Judge Grants Padilla Access to Lawyer

Morphine007 writes "A judge has ordered that Jose Padilla be allowed to see his lawyer, and all I can say is it's about fscking time, I especially like the quote: "Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct further 'dialogue' about whether he is permitted to do so.""

Comments

My Rights Online??

[SN74S181]

What does this have to do with Online Rights?

Can't it be posted under a relevant topic, whatever that would be here on a 'News for nerds' website?

Re:My Rights Online??

[neocon]

The problem with that argument is that it has also been the law of the land, since the earliest days of this republic, that prisoners of war are not criminal suspects, but fall in a different category.

This includes enemy soldiers acting within the United States, even if they legally have citizenship. As early as the Jefferson and Madison administrations, this fact was used to detain port saboteurs working in the service of the French government.

So this is not a new practice, and indeed, it is a practice which the Supreme Court has upheld for two centuries. This most recently came to the test during World War II, when a team of German saboteurs were landed from Submarine on Long Island, with a mission to plant bombs in power plants, industrial centers, and Jewish-owned businesses. They were caught, and held as prisoners of war, and the Supreme Court was asked to review this detention, as one of those caught was a US citizen who had travelled to Germany in the thirties in order to join the SS.

The Supreme Court ruled that their detention was lawful, as their intention to commit acts of war against the US made them enemy combatants, not criminal suspects. You can find more information on the case, named Ex Parte Quirin, including a transcript of the court's ruling in this journal entry.

So in short, this is not, as you suggest, a new practice, nor is it, as you also suggest, against the intent of the Constitution (something that Madison, who employed the practice himself as president, presumably knew a thing or two about).

Re:My Rights Online??

[elmegil]

So a man not apprehended on a battlefield is a POW how?

Oh wait. Since we're fighting the "war on terrorism" the world is our battlefield, and ANYONE can be accused of terrorism and summarily stripped of their rights as a US citizen (completely arbitrarily I might add, given that John Walker Lindh who WAS found on a goddamn battlefield was given full constitutional rights to legal representation etc...but wait, Pedillo or whatever else you wanna call him isn't a White Suburban Boy with Parents Who Have Money to Fight for Him!).

No potential for abuse there at all....

Re:My Rights Online??

[elmegil]

I think there's a clear and obvious difference between an open war a la WWII and the nebulous "war on terrorism" which appears to let the government pick and choose who is and isn't an enemy combatant, even if they were caught on a battlefield--see the case of John Walker Lindh.

Arguing that Pedillo gave up his rights because the government alleges (hasn't even proven in a court yet, apparently) that he was a terrorist is hypocrisy of the highest order, when Lindh didn't give up his rights after being caught with a gun on a battlefield.

But of course what else can we expect from the judicial system where money buys a good verdict (Lindh, OJ, the list goes on....)

Re:My Rights Online??

[Ivan Raikov]

This includes enemy soldiers acting within the United States, even if they legally have citizenship. As early as the Jefferson and Madison administrations, this fact was used to detain port saboteurs working in the service of the French government.

No, you're wrong. The Constitution protects the rights of all American citizens and legal residents, except in time of war. However, the United States is not at war, no matter what Chimpy likes to think, because only Congress has the right to declare war, and it hasn't.

The French spies you refer to were not citizens. Jose Padilla is.

As for the German spy, allow me to remind you two things: 1) war was declared against Japan by the United States on December 8, 1941; and, on the 11th, Germany and Italy declared war against the United States. 2) the German saboteurs were tried by a military tribunal, and so had the opportunity to defend themselves in open court, rather unlike Padilla.

Also note that the Constitution makes very specific provisions about aiding the enemies of the United States in times of war; the current administration has blatantly ignored and perverted these principles to serve their own political interest.

Re:My Rights Online??

[Otter]

Well, he said "fscking" instead "fucking", thus making it News For Nerds.

Other acceptable buzzwords would have been "Linux", "Bill", "geek", "DMCA" and "Lego".

Re:My Rights Online??

[VultureMN]

And the United States has declared war on -who- ?
The situation you are talking about is completely different than what this story
is about. There is no declared war, there is no tangible enemy, there is no end-game. When does Padilla get released ? When The Government of Terrorism surrenders?

The scary part about the Pidilla case is that the Gubmint wants to be able to call anyone an "Enemy Combatant" (or POW) and be able to lock them up without a trial, without a lawyer, without ANY due process.Ashcroft SAYS that Padilla is a member of Al Qaeda and was planning on setting off a dirty bomb, but how do we KNOW that?

Re:My Rights Online??

[elmegil]

Do you plan on getting off a plane from Pakistan?

And that should matter why? I could decide that I want to do humanitarian work in Pakistan, and then yes, I'd be getting off a plan from Pakistan when I come back home. So because I travel somewhere suspect, suddenly I'm an enemy combatant? Let's see, that means I can't travel to anywhere in Europe but Britain right now, can't go to a lot of places in the pacific rim, probably can't go much of anywhere overseas, actually. What's your point?

Enemy combatant.

[Picass0]

This man lost his rights as a US citizen when he traveled overseas and conspired with a foreign government to harm the United States. Read the fine print on your passport sometime. You can have your citizenship revoked for such actions. He is an enemy in a foriegn army. As such, it is appropriate for him to be tried by the military.

There is some very damning evidence that this piece of shit wanted to detonate a radiological device on our soil. This isn't "Free Kevin" time here. He's a fucking terrorist. And if he succeeded in doing what he intended, if my two little girls were dying of radiation poisoning, at least Morphine007 can sleep well that he wasn't denied due process.

For fuck's sake, can we get real about the fact this is a war?

Re:Enemy combatant.

[elmegil]

Too bad John Walker Lindh got to keep his rights then, isn't it? He certainly was an enemy in a foreign army, with much more preponderance of evidence to prove it. I guess that this "he gave up his rights" attitude only applies if you don't have parents who can buy you out of trouble.

Re:Enemy combatant.

[orthogonal]

This man lost his rights as a US citizen when he traveled overseas and conspired with a foreign government to harm the United States.

Um, what a bout due proces of law? What about proving that he conspired to harm the U.S.? What abbout doing this in a court of law?

How does letting him have his day in court threaten our safety?

And how does not letting him have his day in court safeguard our liberties?

Re:Enemy combatant.

[Picass0]

I see you've made a real philosophical statement in your SIG as well.

Re:Enemy combatant.

[neocon]

Bzzzt. Thank you for playing, but you're the one whose got it wrong. By declaring allegiance to a hostile power, in words or actions (such as figting for a foreign military), you give up your citizenship.

To quote the paragraph which has been printed, in one form or other, inside every US Passport ever issued:

Loss of Citizenship. Under certain circumstances, you may lose your U.S. citizenship by performing any of the following acts: (1) being naturalized in a foreign state; (2) taking an oath or making a declaration to a foreign state; (3) serving in the armed forces of a foreign state; (4) accepting employment with a foreign government; or (5) formally renouncing U.S. citizenship before a U.S. consular officer overseas. For detailed information, consult the nearest American Embassy or Consulate, or contact the Office of Citizens Consular Services, Department of State, Washington DC 20520-4818, or call (202) 647-3444.

In other words, your citizenship only lasts until you choose to renounce it, and taking up arms against the US (or even joining a foreign army, except in certain cases) counts as choosing to renounce it, and the courts have upheld this fact again and again.

Re:Enemy combatant.

[anthony_dipierro]

Sorry for my tone.

To quote the paragraph which has been printed, in one form or other, inside every US Passport ever issued.

Just because it is written in a Passport doesn't mean it's correct. Passports aren't the final authority on interpreting the Constitution, the Supreme Court is. The key ruling here is Afroyim v. Rusk.

(a) Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by Congress before the passage of the Fourteenth Amendment, and a mature and well considered dictum in Osborn v. Bank of the United States, 9 Wheat. 738, 827, is to the same effect. Pp. 257-261 .

(b) The Fourteenth Amendment's provision that "All persons born or naturalized in the United States . . . are citizens of the United States . . ." completely controls the status of citizenship, and prevents the cancellation of petitioner's citizenship. Pp. 262-268 .

Also, you should notice that the passport merely says that you may lose your citizenship, not that you will.

In other words, your citizenship only lasts until you choose to renounce it, and taking up arms against the US (or even joining a foreign army, except in certain cases) counts as choosing to renounce it, and the courts have upheld this fact again and again.

So why is Lindh considered a citizen? And where have the courts "upheld this fact again and again?"

Re:Enemy combatant.

[neocon]

Lindh is considered a citizen because the government chose not to exercise its right to hold him as an unlawful combatant, just as the government routinely chooses which crimes to prosecute, and what charges to bring.

For a summary of Supreme Court cases concerning the renunciation of citizenship, see this page at the State Department, which cites a number of cases. The cases themselves should be easy enough to look up on FindLaw.

Re:Enemy combatant.

[neocon]

For another rundown on what does and does not result in loss of citizenship under current law, see this article.

Of course, these are tangential questions. al-Muhajir and Hamdi are still considered US citizens, they are merely US citizens who have committed crimes which fall under military jurisdiction, as laid out in Ex Parte Quirin (see above)>

Re:Enemy combatant.

[elmegil]

When it comes to stripping someone of the rights to due process that they as a citizen of the USA are guaranteed by the constitution, I'd say that's pretty different. Somehow, it seems to me that such an extreme action, while perhaps sometimes justified, does require a somewhat higher standard than the usual prosecutorial discretion.

Of course, I don't trust the government to use its discretion only for good, as apparently you do. And I think my primary counter example of specifically not using the discretion for good in this particular issue (John Walker Lindh) stands pretty clearly. You still fail to explain how JWL, as a US citizen actively participating in the military of a government known to be an "enemy" of ours, could possibly have any doubt as to his status as an "enemy combatant", much less still retain his due process rights in the face of that status. "They didn't think they could link him" seems pretty lame in the face of him having a gun pointed our way. That doesn't seem like "discretion" it seems like "preferential treatment".

Re: Enemy combatant.

[Black Parrot]

> This man lost his rights as a US citizen when he traveled overseas and conspired with a foreign government to harm the United States.

You, like the fascists running our government these days, are deliberately obscuring the difference between "accused terrorist" and "terrorist".

There's a reason for our constitutional rights to counsel and trial by a jury of our peers.