The Militant Libertarian

I'm pissed off and I'm a libertarian. What else you wanna know?

Saturday, October 21, 2006

An execution of the American system of justice

Go to the original here: I recommed you read the original story, especially the comments by "keith" right after it.


The news photos of President Bush signing the latest anti-terrorist measure show a line up of dignitaries whose unsmiling countenances were properly grim for witnessing the execution of the American notion of justice.

Obviously some in the gathering, like Attorney General Alberto Gonzales and Vice President Cheney, don't see it that way. For them the potential shredding of civil liberties is necessary to save the nation from the terrorist hordes waiting to destroy us. One doesn't smile in triumph when the president is saving the lives of millions of Americans.

Despite the violence it does to our constitutional principles, without this latest authorization to conduct questionable interrogations, strip detainees of their right to examine the evidence against them, exclude evidence gained through coercion and challenge their incarceration, another Sept. 11, 2001, could be just around the corner. Or so we are led to believe.

"It is a rare occasion when a president can sign a bill he knows will save American lives," Bush said. "I have that privilege this morning."

But one would hope that the somberness of some of those in attendance, like Sens. John Warner, R-Va., and Lindsey Graham, R-S.C., may have stemmed from an uncomfortable realization that their earlier fight against passage of a bill they considered dangerously excessive was in the end futile and unrewarding. There was little compromise when all was said and done, a fact certified by the noticeable absence of the third member of the initial Senate opposition, John McCain, who skipped the signing ostensibly to campaign in Wisconsin for a GOP House candidate.

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Thursday, October 19, 2006

Trick or Treat Elections

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Wednesday, October 18, 2006

Jose Padilla and the Military Commissions Act

Original Published here:

by Jacob G. Hornberger, October 18, 2006

Anyone who hoped that U.S. military detention of Americans accused of terrorism expired with the transfer of American citizen Jose Padilla from military custody to Justice Department custody have seen their hopes dashed by the Military Commissions Act that the president signed into law yesterday. Although the act limits to foreign citizens the use of military tribunals and the denial of habeas corpus, any person, including American citizens, can still be labeled and treated as an “unlawful enemy combatant” in the war on terrorism.

What does that mean for the American people? It means the same thing it did for Jose Padilla. You’ll recall that Padilla was arrested in Chicago for terrorism and transferred to military custody, where, according to Padilla, he was tortured and involuntarily injected with drugs.

The government’s position is that since the entire world is a battlefield in which the war on terrorism is being waged, U.S. officials now have the power to arrest any American suspected of terrorism, place him in military custody, and subject him to the same “unlawful enemy combatant” treatment that Padilla received, until the war on terrorism has finally been won, no matter how long that takes.

You’ll recall that the government’s position was that Padilla, as an “unlawful enemy combatant” suspected of having committed terrorist acts, was not entitled to the procedural rights guaranteed to criminal defendants in the Bill of Rights, including the rights to counsel, due process, and trial by jury.

The district court ruled in favor of Padilla at his habeas corpus hearing, but the Second Circuit Court of Appeals reversed that decision, upholding the government’s “unlawful enemy combatant” argument for Padilla and, by implication, all other Americans.

Before the Supreme Court could rule on Padilla’s appeal from the Second Circuit’s decision, the government announced that it wished to transfer him from military control to federal-court control on the basis of a grand jury indictment charging him with terrorism. The Supreme Court permitted the transfer and declined to hear Padilla’s appeal because the case was now “moot,” given that Padilla was no longer being held by the military but instead was being held by the Justice Department as a criminal defendant. That left the Second Circuit decision upholding the “unlawful enemy combatant” designation intact.

Even if Padilla is acquitted in the federal-court action, there is little doubt that the Pentagon will immediately take him back into military custody as an “unlawful enemy combatant” in the war on terrorism, requiring Padilla to once again embark, in a habeas corpus proceeding, on a long legal journey to the Supreme Court.

Currently, under the Second Circuit’s decision in Padilla, and now also under the Military Commissions Act, the president has the power to order the military arrest and incarcerate any number of Americans suspected of terrorism. Americans would still have the right to file a petition for writ of habeas corpus in federal court because the Military Commissions Act cancelled that right only for foreigners, not Americans. Keep in mind, however, that a habeas corpus hearing is not a full-blown trial to determine guilt or innocence but is simply designed to determine whether the government has legal justification for holding a prisoner. All the government would have to do at the habeas corpus hearings is provide some evidence that the Americans it is holding in military custody have engaged in some act of terrorism and then cite the Second Circuit opinion and the Military Commissions Act in support of its power to continue detaining them.

Of course, the cases would ultimately go to the Supreme Court, but that would inevitably entail a lengthy delay, a period of time during which lots of Americans could be tortured, abused, and even “accidentally” killed, just as foreign “unlawful enemy combatants” in U.S. military custody have been. Moreover, there is no guarantee that the Supreme Court will rule against the government.

How does an American who is labeled an enemy combatant ultimately get tried? Answer: he doesn’t. Under the Military Commissions Act, trial by military tribunal is limited to foreigners. So, even though Americans still have the use of habeas corpus (so far) to test whether their detention is lawful, if the Supreme Court ultimately upholds the “unlawful enemy combatant” designation for people accused of terrorism, Americans will be returned to indefinite military custody as “unlawful enemy combatants” if the government has provided some evidence of terrorism at the habeas corpus hearing.

The irony is that while foreigners will be accorded the kangaroo tribunal treatment, Americans accused of terrorism will continue to languish in military prison indefinitely without the benefit of a trial. Of course, given that the tribunals will have the power to impose the death penalty, Americans might do well not to complain about their indefinite detention.

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Monday, October 16, 2006

Tales from an American Gulag

by Anthony Hargis

You meet the strangest kind of people in jail. For instance, people who
occasionally give in to a useless or self-destructive habit, or people who,
wittingly or unwittingly, associate with questionable characters. It's not
that these people are unusual. Probably every one of your neighbors would
fit into one of these categories. What makes these people strange is that
they sit in jail. I recently had an opportunity to sit in jail myself, for
five and a half months, and learn their stories.

Every time I would collect an inmate's story, I would tell him my "policy":
that I would collect details of his story as told by himself and then have
someone on the outside verify details from court filings and police reports.
Only one inmate flinched (and ran) when I explained this policy, so I have
not included his story. All others had no reaction when I explained it,
which indicated to me they had no fear of being contradicted.

Two other factors testify to the truthfulness of these men's stories: the
intensity that accompanied their recitation and their self-criticism. When
men tell of events that they feel very strongly to be true, intensity
resonates in their voice and fire burns in their eyes. I heard the
intensity and I saw the fire.

When men explain events of their lives that could be construed as shameful
behavior, it is generally safe to take their testimony as truth. For, when
a man relates shameful behavior, he expects to lose a friend, an
opportunity, or an advantage. The only thing to gain from such an
explanation is truth - and its consequences. On the other hand, when men
relate stories to embellish their appearances, their words are to be
discounted. That type of information must come from third parties.

These men knew they had not led perfectly clean lives, and they did not
hesitate to tell me about their mistakes, their remorse, and the penalties
they knew they had to pay to reform--or rather, the penalties they thought
they had to pay. Their presence in jail represented penalties they never
expected, and as a result, made them very angry men.

Although I told inmates that I would verify their stories from outside
sources, I have not done so. The simple explanation is that my situation
leaves me with no time and without any resources to do so. Instead,
verification will have to be done by others. For those so inclined, a
helpful piece of information is that all these men, save Nguyen, were housed
in the same module as I (3A of the Santa Ana Jail) during my incarceration
from March 15th to August 31st of the year 2003. Nguyen was in the same
building, but I don't remember the exact module.

Although these men unhesitatingly related their stories to me, many of them
would later come to me and ask me not to publish their stories because they
feared retaliation from the authorities. From these men's stories, a common
purpose of the government became clear. Every time a victim attempted to
assert a right, the government would multiply the penalty. For example, my
cellmate Saul would ask two times to speak to a lawyer. As a result, his
penalty would go from no time and deportation to 30 months and deportation.
Several of these men related that, when they asked for a jury trial, the
government threatened them with 15 years, while a confession of guilt would
bring only three years jail time with three to six years of probation.

These men are short of vision and therefore easily intimidated. They plead
guilty and accept the government's offer. What they fail to see, however,
is how easily a probation officer can fabricate a probation violation, and
turn the final three months of probation into a new package of one or two
years of jail time followed by six more years of probation.

But, I am ahead of myself. Let me tell their stories. Then I'll briefly
explain why I had to be put in jail:

Stan (not his real name) had previously served time for drug use or
possession. He was now in jail for a probation violation, due to one of his
drug tests being "dirty." When someone violates probation, he is taken
before a judge to determine new penalties. At this hearing, Stan's
probation officer (P.O.) asked for the maximum, which was on the order of 12
to 18 months of jail time, along with an additional three years of

Stan was a high performance character. He owned a mortgage company, with
two or three offices in Southern California . At the meal table, he was
irrepressible, as he regaled everyone with locker-room stories. He probably
thought he was funny, but in truth, and I admit this reluctantly, he was
closer to hilarious.

Unfortunately for Stan, his P.O. was on a power trip. After Stan's "dirty"
test, she had an arrest warrant issued and held on to it for three or four
weeks. In the meantime, Stan visited her office two or three times. She
could have executed the arrest warrant at any of these visits. Instead, she
sent a sheriff's deputy to Stan's office to arrest him there, so his ten to
15 employees and one or two customers could witness the spectacle.

Apart from his useless habit, Stan is a sensible man. If his P.O. had
requested him to come to her office to be arrested, he would have gone. He
knew the alternative, and had nowhere to run.

Michael delivered firewood in the Big-Bear area for a living. He likes to
use one and a half grams of speed every two weeks. One day an acquaintance,
Vinnie, calls and wants Mike to obtain some speed and a gun for a "friend"
who needs the speed to reduce pain from an illness. Vinnie says the friend
owns a machine shop and has so much pain from cancer that he has to use
speed to get out of bed and go to work. He also wants a pistol for target
practice, something that he enjoys in his spare time.

Vinnie assures Mike that the friend has no criminal intent. Mike feels
sorry for the "friend" and agrees to make arrangements as a favor. The deal
includes 112 grams of speed and a registered pistol, both supplied by Spike.
They all meet in a parking lot. Mike never sees or touches the cash,
speed or gun. The meeting is filmed and audio taped by law enforcement
agents. Mike and Spike are arrested. Mike is now looking at 200 to 280
months cut out of his life.

This was not Mike's first drug-induced disaster. Several years earlier, he
was stopped on the road with his wife and her girlfriend. The cop found a
bag of marijuana under Mike's car seat. The cop asked who owned the bag.
No one answered. The cop explained that if no one claimed it, he would
arrest all three for possession of it. Mike then volunteered that the bag
belonged to him, and he was immediately arrested. I don't remember his jail
time on this charge, it may have been one half or a full year. I do
remember that, as he reported, his wife left him the day he went to jail.

All of this has left Mike a bitter man, and I don't know if he has yet
identified the source of his troubles.

(Vinnie was used in similar routines to set up four others and send them to
jail. He got into this "profession" as a result of being arrested for
selling/possessing drugs and explosives. The government offered to drop
charges if he would help them entrap gullible drug users.)

Danny worked eight years as general manager of a car dealership. He quit
and was hired as general manager of a start-up restaurant in an effort to
become self-employed. He was a good friend of the owner, or so he thought.
Unfortunately he didn't know all he should have known about the owner, who
was under surveillance for drug dealing. Danny was arrested, on the basis
of a taped phone conversation, along with eight others on drug charges --
seven on conspiracy charges.

One of Danny's responsibilities was to find suppliers for menu items. In
this connection, Danny called the owner to tell about a potential supplier
for the menu item, chili poppers. The phone conversation was taped and the
so-called authorities construed chili poppers as a reference for some kind
of drug. It was all that was needed to throw Danny into the conspiracy net.

Danny appealed to a friend to help arrange bail. The friend agreed to put
up his house as security. But there was a problem -- the friend had a prior
conviction for drug use. The prosecutors informed his friend that he would
be questioned about it at the bail hearing and arrested as a co-conspirator.
Of course, the friend backed out, and the bail hearing was cancelled.

A trial was scheduled for October. It was eventually postponed to February
to give the government more time to dig up (or manufacture) evidence to
support its charges, as the evidence on hand was flimsy at best. Or
perhaps prosecutors were using the extra time to look for a judicial
assassin who would conveniently overlook such deficiencies in their case.
Regardless, they were ultimately successful in sending Danny to prison.

Saul is about 32 years old. He was born in Mexico and moved to the U.S.
with his mother in 1978 with a visa. He had become a successful independent
handyman. He had three or four serious charges as a teenager. He attempted
to run down a cop with a car when he was drunk, he was arrested for driving
on a suspended driver's license, and he assaulted a non-paying employer who
did not approve of his daughter dating Saul. He also dealt drugs while he
was a student in high school, but told me that he discontinued this
"business" after leaving school.

In an earlier case, a public defender extorted a false confession that Saul
illegally entered the U.S. in 1978. He was deported soon thereafter, but
later returned. Once Saul was back in the U.S. , he managed to build a
successful home repair business. He did numerous construction favors for
relatives (including a brother who is a sheriff's deputy). These favors,
however, did not prevent some of his relatives from becoming jealous. They
simply could not understand how Saul could become so successful. He had
bought a home on about two acres of land in San Bernardino County . He had
a swimming pool, a boat, and a motor home, among other things. He obtained
some of these items as trades for work he had done for customers. But
baffled by lack of understanding and blinded by jealousy, one of Saul's
relatives reported to the FBI that Saul was dealing drugs. The FBI placed
surveillance on him for two months. They couldn't find any evidence of drug
activity. He was arrested anyway and charged with illegal entry.

I shared a cell with Saul for five and a half months. During that entire
time, he would constantly volunteer for work details at all hours of the day
and would routinely clean our cell. He seemed to be his happiest when
working, or when studying his high school GED lessons. Like all
self-motivated people, he did not have much respect for silly rules. He
would frequently get "written-up" for violations of such - having too many
t-shirts, or keeping condiments (one ounce packages of catsup, mustard, or
grape jelly) in our cell. These write-ups included disqualification from
work details. However, he worked so well that most of the time the guards
would overlook these write-ups and send him out on the work details anyway.

Within hours after his current arrest, he was brought before an INS review
officer. He was offered deportation with no jail time. When he requested
to talk to a lawyer, he was returned to jail. Within a week he was brought
before a review officer a second time, and offered six months and
deportation. He still wanted to talk to a lawyer. He was returned to jail
again. Within another week he was brought before a review officer a third
time, and offered 30 months and deportation. He was told that at the next
interview, he would be offered 37 to 72 months and deportation. He accepted
the 30 months, and was promptly returned to jail.

What was Saul's crime? Neither he nor his mother, from the time of their
entry into the United States in 1978, took welfare. That was the
government's claim, of course, but it was both false and hypocritical. From
our earliest history books we learn that one of the devices used by
governments to suppress the rebellious or independent mind is to quarter
strangers (sometimes soldiers, sometimes aliens) among those who display too
much independence, too much integrity, or ask too many of the wrong
questions. Accordingly, the federal government has opened our borders and
invited every freeloader in the world to come and eat out the substance of
the American worker.

So why was Saul put in jail? Allegedly, it was payback time for both the
American taxpayer and for Saul. For taxpayers, they received "payback" for
the burden of welfare payments Saul and his mother never occasioned. For
Saul, he had to "pay" for all the welfare that neither he nor his mother
took. Now, the government will extort some $30,000 to $50,000 a year from
American workers to keep Saul in jail, depriving him of his liberty and
destroying his business in the process.

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