The New Congress and Civil Liberties

By Jeralyn, Section Civil Liberties
Posted on Mon Nov 13, 2006 at 12:37:39 PM EST
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Paul Craig Roberts has a provocative article in Counterpunch today (scroll down) about whether the Dems will do anything about the Bush Administration's destruction of the Bill of Rights and freedom in the name of the war on terror.

He asks:

Do Pelosi and the incoming Senate Majority Leader Harry Reid have the intellect and character to deliver the leadership required for Americans to remain a free people? Instead of bemoaning the damage Bush has done to civil liberty, Democrats are up in arms over one child in five being raised in poverty. The more important question is whether children are being raised as a free people protected by civil liberties from arbitrary government power.

After discussing the case of accused dirty bomber Jose Padilla, he concludes:

The reason that the Bush regime wants to detain people indefinitely without evidence is that it has no evidence. The reason the Bush regime passed torture legislation is in order to produce the missing evidence by torturing a suspect into self-incrimination. "Evidence" procured by torture has been illegal in civilized societies for centuries. But the Bush regime has resurrected the medieval rack and substituted it for the Bill of Rights.

If Democrats cannot bring themselves to rectify the inhumane and barbaric practices that now pass for US justice, then they, too, have failed the American people.

[Via Cursor.]

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The New Congress and Civil Liberties | 17 comments (17 topical)

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Crow, meet Raven. (none / 0) (#1)
by Gabriel Malor on Mon Nov 13, 2006 at 12:54:46 PM EST

Mr Roberts says:

The reason that the Bush regime wants to detain people indefinitely without evidence is that it has no evidence. The reason the Bush regime passed torture legislation is in order to produce the missing evidence by torturing a suspect into self-incrimination.

Roberts lacks the very thing he demands of the "Bush regime": evidence.

Just so we're clear (none / 0) (#7)
by Repack Rider on Mon Nov 13, 2006 at 04:46:22 PM EST

Do you believe the president should have the power to detain a person indefinitely with no opportunity on the prisoner's part to challenge the imprisonment, and without offering evidence that the detainee has done anything wrong?

Do you believe that the United States should live up to the Geneva Convention, to which we are signatories, which prohibits torture of any prisoners, whether or not they are considered "prisoners of war, "unlawful combatants," or any other term of convenience to the imprisoniong power"?

Do you believe that prisoners at Guantanamo should be observed by international human rights organizations to assure the world that we do not torture them?

Do you believe the president had the authority to hold American citizen Jose Padilla for several years without a trial or access to a lawyer?

Do you believe the United States should treat prisoners better than Saddam Hussein did?

Just so we're clear.


Re: Just so we're clear (none / 0) (#9)
by Gabriel Malor on Mon Nov 13, 2006 at 05:48:04 PM EST

No. However, detainees may be held indefinitely so long as the detainee was engaged in a war effort against the United States. As I've discussed here many times, such indefinite detentions are authorized by US law (even before the MCA 2006), and the Geneva Conventions, and the Hague Convention, so long as the detainee was part of the enemy war effort.

The Supreme Court has required that all detainees receive a "meaningful hearing" to determine their status. This is to satisfy their Fifth Amendment right to due process. A meaningful hearing means that the detainee be able to offer evidence and rebut the charges and evidence against him. The Combatant Status Review Board fulfills that constitutional purpose.

Any detainees that are not engaged in war efforts against the US must challenge their detentions at their CSRB. If that is unsuccessful, they must petition the federal courts for habeas (if they're a citizen or being held on US soil) or for violation of their due process right (if they're not). This last step is identical to the procedure required of convicts in this country and therefore both legal and reasonable.

Yes, though I suspect we have very different definitions of torture.

No. I have no problem with instituting self-administered monitoring (perhaps Congress could get off its ass and create a program), but "international human rights organizations" are not inclined to give Guantanamo objective scrutiny. I also worry that these organizations could compromise the security and safety of the facility and give aid to the prisoners.

Yes. See the answer to the first question. War prisoners are legally subject to indefinite detention. In Padilla's case, there was no requirement that he be given a trial or access to a lawyer until he was transfered from military control to the civilian courts.

After Hamdi, he would have to receive the "meaningful hearing" I mentioned in my first answer, but Padilla was transfered from the Navy brig to civilian control before that could happen. Upon such a transfer, his Sixth Amendment rights required that he be given a speedy trial and have access to the assistance of counsel. Note, however, that his Sixth Amendment rights were not implicated before he entered the criminal court system.

Yes.

On a related note, I'm not sure what access military detainees are legally entitled to. As I've said, the Sixth Amendment doesn't help them, but I'm almost certain that several statutes do--including the MCA 2006. On that point, I will have to do more research.

My uninformed opinion, however, is that a prisoner be given adequate representation for his CSRB--even if that representation is a government appointed military lawyer.]


Oops. (none / 0) (#10)
by Gabriel Malor on Mon Nov 13, 2006 at 05:55:32 PM EST

The first sentence of the second to last paragraph in my above comment should read:

"On a related note, I'm not sure what access to a lawyer military detainees are legally entitled to."


It is to laugh (none / 0) (#11)
by Repack Rider on Mon Nov 13, 2006 at 08:27:15 PM EST

detainees may be held indefinitely so long as the detainee was engaged in a war effort against the United States. As I've discussed here many times, such indefinite detentions are authorized by US law (even before the MCA 2006), and the Geneva Conventions, and the Hague Convention, so long as the detainee was part of the enemy war effort.

No war has been declared, and no "enemy" has been identified.

So that point is meaningless. There is no one who qualifies under that standard.

I suspect we have very different definitions of torture.

My definition of torture is any interrogative technique that you would not want performed on your wife in front of your children. There is no reason, other than moving a prisoner about, that requires a guard or interrogator to lay hands on a prisoner. Sleep deprivation, or "stress positions" are torture.

"international human rights organizations" are not inclined to give Guantanamo objective scrutiny.

Please present the evidence for that assertion again, because I must have missed it. Isn't it a conflict of interest for the imprisoning authority to scrutinize itself?

In Padilla's case, there was no requirement that he be given a trial or access to a lawyer until he was transfered from military control to the civilian courts.

You mean, other than the Constitution? Why would you deny a fellow citizen his Constitutional rights? The law of the land says you are wrong, and it is hard to believe you do not accept the Constitution as a valid document.

Actually, considering the absence of facts or logic in the rest of your argument, I guess it isn't a stretch that you don't accept the Constitution.

Funny that you say we should treat our prisoners better than Saddam did, then you apply the same standards that Saddam did.


It is still laughing ;-) (none / 0) (#12)
by Edger on Mon Nov 13, 2006 at 09:07:23 PM EST

Repack - I've tried my best too at having this discussion with Gabriel, and he retreats every time as far away from practical effect on humans as possible and hides himself away in a world of legalese and constitutional theoretics. I suspect it's a defense mechanism - a way of denying uncomfortable reality and feelings of complicity and guilt - but what the hell do I know. I'm not a law student, I just listen to people like Judiciary Committee chairmen, six time US Senators with eight years as State's Attorney, who have been selected as one of three outstanding prosecutors in the United States. But, like me, what the hell do guys like Sen. Leahy, a simple minded Juris Doctor, know that a law student like Gabriel can't run circles around in a couple of comments, huh?

Specter-Leahy-Dodd Amendment To Strike Section 7 Of The Military Commission Bill

I applaud your patience, Repack. ;-)


You are incorrect. (none / 0) (#13)
by Gabriel Malor on Mon Nov 13, 2006 at 09:09:15 PM EST

Senator Biden, Congress, and the Supreme Court disagree with you. War has been declared on Al Qa'ida, the Taliban, the former Iraqi regime, and the Iraqi insurgents. Moreover, the Supreme Court in Hamdi v. Rumsfeld noted that Yaser Esam Hamdi came under the laws I mentioned. The pertinent section:

It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949 ("Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities"). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899 (as soon as possible after "conclusion of peace"); Hague Convention (IV), Oct. 18, 1907 ("conclusion of peace" (Art. 20)); Geneva Convention, July 27, 1929 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Praust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Int'l L. J. 503, 510-511 (2003) (prisoners of war "can be detained during an armed conflict, but the detaining country must release and repatriate them 'without delay after the cessation of active hostilities,' unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences."

Justice O'Connor expends no small effort to explain indefinite detentions. I encourage you to go read it.

As I noted upthread, the Sixth Amendment right to a lawyer is not implicated by military detention. The closest that one can get is to claim that Fifth Amendment due process requires the assistance of counsel. Your claim that the Constitution says otherwise is simply incorrect.

Unlike cpinva who is annoyed at the Court's interpretation of the obviously clear language of Article I, sec. 9, you object to the clear language of the Sixth Amendment. I reprint that here, as well:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Note, the right to trial and assistance of counsel only applies "in all criminal prosecutions." Military detainees, like Padilla before he was handed over to the criminal justice system, are not taking part in a "criminal prosecution." Therefore, the Sixth Amendment is not implicated.

As much as you might wish it were otherwise (and despite your declarations that I have no facts or logic), the facts support only my position. I'm practically reading to you from the Supreme Court--the near-ultimate decider when it comes to your rights--and from the Constitution and you're accusing me of denying people of their Constitutional rights.

It's all there, Repack Rider.


Sure (none / 0) (#16)
by Repack Rider on Mon Nov 13, 2006 at 11:36:13 PM EST

War has been declared on Al Qa'ida, the Taliban, the former Iraqi regime, and the Iraqi insurgents.

And drugs, poverty and terror also.

The Constitution says that only Congress can declare war. Please direct my attention to the congressional declaration of war against these entities that you are referring to.

Please explain how we will know when these "wars" are over so the prisoners can go home.


: Everything you want... (none / 0) (#17)
by Gabriel Malor on Tue Nov 14, 2006 at 12:41:24 AM EST

is at the links in that post. (Not to mention I've posted them at least twice before here.) But, since I'm bursting your bubble here, I suppose I can do the legwork for you.
On the declaration of war, Senator Biden has my back:

M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged approach to the problems we face. My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)
JB: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President.
And from the AUMF 2001:

...the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons...
From the AUMF 2002 (PDF), which the good senator references:

The President is authorized to use the
Armed Forces of the United States as he determines to be necessary
and appropriate in order to--
(1) defend the national security of the United States against
the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council
resolutions regarding Iraq.
And Justice O'Connor wrote extensively about the issue of indefinite detention in Hamdi v. Rumsfeld. I guess you couldn't be bothered to read it, so I'll just quote it here, too.

[W]e understand Congress' grant of authority for the use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan....The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.
From this, you can conclude the legal principles that regulate the cessation of hostilities. I urge you to take special note of O'Connor's reference to conflicts which are unlike those which formed the laws of war.

In fact it's hilarious. (none / 0) (#14)
by Edger on Mon Nov 13, 2006 at 09:31:24 PM EST

Of course, I'd feel pretty complicit and guilty, if I'd been supporting this administration all this time. In fact I'd probably do my god*amndest to erect thick walls of defense papered with all the massive layers of impressive looking legalese I could find around my psyche, too.

Security trumps all, after all, so they say.

Me? I find it's much easier to just say: "Yup, it was me, I did it and I'm guilty" then get over it and move on. But my parents always taught me to admit mistakes promptly, take my lumps, and don't cry over spilled milk.


There is some evidence, Gabriel (none / 0) (#15)
by 1980Ford on Mon Nov 13, 2006 at 09:45:30 PM EST

Since the prosecution has the duty to present evidence, it is logical to expect they will if they have it. If they do not present their evidence, it is logical to assume they don't have it. Confessions through torture are not trustworthy and always require corroborating evidence. So since Bush refuses to try in the light of public courts, that is evidence he does not have evidence.


headscratcher (none / 0) (#2)
by HeadScratcher on Mon Nov 13, 2006 at 01:00:39 PM EST

Since I can walk and chew gum at once why can't they can tackle poverty and the bill of rights at the same time? It's not like the bill of rights will take a lot of effort to 'fix'...

: Wtf? (none / 0) (#4)
by scarshapedstar on Mon Nov 13, 2006 at 01:55:54 PM EST

Yeah, seriously. Torture; malnourished children. Do we really have to pick a priority here? Can't we agree that both have no place in this country?
I'm guessing this guy doesn't have kids.

Deliberately insulting phrasing... (none / 0) (#3)
by Bill Arnett on Mon Nov 13, 2006 at 01:29:58 PM EST

?...such as:

Do Pelosi and the incoming Senate Majority Leader Harry Reid have the intellect and character to deliver the leadership required for Americans to remain a free people?

...bespeaks an unneccessary and uncalled for belittling of Reid and Pelosi.

I would reverse the question and ask:

Am I, Mr. Roberts, intelligent enough and of strong enough character to offer gratuitous insults to a Representative and Senator who were elected by millions of citizens whose judgement I also call into question with this arrogant question?

Sheesh, this guy sounds like PPJ.

This takes the cake... (none / 0) (#5)
by Bill Arnett on Mon Nov 13, 2006 at 01:56:43 PM EST

...also:

If Democrats cannot bring themselves to rectify the inhumane and barbaric practices that now pass for US justice, then they, too, have failed the American people.

Aw, c'mon! here he is accusing Democrats of having failed the American people in present tense, as in we "HAVE" failed the American people.

I'm perfectly well aware that I am not the greatest writer in the world, but this guy sucks.

His heart seems to be in the right place, but my god, we don't even assume control of congress until January 3rd and he's already alleging that we have failed before we even had the chance to do anything.

I'm sorry, but to me this guy sounds like a rethug trying to offer political advice to Democrats and, therefore, someone we should listen to the least.

figures (none / 0) (#6)
by roger on Mon Nov 13, 2006 at 04:11:23 PM EST

Like Stephen Colbert said the other day;

Dems have been in charge for 3 days, already we're stuck in a quagmire in Iraq, deficit spending is out of control, and civil liberties are threatened

I paraphrased, but it does seem a bit premature to write off the new congress before they evn take office

Whether the Democrats will (none / 0) (#8)
by theologicus on Mon Nov 13, 2006 at 04:54:17 PM EST

restore civil liberties is a serious question, even if brashly put.

The Military Commissions Act was a milestone in the disintegration of American democracy. There are more problems with it than merely the stripping of habaes corpus, though that one is hard to beat.

I wish I could be as confident as some people in this thread that the Democrats are worthy of our confidence here.

Christopher Anders, legislative counsel for the American Civil Liberties Union, had this comment on the MCA:

Nothing could be less American than a government that can indefinitely hold people in secret torture cells, take away their protections against horrific and cruel abuse, put them on trial based on evidence they cannot see, sentence them to death based on testimony literally beaten out of witnesses, and then slam shut the courthouse door for any habeas corpus petition. But that's exactly what Congress just approved.

Where's the outrage among the Democrats?