We have a civil war going on right now inside the borders of the United States.

One side has citizens that believe in a free and appropriate education for their children - all children - in public schools that respect, nurture, challenge, encourage and support the child. This side has special needs children and their parents who object to being held against their will in a system that takes away their rights to FAPE, their funding for resources and services, and an equal opportunity to succeed in school and in life.The first army has enlisted parents, guardians, citizens who have children that are needy in some way, or care about due process rights and diversity in a transforming way. Even though this group has no organized lobby - some say the other side actively sabotages this effort - its' members will fight to preserve a democratic, "all are equal before the law" perspective that permeates everything that they say and do, including speaking out for civil rights of all citizens. They are Republicans, Democrats, Independents, and members of various other groups all joined by a philosophy, a moral and ethical imperative to protect anyone who acts in a lawful way to protect their rights under the Constitution.

The other side has soldiers who believe that they must protect this country from terrorists, and promote the policy that ANYONE can be a terrorist, and that the next suicide bomber is actually your next door neighbor. At least, this view assures them the advantage of establishing a grain of distrust for anyone who they dont like. They have the money and power to transform almost anyone into someone who cannot be trusted.This army will question the right of the disabled, the poor, the homosexual, the "non-christian" very old, or the person who cannot understand/speak English to belong, and will set their well-indoctrinated lawyers on any person who dares to violate their Mission, which is to set up an America based upon their agenda, with secrecy, false claims, and outright lies about the rights of people who see the world from a different perspective. People who see the world differently have, basically, no "right" to. It's not in the best interests of the US, in other words, to honor anyone's actions who cannot assist movement toward the Goals, just stated, of this army. And they constantly work toward forcing their agenda onto the American public through appointments to our highest courts. Often, but not always, they succeed in discarding the due process rights of someone or a group of someones that they dont like, and examples of this can be found every day in the evaluation conferences and "Impartial" Hearings of cases brought to honor special education laws and regulations.

We congratulate the US Supreme Court in giving army #1 above a victory in affirming our right to due process, even in times of "war", and hope that education reformers and activists will translate this ruling into combat for the due process rights of parents to bring cases as individuals to federal court.

Betsy Combier
Founder, Parentadvocates.org
President, The E-Accountability Foundation

Court Affirms Due Process Rights of Enemy CombatantsBy Tony Mauro
New York Law Journal
June 29, 2004

WASHINGTON - In a historic pair of decisions affirming due process rights even in a time of war, the U.S. Supreme Court largely repudiated the Bush administration's view that enemy combatants and detainees can be held indefinitely without access to federal court habeas corpus review.

In both cases - Hamdi v. Rumsfeld, No. 03-6696, involving U.S. citizen Yaser Esam Hamdi, captured in Afghanistan and held in the United States, and Rasul v. Bush, No. 03-334, brought by Australians and Kuwaitis detained at the U.S. naval base in Guantanamo Bay, Cuba - different 6-3 majorities made it clear the government had gone too far in seeking unchecked power to detain and interrogate individuals in the war on terror.

Detainees in both settings are entitled to review by neutral adjudicators, the Court said in a major departure from its usual wartime deference to the wishes of the executive.

In a third much-awaited ruling on the war on terror, Rumsfeld v. Padilla, No. 03-1027, a 5-4 majority sidestepped the issue of whether the government has the authority to indefinitely hold Jose Padilla, a U.S. citizen seized, unlike Mr. Hamdi, on American soil two years ago as a material witness with al Qaeda connections.

The Court found that Mr. Padilla's habeas corpus petition had been filed in the wrong court - the Southern District of New York instead of in South Carolina, where he is being held at a Navy brig. If the case is refiled in the proper court, Mr. Padilla would presumably receive due process similar to what the Court said was required for Mr. Hamdi. (See related story)

Donna Newman, Mr. Padilla's court-appointed attorney, said yesterday that when the opinions are read together, a majority of the justices have concluded that an "American on American soil cannot be detained, that it's unconstitutional. All we have now is a delay in the inevitable."

The Court also reminded the administration that the Court, and no one else, is the final arbiter of the boundaries between the branches of government.

"We have long since made clear that a state of war is not a blank check when it comes to the rights of the nation's citizens," declared Justice Sandra Day O'Connor for the Court in Hamdi. "The threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully the government's case and to be heard by an independent adjudicator." She also said that Mr. Hamdi "unquestionably" has the right of access to a lawyer.

Solicitor General Theodore Olson and other government lawyers sat glumly as the decisions were announced on the Court's next-to-last day of the term.

Justice Antonin Scalia added to the drama by reading from a dissent in Hamdi that went even further in rejecting the administration's position. Joined by Justice John Paul Stevens - a rare pairing - Justice Scalia said the U.S. Constitution offered only one way to achieve the administration's goal: suspension of habeas corpus by a vote of Congress, a step that has not been taken on the mainland United States since Reconstruction.

"If civil rights are to be curtailed during wartime, it must be done openly and democratically as the Constitution requires," he declared.

Justice Clarence Thomas was the only justice who offered general support for the administration's position in Hamdi, leading some commentators yesterday to view it as an 8-1 defeat for the administration.

Justice David Souter also read from a concurrence in Hamdi, which, joined by Justice Ruth Bader Ginsburg, asserted that the government lacks authority to detain Mr. Hamdi. But they joined in Justice O'Connor's judgment that Mr. Hamdi now deserves habeas protection.

The administration's only clear victory yesterday appeared to be that five justices in the Hamdi case agreed that his detention as an enemy combatant was authorized by the resolution passed by Congress a week after the Sept. 11, 2001, terrorist attacks. Justice O'Connor made that concession to the government's position in her plurality ruling joined by Chief Justice William Rehnquist and justices Anthony Kennedy and Stephen Breyer.

Justice Thomas dissented on other grounds, but appeared to agree the detention was authorized. Justice O'Connor's support for the detention appears to be limited to the period of "active combat," not an indefinite period.

Some administration supporters, while disappointed, sought to emphasize that victory in reacting to the rulings.

"It doesn't seem to be much of a defeat for the administration," said Paul Kamenar of the Washington Legal Foundation.

"While the Court affirmed the president's authority to declare terrorism suspects as enemy combatants, the decisions are troubling and open the door to the alarming prospect of subjecting military decisions involving the war on terrorism to the federal courts," said Jay Sekulow, chief counsel of the American Center for Law and Justice, which filed briefs in the cases for the administration.

Criticism and Rejoicing

U.S. Senator John Cornyn, R-Texas, who also supported the administration before the Court, criticized the rulings.

"I am a little concerned about the new constraints that the Supreme Court has placed on the president as commander in chief. I hope that they don't represent handcuffs," he said.

But civil liberties groups rejoiced at what American Civil Liberties Union Legal Director Steve Shapiro called "a very stinging and watershed defeat" for the administration's "unprecedented claims."

"These decisions make clear, by justices that are not traditionally liberal allies, that the courts have a very important role to play in checking the executive's power, even in wartime," said Deborah Pearlstein of Human Rights First.

American Bar Association President Dennis Archer said the Court had reaffirmed a bedrock democratic principle: "that U.S. citizens deprived of their liberty are entitled to contest the basis of their detentions in a court of law, and fundamental fairness requires access to counsel to assist them in that challenge."

Bettina B. Plevan, president of the Association of the Bar of the City of New York, praised the rulings for reaffirming "the essential role of the courts in preserving civil liberties and the rule of law."

"The combined effect of these decisions is to assure that courts are available to review a broad range of Executive actions, including the use of military commissions, in the detention and punishment of detainees," she said in a statement.

Former appeals court Judge John Gibbons, who argued the Guantanamo case on behalf of the detainees, said, "This is a good day for the rule of law."

Mr. Gibbons said he and the Center for Constitutional Rights, which also represented the Guantanamo detainees, would seek to work with the Justice Department to facilitate "fair and prompt hearings for our clients."

The exact contours of the due process the Court wants for enemy combatants or Guantanamo detainees are unclear. Justice O'Connor said a citizen-detainee such as Mr. Hamdi is entitled to "receive notice of the factual basis for his classification, and a fair opportunity to rebut the government's factual assertions before a neutral decisionmaker."

But she also said any proceedings "may be tailored" so as not to burden the executive branch at a time of war. She said, for example, that hearsay evidence could be admitted and that a presumption in favor of the government could be allowed. Such procedures, she said, would guarantee that "the errant tourist, embedded journalist, or local aid worker" would be able to rebut government arguments in favor of detention.

"We think it unlikely that this basic process will have the dire impact on the central functions of warmaking that the government forecasts," she added.

'Rasul' Case

In the Rasul ruling, Justice Stevens, writing for the majority, specifically stated that he was offering no opinion on what kind of proceedings would be appropriate for the Guantanamo detainees.

"What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing," he said, adding that his answer was "in the affirmative."

Justice Stevens also rejected the administration's view that because Guantanamo is on Cuban soil, U.S. courts lacked jurisdiction for habeas review of the detainees' imprisonment. He described Guantanamo as "territory over which the United States exercises exclusive jurisdiction and control."

In dissent, Justice Scalia said the detainees "are not located within the territorial jurisdiction of any federal district court. One would think that is the end of the case."

He also called the ruling a "breathtaking" expansion of rights for aliens that "boldly expands the scope of the habeas statute to the four corners of the earth."

Justice Scalia was joined by Chief Justice Rehnquist and Justice Thomas in dissent.


U.S. May Bring Terror Charges Against Padilla
By Dan Christensen
New York Law Journal
June 29, 2004

The U.S. attorney's office in Miami is preparing to indict alleged "dirty bomber" suspect and former Broward County resident Jose Padilla as early as next month on terror-related charges, according to a Justice Department source.

The filing of an indictment, which would come on orders from the White House, would effectively end Mr. Padilla's two-year status as a federal detainee without charge.

On Monday, the U.S. Supreme Court declined to rule on Mr. Padilla's lawsuit challenging his detention. The Court said he should have named as a defendant the military officer in charge of the U.S. Navy brig where he is being held, not Secretary of Defense Donald Rumsfeld. (See related story.)

But as a practical matter, the detention question could become moot if the government names Mr. Padilla in an active criminal case now unfolding in the Southern District of Florida. A Justice Department source has told the Daily Business Review, and affiliate of the New York Law Journal, that Mr. Padilla, a U.S. citizen who lived near Fort Lauderdale in the mid-1990s, would be charged in a superseding indictment in the terror case against a former friend, Adham Amin Hassoun.

Mr. Hassoun is a Sunrise computer programmer who also has been in federal custody for two years. He faces more than 50 years in prison following indictments in January and March on gun possession, lying and obstruction of justice charges related to his alleged efforts to promote "global jihad."

The decision as to whether federal prosecutors in Miami will ask a grand jury to name Mr. Padilla as a Hassoun co-defendant will be made by President George W. Bush, according to the Justice Department source, It is not known what types of allegations would be brought against Mr. Padilla.

Assistant U.S. Attorney Russell R. Killinger has told a federal judge that new charges are likely to be filed in Mr. Hassoun's case through a superseding indictment as early as mid-July. Mr. Killinger declined to discuss the matter, or to confirm that Mr. Padilla is a target.

New York lawyer Donna R. Newman, Mr. Padilla's court-appointed attorney for the case in the Southern District, did not say whether she knows her client might be charged.

"We'd heard rumors," she said.

Ms. Newman said she will seek a hearing for her client in U.S. District Court in South Carolina as soon as possible. She said that if Mr. Padilla is charged in the Florida case, he would formally enter the criminal justice system and she would expect his case to "proceed in the normal course."

Reached at his summer home in Massachusetts, Fort Lauderdale lawyer Fred Haddad, who represents Mr. Hassoun, when asked to comment on the government's plans to name Mr. Padilla as a co-defendant said it was "not outside the realm of possibility."

The Justice Department source who spoke on condition of anonymity would not disclose the substance of the proposed criminal charges against Mr. Padilla, 33.

But the Daily Business Review has learned the charges involve terror allegations other than the most sensational accusations against him - that he plotted with top of al Qaeda leaders to detonate a nuclear device in a U.S. city or blow up apartment buildings.

If he is indicted, Mr. Padilla's detention at the Navy's Consolidated Brig in Charleston, S.C., would end. He would be turned over to civilian authorities by the Department of Defense and be brought to Miami for arraignment and trial, the Justice Department source said.

Newly appointed U.S. District Judge Marcia G. Cooke would preside over the case. Judge Cooke, a former chief inspector general for Florida Governor Jeb Bush, was randomly assigned to the Hassoun case by the clerk's office on June 8, shortly after her arrival on the bench, according to court documents.

Expanding Investigation

On Friday, the Daily Business Review reported that recent government court filings disclosed that the existing criminal charges against Mr. Hassoun are part of a "wider, ongoing" terror probe involving "unindicted co-conspirators" who have not been identified.

Mr. Hassoun's indictment accused him of perjuring himself to hide his work raising funds and recruiting fighters in support of a global jihad. Mr. Hassoun, detained without bond in the Palm Beach County Jail, has pleaded not guilty.

Mr. Hassoun is appealing to the U.S. Court of Appeals for the Eleventh Circuit in Atlanta a deportation order issued in secret against him in December 2002 by a U.S. immigration judge in Miami.

Mr. Hassoun acknowledges that he crossed paths with Mr. Padilla in the 1990s, when the two men attended the same Fort Lauderdale mosque.

Mr. Hassoun was detained in 2002 for overstaying the visa he used to enter the country in 1989. After hearing confidential evidence from the FBI, the judge declared Mr. Hassoun a terrorist, and said he "had contact" with al Qaeda leader Osama bin Laden.

Mr. Padilla was arrested May 8, 2002, on arrival at O'Hare International Airport in Chicago on a material witness warrant issued by a Manhattan federal court in connection with a grand jury investigation into the Sept. 11, 2001, terrorist attacks. He allegedly was carrying $10,000 in al Qaeda cash.

But Mr. Hassoun, who has read some of the 10,000 pages of national security wiretap transcripts that were recently declassified and released to his attorney in pretrial discovery, said in interviews last week that the government is seriously considering adding Mr. Padilla as a co-defendant in the case.

Mr. Hassoun said in an interview that the government is trying to turn what he described as his limited and harmless friendship with Mr. Padilla into something sinister. He said the two became acquainted in 1996 or 1997 when they worshipped together.

When Mr. Padilla flew in 1998 from Miami to Cairo, where he spent the next 18 months. Mr. Hassoun helped raise money for Mr. Padilla's airline ticket and to help him get settled in Egypt. "We asked the community to chip in," Mr. Hassoun said.

Between 1998 and 2000, Mr. Padilla telephoned Mr. Hassoun several times. Mr. Hassoun said the conversations amounted to small talk about Mr. Padilla's new life in Egypt.

"I didn't talk more than five times with Padilla," Mr. Hassoun said.

But U.S. national security agents apparently bugged those calls.

Mr. Hassoun said that transcripts among more than 10,000 pages of declassified Foreign Intelligence Service Surveillance Act intercepts that were released to comply with pre-trial discovery requirements. They remain hidden from public view by a protective order.

Mr. Hassoun said the Justice Department was trying to make him a "scapegoat" in the war on terror.

"They're trying to make some science fiction story," said Mr. Hassoun, who also uses the alias, Abu Sayyaf, according to the government. "They have something big here and it's like a maze. 'Look at what characters we have: Padilla, Hassoun, El Shukrijuma.' They've got something they have to bring to court."

Mr. Hassoun was referring to Adnan G. El Shukrijuma, another ex-Broward resident, pilot and former acquaintance at the mosque and today one of seven fugitive al Qaeda suspects who are the focus of an international manhunt. U.S. Attorney General John Ashcroft has said Mr. Shukrijuma and others are planning a major attack this summer on U.S. soil.

Mr. Shukrijuma is not involved in the Hassoun case, the Justice Department source said.

From Capitol Hill Blue
Opinion
Supremes to Bush: You Ain't Above the Law
By DALE McFEATTERS
Jun 29, 2004, Capitol Hill Blue

Justice Sandra Day O'Connor put it very well:

"It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

That said, the Supreme Court ruled that Yaser Esam Hamdi, a young American-born Saudi taken captive in Afghanistan, can challenge his confinement and treatment in the U.S. courts.

The ruling was a significant judicial rebuff to the Bush administration's assertion that it had the right to hold "illegal combatants" indefinitely, without charge and without recourse to courts and lawyers.

Said O'Connor, "We have long since made it clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

The court did uphold the legality of Hamdi's incarceration under war powers Congress granted President Bush immediately after 9/11, while reaffirming Hamdi's right to challenge both his imprisonment and the law that put him there.

And so too can the 600 or so detainees at Guantanamo Bay, Cuba. In a separate decision, the court said the government cannot deny them due process and the detainees also have the right to appeal to the federal courts. The prison opened in January 2002 and so far only six detainees have been charged and none has gone to trial, although one, an Australian, is to appear before a military tribunal.

The two decisions leave much for the lower courts to sort out, but the high court made a welcome statement that the U.S. Constitution can't be waived.

Regrettably, the court did not address the imprisonment of Jose Padilla, also held without charge or trial and mostly incommunicado. Hamdi's U.S. citizenship is problematic, and he does seem to have been picked up on a battlefield with an AK-47 in his hands. Padilla is incontestably an American, and he was arrested in May 2002 getting off a plane in Chicago. The administration's only explanation for a complete denial of his constitutional rights has been vague assertions that Padilla might have been plotting some kind of terrorist action.

By 5 to 4, the justices said that Padilla had filed in the wrong district court and named the wrong respondent in his suit. He will have to refile, starting all over again, because the court said that while his case may indeed have "profound significance," it wasn't significant enough to "bend jurisdictional rules."

To lay persons, that sounds like legalese for "punt."

(Contact Dale McFeatters at McFeattersD@SHNS.com)

© Copyright 2004 Capitol Hill Blue

Indeed, this is a humiliating defeat for President Bush's legal strategy for fighting the war on terror