This past week conservative John Roberts became the Chief Justice of the Supreme Court of the United States (SCOTUS). Within days Bush will nominate a second judge who will decisively tip the balance of the court. We can be sure that we will continue to see brilliant desi lawyers in front of the Robert’s court in the coming years. Just a few days ago for example, ACLU lawyer Amrit Singh (see previous entries) successfully sued in federal court to compel the government to release more pictures of detainee abuse at Iraq’s Abu Ghraib prison.
On Thursday, a U.S. federal judge ordered the release of more images of Abu Ghraib prisoner abuse - which may open up the American military to more embarrassment from a scandal that already has stirred outrage around the world.U.S. District Judge Alvin K. Hellerstein rejected government arguments that the images would incite acts of terrorism and violence against U.S. troops in Iraq, saying that terrorists “do not need pretexts for their barbarism.”
“Our nation does not surrender to blackmail, and fear of blackmail is not a legally sufficient argument to prevent us from performing a statutory command. Indeed, the freedoms that we champion are as important to our success in Iraq and Afghanistan as the guns and missiles with which our troops are armed,” he said. [Link]
My guess is that this decision may be appealed by DOD and DOJ and find its way in front of the Robert’s court, where hopefully Amrit will continue to argue it.
The judge gave the government 20 days to appeal before releasing the pictures, which are edited so the faces of prisoners are not shown.
Lt. Col. John Skinner, a Pentagon spokesman on detainee issues said the Department of Defense, “continues to consult with the Department of Justice on this litigation, to include additional legal options…”ACLU lawyer Amrit Singh said the ruling was a victory for government accountability.
“The United States government cannot continue to hide the truth about who is ultimately responsible for the systematic abuse of detainees from the American public,” she said. [Link]
A second desi lawyer named Andrew Patel lost in his bid to defend dirty bomb suspect Jose Padilla last month in front of the U.S. 4th Circuit Court of Appeals (Robert’s former home). From the Detroit Free Press:
A federal appeals court sided Friday [Sept. 9th 2005] with the Bush administration, ruling it can indefinitely detain Jose Padilla, a U.S. citizen it deems an enemy combatant.
The three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond ruled unanimously against Padilla, a former Chicago gang member accused of seeking to blow up hotels and apartment buildings in the United States and planning an attack with a so-called dirty bomb radiological device…“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 Michael Luttig wrote. “We conclude that the president does possess such authority.”
The ruling reversed an order in March by a federal judge in South Carolina that the government could not hold Padilla indefinitely as an enemy combatant.
The case now will go to the Supreme Court, said Andrew Patel, the lawyer representing Padilla.
This is an extremely important case. The court basically ruled that in time of war the President has the authority to suspend the basic rights of even a U.S. citizen if they engage in military acts of war against the U.S. They ruled that the authority to do so was implicit in Congressional approval of the war (Authorization for Use of Military Force Joint Resolution) after 9/11. NPR as usual covered this story in exquisite detail. Judge Michael Luttig had a footnote in his ruling which said that the President’s legal authority to lock up and throw away the key on people like Padilla only exists while the war in Afghanistan is ongoing. When might the war be officially over? Who knows. Much like the nebulous “War on Terror” it could be indefinite I suppose. That is what scares the hell out of civil libertarians like me. For Congress to just give over power like that to the Executive Branch without clarifying their stance is a dumb move and hopefully the system of checks and balances will correct it, depending on the judicial temperment of SCOTUS. Here is a piece by the Cato institute that explains what the big deal is:
Padilla’s indefinite detention, without access to an attorney, has civil libertarians up in arms. That’s why the Cato Institute, joined by five ideologically diverse public policy organizations — the Center for National Security Studies, the Constitution Project, the Lawyers Committee for Human Rights, People for the American Way, and the Rutherford Institute — filed a friend-of-the-court brief in Padilla v. Rumsfeld, now pending before the U.S. Court of Appeals for the Second Circuit in New York.Consider this specious logic, endorsed by the Bush administration: Under the Sixth Amendment, the right to counsel does not apply until charges are filed. The government has not charged Padilla. Ordinarily, U.S. citizens cannot be detained without charge. But the administration has avoided that technicality by designating Padilla as an “enemy combatant,” then proclaiming that the court may not second-guess his designation.
Essentially, on orders of the executive branch, anyone could wind up imprisoned by the military with no way to assert his innocence. That frightening prospect was echoed by J. Harvie Wilkinson, the respected and steadfastly conservative chief judge of the Fourth Circuit. In a case involving another U.S. citizen, Yaser Hamdi, Wilkinson warned, “With no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel.” Judge Wilkinson upheld Hamdi’s detention but pointedly noted that Hamdi’s battlefield capture was like “apples and oranges” compared to Padilla’s arrest in Chicago. “We aren’t placing our imprimatur upon a new day of executive detentions,” Wilkinson cautioned.
An unambiguous federal statute and the U.S. Constitution both prohibit the executive branch from doing to Padilla what it is now doing. More than three decades ago, Congress passed Title 18, section 4001(a) of the U.S. Code. It states, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Today, we have not had from Congress any statute that authorizes Padilla’s detention.
You can read a partial interview with Padilla’s lawyer (just barely) Andrew Patel at NewYorkMetro.com (excerpt only).
