The courts don't like the way the "war on terrorism" is being run

The administration is being called to task on the abusive practices against the constitution.Double legal terror blow for Bush (BBC, 12/18/03). The two cases that went against the feds was Jose Padilla who is a US citizen being detained oout of contact with either legal counsel or family contact, and the detainees being held at Guantanamo. At the root of both of these is a challenge to the idea of the president declairing individuals "enemy combatants," and hold people in indefinite detention without charges or legal protection.

The Department of Justice and the Bush Administration have declared these policies as legal and necessary under the U.S.A. P.A.T.R.I.O.T. Act. The court rulings essentially support the views and concerns of Civil Rights activists and scholars regarding the abusiveness of what the administration has been doing in terms of pursuing and detaining "terrorist" suspects.

In the Padilla case, Bush had declared Padilla an "enemy combatant." He is a US citizen and was arrested on US soil. He has been held incommunicado in a military jail since June of 2002. Padilla is believed to be the first US citizen since WWII to be detained by presidential decree. In this case the court essentially declared that the president does not have the authority to legally claim someone is an enemy of the state.

The second case was of a Libyan nation captured in Afghanistan and held at Camp Delta in Guantanamo. The administration has claimed that these individuals are also "enemy combatants," and is holding them in an international legal limbo, out of contact, without representation, and with indefinite sentences. In fact, they are to be held for the duration of the "war on terrorism" -- what could be a life sentence. The court ruled that the Libyan national (and presumably others) must have access to legal counsel and to the US courts.

The approach of the DoJ, under the leadership of the Bush administration, has been to essentially overturn all rights in relationship to investigation and prosecution. They have argued that "secret evidence" cannot be be presented for security reasons. In other words, "we have evidence but be can't show it to you." They have argued that lawyers for defendants must receive a security clearance. They have held witnesses out of proceedings for the same secrecy issues. The DoJ and the Pentagon have argued that they can hold people (US citizens or not, captured in the US or not) indefinitely, without charges, and without access to counsel, or even telling people where these individuals are being held. In some cases, lawyers and families have not even been able to determine if someone us being held because the DoJ refuses to release the names of those they have detained.

While the recent rulings are sure to be appealed, it is heartening that the courts are stepping forward to assert some protection of our civil liberties. However, even without these setbacks, the DoJ has not done particularly well in their pursuit of "terrorists." Based on a study released by Syracuse University (
A Special TRAC Report: Criminal Enforcement Against Terrorists), the DoJ has referred 6400 people for "terrorist related" crimes. Of those 2001 actually got worked on and 879 received convictions. However, only 23 of them got prison terms of more than five years. Of the most significant sentences, none involved "terrorism" as it has been protrayed to the public. "Major terrorism convictions included cross-burning Ku Klux Klan members, a man who set off a pipe bomb in an empty car, and a convict who put out a contract on a federal judge..." ( Terror by the Numbers Piasecki, LA City Beat, 12/17/03). Indeed, most of the convictions were for immigration violations -- not terrorism. The DoJ is claiming a wide range of activities as "terrorist related" such as drug charges, identity theft, and money laundering. This allows the utilization of anti-terrorist "tools" in law enforcement even though the overwhelming majority of such cases have nothing to do with terrorism.

There are other issues that are outstanding at this point which we can hope will come to the courts. For example, the Bush Administration Enlists Police to Pursue Immigrants (Sandrasaga, IPS, 12/18/03). This would seem to be illegal on the face of it, and is at the root of the issue that brought the Portland, Oregon police such a bad rep in the wake of Spetember 11, 2001. Essentially, there is an ordinance on the books in Portland, that bars police from pursuing non-citizens if they have not violated any law. Specifically, the Portland police are not an enforcement arm of the INS.

There are also increasing reports of the abuse of prisoners in the custody of US and military institutions. In a New York federal detention facility, video tapes of foreign nationals being being abused by guards are under review by the courts. See:
Sept. 11 Detainees Abused by Officers, U.S. Report Says (Vicini, Reuters, 12/18/03) and Tapes Show Abuse of 9/11 Detainees (Eggen, Wa. Post, 12/19/03).

While in Iraq, the International Red Cross is concerned that prisoners are being tortured and abused --
Appeals Court Says Bush Can't Hold U.S. Citizen (Appleson, Reuters, 12/18/03).

We can only hope that citizens and the courts can help rein in the over zealous attack on civil liberties and constitutional infringements.

Other Articles
In Debate on Antiterrorism, the Courts Assert Themselves Johnston, NYT, 12/19/03

U.S. Courts Reject Detention Policy in 2 Terror Cases Lewis & Glaberson, NY Times, 12/19/03

Posted by rowan at December 19, 2003 8:14 PM | TrackBack | [eMail this article!] |