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Bush Administration Asserts Right to Seize Citizens Indefinitely Without Charge or Evidence

The Associated Press points me to a website of the New York University School of Law, which has archived a transcript of arguments made by lawyers for the Bush administration before the Fourth Circuit Court of Appeals on Halloween of 2007. That’s an appropriately ghoulish day for the Bush administration to assert, as AP puts it, that “the president can send the military into any U.S. neighborhood, capture a citizen and hold him in prison without charge, indefinitely.”

The Associated Press is not exaggerating. The following are excerpts of arguments by Bush administration representative Gregory Garre before the judges of the Fourth Circuit. These remarks aren’t all available in searchable text form on the internet right now, and that needs to change, as you’ll see when you read on:

Judge: Does the power to detain that you assert here apply equally to American citizens?

Gregory Garre: Your honor, we have assumed for purposes of this case that Mr. al-Marri has the same rights as a citizen enemy combatant, like the combatants in Hamdi and Padilla.

Judge: He answered Judge Traxler’s question. Does it apply to American citizens?

Garre: We have assumed, as the Supreme Court — The answer is yes.

Judge: The answer is yes.

Garre: The answer is yes.

Judge: But as far as the Fifth Amendment due process rights, a resident, a person, legally resident alien in the United States has the same rights as citizens. Isn’t that correct? I mean, that —

Garre: That is true, your honor.

Judge: But I want to make sure I understand where we’re going and what the Government asserts is the right of the military, if they believe, if they desig — believe someone is an enemy combatant, to go — the military to go and seize that person.

Garre: That’s true, your honor.

Judge: But what you assert is the power of the military to seize a person in the United States, including an American citizen, on suspicion of being an enemy combatant by the Executive.

Garre: Yes, your honor.

Judge: But what you want is the power for the military to take them, take them back to the military base and perhaps hold them incommunicado.

Garre: Well, we don’t need that in this case.

Judge: But you did that here when you transferred him to military custody. You have the power, if he’s in military custody, to hold that person incommunicado.

Garre: That’s for some — at least for some period.

Judge: A good 16 months in this case, wasn’t it?

Garre: It was, your Honor. At some point that individual would have a right to counsel, and the Supreme Court hasn’t defined exact —

Judge: But you do that to citizens, as well.

The Fourth Circuit Court has not yet ruled.

Military detention of any U.S. citizen, without charges, on the basis of mere suspicion, for an indefinite term, and on an incommunicado basis — which means without access to a lawyer, access to the media, or even access to one phone call — for an indeterminate length of time. This is the power over its citizen that the Bush administration believes it holds. It has exercised this power in the past, and its representatives declare their intention to exercise that power in the future.

This is not the America the founders envisioned. This is not the America envisioned within the U.S. Constitution. This is an America going even beyond the bounds of the Military Commissions Act. This is not the America I grew up in.

Is this America anymore?

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