Wednesday, September 14, 2005
Bill of Rights Absolutism
The Constitution seems admirably clear on a couple of points: No person shall be deprived of liberty without due process of law; and if someone is locked up, that person has a right to be charged and have a speedy, public trial.
Yes to both these general statements, but what process is due? It is not necessarily a trial. In the matter of waging war, a military tribunal is the only process due and it is not always due. Hasn't anyone at the News read Ex Parte Quirin or the Hamdi case? Notice too, the not so subtle commingling of prisoner-of-war status with pre-trial incarceration for a crime by use of the term "locked-up." Yes, those locked up because they are charged with a crime must have a speedy, public trial. Legal (or illegal) combatants during war are indeed "locked up" but they are not charged with a crime and they don't get a trial. If we want to do more than just keep them away from the battlefield, like try them for sabotage or war crime, then we have to do more by way of a military tribunal. This is a very bad start to the editorial.
A three-judge appeals-court panel has ruled unanimously that in the case of Jose Padilla, a U.S.-born American citizen, the president has the right to suspend these constitutional protections and keep him locked up indefinitely. And Padilla has been locked up in a military prison for over three years.
Yes, but one of the German spy/saboteurs, who was executed after being locked up after his capture pursuant to a 1942 law, was also a U.S. citizen and there was no trial for either incarceration or execution, and the U.S. Supreme Court was absolutely OK with that. Before we even get to the issue of waiving one's right through conduct, the News is acting like a trial is the only way to handle a U. S. citizen being locked up. The Supreme Court says just the opposite.
That overturned a lower court ruling that seemed to say precisely what the Constitution says: The government has to try Padilla or let him go.
Yea, the three judge panel said what the law really is and overturned the lower Court's mistaken ruling. Just as appeal Courts are supposed to do. The news is hanging on to "all detention must be pre-trial incarceration" like a dog to a bone.
Finally, the Supreme Court will decide. The high court has had the Padilla case once already, but sent it back to the lower courts on a technicality.
Yea, the minor technicality that the lower Court the first time had no jurisdiction to hear the case.
Only one other person has been held under circumstances similar to Padilla's: a young U.S.-born Saudi, Yaser Esam Hamdi, captured in Afghanistan. The Supreme Court ruled that Hamdi could challenge his detention in the federal courts, but before the case could be pushed to a resolution, the Bush administration let Hamdi go home to Saudi Arabia.
It seems to me that the News is accusing the Bush administration of punting the problem. Do they have any evidence of that or is this another case of uninformed opinion leading to a smear through innuendo? No evidence is evident.
The administration's reasons for holding Padilla have shifted in a way that doesn't inspire confidence. Supposedly al-Qaida-trained, Padilla at first was alleged to be plotting to detonate a radioactive "dirty bomb"; then to blow up apartment buildings by leaving the gas on; and then for having fought against his countrymen in Afghanistan.
What the News characterizes as 'shifting' reasons is actually the result of more information about Padilla becoming available as the federal case progressed. This increase in information is itself a problem, as discussed here, but it is a smear to accuse the Bush administration of shifting the reason for holding Padilla when the administration had the whole information at the beginning while the News and the rest of the country did not. In other words, the News is lashing out at the administration because of the News' initial ignorance. Cheap shot, guys and girls.
Even if one or both of the first two accusations are true, the problem for the government is that Padilla wasn't captured in Afghanistan. He was arrested in Chicago and spirited out of reach of his lawyers and the courts.
The fact that he was captured in Chicago after taking up arms against us in Afghanistan was directly addressed by the three judge panel in Padilla v. Hanft. Here's a simplified version of the Court's reasoning. If the Executive branch can hold without trial an enemy combatant captured overseas (as the Hamdi Court held) then it can hold that same enemy combatant who comes to America to continue the fight. I think even a dog could follow that logic. What's up with the News?
If he's guilty of any of this, the government ought to be able to prove it in court and lock him up legally. Otherwise, the president then has the power to lock up any American on his sole say-so that the person is an enemy combatant intent upon waging war on the U.S. at the direction of a foreign power or group.
Finally, we get to the gist of the News' problem with the case. It's scary that the Executive has this power during war to fight the war as wars are always fought (taking and keeping prisoners of the enemy combatants and spies/saboteurs) without a Court balancing that power. The sheer power of it, unchecked, is why we only allow it during war, when the actions of others, aimed at killing our citizens and destroying our country, has made it necessary for us to take these warlike steps. And, yea, we probably can prove the "case" against Padilla, but it hurts us and helps the enemy to do it in court, so why do we want to do that? The Bill of Rights, as famously said and repeated, is not a suicide pact.
The appeals court says this is a vital wartime power and one that Congress gave the president in a post-9/11 resolution. Sorry, we don't buy the idea that Congress can abrogate basic constitutional rights.
Oh really? So the Second Amendment right to keep and bear arms, which is a personal right (at least in the majority of federal circuit courts), cannot be abrogated by Congress? So, if your live-in girlfriend obtains a restraining order because she's afraid of your reaction to her leaving, but not because you've done anything wrong or ever threatened violence, you still have the right to keep and bear arms? So, the Lautenberg Act, passed by Congress, doesn't abrogate the basic constitutional right to keep and bear arms in just the way I've described above? I can assure you that it does. I can assure you that because of it, you can lose your Second Amendment rights, not for your conduct, but because of the conduct of others. Funny, but I can't recall a huffy News editorial saying "we don't buy the idea that Congress can abrogate basic constitutional rights" when the Lautenberg Act was passed. Perhaps my memory is faulty. (Google has nothing, though)
You can lose your basic constitutional right to freedom through your actions as proved by the Government using the process that is due under the circumstances, and in time of war, regarding enemy combatants, the Court is not, just plain not involved in the process; it's all Executive branch. That is the well reasoned law and, since this war, declared on us by al Queda in 1998 and waged against us for years by them before we lifted a finger in response, is probably going to last a long time, the faint of heart at the News better get a clearer view of reality. No right is absolute.
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