them. Many of them are still in custody, I believe. (I couldn’t find a news link after a quick Google search, although I’ve now heard about fifteen NPR stories about this over the past year and a half, so I’m sure there are links out there.)
Mr. Ashcroft has not proposed dispensing with evidence for all criminal charges of course. But so what? Is it OK if he only wants to deprive some Americans of due process?
Some of those people picked up and detained are not guilty. That is not an assessment of the legal facts and evidence, because none such is being permitted. But given our FBI’s recent nationwide manhunt for the Phantom Five, I’d say thats a damn good bet.
Imprisonment is punishment. Persons who are imprisoned, on whatever pretext, with no recourse and no opportunity to confront thier accusers, are guilty in any meaningful sense, they are already serving a sentence. No doubt, some of them deserve it.
Equally without doubt, some do not. Have we become so craven, so desperate to grasp at security, regardless of cost?
Good question. Maybe so, particularly if the decision was unanimous. This appellate court unanimously ruled in Ashcroft’s favor, 3 to 0.
I predict that the Supremes will not accept this case for review. It doesn’t conflict with other appellate or Supreme Court decisions. And, it could open up a can of worms. The SCOTUS would be second-guessing the Commander in Chief’s military-related actions during wartime. I don’t think the Justices will be eager to go there.
december replied to Bricker: *“if the Supreme Court hears this case, and reverses the Fourth Circuit, would you then take the position that the people who made the mean-spirited comments about Mr. Ashcroft were right?”
Good question. Maybe so, particularly if the decision was unanimous.*
So if Ashcroft happens to be judged right about a particular point of legal interpretation, he’s a hero and shouldn’t be “vilified” by “arrogant know-it-alls”, but if he later turns out to be wrong about that point, then the “arrogant know-it-alls”—now transformed, I presume, into “heroic defenders of liberty”—can call him a fascist racist crazy asshole as much as they like, and you’ll agree with them?
I thought your point—and perhaps I was giving you too much benefit of the doubt by assuming you had one—was that people shouldn’t be making such mean-spirited over-the-top comments at all. I thought you were arguing for rational dispute about important issues of civil liberties and national security on which reasonable people can have different priorities and come to different conclusions. I didn’t realize that you were simply declaring this a winner-take-all slanderfest.
But now that I do realize it, I guess I’m not terribly surprised.
the operative word being “sentenced”, as in: Had a trial, a defense lawyer, a judge, little niceties of a sort that we’ve come to expect from civilized countries. Even if 20 years is a severe punishment (and for Lindh’s actions, I’m not even sure it is), it’s a punishment allotted according to the rule of law. I’m shedding no tears for him.
But Hamdi’s not even being punished as I’ve come to understand the word. He is, as you write, “being held”. He might see a court tomorrow, in a couple of years, who knows ? I consider his fate far worse than that of Lindh’s, because whatever has happened to Hamdi is not justice.
Speaking as someone who really, really likes the idea of the same law being applied to everyone, I didn’t expect anyone to make light of Hamdi’s fate. I might - just - acknowledge that one could consider his treatment a matter of tough necessity. But for the life of me, I can’t fathom how being held incommunicado, stripped of rights, can be considered a light fate.
I agree. It’s not justice, which generally is a term applied to criminal prosecution, which has not happened in Hamdi’s case. Instaed, he’s being detained as an enemy combatant. POW’s are similarly detained without charges or trials. Assuming a war where enemy captives number in the hundreds or thousands, how else would you handle it? Let enemies captured in a war zone go, unless the government can prove criminal behavior beyond a reasonable doubt?
And regarding “same law being applied to everyone”, that’s precisely what the 4th Circuit’s ruling did. Enemy Combatant Hamdi wanted to be treated better than Saudis, Brits or Aussies captured under similar circumstances. The ruling rejected this claim. If Hamdi had won his case, only U.S. citizens would have received this additional due process. Others, even those are citizens of our closest allies, would not. Would that really be a fairer result?
Look. Is there at least a link to another thread where the definition of “enemy combatant” is discussed?
If being an “enemy combatant” puts one in a position in which one is accorded neither due process rights of accused persons, nor Geneva Convention rights of Prisoners Of War, is there any way one can cease being an “enemy combatant”? I suppose dying in one’s cell might be an option, but I could be wrong. After all, it appears that being decisively and permanently removed from any opportunity to engage in combat isn’t enough to do it…
I’m just trying to have my ignorance fought, here.
—Let enemies captured in a war zone go, unless the government can prove criminal behavior beyond a reasonable doubt?—
Well, since we can immediately declare anywhere in the world we please a war zone simply by attacking it, and anyone defending the territory an enemy combatant, regardless of for whom and why, of what meaning is this? The government needn’t even prove that the person had anything to do with Al Queda. Indeed, since no legal authority is controlling other than miltiary sayso, it doesn’t even really matter who someone is, whether they were armed when captured, if they had done anything, period.
I was thinking about the “Out of the mainstream” slur. If Ashcroft lost 9 to 0 in the Supreme Court, that would tend to show that he was out of the mainstream, particularly if he lost multiple cases there.
Mr. Padilla’s detention is NOT based on criminal charges, which is why I asked about criminal charges. It’s based on the government’s assertion that he is an enemy soldier - no different, they say, than capturing him on an Afghanistan field with a LAWS rocket aimed at a US tank.
Now, you may argue that is is different, either factually or legally. But that’s not the point. The point is that Mr. Ashcroft is asserting this situation is not a criminal one, but a war combat one.
Nitpick: a panel of the Fourth Circuit Court of Appeals ruled unanimously. There are twleve judges on active status in the Fourth Circuit, and would hear the case were it re-heard en banc.
And I’m afraid my powers of persuasion were lost on you. The purpose of my inquiry was to suggest that the mean-spirited nitpicking was not made wrong by the Fourth Circuit’s opinion, any more than it would have been made right by a SCOTUS reversal. It was wrong on the merits; ad hominem attacks rather than arguments to particular points of law are always fallacies.
Oh yes that is the point. By asserting that he can label a specific domestic criminal act to be war combat act, Mr. Ashcroft is subverting the rule of law. Why? Because there is absolutely no legal precedent for equating a group of people who commit a certain crime with a sovereign nation and declaring war on them. Declaring war on terror is no different than declaring war on organized crime or war on drugs – drug dealers and gangsters have terrorized and killed ordinary Americans. And yet anyone accused of those crimes has had due process, to prevent innocent Americans from being mistakenly punished.
Padilla’s detention is not based on criminal charges, but it should be. It is against the law to conspire against the government of the U.S. and it is against the law to conspire to commit murder. People have been accused of such things in the past and have been brought to trial. If he’s guilty, he should be sentenced to the punishment which has been agreed upon by our society to be appropriate for these crimes.
There is ample precedent for treating domestic terrorists as criminal cases. There is absolutely no precedent for labeling them as citizens of a non-existent sovereign power and applying the rules of war to them.
If this is so, Giraffe, then let us suppose that the new South American nation of Venezarguay, jealous of our norteamericano MTV and SUV wealth, land an armed division of soldiers in Florida, establish a beachhead, and begin shooting at cops, National Guardsman, and civilians.
Are you suggesting that the only legal approach is to arrest them, charge them with murder, attempted murder, and unlawful possession of automatic weapons, and read them their rights before questioning them?
Or is there some distinction, somewhere, to be made between an enemy combatant and a criminal?
Yes, Rick, your well-reasoned and logical points were lost on december. No surprise there, IMO–it’s been clear to me that this is just another chance for him to engage in some serious partisan wanking.
Did you notice your use of the phrase “new South American nation”? That implies a well-defined territory, with a government.
**
No, if another sovereign nation invades the U.S., I think it’s OK to treat them like an invading nation making war upon us.
**
Yes, it’s really rather easy:
If the government of a sovereign nation sends its citizens against the United States, then that is an act of war. The citizens who fight for that government are enemy combatants. According to this recent ruling, if Americans fight for that government and are captured in an active theatre of war, they may also be considered enemy combatants.
If individuals conspire to engage in subversive or terroristic acts against the United States, then they are criminals. If these criminals are American citizens, then they are absolutely entitled to due process, no matter what.
Now how about you explain to me how the war on terrorism is legally different than the war on organized crime or the war on drugs?
As an aside, I find it perplexing is that you seem to equate giving someone a trial with letting them off easy or supporting their actions. Just because I want Jose Padilla to have a trial doesn’t mean I sympathize with him. If he’s guilty, I want that fucker in jail. But if he doesn’t get a trial, then my own right to be treated fairly by the government is in question.
So if Ashcroft happens to be judged right about a particular point of legal interpretation, he’s a hero and shouldn’t be “vilified” by “arrogant know-it-alls”, but if he later turns out to be wrong about that point, then the “arrogant know-it-alls”—now transformed, I presume, into “heroic defenders of liberty”—can call him a fascist racist crazy asshole as much as they like, and you’ll agree with them? 