5TH AMENDMENT, SCHMIFT AMENDMENT
Attorney General John Ashcroft was on Fox News Sunday this morning. Brit Hume asked him about the Patriot Act and this particular exchange just floored me:
HUME: Let me ask you about a particular case that I think has troubled some people: Jose Padilla. An American citizen, captured on American soil, held now for however many months it’s been, unable to talk to lawyers. And a lot of people look at that and say, “If I’m an American citizen, that shouldn’t happen to me.”
What do you say to that?
ASHCROFT: Well, first of all, he’s not held in the judicial system. He’s held as an enemy combatant. And he was …
HUME: I understand that, but, I mean, someone could — presumably someone less scrupulous than I’m sure you feel this administration is being could pick me up and hold me as an enemy combatant, could he not?
ASHCROFT: Well, I don’t think there’s any basis for doing that. I …
HUME: Well, I understand that, but, I mean, who would decide? There would be no judge involved, there’s no review here. It seems like a very — a power that would be subject to abuse. Wouldn’t you agree?
ASHCROFT: Well, the law on enemy combatants includes a petition for habeas corpus, but the — and the court in the Kerran (ph) case indicated that it would entertain habeas corpus jurisdiction to determine if there was any basis upon which the claim could be made for enemy combatant status.
This has happened in less than a handful of people. I think there are three individuals who have been detained in the United States as enemy combatants, and they weren’t necessarily apprehended in the United States.
This is really the business of deciding, if someone is fighting against you, do you have the right to detain them as part of the military operation to resist the fight?
When a person is detained as an enemy combatant, that’s similar to being detained as a prisoner of war. And if you happen to be fighting on the United States’ soil against the United States, you shouldn’t have any more significant rights than if you’re fighting against the United States in Afghanistan or somewhere else.
Allow me to retort:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Now, pretty clearly, US citizens who are not members of the armed forces who are charged with crimes committed on US territory must be dealt with according to the due process requirements of the Constitution. What’s so difficult about that?
Update: I should probably also cite Art. I, Sec. 9, specifically:
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.