Friday, September 09, 2005

Here's to Common Sense Judgments

Fresh from the 4th Circuit Court of Appeals:

Appeals Court Reverses Lower Court, Says 'dirty Bomb' Suspect Can Be Held Without Charges
Sep9, 2005RICHMOND, Va. (AP) - A federal appeals court Friday sided with the Bush administration and reversed a judge's order that the government either charge or free "dirty bomb" suspect Jose Padilla.
The three-judge panel of the 4th U.S. Circuit Court of Appeals ruled unanimously that the president has the authority to detain a U.S. citizen closely associated with al Qaida.

"The exceedingly important question before us is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war," Judge Michael Luttig wrote. "We conclude that the President does possess such authority."


Well, hush my mouth! The President can lock up a guy who wants to kill Americans for our enemy! Amazing.

But Judge Luttig? This might just take you out of the running for Justice O'Connor's seat. Maybe not...I mean I'd PAY to see Ted Kennedy attack you for this decision!

18 comments:

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Cassandra said...

No link? Tease.

spd rdr said...

Sorry Cass. I'm in the middle of self evaluation hell. Why don't you ask Mr. Spammy? You might get a free I-pod out of the deal. :-)

Click on AP Breaking News on the side bar. It'll show the story posted about the 11 am today.

Cassandra said...

Thanks, got it from Rob at Llama Butchers.

spd rdr said...

Hah! Fine feathered friend!

portia said...

We are convinced, in any event, that the availability of criminal process cannot be determinative of the power to detain, if for no other reason than that criminal prosecution may well not achieve the very purpose for which detention is authorized in the first place -- the prevention of return to the field of battle. (at 19)

So in others words, we must deny him due process because the charges--whatever they may be--might not stand up to scrutiny at a trial. Isn't that precisely the reason Padilla should be allowed to have his day in court?

This is not about being sympathetic to terrorists, this is about allowing an American citizen captured on American soil his right to due process. I say charge him with a crime (for starters, conspiracy should work), let him stand trial, and if convicted, lock him up in jail. At that point, I'll gladly let Bush throw away the "key."

spd rdr said...

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
Termininielio v. Chicago, 377 U.S. 1 (1949) Jackson, J., dissenting.

The question is whether a citizen who takes up arms against his nation is support of those who we are at war deserves the comfort of that citizenship which is the very target of his destruction.
I say no.

Cassandra said...

I will say nothing, other than I agree with spd, because my head will explode.

He made his citizenship irrelevent when he betrayed it.

portia said...

But that's not how it works, Cass. Due process exists even in war time. In Hamdi et al v. Rumsfeld, 124 S. Ct. 2633 (2004), the Supreme Court held that the Executive Branch does not have the power to indefinitely hold a U.S. citizen without basic due process protections through judicial review. "Plainly, the 'process' Hamdi has received is not that to which he is entitled under the Due Process Clause....Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad…."

Although the first Padilla case was dismissed by the Sup. Ct. on jurisdictional grounds in 2004, there's no reason to believe that the same protections handed down to Hamdi, captured on the battlefield, would not have been accorded Padilla, nothwithstanding his "capture" at O'Hare Airport:). My guess is that they will be on appeal.

portia said...

Besides, we have afforded the "comforts of that citizenship" to individuals accused of committing and planning far more heinous crimes. Mary Jo White, US Att'y SDNY, successfully convicted more than 2 dozen terrorists in 5 trials including those involved in first WTC bombing, the plot to bomb NY landmarks, the plot to blow up a dozen passenger planes over the Pacific, and the bombing of US embassies in Africa, all while ensuring them a fair trial. Heck, Moussaoui, the alleged 20th 9/11 suicide bomber, has even made his way through our criminal court system court, and is slated for an October trial-- in the fair state of Virginia, no less! Following the 4th Circuit's decision last year that gave the green light to Moussaoui's trial, Ashcroft was quoted as saying:: "The decision once again affirms our belief that the government can provide Zacarias Moussaoui with a fair trial while still protecting national security interests."

Heh. How 'bout that...Portia quoting Ashcroft:)

OT: Congrats on your win in the Bronx today, spd; we sure had fun messing with Boomer's cake last night.

KJ said...

I'm with Portia. Which I said at the Cheese. US citizen. US soil. 5th and 14th Amendment. Seems pretty simple. Explicitly stated and textual rights override unstated though implicit executive powers. I would even give Bush slack if we were "at war" in the Constitutional sense, or he was captured on a battle field or in a foreign country, or martial law had been declared. The guy deserves something other than "no charges" and indefinite detention. Why? Because we all deserve more from our own govt on our soil.

spd rdr said...

I believe in a living, breathing Constitution.(heh heh heh). I will not stand to see it suffocated under the blanket of current events. (heh heh heh). The well being of the nation transends those tempoarry notions of what is "right" and what is "wrong" and demands that the electorate take the long view towards their liberty, the life of the Republic that sustains it.

So just shoot the motherf**cker and dump his sorry ass into the Chicago river. Let history weigh our faults.
But let there be history.

Heh.

Heh.

spd rdr said...

Um...
that was purposefully over the top.

portia said...

Thank you, Mr. rdr nee Gore:)

Actually though, isn't the finding that Padilla can be seized on American soil and detained indefinitely without charges more a sign of judicial activsm than not? Just curious.

spd rdr said...

It is, my dear. That's the point I was trying to make.

portia said...

Oh.
So um...we agree?

spd rdr said...

As odd as that sounds.
WE agree that this decision is an activist one.

portia said...

Ever the attorney. Still.