FacebookTwitterGoogle+RedditEmail

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 The law, enacted in 1971, repealed the 1950 Emergency Detentions Act, that empowered the Attorney General to detain, during an invasion, insurgency, or declared war, individuals whom the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

 

More articles by:

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

Weekend Edition
December 09, 2016
Friday - Sunday
Jeffrey St. Clair
Roaming Charges: Nasty As They Wanna Be
Henry Giroux
Trump’s Second Gilded Age: Overcoming the Rule of Billionaires and Militarists
Andrew Levine
Trump’s Chumps: Victims of the Old Bait and Switch
Chris Welzenbach
The Forgotten Sneak Attack
Lewis Lapham
Hostile Takeover
Joshua Frank
This Week at CounterPunch: More Hollow Smears and Baseless Accusations
Paul Street
The Democrats Do Their Job, Again
Vijay Prashad
The Cuban Revolution: Defying Imperialism From Its Backyard
Michael Hudson - Sharmini Peries
Orwellian Economics
Erin McCarley
American Nazis and the Fight for US History
Mark Ames
The Anonymous Blacklist Promoted by the Washington Post Has Apparent Ties to Ukrainian Fascism and CIA Spying
Yoav Litvin
Resist or Conform: Lessons in Fortitude and Weakness From the Israeli Left
Conn Hallinan
India & Pakistan: the Unthinkable
Andrew Smolski
Third Coast Pillory: Nativism on the Left – A Realer Smith
Joshua Sperber
Trump in the Age of Identity Politics
Brandy Baker
Jill Stein Sees Russia From Her House
Katheryne Schulz
Report from Santiago de Cuba: Celebrating Fidel’s Rebellious Life
Nelson Valdes
Fidel and the Good People
Norman Solomon
McCarthy’s Smiling Ghost: Democrats Point the Finger at Russia
Renee Parsons
The Snowflake Nation and Trump on Immigration
Margaret Kimberley
Black Fear of Trump
Michael J. Sainato
A Pruitt Running Through It: Trump Kills Nearly Useless EPA With Nomination of Oil Industry Hack
Ron Jacobs
Surviving Hate and Death—The AIDS Crisis in 1980s USA
David Swanson
Virginia’s Constitution Needs Improving
Louis Proyect
Narcos and the Story of Colombia’s Unhappiness
Paul Atwood
War Has Been, is, and Will be the American Way of Life…Unless?
John Wight
Syria and the Bodyguard of Lies
Richard Hardigan
Anti-Semitism Awareness Act: Senate Bill Criminalizes Criticism of Israel
Kathy Kelly
See How We Live
David Macaray
Trump Picks his Secretary of Labor. Ho-Hum.
Howard Lisnoff
Interview with a Political Organizer
Yves Engler
BDS and Anti-Semitism
Adam Parsons
Home Truths About the Climate Emergency
Brian Cloughley
The Decline and Fall of Britain
Eamonn Fingleton
U.S. China Policy: Is Obama Schizoid?
Graham Peebles
Worldwide Air Pollution is Making us Ill
Joseph Natoli
Fake News is Subjective?
Andre Vltchek
Tough-Talking Philippine President Duterte
Binoy Kampmark
Total Surveillance: Snooping in the United Kingdom
Guillermo R. Gil
Vivirse la película: Willful Opposition to the Fiscal Control Board in Puerto Rico
Patrick Bond
South Africa’s Junk Credit Rating was Avoided, But at the Cost of Junk Analysis
Clancy Sigal
Investigate the Protesters! A Trial Balloon Filled With Poison Gas
Pierre Labossiere – Margaret Prescod
Human Rights and Alternative Media Delegation Report on Haiti’s Elections
Charles R. Larson
Review:  Helon Habila’s The Chibok Girls: the Boko Haram Kidnappings and Islamist Militancy in Nigeria
David Yearsley
Brahms and the Tears of Britain’s Oppressed
FacebookTwitterGoogle+RedditEmail