Correction to 'Police State' Discussion

[dave () farber net]

___

Dave Farber  +1 412 726 9889



...... Forwarded Message .......
From: "Michael Froomkin - U.Miami School of Law" <froomkin () law miami edu>
To: Dave Farber <dave () farber net>
Date: Fri, 06 Aug 2004 10:15:45 -0400 (EDT)
Subj: Correction to 'Police State' Discussion

For IP.

In a comment to which I'm generally sympathetic, Wulf Losee makes an error
I think needs to be corrected when he writes, "2. American Citizens are
being detained (and possibly tortured) without due process (in Cuba of all
places!). How is this different from a police state?"

The actual facts are better and worse than this.  As far as we are aware
NO US citizens are in fact being held in Guantanamo, Cuba, although there
are many citizens from nations with which we are at peace, or even allied.
(Sadly, it seems increasingly likely that there was a US policy of
torturing detainees, cf.
http://www.ccr-ny.org/v2/reports/docs/Gitmo-compositestatementFINAL23july04.pdf)

Instead, the Bush administration has arrested two US citizens in the US
and rather than charge them with a crime, it has put them in solitary,
military confinement. The Bush justice department argued in a series of
legal briefs that the President had the inherent constitutional power to
arrest as many US citizens as he wanted, to hold them as long as he
wanted, without access to lawyers, family or any rights.  What's more they
argued that this power of the president should not be subject to any form
of judicial review.  In short, the Bush administration argued that our
President could create a class of "disappeared" persons as did the
military junta in Argentina.

The good news, however, is that the Supreme Court in its recent Hamdi
decision reasserted that we are not a police state, and that even people
labeled "enemy combatants" by the government retain their rights. cf.  
http://www.discourse.net/archives/2004/06/todays_trifectawhat_does_it_all_mean_pt_i_hamdi.html

Unfortunately, the administration continues to resist this decision in
every way it can
http://www.discourse.net/archives/2004/06/todays_trifectawhat_does_it_all_mean_pt_i_hamdi.html

On the more general question, I think this story shows that the current
administration has worked hard to suspend inconvenient parts of the bill
of rights in the name of state security -- a behavior that is consistent
with the slide towards a police state.  But our system has antibodies,
including the courts, and they are slowly swinging into action.

-- 
http://www.icannwatch.org   Personal Blog: http://www.discourse.net
A. Michael Froomkin   |    Professor of Law    |   froomkin () law tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                         -->It's warm here.<--


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