"Emancipate yourself from mental slavery, none but ourselves can free our mind.” - Bob Marley

Tuesday, August 12, 2008

Preserve, Protect and Defend the Constitution of the United States

John McCain is not fit to be president of the United States.

The title of this post comes from the Presidential Oath of Office. It's full text is:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
George Bush has grossly violated this oath. The Supreme Court has sent him back multiple times, telling him to fix this. Instead of fixing his behaviour to adhere to the Constitution, Bush, with Congress's incomprehensible complicity, continues to keep trying to square the circle, by passing law after law, seeking somehow to make the blatant Statism constitutional. It will not work - it cannot work.

In the latest go around, the Military Commissions Act, John McCain's culpability is total.

John McCain is not fit to be president of the United States.

I don't know whether Obama is fit to be president, but I know that McCain is not. I do know that Obama voted against and spoke out against this abomination.

MaxedOutMama has covered part of this well - as related to the McCain-Feingold act. (I believe she has found reason to dislike Obama even more, especially here, however.)

To add to the infamy of McCain-Feingold's blatant trampling of the 1st Amendment, I give you the Bush-McCain undermining of the right to Habeas Corpus and right to trial by jury before deprivation of liberty.

For what Bush/McCain America has come to, I give you the case of Jose Padilla.

Padilla is a U.S. Citizen. He was arrested in Chicago, which, (in spite Mayor Daley's best efforts), is still part of the United States.

Here is what happened next:

When suspected Al Qaeda operative Jose Padilla was whisked from the criminal justice system to military custody in June 2002, it was done for a key purpose – to break his will to remain silent.

As a US citizen, Mr. Padilla enjoyed a right against forced self-incrimination. But this constitutional guarantee vanished the instant President Bush declared him an enemy combatant.

...

Padilla was delivered to the US Naval Consolidated Brig in Charleston, S.C., where he was held not only in solitary confinement but as the sole detainee in a high-security wing of the prison. Fifteen other cells sat empty around him.

The purpose of the extraordinary privacy, according to experts familiar with the technique, was to eliminate the possibility of human contact. No voices in the hallway. No conversations with other prisoners. No tapping out messages on the walls. No ability to maintain a sense of human connection, a sense of place or time.

In essence, experts say, the US government was trying to break Padilla's silence by plunging him into a mental twilight zone. Padilla was not the only Al Qaeda suspect locked away in isolation. Although harsh interrogation methods such as water-boarding, forced hypothermia, sleep deprivation, and stress positions draw more media attention, use of isolation to "soften up" detainees for questioning is much more common.

...

According to defense motions on file in the case, Padilla's cell measured nine feet by seven feet. The windows were covered over. There was a toilet and sink. The steel bunk was missing its mattress.

He had no pillow. No sheet. No clock. No calendar. No radio. No television. No telephone calls. No visitors. Even Padilla's lawyer was prevented from seeing him for nearly two years.

For significant periods of time the Muslim convert was denied any reading material, including the Koran. The mirror on the wall was confiscated. Meals were slid through a slot in the door. The light in his cell was always on.



So, the government can throw you in a hole that is closer to a sensory deprivation chamber than it is to a normal jail cell and leave you there for 2 years. Where is that in the Constitution? NOWHERE.

In the Constitution we are guaranteed the Writ of Habeas Corpus, where the government must bring the accused into a Court of law and make its case for holding the accused.

The Constitution provides that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it."

We are not in a state of rebellion. We are not being invaded. And Bush has not suspended the writ in any legal fashion - he has arrogated to himself the privilege of pretending it doesn't exist whenever he feels like it. Or whenever the Secretary of Defense feels like it. Or whenever anybody so delegated by either of those to feel like it - because that's the range of people who can declare you an unlawful enemy combatant in the MCA.

No American is safe while the laws of the Bush regime are on the books. And John McCain helped very much to put those laws there.

So what happened to Jose Padilla? He was *never* even tried for the "Dirty Bomb" plot.

But he did become hopelessly mentally ill, courtesy George Bush.

"People who have known him and loved him before his military detention don't feel they can even bear to see him because he is so clearly mentally ill."

...
In May 2002, a month before he entered the brig, Padilla was taken into custody, held in New York City, and given access to a court-appointed lawyer, Donna Newman. Two years later, when the Bush administration first allowed Padilla to see his lawyers again, Ms. Newman and another attorney visited.

"There is no question he had changed," Newman says. "Prior to his being held in South Carolina there was no reason to suspect that he had any kind of [mental] problem."
...
His mother said she had visited him eight or nine times but that it was becoming too hard emotionally to "see Jose that way." She added that he did not have facial ticks prior to being incarcerated.

...

Some psychological tests place him on par with individuals who have suffered brain damage, according to the reports prepared by Hegarty, Grassian, and Patricia Zapf, a New York psychologist and psychology professor at John Jay College of Criminal Justice in New York.

Padilla's treatment in the brig is classified as a state secret.

...

Padilla's mother became increasingly anxious. Finally she confronted her son: "Did they torture you?" she asked.

"He turned towards her, his face grimacing, his eyes blinking, and in panic and rage he demanded: 'Don't you ever, ever, ask that question again,' " the Grassian report says.

...
The government never presented any part of the alleged "dirty-bomb" plot in the case, and some analysts say the government's cobbled-together case against Padilla is weak.
...

It is unclear what Padilla thinks about the possibility of an acquittal in Miami. But Hegarty says that if Padilla's lawyers win the case it could mark the worst possible outcome for him. That's because the president might try to move Padilla back to his old cell in the brig.

"There is no question in my mind that his first and most important priority is to not go back to the brig," Hegarty says. "This is what leaves me chilled, if one were to offer him a long prison term or return to the brig, he would take prison, in a heartbeat."

She adds, "He told me more than once that if he went back to the brig he knew what he had to do." Her notes reflect Padilla's hints of suicide.

[Emphasis added.]

That's right folks - even if acquitted, Padilla faced incarceration for life due to his designation as an unlawful enemy combatant.

Same deal for Hamdan:

The White House claims it can still imprison for life anyone the president designates as an enemy combatant, as Bush has Hamdan, even if the detainee is acquitted or has served his sentence.

That's Bush's America. That's McCain's America. No way in HELL is that MY America.

.

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5 comments:

Geoffrey Britain said...

Your central assertion or conclusion:

“John McCain is not fit to be president of the United States.”

The primary ‘evidence’ you cite as proof of this assertion is the:

Bipartisan Campaign Reform Act of 2002 (BCRA, McCain–Feingold Act)

And the: United States Military Commissions Act of 2006 (MCA)

As secondary ‘evidence’ you detail the case of Jose Padilla, US citizen and lawfully* declared to be an “unlawful enemy combatant”.

Your initial conclusion is that the right to Habeas Corpus and right to trial by jury for every American are inherently threatened by the BCRA and MCA.

Your final conclusion is that all of this renders McCain unfit for the Presidency.

There is much that you do not address. You have omitted anything that might lend support to an opposing view, so by definition, your post is biased, as you do not even bother to rebut obvious points of contention.

Unspoken but plainly implied is that in your view, the US Constitution is, if necessary, a suicide pact. That if, in order to maintain the Bill of Rights inviolability, no matter how brief the suspension, tens of millions of innocents must die…then so be it.

You characterize the McCain–Feingold Act as ‘infamous’ and a “blatant trampling of the 1st Amendment”.

Nowhere do you mention its primary purpose: to prevent the use of great sums of money to deceitfully sway the electorate at the last minute in an election with mass advertising. Evidently, the buying of the Presidency is not of great concern. At least, not if it means a ‘temporary and specific’ curtailment of the 1st amendment.

Nor do you acknowledge that Bush himself when signing it, specifically stated that it was an imperfect act of legislation.

Nor do you mention that “Provisions of the legislation were challenged as unconstitutional by a group of plaintiffs led by then-Senate Majority Whip Mitch McConnell, a long-time opponent of the bill. In December 2003, the Supreme Court upheld most of the legislation in McConnell v. FEC.”

Nor do you mention that, “In June 2007 the U.S. Supreme Court held, in Federal Election Commission v. Wisconsin Right to Life, Inc., that BCRA's limitations on corporate and labor union funding of broadcast ads mentioning a candidate within 30 days of a primary or caucus or 60 days of a general election are unconstitutional as applied to ads susceptible of a reasonable interpretation other than as an appeal to vote for or against a specific candidate.” (my emphasis)

Thus McConnell’s concern’s and Bush’s reservations were addressed.

Perhaps you don’t mention this because it greatly undermines your argument?

Then there’s your excoriation of the MCA, your ‘concluding proof’ of McCain’s unfitness…

The acts stated purpose was:
"To authorize trial by military commission for violations of the law of war, and for other purposes."

It specifically states: "Any alien, unlawful enemy combatant is subject to trial by military commission under chapter 47A – Military Commissions (of the Military Commissions Act of 2006)
The Act also defines an alien as "a person who is not a citizen of the United States"
It states that: "The term 'unlawful enemy combatant' means —
(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaida, or associated forces); or
(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal* established under the authority of the President or the Secretary of Defense." (my emphasis)

Therefore for any US Citizen to be denied Habeas Corpus and trial by jury under this act, that person must be found to be an unlawful enemy combatant by a lawful tribunal. I am confident that Sen. McCain would fully agree with this view.



It is fair to ask you if, under any circumstances, you would acknowledge that an American citizen could be an enemy combatant.

If you do acknowledge such, then automatically they would be unlawful, as they would not be wearing a uniform identifying them as the enemy. They would be a traitor and an enemy agent.

If they are an ‘unlawful enemy combatant’, then they do not have the right to Habeas corpus of any of the Bill of Rights because those are not rights granted to foreign agents or civilian enemy combatants. Nor do the provisions of the Geneva Convention apply.

The Supreme Court’s striking down the MCA and granting Habeas Corpus to detainees at Guantanamo flies in the face of precedent and greatly hampers the WoT.

It appears that in the WoT you agree that there is no war, that it is a misnomer applied to a criminal action.

Whether intentional or out of ignorance, that position would and does reveal a profound misunderstanding of the Geo-political factors supporting Islamic radicalism.

Jose Padilla could not be declared an unlawful enemy combatant in 2002 because the Act did not yet exist. He did however present a clear and present danger to the US…what to do in such a situation?

They put him on ice. Yes, it was at best, legally questionable. But if you take Presidential responsibility seriously, letting him go was not an option. The President cannot say, gee sorry folks but what can I do? My hands are tied…looks like our Constitution IS a suicide pact.

As you noted, the President is charged with “to faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Preserve, protect and defend equally refers to the ‘people’ for without ‘the people’ the US Constitution is meaningless.

You evidently take the come-hell-or-high-water-‘principled’ approach toward Islamic terrorism and that if tens of thousands must die as a consequence, oh well.

A case of, Que Sera, Sera…what must be, must be.

Predictably, you will of course deny this but that is the highly probable result of letting terrorists go on a strictly questionable legal basis. Those who advocate positions bear the responsibility for their consequences.**

At base, our differences appear to center upon our views as to the seriousness of the threat Islamic radicalism, rogue nations and the ‘enabling’ nations pose to our country AND to the placing of a higher priority upon ‘principle’ than the lives of millions.

* By definition, a lawful tribunal cannot determine that a person is an unlawful enemy combatant without evidence showing that person to have “engaged in hostilities or who has purposefully and materially supported hostilities against the United States”

**Yes, I realize that this applies to me as well. In the civil war, many predicted that Lincoln’s suspension of habeas corpus and military trials would have consequences as dire as those you fear. It didn’t happen. But I guarantee you that if we let the Islamic terrorists try often enough, NY’s 8 million will cease to exist and that will only be the beginning.

Carl said...

You are faulting McCain for following the Supreme Court's decision in Ex Parte Quirin, 317 U.S. 1, 40 (1942), holding that citizens who become enemy combatants need not be afforded criminal law protections, including Habeas, but may be judged by military tribunals under military law. And you seem not to remember that Padilla's case was reviewed by the Supreme Court. In other words, the system worked.

bobn said...

Carl,

Padilla's case was not really reviewed, in that it failed for the trivial issue of venue (having been filed from New York, but Padilla had been moved to SC). A second review was short-circuited when the Bush Administration, rather than face such review, suddenly did a sudden about-face and tried this too-dangerous-for-civil-court terrorist in a civil court, specifically to avoid SCOTUS review. The system did not work, it was gamed.


Doesn't the fact that the White House claims to be able to detain those it designates as enemy combatants for life, even after acquital, or serving of sentence, bring up the hairs on the back of your neck? Reading this case, as well as Al-Marri, brings back the memories of the descriptions of consignment to the Gulag.

That seems like way too much government power to me.

Doesn't it bother you that Padilla was never charged with the infamous dirty bomb plot? If they hadn't even the evidence to support indictment on that, what was this all about in the first place?

Carl said...

bobn:

You've got it exactly backwards. Going to trial with easy-to-prove charges while dismissing the more grave is a typical feature of the criminal justice system. There's a higher standard of proof in that system as compared to military justice. And it's another reason why criminal justice is the wrong response to terrorism--along with the most important issue: the most important need with captured terrorists is to interrogate to sniff out possible terrorist plots against the United States.

Carl said...

As I have repeatedly noted, you are assuming that enemy combatants who are citizens must be given full Constitutional criminal law protections, including Habeas. You ask "where is that in the Constitution?," but refuse to read the relevant case law with the answer. Quit assuming your conclusion.

About Me

I'm a 57 year old geek. I voted Democratic for 20 years, because I disliked the Republicans more. But now, nobody really speaks for me. I'm for Guns, for more correct government regulation of the financial world, against illegal immigration and amnesty. (in 2008 I ended up voting Republican - too many questions about Obama, and voting against anybody who voted for TARP 1.) In 2010 I voted a stright republican ticket because the Democrats have completely lost their minds.