Comment Shredding the Magna Carta
Comment Shredding the Magna Carta The Bush Administration wants to rip up not just the Bill of Rights. It's going after the Magna Carta, too. It wants to do away with habeas corpus, the essential,...
...Nor could Clement assure the justices that there was any limit to the length of detention, a problem that concerned several of them...
...The President has conclusively determined that Al Qaeda and the Taliban detainees are not entitled to [Geneva Convention] privileges," the government writes in its Hamdi brief...
...Nor did Justice Stephen Breyer take kindly to it...
...At Guant??namo, "American law is-and for a century has customarily been-applied to all aspects of life," she said during oral argument...
...Is it just up to the goodwill of the executive...
...And enemy combatants who are U.S...
...Justice Breyer wasn't buying the argument, either...
...According to the Justice Department, Hamdi should be grateful for his little cell...
...Justice Ginsburg saw through this Administration claim...
...This law overturned the 1950 Emergency Detention Act, which "established procedures for the apprehension and detention, during internal security emergencies, of individuals deemed likely to engage in espionage or sabotage...
...The 650 foreign nationals whom the Pentagon is detaining in Cuba have no access whatsoever to U.S...
...Whether there is a check on the executive, there is a Congressional check through the power of legislation, through the power of oversight, through the power of appropriations...
...In the Hamdi case, the government asserts in its brief that it is acting in a "humane" way, even though Hamdi has been in solitary confinement for two years...
...Clement also failed to come up with any logical distinction between those whom the Administration gave access to the courts (Zacarias Moussaoui and John Walker Lindh) and those whom the Administration has labeled enemy combatants and tossed into the brig (Hamdi and Padilla...
...There is simply no indication that when Congress passed the authorization for use of military force . . . the Congress also thought that they were authorizing the indefinite military detention without trial of American citizens on American soil," said Jennifer Martinez, who argued Padilla's side of the case...
...If it rules for the Bush Administration in all three, our freedoms as we have known them will be a thing of the past...
...We have the Great Writ because we didn't trust the executive branch when we founded this government...
...This is a frontal assault on our basic liberties...
...But he was then asked again, "What's constraining...
...Martinez illustrated how vast the Administration's power could be under its own interpretation...
...They are not entitled to counsel, they are not entitled to appear in court in person, and they are not entitled to a speedy trial...
...The interrogation process itself provides an opportunity for an individual to explain that this has all been a mistake," Clement said...
...But the Bush Administration can't be bothered with that...
...It's a limitless power...
...While the President as commander in chief certainly has the right to capture and detain enemy soldiers and irregulars, nowhere does he get the blanket authority to do whatever he wants, including detaining U.S...
...What the executive branch is saying here is we don't have to account to anyone, anywhere...
...The executive branch...
...This critical source of information would be gravely threatened" by access to counsel...
...Today, the government asks this court for a broad ruling that would allow the President unlimited power to imprison any American anywhere at any time without trial simply by labeling him an enemy combatant...
...The government's argument in the Hamdi and Padilla cases rests on two assertions: First, that the President has the constitutional authority as commander in chief to designate and hold people as enemy combatants indefinitely, and second, that Congress granted the President additional authority to do so when it passed a law on September 14, 2001, granting the President the right "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...
...He asked Deputy Solicitor General Paul Clement: "Are there any cases in the international field or the law anywhere, explaining that the interest in detaining a person incommunicado for a long period of time for the purpose of obtaining information from them is a legitimate justification...
...The President had that authority on September 10th," Clement said...
...In fact, they can be held indefinitely without charge...
...Both of those assertions are false and deeply troubling...
...It wants to do away with habeas corpus, the essential, 800-year-old right that allows the accused to appear before a judge and plead...
...Clement: "I don't know that there are any authorities that I'm aware of that address exactly what you're talking about...
...Again, it's all up to the President...
...Some of the arguments are downright laughable...
...Padilla's mother, because she is associated with her son, may be argued to have associated with Al Qaeda, and clearly that's not what Congress had in mind, to allow that person to be locked up with no right to a lawyer, no right to a hearing for as long as the war on terror lasts," she told the court...
...One asked: "If the law is what the executive says it is, whatever is necessary and appropriate in the executive's judgment . . . unchecked by the judiciary, so what is it that would be a check against torture...
...How and when did this happen...
...Olson's response was to say it's up to Congress to take care of any perceived problem...
...But Padilla's lawyer pointed out that Congress, when it gave Bush the authorization of force, did not toss out 4001...
...Jennifer Martinez, the lawyer who argued for Padilla in the Supreme Court on April 28 To claim, as the government does, that a detainee can present such proofs and arguments to his own interrogator strains credulity...
...This did not sell well with Justice Ruth Bader Ginsburg, who repeatedly asked about it...
...But there is no judicial check...
...The President, the brief says, has "the authority to engage in the time-honored and humanitarian practice of detaining enemy combatants captured in connection with the conflict, as opposed to subjecting such combatants to the more harmful consequences of war...
...Clement responded: "The fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement...
...And the Bush Administration maintained the fiction that the U.S...
...It seems to me your answer boils down to saying, don't worry about the timing question, we'll tell you when it's over...
...We even protect the Cuban iguana...
...citizens, such as Jos?© Padilla and Yaser Hamdi, barely have any, either...
...The military has learned that creating a relationship of trust and dependency between a questioner and a detainee is of 'paramount importance' to successful intelligence gathering," the Administration writes in its Hamdi brief...
...It extensively debated a provision that allowed the detention of aliens for seven days," she reminded the court...
...Martinez added that shortly after the authorization of force Congress took up the Patriot Act...
...Clement said this applied only to civilian courts, not to military proceedings...
...Justice Ginsburg asked, "Does the government have any rhyme or rationale" for distinguishing between the two...
...And why do we have the Great Writ...
...When the military screened him on the battlefield and when the interrogators were questioning him...
...What would those be...
...Justice John Paul Stevens tore this claim apart during oral arguments before the Supreme Court on April 28...
...Clement also claimed that Hamdi had already received the benefit of a neutral process, including the opportunity to present his side...
...A huge problem for the government's case, however, is that a law exists on the books that expressly prohibits the President from doing what Bush has done to Padilla and Hamdi...
...courts, Solicitor General Theodore Olson argued on April 20...
...The plaintiffs characterized the Bush argument as saying it "may unilaterally strip the federal courts of their statutory power to review the indefinite detention of foreign nationals without legal process, simply by deciding to detain them in an offshore prison...
...Then there is the claim that the President and only the President can determine whether someone is a prisoner of war, who has certain rights, or an enemy combatant, who has none...
...But just to be clear on the vastness of the Bush Administration's claims, Clement confirmed during oral argument that even without that Congressional authorization of force, the President still would assert the right to hold Hamdi and Padilla as enemy combatants...
...Torture and dismemberment...
...Is there any judicial check...
...Italics in original throughout...
...Justice Anthony Kennedy asked if there was any "outer bounds," and Justice Breyer said: "Let's say it's the Hundred Years' War...
...Justice Breyer asked Clement about his interpretation of the "necessary and appropriate" language in the Congressional authorization, wondering whether "appropriate" might impose some limit on the President's actions...
...government does not exercise sovereignty at Guant??namo, and so it's a no man's land for noncitizens-a "lawless enclave," as one attorney for the detainees put it...
...He said that because Padilla and Hamdi are citizens, they could have some very limited access to habeas corpus...
...Though the Fifth Amendment says "no person" shall be denied due process of law, Olson asserted that foreign nationals have no right to due process...
...This assertion made at least two of the justices uncomfortable...
...I certainly wouldn't read . . . the term 'necessary and appropriate' as an invitation for sort of judicial management of the executive's war-making power...
...Justice Ruth Bader Ginsburg, asking the Bush Administration's lawyer in the Hamdi case on April 28 "You have to recognize that in a situation where there is a war, where the government is on a war footing, that you have to trust the executive," Clement said...
...Neither the [Geneva Convention] nor the military's own regulations provide for any review of the military's determination that an individual is an enemy combatant in the first place...
...Congress did not assume the President already had that power, much less the power to hold citizens indefinitely...
...That's simply not consistent with our nation's constitutional traditions...
...Clement added that the President could detain people like them even when there is no war...
...The foreign enemy combatants it is holding in Guant??namo have no due process rights at all, according to the Justice Department...
...Clement would have none of that...
...Saying trust us is no excuse for taking away and driving a truck through the right of habeas corpus and the Fifth Amendment that no man shall be deprived of liberty except upon due process of law...
...Or, as the Administration put it in the Padilla brief, "There is no warrant for second-guessing the President's judgment" in these designations...
...As in the Hamdi and Padilla cases, here the government claimed that the President has the sole authority to determine whether the detainees are enemy combatants...
...The person who is locked up, doesn't he have a right to bring before some tribunal himself his own words...
...These are among the most momentous decisions to face the court in decades...
...The Supreme Court will decide these cases by July...
...Clement: "Justice Ginsburg, I think that reflects the sound exercise of prosecutorial and executive discretion...
...Clement responded by mentioning treaty obligations, the military code, and the President's intentions...
...What is stunning is how brazen and weak are the arguments the Bush Administration has put forward in these cases...
...Is there no opportunity for a court, in your view, to say that this violates, for an American citizen, the elementary due process that the Constitution requires...
...It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check," he said to Olson...
...She added: "How does the government justify some going through the criminal process and others just being held indefinitely...
...The words in the Constitution are 'due process of law.' And also the words in the Magna Carta were 'according to law.' And whatever form of words in any of those documents there are, it seemed to refer to one basic idea that's minimum: that a person who contests something of importance is entitled to a neutral decisionmaker and an opportunity to present proofs and arguments," said Breyer...
...That's the point...
...As to why the enemy combatant may not have the benefit of counsel, the Administration is quite clear: It wants to be able to extract information from the detainee under interrogation, and granting counsel would interfere with that...
...But that does not include the right to appear in court themselves or the right to have their own attorneys or the right to stand trial...
...Frank Dunham, representing Hamdi's side of the case, said in closing his oral argument on April 28: "Who is saying trust us...
...In 1971, in revulsion at the internment of Japanese Americans during World War II, Congress passed a law, known as 4001, that says, "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress...
...citizens outside the court system for as long as he deems necessary...
...The government's argument in the Guant??namo case was equally overreaching...
...John Gibbons, arguing for the Guant??namo detainees, on April 20...
Vol. 68 • June 2004 • No. 6
