FacebookTwitterGoogle+RedditEmail

Courts Rebuke Bush for Trampling the Constitution

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 The law, enacted in 1971, repealed the 1950 Emergency Detentions Act, that empowered the Attorney General to detain, during an invasion, insurgency, or declared war, individuals whom the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:
September 25, 2018
Kenneth Surin
Fact-Finding Labour’s “Anti-Semitism” Crisis
Charles Pierson
Destroying Yemen as Humanely as Possible
James Rothenberg
Why Not Socialism?
Patrick Cockburn
How Putin Came Out on Top in Syria
John Grant
“Awesome Uncontrollable Male Passion” Meets Its Match
Guy Horton
Burma: Complicity With Evil?
Steve Stallone
Jujitsu Comms
William Blum
Bombing Libya: the Origins of Europe’s Immigration Crisis
John Feffer
There’s a New Crash Coming
Martha Pskowski
“The Emergency Isn’t Over”: the Homeless Commemorate a Year Since the Mexico City Earthquake
Fred Baumgarten
Ten Ways of Looking at Civility
Dean Baker
The Great Financial Crisis: Bernanke and the Bubble
Binoy Kampmark
Parasitic and Irrelevant: The University Vice Chancellor
September 24, 2018
Jonathan Cook
Hiding in Plain Sight: Why We Cannot See the System Destroying Us
Gary Leupp
All the Good News (Ignored by the Trump-Obsessed Media)
Robert Fisk
I Don’t See How a Palestinian State Can Ever Happen
Barry Brown
Pot as Political Speech
Lara Merling
Puerto Rico’s Colonial Legacy and Its Continuing Economic Troubles
Patrick Cockburn
Iraq’s Prime Ministers Come and Go, But the Stalemate Remains
William Blum
The New Iraq WMD: Russian Interference in US Elections
Julian Vigo
The UK’s Snoopers’ Charter Has Been Dealt a Serious Blow
Joseph Matten
Why Did Global Economic Performance Deteriorate in the 1970s?
Zhivko Illeieff
The Millennial Label: Distinguishing Facts from Fiction
Thomas Hon Wing Polin – Gerry Brown
Xinjiang : The New Great Game
Binoy Kampmark
Casting Kavanaugh: The Trump Supreme Court Drama
Max Wilbert
Blue Angels: the Naked Face of Empire
Weekend Edition
September 21, 2018
Friday - Sunday
Alexandra Isfahani-Hammond
Hurricane Florence and 9.7 Million Pigs
Andrew Levine
Israel’s Anti-Semitism Smear Campaign
Paul Street
Laquan McDonald is Being Tried for His Own Racist Murder
Brad Evans
What Does It Mean to Celebrate International Peace Day?
Nick Pemberton
With or Without Kavanaugh, The United States Is Anti-Choice
Jim Kavanagh
“Taxpayer Money” Threatens Medicare-for-All (And Every Other Social Program)
Jonathan Cook
Palestine: The Testbed for Trump’s Plan to Tear up the Rules-Based International Order
Jeffrey St. Clair
Roaming Charges: the Chickenhawks Have Finally Come Back Home to Roost!
David Rosen
As the Capitalist World Turns: From Empire to Imperialism to Globalization?
Jonah Raskin
Green Capitalism Rears Its Head at Global Climate Action Summit
James Munson
On Climate, the Centrists are the Deplorables
Robert Hunziker
Is Paris 2015 Already Underwater?
Arshad Khan
Will There Ever be Justice for Rohingya Muslims?
Jill Richardson
Why Women Don’t Report Sexual Assault
Dave Clennon
A Victory for Historical Accuracy and the Peace Movement: Not One Emmy for Ken Burns and “The Vietnam War”
W. T. Whitney
US Harasses Cuba Amid Mysterious Circumstances
Nathan Kalman-Lamb
Things That Make Sports Fans Uncomfortable
George Capaccio
Iran: “Snapping Back” Sanctions and the Threat of War
Kenneth Surin
Brexit is Coming, But Which Will It Be?
FacebookTwitterGoogle+RedditEmail