[quote]ZEB wrote:
And you are claiming that the ONLY way to do this is to record every freaking phone call in the US?
You see, I have a problem with that.
Good law enforcement should have nothing to do with listening to innocent peoples phone conversations. While they say that they are only noting who is calling whom, it’s a small leap to actually recording the phone conversations themselves.
I wonder would you have a problem with that?
Hey…what’s the difference if you have nothing to worry about right?
[/quote]
The numbers you call are already recorded. This changes nothing about that.
No one is talking about recording phone conversations. Dear god, take off your tinfoil hat and deal with THIS issue. I know you like slippery slope thoughts–gay marriage leads to beastiality, ect–but get a grip.
[quote]doogie wrote:
How in your right mind do you balance that against the one guy undergoing the hassle of being questioned. Hell, if it is so terrible to be questioned, why not argue that it would be better to allow the government to unknowingly search everything about the guy without him knowing. That way, he is cleared without the hassle of ever knowing he was a suspect.
Zeb wrote:
You are confused my friend.
I have never stated that the tactics now used by the NSA do not work. I’m sure they work quite well.
In fact, I think the more rights that you trample on the more potential terrorists you will catch.[/quote]
I wasn’t advocating for the government to unknowingly search everything. I was pointing out that the government could investigate the guy without him knowing at all, therefore negating your concern about him being inconveinenced.
[quote]
In fact, here’s an idea for you, since you are not concerned about “one guys” rights.
Why don’t we simply give the government carte blanche to enter any house in the US without warning or warrant and perform a search?
Do you realize that we would catch far more potential terrorists than this silly little watered down NSA phone game?
Look no one would be hurt. And if you have nothing to hide then why not?[/quote]
We have a thing called the Constitution. You should read it sometime. Then you might understand why your slippery slope arguements are silly.
[quote]
Look doogie, it’s not a matter of how effective any particular anti terrorist technique can be. It’s a matter of how effective that it can be without trampling on the lives of innocent people.[/quote]
No shit. And this program does not trample on ANY right that we have ever had.
When they do something unConstitutional.
[quote]
As to your question about lost rights on another post:
Under the current Patriot Act the government can hold someone if they think that that person is a terrorist, or has anything to do with a terrorist. In addition to that the person has no right to contact a lawyer, or even tell his family that he is being held.
You wanted to know what right that we have lost? Well how about the right to call a lawyer if you are being held by a law enforcement agency?
There’s one down. [/quote]
Again, you prove yourself to be an alarmist and ignorant of the facts. You think you are being some kind of patriot, but you are too lazy to read the legislation you are talking about.
Most of the provisions of the Patriot Act were already allowed under the Antiterrorism and Effective Death Penalty Act of 1996.
The Patriot Act does not allow the the government to:
“hold someone if they think that that person is a terrorist, or has anything to do with a terrorist. In addition to that the person has no right to contact a lawyer, or even tell his family that he is being held.”
That is an out and out lie. Go find that provision in the act. Go find any case in which the government has used the Patriot Act to justify doing this. You can’t.
EVEN IF IT WAS IN THE PATRIOT ACT(and it isn’t), it could be ruled unConstitutional. We do have checks and balances in this country that are working just fine.
Section 805 (which classified “expert advice or assistance” as material support to terrorism) has already been ruled unconstitutionally vague.
Section 505(which allowed the government to issue “National Security Letters” to obtain sensitive customer records from Internet service providers and other businesses without judicial oversight)has been ruled to violate the First and Fourth Amendments. The broad gag provision in the law was found to be an “unconstitutional prior restraint” on free speech.
In addition, the the authority to conduct “roving” surveillance under the Foreign Intelligence Surveillance Act (FISA) and the authority to request production of business records under FISA (USA PATRIOT Act sections 206 and 215, respectively) are going to expire in 4 years.
The provisions of the Patriot Act granting government access to library records were dropped in 2006.
I’m sure I’ll be called a cheerleader for the administration (even though only one Democrat opposed it) because I READ and understand things. Fine. It’s better than being an uneducated fool, talking out of my ass. I don’t rely on my “feelings” or my irrational fears to judge these things. If that makes me a cheerleader, fine. Rah Rah Rah.
I spent five minutes on wikipedia just for your benefit (so you don’t sound so pitifully uninformed in the future). The power to hold enemy combatants for trial by military tribunals was first ruled Constitutional in Ex parte Quirin (1942). It is important to note that one of the defendants was a naturalized Citizen. This decision states:
“…the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”
In the wake of the September 11, 2001 attacks the United States Congress passed a resolution known as the Authorization for Use of Military Force (AUMF) on September 18, 2001. In this, Congress invoked the War Powers Resolution and stated:
“That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
On November 13, 2001, President Bush issued a Presidential Military Order: “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” which allowed individuals to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals, where such individuals are a member of the organization known as al Qa’ida; or has conspired or committed acts of international terrorism, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy.
The order also specifies that the detainees are to be treated humanely, but does not specify the length of time for which a detention of such individuals can continue before being tried by a military tribunal.
Now, the only U.S. citizen taken into custody on U.S. soil and classified as an illegal enemy combatant is Jose Padilla. You wrote above that “the person has no right to contact a lawyer, or even tell his family that he is being held.”
I don’t know when his family was contacted or if they even care about him, but on June 10, 2002 (only a month after Padilla’s arrest on May 8th) Ascroft held a press to announce it. He wasn’t held secretly for years and years, or even months.
Some background on Padilla from Time on June 16, 2002 (just so we understand who we are talking about):
[quote]
It must have been one of Jose Padilla’s proudest moments. He had spent his life chasing respect but rarely earning it?marking a dreary passage from a Chicago gang to juvenile detention to grownup prison to a Florida fast-food job and, finally, to a new life as a Muslim in the Middle East. And there he was, somewhere in Pakistan just six months after the Sept. 11 attacks, allegedly presenting an ominous proposal to Abu Zubaydah, Osama bin Laden’s operations chief.
Padilla, 31, had prepped hard for his meeting, but his ambition outstripped his guile. Senior U.S. officials tell Time that Padilla, conducting research on the Internet, had come across instructions for building a nuclear bomb?“an H-bomb,” as a top official described it. The instructions were laughably inaccurate?more a parody than a plan?but not recognizing that, Padilla took them to Abu Zubaydah and other al-Qaeda planners and said he wanted to detonate such a weapon in the U.S. “He was trying to build something that would attain a nuclear yield,” says a senior Bush Administration official monitoring Padilla’s case. In response, Abu Zubaydah apparently cautioned his eager job applicant to think smaller?to get some training and attack America with a so-called “dirty bomb,” a conventional explosive packed with radioactive waste that would spew when the bomb blew up. “They sent him to the U.S. to see what he could do?plan and execute,” the official says. What he did was get arrested as soon as he stepped off the plane on May 8, having come full circle, back to Chicago, the site of his first encounters with the law. [/quote]
He was originally arrested by federal agents (not military officials) and held as a material witness. The federal agents had obtained a warrant in New York to do this. In order to obtain a warrant, a prosecutor must apply to a federal district judge and provide evidence demonstrating that the alleged witness has information crucial to the proceeding and would be otherwise unavailable. Normally, the evidence is presented in the form of an affidavit from an FBI agent, outlining his knowledge of the alleged witness’ role in the investigation.
Any person who is detained as a material witness has a right to demand a hearing before a federal judge and the right to counsel, appointed at government expense, if necessary. A federal judge must determine whether the person is, in fact, a material witness and whether he may be detained. Detainment is supposed to be required only if there is a risk of flight or danger.Up to here, nothing unusual.
So up to this point, the Padilla case was handled completely normally. The twist occurred on June 9, 2002, two days before presiding judge Michael Mukasey was to issue a ruling on the validity of continuing to hold Padilla under the material witness warrant. At that time, President Bush issued an order to Secretary Rumsfeld to detain Padilla as an “enemy combatant” and Padilla was transferred to a military brig in South Carolina without any notice to his attorney or family: http://news.findlaw.com/hdocs/docs/padilla/padillabush60902det.pdf
The order legally justified the detention by leaning on the AUMF (which I discussed above). In the opinion of the administration, a U.S. citizen can be an enemy combatant (back to Ex parte Quirin).
Padilla was given a lawyer, and was given the right to make a petition for a writ of habeas corpus to the District Court for the Southern District of New York, naming Secretary Donald Rumsfeld as the respondent to this petition. The government filed a motion to dismiss the petition on the grounds that 1) Padilla’s lawyer was not a proper “Next Friend” to sign and file the petition on Padilla’s behalf, 2) Commander Marr of the South Carolina brig, and not U.S. Secretary Rumsfeld, should have been named as the respondent to the petition, and 3) the New York court lacked personal jurisdiction over the named respondent Secretary Rumsfeld who resides in Virginia. The New York disagreed with the government’s arguments and dismissed its motion. CHECKS AND BALANCES
However, the court further declared that President Bush had constitutional and statutory authority to designate and detain American citizens as “enemy combatants” and that Padilla was entitled to challenge his “enemy combatant” designation and detention in the course of his habeas corpus petition. Since the New York District Court had in some way disappointed all sides of this legal battle, both Padilla and the government made an interlocutory appeal to the 2nd U.S. Circuit Court of Appeals.
On December 18, 2003, the U.S. Second Circuit Court of Appeals declared that
* 1. Padilla's lawyer is a proper "Next Friend" to sign and file the habeas corpus petition on Padilla's behalf because she, as a member of the bar, had a professional duty to defend her client's interests. Further, she had a significant attorney-client relationship with Padilla and far from being some zealous "intruder" or "uninvited meddler".
* 2. Secretary Rumsfeld can be named as the respondent to Padilla's habeas corpus petition, even though it is South Carolina's Commander Marr who had immediate physical custody of Padilla, because there have been past cases where national-level officials have been named as respondents to such petitions.
* 3. The New York District Court had personal jurisdiction over Secretary Rumsfeld even though Rumsfeld resides in Virginia and not New York because New York's "long arm statute" is applicable to Secretary Rumsfeld, who was responsible for Padilla's physical transfer from New York to South Carolina.
* 4. Despite the legal precedent set by ex parte Quirin, "the President lacked inherent constitutional authority as Commander-in-Chief to detain American citizens on American soil outside a zone of combat". The 2nd Circuit Court relied on the case of Youngstown Sheet & Tube Co. v. Sawyer (343 U.S. 579), where the U.S. Supreme Court had ruled that President Truman, during the Korean War years, could not use his position and power as Commander-in-Chief, created under Article 2, Section 2 of the U.S. Constitution, to seize the nation's steel mills on the eve of a nation-wide steelworkers' strike. The extraordinary government power to curb civil rights and liberties during crisis periods, such as times of war, lies with Congress and not the President. Article 1, Section 9, Clause 2 of the U.S. Constitution grants Congress, and not the President, with the power to suspend the right of habeas corpus during a period of rebellion or invasion.
Without clear Congressional approval (per 18 U.S.C. ? 4001(a)), President Bush cannot detain an American citizen as an “illegal enemy combatant” and the court ordered that Padilla be released from the military brig within 30 days[6]. However, the court had stayed the release order pending the government’s appeal to the U.S. Supreme Court. CHECKS AND BALANCES.
On February 20, 2004, the Supreme Court agreed to hear the government’s appeal. The Supreme Court heard the case, Rumsfeld v. Padilla, in April 2004, but on June 28, 2004, the court dismissed the petition on technical grounds: First, it was improperly filed in federal court in New York instead South Carolina, where Padilla was actually being detained. Second, the Court held that the petition was incorrect in naming the Secretary of Defense as the respondent instead the Commanding Officer of the naval brig who was Padilla’s actual custodian for habeas corpus purposes.
The case was refiled and a decision in Padilla’s favor was issued in the Federal District Court for South Carolina. On June 13, 2005, the U.S. Supreme Court denied the government’s petition to have his case heard directly by the court, instead of the appeal being first heard by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia. CHECKS AND BALANCES
On September 9, 2005, a three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that President Bush does indeed have the authority to detain Padilla without charges, in an opinion written by judge J. Michael Luttig. In the ruling, Luttig cited the joint resolution by Congress authorizing military action following the September 11, 2001 attacks, attacks in New York City, as well as the June 2004 ruling concerning Yaser Hamdi. Attorneys for Padilla, plus a host of civil liberties organizations, blasted the detention as illegal. They said it could lead to the military holding anyone, from protesters to people who check out what the government considers the wrong books from the library. The Bush Administration denied the allegations.
But as the Congressional military authorization pertained only to nations, organizations or persons whom the President “determines planned, authorized, committed, or aided the September 11, 2001 attacks, or harbored such organizations or persons”, others argue that this kind of Congressional limitation to the military power would assure an appropriately narrow range of detainees and the power to detain would last only so long as the Congressional authorization was not revoked or remained in effect by its terms. Also the Yaser Hamdi Supreme Court case (Hamdi v. Rumsfeld) upon which the court relied requires a habeas corpus hearing for any alleged enemy combatant who demands one, claiming not to be such a combatant, which would also place additional judicial or perhaps military tribunal oversight over each such detention.
On November 22, 2005, CNN’s front page broke the news that Padilla had finally been indicted on charges he “conspired to murder, kidnap and maim people overseas.” Many news sources correlated the indictment’s timing as avoidance of an impending Supreme Court hearing on the Padilla case: “the administration is seeking to avoid a Supreme Court showdown over the issue”. None of the original allegations put forward by the U.S. government three years ago, the claims that held Padilla in the majority in solitary confinement throughout that period, were part of the indictment: “Attorney General Alberto Gonzales announced Padilla is being removed from military custody and charged with a series of crimes” and “There is no mention in the indictment of Padilla’s alleged plot to use a dirty bomb in the United States. There is also no mention that Padilla ever planned to stage any attacks inside the country. And there is no direct mention of Al-Qaeda. Instead the indictment lays out a case involving five men who helped raise money and recruit volunteers in the 1990s to go overseas to countries including Chechnya, Bosnia, Somalia and Kosovo. Padilla, in fact, appears to play a minor role in the conspiracy. He is accused of going to a jihad training camp in Afghanistan but the indictment offers no evidence he ever engaged in terrorist activity.” Considering Padilla was held for years in military custody with no formal charges brought, many were shocked by this move by the George W. Bush presidential administration, and some reasoned that a repeat of such a process would allow the U.S. government to detain citizens indefinitely without presenting the cause that would eventually be tried. A transfer to civilian court was denied the U.S. Administration by a federal appeals court in December 2005. The court recognized “shifting tactics in the case threatens [the government’s] credibility with the courts”.
This was countered by Solicitor General Paul Clement: the federal appeals court decision “defies both law and logic,” he stated in a request to the Supreme Court for immediate transfer on December 30, 2005, one day after Padilla’s lawyers filed a petition of their own charging the U.S. President of overstepping his authority.
On January 3, 2006, the United States Supreme Court granted a Bush administration request to transfer Padilla from military to civilian custody.
On April 3, 2006, the U.S. Supreme Court declined, with three justices dissenting from denial of cert, to hear Padilla’s appeal from the 4th Circuit Court’s decision that the President had the power to designate him and detain him as an “enemy combatant” without charges and with disregard to habeas corpus.
Padilla was not denied a lawyer. In fact, on April 28, 2006 federal judge rejected prosecutors’ efforts to require lawyers for former enemy combatant Jose Padilla and two co-defendants to sign a special security document regarding handling of secret evidence.
In the end of the ONE AND ONLY case in which this situation has occurrd, the administration backed down. The system of CHECKS AND BALANCES that has worked for 200 years kept right on working. It is true that the real question was never answered. However there is no way the government could now claim to be acting in good faith if they tried to act this way again.
Is it a shame that Padilla got screwed for three years? Legally, sure. Morally, he’s scum. Of course, the only effect all this drama had on him is to delay his sentencing. He’ll soon be tried and convicted. The time he’s been in custody will be deducted from his sentence, and he’ll rot in jail for like he deserves for a few more years.
[quote]
(If you want to see some real horrors take a gander at Patriot Act II)[/quote]
You never got around to reading the first one, why should I think you’ve read the second?
