http://www.latimes.com/news/opinion/...25,1,3612847.s
tory

"Sandman" wrote in message
...

http://www.latimes.com/news/opinion/...25,1,3612847.s
tory

Is this the same LA Times that decided Ca. has twice the black
population it really has in polling for the Gov. race?

Anybody else consider it rude posting links that require
registration?

ScottW

"Sandman" wrote in message
...

http://www.latimes.com/news/opinion/...25,1,3612847.s
tory

Well, this link doesn't work, so...

Here's the text:

Courts Put a Dent in Bush's 'Say-So' Detentions

When it comes to post-9/11 jailing without charges, the president is not a
king.

by David Cole, David Cole, a law professor at Georgetown University, is
author of "Enemy Aliens: Double Standards and Constitutional Freedoms in the
War on Terrorism" (New Press, 2003).

For two years, the Bush administration has been making the remarkable
argument that the president has the right to label any human being anywhere
in the world - U.S. citizen or not - an "enemy combatant" (or as Bush
himself put it, a "bad guy") and then lock him up indefinitely,
incommunicado, without charges, without trial or access to courts or
lawyers.

But last week, two U.S. courts of appeal reminded us of one simple fact:
It's President Bush, not King George. The president is not above the law,
both courts concluded, and in a constitutional democracy the power to
imprison cannot be legally unfettered.

The two decisions raise fundamental questions about one of the
administration's central tactics in the war on terrorism - preventive
detention. That's the theory under which about 700 foreign nationals have
been held without charges as enemy combatants at the Guantanamo Bay Naval
Base since January 2002 - not because they're being punished for wrongdoing
but to prevent them from going back and fighting against us.

That is also the theory under which the administration has detained more
than 5,000 foreign nationals within the United States since 9/11, using
immigration law and other pretexts. These men have been held in prisons
around the country - in some instances for a few days, in others for many
months - based on vague suspicions, often predicated on little more than
ethnicity, that they might be involved in terrorism.

Yet not one of them has actually been charged with being a member of Al
Qaeda or with being involved in the attacks of 9/11. Virtually all have
ultimately been cleared by the FBI of any connection to terrorism. Only one
has been convicted of any crime related to terrorism, and even that
conviction has recently been put in doubt by evidence that the prosecution
failed to disclose evidence that its principal witness lied on the stand.

Preventive detention has an ignoble past in the United States. In World War
I, we made it a crime to speak out against the draft, ostensibly to prevent
interference with the war, and more than 1,000 people went to jail. In the
Palmer Raids of 1919-20, the government used immigration law to round up
thousands of left-wing foreign nationals deemed "suspicious" after a series
of bombings - but not one was charged with the bombings. In World War II we
relied on race to intern 110,000 people of Japanese descent, even though
there was no evidence that any of them actually planned to engage in
espionage or sabotage. And in the 1950s and 1960s, the FBI maintained lists
of up to 25,000 "subversives" to be detained in the event of a national
emergency.

Citing these abuses, Congress in 1971 prohibited such detentions, providing
that "no citizen shall be imprisoned or otherwise detained by the United
States except pursuant to an act of Congress." The U.S. 2nd Circuit Court of
Appeals relied on that statute last week in ruling that Jose Padilla, a U.S.
citizen arrested at Chicago's O'Hare Airport, could not be detained on
nothing more than the president's say-so.

Few of the detainees, either in the U.S. or at Guantanamo, have been
American citizens. But as illustrated by the U.S. 9th Circuit Court of
Appeals' simultaneous decision extending judicial review to foreign
nationals at Guantanamo, skepticism about unilateral executive detention
ought not to be limited to U.S. citizens.

Foreign nationals, no less than U.S. citizens, have a right not to be locked
up arbitrarily, based in the Constitution's guarantee that "no person shall
be deprived of liberty . without due process." And indefinite incommunicado
incarceration without charges, trial or hearing is the definition of
arbitrary detention.

Detaining the enemy on the battlefield has of course always been - and
remains - a legitimate tool of war. Neither the 2nd nor the 9th Circuit
ruled to the contrary. But they both insisted that preventive detention
under U.S. jurisdiction must be subject to the rule of law. And the rule of
law, like liberty itself, is not a right reserved for U.S. citizens.