John Ashcroft rescues the Constitution from attack by "civil libertarians"

The BBQ Pit
81

Sez you.

More specifically, while I absolutely admit that yours is a clear, logical, and defensible position… I’m not sure I agree it’s the only one possible. I could as well argue that when a group such as Al-Queda, even though lacking national borders, passports, and an official anthem, chooses to act as a hostile nation-state, we have every right to regard their hostility as an act of war, and their actors as enemy combatants.

Happy to – but I suspect you know what I’m going to say, based on my previous paragraph.

The war on terror is directed at members of organizations that are acting like hostile nation-states, and have aims traditionally and historically associated with war: attacks on an enemy nation’s infrastructure, civilian populace, and economic well-being. Organized crime, and drugs, both represent historical and traditional crime-fighting efforts, in that the targets of those actions are acting for personal, pecuniary gain.

If I’ve given that impression - and I cannot find anything I’ve written that seems to - I will happily retract it now. So far as I can see, we’re discussing the same thing: is there a colorable, sustainable argument to be made for the propositions that (1) there is such a thing as an “enemy combatant”; (2) that such a designation can meaningfully be applied to an American citizen; (3) who is taken into captivity on American soil; (4) in connection with terrorist-type activites.

If we accept those basic propositions, then we must, of course, decide where the line is drawn; otherwise the government would theoretically be free to use this power in impermissible circumstances. But it’s useless to debate the line if we do not agree that such a species exists in the first place.

  • Rick
82

I find myself convinced by almost all of your posts, Bricker, but I disagree with one point. An Attorney General of the United States who was so far out of the mainstream as to not understand Constitutional Law would deserve personal criticism IMHO.

However, I apologize for giving a flip answer to a rhetorical question. That was rude. And, thanks for distinguishing between the panel and the court.

83

No problem.

If it’s not too much of a hijack, though, I’d like to comment on the idea of the mainstream.

It’s something we hear a great deal. Clinton judicial nominees were dismissed as out of the mainstream by Republicans, and Bush nominees are criticized as being out of the mainstream by Democrats.

I’d suggest that there is no true mainstream in American judicial politics. If anything, there may be a “conservative” and a “liberal” mainstream; any legal idea or approach espoused by at least three Supreme Court justices and echoed by a fair percentage of legal academics can hardly be dismissed as “out of the mainstream.” An idea that has come to command the allegiance of a group of influential decision makers and opinion leaders in a field is, I would suggest, the very definition of mainstream.

So by that token, the concept that Roe v. Wade should be overturned as bad law is mainstream, as is the idea that race-based decisions for college admissions should be prohibted and unions weakened.

Of course, strengthening the protections of Roe, protecting affirmative action, and providing public policy support of unions are equally “mainstream” ideas.

In other words, both sides of almost any of the traditional fractious debates have substantial supporters. Pickering’s nomination was defeated in his first go 'round; he was already a respected judge - as was Robert Bork. Lani Guinier, “out of the mainstream” according to conservative opponents, also taught at a highly respected law school.

In short – I agree that an Attorney General who was truly so far removed from the mainstream that he didn’t understand constitutional law would be deserving of opprobrium. But I caution that there’s a distinction between such true incompetence and the meaningless charges hurled by both sides of the ideological debate against their respective opponents.

  • Rick
84

Bricker, do you really have no problem with the concept of someone being imprisoned for an indefinite problem, perhaps life, simply on the say-so of some bureaucrat, without review or recourse? Has it truly come to that?

Are the laws against treason, attempted murder, and so forth just dead letters as long as there is a conspiracy to commit them large enough to let their work be called a “war” instead of a “crime”, IYHO? Are you truly content for that distinction to be made by that bureaucrat, without review or recourse?

Principles and constitutional protections, and the laws that derive from them, are either for everyone or they’re for no one, so I’ve always thought. Perhaps your view is more selective.

85

[b[Elvis1Lives**:

I refer you to my earlier posts.

If the raging armies of Venezuarguay hit the beaches of Florida, are we permitted to capture their soldiers and hold them without judicial due process?

If we are, then we need to define where the line is drawn, and we should have that discussion now. If you contend we are not, then I must disagree with you.

  • Rick
86

So if you have a group of Americans who set off car bombs and shoot people, as long as you suspect that they are doing it for some political ideal, you can detain them without trial, whereas if you think they’re just doing it out of greed, they deserve due process? Color me confused.

Al-Qaeda acts as a terrorist organization – there is nothing nation-state about them. The biggest problem with equating them to a sovereign power is that unlike citizenship, membership in Al-Qaeda is a voluntary state which must itself be proven. Moreover, the evidence which proves or disproves said membership is never subject to judicial scrutiny, which has traditionally checked overzealous law enforcement.

Say for example you find some guy who is planning to set off a pipe bomb in the park. You go to his apartment, and you find a book about Osama bin Laden. Is that enough evidence to label him an enemy combatant? What about testimony from another terrorist? What is the criteria for stripping an American of the right to due process? Since there won’t be a trial, how do we even know that the authorities are meeting this criteria, and the person being detained is actually associated with a terrorist group, and not just some random nutjob?

Most importantly, I don’t see a single advantage to depriving selected Americans of due process. You assert that we have a right to do so, based on the nature of Al Qaeda and their motives as compared with other dangerous groups. I’d like to hear your thoughts on how detaining people in this manner is worth the risk of accidentally imprisoning innocent Americans without any chance to defend themselves against their accusers.**
[/QUOTE]

87

Oh, and for the purposes of my post, assume we are talking about American citizens, not citizens of Venezuarguay.

88

Happily, because you do appear to be confused.

I never said, or even implied, what you wrote above. I merely asked if there were some set of circumstances in which detaining American citizens on American soil without judicial review could be countenanced. I proffered one possible set of circumstances - although I suppose I didn’t make clear that amongst those hardy Venezaraguian fighters were some Lindh-type disaffected, previously expatriate American citizens.

So the question we now confront is: where do we draw the line? Clearly, a group of uniformed, armed insurgents on American soil, acting under the direction of a traditional nation, is sufficient to invoke military custody and non-Mirandized interrogations. But we’re all (I hope) in agreement that Bimona Synder, Saks shoplifter, is entitled to her Miranda rights and a talk with her attorney, as well as a grand jury indictment or prosecutor information, and a speedy trial.

So where, between those two sets of facts, does the line get drawn?

No and yes.

I don’t agree that Al-Queda has nothing nation-state about it. It’s resources and aims were sufficient to elicit tacit assistance and compliance from the then-bigwigs of Afghanistan. Their resources were sufficient to plan and execute a reasonably complex act of undercover infiltration and attack against targets chosen for their political and economic effect against the country. I believe that’s pretty nation-state. It may not be enough for you, but it’s enough for me, to grant them that label. Note that this doesn’t mean I accept all else that may flow from that determination, but I do contend that they should be treated as a nation-state.

That’s the ‘no’ part. The ‘yes’ part is that I agree that there are substantial problems in a scheme that simply permits the government to declare, without any meaningful review, that any person in custody is an actor for the hostile nation-state. I agree that some form of judicial review is called for in some cases.

I don’t mean to cut this post short, but I have to go home. My reply to the balance of your excellent post coming soon.

  • Rick
89

To clarify, my comparisons were in response to your statement that the war on terror is different from a war on organized crime, which you said “represent historical and traditional crime-fighting efforts, in that the targets of those actions are acting for personal, pecuniary gain”.

So my question was asked in that context – if the only difference between certain gangsters and terrorists is their motivations, why does one deserve due process and the other doesn’t?

(I don’t mean to interrupt your upcoming response – I just wanted to amend that misunderstanding before you wrote it.)

90

Do a vanity search on this board.

91

** Bricker** and **Giraffe **, I’ve read your recent replies with a lot of interest. It appears that both of you agree that member of the Venezaguayan (“VZ”) invasion force could be detained without due process. As someone who hasn’t fully formed his own opinions on this issue, can I ask you what your opinions would be on the following scenarios?

  1. What if one of the VZ invaders is an American citizen?

  2. What if instead of a 10,000 man invasion at dawn, the VZ attack is made at night, with 200 elite commandoes?

  3. What if the commandoes are not in uniform?

  4. What if the commandoes are not only in civilian dress, but have no weapons? (Instead, they have explosives and plans of nearby bridges.)

  5. What if one the VZ commandoes is an American citizen?

  6. Same as Number 4, but without explosives. Instead, they have $500,000 in cash and a list of commonly-available ingredients that can be combined to make a powerful explosive.

  7. What if the invaders aren’t 200 commandoes, but 8? 4? 1?

  8. Same as number 7, but a few of the invaders are American citizens, selected by the VZ high command for their ability to blend in?

  9. What if the VZ invaders are trained spies, without military rank?

  10. What if they invade New Jersey in addition to Florida?

  11. Do you answers to 1-10 (okay, 1-9) above change if the invaders aren’t VZ, but members of an 10,000 man international organization, with bases in many nations, which has the express goal of destroying the U.S.?

  12. Same as number 11, except it’s 5 guys with a manifesto, operating out of an apartment in the Bahamas?

  13. One guy with a manifesto, operating out of an unheated cabin in Montana?

92

Aw, you know the courts are wrong on occasion, but ONLY when they DISAGREE with minty green! :wink:

Seriously, I think I agree with this decision (not having read it yet). There’s a big difference between being held for a crime on one hand, and taking up arms against your country and being captured during battle on the other.

My understanding is that the guy wasn’t apprehended in the commission of a crime or after a law enforcement investigation, but during an enemy action (If I’m wrong, then this doesn’t really matter, but the philosophy is still one I support), and as such isn’t entitled to the rights of the accused in the U.S. legal process. He should be treated as a prisoner of war, not an accused citizen.

93

Random, your list presents an interesting continuum of scenarios. I’ll answer with my opinions:

My understanding of the rules of war is that during an active theatre of war, it is not practical to hold trials and gather evidence while a battle is going on. Rather, you simply get the captured enemies away from the battle and out of the way, until you can sort things out. This may involve detaining them until the end of the war, at which point their return can be negotiated with their country or they can be tried for war crimes. As I understand this ruling, it says that American citizens in an active theatre of war have no more rights than any other soldier, as the extingencies of war don’t change just because the enemy happens to have citizenship.

However, these rules were never intended to allow indefinite detention of anyone, of foreign nationality or otherwise. Wars have always been finite conflicts of a few years. Thus, in any situation outside of an active theatre of war, there is no reason not treat individuals within our current justice system. If you capture a Saudi saboteur, you talk to the Saudi government and either deport him or try him here. If you capture an American engaged in conspiracy to commit murder, you try him for it.

So, to answer your specific questions:

1-3) Detain all VZ prisoners until the invasion is over and you can negotiate with the VZ government. Depending on the circumstances, VZ citizens are either returned or tried for war crimes. Americans are tried for treason and/or murder.

4-10) This is no longer an active theatre of war, but rather a foiled sabotage attempt. VZ citizens are detained while the crisis is resolved (probably by bombing the crap out of VZ). Captured American citizens are tried.

11-13) Absolutely a different situation than 1-10. Now you simply have a gang of criminals, who have organized against the U.S. If many of them are from the same country, start diplomatic pressure on that country, and maybe work with them to help stop the gang. If they refuse, perhaps go to war with them, ala Afghanistan. But the individuals are treated as criminals and tried. Possibly extradited, just like any other foreign criminal. If they are Americans, they are just American criminals and treated as such.

94

Bricker:
My question is this:

Given the perception that the DOJ may purposely be blurring the line between “enemy combatant” and “criminal”, what is your solution for fairness when an american citizen is taken on american soil and accused of, say, working for al-qaida and therefore a combatant not entitled to the legal process?

I’m asking sincerely, not to argue. While I think it’s pretty cut and dry when a person (of any nationality) is captured on the field of battle, and participating in an enemy action, it’s not so easy when people start getting arrested and held without trials here in the States.

It’s a question that I’m gravely concerned about. As much as I want our borders defended, anything that makes it easier to deprive a citizen (and me, by extension) of his rights frightens me.

95

—While I think it’s pretty cut and dry when a person (of any nationality) is captured on the field of battle, and participating in an enemy action,—

It doesn’t matter if it’s “cut and dry” if the person is not allowed to muster a defense or consult with a lawyer. The government has no burden of proof to meet in establishing that the person was participating in anything, or even was on the field of battle at all, and the person in question has no way to assert any sort of claim of innocence. The question of whether it’s okay as long as they were an enemy combatant is moot: you are if they say you are, and if you actually aren’t, you still have no recourse.

96

Oh man, did that line floor me.

LOL:D

97

So along with medics, do you think field army units should maintain a full staff of defense attorneys? That seems a little silly. Have POWs always had access to legal representation?

98

For as long as the war exists, and their freedom would present a clear and present danger, of course. But not interminably, nor without communication with neutral prisoners’-welfare organizations (i.e. Red Cross), and not without a clear idea of what the war is, and who the enemy is, and what will constitute ending it, conditions which do not exist here.

We had a massive crime committed here by a group of conspirators. This was not an act of war, although it has been convenient for this administration and its supporters to call it that, even though the military has been involved in rounding up some of its members and accomplices.

If you’re going to insist that it’s a war, you had better be able to answer some simple and clear questions about it, such as:
Who is the enemy?
What are our war objectives?
When will we know it’s over?

If you can’t do that, then you have to admit it’s a crime sweep with diplomatic and military overtones, not a war.

You say we need to draw the line, but so far I haven’t seen you volunteer where the line should be. Your turn.

99

But where’s the review? The whole freaking point of our judicial system is to provide a review of the merit of locking somebody up. If they can just be held without trial because they’re an “enemy combatant”, then there is no review. Now, this case sidesteps that issue nicely by only applying it to foreign war zones, but that doesn’t mean it won’t come up.

So far, I’ve seen absolutely no evidence that the government can’t just have me arrested tomorrow and held indefinately, or isn’t at least pushing hard for that power. While I despise them, I don’t think Bush/Ashcroft et al intend to do that, but they’re sure as hell laying in the groundwork for it.

100

Right now, I think we have an excellent balance between the needs of the government to search for evidence of crimes, and the rights of the people to be secure against unreasonable search and seizure. This line came about not through an individual’s proposal, but by constant refinement by successive court cases as to what the basic language of the Fourth Amendment says.

This is, in my view, an excellent way to build policy.

And it’s what I hope to happen with this issue.

In general, my idea would be that for an American citizen, taken into custody on American soil, the presumption would be that he’s entitled to the full panoply of criminal defense rights and procedures. To overcome that presumption, that government would have to show a neutral, detached magistrate that (1) there is a clear and convincing evidence of terrorist group membership or association; (2) that there is probable cause to believe a specific terrorist act was being planned by the accused; (3) that there is clear and convincing evidence that access to legal defense resources could compromise the safety and security of others; OR that (1) there are exigent, short-term circumstances that make the determinations above impractical; in this latter case, I while I hate to draw a bright line, I’d say off the cuff that 30 days is a good figure for exigency to dissipate.

That’s my rough idea. But it’s not final, and it’s not perfect by any means. It - or any idea - won’t get close to perfect until it’s been challenged by zealous advocates from both sides of the issue - government actors wanting even more restrictive covenants and defense actors wanting even looser covenants.

Which is what’s happening now.

  • Rick