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Wednesday, March 02, 2005

Judge Henry Floyd, American Hero

Floyd was appointed as a federal judge by W in 2003, but decided that his loyalty was to the constitution, not to the emperor trying to usurp it. From the WSWS:
Judge Floyd upheld essentially all the contentions of Padilla’s lawyers, who charged that his indefinite detention violated the Second, Third, Fourth, Fifth and Sixth Amendments of the Constitution, as well as the Non-Detention Act, an act of Congress which explicitly prohibits arbitrary detention of any US citizen on the basis of executive fiat.
Padilla has now been in military custody for nearly 33 months without any charges being brought or any opportunity to confront his accusers or assert his constitutional rights. This is the longest that any US citizen has ever been held without any judicial proceeding, simply on the say-so of the president.
Floyd flatly rejected the claim that Bush has the authority to order the indefinite detention of a US citizen arrested on American soil. “The court finds that the president has no power, neither express nor implied, neither constitutional nor statutory, to hold petitioner as an enemy combatant,” he wrote.

In a remarkably scathing passage, Floyd challenged the claim that presidential authority in wartime is absolute and unquestionable. He wrote:

“Certainly Respondent does not intend to argue here that, just because the President states that Petitioner’s detention is ‘consistent with the laws of the United States, including the Authorization for Use of Military Force’ that makes it so. Not only is such a statement in direct contravention to the well settled separation of powers doctrine, it is simply not the law. Moreover, such a statement is deeply troubling. If such position were ever adopted by the courts, it would totally eviscerate the limits placed on Presidential authority to protect the citizenry’s individual liberties.”

The 23-page opinion systematically takes up and demolishes the various claims of the Bush administration, in a manner that suggests not only rejection of the anti-democratic and authoritarian position of the White House, but genuine anger on the part of the judge at the cynical, bad faith legal arguments employed.
Judge Floyd also rejected the claims of authority inherent in Bush’s powers as commander-in-chief—the main staple of Bush’s lawyers in both the White House and the Justice Department who argued that international treaties against torture could not tie the president’s hands in the interrogation of suspected Taliban and Al Qaeda prisoners. He cited the famous argument by Justice Robert Jackson, in the 1952 Supreme Court decision overturning President Truman’s seizure of the steel industry during the Korean War: “The Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute also Commander-in-Chief of the country, its industries and its inhabitants.”

The judge wrote: “The Court is of the firm opinion that it must reject the position posited by Respondent. To do otherwise would not only offend the rule of law and violate this country’s constitutional tradition, but it would also be a betrayal of this Nation’s commitment to the separation of powers that safeguards our democratic values and individual liberties.”

He concluded: “Simply stated, this is a law enforcement matter, not a military matter. The civilian authorities captured Petitioner just as they should have. At the time that Petitioner was arrested pursuant to the material arrest warrant, any alleged terrorist plans that he harbored were thwarted. From then on, he was available to be questioned—and was indeed questioned—just as any other citizen accused of criminal conduct. This is as it should be. There can be no debate that this country’s laws amply provide for the investigation, detention and prosecution of citizen and non-citizen terrorists alike.”

This analysis attacks the entire premise of the Bush administration’s self-proclaimed “war on terror.” It rejects the notion that democratic rights and constitutional norms must be suspended as unnecessary obstacles to the defense of the American people against terrorism. Both the tone of the decision and its legal implications confirm that the ceaseless expansion of unchecked presidential power, not the supposed threat of terrorism, represents the greatest danger to the rights of the American people. It also exposes the glaring hypocrisy of a government that claims to be conducting a crusade for “democracy” around the world while it claims for itself virtually dictatorial powers and lays siege to democratic rights within the US.
Probably wise to stay out of small planes for awhile, your honor. These guys play hardball.