The Bush Administration Quite Well May Constitute A Constitutional Disaster

Constitutionally, my personal feeling is that the W, Rove and Co has been a disaster as it completely disregards protecting our protected rights in the name of shielding us from terrorists. You can't execute that as a fair trade, and I would prefer my Presidents to go down protecting our liberties over protecting us from an unpredictable, invisible, and downright impossible to identify enemy (if we can not sort them out in Iraq, how can we sort them out at home?).

But of course, what's the W doing today? Dedicating a memorial to the "victims of communism?" You bet. Here we see W, trumpet some interesting things:

The 20th century will be remembered as the deadliest century in human history. And the record of this brutal era is commemorated in memorials across this city.

Well, this one is getting started on to eclipsing that record. I wonder how many memorials will be erected to commemorate those KIA for W's GWoT?

The sheer numbers of those killed in Communism's name are staggering, so large that a precise count is impossible.

Much like the number of innocent Iraqi's killed in the name of "spreading freedom?" Indeed...

We dedicate this memorial because we have an obligation to future generations to record the crimes of the 20th century and ensure they're never repeated.

I'm sure that some would feel that the West has ignored that message.

We can have confidence in the power of freedom because we've seen freedom overcome tyranny and terror before.

But what about those whom we jail without charging?

I posted about this concern yesterday, and finally the MSM has chimed in. They always seem to be a day late, if you ask me...some times a dollar short even. But here's an editorial that I think sums up the concern quite well.

For years, President Bush has made the grandiose claim that the Congressional authorization to attack Afghanistan after 9/11 was a declaration of a “war on terror” that gave him the power to decide who the combatants are and throw them into military prisons forever.

Yesterday, in a powerful 2-to-1 decision, a panel of the United States Court of Appeals for the Fourth Circuit utterly rejected the president’s claims. The majority made clear how threatening the administration’s policies are to the Constitution and the rule of law — and how far the administration has already gone down that treacherous road.

Mr. Bush, the majority said, does not claim these powers for dire emergencies but “maintains that the authority to order the military to seize and detain certain civilians is an inherent power of the presidency, which he and his successors may exercise as they please.”

The prisoner in this case, a citizen of Qatar named Ali al-Marri, was living in the United States legally when he was arrested and charged with being an Al Qaeda terrorist. In 2003, Mr. Bush declared Mr. Marri an enemy combatant, took him from civilian authorities and threw him into a military brig where he remains today without charges being filed.

The court did not say Mr. Marri was innocent, nor that he must be set free. It said that the law does not give Mr. Bush the power to seize a civilian living in the United States and declare him to be an enemy combatant based on whatever definition he chooses to apply. If Mr. Marri is to be kept in prison, it said, he must be tried and convicted in a civilian court.

The ruling said the Constitution and numerous precedents made it clear that foreigners living legally in this country have the same right to due process as any American citizen. It found no merit in the president’s claim that the Congressional approval of the use of military force in Afghanistan gave him authority to change that or that he has “the inherent authority” to do it on his own. Sanctioning that kind of authority “would have disastrous consequences for the Constitution — and for the country,” the judges said.

The judges said their ruling applied only to people living legally in the United States and not to the prisoners in Guantánamo Bay. But the court’s powerful arguments may be relevant to a large number of those men. Steven Shapiro, legal director of the American Civil Liberties Union, said the ruling would not help those prisoners who were captured on a battlefield and properly imprisoned as combatants. But there are hundreds of prisoners who were not taken on a battlefield but instead were picked up by the military or intelligence agents around the world and classified as combatants because of their association with Al Qaeda. The ruling said that was not an adequate definition of combatant.

This ruling is another strong argument for bringing Mr. Bush’s detention camps under the rule of law. Congress can do that by repealing the odious Military Commissions Act of 2006, which endorsed Mr. Bush’s twisted system of indefinite detentions, by closing Guantánamo Bay and by allowing the courts to sort out the prisoners — not according to the whims of one president with an obvious disdain for the balance of powers but by the rules of justice that have guided this nation for more than 200 years.

Ending tyranny should start at home, no?

Late add to this post: Tony the Snow Job had his hands full trying to explain the President's actions regarding this situation at the Press conference today. Have a look. I suggest that the best question is at the tail. Any of you supporters of this Iraq conflagration or the whole of the GWoT have an answer that you can clarify as Tony does not, I would much appreciate it:

Q Tony, who is harmed if Ali al-Mari is either deported, held as a material witness, or charged with a crime?

MR. SNOW: That is not the issue that was before the court. The issue is whether, in fact, you have the ability to detain enemy combatants. The United States Supreme Court said, yes, in the Hamdi case. A federal -- U.S. district court of appeals said, yes, in the Padilla case. And we have asked for an en banc hearing before the 4th U.S. Circuit in the al-Mari case because we think that court precedent supports the position that we have had when it comes to detainees.

Furthermore, that has been a longstanding practice within the United States, over decades, and, therefore, it's not a question of harm; the question is, do you, in fact, have reason to hold somebody, detain somebody as an enemy combatant. Well, let's see -- what was not challenged during the court proceedings was the fact that he had been dealing with Khalid Sheikh Muhammad in 2001. So he's dealing in 2001 with a man who masterminded the September 11th attacks. Apparently, he was part of a cell designed to try to wreak havoc on U.S. financial institutions, somebody who clearly is an enemy combatant.

Some of the issues that were before the court -- this particular panel, this three-judge panel decided that you could not hold him as an enemy combatant because al Qaeda, itself, was not a nation state. We don't think that that is going to withstand further scrutiny, but we'll have to see. Again, we hope that it would be heard en banc, but the court will have to decide.

Q What about just getting him a lawyer and putting him on trial?

MR. SNOW: Because, once again, there are procedures and precedents that we think are appropriate for this situation.

Q But how does that hurt anybody, to just put him on trial? If he has done these things, just put him on trial.

MR. SNOW: Well, again, I'm not going to try to gainsay what has been the security decision of this administration.

Q Just to follow on that, I mean, the President has taken a few legal hits recently on the treatment of prisoners taken in the war on terrorism. How is the President continuing to justify these policies, plus the continued existence of the Guantanamo prison in the face of this almost unanimous criticism abroad, and increasing at home?

MR. SNOW: Well, I would say -- not unanimous -- let's go to Guantanamo. You have had a number of congressional delegations that go down there, they take a look at it, and say, these guys are being treated fairly. You have the International Committee of the Red Cross, which is there constantly and that is constantly monitoring. You have guys who have three square meals a day in keeping with religious traditions, their religious traditions are honored, they are supplied with Korans, prayer mats and other things if they so desire.

In point of fact, it is unpopular -- a lot of people have criticized it because they don't like the idea of having a detention facility for those who are plucked off the battlefields and trying to kill Americans. Nevertheless --

Q Why haven't they been charged?

MR. SNOW: Nevertheless, what we have tried to do is to repatriate as many as possible. Their home countries think that these guys are so dangerous that they don't want them back.

So what I would suggest is, rather than trying to lump in criticisms that come in, take a look at the factual record, and also take a look at what members of Congress have seen and said and reported, or journalists. I don't know if anybody in this room has been there, but a number of -- certainly more than a hundred journalists have been down to Guantanamo to see it.

Having said that, the President doesn't want Guantanamo open any longer than it has to be. He's said many times that he'd like to have it closed. But on the other hand, you have extraordinarily dangerous killers that he does not feel -- that it's not appropriate to put on American shores. There is a legal process for dealing with them that is being pursued, and it is pursued in a way that respects their rights, and at the same time, respects the President's obligations of keeping this country safe.

Q But doesn't the indefinite holding of this many prisoners under these circumstances really undercut the President's arguments in favor of democracy worldwide, as he just spoke about in his speech --

MR. SNOW: How does it do that?

Q That's what I'm asking you.

MR. SNOW: No, the question doesn't make sense to me. How does that happen?

Q By not having due process for every --

MR. SNOW: Are you saying that detaining people who are plucked off the battlefields is an assault on democracy? Are you kidding me? You're talking about the people who were responsible for supporting the Taliban, somehow detaining them is an assault on democracy?

Q And not charging them --

Q Yes. You're getting quite a bit of criticism internationally, as well as domestically on the issue of holding people indefinitely without charge. Are you denying that's the case?

MR. SNOW: No, many have been held, but many also are now being processed through the system. What I just thought was peculiar is that you have people who waged active warfare against democracy and you think detaining them somehow is an assault on democracy.

Q I asked you about the procedures and situation in which they're held --

MR. SNOW: The procedures are those that have -- again, if you take a look at the civil liberty protections in there, they're extensive, and they've been debated before Congress. If you want to give -- if you want to give a platform to folks who belong to organizations that either are not housed in the United States or feel perfectly free to criticize, without having taken a careful look at the precautions, or, in many cases, for instance, in Guantanamo, refuse to come, refuse the invitation to do a full investigation -- well, fine, you may give them that platform. But the question I would ask is, will you not also, then, when you are evaluating these, number one, figure out who was there; number two, take a look at the history of warfare and how these situations have been handled, you will find great consistency over the years; and number three, take a look at the actual record in terms of how these folks are treated, then get back to us on it.

Q Can I follow on that, Tony? Guantanamo, so far only three people have been charged, and the military commission has thrown out two of those charges.

MR. SNOW: Right.

Q They're on appeal, as you know.

MR. SNOW: Right.

Q Everybody else is an enemy combatant down there, whether he's described ultimately as unlawful, or not. According to the folks down at Guantanamo -- and you said it yourself that this is a question of warfare -- they're being held until the end, presumably, of the war on terror. How on earth do you get to the end of the war on terror and ultimately release these people?

MR. SNOW: Number one, you're assuming that nobody gets released, and as you know, in fact, the number of people being detained at Guantanamo has been slowly going down; more than 100 have been returned. So you have a significant reduction, and we continue to try as best we can to repatriate folks. So don't make the assumption that it is a totally static situation.

Number two, it has been the case, in the role of warfare, that, in fact, you can hold enemy combatants during the course of hostilities. Having said that, we'd be perfectly happy to return all those that we can.

Now, keep in mind, one of the conditions is, when you return them, they have to be returned to a nation that will, in fact, respect their human rights and their civil rights in the disposition of these cases. So that is also one of the conditions, and sometimes those conditions are not met.

Q But can I just follow on that? How do you declare an end to the war on terror?

MR. SNOW: I don't know.

Good question.