Monday, November 28, 2005

Timid Liberals and Civil Liberties - Addendum

In my previous post on Saturday, November 26th, I failed to report that the Bush Administration had in fact indicted Jose Padillia to avoid a showdown with the Supreme Court. Although not the least bit hesitant to steamroll Congress in their disrespect for the Constitution, President Bush's Justice Department are wary of the nation's highest court and fearful that a majority of justices may respect the law. Indeed, as the Washington Post noted in an article on November 23rd, last year while reviewing numerous cases pertaining to the war on terrorism retiring Justice Sandra O'Connor wrote,

"A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
Both the New York Times and The Washington Post report that Padilla's change in status is merely a shift in tactics and the Bush Administration remains very much in arbitrary control over detention policy.

When Senate Judiciary Chairman Arlen Specter convenes hearings to consider Samuel Alito's nomination to the Supreme Court, most will focus on abortion. We can expect that abortion will be covered with great intensity by the media while the special interest groups for each side are ready to clash. There is far more at stake than abortion. It is imperative that true civil libertarians pressure the members of the Senate Judicary Committee to vigorously question and challenge Samuel Alito's views about the detention of U.S. citizens in a time of war. It is entirely possible that the Supreme Court will preside over a matter similar to Jose Padilla's in the coming years and Sandra Day O'Connor will no longer be there.


pansophia said...

//A state of war is not a blank check for the president when it comes to the rights of the nation's citizens.//

The "state of war" is similar to the security/privacy argument. Try putting my concern about adding a Privacy Right to the Constitution in this context.

T. Baker said...

It is very straight forward to me. If you are a US Citizen then you should be given the full protection of the US constitution. If you are not a US Citizen then you “may” be given a different sort of treatment. It is of the utmost importance that we do our best as a country to weed out the correct status of each person we are detaining to determine what to do with them. By status I mean two things:

#1 Are they a US Citizen? This will determine what rights they have and what court has proper jurisdiction (if any).
#2 Do we actually believe them to be a real person of interest that we need to gain additional information from (or keep detained because they are just real bad) or are they just a person “in the wrong place at the wrong time”. In additional to the ethical problems of detaining the “wrong people”, it is not an efficient use of our resources.

We do not want to strip constitutional due process from our Citizens just because we are at war, but nor do we want to extend the full constitutional protections to those that are not US Citizens or even citizens of a country that we are officially at war with.

Robert Ellman said...

T. Baker -

Welcome to the blog and thanks for sharing your views.

You make interesting points - especially about the waste of resources in detaining the wrong people. I had not thought of that and should have.

I would add an important caveat regarding your suggested treatment of nationals. We have citizens abroad who may wind up in the wrong place at the wrong time. If you T. Barker are apprehended in Singapore and at the mercy of their justice - any negotiating leverage we have to help you may be contingent upon how we treat their detainees here.

Another point I would add is that given our troubling track record in administering due process of law with our own citizens - how can we be sure the status of nationals are being properly determined?

I knew someone in graduate school who has brother, a muslim, medical professional, and U.S. citizen who was apprehended by the authorities. The family can't find out anything about why he was apprehended and don't know how he's doing. He has yet to be charged with any crime. Last contact I had with this person, her brother was in this sort of limbo for two years. This sort of trend is very disturbing for our country. It's especially disturbing with this particular President and a judicary that acquiesces too much.


T. Baker said...


If I am apprehended in Singapore for committing a crime I do not necessarily have the protections of their constitution. They can treat me however their laws say they can treat foreigners. I’m sure the US will try and help me but in the end I am in their jurisdiction and subject to whatever laws they see fit. If I don’t like that then I should not travel to their country. With that being said, the example you gave is not really appropriate to what we are discussing.

A better example relating to Iraq is this: What if Singapore is in engaged in a battle in China and I am a citizen of North Korea who is conducting terrorist actions against the Singapore and Chinese army. These actions are not sanctioned by the North Korean government (at least not officially), since they are not at war with Singapore or China; and I do not wear the uniform of any official army. What is my status, and what protections should I be given? Who knows? What if I refuse to give my citizenship, or if I renounced my citizenship and just become a wandering terrorist? I am not a personal signatory to the Geneva Convention .What is my status? What rights should I have?

As far as your friend’s brother goes, you said he is a U.S. citizen so he should have the full protection and rights of the U.S. Constitution. Article III section 2 of the Constitution gives him the right to a Jury trial. If the Government is looking for treason, then section 3 states the burden that the government must meet if they want to convict him of treason.
The Fifth Amendment gives him protection of due process, although I suppose in a “time of war” you could debate the definition of due process.
The Sixth Amendment gives him additional protections for a speedy & public trial, the nature and cause of the accusation, the right to confront and obtain witness in his favor, and the right to counsel.
The Fourteenth Amendment also specifically defines citizenship rights and specifically states that there is no difference in right between a person born or naturalized here.

Of course most importantly as a U.S. citizen he is covered under Article One, Section Nine of the Constitution to bring a Writ of Habeas Corpus to examine the lawfulness of his imprisonment.

Last time I checked none of these rights have been suspended; although I will admit that in the current political climate these rights are not always easy to have enforced. Just ask accused terrorist Yaser Esam Hamdi who is apparently a citizen of the U.S. who was born in Louisiana. In this case the Government claimed that Hamdi was an “enemy combatant” and was captured on the battlefield in Afghanistan so he should not be extended these rights regardless of his claim of citizenship. Assuming your friend’s brother was seized on U.S soil that might be a more difficult claim for the Government to make in his case.

Robert Ellman said...

T. Baker -

An interesting scenario you laid out. All sorts of gray areas. I would be curious if such a matter ever came before the Hague and what their ruling was. Or how they might rule in the future.

But I actually think your example is less pertinent to the conversation than my Singapore scenario. What I had in mind was less you committing a crime than you simply being the victim of an overzealous police officer in another country.

Suppose you have a young student abroad, whether its Singapore or some other country. He gets lost, is in the wrong part of town, and is swept up in a some sort of police raid. The student is American, has money and the police decide to make an example of this rich young American. They arrest him on charges that could never stand up in a legitimate court of law - but they simply decide to detain him indefinitely.

I think to say that if he didn't want to assume the risks then he shouldn't have gone is really an unacceptable answer. The U.S. Consulate immediately tries to act on his behalf. But it happens we're detaining a young student from their country, he's just as innocent, and we're not being cooperative. He's a Muslim and our intelligence determined that he attended a mosque where suspected terrorists also congregate. He's not a terrorist but simply went to the closest Mosque to him. In that circumstance the U.S. Government's leverage and persuasive authority to protect our young American friend is diminished. Among the responsibilities of government is the protection of U.S. citizens abroad.

Regarding U.S. citizens in our own country - you itemize the Constitutional protections that exist and yet under the current political climate it's simply paper. Too many people are being denied due process of law by an arbitrary process with no transparency. It happened under Abraham Lincoln as well but he was a far more judicious sort than the current occupant of the White House.


T. Baker said...

Ah, but life is never quite that simple. You might say he is just swept up on some trumped up charges, but the police might say he is part of an international drug smuggling ring. Of course a fair and speedy trial would hopefully ascertain the true facts and he would either be convicted or set free as opposed to sitting in a state of limbo detention.
As far as the issue of travel to another country goes, I stick with my original point. If you don’t like the legal systems in another country and you don’t think you will be treated fairly then you should not travel to that country. I agree that it is the job of the government to help protect its citizens abroad, but we can not be afraid of detaining people from other countries because they then might retaliate by detaining our citizens.
The problem is that it is fine to state in theory that both governments are detaining each other citizens for the “wrong reasons” but unfortunately we never really know until many months or years later what he truth really was.
Detention is an important tool if used responsibly. However in order to maintain actual liberty we should be detaining as few people as possible. And when we do find it necessary to detain, we need to process them as quickly and thoroughly as possible so that we are not detaining innocent people, but that we are catching the bad guys. We should never tolerate sloppy or lazy police/intelligence work. We should hold our government to a high standard so that we are not detaining people on vague hunches. We should demand that the culture in this type of work be meticulous in detail and fair minded. Anything less would be un-American.
Now let me switch scenarios a little bit. What about when the guy we are holding is a citizen of nowhere? In that situation your whole concern about our citizens giving up protection is rendered moot. Or what if he is a citizen of North Korea or Iran, or any other country that is not friendly to the U.S.?

In the end our ability and practice of detaining people we suspect to be involved in terrorist activities must stand on its own. If we are detaining the wrong people for the wrong reasons then we need to reform ourselves. If we are detaining the right people for the right reasons then we need to continue to do so to protect the security of our country.

Robert Ellman said...

T. Baker -

True enough life isn't simple and you make valid points. I certainly do not want to forfeit our ability to properly detain legitimate security risks and if they are not U.S. citizens the standard is different. Whch is true in any country.

But whether they are U.S. citizens or not, this country is doing a poor job of distinguishing from among their detainees who is a security risk and who isn't. At this point I have little faith that our government can be trusted to judiciously protect us from a real terrorist as well as protect our civil liberties, such as the brother of my former classmate. What is to become of people like that? Why is the Constitution being forfeited in the defense of their rights?

I believe there needs to be more checks and balances and would feel more comfortable if the judicial and legislative branches asserted themselves more on this issue. Presently, the Executive Branch is operating as if they have carte blanche to do as they please. That is dangerous.

As you have alread said, detaining the wrong people is an inefficient waste of resources and increases are vulnerability to terrorism.


T. Baker said...

[This post is a little long because of my excerpts of some civil wars era cases but I think it is important to properly revisit these old documents to better understand current events]

In your reply to me you also mentioned Lincoln’s as being more “judicious” then our current President. I don’t think that is necessarily the case. There are interesting lessons to be learned from Abraham Lincoln’s suspension of habeas corpus. During the civil war he suspended hab rights in a number of areas including Maryland and parts of Indiana. In two well known decisions Lincoln was attacked for his suspensions and use of military tribunals to try U.S, Citizens as being unlawful.
In Ex parte MERRYMAN - Circuit Court, D. Maryland (1861)

Chief Justice Taney very aggressively attacked both General Cadwalader and President Lincoln for the unlawful suspension of hab rights. Here is just a small but very good excerpt of how Chief Justice Taney felt about it (sorry it’s a little long but important to read):
“But the documents before me show, that the military authority in this case has gone far beyond the mere suspension of the privilege of the writ of habeas corpus. It has, by force of arms, thrust aside the judicial authorities and officers to whom the constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers. For, at the time these proceedings were had against John Merryman, the district judge of Maryland, the commissioner appointed under the act of congress, the district attorney and the marshal, all resided in the city of Baltimore, a few miles only from the home of the prisoner. Up to that time, there had never been the slightest resistance or obstruction to the process of any court or judicial officer of the United States, in Maryland, except by the military authority. And if a military officer, or any other person, had reason to believe that the prisoner had committed any offence against the laws of the United States, it was his duty to give information of the fact and the evidence to support it, to the district attorney; it would then have become the duty of that officer to bring the matter before the district judge or commissioner, and if there was sufficient legal evidence to justify his arrest, the judge or commissioner would have issued his warrant to the marshal to arrest him; and upon the hearing of the case, would have held him to bail, or committed him for trial, according to the character of the offence, as it appeared in the testimony, or would have discharged him immediately, if there was not sufficient evidence to support the accusation. There was no danger of any obstruction or resistance to the action of the civil authorities, and therefore no reason whatever for the interposition of the military.
These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found. “

A Second important case is EX PARTE MILLIGAN, 71 U.S. 2 (1866)

The court ruled that so long as local civilian courts are open, citizens may not be tried by military tribunals. It further observed that during the suspension of the writ of habeas corpus, citizens may only be held without charges: not tried, and certainly not executed by military tribunals. After all, the writ of habeas corpus is not the right itself, but merely the ability to issue orders demanding the right's enforcement.

Here is an important excerpt from this case:
“The crimes with which Milligan was charged were of the gravest character, and the petition and exhibits in the record, which must here be taken as true, admit his guilt. But whatever his desert of punishment may be, it is more important to the country and to every citizen that he should not be punished under an illegal sentence, sanctioned by this court of last resort, than that he should be punished at all. The laws which protect the liberties of the whole people must not be violated or set aside in order to inflict, even upon the guilty, unauthorized though merited justice”

The fact is that those who are in power have always been trying to use what they claim is the proper use of power to “protect us”. Individual citizens have an important duty to speak out when what think is being done is wrong. History will be the final judge to all of us.