News Vid: Death of Habeas Corpus


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Zedicus
October 19, 2006, 03:32 AM
http://www.youtube.com/watch?v=uxjbeYBJBkY&mode=related&search=

Discuss.

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FourTeeFive
October 19, 2006, 04:24 AM
Very sad. The current administration seems to forget all the basic concepts of the founding of this once great nation. Jefferson and others warned us about this type of government.

Sindawe
October 19, 2006, 04:30 AM
This is what passes for journalism in MSM? No verbal citation of the bill number (H.R. 6166 Hmmm.... :scrutiny: where did I put that tin?) , nor any text citation for the literate among the viewing population.

Lots of scary sounding sound bites littered with references to American History as a verification of the speakers authenticity. Clever, but not overly so...

As I read it, the Law in question only applies to a very narrow set of people.§ 948c. Persons subject to military commissions ‘‘Any alien unlawful enemy combatant is subject to trial by military commission under this chapter. Previously this law has defined both an alien, and an unlawful enemy combatant. Glaring in the omission is the definition of an "alien unlawful enemy combatant". I suppose such is inferred by the author and assumed to be understood. Sloppy that...

Interestingly, it would appear that none of our learned Congress-critters who voted in support of this bill, nor the man we hired to run our gooberment happened to notice this paragraph.§ 948d. Jurisdiction of military commissions ‘‘(a) JURISDICTION.—A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.Note that "...before, on...". I may just be a dumb hick from flyover country to these buffoons, but is that not in direct contradiction to Article I, Section 9 of our Constitution?Section 9 - Limits on Congress

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed

Not that I seriously expect the Supreme Court to strike down this steaming load of dren. :cuss:

tanksoldier
October 19, 2006, 04:47 AM
They aren't defining new crimes, which would be unconstitutional.

They are merely defining how crimes committed by certain persons will be tried. I'm pretty sure setting up trial procedures is ok.

Lastly, I'm not sure why we're even doing this for 99% of the detainees.

Every single German captured in WWII wasn't put on trial, they were merely held until the war was over. No every enemy combattant is a war criminal.

ilbob
October 19, 2006, 09:52 AM
ex post facto

Does not mean that trial procedures have to be predefined. It means you cannot make something a crime after the fact. It has to have been illegal at the time the act was committed to be a crime.

Derek Zeanah
October 19, 2006, 10:18 AM
Re: ex-post-facto laws. See "Lautenberg." It's happened in the past, and it wasn't tossed by the supreme court.

Gun owners should remember this kind of stuff without prompting. Just 'cause it's there in plain english that everyone can understand (including elementary school kids - that's where I remember the term "ex post facto" from) doesn't mean we still live in a time where our politicians and judges still feel bound by those words.

Nathan Williams
October 19, 2006, 10:27 AM
Are any of you really suprised? Would you expect no less of Dubya? I just cant wait to see what signing order he issues, or passage he sneaks into a spending bill next :uhoh: .

Spot77
October 19, 2006, 10:30 AM
The Democrats are screaming and whining already, but let's see how fast they repeal it when THEY regain power.

I suspect it will have fallen off the radar by then, never to be brought up again except by the extremist freedom lovers (that's sarcasm there at the end; you know I was referring to us here at THR!)

Nathan Williams
October 19, 2006, 10:36 AM
Yes well this thing hasnt been on the radar till now. It was snuck in right as the Foley scandal broke out. Hmmm.......always a scandal comming out at just the right time.

Derek Zeanah
October 19, 2006, 10:45 AM
Listed on the same page is this one (http://www.youtube.com/watch?v=RjJ9_Y8bLU4&mode=related&search=), which I enjoyed.

ForeignDude
October 19, 2006, 11:35 AM
Folks, read the bill before spouting stuff. Habeas corpus has not been suspended; it certainly is nothing like the suspension enacted by Abraham Lincoln during the civil war.

First, what this bill does is to provide for military trials for alien unlawful combatants. Who is an alien? Anyone who's not a citizen of the United States. Who is an unlawful combatant? Those who make war in ways that contravene the rules of war, e.g., using children and women as human shields, intentionally killing women and children, etc. By suspending habeas corpus for the Islamic enemy, Bush and the Republicans have sent a message: "No, you do not have the same rights as an American citizen, and, yes, you will be held accountable for your crimes against humanity". The day we extend constitutional protections (and everything that they entail) to our enemy, that will be the day of our defeat. Simply imagine Osama bin Laden in court, standing next to some of the brightest legal minds this country has to offer, volunteers in his legal defense. Now, imagine that 90% of the evidence against him is thrown out of court because it came from intelligence agencies or collected "illegally".

Second, the provisions of this bill are such that it isn’t much different from the kind of court-martial that an American soldier, airman, Marine, or sailor would receive if charged with a serious vilation of the rules of war. It takes a special kind of warped logic to accept (even implicitly) the notion that our enemy deserves the full protection of the law, but our own guys can go rot in hell.

Finally, the criticisms leveled at this law encapsulate perfectly the core problem with this war. We are so enmeshed in legalistic notions of “procedures” and “articles of convention”, that we’re forgetting the bigger picture. To wit, we are fighting a war; this isn’t a game. We are in a global struggle against an enemy that cares nothing for our notions of human rights or civil liberties, an enemy that abides solely by the strictures laid down by a seventh-century Arabian Bedouin. To the Islamic enemy, the choices are clear: we convert, submit to Islam and pay the jizya (poll tax), or we die. Why on God's green earth are we so hell-bent on making it even easier for said enemy to kill us? There is nothing noble or morally superior about losing your head (literally) to a fanatic waving the “little green book” of Islam.

geekWithA.45
October 19, 2006, 12:09 PM
I found this article illuminating food for thought, as opposed to MSM sensationalism.

It places the bill into context as rebuking a power grab by the courts via Hamden.


Sending a Message
Congress to courts: Get out of the war on terror.

http://www.opinionjournal.com/editorial/feature.html?id=110009113

Intro:
During the bitter controversy over the military commission bill, which President Bush signed into law on Tuesday, most of the press and the professional punditry missed the big story. In the struggle for power between the three branches of government, it is not the presidency that "won." Instead, it is the judiciary that lost.

The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor "combatants" in an internal civil war under Article 3.

Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy. The court must have thought its stunning power grab would go unchallenged.

...

Until the Supreme Court began trying to make war policy, the writ of habeas corpus had never been understood to benefit enemy prisoners in war. The U.S. held millions of POWs during World War II, with none permitted to use our civilian courts (except for a few cases of U.S. citizens captured fighting for the Axis). Even after hostilities ended, the justices turned away lawsuits by enemy prisoners seeking to challenge their detention. In Johnson v. Eisentrager, the court held that it would not hear habeas claims brought by alien enemy prisoners held outside the U.S., and refused to interpret the Geneva Conventions to give new rights in civilian court against the government. In the case of Gen. Tomoyuki Yama****a, the court refrained from reviewing the operations of military commissions.

DigitalWarrior
October 19, 2006, 12:31 PM
Dear Foriegn Dude;
Unlawful Enemy Combatant - a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.

Military commissions under this chapter may be convened by the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose

`(c) Excuse of Members- Before a military commission under this chapter is assembled for the trial of a case, the convening authority may excuse a member from participating in the case.

Punishments- A military commission under this chapter may, under such limitations as the Secretary of Defense may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when authorized under this chapter or the law of war

The punishment which a military commission under this chapter may direct for an offense may not exceed such limits as the President or Secretary of Defense may prescribe for that offense.

Execution of Sentence of Death Only Upon Approval by the President- If the sentence of a military commission under this chapter extends to death, that part of the sentence providing for death may not be executed until approved by the President. In such a case, the President may commute, remit, or suspend the sentence, or any part thereof, as he sees fit.


So President Hillary Clinton has found that Militias are terrrorist organizations, and because you sold a rifle to a member of one, you provided material support to their terrorist agenda. You are going to be designated an unlawful enemy combatant by the lefties commision on domestic terrorism, and tried by a military tribunal. If (when) convicted you will be sentenced to a length of confinement limited only by her discretion. She may even decide not to have you killed.

So all that is standing between you and death, is Hillary's good will and the professionalism of her appointees.

Hope that makes you a bit uncomfortable.

noops
October 19, 2006, 01:14 PM
Folks, read the bill before spouting stuff. Habeas corpus has not been suspended; it certainly is nothing like the suspension enacted by Abraham Lincoln during the civil war.

Actually, I think YOU need to read it more carefully. A U.S. citizen CAN now be declared an unlawful enemy combatant. Section 3(a)(1)(1) pretty clear states it.

I think the example above is apt. What if an anti-gun government decides that people who get advanced training (a la Gunsite, Thunder ranch, Sigarms Academy) are undertaking dangerous paramilitry and enemy combatant activities. Will you see a court?

N

DigitalWarrior
October 19, 2006, 01:16 PM
Yep you will see a court.

It will be a court where the jury contains only people the prosecution wants in it though.

Manedwolf
October 19, 2006, 01:20 PM
It places the bill into context as rebuking a power grab by the courts via Hamden.

Sorry, at this point, I find claims that the COURTS are the ones trying to grab power as rather like claims that Poland was trying to invade Germany.

It just doesn't fly. The only thing grabbing left and right is an increasingly unchecked unitary executive and rubberstamp congress.

We NEED gridlock. This is getting dangerous.

DigitalWarrior
October 19, 2006, 01:48 PM
manedwolf, you don't get it
It places the bill into context as rebuking a power grab by the courts via Hamden.

Part of the definition of rebuke is to "To check, silence, or put down", and its origin lies with the phrase "to stop the mouth of".

That is just what this does, the power "grab" was an assertion of their constitutional power. The rebuke was the elephants stopping the court from having anything to say about our fate, if the president doesn't like us.

LAR-15
October 19, 2006, 02:00 PM
Osama Bin Laden has constitutional rights??? :confused:

Nightcrawler
October 19, 2006, 02:01 PM
The problem with this, as has been stated, is that ANYONE, even US citizens, can be declared an "unlawful enemy combatant", apparently at the whim of the Executive.

That's not good. That's a door left wide open for future abuses.

LAR-15
October 19, 2006, 02:01 PM
Really?

Where in the bill does it say that?

DigitalWarrior
October 19, 2006, 02:02 PM
No Lar, I do.

This bill means I can be tried by a military tribunal if the president wishes it.

Nightcrawler
October 19, 2006, 02:03 PM
Where in the bill does it say that?


Unlawful Enemy Combatant - a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.


Doesn't say anything about this only applying to foreigners, does it?

DigitalWarrior
October 19, 2006, 02:03 PM
Lar, I explained in the big quoted post above.
Unlawful Enemy Combatant - a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

That is not where it ends, but where it begins.

STAGE 2
October 19, 2006, 02:05 PM
Whether a US citizen can be declared an unlawful enemy combatant isn't the issue. The issue is who will be tried in military tribunals and for whom will habeas be suspended.

Under this bill ONLY aliens (thats non-citizens for you liberal folks) are subject to those tribunals and are denied habeas.

Anyone who is stating that this bill infringes on the rights of american citizens is either stupid, lazy, or dishonest.

ArmedBear
October 19, 2006, 02:09 PM
This is what happens when you have an opposition party without a plan, and sometimes without a coherent thought.

You know, I have no particular problem with declaring a US Citizen an enemy combatant, if he/she actually IS one. What I have a problem with is the apparent lack of checks and balances here: the Executive Branch holds all the cards. THAT is the problem.

So, where were the Democrats when this bill went through Congress? Just harping, Bush-bashing, and generally carrying on like some of us "libertarians"? It wouldn't have been THAT hard to come up with an alternative plan.

xd9fan
October 19, 2006, 02:09 PM
Ok I'm thinking "Party of Lincoln" here.......

DigitalWarrior
October 19, 2006, 02:12 PM
stage2

Which am I, stupid, lazy, or dishonest? Please be more considerate.

Where does it say that it cannot apply to a citizen? If I got to "know" the president's daughter(s), what stops him from having me put in Gitmo.

LAR-15
October 19, 2006, 02:13 PM
Sec. 948a. Definitions

`In this chapter:

`(1) UNLAWFUL ENEMY COMBATANT- (A) The term `unlawful enemy combatant' means--

`(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or

`(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

`(B) CO-BELLIGERENT- In this paragraph, the term `co-belligerent', with respect to the United States, means any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy.

`(2) LAWFUL ENEMY COMBATANT- The term `lawful enemy combatant' means a person who is--

`(A) a member of the regular forces of a State party engaged in hostilities against the United States;

`(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or

`(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.

`(3) ALIEN- The term `alien' means a person who is not a citizen of the United States.

`(4) CLASSIFIED INFORMATION- The term `classified information' means the following:

`(A) Any information or material that has been determined by the United States Government pursuant to statute, Executive order, or regulation to require protection against unauthorized disclosure for reasons of national security.

`(B) Any restricted data, as that term is defined in section 11 y. of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).

`(5) GENEVA CONVENTIONS- The term `Geneva Conventions' means the international conventions signed at Geneva on August 12, 1949.

DigitalWarrior
October 19, 2006, 02:16 PM
Please stop being demeaning, explain the whole thing to me.

Anyone can be an enemy combatant if the president wishes. Being an enemy combatant enables the president to have me tried by a jury he picks.

LAR-15
October 19, 2006, 02:17 PM
Sec. 948c. Persons subject to military commissions

`Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.

DigitalWarrior
October 19, 2006, 02:17 PM
the last word of 1i is very important. it is "or". If one of the conditions is met, they are an enemy combatant.

LAR-15
October 19, 2006, 02:19 PM
What?

You gotta be an alien AND an unlawful enemy combatant.

Alien, alien, alien.

Nightcrawler
October 19, 2006, 02:19 PM
There is a sloppily-worded contradiction in the bill.

On one hand, it states that ANYONE can be declared an unlawful enemy combatant.

On the other, it states that any ALIEN unlawful enemy combatant can be tried by commission.

Problem with this is, it doesn't state that CITIZENS declared as enemy combatants CAN NOT be tried by commission.

As well all know, if a law doesn't specifically say that the gov't can't do something, then they'll do it and say "well, the law doesn't say we can't!". Heck, sometimes even if the law DOES say you can't, they do it anyway. Look at the 9th and 10th Ammendments!

I don't think this is the end of the world, and it is being trumped up. What it is, however, is a wide-open door for future abuses.

With any proposed law granting the government power, you've got to imagine the scummiest, most corrupt, most conniving, greediest politician you can think of. Then imagine THEM with the power and see how good it sounds. I think that's a good rule of thumb, personally.

DigitalWarrior
October 19, 2006, 02:21 PM
Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.

So you understand, dispositive means that it is "Relating to or having an effect on disposition", meaning the designation influences the jurisdiction.

LAR-15
October 19, 2006, 02:22 PM
http://thomas.loc.gov/cgi-bin/query/F?c109:4:./temp/~c109bVBZNb:e8389:


Read the whole bill.

DigitalWarrior
October 19, 2006, 02:22 PM
It states that citizens can be tried in military tribunals in my above quote.

DigitalWarrior
October 19, 2006, 02:23 PM
Please do not demean me, I have read the whole bill, and that is what I found. Please explain why I am wrong in complete sentences.

ForeignDude
October 19, 2006, 02:37 PM
Sec. 948c. Persons subject to military commissions

`Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.'

There is nothing in this law that ought to worry us about the reach of federal power; nothing has changed in actual fact. [To clarify, the reach of the federal government is the same today as it was a month ago -- way beyond what the Framers intended.] The law is very limited in application and says so in the initial section. So, even if you joined one of those "evil" militias and Shrillary brought charges against you under this law as President, the charges would be dismissed immediately for lack of jurisdiction (assuming you're a citizen, of course).

Look , if you think that this law somehow means anything for the persecution of militia-types, then you weren't paying attention to what happened in a small Texas town back in '93. The federal government does not need this law to kill you should you raise insurrection against lawful authority. Shrillary certainly doesn't need this law to stick your butt in jail, should she be in power, and should she decide that you present a clear threat to her power. What this law does is simply tie off loose ends to satisfy the moral poseurs who can't **** into the pot without a permit from a bureaucrat -- it's CYA, writ large.

Nightcrawler
October 19, 2006, 02:38 PM
The other problem is this.

The 5th Ammendment:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

It does not state that no CITIZEN shall be held, etc., but no ONE. That means anyone put on trial in the United States has the ennumerated rights, period, unless they're in the military and it's covered by the UCMJ.

Foreigners who commit crimes in the US are entitled to fair trials just like you an I are.

I think they made a big mistake when they decided to put people on trial for being enemy combatants. A Taliban fighter or Iraqi insurgent captured broke no laws in the US. If they surrender, dump them in a prison camp for as long as you need. Once it's possible, hold a war crimes tribunal in said country (ala the Nazi war crimes trials) and have done with it. There is historical and legal precedent for this.

The Laws of War don't really cover what to do with spies and terrorists. However, traditionally, spies and non-uniformed combatants can simply be shot. So the squaking that the Taliban prisoners are entitled to Geneva Conventions protections are baseless.

However, if you drag them back to US soil and put them on trial for crimes against the United States, they are covered by the 5th Ammendment, regardles of how heinous the crime (Oklahoma City?) may be.

DigitalWarrior
October 19, 2006, 02:46 PM
Foriegn, thank you for your well-0reasoned reply.

You are right that it says that the military tribunals have jurisdiction over aliens. However, it never says that it does not have jurisdiction over citizens. It later says that a finding of being an unlawful enemy combatant influences whether a person can be tried by a military tribunal. I strongly suspect the influence spoken of will not be to add a bias against trying in a military tribunal...

Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.

If you can explain why the above could not mean that it is OK for me to be tried by a military tribunal, please point it out to me, because I do not see it.

STAGE 2
October 19, 2006, 03:10 PM
However, it never says that it does not have jurisdiction over citizens.


Jurisdiction is never assumed. It must be expressly granted either by the constitution or by statute. Statutes don't list things that courts don't have jurisdiction over. Thats not how they are written. The only people that this tribunal has jurisdiction over are alien enemy combatants. Even if Joe American is designated a enemy combatant, he will never see the inside of a military court because he is not an alien.

ArmedBear
October 19, 2006, 03:13 PM
Jurisdiction is never assumed. It must be expressly granted either by the constitution or by statute. Statutes don't list things that courts don't have jurisdiction over.

AHA!

I was wondering why there hasn't been similar outcry on blogs written by libertarian law profs like Glenn Reynolds or Eugene Volokh. They, being law profs, would know this, and therefore not react as some here have.

Enough said, and thanks for the post, STAGE 2.

DigitalWarrior
October 19, 2006, 03:25 PM
Stage 2, thank you for that. The last part of my concern is why I think that they have quietly granted the tribunal that jurisdiction.

the bioll states that finding a person to be an unlawful combatant influences whether they are in the military tribunal's jurisdiction.

Could I (being a person), have my jurisdiction "influenced" by my status as an unlawful combatant? If not what does that passage I have quoted a whole bunch actually say?

STAGE 2
October 19, 2006, 04:19 PM
To answer your question, no. Jurisdiction is one of the things that courts, especially federal, take very seriously and construe strictly. Jurisdiction cannot be influenced by anything. It is determined at the outset of a suit and is determanitive of that point.

The definition and paragraph you listed is sort of ambiguous in that it doesn't give a scientifically accurate definition of enemy combatant. However, the jurisdiction of the military court is expressly limited to aliens. Even if a US citizen was considered an enemy combatant, the court would have no jurisdiction over his case. The same applies to the suspension of habeas.

As pointed out above, this bill was writted in response to the Hamdan and Hamdi cases. The language chosen for the bill was directly influenced by the court's language and holdings in those two cases.

So to sum it all up, there is no possible way that a US citizen would ever see the inside of a military tribunal or have habeas suspended.

TexasRifleman
October 19, 2006, 04:26 PM
So to sum it all up, there is no possible way that a US citizen would ever see the inside of a military tribunal or have habeas suspended.

Now now, you'll confuse the fear-mongers with facts if you are not careful.

Derek Zeanah
October 19, 2006, 04:27 PM
So to sum it all up, there is no possible way that a US citizen would ever see the inside of a military tribunal or have habeas suspended.Right. Because, like, it's never happened before. Ever. In the history of the country.

That sound you hear is me sighing for relief.

TexasRifleman
October 19, 2006, 04:53 PM
Right. Because, like, it's never happened before. Ever. In the history of the country.


THIS particular piece of legislation does not make it easier however, and that's the point here.

We ALL know that if they want to do something bad enough they will, and there's very little that can be done about that law or no law. That's sort of why the Second Amendment is there in the first place as that last chance check and balance.

There will always be and have always been abuses of power by governments.

Art Eatman
October 19, 2006, 05:05 PM
Derek, are you referring to a wipeout of habeas corpus besides Lincoln's suspension? If so, when/where/what?

Art

Derek Zeanah
October 19, 2006, 05:21 PM
Lincoln is the obvious one; more recently we had whassisface the US Citizen picked up in Afghanistan, Jose Padilla, and some other cases where people were taken into custody, thrown into solitary confinement (or much worse), not given access to counsel, etc.

My take on the legislation in question? We'll see some FBI guy on the news in the next month/year/3 years talking about how this was a move in the right direction, but as we've learned from Britain/recent events it's the home-grown terrorists that are now a looming threat on our horizon, and current laws don't give law enforcement effective tools to deal with this increasing threats. What we really need is a change of wording to allow the president/secdef/us atty's office (once the secdef points to him) to use this more broadly, and against US Citizens. Of course, this will only be used against terrorists...

STAGE 2
October 19, 2006, 05:24 PM
Derek, as sigman pointed out, if people are going to engage in illegal things then there is no law that is going to stop them. This piece of legislation does not make it any easier to do anything to US citizens.

As you pointed out with the Padilla example, bad things happen even though there are laws on the books prohibiting them. This isn't a justification for not passing any more laws, its a justification for properly carrying out the ones we pass.

DigitalWarrior
October 19, 2006, 05:42 PM
Stage2,
First, thank you for taking the time to explain your thoughts to me clearly.

I appreciate what you have said, and my fears are somewhat eased. I have my doubts about your statement regarding the lack of a possibility of "influencing" the jurisdiction, as it is clearly stated in the paragraph. I am still not convinced that the paragraph I quoted will not be interpreted in the way I fear, but we will have to wait and see for that. Thanks again, I understand why you think what you do.

ArmedBear
October 19, 2006, 05:48 PM
Derek, as sigman pointed out, if people are going to engage in illegal things then there is no law that is going to stop them. This piece of legislation does not make it any easier to do anything to US citizens.


Furthermore, this is as true of the Courts as any other branch, and we have less recourse if the Courts don't really uphold the Constitution.

SCOTUS has ruled that making someone uncomfortable to speak can be a 1st Amendment violation because it's an infringment, but that the "Assault Weapons Ban" is not a violation of the 2nd Amendment, which of course uses the words "shall not be infringed". But then, it has also ruled that laws enforcing the undefined "community standards of decency" in speech are not 1st Amendment violations, and that private real estate development of buildings occupied by private tenants is somehow "public use."

This law is clearly intended to allow standard wartime practices to extend to combatants who don't fit the old Napoleonic War model, not to jail any of us. Now can any Court be trusted to enforce that in line with the principles on which our nation was founded? I hope so. But that can be said about just about any law, and even the Constitution itself. Short of a willingness to rebel, we can only hope.

I won't say, with DW, that my fears are eased. I'm just not MORE afraid because of this law.

Bartholomew Roberts
October 19, 2006, 06:29 PM
the bioll states that finding a person to be an unlawful combatant influences whether they are in the military tribunal's jurisdiction.

Could I (being a person), have my jurisdiction "influenced" by my status as an unlawful combatant? If not what does that passage I have quoted a whole bunch actually say?

This section actually closely mirrors the language of Geneva (III) Article 5. If there is any doubt that someone isn't a lawful combatant under the conditions established by Geneva III Article 4 (which are also the exact same conditions this bill uses), then that person still receives protection under Geneva III (applicable to prisoners of war) until a competent military tribunal determines their status.

So an alien who was determined to be an unlawful combatant would be subject to the military tribunal's jurisdiction and not expressly protected by any of the Geneva conventions. Otherwise, the alien would be subject to the same treatment as any other prisoner of war under Geneva III.

This section has absolutely no relevance to U.S. citizens (since the bill creates no jursidiction for U.S. citizens); but is a nod to international law.

Ian
October 21, 2006, 12:55 PM
If they arrest you and claim you're an alien, how do you prove otherwise?

Biker
October 21, 2006, 12:58 PM
You don't. You try to survive until the Bastille is stormed.

Biker

aspen1964
October 21, 2006, 01:23 PM
..as to written regards of Islamic Fascist enemies..I say show them no quarter as they have no rules, codes or guidelines as to what they will do to you if possible...there is no notion of civilty in them...

ConstitutionCowboy
October 21, 2006, 01:32 PM
The left wanted clarity on what to do with these captures(enemy combatants). They got it. Seems they also wanted some fodder to chew on in an election year. They got that too. They had the chance to discuss and vote on this. They had the chance to filibuster it in the Senate. They didn't. For what ever reasons the left had, they passed, or allowed the passage of, this measure.

It's nothing more that that. The BS about picking some citizen up off the street or dragging them out of their home on the guise they fit some niche in this act is just plain wrong. Keep your powder dry, though. Some future liberal dictator despot wannabe just might convince a few JBTs that this act would authorize such crap. For that reason, our Founding Fathers so wisely saw fit to...

Woody

It is way past time we in this country got back to arming ourselves the way our Founding Fathers so wisely saw fit to insure us the impunity to do so in the Constitution. B.E.Wood

Bartholomew Roberts
October 21, 2006, 03:39 PM
If they arrest you and claim you're an alien, how do you prove otherwise?

Well, I would think a passport or birth certificate would solve the matter pretty quick. In any case, just being an alien is not enough, you must also be an unlawful enemy combatant which is someone who carries out acts of war but does not fit into any of the protected categories of Geneva III.

Note that the Supreme Court decision of Hamdi v. Rumsfeld (http://www.law.cornell.edu/supct/html/03-6696.ZS.html) expressly states that American citizens detained as enemy combatants have the right of habeas corpus.

Justice O’Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. Pp. 14—15.

You guys might be better served by asking why something that is blatantly untrue is being propagated at this particular point and time? What would someone have to gain by twisting this to imply that American citizens were at risk of losing their habeas corpus rights?

SoCalShooter
October 21, 2006, 03:58 PM
I woke up and the country was going down hill.:barf:

SodiumBenzoate
October 21, 2006, 04:17 PM
This bill is stupid. Everyone detained by the US government should have an opportunity for a trial - everyone. If they can't get enough evidence, then it's a good indication that the prisoner should be released.

Bartholomew Roberts
October 21, 2006, 04:55 PM
This bill is stupid. Everyone detained by the US government should have an opportunity for a trial - everyone. If they can't get enough evidence, then it's a good indication that the prisoner should be released.

If somebody is detained on the battlefield, they are subject to a Combatant Status Review Tribunal to determine whether or not they meet the Geneva III definition of an "unlawful enemy combatant."

If they DO meet that definition AND they are an alien, then they are not protected by the Geneva Convention III and they are subject to a modified Chapter 47 military tribunal. Under this modification, the UCMJ Section 810 requirement for a speedy trial is removed, the 831 protections against compulsory self-incrimination are also removed and the 832 section concerning pre-trial investigation does not apply.

So not only will an alien unlawful enemy combatant get a trial, he'll get two trials (one to prove he is not an alien unlawful enemy combatant and one for whatever crimes he did as an alien unlawful enemy combatant). I would think that if people wanted something to be concerned about in this legislation, they would be concerned about removing protections against compulsory self-incrimination - but I guess that means they would have to actually read and understand the legislation instead of letting somebody spoonfeed them their interpretation of the bill.

Ian
October 21, 2006, 05:15 PM
Well, I would think a passport or birth certificate would solve the matter pretty quick.

Yeah, it probably would - but do you carry either of those with you? I know I don't. And once you're arrested, you have no chance to produce either of them.

Now, do I think Bush is out there buying up black Marias for the FBI as we speak? No. But this is another piece of legislation that will play directly into the hands of the first president who comes along and decides he needs to make some American citizens disappear.

Marshall
October 21, 2006, 05:37 PM
But this is another piece of legislation that will play directly into the hands of the first president who comes along and decides he needs to make some American citizens disappear.

Wasn't Clinton doing that anyway?

I don't remember him asking for a bill to accomplish it. Maybe Vince Foster and all the others in the long list of mysterious deaths that were close associates of Bill Clinton were actually enemy combatants? Wow, just think if they were, under this bill, they would have just been detained. Better than 6' under I guess.

Bartholomew Roberts
October 21, 2006, 06:41 PM
Yeah, it probably would - but do you carry either of those with you? I know I don't. And once you're arrested, you have no chance to produce either of them

Even if you were found in Afghanistan with an AK47 and a sack full of severed heads, you still get a Combatant Status Review Tribunal where you have the opportunity to present evidence. So you would have a chance to produce that information...

Here is a link chock full of good informed habeas corpus comments from law professors:
http://instapundit.com/archives/032855.php

Edited to add:
ABA reports Hamdan is suing to overturn new law (http://www.abanet.org/journal/ereport/oc20terror.html).

Wesker
October 21, 2006, 07:09 PM
Does anyone think that our next president will repeal this law?

SoCalShooter
October 21, 2006, 07:17 PM
Wesker I believe that the next admin from whoevers side they come from will realize how screwed up things have gotten and make a change, the American public is already demanding change.

ConstitutionCowboy
October 21, 2006, 07:39 PM
Wish I could share your optimism...

Woody

Zedicus
October 21, 2006, 08:50 PM
Does anyone think that our next president will repeal this law?

Most likely to use it for one twisted reason or another.

Please note though Olbermann's Followup piece linked to below.

http://www.youtube.com/watch?v=D-Qv9zSe0eg&eurl=

whatever you might think of it, he makes a LOT of valid points.

Ian
October 21, 2006, 09:16 PM
Batholomew, the true test of a law isn't what it's intended to do, but how badly it can be abused by someone with evil intentions.

Tommygunn
October 21, 2006, 09:32 PM
I suspect just about any law could conceivably be very severely abused by an evil person with a twisted, wily imagination.

"How strangely will the tools of the tyrant pervert the plain meaning of the word."~~Samuel Adams.

While we pither, dither and blather about how bad some anti-terrorist law is, or how badly it could potentially be abused by a Hillary, Feinstein, or Schumer presidency -- recall something else....

"Liberty lies in the hearts of men and women; when it dies there, no Constitution, no law, no court can save it."~~ Justice Learned Hand.

Biker
October 21, 2006, 09:35 PM
I'm gonna blatantly plagiarize "pither, dither and blather" down the road.

Biker:)

ConstitutionCowboy
October 21, 2006, 09:37 PM
Please note though Olbermann's Followup piece linked to below.

http://www.youtube.com/watch?v=D-Qv9zSe0eg&eurl=

whatever you might think of it, he makes a LOT of valid points.

Well, I'll admit he RAISED a lot of valid points, but he distorted facts, is trying to generate a lot of misdirected fear mongering, and is embarrassing himself with his ignorance of just how intelligent the majority of us are. Let the man rave on. There are so many voices out there spouting the truth, that Olberman and his ilk are merely voices that remind us of the likes of Chamberlain; and we say, "Yup! I remember!" (It reminds me of Albright and Clinton dealing with North Korea's Kim.)

Read the act for yourself. And, don't be fooled into taking one or two lines from it and think this act is the death knell of freedom. Read it and take the whole thing IN CONTEXT, and calm your fears.

Woody

"If they silence the sound of my voice, they'll surely hear the sound of my gun - if I decide to use something subsonic, that is!" B.E.Wood

Bartholomew Roberts
October 21, 2006, 10:01 PM
the true test of a law isn't what it's intended to do, but how badly it can be abused by someone with evil intentions.

Tommygunn makes a succinct point with the Learned Hand quote. You cannot write an effective law without giving some latitude and judgement to the people who have to enforce it. If you put unscrupulous people in that position, no law is safe regardless of how it is written.

Please note though Olbermann's Followup piece linked to below.
whatever you might think of it, he makes a LOT of valid points.

Sure, why listen to the comments of UCLA and Tennessee law professors when you can get a slanted editorial commentary from a TV show that exists to sell infotainment by hyperbole?

The initial Olbermann piece was a tremendously slanted, overwrought piece of junk. This guy has as much interest in providing a balanced or informed view of the situation as Limbaugh does.

The most disappointing thing about this thread isn't that people are criticizing this legislation; because there ARE lots of valid reasons to criticize this legislation. The most disappointing thing is that people are criticizing it for one of the more doubtful allegations and that they are unquestioningly accepting a load of fertilizer from a program that is more about creating controversy to sell ad space than it is about informing people. Considering the amount of resources out there to actually educate yourself on this issue, that just amazes me.

liberalgunnut
October 23, 2006, 08:03 PM
continued from the other thread...

You are quoting from the dissent in Hamdi (i.e. the losing side). You do understand what dissent means right (or "decent" if you prefer)? Scalia lost that vote. I am trying really hard to be nice here; but I am left with two conclusions:


ou do understand what a dissent opinion from the Supreme Court means and selectively quoted it to support your case, even though you knew it did no such thing.

First, while I 'do know what dissent is... (even though my spelling sucks) you ignored the part about Hamdi being an presumed American Citizen. In numerous posts your position were clear that much of your position was based upon Hamdi not being a citizen.

as in...

How the hell did Hamdan dispute it in Federal court? He wasn't even a citizen and he was captured on the battlefield. Yet he managed to gain access to our court system even as he was imprisoned in Guantanamo.

the purpose of this legislation was to keep detainees like Hamdi from taking their case to federal court. Hamdi was a "presumed American citizen". While it is obvious that you are more versed in this law than I, that still doesn't change the fact that Hamdi was a "presumed American citizen", he was captured, and his habeas corpus rights were infringed.

There were 2 primary purposes for this legislation.

1.) to keep future Hamdi's from doing challeging their lose of habeas corpus
2.) to allow the president to hold himself harmless retroactively.

Finally. I get called a troll when I try to have a discussion with you about constitutional law and you imply that I'm an idiot?

Bartholomew Roberts
October 23, 2006, 08:51 PM
you ignored the part about Hamdi being an presumed American Citizen. In numerous posts your position were clear that much of your position was based upon Hamdi not being a citizen.

No, I have always said Hamdi was an American citizen. Go back and re-read the thread and you will find this asserted repeatedly. You are confusing Hamdi v. Rumsfeld (American citizen) with Hamdan v. Rumsfeld (not an American citizen). The names are similar; but there are two separate cases.

as in...

Quote:
How the hell did Hamdan dispute it in Federal court? He wasn't even a citizen and he was captured on the battlefield. Yet he managed to gain access to our court system even as he was imprisoned in Guantanamo.

See what I mean?

the purpose of this legislation was to keep detainees like Hamdi from taking their case to federal court.

No, the purpose was to keep detainees like Hamdan (not a citizen) from taking their case to federal court. Do you understand the distinction? Do you also understand that despite that intention, Hamdan is suing in federal court to overturn this legislation?

Finally. I get called a troll when I try to have a discussion with you about constitutional law and you imply that I'm an idiot?

From my perspective it doesn't seem like you are interested in a discussion. Discussion would imply you were understanding what I've said and responding to it and I think the record shows otherwise pretty clearly.

If you really have a problem with the MCA, then you aren't doing yourself any favors by choosing the least defensible argument and ignoring all the perfectly valid criticisms of it - criticisms made by our own military lawyers (see the JPFO link in L&P).

In fact, about the only reason I see to focus on the bogus habeas corpus argument is for a propagandist like Olbermann who believes that Americans could care less about what happens to aliens. If you believe that, then highlighting the kangaroo court nature of the legislation won't get you votes because Americans don't care. However, if you tell them they can be thrown into a prison and never seen again - even if it has no basis in fact, you have their interest. Since it is unlikely you'll have to defend your claims on your own show and unlikely that anybody who watches TV will actually investigate such a complex issue themselves, you can stir up a big storm that will benefit your particular spin.

Burnsie
October 23, 2006, 09:00 PM
You want the truth?
http://video.google.com/videoplay?docid=-4312730277175242198&q=America%3A+Freedom+to+Fascism

liberalgunnut
October 23, 2006, 11:00 PM
Ratification process

the Sixteenth Amendment was passed by the Sixty-first Congress and submitted to legislatures of the several states on July 12th, 1909. The amendment was the crowning feature of a larger trend of legislative action meant to curb the power of the wealthy. The famous Pujo Committee Hearings, which aired the incestuous relationship between banks and corporate interests, were held during ratification, and the Clayton Antitrust Act was enacted shortly thereafter.
On February 25, 1913, the Republican Secretary of State Philander Knox proclaimed that the amendment had been ratified by the necessary three-quarters of the states ensuring the constitutionality of unapportioned federal income taxes.
The amendment was ratified by 38 states[8] in all: Alabama on August 10, 1909, Kentucky on February 8, 1910, South Carolina on February 19, Illinois on March 1, Mississippi on March 7, Oklahoma on March 10, Maryland on April 8, Georgia on August 3, Texas on August 16, Ohio on January 19, 1911, Idaho on January 20, Oregon on January 23, Washington on January 26, Indiana and Montana on January 30, California and Nevada on January 31, South Dakota on February 3, Nebraska on February 9, North Carolina on February 11, Colorado on February 15, North Dakota on February 17, Kansas on February 18, Michigan on February 23, Iowa on February 24, Missouri on March 16, Maine on March 31, Tennessee on April 7, Arkansas on April 22, Wisconsin on May 26, New York on July 12, Arizona on April 6, 1912, Minnesota on June 11, Louisiana on June 28, West Virginia on January 31, 1913, New Mexico on February 3 (the 36th state to ratify), Massachusetts on March 4, and New Hampshire on March 7. Arizona and New Hampshire ratified after an earlier rejection. Ratification was rejected by Connecticut, Rhode Island, and Utah.


nice try.

but I hear Westly Snipes is a big fan of this...

liberalgunnut
October 23, 2006, 11:15 PM
thank you for the clarification... I can always count on you to be polite if not down right humble. You are correct. I confused Hamdi and Hamdan. my bad.

How's the weather up there?

liberalgunnut
October 23, 2006, 11:28 PM
In fact, about the only reason I see to focus on the bogus habeas corpus argument is for a propagandist like Olbermann who believes that Americans could care less about what happens to aliens. If you believe that, then highlighting the kangaroo court nature of the legislation won't get you votes because Americans don't care. However, if you tell them they can be thrown into a prison and never seen again - even if it has no basis in fact, you have their interest. Since it is unlikely you'll have to defend your claims on your own show and unlikely that anybody who watches TV will actually investigate such a complex issue themselves, you can stir up a big storm that will benefit your particular spin.

btw: I don't believe that I ever mentioned Olbermann, you may have confused me with another poster.

I believe much of the spin, and rightly so was started as a result of unwarranted wiretapping.

But all the other arguments aside, gven our the constitutional line "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." I still have a problem with the concept that with the MCA we're saying the opposite... that all men, that are citizens, are created equal, screw the rest.

As proponents of the 2nd amendment it seems to me (while not assuming :) ) that you'd be in support of "all men (people)" having the right to not have their right to bear arms infringed. Anything other than that would imply that you're ok with exceptions. Say, not citizen, not permanent resident, not spouse of citizen under 2 years, not 50 Cal., not assault Rifles, etc...

Bartholomew Roberts
October 24, 2006, 12:06 AM
btw: I don't believe that I ever mentioned Olbermann, you may have confused me with another poster.

That comment wasn't directed at you specifically. It was just general commentary as a link to Olbermann is what started this particular thread.

I still have a problem with the concept that with the MCA we're saying the opposite... that all men, that are citizens, are created equal, screw the rest.

Well, if you can find some support for the idea that the founders intended to include alien enemy combatants (lawful or unlawful) in the Bill of Rights, then you might have a point. While there are some basic rights that I think all human beings should have, I am quite OK with non-citizens not having the same rights as citizens. I am particularly OK with aliens picked up on a foreign battlefield not having the same rights as me; though I would like to see them receive a trial that comports with the basic notions of due process accorded lawful enemy combatants under the UCMJ.

As proponents of the 2nd amendment it seems to me (while not assuming ) that you'd be in support of "all men (people)" having the right to not have their right to bear arms infringed.

Why not the insane, the criminal, and alien unlawful enemy combatants as well? After all, why shouldn't some one who tried to blow up a Humvee in Afghanistan be able to own the firearm of his choice in Gitmo? It does say "shall not be infringed" and all men are entitled to the Bill of Rights you say... however, this is once again off topic. So if you would like to discuss whether the Second Amendment applies to all men or just citizens, please start a new thread for it.

STAGE 2
October 24, 2006, 12:24 AM
As proponents of the 2nd amendment it seems to me (while not assuming ) that you'd be in support of "all men (people)" having the right to not have their right to bear arms infringed. Anything other than that would imply that you're ok with exceptions.


LOL!!!! Dude give me a break. I could care less about some poor bastard in some 3rd world country (who probably has a fully auto AK anyways). I care about MY rights and MY country. Everyone else (save a couple of friendly nations) can fall off the map for all I care.

The 2nd amenment was placed there for us as americans. If other people in other countries want it, then have them amend their own constitution. If not, then don't complain to me that your framers didn't have as much foresight as ours.

liberalgunnut
October 24, 2006, 02:20 PM
Quote:
btw: I don't believe that I ever mentioned Olbermann, you may have confused me with another poster.
That comment wasn't directed at you specifically. It was just general commentary as a link to Olbermann is what started this particular thread.

Quote:
I still have a problem with the concept that with the MCA we're saying the opposite... that all men, that are citizens, are created equal, screw the rest.
Well, if you can find some support for the idea that the founders intended to include alien enemy combatants (lawful or unlawful) in the Bill of Rights, then you might have a point. While there are some basic rights that I think all human beings should have, I am quite OK with non-citizens not having the same rights as citizens. I am particularly OK with aliens picked up on a foreign battlefield not having the same rights as me; though I would like to see them receive a trial that comports with the basic notions of due process accorded lawful enemy combatants under the UCMJ.

Quote:
As proponents of the 2nd amendment it seems to me (while not assuming ) that you'd be in support of "all men (people)" having the right to not have their right to bear arms infringed.
Why not the insane, the criminal, and alien unlawful enemy combatants as well? After all, why shouldn't some one who tried to blow up a Humvee in Afghanistan be able to own the firearm of his choice in Gitmo? It does say "shall not be infringed" and all men are entitled to the Bill of Rights you say... however, this is once again off topic. So if you would like to discuss whether the Second Amendment applies to all men or just citizens, please start a new thread for it.

your entire position assumes that everyone "detained" is guilty. It's bs.

Gunfire
October 25, 2006, 10:34 AM
So it only strips habeus corpus of "Non US foreign nationals". Correct? Do you know if a US citizen was on vacation and was accused of terrorism in Britain, Germany or any european country or any other democratic nation anywhere else, Japan, australia, would they be stripped of their habeus corpus rights and to be heard by a civilian judge? which country?

Isn't this a bad precedent to start worldwide? Military tribunals for foreign nationals with no appeals to any non military personel? Sounds like the ex-dictator saddam hussiens court setup.

geekWithA.45
October 25, 2006, 10:50 AM
Isn't this a bad precedent to start worldwide?

Er, no, this isn't new precedent. It codifies and clarifies into law the traditional and current handling of terrorists to be consistent with the Geneva conventions, and creates positive procedure where there was none before. True, it does distinguish terrorists from uniformed soldiers fighting under recognized flags, but the reality is that non state actors using military tactics against civilians isn't exactly new. Pirates and brigands tended to be summarilly slaughtered on sight, ya know.

Bartholomew Roberts
October 25, 2006, 11:04 AM
So it only strips habeus corpus of "Non US foreign nationals". Correct?

No, you must also have been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal (http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf) as well as being an alien. One problem with this though is the the CSRT isn't much of a court and wouldn't pass a due-process test in most Western nations. The detainee has limited rights compared to a federal court or even a military UCMJ court. On the other hand, it is a significant improvement over past practice in WWII, Korea, and Vietnam which generally involved shooting them on the spot.

Do you know if a US citizen was on vacation and was accused of terrorism in Britain, Germany or any european country or any other democratic nation anywhere else, Japan, australia, would they be stripped of their habeus corpus rights and to be heard by a civilian judge? which country?

This was precisely the argument made by the government in Hamdi v. Rumsfeld (http://www.law.cornell.edu/supct/html/03-6696.ZS.html). That argument was rejected by the Supreme Court who said "We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker."

So even if you were picked up in Afghanistan with a rifle in hand, you still have a right to habeas corpus if you are an American citizen.

Isn't this a bad precedent to start worldwide? Military tribunals for foreign nationals with no appeals to any non military personel? Sounds like the ex-dictator saddam hussiens court setup.

Well, traditionally no nation in the world has held a tribunal to determine whether the guy they captured with a rifle shooting at them was actually an enemy combatant. So on the one hand, this is an incredible degree of oversight.

On the other hand, this is different from past conflicts in a lot of ways. One is that many of the enemy combatants are difficult to distinguish from the general population in places where we are fighting. Some of the people we are detaining weren't shooting at us. Informers told us they were bad guys and we grabbed them out of their homes. The second is that this is a war with an indefinite duration. By definition, the "war on terror" is unending... so it is unlike holding German POWs until Germany surrendered. This will be a war without a formal surrender or end.

Even more disturbing from my perspective is the standard of tribunals that alien unlawful enemy combatants will get under this legislation. If you are determined to be an alien unlawful enemy combatant by the CSRT (which doesn't meet U.S., military or Western standards for due process), you can be compelled (torture that does not involve organ failure or death) to confess and then have that information used against you at trial. In addition, you will not get to see the evidence the government presents against you. You will get a military lawyer and he will be the only one who gets to see the evidence. Finally, you will have no right to a speedy trial - you can be detained indefinitely without any trial at all once you have been declared an alien unlawful enemy combatant.

I don't think these trials are appropriate for a couple of reasons. If we grabbed a guy out of his house on the word of a local informer, this process is not adequate to insure we grabbed a real bad guy. In addition, it is kind of hard to sell yourself as the shining defender of freedom and democracy when your tribunals are little different from the dictator you removed. Overall I think standards this low hurt us rather than help us.

The flipside of that is that if you grab a guy in the process of planting an IED under your Humvee, he gets the same tribunal - even though it is patently unnecessary. Further, al-Quaeda is not stupid and they do use the legal system against us. Moussaoui (who confessed of his own accord and was proud of his role) had his lawyers conduct all kinds of supoena, discovery etc. that was basically designed to force the government to hand over secret information to al-Quaeda. If you give the IED guy the same due process rights I want the "informed on" guy to have, then many of our tactics, techniques and procedures will be discovered by the enemy.

Overall, I don't think the MCA is great legislation; but I don't see it as the threat to Americans that Olbermann does either. I would like to see legislation that makes a better distinction between "suspected enemy combatants" and people we catch shooting at us; because I think those two categories should be treated differently. I think the government overreached because they wanted it to apply to the broadest category of people possible and you generally don't catch the "generals" (who have the most relevant information) in a situation where they are shooting at you.

DKSuddeth
October 25, 2006, 11:51 AM
Bart, the overall issue with this 'broad' legislation is the inevitable abuse it will see. The same thing happened with the patriot act. When the debate was on between the people (because congress had already voted and bush already signed it in to law) there were a whole lot of bush supporters saying that this new law would only apply to terrorists....then we started seeing states prosecuting meth manufacturers under the patriot act, to which we heard these same bush supporters 'why would you object to applying this harsher law to drug manufacturers?'. I simply do not trust ANY government entity with the power to circumvent the constitution in the slightest degree, it's bad policy for liberty and freedom.

Gunfire
October 25, 2006, 12:21 PM
So even if you were picked up in Afghanistan with a rifle in hand, you still have a right to habeas corpus if you are an American citizen.

Yes, if you were picked up by american forces. What if you are vacationing in Beirut (it used to be a tourist mecca anyway, I heard) by Syrian forces and accused of patronizing, a known to them but unknown to you terrorist connected establishment, so it's ok for the syrians to try you in a military tribunal without habeus corpus?

I just don't see how we can put ourselves as an example of a civilized country for the world to follow but have different standards in the criminal justice system of foreign and domestic citizens. Is that how 'We' want to be treated in a foreign country. Remember, 2500 americans a year are arrested overseas, mainly for drug crimes and we would like them to have about the same protections against overzealous prosecution as we have here. I would like to think, anyway.

Bartholomew Roberts
October 25, 2006, 12:21 PM
DK, the difference between the Patriot Act and the MCA is that the Patriot Act gave the government broad powers which it promised to only use against terrorists and then promptly began using against drug dealers and other criminals. The MCA doesn't give any powers to government except over alien unlawful enemy combatants; so it cannot be expanded.

Now I'm not generally crazy about our procedures for determining who is and isn't an alien unlawful enemy combatant; but I certainly think that if we have correctly identified someone as such, he doesn't get the same due process rights as I do as a non-combatant American citizen. In fact, if we know for a certainty that he is in fact an alien unlawful enemy combatant, I am OK with the original WWII practice of shooting them on the spot.

The problem I have is where we grab Abdul out of his house based on the testimony of Achmed the paid informant and then give him a cursory tribunal that does not give him a fair opportunity to contest his status. If we were just going to throw Abdul in a detention camp for the remainder of the war, I might be a little more tolerant of shortcomings in the CSRT. But if Abdul messes up his CSRT, we are going to allow Abdul to be tortured to give evidence against himself, deny him any trial at all at whim, and not allow him to see the evidence presented against him if we do give him trial - well that's just crap. There is no point in having a trial that meets those standards. You might as well have shot him on the spot to begin with because nobody is going to regard that trial as just or fair.

Bartholomew Roberts
October 25, 2006, 12:36 PM
Yes, if you were picked up by american forces. What if you are vacationing in Beirut (it used to be a tourist mecca anyway, I heard) by Syrian forces and accused of patronizing, a known to them but unknown to you terrorist connected establishment, so it's ok for the syrians to try you in a military tribunal without habeus corpus?

Habeas Corpus is pretty much an English common law/Western concept. You could be a Syrian citizen who did nothing but plant flowers all day and you can still get a military tribunal with no habeas corpus when you are arrested by Syrian forces.

I just don't see how we can put ourselves as an example of a civilized country for the world to follow but have different standards in the criminal justice system of foreign and domestic citizens.

First, you are missing a key component. It isn't just that you are a foreign or domestic citizen - it is that you were an unlawful enemy combatant. Under Geneva, you would have to be doing some pretty bad things to fit into that category. Under the MCA, it is a lot easier to be in that category; but it still generally requires some action on your part. There are some parts of the MCA that could be unconstitutional (based on the Hamdi and Hamdan decisions) depending on how this definition is applied in actual practice.

Is that how 'We' want to be treated in a foreign country.

I hate to break it to you; but the MCA in its current state probably has better due process procedures than the majority of nations in the world. With the exception of Western nations and a small slice of Asia, you are not going to get anything like the rights an American citizen has if you get arrested abroad regardless of how nice the U.S. government is to alien terrorists. Even most Western nations won't give you as many rights as an American citizen has in our court system...

Gunfire
October 25, 2006, 02:17 PM
Now I'm not generally crazy about our procedures for determining who is and isn't an alien unlawful enemy combatant; but I certainly think that if we have correctly identified someone as such, he doesn't get the same due process rights as I do as a non-combatant American citizen. In fact, if we know for a certainty that he is in fact an alien unlawful enemy combatant, I am OK with the original WWII practice of shooting them on the spot.

That's just it. IF we are so sure of the evidence against someone, why all the secret hocus pocus jive talk?

I hate to break it to you; but the MCA in its current state probably has better due process procedures than the majority of nations in the world. With the exception of Western nations and a small slice of Asia,

So now americans are ok with lowering the standards below western and the small slice of asian countries? I'm not because like I have already said it will encourage ALL of the standards to be lowered.

and No I am not trying to protect terrorists but either you have the evidence or you don't. I would be first in line to apply for firing squad duty for anyone truly linked to 9/11. And if you pick him up with an a firearm in hand firing on anyone, that would be a crime punishable by along time in prison, I would think. If you pick him up out of his bed with no other evidence except hearsay, I would say that man should be allowed to be set free to enjoy life, liberty and the pursuit of happiness that are natural rights that can be given or taken by no man or government from a law-abiding person. I don't care what nationality or what their religion or what color they are, that's just basic human rights. That's what we all complain about on this forum that the government isn't supposed to take our 2nd amendment rights because they are natural rights. Isn't it a mixed message to send to our reps that are making the laws. Either they are natural or they aren't. Which is it. Can't have it both ways. That's why the Rosies, the Fienstiens and the Schumers are OK with taking our 2nd amendment rights away. They don't believe the Constitution, Declaration of Independace, the BoR's sanction natural rights either because we're giving away the ammunition by agreeing with this kind of law and silence is agreement.

btw, how did the US treat and prosecute civilians captured in vietnam? Why is it different now?

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