Goodbye "Inalienable Rights"

Gitmo 'Justice' for US Citizens?
By Robert Parry
July 21, 2008
A conservative-dominated U.S. Appeals Court has opened the door for President George W. Bush or a successor to throw American citizens – as well as non-citizens – into a legal black hole by designating them “enemy combatants,” even if they have engaged in no violent act and are living on U.S. soil.
The federal Appeals Court in Richmond, Virginia, ruled 5-4 on July 15 that Bush had the right, while prosecuting the “war on terror,” to hold Qatari citizen (and Peoria, Illinois, resident) Ali al-Marri indefinitely as an “enemy combatant.”
But some of the court’s more liberal judges expressed alarm, saying the legal reasoning that denied al-Marri meaningful due process not only trampled on American legal traditions but could be used to lock up U.S. citizens as well.
“For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law,” wrote Judge Diana Motz, a Bill Clinton appointee, who dissented against the court’s approval of sweeping presidential powers.
[...] Currently, the U.S. Supreme Court has a slim 5-4 majority in favor of limiting Bush’s authority to deny basic constitutional rights to people designated “enemy combatants,” but the replacement of one member of the majority with another Alito or Roberts would tip the balance and effectively permit the rewriting of the U.S. Constitution.
Though the July 15 ruling was convoluted and did call for a federal District Court to afford al-Marri some more rights, the Appeals Court decision effectively upheld Bush’s assertion of nearly unlimited power to have people detained as “enemy combatants.”
The ruling suggested that even American citizens – if they are deemed “enemy combatants” – could be subjected to Bush’s military commissions, where truncated legal rights make proving a person’s guilt much easier than in civilian courts.
Stunned Realization
Previously, the New York Times editorial page and some liberal legal experts had criticized Bush’s high-handed approach toward non-citizens, but had assured Americans that the military commissions would not apply to them.
But at Consortiumnews.com, we noted that language buried in the Military Commissions Act of 2006 seemed to cover – indeed even target – U.S. citizens. [See “Who Is ‘Any Person’ in Tribunal Law? or our book, Neck Deep.]
For instance, one section dealing with penalties stated that “any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission,” according to the law.
Another clause stated that “any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission … may direct.” [Emphasis added]
[...] But it took the Appeals Court ruling – and the blunt language from Judge Motz about denying constitutional rights to U.S. citizens – to catch the New York Times’ attention.
In a July 20 editorial, the Times wrote that the Appeals Court's “decision gives the President sweeping power to deprive anyone – citizens as well as non-citizens – of their freedom. …
“The implications are breathtaking. The designation ‘enemy combatant,’ which should apply only to people captured on a battlefield, can now be applied to people detained inside the United States. Even though Mr. Marri is not an American citizen, the court’s reasoning appears to apply equally to citizens.”
[...] In effect, Bush’s interpretation of his own powers – allowing him to imprison, torture and kill at his discretion – trumps the Founders’ vision that everyone possesses certain “unalienable rights” that a government can’t take away.
[...] In siding with Bush, conservative Appeals Court judges noted al-Marri had offered only a general denial of the accusations against him and failed to rebut the specific charges. Al-Marri’s lawyers argued that their client should have a right to confront his accusers and not be put in a position of having to prove his innocence.
[...] “While a showcase of American values, an open and public criminal trial may also serve as a platform for suspected terrorists,” [Judge Harvie] Wilkinson [a Ronald Reagan appointee who is often cited as a possible Republican Supreme Court nominee].wrote. “Terror suspects may use the bully pulpit of a criminal trial in an attempt to recruit others to their cause. Likewise, terror suspects may take advantage of the opportunity to interact with others during trial to pass critical intelligence to their allies.”
[...] “A citizen, no less than an alien, can be an enemy combatant,” [my bold] administration lawyer David B. Salmons told the Appeals Court in oral arguments on Feb. 1, 2007, adding that the courts cannot interfere with the President’s wartime judgments on such matters.
Salmons insisted that Bush is not interested in using this power too broadly, but argued that the judgment on whom is deemed an “enemy combatant” must solely be at the discretion of President Bush. [NYT, Feb. 2, 2007]
What may be decided in Election 2008 is whether the U.S. Supreme Court will be stocked with like-minded legal theorists.
http://www.consortiumnews.com/2008/072108.html

Read at Your Own Risk, Then Weep

From the NY Times we learn what we always suspected and feared: BushCo has set up legal mechanisms to disappear anyone, anytime, for any reason. All hail the Emperor! (or else)
Court Backs Bush on Military Detentions
By ADAM LIPTAK, July 16, 2008
President Bush has the legal power to order the indefinite military detentions of civilians captured in the United States, [my bold] the federal appeals court in Richmond, Va., ruled on Tuesday in a fractured 5-to-4 decision.
But a second, overlapping 5-to-4 majority of the court, the United States Court of Appeals for the Fourth Circuit, ruled that Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., must be given an additional opportunity to challenge his detention in federal court there. An earlier court proceeding, in which the government had presented only a sworn statement from a defense intelligence official, was inadequate, the second majority ruled.
The decision was a victory for the Bush administration, which had maintained that a 2001 Congressional authorization to use military force after the Sept. 11 attacks granted the president the power to detain people living in the United States.

[...] Mr. Marri was arrested on Dec. 12, 2001, in Peoria, Ill., where he was living with his family and studying computer science. He was charged with credit-card fraud and lying to federal agents, and was on the verge of a trial on those charges when he was moved to military detention in 2003.
[...] Jonathan L. Hafetz, a lawyer for Mr. Marri with the Brennan Center for Justice at the New York University School of Law, called the Fourth Circuit’s decision deeply disturbing.
“This decision means the president can pick up any person in the country — citizen or legal resident — and lock them up for years without the most basic safeguard in the Constitution, the right to a criminal trial,” Mr. Hafetz said.
The 216-page decision included seven opinions, none of which commanded a majority. The only common ground was four unsigned paragraphs at the beginning of the decision summarizing the result.
The Fourth Circuit is generally considered the nation’s most conservative federal appeals court. The closely divided and complex decision in a major terrorism case therefore came as something of a surprise.
Mr. Marri’s unusual situation played a role, said Robert M. Chesney, a law professor at Wake Forest University. Mr. Marri “was lawfully present in the U.S. and then arrested and held here, as opposed to being a noncitizen captured in a foreign land,” Professor Chesney said. “This consideration makes his case more difficult even in the eyes of relatively conservative jurists.”
The five judges who ruled that the president has the authority to detain people captured in the United States offered differing criteria for who might be subject to such detention.
Judge Diana Gribbon Motz, writing for herself and three other judges, disagreed, saying that Mr. Marri was at most a civilian criminal who may be prosecuted in the courts but not detained by the executive branch.
“This does not mean that al Marri, or similarly situated American citizens, would have to be freed,” Judge Motz wrote. “Like others accused of terrorist activity in this country, from the Oklahoma City bombers to the convicted September 11th conspirator [Zacarias Moussaoui] they could be tried on criminal charges and, if convicted, punished severely. But the government would not be able to subject them to indefinite military detention.”

J. Harvie Wilkinson, III

[...] All of the judges who would have denied Mr. Marri any relief — Judges Wilkinson, Karen J. Williams, Paul V. Niemeyer and Allyson K. Duncan — were appointed by Republican presidents; [my bold] all who would have granted him full relief were appointed by Democrats. [my bold] [This is why we need to VOTE!] Judge Traxler was appointed to the appeals court by President Bill Clinton.
In the conclusion of his long opinion, Judge Wilkinson said terrorism cases presented courts with special challenges.
“We may never know,” he said, “whether we have struck the proper balance between liberty and security, because we do not know every action the executive is taking and we do not know every threat global terror networks have in store.” [my bold] http://www.nytimes.com/2008/07/16/washington/16combatant.html?_r=3&oref=slogin&partner=rssuserland&emc=rss&adxnnlx=1216224087-H07S/h8Ofc89dLJCv5d%200A&pagewanted=print&oref=slogin
Indeed, Judge Wilkinson! Especially when the actions taken by the executive might be construed by some as part of a "global terror network." But you just following orders, c'nes pas?