Courts Rebuke Bush for Trampling the Constitution

by ELAINE CASSEL

Thursday, December 18, brought some good news for those among us who thought the judicial branch of government was asleep. An independent judiciary is alive and well in two federal circuits–the Second Circuit (New York) and the Ninth Circuit (California). Both appeals courts rejected the Bush administration’s claims that President Bush has unlimited power to trample the civil rights of Americans and prisoners in its control under the guise of fighting a global war on "terror."

The Second Circuit ruled in the case of Jose Padilla that President Bush wrongly ordered his detention as an enemy combatant. The opinion found that there was no legal basis for the presidential act; in fact, it found law to the contrary, the Non-Detention Act (18 U.S. Code, Sec. 4001 (1), that prohibits the military from detaining an American citizen without an Act of Congress. The law, enacted in 1971, repealed the 1950 Emergency Detentions Act, that empowered the Attorney General to detain, during an invasion, insurgency, or declared war, individuals whom the Attorney General thinks might commit sabotage (sounds a little like the Patriot Act, doesn’t it?). As the court notes in its opinion, every Senator who voted for the Non-Detention Act did so because of the disgraceful internment of Japanese-American citizens during World War II.

The Court further found that Bush overstepped the Joint Resolution to wage war against terrorism, passed overwhelmingly by the Congress shortly after September 11. The government’s attorneys argued that the resolution gave the President the power to detain persons in order to prevent future attacks of terrorism. The Court said that the plain language of the resolution did no such thing. It authorized action only against persons, states, or organizations that planned or participated in the September 11 attacks "in order to prevent future attacks." The judges ruled that this Joint Resolution in no way abrogates the Non-Detention Act.

Having found that there was no legal basis for Bush’s order, the court gave Secretary of Defense Donald Rumsfeld, who has control over Padilla, 30 days to release him. In the interim, the court noted, federal prosecutors could again detain him as a material witness (the way he originally came to the attention of the court, as federal prosecutors in New York wanted to question him about a plot to detonate a "dirty" bomb), or charge him with a criminal offense and have him indicted in federal court.

The government may ask a full panel ("en banc") of the Second Circuit judges to rehear the case, a motion the court would likely grant given the gravity and unusual nature of the case. Depending on the outcome of such a review, either Padilla or the government could appeal the results to the U.S. Supreme Court.

The ruling is a great victory for Padilla’s court-appointed lawyer, Donna Newman, who valiantly fought for Padilla for the 18 months after she lost contact with him. Judge Michael B. Mukasey had overruled her motion that he be released and not held as a material witness, but Mukasey ordered that Padilla had the right to counsel. The government would have none of that. Lawyers would interfere with their questioning of the "witness." Rather than play by the rules and allow him access to his lawyer, the government appealed to some higher up (Ashcroft? Rumsfeld? Bush?) to name Padilla an "enemy combatant." When Bush signed the order, the Pentagon sent officials to remove Padilla from the New York jail where he was being housed and incarcerate him in a navy brig in Charleston, South Carolina. Holding Padilla as a military prisoner was the basis of Newman’s petition for habeas corpus, an ancient form of legal action that challenges the basis of one’s detention by the government.

Taking Padilla (along with the other American enemy combatant, Yasir Hamdi) to Charleston revealed another plan, as well–that any protestations from pesky lawyers would be heard by the conservative Fourth Circuit Court of Appeals. The Second Circuit brushed aside this effort, finding that it had jurisdiction over Rumsfeld in this habeas corpus petition because Rumsfeld directed Padilla’s removal from New York.

Out on the West coast, the Ninth Circuit Court of Appeals did not follow the lead of their brethren on the U.S. Court of Appeals for the District of Columbia. The D.C. court had ruled that Guantanamo prisoners have no right to ask a court to review their detention orders. The Supreme Court has agreed to hear the prisoners appeal from the D.C. court’s ruling solely to determine if federal courts can entertain the claim of prisoners’ of the U.S. in Guantanamo Bay, Cuba to challenge their petitions with a writ of habeas corpus.

The disingenuous protestations of the government notwithstanding (it argues that Guantanamo Bay Naval Base is part of the sovereign territory of Cuba, even though the lease with the Cuban government gives the U.S. sole civil and criminal jurisdiction over people and acts taking place within its 40-square-mile borders), the Ninth Circuit judges reasoned, "We simply cannot accept the government’s position that the executive branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included . . . without permitting such prisoners recourse of any kind to any judicial forum," said the decision.

If the government files an appeal of the Ninth Circuit’s ruling, the Supreme Court will likely consolidate the cases and hear argument on both in the Spring of 2004.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. She can be reached at: ecassel1@cox.net


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