Category Archives: Civil Liberties

It looks from this AP Report as if the 2nd Circuit believes that this is still a free country. The story begins,

“President Bush does not have power to detain American citizen Jose Padilla, the former gang member seized on U.S. soil, as an enemy combatant, a federal appeals court ruled Thursday.

“The decision, which ordered that Padilla be released from military custody within 30 days, could force the government to try the “dirty bomb'' plot suspect in civilian courts.”

The full decision is here and the dissent here.

Having just arrived in the UK, after a slightly delayed journey (the luggage handler serving the second plane broke down when they needed to remove a bag whose owner had not boarded the flight) I'm not even going to try to read them until I get over the jet lag. But I'll sleep better for knowing that the 'Rule of Law' still has some traction in the US. Although 2-1 is a slimmer margin than I'd like. (That the decision sounds, from the AP story, to be based on statutory — or lack of statutory — grounds rather than on the Bill of Rights is not in itself disturbing. Even if this is an atrocious offenese against the Constitution, it's appropriate for courts to rule on the narrowest grounds available. But like I said, I'm not reading it until tomorrow at the earliest.)

The “Council for Excellence in Government” which appears from its website to be an extremely anti-consumer business group, but which doesn't publish its membership list online, may have found a set of regulations that it likes: Homeland Security. One hopes this has nothing to do with the large budget and new contracting opportunities this provides for the corporate partners many of whom are in the information processing and collecting business.

The Council is doing a roadshow about Homeland Security, featuring Secretary Tom Ridge, and its second stop is in Miami next week. It's open to the public, as long as you sign up in advance, and show up 30 minutes early “for security purposes”. And I get to submit a question — but only in advance.

We are leading this initiative in coordination with the U.S. Department of Homeland Security and other strategic partners to examine Americans’ attitudes about homeland security, identify critical areas of concern, and recommend practical steps for shaping effective policies and procedures in the future.

The purpose of the Miami town hall meeting is to listen to you and your neighbors, to hear your specific homeland security concerns and discuss how together we can work to strengthen our nation’s coordinated response in the event of future terrorist threats or other national emergencies. The event is sponsored by IBM.

U.S. Secretary of Homeland Security Tom Ridge will kick-off the event, and television journalist/former CNN anchor Frank Sesno will moderate an engaging and interactive discussion with experts from the Miami area. We encourage you to attend this town hall meeting to share your perspective on how citizens, government, businesses, and the community-at-large can join forces to make our nation safe and secure.

I think I'll go. The pre-registration form has a place for submitting a question — I'd appreciate suggestions from readers of this blog. (I've also written in to learn more about the working group on privacy and security. It will be interesting to see how they respond.)

Update: so much for good intentions. Turned out I had a schedule conflict with something I had to do in the law school so I couldn't make it in time. And the web site said that they wouldn't seat latecomers for “security” reasons, so I didn't even try to turn up late.

U.S. Allows Lawyer For Citizen Held as 'Enemy Combatant' (washingtonpost.com)
Don't celebrate. Our government's ceaseless campaign to uphold its power to incarcerate citizens without access to counsel or other basic rights required that Yaser Esam Hamdi be promised access to counsel — in order to keep the Supreme Court from finding he or others similarly situated in the future have a right to a lawyer:

In a brief statement, Defense Department officials said Hamdi would be allowed to see a lawyer “as a matter of discretion and military policy.” But the statement emphasized that the government did not feel obligated to make a lawyer available and that the decision “should not be treated as a precedent.”

See, it's all about making the next guy rot for months and years until his case gets to the Supreme Court. And maybe next time there won't be an amicus from a hundred big-name legal experts. And meanwhile, there's that really nifty Fourth Circuit decision saying the government can run a cooler camp for the unpersons formerly known as suspects.

Or, if you want the most pro-administration spin compatible with the facts, it's about grabbing carefully selected (of course!) folks off the street, putting them in solitary without charges, indefinitely, and squeezing them until they are dry. Then, if the government feels like it, the victim- -suspect former unperson “might be granted access to a lawyer once his value as an intelligence source ended, although [Deputy Solicitor General Paul D. Clement] said the decision should be up to the executive branch and not the courts.”

In other words, Rights? Fuggeddaboutit.

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Let me be blunt: if Padilla loses his appeal, this isn't a free country any more. That doesn't mean it's a prison state either, there are many shades of gray in life and it will still be freer than many, but any country where the goverment can grab a citizen off the street, lock them up indefinately in solitary without trial or a lawyer, that's not a free country in my book.

It seems that former head of the Justice Department's Office of Legal Policy Viet Dinh, one of the most hard-core right-wing members of the new conservative legal establishment, agrees, albeit more politely. Patriot Act Author Has Concerns.

Dinh said he believed the president had the unquestioned authority to detain persons during wartime, even those captured on “untraditional battlefields,” including on American soil. He also said the president should be given flexibility in selecting the forum and circumstances — such as a military tribunal or an administrative hearing — in which the person designated an enemy combatant can confront the charges against him.

The trouble with the Padilla case, Dinh said, is that the government hasn't established any framework for permitting Padilla to respond, and that it seems to think it has no legal duty to do so.

“The president is owed significant deference as to when and how and what kind of process the person designated an enemy combatant is entitled to,” Dinh said. “But I do not think the Supreme Court would defer to the president when there is nothing to defer to. There must be an actual process or discernible set of procedures to determine how they will be treated.”

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