U.S. Defies Judge on Enemy Combatant

August 7, 2002 12:05 PM

U.S. Defies Judge on Enemy Combatant From the WashPost.....yesterday's action was the first time the government has not agreed to a judge's request. The government's action sets the stage for a constitutional confrontation tomorrow. Is anyone else as appalled and disturbed by this as I am? Isn't defiance of the justice system a deeply dangerous precedent?
posted by pjgulliver (65 comments total)

Dycus suggested that prosecutors, mindful that the case is being closely watched by lawyers and civil libertarians, "must have in mind setting some precedent that would be helpful to them in certain other cases."

I think that says it all.
posted by tellmenow at 12:11 PM on August 7, 2002

Andrew Jackson anyone?
posted by KirkJobSluder at 12:11 PM on August 7, 2002

When did Andrew Jackson defy the ruling of a United States federal court?

Those free plane tickets should sure come in handy right about now.
posted by insomnyuk at 12:14 PM on August 7, 2002

Yeah, if they can get me to Canada, Australia, or New Zealand. I wonder if I can get and EU work permit if I describe myself as a political refugee :)
posted by pjgulliver at 12:17 PM on August 7, 2002

in justifying the detention of captured enemy combatants in wartime, the military should not need to supply a court with the raw notes from interviews with a captured enemy combatant . . . or the other types of information listed in the court's order," Leonard wrote.

Translated: We are above the law.
posted by dr_dank at 12:17 PM on August 7, 2002

Seriously though, what percentage of the country would agree with the Executive Branch defying a federal court order? And if the country violently disagrees with actions of the executive branch, how can anything be done short of electing someone else in during the next presidential election cycle? Its times like this when I wish there was some way to hold a vote of no confidence in the government, like in the UK.
posted by pjgulliver at 12:22 PM on August 7, 2002

insomnyuk - ""When did Andrew Jackson defy the ruling of a United States federal court"

When a gold rush hit Georgia, white settlers moved in to take Cherokee lands. The Cherokee appealed to the Supreme Court, which ruled in their favor. Andrew Jackson overruled the court, and the Cherokee were uprooted and sent on the "Trail of Tears."

It still pisses me off that that bastard has his face on our currency.
posted by tdismukes at 12:26 PM on August 7, 2002

Andrew Jackson: The Supreme Court has made it's decision, now let them enforce it.

_{In regards to a Supreme Court ruling that the Cherokee nation was a soveriegn territory, within which "the laws of Georgia can have no force."}
posted by thewittyname at 12:26 PM on August 7, 2002

I feel as if I'm living on the other side of the equator - isn't this in the style of some South American regimes? I think a "review of the Executive" is not unreasonable in this instance, especially since Hamdi is a citizen.

...any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel. This is obvious. And scary.
posted by TskTsk at 12:27 PM on August 7, 2002

not even nixon defied them for very long. perhaps the angry mobs will finally descend upon the bush white house and kick him and his fascist buddies asses all the way back to texas.
posted by quonsar at 12:28 PM on August 7, 2002

What's scary is that some people think Bush is doing a 'peachy' job. They don't read newspapers and only glean information from TV. They have no idea what 'Enemy Combatant' status is. Every day, I read more and more about Bush, Cheney A$$croft and it makes me sick to my stomach.
posted by patrickje at 12:32 PM on August 7, 2002

If he's an "enemy combatant" then he may be a prisoner of war. The US is a signatory of the Geneva Conventions. Article 3 of the Geneva Convention relative to the Treatment of Prisoners of War (75 U.N.T.S. 135), states:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

[...]
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.


Article 4 gets specific on the matter of who's a POW and who isn't:


2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, [...]


So Dubya et.al. can't have it both ways. Either he's a citizen of the US--with all the rights guaranteed by the US Consitution, including rights to due process--or he's a POW, entitled to rights under the Geneva Conventions.

Of course, there is basis to claim he is not entitled to Geneva Convention protection because al-Qaeda doesn't meet the conditions of Article 4 (2). But there is also a counter-argument that US combatants have at times operated outside the conditions of Article 4 (2), and we still expect our prisoners in foreign hands to be accorded Geneva Convention protections.

Supporting this position is Article 5 of the same Convention:

[...]
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.


So any way you slice it, this guy must be brought to some kind of trial; either in the US-- as a citizen, with his citizen's rights, or as a POW with his POW rights (which would in this case default to those rights guaranteed a citizen)-- or before some kind of international tribunal.

Holding him incommunicado, indefinitely, is just morally wrong.
posted by Cerebus at 12:33 PM on August 7, 2002

insomnyuk: When did Andrew Jackson defy the ruling of a United States federal court?

I think KirkJobSluder is referring to the case of Worcester vs. Georgia (1832), in which the U.S. Supreme court agreed the Cherokee were a sovereign nation, and not subject to the Indian Removal Act of 1830. Said Andrew Jackson, "John Marshall has made his decision; let him enforce it now if he can."

Thing is, Jackson didn't remove the Cherokee. As they were now sovereign, they could only be affected by Internationl Law. They removed themselves by the positioning of a (illegal by Cherokee Law) treaty, The Treaty of New Echota. This treaty was not advanced by the chief, but by others in the tribe. When the treaty was ratified by the Senate in 1835, the infamous Trail of Tears was set to begin. It took until 1838 to start, but it killed over 3000 of the tribe as they were marched from Georgia/Tennessee/North Carolina to Oklahoma.

But, Andrew Jackson played by the rules.
posted by dwivian at 12:35 PM on August 7, 2002

In retrospect, it wasn't so much defiance as a willingness to weasel his way around the Supreme Court ruling. Jackson managed to enforce the Indian Removal Act in spite of a Supreme Court ruling by making a treaty with a minority Cherokee party.

But it looks like that this administration gets more corrupt every day. Starting with the appointment of convicted perjurers to national security posts from the award of Guantanamo Bay construction contracts to Hallburton.
posted by KirkJobSluder at 12:37 PM on August 7, 2002

Even though I'm quite the civil libertarian, I might be sympathetic to the justice department refusing the release those documents to the general public. But come on, this guy is a federal judge. Before their refusal, he wasn't even saying that they were necessarily wrong, he just wanted to look at the evidence. If they had cooperated, he might have said "Well, okay, this guy implicitly renounced his American citizenship, and the justice department and I know why," which would hardly be a blow against the white house.

And there's no doubt I'm fairly anti-Bush, but even if we assume that the justice department is right in their statement that this guy shouldn't count as an American citizen anymore (and who knows, maybe the evidence supports their conclusion), it sets a horrifying precedent for the empowerment of future administrations, of any party.

I'd really like to hear some of our hardcore Republican members weigh in on this. Even if you're generally a supporter of Bush and Ashcroft, does this precedent not make you uneasy?
posted by bingo at 12:38 PM on August 7, 2002

If he's an "enemy combatant" then he may be a prisoner of war.

Bwahahahahahahaha. Yeah, right. It will be funny if Saddam makes a song and dance about upholding the Geneva Convention once Operation Infinite War begins.
posted by riviera at 12:43 PM on August 7, 2002

Terrorist legislation is new, so there will undoubtedly be differences in opinion on what the government can and cannot do with detainees. This isn't scary at all, it is normal for our tripartite system of government. It is a little new to us since it hasn't happend since the early days of our government, but there is certainly a precedent for disagreements amongst the branches, and if you would ignore the current seat holders in government and have faith in the Constitution's very ingenious design, then you won't have to worry about Gmen kicking in your doors at night and arresting you for no reason.
posted by Mushkelley at 12:44 PM on August 7, 2002

"...but when investigators learned that he was born in Louisiana..."

Louisiana, is that in Marin County? It's all that hot tubbing, free loving, bleeding heart liberal bullshit in Louisiana that is destroying this country from within!

;-)
posted by whatever at 12:50 PM on August 7, 2002

Bingo said: "...does this precedent not make you uneasy?"

I would be reluctant to call this a precedent so quickly. It's not as if the actions of either side are carved in stone. I'm sure there is some sort of appeal process that could reverse this situation. Even so, these are unprecedented times, at least for this country. Therefore I would expect things like this to occur when all the kinks (large and small) are still being worked out.

Some of you get so worked up over this stuff, it's a wonder you manage to wake up and make it to work in the morning.
posted by Witty at 12:53 PM on August 7, 2002

riviera: I don't see what you're getting at. The US is absolutely bound to the Geneva Conventions, as it is a signatory. It's not a promise to play nice only if the other guy does too; it's a promise to play nice no matter what.
posted by Cerebus at 12:53 PM on August 7, 2002

YAY! Mushkelley... phew. :o)
posted by Witty at 12:55 PM on August 7, 2002

The US is absolutely bound to the Geneva Conventions, as it is a signatory. It's not a promise to play nice only if the other guy does too; it's a promise to play nice no matter what.

You'd think so, wouldn't you? It's a shame that the executive branch of the USA doesn't agree with you, in its use of a weasel-definition ('unlawful combatant') that's designed just to evade the Geneva Conventions.

Even so, these are unprecedented times, at least for this country. Therefore I would expect things like this to occur when all the kinks (large and small) are still being worked out.

Pardon my Godwin, but: "The government will make use of these powers only insofar as they are essential for carrying out vitally necessary measures... The number of cases in which an internal necessity exists for having recourse to such a law is in itself a limited one."
posted by riviera at 12:58 PM on August 7, 2002

quonsar,
perhaps the angry mobs will finally descend upon the bush white house and kick him and his fascist buddies asses all the way back to texas.

Let's give credit where credit is due. Kick them back to Florida (Texas already has enough assholes).
posted by DragonBoy at 12:59 PM on August 7, 2002

Um. Clearly tellmenow pegged it. The Bush administration is indulging itself in a little contempt of federal court, which is nothing new for the Executive branch; one of the very first important Supreme Court cases, Marbury v. Madison, was a struggle for authority between the Executive and Judicial branches. What will happen next

And Cerebus: the wording is competent tribunal. Nice of you to interpolate international, though. Creative. And your assumption that there's a simple either/or delineation between prisoner of war and citizen is obviated by the very wording of the text. It is entirely possible, for example, to be an enemy combatant representing a terrorist organization which was operating criminally in the territory of an allied government, namely, Afghanistan. (Yes, the Northern Alliance were the recognized government, and always retained the UN seat.) The Geneva Convention isn't some sort of sacred law for the whole world, it's law for interactions between signatories. The "competent tribunal" is, in this case, Federal district court, an authority which the administration has now implicitly recognized given its arguments but is at pains to keep out of the final determination. In principle I'd be happier if he were given a lawyer, but there's no certainty that he's legally entitled to one which is what the order here is all about.

As Josh Marshall noted, "Whatever else you can say about the government's treatment of detainees, it hasn't lacked for variety." This is almost certainly a risk-averse strategy of evolving multiple strains of case law, reducing the chance that any single approach could abruptly free scores of detainees by a single judicial ruling.

By tomorrow, of course, this will either be settled or kicked upstairs to the Supremes. It's not like the reins of government are falling apart.
posted by dhartung at 1:01 PM on August 7, 2002

It seems that applying the enemy combatant designation to other criminals is something that would appeal to the Justice department. If these detentions continue to hold, what is stopping the Justice department declaring people arrested in the drug "war" enemy combatants? Not being a lawyer, I couldn't describe the legal differences between al-Queda and a Columbia drug cartel. However, from a practical standpoint, I can imagine the argument being made that they are quite the same. We have already seen portions of the USA patriot act being applied to drug cases, so it is not much of a stretch to see the enemy combatant designation being applied to them as well.

That being said, I am not too sure that the American public would be comfortable with a generic gang-banger being locked away in a military brig without trial, but the lack of foresight exhibited by my fellow countrymen never ceases to amaze me.
posted by kurtosis at 1:03 PM on August 7, 2002

The US is absolutely bound to the Geneva Conventions, as it is a signatory.

As I understand it, the U.S. bound to the convention if at war with another signatory, which Al Qaeda is not.

I'm sure there is some sort of appeal process that could reverse this situation.

Judge Doumar ruled that Hamdi's father and lawyer should have access to Hamdi, the Justice Dept. (from the article)"appealed to the 4th Circuit in Richmond. A three-judge panel's ruling July 12 sent the case back to Doumar, saying he needed to have more facts and hear more arguments." Now the Justice Dept. is refusing to turn over the information which Doumar requires to make that decision. I'm not one to flip out over such things, but if the Justice Dept. continues to stonewall, it would seem that the appeals process, while not breaking down, is stalled.
posted by Ty Webb at 1:04 PM on August 7, 2002

They're only stonewalling until he heals. Fingers grow back, right?
posted by PinkStainlessTail at 1:08 PM on August 7, 2002

It is a little new to us since it hasn't happend since the early days of our government,

NIXON

but there is certainly a precedent for disagreements amongst the branches,

NIXON

the early seventies can hardly be called the "early days of our government".

posted by quonsar at 1:19 PM on August 7, 2002

That being said, I am not too sure that the American public would be comfortable with a generic gang-banger being locked away in a military brig without trial...

If the military were required to capture one of these gang-bangers because he/she was blowing up buildings, etc. in name of some anti-American cause... then yea, to the brig with 'em.

...but the lack of foresight exhibited by my fellow countrymen never ceases to amaze me.

I try not to confuse foresight with paranoia.
posted by Witty at 1:22 PM on August 7, 2002

The government isn't going to waste this "Enemy Combatant" peach on run of the mill criminals. Don't worry about being locked up in a federal prison without legal counsel for buying a dime bag. But as far as the designation being applied to Drug Cartels, or say mass murders, or say.. people with backpack bombs... I have zero problem with that. Those people are bad and deserved to be punished.
posted by Mushkelley at 1:23 PM on August 7, 2002

And I seem to remember reading somewhere about NIXON leaving office before he was scheduled to do so. The constitution works, trust it.
posted by Mushkelley at 1:24 PM on August 7, 2002

Mushkelley: "Those people are bad and deserved to be punished." Not necessarily. The whole point of giving him his day in court is to determine whether he's "bad" or not. The government is basically saying, "He's bad. How dare you question our judgment." The judge is saying, "Um, no. That's my job, thanks." Which it is.
posted by Tin Man at 1:27 PM on August 7, 2002

You are right Tin Man.
I just don't think the government is going to abuse the designation, and you will find that those who get designated Enemy combatants will overwhelmingly, if not exclusively, deserve the designation.
posted by Mushkelley at 1:31 PM on August 7, 2002

And I seem to remember reading somewhere about NIXON leaving office before he was scheduled to do so. The constitution works, trust it
Mushkelley: that wasn't the point. the point you made was that it hadn't happened since early times. you were wrong. and you might have missed it, but i mentioned nixon's failure to defy the judiciary for very long quite early in the thread.
posted by quonsar at 1:44 PM on August 7, 2002

...how can anything be done short of electing someone else in during the next presidential election cycle?

One would think that government officials who persist in disobeying judicial orders could be impeached. Of course, getting a Congress willing to do so would have to wait until at least the next congressional elections.
posted by gimonca at 1:57 PM on August 7, 2002

Well, my point was that it isn't the end of America if the executive defies the judiciary. But it seems I cocked up my point by saying too much.
posted by Mushkelley at 1:59 PM on August 7, 2002

I believe we have already had one US citizen declared an enemy combatant who was not originally detained by the military and who was detained on American soil, in Chicago. None the less, Paranoia is quite different than exploring possible outcomes. Never having assigned a probability to my suggestion, one can not draw the conclusion that I consider it a likely outcome. I don't, but is it possible given the current laws? I am not prepared to answer, however it would be interesting to hear commentary on the law from those in the know.

Anyhow, what I was trying to express, which I clearly did not, was the observation that American society typically looks for the short term work-around, rather than determining a long term solution. Declaring US citizens enemy combatants to remove them from society without due-process, simply because they may present a danger to society, seems like a work-around to me, rather than a long term solution.
posted by kurtosis at 2:02 PM on August 7, 2002

What's scary is that some people think Bush is doing a 'peachy' job. They don't read newspapers and only glean information from TV. They have no idea what 'Enemy Combatant' status is.

I suppose it isn't within the realm of your imagination that some of us who disagree with you are quite well read. Perhaps instead of ignorance we're just stupid then. Couldn't just be a different view could it?

p.s. The sky is falling!
posted by revbrian at 2:12 PM on August 7, 2002

I have zero problem with that. Those people are bad and deserved to be punished. -- Mushkelley

And *that* is why we have a judicial system. That's what courts, trials, juries and the like are for...to make those determinations and set appropriate punishments.

That's *not* the job of the executive branch.

Article II of the American Constitution pretty clearly spells out what the powers of the Executive branch are:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Article III pretty clearly outlines what the Judicial branch is supposed to do:

The Judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Nowhere in the Constitution does it say that the President or the Executive Branch get to determine and/or punish "bad people" or as Bush II would say, "evil-doers". It's insane to give them that kind of power. The whole reason we have checks and balances built into the system is to AVOID giving them that kind of power.
posted by dejah420 at 2:19 PM on August 7, 2002

The government isn't going to waste this "Enemy Combatant" peach on run of the mill criminals.

Anyone remember last fall, when some right-wing commentators insisted that this kind of thing wouldn't be used on U.S. citizens? Then came Jose Padilla. Sorry, Mushkelly, your faith in big government's ability to control itself couldn't be more misplaced.

it isn't the end of America if the executive defies the judiciary

It will be if the executive prevails. Historians are going to remember the Cheney administration primarily for its massive, unconstitutional power grabs for the executive branch. From the $10 billion (!) he wanted in discretionary War on Some Terror money and Justice's orders to stall Freedom of Information requests to this, Cheney is making a clear attempt to redefine constitutional democracy in the United States so it allows him and his pals to do whatever he wants. It's no wonder folks on the left *and* right are getting increasingly alarmed.
posted by mediareport at 2:26 PM on August 7, 2002

"...seems like a work-around to me, rather than a long term solution."

Don't you agree that there is certainly a need for taking action in the short term... at least unlike I've ever known in my life time. I would expect that efforts for long term solutions "are in the process" and will take time, more than an overnight. Until those procedures are firmly in place and this country is more used to this type of activity (god forbid), all of this is going to be shooting from hip, to an extent. The fact that they could even deny a federal judge in the first place must be there for a reason... and so they used it.

dejah420: I think the fact that we sent troops to Afghanistan to kill and destroy was already some kind of judgement that these people are "bad". Now, instead of killing this guy where he stood, we bring him back here 'til we figure out what to do with him, and you demand that the judicial branch should now also agree that this man is an enemy.
posted by Witty at 2:28 PM on August 7, 2002

So when can I start arresting people?
posted by Lord Chancellor at 2:36 PM on August 7, 2002

The executive branch carries out and enforces the laws. I think this gives them every right to arrest citizens. The Judicial branch will then determine what punishment should be levied if any. It will also determine if the arrest is justified (if that is the case) This is an instance of those two functions not fully meshing and it will be settled through the appeals process.

Jose Padilla hardly makes me lose faith in government. If I were to be disillusioned by the government preventing a bombing plot, I would be a member of the IRA.

The "Cheney" administration will be judged by the American public at the next presidential election.
posted by Mushkelley at 2:36 PM on August 7, 2002

Perhaps instead of ignorance we're just stupid then.

Well, I didn't feel comfortable stating the obvious, but I'll agree with you on that point.
posted by patrickje at 2:38 PM on August 7, 2002

p.s. The sky is falling!

Again? Christ! I swear, the sky falls at least 4 times a week, here on HysteriaFilter.

Tune in again tomorrow when we throw our hands up in the air about our civil liberties being stolen, Bush as our dictator, etc. etc. etc.
posted by BlueTrain at 2:50 PM on August 7, 2002

not to mention asscroft!
posted by quonsar at 3:42 PM on August 7, 2002

AAAHHH! The Devil...Asscroft's the Devil I tell ya! Before you know it, he'll try to Christianate you too...run!
posted by BlueTrain at 3:44 PM on August 7, 2002

Again? Christ! I swear, the sky falls at least 4 times a week, here on HysteriaFilter.

Bluetrain, do you have a counterpoint, a justification, a rational in response to what people are concerned about, or just a bag of ridicule, cuz we've seen shitloads of that here too (not in a small part from yourself).
posted by holycola at 3:47 PM on August 7, 2002

I just don't think the government is going to abuse the designation,

Wow, you have a lot more faith in government than I do. Something about power corrupting.
posted by nath at 4:04 PM on August 7, 2002

The executive branch carries out and enforces the laws. - mushkelley

Um...where do you see that in the Constitution? Cause...I'm not finding it. Executive agencies...such as the Justice department, do NOT have the power to override the Judicial branch of the government. They are allowed to field prosecutorial attorneys...but they do not have the power to decide *what* the law means. They have the power to "enforce" only to the point that they can arrest someone...and place them in the court's jurisdiction. Again, I refer you to the entire concept of checks and balances.


Article III of the U.S. Constitution clearly states:

• Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
• Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Often called the "guardians of the Constitution," the federal courts exist to fairly and impartially interpret and apply the law, resolve disputes and, perhaps most importantly, to protect the rights and liberties guaranteed by the Constitution. The courts do not "make" the laws. The Constitution delegates making, amending and repealing federal laws to the U.S. Congress.

Now, instead of killing this guy where he stood, we bring him back here 'til we figure out what to do with him, and you demand that the judicial branch should now also agree that this man is an enemy. -- Witty

Yes! Because he's an American. And we have a Constitution that addresses this situation. And I'm not willing to throw away 200 years of case law to make some slap-happy Executive branch official happy.
posted by dejah420 at 4:17 PM on August 7, 2002

Let's face it, this is internment by another name. It didn't work for the British Government in dealing with the IRA, and it won't help the USA Government here either, in the long run.

The point is not that these powers would only be invoked in exceptional cases. The point is that the USA executive has decided that it has these powers, and the sole discretion as to when to use them.

Even in the old Soviet Union (post Stalin), the vast majority of criminals were dealt with by the normal criminal courts. By implementing a policy of internment, the USA has lowered itself to the level of a repressive police state, just as Britain did in the 70s. Eventually, it will be seen to have been a huge mistake, and no doubt there will be many inquiries, and new guidelines to ensure it can never happen again. I just wonder how much damage will already have been done by then.
posted by salmacis at 4:32 PM on August 7, 2002

This whole citizen/non-citizen/enemy combatant thing is a red herring. To add to dejah420's post, the fifth amendment says:

NO PERSON shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall ANY PERSON be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Even captured in Afghanistan, and brought back to the United States, no person can be tried without due process. Now, you may be wondering if this has been tested? It sure has:

In Zadvydas v. Davis, the Supreme Court declared that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." The decision even cited a 1953 Supreme Court ruling that said, "Aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law."

The sad thing is that I know these people truly believe that they are doing the right thing for the people. I see lots of post about the planned destruction of our civil liberties, but I doubt that even Ashcroft lies awake at night thinking about how to turn our country into a fascist state, at least intentionally. I'm sure that he believes just like Mushkelly that these people are evil and that the deserved to be punished.

However, the problem is that by defying established law and by conducting secret trials, we are cutting off our nose to spite our face. What are we punishing these evil people for if we don't even respect civil rights? How can any punishment be valid if it we break our own law to carry it out?

As far as trusting your government, that's implied in a representative democracy, but that doesn't mean we shouldn't have accountability. accountability is built into every aspect of our government, from the checks and balances of the separate branches, to the fact that our legislative process is open to all observe. Think about this question, who did the people of colonial America revolt against? Their own government. There is no way that any one of them would feel that handing off power to some one and trusting them to do the right thing is patriotic.

Why elect people if we're not going to know how they are governing us? Why have a judicial branch if it's has no power?
posted by betaray at 5:00 PM on August 7, 2002

I think that Bush could deflect 90% of this criticism if he were to issue a formal declaration of war. He won't because he has the dumb.

And the sky falls on a regular basis in Mefiland nowadays.
posted by owillis at 5:43 PM on August 7, 2002

He has the dumb.

Pure gold.
posted by Ty Webb at 5:59 PM on August 7, 2002

He has the dumb. That could be a Buffyism!
posted by Tin Man at 7:22 PM on August 7, 2002

I just don't think the government is going to abuse the designation

Upon what do you base this rather remarkable assessment? And what is the cost to our society if you are mistaken? Give me a little healthy "paranoia" over this sort of blind, head-in-the-sand faith any day. The history of our government (of any government, of humanity) is one of abuses, corruption and power grabs. While this does not imply that every potential for abuse will be realized, it does mean that a reasonable person will monitor situations of potential abuse with some care. Giving politicians carte blance on the assumption that they will certainly do the right thing is mindbogglingly naive.
posted by rushmc at 7:34 PM on August 7, 2002

I think it is amazing that the Republican Party, the party of small government, limited federal power, and strong individual rights (remember the NRA refering to the Justice Department as jackbooted thugs) is supporting issues like these. Can't people see that supporting Bush is actively going against the small government ideology most Republicans hold too?
posted by pjgulliver at 8:27 PM on August 7, 2002

GW should just change his name to Abraham Lincoln, who suspended habeas corpus in 1862 and had dissenters and copperhead Democrats arrested, and "proclaimed that all persons who discouraged enlistments or engaged in disloyal practices would come under Martial Law. Among the 13,000 people arrested under martial law was a Maryland Secessionist, John Merryman. Immediately, Hon. Roger B. Taney, Chief Justice of the Supreme Court of the United States issued a writ of habeas corpus commanding the military to bring Merryman before him. The military refused to follow the writ. Justice Taney, in Ex parte MERRYMAN, then ruled the suspension of habeas corpus unconstitutional because the writ could not be suspended without an Act of Congress. President Lincoln and the military ignored Justice Taney's ruling". Note: the Supreme Court doesn't have an army while the executive branch does.
posted by Mack Twain at 9:24 PM on August 7, 2002

President Lincoln and the military ignored Justice Taney's ruling

Serious question: Does anyone think the existence of the 'Net will make it more difficult for the executive branch to try the shitty move Lincoln pulled?
posted by mediareport at 10:21 PM on August 7, 2002

mediareport:

Hardly. I think Bush et al believe that only a few leftist columnists and their readers will care if the executive branch defies a judicial order, especially when it looks like a judge (hey -- didn't they ban the phrase "under God"?) is interfering with getting rid of the "evildoers."

I think most people think like Mushkelley -- that even if the executive branch is technically overstepping its bounds, that it doesn't matter, because they won't abuse the power. Or, rather, most people don't even think about it that hard.

I truly believe that most authoritarian governments take over, not because the citizenry is kept in the dark but because it doesn't bother them.

BTW: Most of Andrew Jackson's biographers agree that the "quote" ("The Supreme Court has made its decision, now let them enforce it" or variants) is apocryphal.
posted by argybarg at 11:36 PM on August 7, 2002

Clarification: (Must remember to read what I write): Most authoritarian governments take over because the citizenry isn't bothered by one branch or another taking over. That's stuff for eggheads and troublemakers and paranoiacs to worry about.
posted by argybarg at 11:38 PM on August 7, 2002

I find it depressing that many people mistake my "faith in government" with a blind stupidity. I have "faith in government" because ours is designed so that no one individual or group of individuals or even party of individuals can weild power uncontrolled. There is a reason why there is a 4 year term for presidents and congressmen, there is a reason why there is a ratification process, and appeals process and an impeachment process. And those are why I don't throw my hands in the air and declare us all doomed when someone is elected who doesn't abide by my own standards for world leader. I'm not frightened of Cheney and bush abusing power, because their hands are tied by the system so they can only act in a limited scope. This isn't a monarchy, it is a republic and ultimately, the power rests with the people, to elect the leaders, to not elect them again, and to revolt if the leaders jump outside the system. My confidence in this is enough to put my mind at ease with questionable acts by governemnt, but when you add the invasive, bloodthirsty, power hungry American media onto that, it wipes out any doubt that my goverment will get away with abuses with power. Now if I'd lived in Cuba, or Iraq, or Jordan, or Pakistan, or Malaysia, then I'd join you all in screaming for our lives when the government startting acting fishy. It suprrises me when people who live in liberal western democracies fear for their political lives, it could be much worse. And don't throw some junk at me that once people are satisfied then they will get abused. As a group we are never satisfied, when a republican is president, half the nation decries him a wealthy power hungry imbecile. When a democrat is in power, the other half of the country decries him a loose moraled spendthrift without a rational thought in his head.. We universally suspect the worst of our leaders, we will be safe for many years to come.
posted by Mushkelley at 8:25 AM on August 8, 2002

Mushkelley - I'm sorry for using this example as it's so extreme and such a cliche but it has to be said: Germany was a fully-functioning democracy before the nazis took power with proper checks and balances. The nazis simply changed the laws. My point isn't to compare nazi Germany with America, but to point out that democracy in itself isn't a safeguard and the "bloodthirsty media" is powerless in the face of public approval for an administration.
posted by Summer at 8:43 AM on August 8, 2002

It suprrises me when people who live in liberal western democracies fear for their political lives...

Criticism is healthy, it's keeps things at the 'Thin-end-of-the-wedge'.

As (BBC Newsreader) Jeremy Paxman once said on interviewing politicians:
"I am always asking myself, why is this lying bastard lying to me".
posted by niceness at 8:56 AM on August 8, 2002

I think it is amazing that the Republican Party, the party of small government, limited federal power, and strong individual rights (remember the NRA refering to the Justice Department as jackbooted thugs) is supporting issues like these. Can't people see that supporting Bush is actively going against the small government ideology most Republicans hold too?

Just because they say they are for those things, does not mean they are. Neither of the big 2 parties are for small government or big on individual rights. Both parties offer up a few selective bits of freedom, and you are supposed to live on that.
posted by thirteen at 2:46 PM on August 8, 2002