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Photos and text, unless otherwise noted, Copyright 2003,2004,2005,2006 - Alan M. Pavlik
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Consider:

"It is better to be drunk with loss and to beat the ground, than to let the deeper things gradually escape."

- I. Compton-Burnett, letter to Francis King (1969)

"Cynical realism – it is the intelligent man’s best excuse for doing nothing in an intolerable situation."

- Aldous Huxley, "Time Must Have a Stop"







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Monday, 28 June 2004

Topic: The Law

SCOTUS - In league with the terrorists?

My conservative friends will bemoan all this, and say today's decisions from the Supreme Court just show that the nation is disintegrating as we are now told by activists judges not to trust the president. Maybe so.

But the Supreme Court today ruled that those foreign folks we've held at Guant?namo Bay in Cuba for almost two and a half years now - without charges, with no access to anyone - can challenge their detention. It seems the idea presented by the attorneys for the administration, that neither our laws nor any international laws or treaties applied here, was not a winner. Perhaps the photographs from the Baghdad prison played a part in all this - but perhaps not.

The issue came down to the administration saying that in time of war, even if there is no formal declaration of such, the president, as commander-in-chief, can, because it is his job to protect us all, claim some folks to be "enemy combatants" that fall completely outside the law. And we can do anything we want to them. We have to. They may know things. They could be dangerous. Due process is a luxury. They are terrorists and not aligned to any particular government, so they cannot be prisoners of war. Are they criminals? No. Perhaps not yet, But they could be folks who would do really bad things if we let them.

And if those detained happened to be US citizens - apprehended here or on some foreign battlefield? The administration claimed that made no difference. You had to allow the president this option - holding them forever with no charges, no questions asked - or we all could die. This was just common sense.

The Supreme Court wasn't buying it.

The Associated Press story reviewing all this is here - and Reuters covers it here.
Four of the nine justices concluded that constitutional due process rights demand that a citizen held in the United States as an enemy combatant must be given "a meaningful opportunity" to contest case for his detention before a neutral party. Two more justices agreed that the detention of American citizen Yaser Hamdi was unauthorized and that the terror suspect should have a real chance to offer evidence he is not an enemy combatant.
Oh? Why? Don't they trust the president?

No. Reuters quotes from Justice O'Connor's opinion:
... the court has "made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
No blank check, huh?

I imagine Dick Cheney has a few choice words for Sandy now, not just for the senior senator from Vermont.

As for non-citizens, this was covered in Rasul v. Bush opinion today - and that's here (in PDF format).

There you'll find -
United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.

(a) The District Court has jurisdiction to hear petitioners' habeas challenges under 28 U. S. C. ?2241, which authorizes district courts, "within their respective jurisdictions," to entertain habeas applications by persons claiming to be held "in custody in violation of the . . . laws . . . of the United States," ??2241(a), (3). Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not "ultimate sovereignty."
Geez, keeping these guys in Cuba and saying our laws didn't apply there - as it wasn't really part of the United States? No dice.

What to make of all this? It seems the National Association of Criminal Defense Lawyers (NACDL) has something to say. Like this:
For over two years, the Bush Administration have tried to have it their way, not the Constitutional way. These decisions are a stern rebuke. The Executive Branch may not be the sole arbiter of who is detained and for how long. Detainees must have access to counsel and the courts.
Yeah, yeah.

The court also decided two Miranda cases today. Bottom line? - "The Court holds that physical fruits of a Miranda violation don't get suppressed but that purposeful Miranda violations vitiate a subsequent confession."

Huh?

Justices Warn Police on Coercion Tactic
June 28, 12:47 PM (ET) - Gina Holland for the Associated Press
WASHINGTON (AP) - The Supreme Court on Monday warned police away from using a strategy intended to extract confessions from criminal suspects before telling them of their right to remain silent.

The court, on a 5-4 vote, said that intentionally questioning a suspect twice - the first time without reading the Miranda warning - is usually improper.

But the court left open the possibility that some confessions obtained after double interviews would be acceptable, providing police could prove the interrogation wasn't intended to undermine the Miranda warning.
Once more. Huh?

Well, I do have a friend who has argued, and does still argue, in front of the Supreme Court. Perhaps she can clear this up.

All in all, today's "enemy combatant" decisions are a blow to those who say don't sweat the details and just trust Bush and his crew, or is that just trust Cheney and his crew - which happens to sometimes include Bush? Whatever. They will say the court is now endangering our lives - and making us play nice with those who just want to kill us all. And something should be done. The line will be, as it has been for some time, that liberals always want to play fair and that's too dangerous these days.

So I won't listen to talk radio for the next few days.
___

Much of the background above was found through links and comments at this site. Check it out. Real lawyers might find it silly. The rest of us often need a little more explanation.

Posted by Alan at 20:23 PDT | Post Comment | Permalink
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