America Land of the Free? Not Any More!

The Constitution is no longer worth the paper it was written on. American citizens are no longer free. Thanks to the court's ruling in the Jose Padilla case, American citizens can now be apprehended and locked up indefinitely with NO recourse, on the word of one man: the president.

Somebody wake me up from this manufactured nightmare.

Jose Padilla and The Death of Liberty

"The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive." Judge Antonin Scalia

By Mike Whitney

09/10/05 "ICH" -- -- I had to sit down when I heard the Padilla case had been settled. I literally felt sick to my stomach, like I was gasping for air. The case of Jose Padilla is quite simply the most important case in the history of the American judicial system. Hanging in the balance are all the fundamental principles of American jurisprudence including habeas corpus, due process and "the presumption of innocence". All of those basic concepts were summarily revoked by the 3 judge panel of the 4th Circuit Court. The Court ruled in favor of the Bush administration which claimed that it had the right to indefinitely imprison an American citizen without charging him with a crime. The resulting verdict confers absolute authority on the President to incarcerate American citizens without charge and without any legal means for the accused to challenge the terms of his detention. It is the end of "inalienable rights", the end of The Bill of Rights, and the end of any meaningful notion of personal liberty.
www.informationclearinghouse.info...

You don't care now; but you will when they come after you and yours.

Here is a page with the relevant information.
Here is the decision:

Padilla v Hanft

The meat

The exceedingly important question before us is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war; who took up arms on behalf of that enemy and against our country in a foreign combat zone of that war; and who thereafter traveled to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets. We conclude that the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001. Accordingly, the judgment of the district court is reversed.

Importantly:

the
parties have stipulated to the facts as set forth by the
government.

Some of those facts being:

Padilla met with al Qaeda operatives in Afghanistan, received explosives training in an al Qaedaaffiliated camp, and served as an armed guard at what he understood to be a Taliban outpost.[...]Padilla was, on the facts with which we are presented, “armed and present in a combat zone during armed conflict between al Qaeda/Taliban forces and the
armed forces of the United States.”[...]Padilla eventually escaped to Pakistan, armed with an assault rifle. Id. at 20-21. Once in Pakistan, Padilla met with Khalid Sheikh Mohammad, a senior al Qaeda operations planner, who directed Padilla to travel to the United States for the purpose of blowing up apartment buildings, in continued prosecution of al Qaeda’s war of terror against the United States.

and

It is only on these facts that we
consider whether the President has the authority to detain Padilla.

So if you don't meet with al-qaida for the express and admitted purpose of waging war against the US, or aren't armed on the battlefield against the United States, you aren't affected by this decision.

The decision also cites that a similar situation had been similarly decided;
Hamdi v. Rumsfeld,

The “narrow question,” id. at 2639, addressed by the Court in Hamdi was “whether the Executive has the authority to detain citizens who qualify as ‘enemy combatants,’” id., defined for purposes of that case as “individual[s] who . . . [were] ‘“part of or supporting forces hostile to the United States or coalition partners”’ in Afghanistan and who ‘“engaged in an armed conflict against the United States”’ there,” id. The controlling plurality of the Court answered that narrow question in the affirmative,[...]“[because] [t]he capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by ‘universal agreement and practice,’ are ‘important incident[s] of war,’” id. at 2640
(quoting Ex parte Quirin, 317 U.S. 1, 28 (1942)). The rationale for this law-of-war principle, Justice O’Connor explained for the plurality, is that “detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war.”

And further

As the AUMF authorized Hamdi’s detention by the President, so also does it authorize Padilla’s detention. Under the facts as presented here, Padilla unquestionably qualifies as an “enemy combatant” as that term was defined for purposes of the controlling opinion in Hamdi. Indeed, under the definition of “enemy combatant” employed in Hamdi, we can discern no difference in principle between Hamdi and Padilla.

And still further:

In Quirin, the Court held that Congress had authorized the military trial of Haupt, a United States citizen who entered the country with orders from the Nazis to blow up domestic war facilities but was captured before he could execute those orders. Id. at 20-21, 28, 46. The Court reasoned that Haupt’s citizenship was no bar to his military trial as an unlawful enemy belligerent, concluding that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of . . . the law of war.” Id. at 37-38. Like Haupt, Padilla associated with the military arm of the enemy, and with its aid, guidance, and direction entered this country bent on committing hostile acts on American soil.

This re-asserts the idea that this isn't some new breech of powers. If it was okay to detain nazi agents, surely its okay to detain al-qaida agents. And if its okay to detain middle eastern-ethnics who are associated with al-qaida, then surely its permissible to detain other ethnicities who do the same. IOW, given this hamdi decision, you must detain padilla. And given the Haupt case, you can detain hamdi and padilla.

What is the new fact that the complaint is based on?

Interestingly:

The Court almost immediately thereafter observed, however, that the “fact that the Act” at issue was “silent on detention [did] not of course mean that any power to detain [was] lacking,”

So perhaps if the congressional debates surrounding this law, or the law itself, had said that detention was not acceptable, (considering that the law permits military tribunals), then things would be different, or perhaps even if Congress passed a 'sense of congress' resolution stating that detainment is not acceptable, then things might be different. There doesn't seem to be any such movement within congress to do so. But, again, this aspect was already decided in the hamdi case, so the basic claim, that the constituion is now no longer worth anything because of this padilla case, doesn't work out. So why the senstationalism?

Thanks for the links.

The bottom line is this: If the government deems YOU a "terrorist" or claims you have been dealing with them... You're toast. It's your pitiful word against the government's.

There is NOTHING you can do to counter their claim. Especially when the media is condemning you prematurely in the court of popular opinion.

It is completely naive to think otherwise.

Originally posted by EastCoastKid
The bottom line is this: If the government deems YOU a "terrorist" or claims you have been dealing with them... You're toast.

As its been for the past 60 odd years. Thankyou Progressive Liberals for creating this stuff.



I agree that the situation with Padilla is disturbing. However, it doesn't look like anything that hasn't allways been around (my lifetime anyways) has been added to anything.

Bush is a progressive Liberal? I don't follow politics to closely since I can't vote, but still, he is republican. When did Clinton make it legal to throw people in jail with no phone call, access to lawyer, so forth? Republican President Abe Lincoln did this during the Civil War. So I guess the republicans are preparing for 06 and 08 elections.(I can vote in 08! well, and 07, but no elections in 07....) "You voting for democrat? Terrorist! Throw them in jail. No lawyer, no outside contact, no way to expose us until after the election."

Originally posted by Full Metal
Bush is a progressive Liberal?

No, but the people who put citizen Haupt into a military tribunal were.

"You voting for democrat? Terrorist! Throw them in jail. No lawyer, no outside contact, no way to expose us until after the election."

When it happens feel free to start an insurrection. But lets stick to the topic at hand, not paranoid fantasies.

The home version of this game is "Six Degrees of Separation". For the tenuous leap so eloquently commented on by Nygdan to occur that puts this in line with a Citizens inalienable rights NOT being violated, several assumptions have to be made, the chief one among them is that our civilian courts ability to process under sealed records is insufficient to handle the due process of a Chicago Puerto Rican man who converted to jail house Islam and met some far removed under lieutenants in "Al Qeda" - trained in munitions - had a "blueprint" to make a bomb( never adequately proven), AND had access to radioactive materials.......his was sufficiently proven to be a National Security risk!?!

Padilla was the fall guy of post 9/11, because the fact that the government has nobody else.

Padilla became the "Example" of the power of our government on how to deal with "Terrorism" and to prove that they can and will take away your constitutional rights.

So we should be scare and afraid, because they are powerful they are in charge and the are coming for you if. . .if you behave bad.

Originally posted by Bout Time
this in line with a Citizens inalienable rights NOT being violated, several assumptions have to be made,

Lets just start with the issue of this ruling being noting new, and being largely based on a nearly identical decision to try as an enemy Citizen Haupt. Were you talking about the destruction of the Constitution when that was going on?

the chief one among them is that our civilian courts ability to process under sealed records is insufficient

The decision specifically deals with this, noting that the civillian courts are unacceptable because by entering into a civillian jurisdiction the government can't prevent future attacks.

the decision
As to the fact that Padilla can be prosecuted, the availability of criminal process does not distinguish him from Hamdi. If the mere availability of criminal prosecution rendered detention unnecessary within the meaning of the AUMF, then Hamdi’s detention would have been unnecessary and therefore unauthorized, since he too was detained in the United States and amenable to criminal prosecution. We are convinced, in any event, that the availability of criminal process cannot be determinative of the power to detain, if for no other reason than that criminal prosecution may well not achieve the very purpose for which detention is authorized in the first place -- the prevention of return to the field of battle. Equally important, in many instances criminal prosecution would impede the Executive in its efforts to gather intelligence from the detainee and to restrict the detainee’s communication with confederates so as to ensure that the detainee does not pose a continuing threat to national security even as he is confined

had a "blueprint" to make a bomb( never adequately proven), AND had access to radioactive materials

This is irrelevant. The specifics that is. So long as he was armed in a battlefield and part of al-qaida he's can sufficiently be said to be a threat.

met some far removed under lieutenants in "Al Qeda" - trained in munitions

On this, the decision also notes some precedence:

Padilla argues that, even if his detention is authorized by the AUMF, it is unlawful under Ex parte Milligan, (1866). In Milligan, the Supreme Court held that a United States citizen associated with an anti-Union secret society but unaffiliated with the Confederate army could not be tried by a military tribunal while access to civilian courts was open and unobstructed. Milligan purported to restrict the power of Congress as well as the power of the President. (“[N]o usage of war could sanction a military trial . . . for any offence whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power . . .”). Quirin, however, confirmed that Milligan does not extend to enemy combatants.

[in text citations removed and emphasis added in both quotes]

marg
Padilla was the fall guy of post 9/11, because the fact that the government has nobody else.

Why is this true for padilla but not hamdi??

So we should be scare and afraid, because they are powerful they are in charge and the are coming for you if. . .if you behave bad

They've been able to do this since world war II. If anyone was coming for us all, they'd have us already.

Originally posted by Nygdan
Lets just start with the issue of this ruling being noting new, and being largely based on a nearly identical decision to try as an enemy Citizen Haupt. Were you talking about the destruction of the Constitution when that was going on?

None of us were born when that was going on, but I did read up on it after your reference.

The definitions at play are at fault:

- the US is not at war. Yes, it is semantics, but isn't that what the Padilla decision is made up of? The whole lawful combatant vs. enemy combatant definitions are predicated on that.

- A US citizen was arrested in a US city. No battlefield collection of Padilla.

- The recon mission that Padilla is charged with being on is all predicated on intent that is defined by spurious definition

- There are scads of legal decision that will never see the light of day - the very low rank of anything that Padilla could have been involved with being bridged to critical national security & prevention of future events is painfully false.

We are convinced, in any event, that the availability of criminal process cannot be determinative of the power to detain, if for no other reason than that criminal prosecution may well not achieve the very purpose for which detention is authorized in the first place -- the prevention of return to the field of battle.

They're convinced, but I'm not. In the case of Padilla, they are saying that a civilian court charge of treason and imprisonment, with isolation/solitary confinement, is incapable of keeping a very low level ex-con from communicating "critical" data? What could he have possibly had access to?

So long as he was armed in a battlefield and part of al-Qaeda he's can sufficiently be said to be a threat.

That's rendered moot by his port of arrest and that he was not a member, but a sympathizer - an "unmade" man trying to be a made man. I think so much of this position that you're presenting is germane to John Walker Lind.

Thank you Nygdan for the link to decision, "Padilla v Hanft".

I did read the entire document and do concur with your post of the important points as to the decision made by the court.

The argument made here in this thread seems to be that the President can say, without any basis, that a person is an enemy combatant and can be detained to prevent the return of this person to the battlefield.

The document has a footnote (1) on page 7.

"For purposes of Padilla's summary judgment motion, the parties have stipulated to the facts as set forth by the government J.A. 30-31 It is only on these facts that we consider whether the President has the authority to detain Padilla".

Am I misunderstanding this statement? Does this not say that Padilla has admitted that these facts are true?

If this is so, then Padilla should be detained as long as we continue to fight the war on terror, at least al Qaeda in Afghanistan. By definition, his detention is authorized as a (Page 23 court's answer to Padilla's #3 argument.) "fundamental incident of waging war," id. in order "to prevent a combatants return to the battlefield," id."

Originally posted by Bout Time
the US is not at war.

According to congress and the AUM law cited, the necessary conditions are met.

The whole lawful combatant vs. enemy combatant definitions are predicated on that.

I don't see how padilla can be considered a lawful combatant against the US based upon semantics.

A US citizen was arrested in a US city. No battlefield collection of Padilla.

It is silly to suggest that an enemy soldier who escapes the battlefield and makes it to the US is somehow no longer an enemy soldier, and I beleive Haupt was captured in the US.

The recon mission that Padilla is charged with being on is all predicated on intent that is defined by spurious definition

This is apparently irrelevant, since Padilla agreed with the facts of the case.

the very low rank of anything that Padilla could have been involved with being bridged to critical national security & prevention of future events is painfully false.

How? How was Haupt or Hamdi more of a threat and higher in the system than Padilla? Since al-qaida is not an organized army, rank is irrelevant anyway. Intent is really all that matters here, not standing within the organization. If anything, the lowest 'ranks' are the ones that are going to be doing the most basic and most necessary actions, reconaissance and acts of sabotage and terror. True enough, complicated actions like 911 require 'commanders', but peopel like atta weren't really higher in rank than the so called 'muscle hijackers', they were simply the ones out of that group picked to be the liason. Rank is irrelevant.

from communicating "critical" data? What could he have possibly had access to?

The information that he himself was sent to gather while in the US. Also the questions that the interrogators asked him, and the answers he gave. All critical information for the enemy.

That's rendered moot by his port of arrest

No, its not.

and that he was not a member, but a sympathizer - an "unmade" man trying to be a made man.

Irrelevant. We don't need a membership card or a recording of padilla engaging in an al-qaida initiation ceremony for him to be a member of al-qaida.

I think so much of this position that you're presenting is germane to John Walker Lind.

I agree 100%. The same should apply to lind. It was folly to permit lind to be put into the civilian court. On the other hand, there is a question of whether lind met with people in al-qaida, supposedly he was more involved with the taliban, and only on the battlefield, not returning to the US to continue the war. Regardless, he should've been detained, interrogated, and then executed.

mahree
Am I misunderstanding this statement? Does this not say that Padilla has admitted that these facts are true?

Thats the part that I find confusing, I suppose that he's agreed to everything short of 'i came here to carry out al-qaida's war plan', but has agreed that he was in afghanistan, met with those particular people, was armed and worked with them, etc etc. Perhaps its more, but I am a little unclear on that.
I think what happened in terms of this is that his lawyer has said 'lets make this the most extreme case, and see just what the limits of presidental and governmental power should be. IOW, given that we have a citizen who is working for the enemy, should'nt he still be tried in a civil or at least martial court, and not held without charge by the military', rather than 'i am going to defend my client against all charges, regardless of teh evidence'

mahree
If this is so, then Padilla should be detained as long as we continue to fight the war on terror, at least al Qaeda in Afghanistan

Its so very difficult to see any other course of action, however its also so hard to have this jive with what we at least think was the original intent of the Founders, to make government a weak servant of all the people, and that there are ir-revocable human rights, such as the right to be held only when charged and to be given a public trial. I mean, on the one hand, you simply can't do it, but on the other hand, you'd have armies within your borders engaging in warfare (as opposed to simple crime). What would be most excellent would be some precendent from the generation of Founders, say an american citizen who aided the british in the War of 1812 (or any of the border-forts conflicts), and was tried as a spy/traitor. I mean, the Constituition does make traitorism a special case, specifically stating that they can be executed, so it seems that the Founders were pragmatic on these matters.

I don't think a stay of Habeas Corpus for any US citizen is a wise thing to do or support regardless of the reasons. We should never allow habeas corpus or the inherent rights of citizens to be truncated for security or any other reasons.

If you are an American in America, you have your rights.

Even the traitor who tossed a grenade in a tent with his own unit members in it for the "jihad" has right to trial and will get one (if not already, haven't looked it up in a while).

While I understand the UCMJ has different guidelines for those sorts of things, it should be said that if a traitorous soldier retains his rights, a citizen in America not, rather than a defined battlefield, should not be held at the call of one man without rights.

Period.

Perhaps I am misjudging the situation, but generally that's the idea.

I am open to comments or questions though (I've enjoyed the conversation so far).

DEFINITIONS
There are a couple threads arguing the status we're in now, relative to a formal declaration of war.
The enemy state is one of the biggest moving definitions - can a state of declared war exisit against an unformed cadre without set borders or property?
The terror group Al Qeida is known via it's upper eschelon...all other membership is a question mark. With Padilla, his membership status is relevant to the holding/punishment phase.
He amounts to a sympathizer looking for a contribution to the cause - the criminality is not in question, but the holding/punishment phases are.

REALITY
The minimal capabilities/knowledge of Padilla as a terrorist have only been blown to epic proportions as a distraction and then a cover-up of distraction propaganda by the government. The saga started with Ashcroft making a live "broadcast" from Russia about Padillas capture, giving every intention that this was a last minute bit of sleuth/protection systems working to save Americans.....but Padilla had already been detained for over a week.
Fear mongering was/is a tool being used by the administration, and Padilla is being scapegoated for that.
If you guys can help, as I was just looking for it and could not find it: I had posted a correlation of the phoney terror alerts vs. what the administration was trying to divert attention from, but could not find it via Boolean or Google.
I did find this, but the link didn't work:

Material behind new US alert is years old- reports
03 Aug 2004 04:40:56 GMT

WASHINGTON, Aug 3 (Reuters) - Much of the information obtained by al Qaeda that led the United States to raise terror alerts in Washington and New York was at least three years old, and U.S. officials are unsure if the group's surveillance continues, according to published reports on Tuesday.


The relevancy of prior cases are important, but so are the facts ans circumstances; I do not feel that the case is made to deny a citizen their rights in this Padilla case. Stating that the security of the US is compromised via civilian remedy does not make sense, especially when the capabilities of Padilla married to the capabillites of him executing the plan are so remote.
Prosecute for treason? Sure.
Prosecute for spying? Sure, both I'd be happy with....in a civilian court.

Originally posted by Bout Time
arguing the status we're in now, relative to a formal declaration of war.

This really isn't relevant. The SCOTUS decision is largely citing the "Authorization for Use of Military Force Joint Resolution", which is sufficient for these measures, regardless of any more formalized declaration of war. If anything its worse to say that we're in some special war time state right now and that the laws are different in general because of it. This is saying 'here is the congressional law, and here is the legal interpretations of what it permits', rather than 'congress entered the US in a war-state, and now a different set of rules apply'.

With Padilla, his membership status is relevant to the holding/punishment phase.

His association with alqaidans re-inforces his status as an enemy combatant, but its his activities on the afghan battlefield that make him an enemy combatant.

He amounts to a sympathizer looking for a contribution to the cause - the criminality is not in question, but the holding/punishment phases are.

When you are carrying military hardware on a battlefield and associating with the enemy, you are no longer a sympathizer.

The minimal capabilities/knowledge of Padilla as a terrorist have only been blown to epic proportions

This is entirely irrelevant. An incompetent crook who commits a crime is just as guilty as a highly skilled and powerful one.

I do not feel that the case is made to deny a citizen their rights in this Padilla case

But it is in Hamdi and Haupt??

Trumped up charges using liberal (small "L") interpretations of definitions and unsubstantiated status of a US citizen's part in what has to be a criminal act(s), yet is being denied due process in a civilian court due to the propaganda component of the original situation....that is the Padilla case.
I think the relevancy of other cases in establishing legal "precedent" vs. an obvious Constitutional abrogation perpetrated to support propaganda is our root argument here; the former can be argued to success, but the latter is of far graver criticality.

Originally posted by EastCoastKid
The Constitution is no longer worth the paper it was written on. American citizens are no longer free. Thanks to the court's ruling in the Jose Padilla case, American citizens can now be apprehended and locked up indefinitely with NO recourse, on the word of one man: the president.
Somebody wake me up from this manufactured nightmare.

Then I believe it is our duty to create a new government, as this is just part and parcel of a long list of injustices of the people that have been going on in the past few decades.

Taken from the constitution:


But when a long train of abuses and usurpations, pursuing invariably the

same Object evinces a design to reduce them under absolute Despotism, it

is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.


—Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.

The history of the present King of Great Britain [George III] is a history of

repeated injuries and usurpations, all having in direct object the

establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.


[edit on 24-9-2005 by TrueLies]