Creative Destruction

April 4, 2006

Review of Rights Refused

Filed under: Uncategorized — Brutus @ 12:07 pm

CNN reports that the Supreme Court yesterday refused to review the case of Jose Padilla having been held for 3.5 years without charges under the Bush administration's supposed war powers. Padilla is apparently now in civilian custody and is charged with conspiracy to murder U.S. citizens and provide material support to terrorists. Even CNN says the Court essentially sidestepped the case, which is regarded as a victory for the Bush administration.

I averred in an earlier post that our right to due process is gone. Jose Padilla has been the de facto test case. Nothing that has occurred demonstrates that either the Court or the Bush administration is interested in upholding or obeying the Constitution on this matter. How many others are being held "without traditional legal rights," as CNN puts it?

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12 Comments »

  1. I have to admit, I’m disappointed by this as well. I understand that the Supreme Court is often reluctant to wade into controversial waters unless absolutely necessary, but I think this issue is too important for SCOTUS to wuss out on.

    Comment by bazzer — April 4, 2006 @ 2:19 pm | Reply

  2. Who is this man?

    Comment by Adam Gurri — April 4, 2006 @ 3:53 pm | Reply

  3. I have to take exception with the basic premise, here.

    The right to due process still exists. What has been re-asserted is an executive exception that permits action in what, for lack of a better term, I will call “dramatic” cases of citizens who are also war-fighters against the United States.

    The test is simple. Go out, right now, and mug an old lady. Stand around and wait to be arrested. Observe the process, and report back to us on whether you received your due process rights. I confidently anticipate that you would.

    Now, go out and join al-Qaeda and then commit some terroristic crime. Your due process right may well become infringed, as befits someone who is warring against the nation.

    The state appears in these cases to be exerting its authority with discretion and appropriate targeting. If the state were not doing so – if there were wide-scale abuses – that would be another question.

    It may seem odd that as a libertarian, I am relatively sanguine about the state possessing this power. But it is my viewpoint that the state already possesses vast swathes of power which it is eminently capable of turning to abusive ends. Even without the ability to treat Jose Padilla lightly, the state has the power to abuse its own authority.

    What’s important to me is whether or not it is doing so, not the exact scope of the power. The power is already vast; a teacup of water on the head of a drowning man does no harm.

    Comment by Robert — April 4, 2006 @ 6:58 pm | Reply

  4. I’m willing to accept the fact that the executive branch has broad powers and discretion when it comes to enemy combatants and illegal belligerants of war. But when the president assert that those powers allow him to detain an American citizen indefinitely without benefit of counsel, I begin to have a problem. I concede that, in the Padilla case, it’s a bit of a grey area, but that’s all the more reason why SCOTUS should have clarified it, IMO.

    Comment by bazzer — April 4, 2006 @ 7:57 pm | Reply

  5. But when the president assert that those powers allow him to detain an American citizen indefinitely without benefit of counsel, I begin to have a problem. I concede that, in the Padilla case, it’s a bit of a grey area, but that’s all the more reason why SCOTUS should have clarified it, IMO.

    Seems reasonable enough to me. What’s the grey area with this case?

    Now, go out and join al-Qaeda and then commit some terroristic crime. Your due process right may well become infringed, as befits someone who is warring against the nation.

    Didn’t Timothy McVeigh commit an act of terrorism and still get a trial?

    It seems to me that it’s one thing to have a special procedure for people captured in times of war. But once you start applying the same thing to our own citizens, things get a bit tricky. After all, words are just words–even if this administration had no intention of abusing this power (which I believe it does not) it leaves the door open for presidents down the line who want to use this loophole to get someone who might require some redefining of the word “terrorist” in order to squeeze him in.

    Does that make any sense?

    Comment by Adam Gurri — April 4, 2006 @ 8:39 pm | Reply

  6. So Robert, when it’s criminal, the accused has rights; but when it’s war, the “detainee” has none? Is that about how it goes? Without due process, without the bad guy being charged, how does one know which it is? Simply trust the government? (Bad idea.) Isn’t the whole idea of criminal prosecution to suspend not rights but judgment until the process is nearly complete? In war that doesn’t count?

    There are over 500 detainees. Most independent investigators have found little evidence to link at least half the detainees with either the Taliban, Al Qaida, or other dangerous organizations. I find it far more likely that many detainees are merely political prisoners who have committed no crimes.

    Comment by Brutus — April 4, 2006 @ 8:49 pm | Reply

  7. I find it far more likely that many detainees are merely political prisoners who have committed no crimes.

    On what basis?

    Comment by Adam Gurri — April 4, 2006 @ 9:03 pm | Reply

  8. Didn’t Timothy McVeigh commit an act of terrorism and still get a trial?

    When McVeigh committed his acts, the existence of the war had not been fully clarified. If his spiritual second was to choose this moment to carry on the fight, I’d be all for putting him in the next cell over from Jose.

    Without due process, without the bad guy being charged, how does one know which it is?

    The same way that the Allied command in WWII knew which Germans to bomb: the application of reason. The bad guy has been charged, by the way, for about six months now; might want to drop that talking point.

    Look, you want to treat enemy soldiers like people who got pissed off and murdered a spouse. But we have a long tradition of separating the criminal jurisprudence from the fighting of wars, and It seems to be working so far. I think the burden of proof is on you to show why Jose Padilla should be treated differently than the German saboteurs who came ashore in New Jersey and Florida during WWII.

    Comment by bobhayes — April 4, 2006 @ 9:18 pm | Reply

  9. Discerning combatants in a declared war — in a theater of war — is quite a bit different from what is going on in the putative war on terror. Robert appears to be happy to hand over others’ rights to a rogue administration that acts without accountability to anyone. Perhaps if people were a bit more inconvenienced by the war they’d notice their rights stripped away. As it now stands, the lack of outrage lands with a resounding thud.

    Comment by Brutus — April 4, 2006 @ 11:13 pm | Reply

  10. It lands with a thud because nobody serious believes the powers are being abused, Brutus.

    You want the war to be convenient, with enemies who obediently wear grey uniforms and line up in battalions, with proper paperwork. Well, that war isn’t working that way. Sorry.

    I am not happy to hand over rights to any administration, but it’s part of an adult conceptualization of the relationship between citizen and state. As noted previously, the state had ample power to oppress you long before Osama bin Laden was a twinkle in a Saudi prince’s eye. I didn’t hear you wailing about the potential for abuse of state power ten years ago.

    We’re in a war. Some of the people we’re fighting are operating under cover of American citizenship. That’s dangerous, and means we have to keep a close eye on the state – always a damn fine idea, from this libertarian’s point of view. It doesn’t do anything to the structural powers of the state, which are being exercised quite normally in the GWOT.

    Comment by bobhayes — April 4, 2006 @ 11:20 pm | Reply

  11. […] I blogged before about Jose Padilla, who has been detained since 2002 as an “enemy combatant” until earlier this fall when he was added as a defendant in a terrorism conspiracy case already under way in Miami. At the time, the Supreme Court was weighing whether to take up the legality of his military detention – and thus the issue of the president’s authority to seize an American citizen on American soil and hold him indefinitely without charges – when the Bush administration pre-empted its decision by filing criminal charges against Mr. Padilla. […]

    Pingback by Jose Padilla Update « Creative Destruction — December 4, 2006 @ 6:54 pm | Reply

  12. […] I blogged before about Jose Padilla, who has been detained since 2002 as an “enemy combatant” until earlier this fall when he was added as a defendant in a terrorism conspiracy case already under way in Miami. At the time, the Supreme Court was weighing whether to take up the legality of his military detention – and thus the issue of the president’s authority to seize an American citizen on American soil and hold him indefinitely without charges – when the Bush administration pre-empted its decision by filing criminal charges against Mr. Padilla. […]

    Pingback by Jose Padilla Update « The Spiral Staircase — December 4, 2006 @ 6:55 pm | Reply


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