Thank the (US) Founding Fathers for an independent judiciary!

[SlowwHand]

It is absolutely absolute, for U.S. citizens.
That has to stay in place.

[MichaeltheGreat]

No, it's not absolute.

The right to counsel is only absolute "in all criminal prosecutions."

Judge Mukasey also ruled previously that the other American citizens detained in Guantanamo (one born in Lousiana or thereabouts to Saudi parents, IIRC, and I think there's a couple more.) could be classified as enemy combatants because they were taken prisoner overseas in actual combat operations against US forces.

John Walker Lindh was captured outside combat, so he probably wouldn't fit the enemy combatant bill, but there's been no ruling specific to his circumstance, because he was charged criminally and processed through the judicial system.

Padilla was arrested in the US, so his claimed "combatant" status was a complete reach by Ashcroft.

So if they're prisoners of war, or detained unlawful combatants, they don't have any specific right to counsel.

Also, right to counsel in all criminal prosecutions is blind to citizenship - it is one of the absolute rights which the government can not abrogate, and is not tied by the Constitution to citizenship. That is logical, because the function of the Constitution is to delineate and limit government powers, not grant specific rights to citizens or other inviduals.

[Lincoln]

I always thought that Padilla was being denied his rights even though he is a jerk. The problem I have with this "war" is that there is no end in sight. Therefore there is no promise that our rights will ever be restored as they were after past wars ended. I agree with this decision but I agree that the Patriot act needs to be run through the courts as well. There is nothing patriotic about throwing citizens in jail because the "chief law enforcement officer" decides they are guilty.

[Knight2003]

The total denial of habeus corpus, due process, right to counsel,etc. for US citizens can only be exercised in a declared state or martial law. To my knowledge, this has only happened once in US history. During heavy anti-draft riots during the civil war, President Abraham Lincoln suspended these rights to quell the protestors in the interest of preserving the union. It would be hard to imagine such an action happening in modern US government.

[SlowwHand]

I disagree with you MtG.
Enemy combatants do not equal American citizens.

[Berzerker]

Wartime and rebellion allow for suspending habeus corpus. Since we declared war on terrorism, a somewhat ambiguous enemy, accused terrorists may not have constitutional protections even if they are US citizens. That said, I oppose suspending habeus corpus except under extreme circumstances, and "national security" is so often used to justify hiding government corruption that I cringe when I hear that as the only reason for ignoring due process. Try him in the courts and let the judge decide how to deal with national security concerns...

Btw, the courts aren't really independent, the President and Senate nominate and confirm judges. If he were alive, James Madison wouldn't stand a chance of getting nominated, much less confirmed to the SCOTUS. If the Dems and Repubs want to ignore parts of the Constitution, the courts will go out of their way to allow it unless the infringement is far too blatant to be ignored by most people.

[MichaeltheGreat]

Originally posted by SlowwHand
I disagree with you MtG.
Enemy combatants do not equal American citizens.

The Constitution states that anyone born here is a US citizen. What they do later is a different issue. Also, naturalized citizens can have their citizenship revoked, but that isn't the case with those born in the US, or who are statutory citizens by other reasons (born overseas to a US citizen, etc.)

[Ramo]

Good for them.

* DinoDoc is not impressed at courts dealing correctly with the easy stuff and continues to wait for a test of the Patriot Act.

Exactly.
This is small potatoes. The actions against Padilla are not even sanctioned by the Patriot Act. It's time for the courts to step up to Ashcroftian tyranny.

[Knight2003]

Berzerker makes a good point about the suspension of Habeus Corpus during a declared war, but this is not a declared war. That said, there has not been a declared war since WWII involving the US. So, another legal issue that needs to be decided is if it will be accepted in modern conflicts to apply the older laws that were written for declared wars. For the sake of national security the Supreme Court must address this matter decisively to establish a precedent in the first case listing it as an issue.

[Ramo]

The Constitution states that anyone born here is a US citizen. What they do later is a different issue. Also, naturalized citizens can have their citizenship revoked, but that isn't the case with those born in the US, or who are statutory citizens by other reasons (born overseas to a US citizen, etc.)

I believe a case that went in front of SCOTUS in '64 prohibited the state from revoking citizenship (regardless of naturaliziation). Hmmmm can't recall its name at the moment. Of course, if/when Patriot II passes, the floodgates'll open.

[Ramo]

Wartime and rebellion allow for suspending habeus corpus. Since we declared war on terrorism, a somewhat ambiguous enemy, accused terrorists may not have constitutional protections even if they are US citizens. That said, I oppose suspending habeus corpus except under extreme circumstances, and "national security" is so often used to justify hiding government corruption that I cringe when I hear that as the only reason for ignoring due process. Try him in the courts and let the judge decide how to deal with national security concerns...

What "exceptional circumstances" do you think could possibly justify the suspension of habeas corpus? I consider the provision that allows for the suspension of habeas corpus a fundamental error in the Constitution.

[Ramo]

So, another legal issue that needs to be decided is if it will be accepted in modern conflicts to apply the older laws that were written for declared wars. For the sake of national security the Supreme Court must address this matter decisively to establish a precedent in the first case listing it as an issue.

Habeas corpus hasn't been suspended (which only happens when Congress does so) since the Civil War, AFAIK.

[Knight2003]

I'm not talking about the suspension of Habeus Corpus Ramo. I'm talking about laws along the lines of the protection of government documents which are considered classified from the freedom of information in a time of war,etc.

[Ramo]

Yep, every new administration seems to have a new interpretation of FOIA (and Ashcroft's guidelines are unusually authoritarian).

[Berzerker]

Ramo -

What "exceptional circumstances" do you think could possibly justify the suspension of habeas corpus? I consider the provision that allows for the suspension of habeas corpus a fundamental error in the Constitution.

The Framers had a reason for allowing the exception - wartime, in their minds, would likely entail the survival or destruction of the country they founded, not the wars we've started waging half way around the world in the name of protecting US "interests". So, what are these extreme circumstances? How about a rebellion instigated by hispanics in the southwest, or neo-Nazi skinheads in the Pacific northwest, or maybe a bunch of whacked out drug addicted libertarians all over the country burdening the courts with thousands, if not millions of insurgents. Do you think Lincoln should have had every Confederate soldier tried in a court of law to determine guilt or innocense via due process?