Saturday, September 10, 2005


Do Presidents Really Know Who Are Enemy Combatants?

I guess I really didn't understand what I thought I was taught in school (in the 1960's/70's). I really thought that there were Constitutional protections designed to provide justice and avoid injustice. The phrase "innocent until proven guilty beyond a reasonable doubt" comes to mind, with the onus of proof on the accuser, not the accused. The ability to sue for libel when the accusation was extra-legal reinforced this protection. I believed we wanted everyone everywhere to benefit from such principles.

Clearly, I was wrong.2. Such safeguards are reserved for those who deserve them, not for riff-raff. That was amply demonstrated at Guantanamo Bay by the internment of prisoners removed from Afganistan, lieu of their arrest and purported criminal activity, without benefit of PoW status. (1) People accused of deserving to have their rights so suspended are thus in prison (without bail) until we get around to judging whether they are guilty. Presumption of guilt justifies their treatment? Of course! They are terrorists, as we will eventually determine, hence do not deserve presumption of innocence.

Now, what brought all this to mind is a decision by a federal appeals court, that seems to extend the Guantanamo principle to U.S. territory. According to a story in the New York Times, the court found that
... President Bush had the authority to detain as an enemy combatant an American citizen who fought United States forces on foreign soil.
The case in question concerns a certain Mr. Padilla.
The military has asserted that Mr. Padilla (pronounced pa-DILL-uh) was an operative of Al Qaeda who fought in Afghanistan, was trained by Khalid Sheikh Mohammed, a planner of the Sept. 11 attacks, and was considering various terrorist plots in the United States.
The military has asserted. No need to presume innocence under those circumstances.

I think the judge should be careful how he phases his opinion (emphasis mine), or did I misunderstand yet more on the "why the prisoners at Guantanamo are not PoWs"?:
"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," Judge Luttig wrote. "We conclude that the president does possess such authority," citing the Congressional authorization.
Mr. Padilla, a Chicagan, was arrested in Chicago in May, 2002, and has been detained ever since. He is being held on a Navy brig in South Carolina. The crime of which he is accused is not having fought the United States on foreign soil; in fact, the government appears unsure of the appropriate accusation, to the point where Mr. Padilla's lawyer, Jonathan M. Freiman said
"a sad day for the nation when a federal court finds the president has the power to detain indefinitely and without criminal charge any American citizen whom he deems an enemy combatant."
We've long known that a Supreme Court Justice can recognize pornography when he sees it; we have now been told that a President can recognize an enemy combatant when one is pointed out to him by the right people. This a a very great responsibility; let's hope that those who do the pointing are pretty infallible detectors of guilt, otherwise we'll have to go back to presumption of innocence.

1.) Why didn't anybody think of invading Sicily and imprisoning the Mafia at Guantanamo, was the activity of the Mafia not terrorizing Americans?

2.)Personal anecdote:
There were clues that should have tipped me off. The most obvious, perhaps, is plea-bargaining; in particular, a bargain I was given. When I was accused of wreckless driving, I consulted a lawyer, decided I was innocent, and headed off to court to defend myself. The court was in a settlement in the desert in Southern California, the kind of place that produced Frank Zappa--and he got out of there as fast as he could. I was a college-bound teenager from Hollywood, who had been arrested driving an Alfa Romeo, accused in a rural court, where the jury would all be driving pick-ups with gun racks. How was I going to be tried by my peers, been considered a peer and not an alien, as alien in my fashion as a wetback? Well, when the judge asked me how I pleaded, I nevertheless answered "not guilty". "Oh, he wants a trahal, does he? Well, we'll give him a trahal...would you like a trial by court, or a trial by jury?" Good question. Why was a judge in SoCal speaking with such a strong Alabama-like drawl, to reassure of his fairness and choose "court"? Well, to shorten a story which is getting long, I was still thinking about which option would be less risky when the judge offered to drop the charge if I worked five days for the park service. Even now, the logic escapes me. It would seem that I confessed to and was punished for something of which I would not be accused, and that was just fine for everybody.

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