Yikes: "Parallel legal system"

[Jessica 0]

In Terror War, 2nd Track for Suspects
Those Designated 'Combatants' Lose Legal Protections
By Charles Lane
Washington Post Staff Writer
Sunday, December 1, 2002; Page A01


The Bush administration is developing a parallel legal system in which terrorism suspects -- U.S. citizens and noncitizens alike -- may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system, lawyers inside and outside the government say.

The elements of this new system are already familiar from President Bush's orders and his aides' policy statements and legal briefs: indefinite military detention for those designated "enemy combatants," liberal use of "material witness" warrants, counterintelligence-style wiretaps and searches led by law enforcement officials and, for noncitizens, trial by military commissions or deportation after strictly closed hearings.

Only now, however, is it becoming clear how these elements could ultimately interact.

For example, under authority it already has or is asserting in court cases, the administration, with approval of the special Foreign Intelligence Surveillance Court, could order a clandestine search of a U.S. citizen's home and, based on the information gathered, secretly declare the citizen an enemy combatant, to be held indefinitely at a U.S. military base. Courts would have very limited authority to second-guess the detention, to the extent that they were aware of it.

Administration officials, noting that they have chosen to prosecute suspected Taliban member John Walker Lindh, "shoe bomber" Richard Reid and alleged Sept. 11 conspirator Zacarias Moussaoui in ordinary federal courts, say the parallel system is meant to be used selectively, as a complement to conventional processes, not as a substitute. But, they say, the parallel system is necessary because terrorism is a form of war as well as a form of crime, and it must not only be punished after incidents occur, but also prevented and disrupted through the gathering of timely intelligence.

"I wouldn't call it an alternative system," said an administration official who has helped devise the legal response to the terrorist attacks of Sept. 11, 2001. "But it is different than the criminal procedure system we all know and love. It's a separate track for people we catch in the war."

At least one American has been shifted from the ordinary legal system into the parallel one: alleged al Qaeda "dirty bomb" plotter Jose Padilla, who is being held at a Navy brig, without the right to communicate with a lawyer or anyone else. U.S. officials have told the courts that they can detain and interrogate him until the executive branch declares an end to the war against terrorism.

The final outlines of this parallel system will be known only after the courts, including probably the Supreme Court, have settled a variety of issues being litigated. But the prospect of such a system has triggered a fierce debate.

Civil libertarians accuse the Bush administration of an executive-branch power grab that will erode the rights and freedoms that terrorists are trying to destroy -- and that were enhanced only recently in response to abuses during the civil rights era, Vietnam and Watergate.

"They are trying to embed in law a vast expansion of executive authority with no judicial oversight in the name of national security," said Kate Martin, director of the Center for National Security Studies, a Washington-based nonprofit group that has challenged the administration approach in court. "This is more tied to statutory legal authority than J. Edgar Hoover's political spying, but that may make it more dangerous. You could have the law serving as a vehicle for all kinds of abuses."

Administration officials say that they are acting under ample legal authority derived from statutes, court decisions and wartime powers that the president possesses as commander in chief under the Constitution.

"When you have a long period of time when you're not engaged in a war, people tend to forget, or put in backs of their minds, the necessity for certain types of government action used when we are in danger, when we are facing eyeball to eyeball a serious threat," Solicitor General Theodore B. Olson, who leads the administration's anti-terrorism legal team in the federal courts, said in an interview.

Broadly speaking, the debate between the administration and its critics is not so much about the methods the government seeks to employ as it is about who should act as a check against potential abuses.

Executive Decisions


Civil libertarians insist that the courts should searchingly review Bush's actions, so that he is always held accountable to an independent branch of government. Administration officials, however, imply that the main check on the president's performance in wartime is political -- that if the public perceives his approach to terrorism is excessive or ineffective, it will vote him out of office.

"At the end of the day in our constitutional system, someone will have to decide whether that [decision to designate someone an enemy combatant] is a right or just decision," Olson said. "Who will finally decide that? Will it be a judge, or will it be the president of the United States, elected by the people, specifically to perform that function, with the capacity to have the information at his disposal with the assistance of those who work for him?"

Probably the most hotly disputed element of the administration's approach is its contention that the president alone can designate individuals, including U.S. citizens, as enemy combatants, who can be detained with no access to lawyers or family members unless and until the president determines, in effect, that hostilities between the United States and that individual have ended.

Padilla was held as a material witness for a month after his May 8 arrest in Chicago before he was designated an enemy combatant. He is one of two U.S. citizens being held as enemy combatants at the Navy brig in Charleston, S.C. The other is Yaser Esam Hamdi, a Saudi Taliban fighter who was captured by American troops in Afghanistan and sent to the U.S. prison at Guantanamo Bay, Cuba, until it was discovered that he was born in Louisiana.

Attorneys are challenging their detentions in federal court. While civil libertarians concede that the executive branch has well-established authority to name and confine members of enemy forces during wartime, they maintain that it is unconstitutional to subject U.S. citizens to indefinite confinement on little more than the president's declaration, especially given the inherently open-ended nature of an unconventional war against terrorism.

"The notion that the executive branch can decide by itself that an American citizen can be put in a military camp, incommunicado, is frightening," said Morton H. Halperin, director of the Washington office of the Open Society Institute. "They're entitled to hold him on the grounds that he is in fact at war with the U.S., but there has to be an opportunity for him to contest those facts."

However, the Bush administration, citing two World War II-era cases -- the Supreme Court's ruling upholding a military commission trial for a captured American-citizen Nazi saboteur, and a later federal appeals court decision upholding the imprisonment of an Italian American caught as a member of Italian forces in Europe -- says there is ample precedent for what it is doing.

Courts traditionally understand that they must defer to the executive's greater expertise and capability when it comes to looking at such facts and making such judgments in time of war, Bush officials said. At most, courts have only the power to review legal claims brought on behalf of detainees, such as whether there is indeed a state of conflict between the United States and the detainee.

In a recent legal brief, Olson argued that the detention of people such as Hamdi or Padilla as enemy combatants is "critical to gathering intelligence in connection with the overall war effort."

Nor is there any requirement that the executive branch spell out its criteria for determining who qualifies as an enemy combatant, Olson argues.

"There won't be 10 rules that trigger this or 10 rules that end this," Olson said in the interview. "There will be judgments and instincts and evaluations and implementations that have to be made by the executive that are probably going to be different from day to day, depending on the circumstances."

The federal courts have yet to deliver a definitive judgment on the question. A federal district judge in Virginia, Robert G. Doumar, was sharply critical of the administration, insisting that Hamdi be permitted to consult an attorney. But he was partially overruled by the U.S. Court of Appeals for the 4th Circuit, based in Richmond.

The 4th Circuit, however, said the administration's assertion that courts should have absolutely no role in examining the facts leading to an enemy combatant designation was "sweeping." A decision from that court is pending as to how much of a role a court could claim, if any. The matter could well have to be settled in the Supreme Court.

Secret Surveillance


The administration scored a victory recently when the U.S. Foreign Intelligence Surveillance Court of Review ruled 3 to 0 that the USA Patriot Act, passed by Congress shortly after the Sept. 11 terrorist attacks, gives the Justice Department authority to break down what had come to be known as "the wall" separating criminal investigations from investigations of foreign agents.

The ruling endorsed the administration's view that law enforcement goals should be allowed to drive Justice Department requests for special eavesdropping and search warrants that had been thought to be reserved for counterintelligence operations. But the court went further, agreeing with the administration that "the wall" itself had no real basis in pre-Patriot Act law. Instead, the court ruled, "the wall" was a product of internal Justice Department guidelines that were, in turn, based partly on erroneous interpretations of the law by some courts.

There is no clear line between intelligence and crime in any case, the court said, because any investigation of a spy ring could ultimately lead to charging U.S. citizens with crimes such as espionage.

The decision overruled an earlier one by the lower-level Foreign Intelligence Surveillance Court, in which seven judges sharply criticized past Justice Department misstatements in applications for permission to do secret surveillance.

Administration officials say that the ruling permits what is only sensible -- greater sharing of information between federal prosecutors and federal counterintelligence officials.

Thanks to enforcement of "the wall" by FBI lawyers, they note, pre-Sept. 11 permission to search Moussaoui's computer was not sought, a crucial missed opportunity to prevent the attacks.

In practical terms, the ruling means that the attorney general would still have to convince the Foreign Intelligence Surveillance Court that he has probable cause to believe that a given subject of a wiretap or search is an agent of a foreign terrorist group, a standard that is not dissimilar to the one required for warrants in ordinary criminal cases.

Yet civil libertarians say that targets of such investigations who end up being ordered out of the country or prosecuted would lose a crucial right that they would have in the ordinary criminal justice system -- the right to examine the government's evidence justifying the initial warrant.

"So the government starts off using secret surveillance information not to gather information upon which to make policy, but to imprison or deport an individual, and then it never gives the individual a fair chance to see if the surveillance was lawful," Martin said.



© 2002 The Washington Post Company

Skydiving is for cool people only

[narcimund 0]

Other countries have a word for people who claim the powers Bush has. They call them "King".

First Class Citizen Twice Over

[AndyMan 7]

I donated to the www.aclu.org.

Did you?

_Am

__

You put the fun in "funnel" - craichead.

[Scoby 0]

I did too, last week. Things are getting weird, all right.

[skycop 0]

And yes, the ACLU will save us all.......................
Give me a break, Lawyers making more money for other Lawyers.

"Just 'cause I'm simple, don't mean I'm stewpid!"

[TomAiello 26]

See this thread for why I quit the ACLU.

The ACLU has lost touch with it's roots, and today would better be called the American Civil Rights Union, or the American General Purpose Left Wing Political Action Committee.

For real defense of civil liberties, I would turn to the Institute for Justice, and leave the ACLU in the past, where they belong.

-- Tom Aiello

Tom@SnakeRiverBASE.com
SnakeRiverBASE.com

[Jimbo 0]

Thanks for the link Tom.

This, from the Institute for Justice home page, pretty much sums up my feelings about the ACLU.

Quote

Once people turned first to the ACLU whenever government violated their rights. No longer. As that group has fought in recent years to create a right to welfare, to preserve racial preferences, and to prop up the pillars of the welfare state, people have increasingly sought a principled alternative that will protect individual rights rather than expand government.

That alternative is the Institute for Justice.

-
Jim

"Like" - The modern day comma
Good bye, my friends. You are missed.

[AndyMan 7]

Quote

And yes, the ACLU will save us all.......................

Well, they've got a pretty good track record of doing just that.

You got a better idea? (alternate groups of lawyers notwithstanding)

_Am

__

You put the fun in "funnel" - craichead.

[skycop 0]

The only track record I see is more billable minutes, self-serving double talk, and media hype with little substance.

"Just 'cause I'm simple, don't mean I'm stewpid!"

[CrazyThomas 0]

Geez,
I hate to say it, but I will:
I TOLD YOU SO! I have been trying to clarify this theory in a few postings. Seriously, this is a reason I was detained in jail unfairly. They thought I was a terrorist, and they had complete power over me.
Yeah, you think you have the right to remain silent? Guess what, you can go to jail for:
"Obstructing Justice" if you don't talk, and if you do talk, it can and will be used against you in a court of law.
Ever see the Matrix? The government is the machine, and they are working hard to pull reality over us, so we all just keep lilving and stop questioning.
Peace,
Thomas

"Know yourself. Know what you're doing. Question authority."---Timothy Leary

[AndyMan 7]

Quote

The only track record I see is more billable minutes, self-serving double talk, and media hype with little substance.

Oh. In 1925 when Biology teacher John Scopes was arrested for teaching evolution, fortunately the ACLU was well funded enough to pay for his defense.

Yes, this was billable hours. That said, I wonder if you think it was "self-serving double talk, and media hype with little substance."

In 1933, a long drawn-out lawsuit by the ACLU against the Attorney General, a New York court ordered the customs service to lift a ban on the sale of James Joyce's Ulysses. You're right, the book was crap, nobody should read it anyways, the ACLU was wasting money by fighting this battle...

In 1939, it was an ACLU lawsuit that ruled un-constitutional the ban on unions. Again, I see you're point - absolutely NO value there!!!

In 1942, when the japenese were rounded-up into concentration camps... who do you think got them out?

In 1954, they led the battle against school desegregation.

Even in 1981 they succesfully sued arkansas over a law that required creation be taught alongside evolution.

In 1997, they succeded (alongside the EFF) in a lawsuit against Janet Reno that struck down the Communications Decency Act, a law that would've made anyone who posted "BOOBIES" in this forum a criminal.

And that's just a short list.

While they surely do amass a whole lot of billable hours, most of the lawyers aren't paid. 60 lawyers are on staff, but most of the 6000 cases argued each year are argued by one of 2000 volunteer lawyers.

Billable hours, indeed.

_Am

__

You put the fun in "funnel" - craichead.

[TomAiello 26]

Quote

In 1925 when Biology teacher John Scopes was arrested for teaching evolution, fortunately the ACLU was well funded enough to pay for his defense.

...

In 1933, a long drawn-out lawsuit by the ACLU against the Attorney General, a New York court ordered the customs service to lift a ban on the sale of James Joyce's Ulysses...

In 1939, it was an ACLU lawsuit that ruled un-constitutional the ban on unions...

In 1942, when the japenese were rounded-up into concentration camps... who do you think got them out?

In 1954, they led the battle against school desegregation.

Even in 1981 they succesfully sued arkansas over a law that required creation be taught alongside evolution.

In 1997, they succeded (alongside the EFF) in a lawsuit against Janet Reno that struck down the Communications Decency Act, a law that would've made anyone who posted "BOOBIES" in this forum a criminal. ...

To add to the list...

1997: California voters decide, by referendum, to end racial discrimination in state action. The ACLU sues immediately to re-instate institutionalized discrimination. Ed Chen, ACLU staff counsel notes “the incoming class at Boalt Hall reminds us what can lie ahead…” Boalt’s incoming class has a majority of Asian students (I wonder what Mr. Chen's alma mater was?).

2000: The ACLU, along with the NAACP, supports racial preferences at the University of Michigan. When asked if their position would impede the access of qualified minorities to education, an NAACP spokesman responds, “if it weren’t for programs like these, there would be colleges in California where the entire student body was Asian.”

2002: The ACLU asks San Francisco State University to censor student speech on campus, calling the presentation of opposing views “ethnic and religious harassment.”

The ACLU has turned away from their founders' vision. In 1933 and 1963 they were a good influence. In 1983, I'm not so sure. In 2003, They are definitely playing for the wrong team.

Quote

...a law that would've made anyone who posted "BOOBIES" in this forum a criminal...

The ACLU would support a University that wanted to expel a student who used a school computer to post the word "BOOBIES" in this forum. That, after all, would constitute "sexual harassment" and "inappropriate behavior" and might create a "hostile and intimidating environment" which would interfere with the "substantial educational mission" of the institution.

-- Tom Aiello

Tom@SnakeRiverBASE.com
SnakeRiverBASE.com