The clue that Robert Turner knows he hasn’t made the case against Jose Padilla being denied his 6th amendment rights is his use of “clearly” in the final sentence. (This works the same way as “frankly“, which Michael Kinsley pointed out is one of politician’s favorite words.)
The thing I don’t understand about conservatives’ claim that “enemy combatants” like Jose Padilla weren’t envisioned by the framers is how obviously the text of the constitution contradicts them (and these are normally the strict constructionists, no less). To quote Article III, Section 3:
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
Why did the framers so carefully spell out what was required for a treason conviction and that it couldn’t be lasting on the family (corruption of blood)? Because they were responding to the numerous abuses that had occurred in England of unfairly accusing and prosecuting political enemies, under the rubric of treason, while denying the accused the rights of due process.
I have little doubt that Jose Padilla is guilty of treason, although two witnesses may not be available. I think a conspiracy conviction could be achieved in a heartbeat. But I further believe that Bush and Ashcroft are subverting the constitution by denying Padilla his sixth amendment right to counsel on the accusation (not conviction) of being an enemy combatant. Someone guilty of treason (”levying war against the United States”) is clearly (just kidding about the adverb) an “enemy combatant”. And yet for a treason conviction, the Constitution explicitly required not just due process (such as the 6th amendment right to counsel) but the presence of 2 witnessess. If the framers meant to permit indefinite imprisonments under thr rubric of the commander-in-chief responsibility (Article II-2), why would they possibly have given only Congress the right to suspend the writ of Habeas Corpus (Article I-9-2)?
In summary, I am flabbergasted and deeply disappointed that lawyers I respect can fail to see that they are selling out their professional responsibilities by trying to prevaricate as to how the Constitution means something different than it blatantly says about the due process rights of all citizens (especially those accused of treason/being enemy combatants), all to defend an attorney general and president who have no understanding of the way that due process of law underpins the civil society we hold dear.
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