[6 articles on legality of detaining terrorism suspects indefinitely without trial, 3 on a 2011 law and 3 on a 2006 law – counts as 1 reading]
Military given go-ahead to detain US terrorist suspects without trial
Civil rights groups dismayed as Barack Obama abandons commitment to veto new security law contained in defence bill
Chris McGreal in Washington
guardian.co.uk, Wednesday 14 December 2011 23.34 EST
http://www.guardian.co.uk/world/2011/dec/15/americans-face-guantanamo-detention-obama
Barack Obama has abandoned a commitment to veto a new security law that allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay.
Human rights groups accused the president of deserting his principles and disregarding the long-established principle that the military is not used in domestic policing. The legislation has also been strongly criticised by libertarians on the right angered at the stripping of individual rights for the duration of "a war that appears to have no end".
The law, contained in the defence authorisation bill that funds the US military, effectively extends the battlefield in the "war on terror" to the US and applies the established principle that combatants in any war are subject to military detention.
The legislation's supporters in Congress say it simply codifies existing practice, such as the indefinite detention of alleged terrorists at Guantánamo Bay. But the law's critics describe it as a draconian piece of legislation that extends the reach of detention without trial to include US citizens arrested in their own country.
There was heated debate in both houses of Congress on the legislation, requiring that suspects with links to Islamist foreign terrorist organisations arrested in the US, who were previously held by the FBI or other civilian law enforcement agencies, now be handed to the military and held indefinitely without trial.
The law applies to anyone "who was a part of or substantially supported al-Qaida, the Taliban or associated forces".
Senator Lindsey Graham said the extraordinary measures were necessary because terrorism suspects were wholly different to regular criminals.
"We're facing an enemy, not a common criminal organisation, who will do anything and everything possible to destroy our way of life," he said. "When you join al-Qaida you haven't joined the mafia, you haven't joined a gang. You've joined people who are bent on our destruction and who are a military threat."
Other senators supported the new powers on the grounds that al-Qaida was fighting a war inside the US and that its followers should be treated as combatants, not civilians with constitutional protections.
But another conservative senator, Rand Paul, a strong libertarian, has said "detaining citizens without a court trial is not American" and that if the law passes "the terrorists have won".
"We're talking about American citizens who can be taken from the United States and sent to a camp at Guantánamo Bay and held indefinitely. It puts every single citizen American at risk," he said. "Really, what security does this indefinite detention of Americans give us? The first and flawed premise, both here and in the badly named Patriot Act, is that our pre-9/11 police powers were insufficient to stop terrorism. This is simply not borne out by the facts."
Paul was backed by Senator Dianne Feinstein.
"Congress is essentially authorising the indefinite imprisonment of American citizens, without charge," she said. "We are not a nation that locks up its citizens without charge."
Paul said there were already strong laws against support for terrorist groups. He noted that the definition of a terrorism suspect under existing legislation was so broad that millions of Americans could fall within it... [Dunn cut for space reasons]
Human Rights Watch said that by signing the bill Obama would go down in history as the president who enshrined indefinite detention without trial in US law.
"The paradigm of the war on terror has advanced so far in people's minds that this has to appear more normal than it actually is," Malinowski said. "It wasn't asked for by any of the agencies on the frontlines in the fight against terrorism in the United States. It breaks with over 200 years of tradition in America against using the military in domestic affairs."
In fact, the heads of several security agencies, including the FBI, CIA, the director of national intelligence and the attorney general objected to the legislation. The Pentagon also said it was against the bill… [Dunn cut rest for space reasons]
Federal judge: Terror law violates 1st Amendment
Associated Press
http://online.wsj.com/article/APec00ed3607af4f118d8fdad527689eeb.html
May 16, 2012
NEW YORK — A judge on Wednesday struck down a portion of a law giving the government wide powers to regulate the detention, interrogation and prosecution of suspected terrorists, saying it left journalists, scholars and political activists facing the prospect of indefinite detention for exercising First Amendment rights.
U.S. District Judge Katherine Forrest in Manhattan said in a written ruling that a single page of the law has a "chilling impact on First Amendment rights." She cited testimony by journalists that they feared their association with certain individuals overseas could result in their arrest because a provision of the law subjects to indefinite detention anyone who "substantially" or "directly" provides "support" to forces such as al-Qaida or the Taliban. She said the wording was too vague and encouraged Congress to change it.
"An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so," the judge said.
She said the law also gave the government authority to move against individuals who engage in political speech with views that "may be extreme and unpopular as measured against views of an average individual.
"That, however, is precisely what the First Amendment protects," Forrest wrote. [Dunn cut rest for space reasons]
Federal court enjoins NDAA
By Glenn Greenwald
http://www.salon.com/2012/05/16/federal_court_enjoins_ndaa/singleton/
May 16, 2012
… [Dunn cut some for space reasons]
Thus, concluded the court, “plaintiffshave stated a more than plausible claim that the statuteinappropriately encroaches on their rights under the FirstAmendment.”
Independently, the court found that plaintiffs are likely to succeed on their claim that the NDAA violates their Fifth Amendment due process rights because the statute is so vague that it is virtually impossible to know what conduct could subject one to indefinite detention. Specifically, the court focused on the NDAA’s authorization to indefinitely detain not only Al Qaeda members, but also members of so-called “associated forces” and/or anyone who “substantially supports” such forces, and noted:
Plaintiffs have shown a likelihood of success on their vagueness challenge. The terms upon which they focused at thehearing relate to who is a “covered person.” In that regard,plaintiffs took issue with the lack of definition and clarityregarding who constitutes an “associated forces,” and what itmeans to “substantially” or “directly” “support” such forces or,al-Qaeda or the Taliban. . . .
The Government was unable to define precisely what”direct” or “substantial” “support” means. . . .Thus, an individualcould run the risk of substantially supporting or directlysupporting an associated force without even being aware that he orshe was doing so. [Dunn cut rest for space reasons]
[And 3 articles on similar issue from a couple years earlier…]
Justices, 5-4, Back Detainee Appeals for Guantánamo
By LINDA GREENHOUSE
New York Times
June 13, 2008
WASHINGTON — The Supreme Court on Thursday delivered its third consecutive rebuff to the Bush administration’s handling of the detainees at Guantánamo Bay, ruling 5 to 4 that the prisoners there have a constitutional right to go to federal court to challenge their continued detention.
The court declared unconstitutional a provision of the Military Commissions Act of 2006 that, at the administration’s behest, stripped the federal courts of jurisdiction to hear habeas corpus petitions from the detainees seeking to challenge their designation as enemy combatants.
Writing for the majority, Justice Anthony M. Kennedy said the truncated review procedure provided by a previous law, the Detainee Treatment Act of 2005, “falls short of being a constitutionally adequate substitute” because it failed to offer “the fundamental procedural protections of habeas corpus.”
Justice Kennedy declared: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”… [ Dunn cut rest of article for space reasons…]
Many Rights in U.S. Legal System Absent in New Bill
By R. Jeffrey Smith
Washington Post Staff Writer
Friday, September 29, 2006; A13
The military trials bill approved by Congress lends legislative support for the first time to broad rules for the detention, interrogation, prosecution and trials of terrorism suspects far different from those in the familiar American criminal justice system.
President Bush's argument that the government requires extraordinary power to respond to the unusual threat of terrorism helped him win final support for a system of military trials with highly truncated defendant's rights. The United States used similar trials on just four occasions: during the country's revolution, the Mexican-American War, the Civil War and World War II.
Included in the bill, passed by Republican majorities in the Senate yesterday and the House on Wednesday, are unique rules that bar terrorism suspects from challenging their detention or treatment through traditional habeas corpus petitions. They allow prosecutors, under certain conditions, to use evidence collected through hearsay or coercion to seek criminal convictions.
The bill rejects the right to a speedy trial and limits the traditional right to self-representation by requiring that defendants accept military defense attorneys. Panels of military officers need not reach unanimous agreement to win convictions, except in death penalty cases, and appeals must go through a second military panel before reaching a federal civilian court.
By writing into law for the first time the definition of an "unlawful enemy combatant," the bill empowers the executive branch to detain indefinitely anyone it determines to have "purposefully and materially" supported anti-U.S. hostilities. Only foreign nationals among those detainees can be tried by the military commissions, as they are known, and sentenced to decades in jail or put to death… [Dunn cut some for space reasons]
Georgetown University law professor Neal Katyal said the bill's creation of two systems of justice -- military commissions for foreign nationals and regular criminal trials for U.S. citizens -- may violate the Constitution's 14th Amendment, which requires equal protection of the laws to anyone under U.S. jurisdiction.
"If you're an American citizen, you get the Cadillac system of justice. If you're a foreigner or a green-card holder, you get this beat-up-Chevy version," he said.
New take on old right of habeas corpus
Wednesday, October 18, 2006
BY DAVID G. SAVAGE
LOS ANGELES TIMES
WASHINGTON -- The military tribunals bill signed by President Bush yesterday marks the first time the right of habeas corpus has been curtailed by law for millions of people in the United States.
Although the debate about the law focused on trials at Guantánamo Bay, it also takes away the right to go to court for immigrants and noncitizens in the United States -- including more than 12 million permanent residents -- if they are declared "unlawful enemy combatants."
No one has suggested the Bush administration plans to use its newly won power to round up large numbers of immigrants.
But before yesterday, the principle of habeas corpus meant that anyone thrown into jail had a right to ask a judge to hear his case. He also had a right to go free if the government could not show a legal basis for holding him.
Many legal scholars predict the law's partial repeal of habeas corpus will be struck down as unconstitutional… [Dunn cut for space reasons]
The Constitution makes clear that habeas corpus can be "suspended," but only during extreme emergencies. It says, "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."
In the most famous example, President Abraham Lincoln suspended habeas corpus during the Civil War.
The courts have not always come to the aid of people who say they are being wrongly detained by the government. During World War II, the Supreme Court upheld the government's internment of hundreds of thousands of Japanese- Americans on the West Coast.
Bush administration lawyers have said this, too, is wartime and the attacks of Sept. 11 were akin to an invasion. Moreover, Congress has now endorsed the president's power to hold "enemy combatants."
But others say the court will look first to the words of the Constitution.
This limited repeal of habeas corpus fails all three tests, said John D. Hutson, a former judge advocate general of the Navy and dean of the Franklin Pierce Law School in New Hampshire.
"This is not a time of rebellion. There has not been an invasion, and there's no evidence the 'public safety' requires it," he said. "Let's not kid ourselves. This is not about an invasion. It is about the embarrassment of holding people who, if they got to court, could show they should not have been held."