I look forward to the continuing story here. At first account, it looks REALLY bad. Like, we've been keeping this guy in custody without charging him, and as soon as someone puts pressure on to give him his rights AS A US CITIZEN, our government tries to render him unavailble.
Even granting that he might be a bad guy (and I don't really grant that, but say it is true for sake of argument), he has rights as a citizen and he's already in OUR government's custody.
What is going on?
quote:A U.S. District Court judge temporarily blocked the federal government from transferring an American citizen to the custody of the Iraqi government, noting Friday that the move could place the prisoner at risk of torture and indefinite confinement.
American forces arrested Shawqi Omar, a naturalized U.S. citizen, on Oct. 29, 2004, at his apartment in Baghdad. Since then, he has been held at the U.S.-run Camp Bucca in southern Iraq and at Abu Ghraib and Camp Cropper in Baghdad.
The United States military has not charged Omar with a crime, nor has it let him talk with his U.S. lawyers, who now number about half a dozen. The attempt to transfer Omar to Iraqi custody came after defense attorneys filed legal papers on his behalf.
Posted by ricree101 (Member # 7749) on :
If there is any one thing that makes me dislike the current administration, it is situations like this. I am really getting sick of how many US citizens are currently sitting in prison without even being charged with a crime of given a chance to defend themselves.
Posted by Nato (Member # 1448) on :
If a man is really guilty, why would we have any justification in not doing it by the book. If you want a conviction to stick, you've got to do everything right the first time.
Unless they're really just not going to prosecute him with anything ever.
This makes me sick. At home and abroad, we have a Constitution. Every administration official swore an oath to uphold that constitution. This is what it's for.
We need to demand that Congress ask for a list of all prisoners being held by the United States in this manner, or at the very least the list of American citizens being held.
Posted by mackillian (Member # 586) on :
Posted by Dagonee (Member # 5818) on :
My thoughts on the subject echo Scalia's and Steven's dissent in Hamdi:
quote:Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause.
He did restrict his decision to U.S. territory:
quote:Several limitations give my views in this matter a relatively narrow compass. They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court.
But it's not clear he wouldn't extend such protection here. Remember, Padilla was picked up in Afghanistan.
Posted by Lalo (Member # 3772) on :
quote:Originally posted by Dagonee: My thoughts on the subject echo Scalia's and Steven's dissent in Hamdi:
quote:Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause.
He did restrict his decision to U.S. territory:
quote:Several limitations give my views in this matter a relatively narrow compass. They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court.
But it's not clear he wouldn't extend such protection here. Remember, Padilla was picked up in Afghanistan.
...and does US citizenship expire upon leaving its borders?
Aside from the obvious truth of that in torture cases, of course.
Posted by Dagonee (Member # 5818) on :
quote:..and does US citizenship expire upon leaving its borders?
I don't think it expires, and it's not clear Scalia thinks so. One of Scalia's general interpretational principles is that he doesn't decide issues that don't need to be decided to reach a holding.
Because both Hamdi and Padilla were in the U.S., and because there is some precedent that being in U.S. territory is important to the analysis, Scalia didn't reach it.
As I said, it's not clear how he would rule in this case. But he and Stevens are the only two justices that are truly upholding the right to habeas corpus for U.S. citizens.
Posted by Kayla (Member # 2403) on :
Why wouldn't this apply to him? Like Padilla, this guy was in a country we were at war with. I mean, he hasn't set foot in the US since he was picked up, has he?
Posted by Dagonee (Member # 5818) on :
Because Padilla has been charged, the issue as to whether Hamdi would apply to him has not been reached. But, Padilla was in a very different situation because he is in the U.S. at the time he applied for haveas corpus. This guy isn't, and whether the decision would change if the prisoner is held outside the country is the particular issue Scalia said he wasn't reaching.
Also, remember, Scalia and Stevens were the only two justices, out of 9, that would have provided this broad protection. It's not the law of the land. So the "what would they do" is mostly academic. I just think it bears repeating exactly what it is we lost in the Hamdi decision. It's treated as a civil rights victory, and it isn't. It's a travesty.
Posted by Kayla (Member # 2403) on :
I misunderstood your point. Sorry. I agree that Hamdi was a disaster. It was one of those decisions where I the fact that I agreed with Scalia scared me. Posted by Orincoro (Member # 8854) on :
Dag,
Do you believe that the US has any justification in delaying the legal proceedings against ANY person under US custody any longer than ABSOLUTELY necessary? It makes me sick to hear about us intentionally holding afghan and Iraqi "war criminals" in Cuba, I see it as a deliberate betrayal of the spirit of the constitution. Aside from the exigencies of war, because it is understandable to hold enemy combatants in order to maintain security during war, but at this point it is clear to me that the intent is not to maintain security, but to circumvent the legal process under the consitution.
What possible justification do we have for holding citizens or non-citizens without charge and without legal counsel any longer than NEEDED to maintain security? This is the kind of problem that honestly makes me think that this country is no longer the place for me. I hope I am wrong about us.
Posted by Dagonee (Member # 5818) on :
quote:Do you believe that the US has any justification in delaying the legal proceedings against ANY person under US custody any longer than ABSOLUTELY necessary?
This question is impossible to answer without a definition of "legal proceedings" or "absolutely necessary."
For U.S. citizens, they should be charged with a crime or detained in one of the rare, existing civil proceedings (such as civil commitment) or released. No ifs, ands, or buts. Delay for people in military custody to confirm citizenship, make arrangements for transportation, and to maintain operational security are acceptable if outside U.S. custody are acceptable, but this shouldn't be nearly as long as Padilla or Hamdi were held. If a citizen is being detained as a prisoner of war or enemy combatant, they should be charged with treason.
For non-citizens, there are many reasons to detain, and for many, no legal proceedings other than status determination should be required. The possibilities are far too numerous to list here. "Absolutely necessary" is even harder to define ion this situation.
If we catch someone witha gun firing on U.S. troops, detention is warranted. It's warranted in other cases, too. Like I said, the possibilities are too numerous to list here.
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