[Imc-seattle-community] Bush makes another surgical strike on the Constitution

[melissa roberts]

How long before we decide to take back our gov't.?

-melissa


http://www.onlinejournal.com/Commentary/Mahoney061702/mahoney061702.html

Bush makes another surgical strike on the Constitution
>By Neal J. Mahoney
>Online Journal Contributing Writer
>
>
>June 17, 2002 - Something happened in Chicago on June 10 that should send
>chills down the spine of each and every American who loves liberty. On that
>day, Abdullah Al Muhajir (a.k.a., Jose Padilla), a citizen who had by then
>already languished for a month without charges in a maximum security
>federal lockup, disappeared into a new Gulag run by the Defense Department.
>Reportedly, he is now incarcerated in a U.S. Navy brig in South Carolina.
>
>Wake up, America! George W. Bush says that we are at war with "people who
>hate freedom." If so, we'd all better brush up on what we learned about
>"freedom" back in grade school. Think hard now. This is something more than
>a pop quiz. Can the US military detain and incarcerate an American citizen
>on US soil indefinitely without charges? The correct answer, if this is
>still a "free" country, is a resounding and unequivocal, no. Outside of
>military bases, the U.S. military has no business arresting anyone on U.S.
>soil, period. We fought a revolution to expel that kind of arbitrary,
>autocratic power from our shores. The framers wrote the Constitution,
>particularly the 5th and 6th Amendments, to prevent such occurrences. Was
>Chicago under martial law last week? Had law and order broken down? Were
>the courts closed? No. As such, there is no way around the fact that
>something deeply offensive to our constitutional system of government
>happened in Chicago on June 10.
>
>If you got it wrong, you are not alone. The entire Bush administration -
>along with all the pundits and "legal analysts" in the mainstream media -
>got a failing grade last week, too.
>
>In proudly announcing, from Moscow, the transfer of Al Muhajir from the
>custody of the justice system into the legal limbo of the Defense
>Department, Ashcroft called Al Muhajir a "known terrorist" who was plotting
>to detonate a "dirty bomb" in the U.S. Almost immediately, administration
>officials began to downplay the potential terrorist threat posed by Al
>Muhajir. Under Secretary of Defense Paul Wolfowitz admitted, "I don't think
>there was actually a plot beyond some fairly loose talk and his coming in
>here obviously to plan further deeds."
>
>But assuming, for the moment, that Al Muhajir really is a "known
>terrorist," then the Defense Department is now "harboring" a "known
>terrorist." That is certainly not the proper way for federal authorities to
>handle a lawbreaker. As the Supreme Court declared in 1866 in a case
>involving the illegal detention of an American citizen by the Army (In Re
>Milligan), when dealing with a dangerous criminal, "the law [says] arrest
>him, confine him closely, render him powerless to do further mischief, and
>then present his case to the grand jury of the district, with proofs of his
>guilt, and, if indicted, try him according to the course of the common
>law." That is the way to "vindicate" the Constitution, according to the
>court. Anything less is an affront to the Constitution.
>
>Speaking the day after the announcement of the transfer, Bush said Al
>Muhajir is a "bad guy" who "is where he belongs, off the streets." Is that
>enough to justify depriving an American citizen of his most basic rights -
>to be labeled a "bad guy" by the president? The administration seems to
>want us to believe that Al Muhajir forfeited his rights by befriending our
>enemies, thereby becoming a kind of traitor, although not quite enough of a
>traitor to merit any formal charges. But even a traitor who commits treason
>has rights under our constitution - rights such as indictment on specific
>charges, speedy and public trial in a court, and representation by counsel.
>That much is crystal clear in the Constitution.
>
>The danger posed by an administration willing to shred the Bill of Rights
>cannot be overstated. Still, the treatment of Mr. Al Muhajir raises even
>more serious issues. Ours is supposed to be a government of laws, not of
>men. As the Supreme Court succinctly put it in Ex Parte Quirin (the 1942
>case that the administration cites to support its claim that the military
>tribunals, the Guantanamo Bay prison camp and the incarceration of Mr. Al
>Muhajir, are not illegal), "Congress and the President, like the courts,
>possess no power not derived from the Constitution." Just as Congress
>cannot pass a "bill of attainder" to designate a single person a criminal,
>the president cannot indefinitely hold Al Muhajir in a naval brig, just
>because Bush deems him to be a "bad guy." The Legislative Branch writes the
>law, the Executive Branch executes and enforces it; only a judge within the
>Judicial Branch has the power to order a citizen punished for having broken
>the law. For Bush to simply finger someone for incarceration, and for the
>military to comply with this illegal order, is a breach of the most
>fundamental principle of constitutional government: the separation of 
>powers.
>
>The events of June 10 amount to nothing less than a surgical strike on the
>core of the Constitution - the loss of Mr. Al Muhajir's liberty, and the
>5th and 6th Amendments, constitute only "collateral damage." Article III,
>the section of the Constitution which sets up the judiciary as an
>independent and co-equal branch, appears to be the target of the "bunker
>buster" Bush dropped on June 10.
>
>When Al Muhajir disappeared into the American Gulag, he had already been
>held for a month pursuant to a material witness detention order. His court
>appointed lawyer had filed a motion (that was to be heard on June 11)
>challenging the legality of that detention.
>
>On April 30 in a different case in New York, another federal judge had
>already released another of Ashcroft's "material witnesses," a San Diego
>college student named Osama Awadallah. In a closely argued, 119-page
>opinion, the judge in New York ruled, among other things, that Ashcroft's
>use of the Federal Material Witness Statute as a dragnet is patently 
>illegal.
>
>Since the administration has offered no other explanation for why Al
>Muhajir had to be removed from the justice system the day before a hearing
>on the legality of his detention, it is difficult not to conclude that the
>Justice Department feared that the judge in Al Muhajir's case was about to
>release him. If so, then Mr. Al Muhajir's right to due process was
>sacrificed, quite simply, to prevent judicial oversight of the executive.
>
>The fig leaf that the administration puts forward in an attempt to cover
>the blatantly illegal detention of Mr. Al Muhajir is the same "law of war"
>mumbo jumbo that it used late last year to deflect criticism of the
>proposed military tribunals and the Guantanamo Bay prison camp, except in
>this case the terms are even more vague.
>
>According to Ashcroft, Bush himself designated Al Muhajir an "enemy
>combatant." We should pause for a moment to consider what this could mean.
>Did Bush sign some kind of executive order? The question becomes
>interesting when you consider that the prison guards and federal marshals
>who had custody of Al Muhajir during the month that he was held without
>charges as a "material witness" are not allowed to release their prisoner
>to anyone unless ordered to do so by the court that has jurisdiction over
>him. How did they get the federal marshals to turn him over to the
>military? Did they waive some kind of presidential decree under their
>noses? If so, this would be a very significant piece of paper; in it we
>would have the executive branch usurping the powers of the judiciary and
>the Congress, while violating the rights of the people, all at the same
>time! If that does not constitute an impeachable offense, I do not know
>what does. Will the congressional impeachment hounds who - purportedly in
>order to preserve the rule of law in America - dogged Bill Clinton for
>lying under oath about a sexual affair pursue Bush with the same degree of
>vigor for this clear abuse of power?
>
>Because he has been labeled an "enemy combatant," the administration claims
>to have the right to imprison Al Muhajir for the "duration of the
>conflict." That, after all, is what one does with POWs in a real war. Since
>Rumsfeld has already told us that this "war" may not end during our
>lifetimes, Mr. Al Muhajir's indefinite incarceration is likely to turn into
>a life sentence. But hold on a second. Leaving aside for now the "enemy"
>designation (which rests on the questionable contention that the U.S. is
>now legally "at war" with the international criminal conspiracy known as Al
>Qaeda), in what sense can Al Muhajir be called a "combatant"? The term is
>drawn from the international law governing the treatment of enemy soldiers.
>Did Al Muhajir surrender to U.S. troops on some battlefield after a
>firefight? No, unless the battlefield includes Chicago, and unless
>"firefight" includes failing to declare $10,000 in cash. Was he captured in
>combat? No, he was arrested, unarmed, by FBI agents at O'Hare International
>Airport. Did he slip behind enemy lines using stealth and disguise? No, he
>arrived in the U.S., the country in which he was born, via a commercial
>airliner, traveling under his own name on a valid U.S. passport. I submit
>that if the term "combatant" has any definite legal value, it does not
>apply to Mr. Al Muhajir. If it can be stretched to include him, then we
>might as well consider transferring all the inmates in all the civilian
>jails and prisons to military control - since, by this logic, they are all
>"enemy combatants" in the "wars" on crime, drugs or terrorism.
>
>When challenged to justify its illegal actions in the "war on terror," the
>administration repeatedly cites a single Supreme Court case - Quirin, a
>shameful 1942 case in which the Supreme Court sanctioned the railroading of
>eight German spies in secret military tribunals. In the past, the Quirin
>case has been classed by most legal scholars with the Korematsu decision
>(which allowed the military to set up detention camps for
>Japanese-Americans) as one of the most regrettable examples of war hysteria
>ever to stain the reputation of the court. But even so, the ruling in
>Quirin is quite narrow. Finding that spying and sabotage constitute the
>sort of violations of the "laws of war" which traditionally had been dealt
>with summarily on the battlefield, in Quirin the court ruled that there was
>an unwritten exception in the Constitution for spies and saboteurs. Is
>terrorism a form of spying? Is Al Muhajir a spy? Given the narrowness of
>the opinion, it seems doubtful that the court, should it ever get to
>consider the issue, will accept the Bush administration's assertion.
>
>The Justice Department, however, broadly insists that Quirin authorizes the
>incarceration of Al Muhajir because two of the German spies in the Quirin
>case were American citizens. This is nonsense. Quirin is utterly
>inapplicable for a number of reasons. For one thing, the German spies at
>least received some kind of trial before a military tribunal for specified
>violations of the "laws of war" - while Al Muhajir apparently will never be
>charged with anything, and will never even get his day in a kangaroo court.
>
>When committed in the US or against US citizens, mass murder and crashing
>planes into buildings are crimes under U.S. law. Conspiring to explode a
>"dirty bomb" in the U.S. is also a crime under U.S. law. Regular U.S.
>courts, and only regular U.S. courts, have jurisdiction to hear trials of
>these crimes, and neither George W. Bush nor Donald Rumsfeld nor John
>Ashcroft can deprive these courts of jurisdiction - either by setting up a
>system of military tribunals outside the judiciary or by or by detaining
>"known terrorists" incommunicado in military prisons.
>
>As executive branch officials, Bush, Rumsfeld and Ashcroft have an
>obligation to faithfully execute the laws - including the supreme law of
>the land, the Constitution. If they cannot do their jobs within the
>Constitution, then they must admit their incompetence and resign. Countless
>Americans have bravely laid down their lives to preserve our Constitution.
>How can we claim to honor our war dead if we cannot muster up the courage
>to abide by the document they died for? Abraham Lincoln conceived of the
>Civil War as fundamentally a struggle to prove to the world that
>constitutional democracy, "government of the people by the people," would
>not "perish from the earth" just because certain "discontented individuals"
>had decided to destroy the Union.
>
>A document that has carried our nation successfully through 215 eventful
>years - years that included the Civil War and two World Wars - should not
>be cast aside lightly. Indeed, to do so because 19 fanatics hijacked four
>planes using "box cutters," managing to kill some 3,000 innocent people,
>would show, I think, a serious lack of national nerve and intestinal
>fortitude. I refuse to believe that Americans are so gutless. I prefer to
>think that they have merely been lulled to sleep by the irresponsible
>frivolity and sensationalism of the "mainstream" media, and that they
>simply have not yet noticed how the Constitution has been subverted by
>George W. Bush.
>
>It would appear, however, that Bush, Rumsfeld and Ashcroft believe that
>this "new war" has rendered something about our frame of government
>obsolete. If so, perhaps they should call for a constitutional convention
>so that the people can redraft it. What they may not be permitted to do is
>to simply ignore the Constitution at their convenience, or redraft it
>themselves by executive fiat. Like every other American soldier and public
>official, Bush, Rumsfeld and Ashcroft have taken an oath to "preserve,
>protect and defend" the Constitution. We must hold them to their oaths.
>
>
>Neal J. Mahoney, PhD, is a former Buffalo, NY, assistant district attorney
>and is currently an adjunct lecturer at the State University of New York at
>Binghamton.

_________________________________________________________________
Join the world’s largest e-mail service with MSN Hotmail. 
http://www.hotmail.com