The Normal System Does Not Apply

...But Deputy Solicitor General Paul Clement chillingly told the three-judge panel on November 17 that the "normal system does not apply...

...But Judge Rosemary Pooler countered, "As terrible as 9/11 was, it didn't repeal the Constitution...

...Ashcroft Watch Nat Hentoff The Normal System Does Not Apply In what Michael Posner, executive director of the Lawyers Committee for Human Rights, accurately calls "a case of huge historical importance," oral arguments took place on November 17 at the Second Circuit Court of Appeals in the case of Jose Padilla, an American citizen, designated by George W Bush, solely on his authority, as "an enemy combatant...

...The core of the case—as emphasized by attorney Jonathan Freiman in one of the amicus briefs to the Second Circuit—is that a victory for Bush "would give every President the unchecked power to detain without charge and forever, all citizens he chooses to label as 'enemy combatants.' " Arguing for the government, John Ashcroft's Justice Department has continually maintained that "a court of the United States has no jurisdiction . . . to enjoin the President in the performance of his official duties as commander in chief...

...Padilla, arrested at Chicago's O'Hare Airport by the FBI in May of 2002 on suspicion of being somehow involved in planning to detonate a "dirty" radioactive bomb, was removed by the President from the regular federal court system and imprisoned in a naval brig in South Carolina, where he is being held indefinitely without charges and without access to his lawyer...

...How long, Mr...

...Clement?' Judge Wesley asked, 'How long does he wait?' " The Justice Department lawyers, as soon as the session was finished, rushed out of the courtroom without taking any questions...

...And the third judge, Barrington Parker, said to the government's lawyer that the President's assertion of executive power is "breathtaking in its sweep...

...More on this next month...

...There are signs the government, apprehensive about the Supreme Court, may be shifting its position on the sweep of the President's power to entirely ignore the Constitution...

...Nat Hentoff is a columnist for The Village Voice, Editor & Publisher, and The Progressive...

...Judge Wesley, the New York Law Journal noted, "was also troubled that Mr...

...He is the author ofthe recently published book "The War on the Bill of Rights and the Gathering Resistance...

...One of the judges on the panel, Richard Wesley, appeared to be will-ing—up to a point—to defer to the commander in chief's authority to take Padilla out of "the normal system" because, Wesley said, the terrorist attacks on 9/11 "happened on our soil...

...The Justice Department says "some evidence" is enough—a standard low enough for holding people incommunicado in Cuba or China, but not recognized by our Constitution...

...Quickly, I am told, they were to meet Solicitor General Theodore Olson, Attorney General John Ashcroft, and Presidential advisers at the White House to plan their next maneuver...

...Therefore, the government argues against a federal court that ruled Padilla is entitled by the Constitution to meet with his lawyers so he can participate in contesting his designation as an "enemy combatant...

...The Second Circuit will decide whether the President has this unilateral power even though Congress, in 1971, passed a law stating unequivocally: "No citizen shall be . . . detained by the United States, except pursuant to an Act of Congress...

...Clement seemed to be arguing for open-ended detention...

...But with the odds apparently against the government from that court, it is possible—but rarely done— for the Justice Department to petition the Supreme Court to take the case before the Second Circuit acts...

...Even Judge Wesley, according to Mark Hamblett's report in the November 18 New York Law Journal, "seemed to agree that the right of habeas corpus was meaningless if unaccompanied by a right to see a [lawyer] and demand a hearing in which the government is held to certain standards of proof...

...Ordinarily, decisions by the three-judge panel would be released in about six weeks...