Dweezil Dwarftosser wrote in message ...
WalterM140 wrote:

Except that Padilla is still incarcerated.


But he is not incarcerated without access to due process.

How is that true?

An illegal combatant must be provided the opportunity
to present evidence showing why he should be entitled
to Prisoner of War status (instead of "illegal combatant").
Padilla either has none to present, or his defense was
determined to be insufficient proof by a military
tribunal.

It seems the court took the stance that he can have
access to legal representation in this matter. (A gray
area under the GC, which doesn't address legal help
requirements for illegal combatants.)

**** on the Bill of Rights all you like.

http://www.nationalreview.com/commen...levy062402.asp

June 24, 2002, 8:45 a.m. Citizen Padilla Dangerous precedents. By
Robert A. Levy


Jose Padilla, a.k.a. Abdullah al-Muhajir, supposedly plotted to build
and detonate a radiological "dirty bomb." He is a U.S. citizen. Yet
he's being detained by the military — indefinitely, without seeing an
attorney, even though he hasn't been charged with any crime. Yaser
Esam Hamdi is also a U.S. citizen. He, too, is being detained by the
military — indefinitely, without seeing an attorney, even though he
hasn't been charged with any crime. Meanwhile, Zacarias Moussaoui,
purportedly the 20th hijacker, is not a U.S. citizen. Neither is
Richard Reid, the alleged shoe bomber. Both have attorneys. Both have
been charged before federal civilian courts.


What gives? Four men: two citizens and two non-citizens. Is it
possible that constitutional rights — like habeas corpus, which
requires the government to justify continued detentions, and the Sixth
Amendment, which assures a speedy and public jury trial with
assistance of counsel — can be denied to citizens yet extended to
non-citizens? That's what the Bush administration would have us
believe. Citizen Padilla's treatment is perfectly legitimate, insists
Attorney General John Ashcroft, because Padilla is an "enemy
combatant" and there is "clear Supreme Court precedent" to handle
those persons differently, even if they are citizens.
Ashcroft's so-called clear precedent is a 1942 Supreme Court case, Ex
Parte Quirin, which dealt with Nazi saboteurs, at least one of whom
was a U.S. citizen. "Enemy combatants," said the Court, are either
lawful — for example, the regular army of a belligerent country — or
unlawful — for example, terrorists. When lawful combatants are
captured, they are POWs. As POWs, they cannot be tried (except for war
crimes), they must be repatriated after hostilities are over, and they
only have to provide their name, rank, and serial number if
interrogated. Clearly, that's not what the Justice Department has in
mind for Padilla.

Unlawful combatants are different. When unlawful combatants are
captured, they can be tried by a military tribunal. That's what
happened to the Nazi saboteurs in Quirin. But Padilla has not been
charged much less tried. Indeed, the president's executive order of
November 2001 excludes U.S. citizens from the purview of military
tribunals. If the president were to modify his order, the Quirin
decision might provide legal authority for the military to try
Padilla. But the decision provides no legal authority for detaining a
citizen without an attorney solely for purposes of aggressive
interrogation.
Moreover, the Constitution does not distinguish between the
protections extended to ordinary citizens on one hand and
unlawful-combatant citizens on the other. Nor does the Constitution
distinguish between the crimes covered by the Fifth and Sixth
Amendments and the terrorist acts Padilla is suspected of planning.
Still, the Quirin Court justified those distinctions — noting that
Congress had formally declared war and thereby invoked articles of war
that expressly authorized the trial of unlawful combatants by military
tribunal. Today, the situation is very different. We've had virtually
no input from Congress: no declaration of war, no authorization of
tribunals, and no suspension of habeas corpus.

Yet those functions are explicitly assigned to Congress by Article I
of the Constitution. It is Congress, not the executive branch, which
has the power "To declare War" and "To constitute Tribunals inferior
to the supreme Court." Only Congress can suspend the "Privilege of the
Writ of Habeas Corpus … when in Cases of Rebellion or Invasion the
public Safety may require it." Congress has not spoken — except by
enacting the USA Patriot Act. And there, we do find authorization for
detention of persons suspected of terrorism — but only non-citizens
and only for seven days, after which they must be released unless
criminal charges are filed or deportation proceedings commenced.
Without either constitutional or statutory authority, the
administration has decided that it will set the rules, prosecute
infractions, determine guilt or innocence, then review the results of
its own actions. That's too much unchecked power in the hands of the
executive branch — making a mockery of the doctrine of separation of
powers that has been a cornerstone of our Constitution for
two-and-a-quarter centuries. Even persons convinced that President
Bush cherishes civil liberties and understands that the Constitution
is not mere scrap paper, must be unsettled by the prospect that an
unknown and less honorable successor could exploit some of the
dangerous precedents that the Bush administration has put in place.

In a nutshell, we cannot permit the executive branch to declare
unilaterally that a U.S. citizen may be characterized as an enemy
combatant, whisked away, detained indefinitely without charges, denied
legal counsel, and prevented from arguing to a judge that he is wholly
innocent.

That does not mean the Justice Department must set people free to
unleash weapons of mass destruction. But it does mean, at a minimum,
that Congress must get involved, exercising its responsibility to
enact a new legal regimen for citizen-detainees in time of national
emergency. That regimen must respect citizens' rights under the
Constitution, including the right to judicial review of executive
branch decisions. Constitutional rights are not absolute. But they do
establish a strong presumption of liberty, which can be overridden
only if government demonstrates, first, that its restrictions are
essential and, second, that the goals it seeks to accomplish cannot be
accomplished in a less invasive manner. When the executive,
legislative, and judicial branches agree on the framework, the
potential for abuse is significantly diminished. When only the
executive has acted, the foundation of a free society can too easily
erode.
— Robert A. Levy is senior fellow in constitutional studies at the
Cato Institute

[end]

Bush is a disastrous failure as president and he has to go.

If he gets re-elected but the Democrats control Congress, he'll be
impeached and convicted.


Walt