It seems that torture isn't going away

[Guest StuCotts]

The President has been unequivocal about not intending to dig into the sordid topic of the Bush administration's use of torture, rendition, etc. Congress could, but probably won't, at least not effectively.

I once heard Andrew Sullivan say that it will all gradually surface because there are a great many lawsuits brought by private individuals now working their way through the courts. I was skeptical. Now the Padilla case against Yoo shows signs of having real legs. There may be hope.

http://www.nytimes.com/2009/03/07/us/07yoo..._r=1&ref=us

[Guest Conway]

God Bless America. Let's validate Mr. Padilla's claims against our government so he can get back to trying to figure out how to kill our citizens in mass numbers as he was trying to do at the time of his arrest. Or, if Guantanamo actually reformed him, he can get back to being a useless gang member on the west side of Chicago.

Maybe vigilante justice is the bet answer to the problem known as Jose Padilla. No one, except the ACLU, would miss him.

I applaud the Obama administration for their efforts in this area. Despite all of the campaign rhetoric that the President and his pundits used in their war against our citizen's war on terror, it appears that, as chief executive, he had come to the realization that Americans are in danger of terrorist activity on a daily basis and that soft headed, left wing rhetoric won't protect us from those dangers.

[AdamSmith]

Conway, are you deliberately confusing categories? The socialists among us (count me in) are not perturbed by his conviction and sentencing through due process, but by the three and a half years prior, during which the Constitution was, for him, suspended.

[BigK]

I'm more with Conway on this issue. The fight against Terrorism is in my opinion a war. Those of our enemy's who are not US citizens don't deserve the full protection of our constitution.

Our world is forever changing, and many are still stuck on the definition of War as that kind activity exemplified by WWII where nation states fought each other. What rights did the US extend some of our own citizens in the forcible relocation and internment of approximately 110,000 Japanese nationals and Japanese Americans to housing facilities called "War Relocation Camps" during WWII?

I'm really sick of those who were so critical of our lack of intelligence after 9/11 who then second guess our attempts going forward to try to avoid further attacks on the US.

I don't totally support the length of time it took to get some of the "enemy combatants" to trial, but I was fine with the concept of the use of Military Tribunals to try non citizens.

And I don't mind some torture either. It's better then their side where they skip the torture and go straight to the beheading of our soldiers and innocents associated with our side.

[caeron]

What I didn't like, was that the previous administration wanted to call it a war, but didn't want to treat the prisoners like it. It's either a police issue, and courts apply, or its a war, and the geneva convention applies.

I think there can be a case for both definitions, though I lean toward war myself, with the important caveat that you have to define a scope. Otherwise it becomes a blanket endorsement to lock up whoever you want, for as long as you want. That I don't feel comfortable with.

[Guest Conway]

As usual, you make a good point, Adam Smith (though I find it quite unusual that an avowed socialist would take the name of Mr. Smith on a message board or anywhere else).

In my opinion, and it is opinion only, I believe that the detention of Mr. Padilla and his ilk, while the judicial system vetted his case through the process, may have deterred numerous attacks against the American public in general including Mr. Padilla's planned attack..

One really doesn't know the effect that Mr. Padilla may have had if he had not been detained at O'Hare on that fateful night. Many may argue that Padilla was an unsophisticated n'er do well to which I reply, so were the 9/11 hijackers, John Hinckley, the Shoe Bomber and Lee Harvey Oswald. The fact that he was unsophisticated hardly mitigates the fact that unsophisticated n'er do wells can inflict great harm on our society and that it is the responsibility of law enforcement to stop those harmful events if at all possible.

The greater good of the public was well served by the detention of Padilla, as well as other non-citizens, whether one agrees with the detentionl concept or not. In the case of Padilla, the Bush Administration for all of its shortcomings, used the judicial system quite judiciously to protect the American people from this looming threat as it balso did in the case of other detainees.

In the case of Padilla, the court system did its job over a reasonable amount of time. In the time that it took to do the job, the public was protected from the ulterior motives of this man. To me, there is extraordinary value in that process.

[seaboy4hire]

God Bless America. Let's validate Mr. Padilla's claims against our government so he can get back to trying to figure out how to kill our citizens in mass numbers as he was trying to do at the time of his arrest. Or, if Guantanamo actually reformed him, he can get back to being a useless gang member on the west side of Chicago.

Maybe vigilante justice is the bet answer to the problem known as Jose Padilla. No one, except the ACLU, would miss him.

I applaud the Obama administration for their efforts in this area. Despite all of the campaign rhetoric that the President and his pundits used in their war against our citizen's war on terror, it appears that, as chief executive, he had come to the realization that Americans are in danger of terrorist activity on a daily basis and that soft headed, left wing rhetoric won't protect us from those dangers.

Yes, lets not call Bush and Co. on all the bullshit they had done while in office for 8 years. Why would we want to finally hold them accountable for their actions? Why would we want to hold them accountable for unjustly holding American citizens in confinement and not allowing them due process? Why would we want to hold Bush & Co accountable for pushing the Patriot Act through? Allowing the government to search and seize without a warrant. It isn't the terrorists that are the American citizens main enemy. It is the US government the last 8 yrs and maybe even the next 4 that is the enemy and should be brought to trail and hanged for war crimes and crimes against humanity. I've said it time and time again, DC needs a good ol' fashioned enema because the shit is getting deep!

[AdamSmith]

I'm more with Conway on this issue. The fight against Terrorism is in my opinion a war. Those of our enemy's who are not US citizens don't deserve the full protection of our constitution.

Small detail: Padilla is a US citizen. Yet for 3-1/2 years he was detained and denied habeas corpus, speedy trial, and other due-process rights.

[BigK]

Small detail: Padilla is a US citizen. Yet for 3-1/2 years he was detained and denied habeas corpus, speedy trial, and other due-process rights.

I had forgotten that. Thanks for the reminder.

[AdamSmith]

As usual, you make a good point, Adam Smith (though I find it quite unusual that an avowed socialist would take the name of Mr. Smith on a message board or anywhere else).

Well, call me a little bit Austrian school, a little bit Ken Galbraith (apologies to Marie O.) ... socially left, economically heterodox.

In the case of Padilla, the court system did its job over a reasonable amount of time. In the time that it took to do the job, the public was protected from the ulterior motives of this man. To me, there is extraordinary value in that process.

That "reasonable amount of time" is where I differ with you most severely. Unless I am misreading all the public documentation, the information that ultimately served to convict Padilla, once he was transferred from military custody into the civilian criminal-justice system, was available to the prosecution from early on. How either security or justice was served by the 3-1/2-year suspension of due process before that happened is what your generalities fail to address.

That is, I very much buy the Framers' warnings that a breach in anyone's civil liberties anywhere could eventually prove a threat to my own.

[AdamSmith]

Worth noting, too, that the Supreme Court repeatedly rebuffed the Bush Administration's suspensions of due process.

Essence of the matter, from the Court's 2006 decision that Guantánamo detainees have the right to petition US courts challenging the legality of their open-ended detention:

"Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict," Justice Anthony Kennedy wrote in the majority opinion. "Security subsists, too, in fidelity to freedom's first principles."

He added, "Chief among them are freedom from arbitrary and unlawful restraint...."

http://www.csmonitor.com/2008/0613/p01s05-usju.html

[Guest StuCotts]

Actually, the purpose of the thread was to point out that the matter is before the civilian courts. That puts all the political rhetoric, however good it feels to deploy it, beside the point. No?

[AdamSmith]

Actually, the purpose of the thread was to point out that the matter is before the civilian courts. That puts all the political rhetoric, however good it feels to deploy it, beside the point. No?

Yes.

Until the inevitable screed against the doings of "unelected judges."

[Guest Conway]

Well, call me a little bit Austrian school, a little bit Ken Galbraith (apologies to Marie O.) ... socially left, economically heterodox.

That "reasonable amount of time" is where I differ with you most severely. Unless I am misreading all the public documentation, the information that ultimately served to convict Padilla, once he was transferred from military custody into the civilian criminal-justice system, was available to the prosecution from early on. How either security or justice was served by the 3-1/2-year suspension of due process before that happened is what your generalities fail to address.

That is, I very much buy the Framers' warnings that a breach in anyone's civil liberties anywhere could eventually prove a threat to my own.

Very good points. But, you have to remember that, until the Supreme Court issued the Boumediene and Hamdan rulings, the basis for the SC's position on treatment of enemy combatants was based on the rather obscure definition assigned to it is the 1942 case Ex parte Quirin which defined a combatant as ""Any person in an armed conflict who could be properly detained under the laws and customs of war" and a Ninth Circuit decision, In Re Territo. Quirin didn't designate that citizenship provided a superior priority of treatment. As you well know, our country has historically detained citizens and aliens of certain foreign nationalities in the time of war. is is right in our minds? Clearly no. But, until the more recent rulings were put forth by the court, it was, absolutely, the precedent established by the country and endorsed by the courts.

The question that the Bush Administration faced was "what was Padilla?". This conflict wasn't, like other wars, one between nations. Thus, Padilla's citizenship wasn't a determinant in the eyes of the administration. It was, and still is, one based upon ideology. Padilla certainly would have been entitled to his due process as a citizen had he not trained in Al Qaeda camps and planned, albeit rudimentarily, to kill American citizens with a dirty bomb.

Padilla, unfortunately, fell into the realm of being an enemy combatant before he was transferred to the non-military judicial system.

The philosophy espoused by the administration relied upon the rulings of the two cases that the Ninth Circuit Appeals Court s and Supreme Court had heard many years ago regarding enemy combatants.

The fact that a somewhat conservative court took it upon itself to overturn precedent established by the court is a rather remarkable turn of events. Certainly, as a matter of law now, there is a clearer and more defined position that there was prior to 2004.

I have no doubt that the administration pawned Padilla when it was once thought that he was a potentially high level source of intelligence. They may have likely thought that they were going to lose this case. But, chose to pursue it under the guise that Padilla may be a high level intelligence target from which substantial information could be gained.

[AdamSmith]

Conway, thank you for taking the trouble to set down this substantive response cataloging the precedents on which former administration policy was based (this is the way to do political threads). Also appreciate your noting the nation's long history of acting this way, then subsequently repudiating it. From the Alien & Sedition Acts, through Lincoln's use of military tribunals against Copperheads, to WWII internment of Japanese citizens. As Stu reminds, will be fascinating to see if Padilla's current case continues this trend.

[AdamSmith]

The fact that a somewhat conservative court took it upon itself to overturn precedent established by the court is a rather remarkable turn of events.

On the other hand, a little more digging into Quirin suggests that, despite being a unanimous opinion, its production was enough of a muddle that the current Court's willingness to revisit the issues may not be so remarkable.

A detailed account of the case:

http://www.fas.org/irp/crs/RL31340.pdf

One of the conclusions:

Recent studies of Quirin have been quite critical of the Court. To Michal Belknap, Stone went to “such lengths to justify Roosevelt’s proclamation†that he preserved the “form†of judicial review while “gutt[ing] it of substance.†So long as Justices marched to the beat of war drums, the Court “remained an unreliable guardian of the Bill of Rights.†In a separate article, Belknap describes Frankfurter in his “Soliloquy†essay as a “judge openly hostile to the accused and manifestly unwilling to afford them procedural safeguards.†David J. Danelski regards the full opinion in Quirin as “a rush to judgment, an agonizing effort to justify a fait accompli.†The opinion represented a victory for the executive branch, but for the Court “an institutional defeat.†The lesson for the Court is to “be wary of departing from its established rules and practices, even in times of national crisis, for at such times the Court is especially susceptible to co-optation by the executive.â€

[Guest 2hard2tame]

unjustly holding American citizens in confinement and not allowing them due process?

are you kidding?

do you even know who is in those kinds of places? Certainly not, law abiding, american citizens.

If you think that is true, well there is no hope for you.

You end up in GtB, you are not a citizen and therefor have no rights.

[Guest 2hard2tame]

I'm more with Conway on this issue. The fight against Terrorism is in my opinion a war. Those of our enemy's who are not US citizens don't deserve the full protection of our constitution.

Our world is forever changing, and many are still stuck on the definition of War as that kind activity exemplified by WWII where nation states fought each other. What rights did the US extend some of our own citizens in the forcible relocation and internment of approximately 110,000 Japanese nationals and Japanese Americans to housing facilities called "War Relocation Camps" during WWII?

I'm really sick of those who were so critical of our lack of intelligence after 9/11 who then second guess our attempts going forward to try to avoid further attacks on the US.

I don't totally support the length of time it took to get some of the "enemy combatants" to trial, but I was fine with the concept of the use of Military Tribunals to try non citizens.

And I don't mind some torture either. It's better then their side where they skip the torture and go straight to the beheading of our soldiers and innocents associated with our side.

You sir, are my hero.