Terry Karney (pecunium) wrote,
Terry Karney
pecunium

Churches

I, in a way, went to church yesterday. Perhaps a bit of a cathedral, actually. It was the US District Court, Judge Kathleen Forrest presiding. She was hearing arguments as to whether she ought to issue a permanent injunction against the clauses in the NDAA which allow for indefinite detention for those who provide, “substantial support” to a set of ill-defined terrorists, under the AUMF of Sept. 2001.

Because of my new phone (see my previous entry) I was a little late. The courtroom was full. I had to stand for a few minutes until someone left. My take: the gov’t didn’t make a very strong case. They dragged in an irrelevant question of standing {City of Los Angeles v Lyons 461 U.S. 95 (1983)}. Lyons is a tricky case, because the question was not quite parallel. Lyons was asking for an injunction against the LAPD’s use of chokeholds. In the preceding eight years 16 people had died as a result of that use of chokeholds. The majority opinion said that Lyons had no good reason to fear he would again be subjected to such a chokehold. But this is a 1st Amendment issue, so standing can extend to third parties, and the gov’t is asking to be allowed to move on with a policy which the courts have already accepted, in principle, that a reasonable fear might exist. So I don't think the principle in Lyons; that the "reasonable fear" didn't exist in the future, applies.

Moreover what the gov’t did not say was that a broader interpretation than the present administration says it is taking, couldn’t be imposed by a future administration. One of the principles of military intelligence is that one cannot plan for what an enemy will do, only what that enemy can do. The law is vague, and it allows for permanent detention for certain types of advocacy.

What US Atty was arguing was that an injunction was the wrong course to take, at all. Anytime the word injunction was used, he repeated that it was the Government’s opinion that the judge shouldn’t even be considering it, because it was outside her legitimate scope of action. He also said that since it had always been asserted that such a power exists, it was settled law; as longstanding practice, even though he said it had never been exercised. He made reference to Padilla; saying that his case was proof of the lack of merit to the plaintiff’s claims. Padilla, he said, had been held in military custody, but turned over to the civil authority for trial.

He didn’t mention that it was only when the courts were about to look into the question of the legality of that detention that Padilla was turned over; and that his being turned over was used to quash the question. What the Gov’t argued instead was that appeals to the right of habeas corpus were an adequate remedy. No one raised the point that the Gov’t has argued that people in military detention are POWs (of which a great deal was made by the US Atty) and as such would not be entitled to habeas corpus
Her honor cited Ex parte Milligan which said that when the civil courts are functioning, even when there is military action inside the US, they are to be used. Military commissions organized during the late civil war, in a State not invaded and not engaged in rebellion, in which the Federal courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offence, a citizen who was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval service. And Congress could not invest them with any such power.

She didn’t quote this passage, which also seems relevant (and which I hope the plaintiffs used in their brief) No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people, for it is the birthright of every American citizen when charged with crime to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and, if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be or how much his crimes may have shocked the sense of justice of the country or endangered its safety. By the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people.

The US Atty tried to use Ex parte Quiran to say that citizens have been subjected to military detention, and trial, in time of war. They glossed that the only US citizen in the case had been actively taking part in a military operation on US soil when captured. He wasn’t just, “substantively supporting” he was actively enlisted in the Werhmact, and as such to be treated as an enemy combatant.

All in all, I think the plaintiffs oral arguments were better. I don’t know what the briefs look like. I do know that I had personal knowledge which belied one of the claims of the US Atty. I’d say the odds are with the granting of the injunction, based on the Judge’s references to Federalist 78, the Lujan tests, favorable citations from Justice Taney (which got a laugh from everyone before the bar, and a few of us behind it), and a long passage she cited from the dissent of Justice Jackson in Korematsu But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. This is [323 U.S. 214, 245] what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it.

So I am hopeful that this round will go the right way. What the Second Circuit, and then the Supreme Court will say is still an open question.
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