Federal court rules against arbitrary suspension of habeas corpus


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foob
June 11, 2007, 01:45 PM
Just thought everybody should know somebody cares about the constitution. Doesn't even look like he's a citizen.

If you support the indefinite detention of a US resident just because the President labels him an "enemy combatant", just remember one day when they come for your firearms they can use the same excuse.

http://news.yahoo.com/s/ap/20070611/ap_on_re_us/enemy_combatant

Court rules in favor of enemy combatant

By ZINIE CHEN SAMPSON, Associated Press Writer 24 minutes ago

RICHMOND, Va. - The Bush administration cannot legally detain a U.S. resident it believes is an al-Qaida sleeper agent without charging him, a divided federal appeals court ruled Monday. The court said sanctioning the indefinite detention of civilians would have "disastrous consequences for the constitution — and the country."

In the 2-1 decision, the 4th U.S. Circuit Court of Appeals panel found that the federal Military Commissions Act doesn't strip Ali al-Marri, a legal U.S. resident, of his constitutional rights to challenge his accusers in court.

It ruled the government must allow al-Marri to be released from military detention.

Al-Marri has been held in solitary confinement in the Navy brig in Charleston, S.C., since June 2003. The Qatar native has been detained since his December 2001 arrest at his home in Peoria, Ill., where he moved with his wife and five children a day before the Sept. 11, 2001, terrorist attacks to study for a master's degree.

"To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them 'enemy combatants,' would have disastrous consequences for the constitution — and the country," the court panel said.

Al-Marri's lawyers argued that the Military Commissions Act, passed last fall to establish military trials after a
U.S. Supreme Court ruling, doesn't repeal the writ of habeas corpus — defendants' traditional right to challenge their detention.

This is a breaking news update. Check back soon for further information. AP's earlier story is below.

RICHMOND, Va. (AP) — The Bush administration cannot legally detain an immigrant it believes is an al-Qaida sleeper agent without charging him, a divided federal appeals court ruled Monday.

In the 2-1 decision, the 4th U.S. Circuit Court of Appeals panel found that the federal Military Commissions Act doesn't strip Ali al-Marri of his constitutional rights to challenge his accusers in court. It ruled the government must allow him to be released from military detention.

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qlajlu
June 11, 2007, 02:30 PM
I'll probably get in trouble with what I am about to say, but it is good to see the Constitution upheld for a change. I have faith in the investigative agencies in the U.S. and just to incarcerate a person because it is believed that person is involved in something illegal or to use an arbitrary label is, in my estimation, unconscionable, especially since he IS a U.S. citizen. If he was a threat to national security, there has been more than ample time to bring charges.

Now illegal aliens are another matter entirely. Illegal aliens SHOULD NOT be afforded our Constitutional protections in matters of U.S. security. If they want that protection, then they best get busy and become a citizen AFTER LEGALLY ENTERING THE U.S.

Just my $0.02 worth.

Crunker1337
June 11, 2007, 03:00 PM
I'm glad. Anyone legally in this country should be guaranteed basic rights.

ArmedBear
June 11, 2007, 03:02 PM
I'm glad, too.

There have to be limits to Executive power, and it's up to the court to make sure of that.

Mumwaldee
June 11, 2007, 03:04 PM
Yeah,

Why are they housing these suspects for years with no charge when they could be illegally surveilling and wire-tapping them like ordinary Americans.

eric_t12
June 11, 2007, 03:06 PM
Why are they housing these suspects for years with no charge when they could be illegally surveilling and wire-tapping them like ordinary Americans.

:D lol

SoCalShooter
June 11, 2007, 03:22 PM
Well this is good to hear, now if we can just get the patriot act repealed we will be a lot better off and safer too.

Titan6
June 11, 2007, 04:28 PM
Such a ruling deserves a little more play.

http://pacer.ca4.uscourts.gov/opinion.pdf/067427.P.pdf

DIANA GRIBBON MOTZ, Circuit Judge:
For over two centuries of growth and struggle, peace and war,
the Constitution has secured our freedom through the guarantee
that, in the United States, no one will be deprived of liberty
without due process of law. Yet more than four years ago military
authorities seized an alien lawfully residing here. He has been
held by the military ever since -- without criminal charge or
process. He has been so held despite the fact that he was
initially taken from his home in Peoria, Illinois by civilian
authorities, and indicted for purported domestic crimes. He has
been so held although the Government has never alleged that he is
a member of any nation’s military, has fought alongside any
nation’s armed forces, or has borne arms against the United States
anywhere in the world. And he has been so held, without
acknowledgment of the protection afforded by the Constitution,
solely because the Executive believes that his military detention
is proper.
While criminal proceedings were underway against Ali Saleh
Kahlah al-Marri, the President ordered the military to seize and
detain him indefinitely as an enemy combatant. Since that order,
issued in June of 2003, al-Marri has been imprisoned without charge
in a military jail in South Carolina. Al-Marri petitions for a
writ of habeas corpus to secure his release from military
imprisonment. The Government defends this detention, asserting
5
that al-Marri associated with al Qaeda and “prepar[ed] for acts of
international terrorism.” It maintains that the President has both
statutory and inherent constitutional authority to subject al-Marri
to indefinite military detention and, in any event, that a new
statute -- enacted years after al-Marri’s seizure -- strips federal
courts of jurisdiction even to consider this habeas petition.
We hold that the new statute does not apply to al-Marri, and
so we retain jurisdiction to consider his petition. Furthermore,
we conclude that we must grant al-Marri habeas relief. Even
assuming the truth of the Government’s allegations, the President
lacks power to order the military to seize and indefinitely detain
al-Marri. If the Government accurately describes al-Marri’s
conduct, he has committed grave crimes. But we have found no
authority for holding that the evidence offered by the Government
affords a basis for treating al-Marri as an enemy combatant, or as
anything other than a civilian.
This does not mean that al-Marri must be set free. Like
others accused of terrorist activity in this country, from the
Oklahoma City bombers to the surviving conspirator of the September
11th attacks, al-Marri can be returned to civilian prosecutors,
tried on criminal charges, and, if convicted, punished severely.
But the Government cannot subject al-Marri to indefinite military
detention. For in the United States, the military cannot seize and
imprison civilians -- let alone imprison them indefinitely.
6
I.
Al-Marri, a citizen of Qatar, lawfully entered the United
States with his wife and children on September 10, 2001, to pursue
a master’s degree at Bradley University in Peoria, Illinois, where
he had obtained a bachelor’s degree in 1991. The following day,
terrorists hijacked four commercial airliners and used them to kill
and inflict grievous injury on thousands of Americans. Three
months later, on December 12, 2001, FBI agents arrested al-Marri at
his home in Peoria as a material witness in the Government’s
investigation of the September 11th attacks. Al-Marri was
imprisoned in civilian jails in Peoria and then New York City.
In February 2002, al-Marri was charged in the Southern
District of New York with the possession of unauthorized or
counterfeit credit-card numbers with the intent to defraud. A year
later, in January 2003, he was charged in a second, six-count
indictment, with two counts of making a false statement to the FBI,
three counts of making a false statement on a bank application, and
one count of using another person’s identification for the purpose
of influencing the action of a federally insured financial
institution. Al-Marri pleaded not guilty to all of these charges.
In May 2003, a federal district court in New York dismissed the
charges against al-Marri for lack of venue.
The Government then returned al-Marri to Peoria and he was reindicted
in the Central District of Illinois on the same seven
7
counts, to which he again pleaded not guilty. The district court
set a July 21, 2003 trial date. On Friday, June 20, 2003, the
court scheduled a hearing on pre-trial motions, including a motion
to suppress evidence against al-Marri assertedly obtained by
torture. On the following Monday, June 23, before that hearing
could be held, the Government moved ex parte to dismiss the
indictment based on an order signed that morning by the President.
In the order, President George W. Bush stated that he
“DETERMINE[D] for the United States of America that” al-Marri: (1)
is an enemy combatant; (2) is closely associated with al Qaeda; (3)
“engaged in conduct that constituted hostile and war-like acts,
including conduct in preparation for acts of international
terrorism;” (4) “possesses intelligence . . . that . . . would aid
U.S. efforts to prevent attacks by al Qaeda;” and (5) “represents
a continuing, present, and grave danger to the national security of
the United States.” The President determined that al-Marri’s
detention by the military was “necessary to prevent him from aiding
al Qaeda” and thus ordered the Attorney General to surrender al-
Marri to the Secretary of Defense, and the Secretary of Defense to
“detain him as an enemy combatant.”
The federal district court in Illinois granted the
Government’s motion to dismiss the criminal indictment against al-
Marri. In accordance with the President’s order, al-Marri was then
8
transferred to military custody and brought to the Naval
Consolidated Brig in South Carolina.

Note that the court does not call for his release, merely that he should not be held without charge as the executive does not have that power. This is in my mind a very correct ruling.

MrTuffPaws
June 11, 2007, 04:36 PM
WOOT! It is nice to see the consitution in action again.

araiford
June 11, 2007, 04:49 PM
It is scary that our President thinks he can order the military to detain someone indefinitely.

Titan6
June 11, 2007, 04:51 PM
And the dissent op...

HUDSON, District Judge, dissenting:
I regret that I am unable to concur in the majority opinion,
except to the extent that I agree that this Court has jurisdiction
over this appeal. Although I do not embrace all aspects of the
majority’s jurisdictional reasoning, I agree that Section 7 of the
Military Commission Act of 2006 (MCA) does not divest this Court of
its constitutional jurisdiction, under Article I, Section 9,to
review habeas corpus decisions involving individual detainees
within the United States. See Hamdi v. Rumsfeld,542 U.S. 507, 525,
124 S. Ct. 2633, 2644 (2004). The MCA may, however, foreclose a
right of statutory review. Beyond the jurisdictional question, the
majority and I part company.
While I commend the majority on a thoroughly researched and
impressively written opinion, I must conclude that their analysis
flows from a faulty predicate. In my view, the appellant was
properly designated as an enemy combatant by the President of the
United States pursuant to the war powers vested in him by Articles
I and II of the United States Constitution and by Congress under
the Authorization to Use Military Force (AUMF). See Hamdi v.
Rumsfeld, 296 F.3d 278, 281–82 (4th Cir. 2002).1 I am also of the
the United States.” Hamdi, 542 U.S. at 526, 124 S. Ct. at 2645
(internal quotation marks omitted).
The boundaries of activity qualifying for “enemy combatant”
status staked out in Hamdi were not meant to be immutable. The
obvious impact of the limiting language was to confine the court’s
holding to the immediate facts before them.
While al-Marri was not captured while armed in a formal
theater of war, the evidence would certainly support the conclusion
that he was actively supporting forces hostile to the United States
— and that the forces he was supporting were actively engaged in
armed conflict against the United States.
Given the unconventional nature of the conflict that the
United States is engaged in with al Qaeda, the exact definitions of
“enemy combatants” and “enemy belligerents” are difficult to
conceptualize and apply with precision.
79
opinion that al-Marri has received all due process entitlements
prescribed by existing United States Supreme Court precedent. I
would therefore vote to affirm the district court’s dismissal of
al-Marri’s Petition for Writ of Habeas Corpus.
The wellspring of the majority’s reasoning is the notion that
a non-military person arrested on U.S. soil, outside the zone of
battle, for providing active aid to the enemy at time of war,
cannot be declared an enemy combatant and detained for the duration
of the hostilities, but must be prosecuted in the civilian courts
of the United States. In fact, the majority would even go further
and find that the language of the AUMF does not include
organizations, such as al Qaeda, that are not affiliated with
recognized nation states. The clear congressional intent
underlying the AUMF was to afford the President of the United
States all the powers necessary to suppress those individuals or
organizations responsible for the terrorist attack on September 11,
80
2001. This broad language would certainly seem to embrace
surreptitious al Qaeda agents operating within the continental
United States. The AUMF provided as follows:
[T]he President is authorized to use all necessary and
appropriate force against those nations, organizations,
or persons he determines planned, authorized, committed,
or aided the terrorist attacks that occurred on September
11, 2001, or harbored such organizations or persons, in
order to prevent any future acts of international
terrorism against the United States by such nations,
organizations or persons.
Pub. L. No. 107–40, § 2(a), 115 Stat. 224, 224 (2001) (emphasis
added). History has proven that al Qaeda, an international
terrorist organization with which the United States is at war,
falls squarely within that definition. See Hamdi v. Rumsfeld, 316
F.3d 450, 459 (4th Cir. 2003), vacated and remanded on other
grounds, Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633 (2004).
Central to the majority’s analysis is the locus of his arrest.
Unlike the petitioners in Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.
Ct. 2633 (2004), and Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006),
al-Marri is a lawful resident alien who was not taken into custody
in a battle zone. He was arrested in Peoria, Illinois, where he
was residing on a student visa. Despite powerful evidence of his
connection to al Qaeda, the majority believe the President is
without power to declare him an enemy combatant. They believe he
must be indicted and tried for crimes against the United States.
Although definitive precedent is admittedly sparse, in my opinion,
this position is unsupported by the weight of persuasive authority.
81
In Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005), a panel of
this Court unanimously rejected the argument that the locus of
capture was relevant to the President’s authority to detain an
enemy combatant. See id. at 394. Padilla, a U.S. citizen, was
arrested by FBI agents upon his arrival at O’Hare International
Airport in Chicago, Illinois. Id. at 388. A close associate of al
Qaeda, Padilla had been “armed and present in a combat zone during
armed conflict between al Qaeda/Taliban forces and the armed forces
of the United States.” Id. at 390 (internal quotation marks
omitted). Moreover, “Padilla met with Khalid Sheikh Mohammad, a
senior al Qaeda operations planner, who directed Padilla to travel
to the United States for the purpose of blowing up apartment
buildings, in continued prosecution of al Qaeda’s war of terror
against the United States.” Id.
This Court in Padilla reversed the holding of the district
court that the President lacked authority under the AUMF to detain
Padilla, and that Padilla must be either criminally prosecuted or
released. Id. With respect to Padilla’s argument that the
circumstances of his detention mandated only the option of criminal
prosecution, this Court noted:
. . . We are convinced, in any event, that the
availability of criminal process cannot be determinative
of the power to detain, if for no other reason than that
criminal prosecution may well not achieve the very
purpose for which detention is authorized in the first
place—the prevention of return to the field of battle.
Equally important, in many instances criminal prosecution
would impede the Executive in its efforts to gather
82
intelligence from the detainee and to restrict the
detainee’s communication with confederates so as to
ensure that the detainee does not pose a continuing
threat to national security even as he is
confined—impediments that would render military detention
not only an appropriate, but also the necessary, course
of action to be taken in the interest of national
security.
Id. at 394–95.
Military detention during time of war and criminal prosecution
serve discrete functions. The object of criminal prosecution is to
punish for legal transgression. The purpose of military detention
is to immobilize the enemy during hostilities. Hamdi, 542 U.S. at
518, 124 S. Ct. at 2640. Such detention is also intended “to
prevent the captured individual from serving the enemy.” In re
Territo, 156 F.2d 142, 145 (9th Cir. 1946).
The only significant fact that distinguishes the justification
for Padilla’s detention from that of al-Marri is that Padilla at
some previous point in time had been armed and present in a combat
zone. There was no indication, however, that Padilla was ever a
soldier in a formal sense, particularly while acting on U.S. soil.
Like Padilla, al-Marri, an identified al Qaeda associate, was
dispatched to the United States by the September mastermind as a
“sleeper agent” and to explore computer hacking methods to disrupt
the United States’ financial system. Moreover, al-Marri volunteered
for a martyr mission on behalf of al Qaeda, received funding from
a known terrorist financier, and communicated with known terrorists
by phone and e-mail. Decl. of Jeffrey N. Rapp, Director, Joint
2Al-Marri not only failed to offer any evidence on his behalf,
he refused to even participate in the initial evidentiary process.
Al-Marri, 443 F. Supp. 2d at 785.
83
Intelligence Task Force for Combating Terrorism, ¶ 7, Sept. 9, 2004.
It is also interesting to note that al-Marri arrived in the United
States on September 10, 2001. Id.
The district court in this case credited the Declaration of
Rapp, which was unrebutted, and found by a preponderance of the
evidence, that al-Marri had been properly classified and detained
as an enemy combatant. See Al-Marri v. Wright, 443 F. Supp. 2d 774,
784 (D.S.C. 2006).2
The standard employed by the district court to determine al-
Marri’s qualifications for enemy combatant status was analogous to
that invoked by the United States Supreme Court in Ex Parte Quirin,
317 U.S. 1, 63 S. Ct. 2 (1942). In Quirin, the Court explained,
[E]ntry upon our territory in time of war by enemy
belligerents, including those acting under the direction
of the armed forces of the enemy for the purpose of
destroying property used or useful in prosecuting the
war, is a hostile and war-like act. . . .
. . . .
. . . Citizens who associate themselves with the
military arm of the enemy government, and with its aid,
guidance and direction enter this country bent on hostile
acts are enemy belligerents within the meaning of . . .
the law of war. . . .
Id. at 36–38. The Quirin Court further provided that “[i]t is
without significance that petitioners were not alleged to have
borne conventional weapons or that their proposed hostile acts did
3Just as mere presence is not sufficient to make one a part of
a criminal conspiracy or an accomplice to a crime, I agree with the
majority that mere association with al Qaeda or an organization
that supports al Qaeda does not necessarily make one an enemy
combatant. See Milligan, 71 U.S. at 131 (stating that “[i]f in
Indiana [Milligan] conspired with bad men to assist the enemy, he
is punishable for it in the courts of Indiana”). This is not a
case, however, of mere association. Al-Marri trained with and
became an agent of al Qaeda and, operating under its guidance and
direction, entered the United States on September 10, 2001, “for
the purpose of engaging in and facilitating terrorist activities
84
not necessarily contemplate collision with the Armed Forces of the
United States.” Id. at 37. “Nor are petitioners any the less
belligerents if, as they argue, they have not actually committed or
attempted to commit any act of depredation or entered the theatre
or zone of active military operations.” Id. at 38.
Ex Parte Milligan, 71 U.S. 2 (1866), does not undermine the
district court’s decision. Milligan did not associate himself with
a rebellious State with which the United States was at war. See
Milligan, 71 U.S. at 131; Quirin, 317 U.S. at 45, 63 S. Ct. at 19
(noting that the Court in Milligan “concluded that Milligan [was]
not . . . a part of or associated with the armed forces of the
enemy”). In this case, the unrebutted evidence shows that al-Marri
associated himself with and became an agent of al Qaeda, the
organization targeted by the AUMF and the enemy with which the
United States is at war. See Rapp Decl. ¶ 7 (“Al-Marri is an al
Qaeda ‘sleeper agent’ . . . was trained at an al Qaeda terror camp
. . . met personally with Usama Bin Laden . . . and volunteered for
a martyr mission.”).3 As noted above, it is without significance
subsequent to September 11,” the very activities that the AUMF was
intended to prevent. Rapp Decl. ¶ 7; see AUMF § 2(a).
85
that al Marri did not himself carry a conventional weapon in a zone
of active military operations. See Quirin, 317 U.S. at 37–38.
In Hamdi, the Supreme Court considered the due process
requirements for a citizen being held in the United States as an
enemy combatant. See Hamdi, 542 U.S. at 509, 124 S. Ct. at 2635.
Hamdi was an American citizen captured in Afghanistan for allegedly
taking up arms with the Taliban in a combat zone. Id. at 510, 124
S. Ct. at 2635. Like al-Marri, Hamdi was being detained at the
Naval Brig in Charleston, South Carolina. Id. at 510, 124 S. Ct.
2636. After applying a balancing of interest calculus, the Court
observed, “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.” Hamdi, 542 U.S. at 533, 124 S. Ct. at 2648. “It
is equally fundamental that the right to notice and an opportunity
to be heard must be granted at a meaningful time and in a
meaningful manner.” Id. at 533, 124 S. Ct. at 2649 (internal
quotation marks omitted).
After upholding the power of the President to detain al-Marri
under the AUMF, the district court, after providing him with all
due process entitlements articulated in Hamdi, found that his
86
continued detention as an enemy combatant was proper and dismissed
his petition. See Al-Marri, 443 F. Supp. 2d at 785. In addition,
al-Marri was represented by counsel at all stages of the
proceedings below.
I believe the district court correctly concluded that the
President had the authority to detain al-Marri as an enemy
combatant or belligerent. Although al-Marri was not personally
engaged in armed conflict with U.S. forces, he is the type of
stealth warrior used by al Qaeda to perpetrate terrorist acts
against the United States. Al-Marri’s detention is authorized
under the AUMF “to prevent any future acts of international
terrorism against the United States.” AUMF § 2(a). Furthermore,
setting aside the amorphous distinction between an “enemy
combatant” and an “enemy belligerent,” there is little doubt from
the evidence that al-Marri was present in the United States to aid
and further the hostile and subversive activities of the
organization responsible for the terrorist attacks that occurred on
September 11, 2001.
I therefore vote to affirm the district court.

What we are talking about here is likely a very, very bad man. Still does not mean that he does not have rights.

ArmedBear
June 11, 2007, 05:05 PM
What we are talking about here is likely a very, very bad man.

Yes. See, that's why I can't get as animated about some of this stuff as a lot of the BDS sufferers, including Libertarians. I actually do think that the intent of these detentions is a good intent. I do think that the Executive Branch has its heart in the right place, and I do not believe that I see some runaway abuse of power for power's sake, nor for political ends. Mistakes, biases, sure, but there hasn't been an administration since 1787 without these inevitable human characteristics.

Still does not mean that he does not have rights.

Hell, I don't really care about HIS rights. He probably has the right to a hanging.

HOWEVER, this stuff needs to be spelled out so that the potential for abuse -- and it's a huge potential -- can be limited. All of our rights must be protected, and in this case, that requires protecting his, such as they are.

We can't always rely on government officials to have their hearts in the right place. Many do, especially when it comes to national security. But it wouldn't take many to destroy our whole system, without checks, balances and limits.

alan
June 11, 2007, 05:23 PM
There might yet be hope for the nation.

Titan6
June 11, 2007, 05:26 PM
Judge Gribbon is an anti-Bush liberal. She has voted down the partial birth ban in VA, invoking the name of higher powers at town meetings and other such rulings.

I think the dissent is better written than the majority, but I still agree with the decision even if the premise is not the best.

I do think that the Executive Branch has its heart in the right place, and I do not believe that I see some runaway abuse of power for power's sake, nor for political ends.

Bear- The run away power abuse comes later. This is what I have problems getting people to understand. Pres. Bush I think means well and his intentions are likely good. The issue is what about the next guy? or Girl? Think they will care what he was doing or why? Very unlikely I say. They will say; "hey look I have a new toy what can I do with it?"

insidious_calm
June 11, 2007, 07:07 PM
I'm curious what you could possibly gain from keeping someone locked up and isolated that long? Aside from the obvious reason that you screwed up and he really isn't a terrorist and you don't want that fact to get out. Dead men tell no tales after all, apparently neither do those held indefinately in military isolation.

I have no idea whether the guy is a terrorist or not. If he is why not charge him and convict him? Or, are we no longer a country of laws and justice? The whole "enemy combatant" things stinks of imperialism. I believ there are terrorists in this country, both foreign and domestic. I also believe they should be brought to justice and I fail to see how that has been accomplished in this case. Anyone?

The more I read about this situation and others the less I like it. It goes against everything this country stands for. If we abandon the founding principles of this country in the name of the GWOT then what really is left to fight for?


I.C.

Bartholomew Roberts
June 11, 2007, 07:37 PM
If you support the indefinite detention of a US resident just because the President labels him an "enemy combatant", just remember one day when they come for your firearms they can use the same excuse.

Not likely since I am not a resident alien (which is the defining word apparently left out of the the "US resident" description above).

Flyboy
June 11, 2007, 07:55 PM
Judge Gribbon is an anti-Bush liberal.
...well, based on what I've seen from Bush, and what I've read in the Constitution, I'd say that's probably true of the Framers, too.
She has voted down the partial birth ban in VA...
...which ban is within the enumerated powers...how?

Matt King
June 11, 2007, 08:04 PM
I have no doubt that the man held is a terrorist. However, you still have the right to fair trial, even if you are evil. This is a big win for the Sixth Amendment.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

jselvy
June 11, 2007, 08:12 PM
Let's give him a fair and speedy trial and then hang him outside the courthouse.
All legit and aboveboard.
Or we could grant him the gift of being punished according to Islamic Law and Just behead him.
Coat him in Lard first so he has NO chance at Paradise of course.
Fight Religion with Religion

Jefferson

Lew
June 11, 2007, 08:18 PM
What war powers in Article 1 and 2, I'd like to know.

Titan6
June 11, 2007, 08:22 PM
Flyboy: All I am saying is that she may have done the right thing for the wrong reasons. I think the ruling is weak. And should have gone into more on the constitutional protections instead of the status and location of the person. It is hard to argue this point:

The wellspring of the majority’s reasoning is the notion that
a non-military person arrested on U.S. soil, outside the zone of
battle, for providing active aid to the enemy at time of war,
cannot be declared an enemy combatant and detained for the duration
of the hostilities, but must be prosecuted in the civilian courts
of the United States. In fact, the majority would even go further
and find that the language of the AUMF does not include
organizations, such as al Qaeda, that are not affiliated with
recognized nation states. The clear congressional intent
underlying the AUMF was to afford the President of the United
States all the powers necessary to suppress those individuals or
organizations responsible for the terrorist attack on September 11,
2001. This broad language would certainly seem to embrace
surreptitious al Qaeda agents operating within the continental
United States.

To say that he is not combatant because he was found in the US without a uniform or clear ties to the organization in question is weak at best. The law itself should be thrown out or broadly rewritten.

The founding fathers had an answer for those who supported the British during the war; they expelled them.

I'm curious what you could possibly gain from keeping someone locked up and isolated that long?

Why indeed? What is worse to die a martyr for your cause and go to paradise or to remain in prison until you lose control of your bowels and then die anyway?

insidious_calm
June 11, 2007, 08:59 PM
Titan6 tossed this into the ether:Why indeed? What is worse to die a martyr for your cause and go to paradise or to remain in prison until you lose control of your bowels and then die anyway?


Which I would be perfectly fine with had he been tried and convicted. Perhaps the question to be asked is why is the government afraid to put him on trial? See your logic fails that point. If he is a terrorist put him on trial, convict him, and punish him. Whether they be put to death, imprisoned for life, or some other suitable measure matters not to me.

There is nothing legitimate to gain by keeping someone locked in isolation for 5 years without a trial. Though I am quite eager to hear you try to justify it. You either believe in the founding principles of this country or you don't belong in it. That goes for everyone as far as I'm concerned.

Titan6
June 11, 2007, 09:13 PM
Calm- Easy big guy.

There is nothing legitimate to gain by keeping someone locked in isolation for 5 years without a trial. Though I am quite eager to hear you try to justify it.

Not a chance of that. My only concern is that the court decision was not strong enough and might get overturned on appeal. I was just offering a possible reason for why somone might be locked in a dark hole forever not a justification.

foob
June 11, 2007, 09:25 PM
Not likely since I am not a resident alien (which is the defining word apparently left out of the the "US resident" description above).

Er... Jose Padilla is a citizen. He also got indefinite detention until recently. The declaring of somebody as an enemy combatant has no restriction on nationality or location of arrest.

thexrayboy
June 11, 2007, 10:15 PM
I actually do think that the intent of these detentions is a good intent. I do think that the Executive Branch has its heart in the right place, and I do not believe that I see some runaway abuse of power for power's sake, nor for political ends. Mistakes, biases, sure, but there hasn't been an administration since 1787 without these inevitable human characteristics.



Whether or not the Executive branch has its "heart in the right place" or not is really irrelevant. The constitution and concepts such as Habeus corpus were concieved and made part of our fundamental principles to prevent abuse of power, whether the abuse being perpetrated is malevolent and for nefarious purpose or of a benevolent protective nature is not and should never be a factor.

The basic facts are that this man is being held against his will. If he has committed a crime the government must charge him with it, try him and let the facts dictate the outcome. It should not matter what his race, religion, belief or crime is. If we allow any exception to the principles of Habeas corpus we open the gates to a hellish existence where Big Brother can whisk anyone and everyone it chooses away to some gulag. All in the name of "national security" or whatever cause du jour is prevalent.

Intent is irrelevant. Holding the government to the letter of the law is the only proper way for this issue to be dealt with.

TallPine
June 11, 2007, 10:23 PM
What we are talking about here is likely a very, very bad man.
Isn't that what the civilian courts are supposed to determine ...?

Frog48
June 11, 2007, 10:28 PM
I'm glad to see that they're putting their foot down. Originally, I was a Bush supporter, but the Patriot Act and Military Commissions Act have really undermined the Constitution and led for future abuse. If we're not careful, they're gonna be indefinitely detaining us for speeding tickets, Soviet gulag style.

Bartholomew Roberts
June 11, 2007, 11:26 PM
Er... Jose Padilla is a citizen. He also got indefinite detention until recently. The declaring of somebody as an enemy combatant has no restriction on nationality or location of arrest.

If by recently you mean 2003, then I guess so. Padilla was arrested May 8, 2002 and by December 18, 2003 the Second Circuit Court of Appeals had issued a ruling in his case - that isn't exactly a glacial response in our criminal justice system, especially when the executive was actively trying to delay the trial. By February 20, 2004, Padilla's case was before the Supreme Court who remanded on procedural grounds. For comparison, the plaintiffs in Parker filed their case in D.C. federal court on February 10, 2003 and only recently received a decision from the appellate court. The case likely will not make the Supreme Court before Summer 2008.

Declaring someone an enemy combatant may not have a restriction on nationality; but the Supreme Court has already ruled that U.S. citizens cannot be detained indefinitely without charges. See Hamdi v. Rumsfeld (http://www.law.cornell.edu/supct/html/03-6696.ZS.html)

"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"

foob
June 11, 2007, 11:35 PM
I was saying a citizen can also be declared an enemy combatant and locked up without trial. You were saying that it can't happen to you because you are a citizen. Well it happened to Padilla. Lawyers challenged his status, that doesn't mean he wasn't classified as an enemy combatant at the time. The government was never going to charge him until their hand was forced by the supreme court.

He could have spent one day or one year or five years in the brig, doesn't negate the fact a citizen was arrested on US soil for indefinite detention without charges.

You do know Padilla was never freed and Hamdi v. Rumsfeld never applied to him. His appeal to the supreme court was dismissed based on a technicality.

He has always been detained indefinitely without charges, until january 3rd 2006 where he was transferred to be charged. So yes 2006 is recent, not 2003 as you incorrectly state. He was never released, instead as the government continued to appeal higher and higher, he continued to be locked up with no possibility of trial. Every court continued to stay any release order pending appeal.

Lawyers have been challenging the status of those held in Guantanamao too, doesn't mean they haven't been declared enemy combatants or are not in indefinite detention.

Yes Hamdi v. Rumsfeld has reversed it. That does not prevent the executive branch from indefinitely detaining a citizen enemy combatant. If they were to do it again, the courts will hear it again and declare it illegal. But you never know, the newer supreme court may reverse the old judgement. You could again spend months or years in jail waiting for the courts to free you.

Aguila Blanca
June 11, 2007, 11:39 PM
It is scary that our President thinks he can order the military to detain someone indefinitely.
Indeed so.

It is also frightening that the President cannot distinguish between an "enemy combatant" (which would be a member of an enemy country's armed forces, engaged in "combat") and a civilian who may (or who may not) have been engaged in criminal, even terroristic acts, but who is not acting under the authority of any country's armed forces or government.

It is even more frightening that more than one person aside from the President agrees that the President either does or should have the authority to make this illogical "determination."

If we are ever to salvage the Constitution, we must constantly remind those in power that we use words to communicate, and that words have prescribed meanings. "Combat" is not the same as "terrorism."

Kim
June 12, 2007, 12:12 AM
Might want to check out Volokh Conspiracy. They seem to disagree and think this will be overturned. I usually think their opinions on alot of things are spot on. And yes they are libertarians. Not everything Bush has done is like the ACLU believes. Not all things are a shredding of the Constitution just because people scream that over and over. After all if I remember right the left including Gore thinks we should fight terrorists including Al Quida as a criminal problem. Doesn't seem like the ACLU and such people want us to be able to do that very effectively. But I knew that all along. :(

Bartholomew Roberts
June 12, 2007, 12:15 AM
I was saying a citizen can also be declared an enemy combatant and locked up without trial. You were saying that it can't happen to you because you are a citizen. Well it happened to Padilla.

Really? Because if Padilla never got a trial, it is tough to explain how he was standing before the Second Circuit Court of Appeals about 18 months after he was arrested (which isn't an unusual length of time for a criminal appeal) or how he was standing before the Supreme Court in less than two years.

He could have spent one day or one year or five years in the brig, doesn't negate the fact a citizen was arrested on US soil for indefinite detention without charges.

Nor does the fact that the executive branch tried to do so negate the fact that they were slapped down by the courts and in a faster time period than many criminal appeals are heard.

You do know Padilla was never freed and Hamdi v. Rumsfeld never applied to him. His appeal to the supreme court was dismissed based on a technicality.

Are we assuming he should be freed? I thought that we were arguing he should get a trial, which is what he received - and Hamdi v. Rumsfeld certainly applies to him since he is a U.S. citizen. Just because the Supreme Court didn't explicitly say so doesn't mean lower courts can say "Well, that ruling only applies to Hamdi and not Padilla"

This is one of my major gripes with this issue is that so-called "human rights" advocates keep lying about the application of this law and creating grossly distorted scenarios to imply that any American might be grabbed up off the streets and thrown into the dungeons never to be heard of again. Even when the government tried to assert that authority, it was immediately shut down and now that there are Supreme Court rulings on it, the chances haven't improved.

Anytime I see someone using hyperbole to make a point, I always have to wonder how much of a point they have if they can't make it based on the undisputed facts?

He has always been detained indefinitely without charges, until january 3rd 2006 where he was transferred to be charged. So yes 2006 is recent, not 2003 as you incorrectly state.

Which totally misses the point... you implied earlier that the government can just designate American citizens as enemy combatants and throw them in jail without so much as a "by your leave" and they would never be heard of again. That was BS even before Hamdi v. Rumsfeld... Padilla was arguing his case in court almost immediately and had made the appellate court before 18 months was out.

Lawyers have been challenging the status of those held in Guantanamao too, doesn't mean they haven't been declared enemy combatants or are not in indefinite detention.

That is because they are not American citizens. Now if that offends you that non-Americans can be put in that situation, I certainly understand that; but implying that this is some kind of precedent for Americans to be thrown into prison without any kind of due process is BS.

Yes Hamdi v. Rumsfeld has reversed it. That does not prevent the executive branch from indefinitely detaining a citizen enemy combatant.

Yes, it does.

If they were to do it again, the courts will hear it again and declare it illegal.

Which kind of suggests that you won't be able to detain citizens "indefinitely" doesn't it? Seriously, the Supreme Court wouldn't sanction the detention of an American citizen who was picked up on the battlefield in Afghanistan and yet people with political agendas like to imply that we are just steps away from the government grabbing grandmother off the street and throwing her in the dungeon with no charges.

Of course when you ask for actual examples of this, the best they can come up with is Hamdi (American citizen picked up on a battlefield in Afghanistan) and Padilla (convicted felon picked up in U.S. as part of bombing plot) - both of these people got access to the court system despite their "enemy combatant" designation. Both Padilla and Hamdi had their case reviewed by the Supreme Court before the Parker plaintiffs even got an appellate review in D.C.

foob
June 12, 2007, 12:22 AM
and throw them in jail without so much as a "by your leave" and they would never be heard of again.

When did I say they would never be heard again? I'll wait for a quote. Please feel free to take your time. There is a big difference between labeled an enemy combatant and arrested and held without charges with the intention for it to be indefinite, versus "never be heard of again".

Really? Because if Padilla never got a trial, it is tough to explain how he was standing before the Second Circuit Court of Appeals about 18 months after he was arrested (which isn't an unusual length of time for a criminal appeal) or how he was standing before the Supreme Court in less than two years.


Wrong wrong wrong. He was never charged, he never got a trial until May 15 2007.

His lawyers appealed his detention, that is not a criminal trial. A criminal trial requires an indictment. You may want to be technical and call any hearing before a court a trial, I beg to differ.

Arrested in 2002, held in detention until 2005 when he was indicted. Yeah that was real fast... 3+ years to get indicted is NOT fast. Seriously, how do you come up with these conclusions.
On November 22, 2005, CNN's front page broke the news that Padilla had finally been indicted on charges he "conspired to murder, kidnap and maim people overseas.

Habeas Corpus is a writ to seek relief from unlawful imprisonment, it is not a criminal trial.

The courts were determining whether Habeas Corpus can be denied to him and whether the President can detain him without charges. Not actual Habeas Corpus action, not trial.

Read about him (http://en.wikipedia.org/wiki/Jos%C3%A9_Padilla_%28prisoner%29) before making up stuff about what happened to Padilla. Right now you are just lying about the case of Padilla to get your point through. Talk about using hyperbole.

If you are right, then why in 2005 did the lower court disagree with Hamdi v. Rumsfeld (2004):
On September 9, 2005, a three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that President Bush does indeed have the authority to detain Padilla without charges, in an opinion written by judge J. Michael Luttig.
Wow a lower court refusing to follow a precedent set by the U.S. supreme court.

If the Hamdi v. Rumsfeld case is clear cut, then why the need for this:
On April 3, 2006, the U.S. Supreme Court declined, with three justices dissenting from denial of certiorari, to hear Padilla's appeal from the 4th Circuit Court's decision that the President had the power to designate him and detain him as an "enemy combatant" without charges and with disregard to habeas corpus.

3 supreme court justices dissenting from denial of certiorari. Hmm.

Bartholomew Roberts
June 12, 2007, 12:32 AM
There is a big difference between labeled an enemy combatant and arrested and held without charges with the intention for it to be forever, versus "never be heard of again".

I'm sorry. Are you seriously arguing that I misconstrued your words because the difference between arresting someone with the intention of detaining them forever and "never being heard of again" is so great that my summary was unfair to your idea?

His lawyers appealed his detention, that is not a trial. A trial requires charges, he was never charged. He never stood before the Second Circuit Court of Appeals AFAIK, he never appeared in court.

He was charged, even your earlier posts acknowledged that. What was I saying about hyperbole earlier? Second, the point is that he got access to the justice system. The executive tried to detain him without charges and the judiciary said "No, you can't do that." Now let's compare that result with your initial claim:

If you support the indefinite detention of a US resident just because the President labels him an "enemy combatant", just remember one day when they come for your firearms they can use the same excuse.

Does that claim stand up based on past court rulings? No.

The courts were determining whether Habeas Corpus can be denied to him, not actual Habeas Corpus action.

And what did they determine and how did that affect the initial claim you are disputing?

foob
June 12, 2007, 12:49 AM
Originally posted by Barth:
He was charged, even your earlier posts acknowledged that. What was I saying about hyperbole earlier? Second, the point is that he got access to the justice system. The executive tried to detain him without charges and the judiciary said "No, you can't do that." Now let's compare that result with your initial claim:

Er.. he was charged in 2005 and stood trial in 2007. Your claim was he stood trial and was charged in 2003, one year after his arrest. You said that was not recent. You were mistaken. I have explained the difference in the earlier post.

The judiciary never said "no, you can't do that", refer to below. The highest court to rule on his status is the 4th US Circuit Court of Appeals, and they said the President has the power.


Originally posted by Barth:
Does that claim stand up based on past court rulings? No.

Yes. Refer to below.


Originally posted by Barth:
And what did they determine and how did that affect the initial claim you are disputing?

Er... in 2005, 4th US Circuit Court of Appeals ruled the President has the authority to detain Padilla without charges. Hamdi v Rumsfeld was in 2004. So how do you explain this?

If you are right, then why in 2005 did the lower court disagree with Hamdi v. Rumsfeld (2004):
On September 9, 2005, a three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that President Bush does indeed have the authority to detain Padilla without charges, in an opinion written by judge J. Michael Luttig.


This decision has not been overruled by the supreme court and has been left to stand. Somehow, you are implying the lower court refused to follow Supreme Court precedent (which is freaking illegal), and the supreme court let their decision stand? Maybe, just maybe, you are wrong about the Padilla case.


Sadly my attitude during online discussions is pretty bad. I'll unsubscribe from this thread and leave the discussion to others. If you have a valid point to make to me, bring it to PM.

Bartholomew Roberts
June 12, 2007, 08:44 AM
Er.. he was charged in 2005 and stood trial in 2007. Your claim was he stood trial and was charged in 2003, one year after his arrest. You said that was not recent. You were mistaken. I have explained the difference in the earlier post

If by "explained the difference" you mean completely disregarded his 2003 apellate habeas corpus hearing and his 2004 Supreme Court hearing, then yes, you have made it clear that these trials did not actually free him as they only addressed whether he could be held without specific charges being filed.

Er... in 2005, 4th US Circuit Court of Appeals ruled the President has the authority to detain Padilla without charges. Hamdi v Rumsfeld was in 2004. So how do you explain this?

You are discussing two different things. Do you understand the difference? The Fourth Circuit interpreted the Hamdi court as saying a U.S. citizen must receive habeas corpus hearing and have a chance to prove he is not an enemy combatant. The Fourth Circuit then said that Padilla had this chance and he could be held without charges. However, in reality this was nothing more than a delaying tactic and the Feds charged Padilla before it could go to the Supreme Court; because they knew it would be overturned.

The point being that even if the Fourth Circuit's interpretation of the Hamdi case is the "correct" one, you still get a trial in front of a U.S. federal judge and an appeals process to prove you are not an enemy combatant. You don't just get declared an enemy combatant and detained forever with no chance to prove otherwise. Even enemy aliens get the military tribunals (which have already freed some prisoners).

roo_ster
June 12, 2007, 10:30 AM
She has voted down the partial birth ban in VA...
...which ban is within the enumerated powers...how?
Read the 9th Amendment to the COTUS.

The Article II enumerated powers in the COTUS have nothing to say WRT powers left to the states & the people of which the legislation in question was a product.

ilbob
June 12, 2007, 12:02 PM
It is scary that our President thinks he can order the military to detain someone indefinitely.
Why? It is not unheard of for the military or other parmilitary agenices such as the CIA to do so. FDR did it, and so has every president since, and probably before that. You just hear about it now becasue there are so many Bush bashers out there these days leaking every secret they can.

That being said, I am not so sure the court is wrong in this case. I think it is a bit of a stretch to call someone a combatant unless he has actually engaged in some kind of combat activities against the US or US citizens.

I support the confinement of unlawful combatants captured in the act, until such time as they can be fairly tried and hung.

budney
June 12, 2007, 01:26 PM
Why? It is not unheard of for the military or other parmilitary agenices such as the CIA to do so. FDR did it, and so has every president since, and probably before that. You just hear about it now becasue there are so many Bush bashers out there these days leaking every secret they can.

I agree that Bush hardly invented this. Lincoln long beat him to it, for example--and should have been impeached and then executed for his crimes. Perhaps, if that had been done, then FDR and every president since would have been afraid to follow his evil example. Nevertheless, it's not too late! Bush, and several previous presidents, are still alive. Each and every one who has done this should be tried and, if found guilty, executed. That won't undo the wrong done by Bush and his predecessors, but perhaps it will serve as a warning to their successors.

--Len.

mmike87
June 12, 2007, 01:37 PM
This person is a US Citizen. He should be treated as such and subject to all the benefits of citizenship.

That said, he should be tried as a traitor. And sentenced appropriately if found guilty.

Now, I do NOT afford the same benefits to non-US citizens.

ArmedBear
June 12, 2007, 01:39 PM
Here's the thing.

There should be a legal procedure for this.

I am perfectly fine with declaring someone to be an enemy combatant. As a terrorist, that gives him more rights than he'd have otherwise, actually, like the right to kill people, under some conditions, without being convicted of murder.

It's silly to define "enemy combatant" according to the rules that applied in Napoleon's time.

But it's downright frightening to change the definition to "whomever we say".

What we need are rules to govern the reality of modern conflict. This won't satisfy "libertarians" who like to pretend it's 200 years ago when soldiers lined up in colorful uniforms, or "civil libertarians" who often objectively side with terrorists and terrorism. But it can actually protect the rights of the innocent.

Civil liberties are protected by procedure, "the rule of laws, not men." Boring stuff, to most of us, and not always perfect, but that's what has worked best in the history of the world.

That's why I can't get into ranting and raving about this, but I'm glad that the courts are applying the brakes a little bit here.

STAGE 2
June 12, 2007, 01:50 PM
I have no doubt that the man held is a terrorist. However, you still have the right to fair trial, even if you are evil. This is a big win for the Sixth Amendment.

And this is why we are going to lose. Giving terrorists access to our courts would give them a victory larger than any bomb or military win.

If a person is a US citizen then they should be afforded all of the rights guaranteed them under the constitution. If they aren't then all bets are off.

And just for the record, the government ISN'T snatching up people and locking them away.
The government DOESN'T have the power to detain citizens indefinately.
There is no evidence that repealing the patriot act would make us safer, or that its been abused.

Titan6
June 12, 2007, 02:03 PM
Stage2 - You know full well the PA has been abused and there are mountains of evidence of it including numerous admissions by the DoJ and the FBI. Some of which I have even started threads in this forum on.

budney
June 12, 2007, 02:14 PM
And this is why we are going to lose. Giving terrorists access to our courts would give them a victory larger than any bomb or military win.

Are you saying that God whispers in your ear who is or isn't a terrorist? NO? Then how do you know whose due process rights to take away, before they've been duly convicted of a crime?

Denying rights to "terrorists" really means denying rights to accused terrorists, including the innocent who are falsely accused. Once your rights can be taken away on the basis of an accusation, without trial, our republic is not only dead but mouldered into dust.

--Len.

Matt King
June 12, 2007, 03:38 PM
And this is why we are going to lose. Giving terrorists access to our courts would give them a victory larger than any bomb or military win.

You are presuming that the man held is a terrorist. The only problem with that is, that there is no way to tell since he has only been charged and not convicted. And you have to grant him the right to a trail, if you want to convict him. Everyone is innocent until proven guilty.

Matt King
June 12, 2007, 03:40 PM
There is no evidence that repealing the patriot act would make us safer, or that its been abused.

You haven't done very much research.
Patriot Act Abuses (http://en.wikipedia.org/wiki/USA_PATRIOT_Act_abuses)

STAGE 2
June 12, 2007, 07:12 PM
Are you saying that God whispers in your ear who is or isn't a terrorist? NO? Then how do you know whose due process rights to take away, before they've been duly convicted of a crime?

Denying rights to "terrorists" really means denying rights to accused terrorists, including the innocent who are falsely accused. Once your rights can be taken away on the basis of an accusation, without trial, our republic is not only dead but mouldered into dust.

The issue is NOT who is a terrorist, but who is a US citizen. Every citizen should recieve due process and a fair trial. From what little of this story that I have read this man was NOT a US citizen. As such I really don't care whether he disappears to a secret prison or not.


Stage2 - You know full well the PA has been abused and there are mountains of evidence of it including numerous admissions by the DoJ and the FBI. Some of which I have even started threads in this forum on.

You haven't done very much research.
Patriot Act Abuses

As yes, wikipedia, my favorite source:rolleyes:. To this day, the patriot act hasn't enabled the government to do anything it hasn't done a million times in the past. Before the PA, warrants were improperly issued, wiretaps were improperly obtained and people were unlawfully imprisoned. Don't misunderstand me, this doesn't make it right, however to suggest that the patriot act gives the government some huge mandate to do what was previously illegal is simply wrong.

To this day, a single american hasn't come forward alleging that they personally had their rights violated by the government. Feds aren't breaking down doors in the dead of night, and citizens aren't being jailed indefinately.

The sky isn't falling.

Everyone is innocent until proven guilty.

Everyone that the constitution applies to.

Matt King
June 12, 2007, 08:07 PM
There is no evidence that repealing the patriot act would make us safer, or that its been abused.

As yes, wikipedia, my favorite source.

Did you even read the Wikipedia link?

Flyboy
June 12, 2007, 08:50 PM
There is no evidence that repealing the patriot act would make us safer, or that its been abused.
Right, there's no evidence at all. Certainly nothing like the FBI underreporting use of National Security Letters by an order of magnitude (http://www.usdoj.gov/oig/reports/FBI/index.htm) (source: Department of Justice, Office of the Inspector General). Nor The FBI engaging in blanket requests for more than one million visitors to Vegas (http://www.businessweek.com/bwdaily/dnflash/nov2005/nf20051110_9709_db016.htm), nor use of the (ostensibly anti-terrorism) USA PATRIOT Act to investigate political corruption (http://www.lasvegassun.com/sunbin/stories/nevada/2003/nov/04/110410819.html). Or maybe the FBI giving seminars on "how to stretch the new wiretapping provisions to extend them beyond terror cases." (http://findarticles.com/p/articles/mi_qn4188/is_20030915/ai_n11406344)

Seriously--a little Google goes a long way.

alligator94
June 12, 2007, 09:09 PM
So I guess the government doesn't even need to charge you with anything to lock you up anymore? Well we don't really have any evidence or enough for a conviction. So why give anyone a trial? Lets just lock them up and throw away the key! As much as people are willing to sacrifice freedoms to fight terrorism, don't kid yourself. Its the government that is terrorizing people. Who's to say that ten years from now they won't be able to hold you without trial for a crime of violence? This is a very dangerous and slippery slope.:cuss:

wooderson
June 12, 2007, 09:47 PM
Because if Padilla never got a trial, it is tough to explain how he was standing before the Second Circuit Court of Appeals about 18 months after he was arrested (which isn't an unusual length of time for a criminal appeal) or how he was standing before the Supreme Court in less than two years.

If by recently you mean 2003, then I guess so. Padilla was arrested May 8, 2002 and by December 18, 2003 the Second Circuit Court of Appeals had issued a ruling in his case - that isn't exactly a glacial response in our criminal justice system, especially when the executive was actively trying to delay the trial. By February 20, 2004, Padilla's case was before the Supreme Court who remanded on procedural grounds.


You appear to be obfuscating the issue. Your first statement clearly identifies Padilla's process as a 'trial' in response to statements about being held without going to trial (ie indictment and criminal proceedings). The rest of your statements pertain to Padilla's various legal appeals specifically regarding his being held without charges or indictment.

If one is charged in 2002, proceeds to trial and has appealed to the Supreme Court within two years, that is an exceptionally speedy process.

That is not the Padilla situation. Padilla's petition for a writ of habeas corpus reached the Supreme Court within two years. That is an exceptionally long time for a habeas hearing.

Padilla was only indicted in 2005.

Can you find any pre-PATRIOT/pre-Bush examples of American citizens being held without charges for three years?

STAGE 2
June 12, 2007, 09:48 PM
Did you even read the Wikipedia link?

Yes, and there isn't anything there that shocked me, or that hasn't happened numerous times over the last 20 years. The idea that all of a sudden because of the PA our government turned from a bunch of people with their hands tied to a giant free for all with no oversight is simply incorrect.

The very fact that most of what was in that wiki article was denied and or stopped mid-stream is evidence that the system still does what its designed to do.

As far as the FBI requesting info on people, thats also irrelevant. The government is free to ask for info as much as they wish. There isn't anything illegal about that. Nor is it wrong to use things within the PA (assuming they don't violate the law) for crimes other then terrorism. If the FBI can get creative then good for them. As long as they don't break the law I don't have a beef.

Again folks, to think that the PA created this zeal on the part of law enforcement to press its limits is totally naive and just wrong. Its been this way for decades, probably longer.


So I guess the government doesn't even need to charge you with anything to lock you up anymore? Well we don't really have any evidence or enough for a conviction. So why give anyone a trial? Lets just lock them up and throw away the key! As much as people are willing to sacrifice freedoms to fight terrorism, don't kid yourself. Its the government that is terrorizing people. Who's to say that ten years from now they won't be able to hold you without trial for a crime of violence? This is a very dangerous and slippery slope

:rolleyes:Slippery slope for sure, except for the fact that none of what you wrote applies to US citizens. Small yet important detail.


Here's the quick and dirty guide to not ending up in a secret prison or be detained indefinately.
1) become a US citizen, or
2) don't plot to commit acts of terror against the US, or its armed forces

Preferably both. Its really that simple folks.

Titan6
June 12, 2007, 10:50 PM
Stage2- Maybe you should refrain from commenting until you either read the act or some of the actions and supreme court rulings (from the people who were obviously NOT complaining about their rights being violated). Otherwise you are spreading misinformation and making yourself look foolish.

STAGE 2
June 13, 2007, 12:30 AM
Foolish my arse. People who get all wound up about the PA talk about the "police state" and jack booted thugs locking up people and throwing away the key. Thats simply nonsense. The government hasn't done anything post PA that it didn't do pre-PA.

I have my own issues with this legislation, but the hoards of people who run around here with their arms flailing screaming, "the black helos are coming the black helos are coming" all because the PA was signed into law just dont deal with the facts.

Need I remind you that the single posterboy for everything bad about the PA, Jose Padilla (or Abdullah al-Muhajir as he prefers to be called) was arrested at O'Hare International Airport after an overseas trip to Egypt, Saudi Arabia, Afghanistan, Pakistan, and Iraq, carrying $10,526, a cell phone and e-mail addresses for al-Qaida operatives.

Now as a US citizen he should have had his speedy trial. Personally I would have liked to have seen him charged with treason and hung within the week.

All that aside however, if this is the type of person having his "rights" violated by the PA, I think we're headed in the right direction.

jselvy
June 13, 2007, 08:26 AM
Hanged for treason for carrying cash? for having a cell phone? For having e-mail addresses?
Why? None of those things are a crime.
I have a cell phone, and I have many e-mail addresses. Should I be hanged too?

Jefferson

budney
June 13, 2007, 10:38 AM
Slippery slope for sure, except for the fact that none of what you wrote applies to US citizens. Small yet important detail.

The Bush administration has detained US citizens, deeming them "enemy combatants," per the MCA. José Padilla was one. You're using the fact that they seem not to be getting away with it as exoneration for attempting the crime in the first place.

--Len.

Matt King
June 13, 2007, 12:52 PM
Need I remind you that the single posterboy for everything bad about the PA, Jose Padilla (or Abdullah al-Muhajir as he prefers to be called) was arrested at O'Hare International Airport after an overseas trip to Egypt, Saudi Arabia, Afghanistan, Pakistan, and Iraq, carrying $10,526, a cell phone and e-mail addresses for al-Qaida operatives.

Now as a US citizen he should have had his speedy trial. Personally I would have liked to have seen him charged with treason and hung within the week.

All that aside however, if this is the type of person having his "rights" violated by the PA, I think we're headed in the right direction.

So it's okay to violate a citizen's Constitutional rights just because he is suspected of being a terrorist? How could one tell, if he is not granted the right to a trial? Is that heading in the right direction, as you put it? You put the word "rights" in quotation marks. Are you insinuating that Jose Padilla Doesn't have constitutional rights?

Titan6
June 13, 2007, 01:29 PM
Stage2- Your post just proved everything I said. At least you have your full neocon status restored.

MrTuffPaws
June 13, 2007, 02:09 PM
All that aside however, if this is the type of person having his "rights" violated by the PA, I think we're headed in the right direction.

Ah man, then likes of you are destroying this country. Sad.

STAGE 2
June 13, 2007, 02:47 PM
Hanged for treason for carrying cash? for having a cell phone? For having e-mail addresses?
Why? None of those things are a crime.
I have a cell phone, and I have many e-mail addresses. Should I be hanged too?

Jefferson

This kind of statement is the same thing you'd hear from a crook. "No officer I was just going to the store for some milk at 3am and I saw this broken car window and took the wallet to return it to the owner. Give me a break.

And just for the record, anyone travelling with a cash amount greater then 10k is required to report it. So yes he did violate the law.


The Bush administration has detained US citizens, deeming them "enemy combatants," per the MCA. José Padilla was one. You're using the fact that they seem not to be getting away with it as exoneration for attempting the crime in the first place.

First, the MCA doesn't affect habeas rights for US citizens. Deeming them enemy combatants has no bearing on their rights and the government can deem than anything they wish.

Secondly, besides Padilla, what US citizen has been detained indefinately without trial or access to the courts.


So it's okay to violate a citizen's Constitutional rights just because he is suspected of being a terrorist? How could one tell, if he is not granted the right to a trial? Is that heading in the right direction, as you put it? You put the word "rights" in quotation marks. Are you insinuating that Jose Padilla Doesn't have constitutional rights?

Now as a US citizen he should have had his speedy trial.

You folks don't read do you.


Stage2- Your post just proved everything I said. At least you have your full neocon status restored.

Proved what, that I want to see the guy working for al quaeda smoked? That I'm a little old fashioned in that I still think there is right and wrong and I'm sick of all the red tape that these guys are going to dance through.

It amazes me what a difference some time can make. If a guy was caught at the airport in 1943 with a bunch of money, names of german contacts and had just returned from berlin you couldn't get him to the firing squad fast enough. It would make a squat of difference if he was Joe from Topeka. He would have a 10 minute trial and that would be that, and no one here would complain because he was a dirty treasonous spy.

For some reason this no longer applies today, and thats why we won't win. I'm almost thankful that my grandad is no longer around to see what we have become.

budney
June 13, 2007, 03:37 PM
First, the MCA doesn't affect habeas rights for US citizens.

It denies habeas corpus to anyone designated an "enemy combatant," and makes no exception for US citizens.


Proved what, that I want to see the guy accused of working for al quaeda smoked without a trial?

Fixed up yer typo for ya. Bad news, though: I accuse you of working for Al Qaeda. Please report promptly to the nearest police barracks for your execution.

--Len.

araiford
June 13, 2007, 03:40 PM
"And just for the record, anyone travelling with a cash amount greater then 10k is required to report it"

WHY?

araiford
June 13, 2007, 03:51 PM
Relevant SCOTUS opinions:
http://en.wikipedia.org/wiki/Ex_parte_Quirin
http://en.wikipedia.org/wiki/Ex_Parte_Milligan

jselvy
June 13, 2007, 03:51 PM
Because if you have that much in liquid assets you obviously must be dodging taxes.

Jefferson

araiford
June 13, 2007, 04:17 PM
In a "free" country, I should be able to push a wheelbarrow full of cash around w/o having to justify it to my betters.
So much for living in a "free" country.

STAGE 2
June 13, 2007, 04:58 PM
It denies habeas corpus to anyone designated an "enemy combatant," and makes no exception for US citizens.

Then you clearly haven't read the act. It denies habeas to ALIEN enemy combatants. Its specifically goes to the trouble of explaining that only non-citizens can have their habeas rights suspended.


Fixed up yer typo for ya. Bad news, though: I accuse you of working for Al Qaeda. Please report promptly to the nearest police barracks for your execution.

Well, if I just came back from the greatest hits of the mid east tour with a barrel full of cash, a cell phone not in my name and a list of al quaeda operatives I'm probably not the good humor man.

I never said don't give him a trial. What I said was give him the quick and dirty version.

Does anyone here honestly think that Padilla was just in the wrong place at the wrong time?

Seriously.

tube_ee
June 13, 2007, 05:53 PM
Does anyone here honestly think that Padilla was just in the wrong place at the wrong time?

Not in any way is it the point. The point here is not what Mr Padilla did or didn't do (which neither you nor I know for sure.) The point is that the Executive branch has claimed the power to decide, without any legal process, that person X is an "enemy combatant", and on that determination alone, to imprison person X for as long as they see fit, without ever going through any process to determine, based on the facts, whether or not person X is a danger to society, or has committed any crime.

If you trust George Bush to use that power only for good, when he is certain that person X is, in fact, a terrorist, then I admire your faith in the man, but even that isn't good enough. Because, if not completely eliminated, as the Constitution demands, these powers will eventually end up in the hands of someone you don't trust. It's certain to be so. And then it will be too late.

It is much easier to not give away power in the first place than it is to take it back after it has been misused.

Right after 9/11, many, many polls were conducted based on variations of the question, "How much of your liberty are you willing to give up to fight the War on Terror?" My answer then, and now, is simple. "None." There is no level of fear which can convince me to trade liberty for security. 9/11 certainly doesn't come close. I do not fear Al Queda. And even if I did, I wouldn't be OK with many of the things that have been done to protect me from that threat.

"They hate us for our freedoms. So, to protect you from them, we're going to take it away." What sense does that make?

--Shannon

budney
June 13, 2007, 06:28 PM
Then you clearly haven't read the act. It denies habeas to ALIEN enemy combatants. Its specifically goes to the trouble of explaining that only non-citizens can have their habeas rights suspended.

I have now read the act in its entirety, and this is the relevant bit:


(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

I stand corrected. This law is still immoral, as pertains to any alien living inside US jurisdiction. But at least it doesn't apply to me. I guess that's something, right?

--Len.

noops
June 13, 2007, 06:37 PM
All that aside however, if this is the type of person having his "rights" violated by the PA, I think we're headed in the right direction.

I'm going to be inflammatory here (flame suit on), and say this kind of thing is the real treason. Our government's job isn't to protect our safety, but to protect our rights. Safety is secondary to the constitution, and rights are often expensive in blood. Our rights and fighting for them (not just wars) have caused deaths (civil rights, freedom of speech, religion, establishment, have all caused many deaths). The oath of the military and the executive is to defend the Constitution. Those that use their office to suspend our rights have broken their oaths by contravening the Constitution for public safety.

Many of us would agree that even if guns were deemed a public hazard in the scientific means, that gun ownership would STILL be an important Constitutional right (and an expensive one) because of its guarantees in defense of tyranny, nation, and person. But they say different about rights of individuals being held as "suspected terrorists." Then, safety is more important than rights?

So, people die because we followed constitutional convention and law. That sucks, but at least our country and it's foundations are bedrock solid. The society itself and its bedrock are more important, and people in the military die defending the Constitution. It's awful when they fall, but they deserve the elevated status for having given the ultimate sacrifice not for our safety, but for our very way of life, for our rights, for our Consitution. They are heroes that way. How selfish to think of our safety over the longevity of our country, and the real ideas that we've fought for in order to have something so much larger.

It amazes me how fearful people are of terrorists or criminals (or gun owners in plenty of cases) that they're so willing to give the government our rights and weaken the Constitution. Some call it "weak on defense." I call those people the real cowards. They want to give up what we really are to arrest some terrorists. They give up beliefs for safety. Pathetic and weak.

Through that, the terrorists have achieved their goals. They have "terrorized" and forced us to alter our way of life. The people running around tearing their hair out and and worrying about terrorists behind every corner are fear mongers, and by trading rights for safety, they make themselves the real traitors.

Titan6
June 13, 2007, 07:16 PM
We starting off talking about the Patriot Act and Stage2 changed the subject to the Military Commissions Act. These are two different things. One in no way was restricted to Aliens and the other is unclear. What does the USAG say?

Gonzales says the Constitution doesn't guarantee habeas corpus
Attorney general's remarks on citizens' right astound the chair of Senate judiciary panel
Bob Egelko, Chronicle Staff Writer

Wednesday, January 24, 2007

"The Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right of habeas,'' Gonzales told Sen. Arlen Specter, R-Pa., during a Senate Judiciary Committee hearing Jan. 17.

Gonzales acknowledged that the Constitution declares "habeas corpus shall not be suspended unless ... in cases of rebellion or invasion the public safety may require it.'' But he insisted that "there is no express grant of habeas in the Constitution.''

Specter was incredulous, asking how the Constitution could bar the suspension of a right that didn't exist -- a right, he noted, that was first recognized in medieval England as a shield against the king's power to dispatch troublesome subjects to royal dungeons.

Later in the hearing, Gonzales described habeas corpus as "one of our most cherished rights'' and noted that Congress had protected that right in the 1789 law that established the federal court system. But he never budged from his position on the absence of constitutional protection -- a position that seemingly would leave Congress free to reduce habeas corpus rights or repeal them altogether.

Gonzales did not propose any such drastic rollback and devoted most of his discussion to fending off senatorial attacks on a law signed by President Bush last October. That law included a provision stripping federal courts of authority to hear habeas corpus suits by noncitizens classified by the government as "enemy combatants.'' Specter and Sen. Patrick Leahy, D-Vt., the Judiciary Committee chairman, are sponsoring legislation to undo the restriction.

But critics on both ends of the ideological spectrum said the attorney general was claiming a broader and more chilling power.

"This is the key protection that people have if they're held in violation of the law,'' said Erwin Chemerinsky, a Duke University law professor who has criticized the administration's actions on civil liberties. "If there's no habeas corpus, and if the government wants to pick you or me off the street and hold us indefinitely, how do we get our release?''

Chemerinsky was joined by Douglas Kmiec, a Pepperdine University law professor and former Justice Department official under Presidents Ronald Reagan and George H.W. Bush.

If Gonzales' view prevailed, Kmiec said, "one of the basic protections of human liberty against the powers of the state would be embarrassingly absent from our constitutional system.''

Justice Department spokesman Brian Roehrkasse said this week that Gonzales stood by his remarks but was asserting only that the text of the Constitution does not guarantee habeas corpus. The attorney general recognizes, Roehrkasse said, that the Supreme Court has declared "the Constitution protects (habeas corpus) as it existed at common law'' in England. Any such rights, he added, would not apply to foreigners held as enemy combatants.

Habeas corpus was recognized in English law at least as early as the Magna Carta, in 1215, and perhaps earlier. In the United States, it refers to bringing a prisoner's case before a federal judge, who has the power to order the government to release anyone who is being held illegally.

It has become an issue in Bush's efforts to hold military captives at the U.S. naval base in Guantanamo Bay, Cuba, with little or no access to civilian courts. The Supreme Court ruled in 2004 that that those prisoners could file habeas corpus claims in court, rejecting the administration's argument that inmates held outside the United States had no such right. That ruling was based on the court's interpretation of laws passed by Congress and did not discuss whether Guantanamo inmates had a constitutional right to habeas corpus.

The distinction is potentially crucial, because Congress, in the law signed last October, prohibited federal courts from reviewing habeas corpus suits by Guantanamo prisoners or any other noncitizens held as enemy combatants. The law's validity depends on whether the Supreme Court concludes that the prisoners' constitutional rights are being violated.

The issue of habeas corpus came up during last week's hearing when Specter asked Gonzales how a congressional statute could withdraw the right "when there's an express constitutional provision that it can't be suspended and an explicit Supreme Court holding that it applies to Guantanamo alien detainees?''

The court ruled only on the right to habeas corpus that was created by statute, Gonzales replied. He then asserted that the Constitution does not contain any express right of habeas corpus, only "a prohibition against taking it away.''

The issue extends far beyond Guantanamo.

The Supreme Court has interpreted federal judges' powers of habeas corpus to apply to prison systems around the nation and the legality of convictions in state as well as federal court.

For example, federal judges, who are appointed for life, regularly invoke habeas corpus when overturning convictions or death sentences of state inmates, overruling decisions by elected state judges.

Bruce Fein, a former Reagan Justice Department attorney who has become an outspoken critic of the Bush administration, noted that the day before his Judiciary Committee appearance, Gonzales had denounced "activist judges'' and advised them to stay out of national security matters.

Gonzales' comments to the committee on habeas corpus, Fein said, contained a message that "Congress doesn't have to let them (judges) decide national security matters.''

"It's part of an attempt to create the idea that during conflicts, the three branches of government collapse into one, and it is the president,'' Fein said.
------
What Gonzales, Specter said
Excerpts from the exchange between Attorney General Alberto Gonzales and Sen. Arlen Specter, R-Pa., at a Senate Judiciary Committee hearing Jan. 17:

Gonzales: There is no express grant of habeas in the Constitution. There's a prohibition against taking it away. ...

Specter: Wait a minute. Wait a minute. The Constitution says you can't take it away except in cases of rebellion or invasion. Doesn't that mean you have the right of habeas corpus unless there's an invasion or rebellion?

Gonzales: I meant by that comment, the Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right to habeas. Doesn't say that. It simply says the right of habeas corpus shall not be suspended except...

Specter: You may be treading on your interdiction and violating common sense, Mr. Attorney General.

Source: Senate Judiciary Committee transcript

So ignoring all of the verbage and wordage the USAG says that there is no right. So regardless of whatever acts may or may not say it is the position of the US Government that no such right exists. So according to the AG if the right is not alliterated in the COTUS than too bad, you don't have it. We could debate for days about the rights being reserved to the people and all that but the position of the government is clear: There is no right to Habeas Corpus.

But that won't be enough to satisfy the misinformation monsters out there so where is that act? I know I put here somewhere.... oh yeah, here it is.....

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s3930enr.txt.pdf

And whatever does it say anyway?

‘‘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 ‘cobelligerent’,
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.

Okay now we know what an unlawful combatant is. Now where is the part in the act that says that the act applies "only" to aliens? looking... looking... looking.... using find function..... Oh dang it is not there. In fact the only other mention of the word citizen is that aliens must have attorneys who are US citizens. Too bad for you accused terrorists and unlawful combatants. I wonder if your attorney is from New York....

Well what is the jurisdiction of the military commission?

‘‘§ 948c. Persons subject to military commissions
‘‘Any alien unlawful enemy combatant is subject to trial by
military commission under this chapter.

Okay got it.

S. 3930—4
‘‘§ 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.

Okay got it.

‘‘(b) LAWFUL ENEMY COMBATANTS.—Military commissions under
this chapter shall not have jurisdiction over lawful enemy combatants.
Lawful enemy combatants who violate the law of war are
subject to chapter 47 of this title. Courts-martial established under
that chapter shall have jurisdiction to try a lawful enemy combatant
for any offense made punishable under this chapter.

Okay got it. So it says the government can't try lawful combatants but it does not say anything about not trying US Citizens. But according the USAG if you don't have that right you don't have that right.

But what about non-aliens under unlawful combatants? Well following the convulted reasoning that the USAG follows (and it would be up to him to decide) it is not spelled out that the MCA does not apply to them therefore it very well may. No where does it ever say that a US citizen will not be tried under the act. No where does it say "only aliens".

For some courts that is good enough but not really strong enough to bang it home with a statement. Ahh, but wait... What is this? US Code?

§ 1451. Revocation of naturalization

(a) Concealment of material evidence; refusal to *testify
It shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any district court of the United States in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively: Provided, That refusal on the part of a naturalized citizen within a period of ten years following his naturalization to testify as a witness in any proceeding before a congressional committee concerning his subversive activities, in a case where such person has been convicted of contempt for such refusal, shall be held to constitute a ground for revocation of such person’s naturalization under this subsection as having been procured by concealment of a material fact or by willful misrepresentation. If the naturalized citizen does not reside in any judicial district in the United States at the time of bringing such suit, the proceedings may be instituted in the United States District Court for the District of Columbia or in the United States district court in the judicial district in which such person last had his residence.

So let me get this straight. You get arrested for "terrorism". You utilize your right against self incrimination. Then you get your citizenship revoked and now you are 100% subject to MCA. So much for innocent until proven guilty...

But yes the USAG says you have no right to Habeas Corpus.

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/01/24/MNGDONO11O1.DTL

You wanna watch it on You Tube?

http://youtube.com/watch?v=YIFqYVAOosM

But what are we worried about here? They will let you know what you are in for when they are good and ready....

STAGE 2
June 13, 2007, 08:18 PM
Right after 9/11, many, many polls were conducted based on variations of the question, "How much of your liberty are you willing to give up to fight the War on Terror?" My answer then, and now, is simple. "None." There is no level of fear which can convince me to trade liberty for security. 9/11 certainly doesn't come close. I do not fear Al Queda. And even if I did, I wouldn't be OK with many of the things that have been done to protect me from that threat.

And I don't disagree with anything you've just said. My only point is that the patriot act hasn't really changed anything. People who are all up in arms about the act can't really point to a single thing the government has done that it didn't do BEFORE the act was passed. Thats the point.

I don't agree with governmental misconduct. But I also don't agree that the PA has given government officials a free pass to trample anyone's rights. What little problems there have been have been met and dealt with by the system as it was intended.


It amazes me how fearful people are of terrorists or criminals (or gun owners in plenty of cases) that they're so willing to give the government our rights and weaken the Constitution. Some call it "weak on defense." I call those people the real cowards. They want to give up what we really are to arrest some terrorists. They give up beliefs for safety. Pathetic and weak.

Through that, the terrorists have achieved their goals. They have "terrorized" and forced us to alter our way of life. The people running around tearing their hair out and and worrying about terrorists behind every corner are fear mongers, and by trading rights for safety, they make themselves the real traitors.

What amazes me is how people like to gloss over what other say in an attempt to pigeonhole their views. I have NEVER suggested anyone give up ANY rights for safety. I NEVER suggested that Padilla be denied a trial.

What I did say was that the PA isn't the faustian bargian that some believe, and that Padilla (while a citizen) is 99% likely to be a terrorist.


We starting off talking about the Patriot Act and Stage2 changed the subject to the Military Commissions Act. These are two different things. One in no way was restricted to Aliens and the other is unclear. What does the USAG say?

For the record I didn't bring in the MCA and I think Gonzales is an idiot. Regardless of this however, there is no way that US citizens can have their habeas rights suspended or can face a military comission. They CAN be labeled an enemy combatant. There isn't anything in the constitution preventing anyone from being labeled an enemy combatant. They still get their day in court however.

jselvy
June 13, 2007, 08:52 PM
People who are all up in arms about the act can't really point to a single thing the government has done that it didn't do BEFORE the act was passed.
But it did give those unlawful actions the color of law. So now these kind of despotic actions cannot be fought on the grounds that they are illegal. That is the real worry. Before the USG had to be careful because its action were illegal, now that is no longer the case and they can act with impunity.

Jefferson

Matt King
June 13, 2007, 09:26 PM
I NEVER suggested that Padilla be denied a trial.

No, but you did say this:

I never said don't give him a trial. What I said was give him the quick and dirty version.

Which in effect is denying him his Constitutional right to a fair trial.

Titan6
June 13, 2007, 09:30 PM
Stage2: For the record I didn't bring in the MCA and I think Gonzales is an idiot.

Okay you may think he is an idiot but it still does not change the position of the US Government. The USAG is the government when it comes to legal matters of the state.

Regardless of this however, there is no way that US citizens can have their habeas rights suspended or can face a military comission.

Why not? What prevents it? Please point out the part that says that it can not be done. Also explain why citizenship can not be revoked as I demonstrated and then the "former" citizen tried under MCA. As far I as can tell there is nothing to stop it either one from happening.

Autolycus
June 13, 2007, 10:07 PM
Why all the anti-Islamic sentiment?

Matt King
June 13, 2007, 10:43 PM
Why all the anti-Islamic sentiment?

Where? I didn't notice any.

Ratzinger_p38
June 13, 2007, 10:44 PM
Why all the anti-Islamic sentiment?

I am not saying I agree with them, but youre asking a question you know the answer to.

Aguila Blanca
June 13, 2007, 10:49 PM
Padilla was only indicted in 2005.
AND ... Padilla was not indicted for any of the original charges for which the .gov detained him. They made up new charges for the indictment. Their cover story was that "national security" would have been compromised if they had to bring the original charges in open court. Translation: "We'll look like idiots if we have to try him on this."

Aguila Blanca
June 13, 2007, 10:55 PM
Secondly, besides Padilla, what US citizen has been detained indefinately without trial or access to the courts.
I don't remember his name, but the answer is that attorney in either Washington state or Oregon. He is an American by birth and Caucasian by ethnicity, but he is a convert to Islam. He was arrested and incarcerated as a "terrorist" because the FBI claimed they had a fingerprint linking him to the train bombing in Spain. Of course, the Spanish authorities had already told the FBI that the print wasn't a match, but he was arrested nonetheless, and treated much the ame as Padilla: no charges, no access to lawyers, no habeus corpus.

STAGE 2
June 14, 2007, 01:39 AM
But it did give those unlawful actions the color of law. So now these kind of despotic actions cannot be fought on the grounds that they are illegal. That is the real worry. Before the USG had to be careful because its action were illegal, now that is no longer the case and they can act with impunity.

But thats just it, the PA still doesn't allow the government to legally do the things it wants to do. Your statement is exactly what I've been saying all along. These actions by the government were illegal and still are. The PA hasn't changed this.


Which in effect is denying him his Constitutional right to a fair trial.

Baloney. The 6th guarantees a speedy trial. I'm all for that. This denies him nothing. Just because I don't believe in letting an al-quaeda operative languish in the justice system for years doesn't mean I'm denying him anything.


Okay you may think he is an idiot but it still does not change the position of the US Government. The USAG is the government when it comes to legal matters of the state.

But the AG isn't the final arbiter of the law. Gonzales can say the sky is pink, but he doesn't get to say what the law is, courts do.


Why not? What prevents it? Please point out the part that says that it can not be done. Also explain why citizenship can not be revoked as I demonstrated and then the "former" citizen tried under MCA. As far I as can tell there is nothing to stop it either one from happening.

In several places the act explains the scope of its authority as well as define who is an alien combatant and who is not. Its crystal clear who habeas can be suspended for and who it cant.

As far as your scenario of a citizen having his status terminated, its pretty much impossible. In order to voluntarily give up your citizenship through performing an act, you must perform the act and also have the intent to give up your citizenship. From the INA...

"Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after the enactment of this subsection under, or by virtue of, the provisions of this or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence."

As a result, if the government is contending that Padilla or whomever is no longer a citizen, they must have a hearing and the burden is on them to show that he intended to abdicate his citizenship.

Its a virtual impossibility for the sole reason that "I never intended to give up my citizenship" virtually destroys the govts case.

Titan6
June 14, 2007, 09:03 AM
True- Despite whatever the executive branch thinks it is they are not the final ''decider'' on the law the courts are but; they represent the government's position. You would support such a position?

You have not cited a single place in the act where it makes it ''crystal clear'' that habeas can be suspeneded for ''only'' aliens and/or where it can ''not'' be suspended for US citizens. Still patiently waiting for the citation. I provided you with the source doc so this should not be hard....

I already know why you are not poviding it though; it ain't in there. You saying it is won't make it so.

And also this:

--- ''As far as your scenario of a citizen having his status terminated, its pretty much impossible. In order to voluntarily give up your citizenship through performing an act, you must perform the act and also have the intent to give up your citizenship. From the INA...

"Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after the enactment of this subsection under, or by virtue of, the provisions of this or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence." ---

Strange that it was in quotes but you need to go back and read the US Code again. That only applies to natualized resident that have been so for more than ten years. If otherwise and someone fails to testify on ''subversive activities'' (by say invoking rights) than they CAN be stripped of citizenship simply on the grounds of failing to testify.

flatrock
June 14, 2007, 10:26 AM
I agree with the ruling that this scumbag should not be held without a hearing.

I however disagree with the relief that the court ordered.

The guy deserves a military hearing to determine if he is a enemy combatant, and should not simply be tried in our civilian court system.

We are at war with Al Qaeda, and he is a foreign agent of Al Qaeda. He should be treated as a prisoner of war.

budney
June 14, 2007, 10:44 AM
The guy deserves a military hearing to determine if he is a enemy combatant...

We are at war with Al Qaeda, and he is a foreign agent of Al Qaeda...

Um, Flatrock, you just said that he deserves a trial to determine whether he's guilty--but he doesn't deserve a civilian trial, because he's guilty.

--Len.

STAGE 2
June 14, 2007, 02:39 PM
True- Despite whatever the executive branch thinks it is they are not the final ''decider'' on the law the courts are but; they represent the government's position. You would support such a position?

Clarify what you mean by "this position". As far as the courts, the executive has been gung ho about their policies and have been repeatedly rebuked by the courts so the idea that its one big happy government just isn't so.


You have not cited a single place in the act where it makes it ''crystal clear'' that habeas can be suspeneded for ''only'' aliens and/or where it can ''not'' be suspended for US citizens. Still patiently waiting for the citation. I provided you with the source doc so this should not be hard....

I already know why you are not poviding it though; it ain't in there. You saying it is won't make it so.

Thats because I've made the mistake to not spelling things out. When people talk about legal things I flip on my lawyer switch and sometimes forget that not everyone practices law. The first thing you need to take into account is statutory construction. Statutes and acts aren't read like any other document. There are specific rules for reading these things and they make a huge difference in regards to what sections mean what, which sections take precedence, and which sections modify others. The people writing the bil don't put any of this is because its just assumed. Its the way lawyers, judges and lawmakers read law, and have been doing so for hundreds of years. So with that in mind here goes.

From the act...

(3) ALIEN.—The term ‘alien’ means a person who is not
a citizen of the United States.

This obviously means that any time the word alien is used in the act, it means a person who isn't a US citizen. Simple enough.


‘‘§ 948b. Military commissions generally
‘‘(a) PURPOSE.—This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants
engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.

This is the general intro to the act and its setting forth the purpose for the entire act. When a court is going to interpret this act, they are going to look here first and let this shape their interpretation of what else is in the statute. Thus, unless there is some language that is blatantly and specifically contradicting this paragraph, this whole act is focused on ALIEN combatants, i.e. this act isn't intended to deal with US citizens. Every following passage is read in this context.

‘‘§ 948c. Persons subject to military commissions
‘‘Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.

Alright. Here is the big kicker. For every case/statute, subject matter jurisdiction is never presumed. Unlike personal jurisdiction, subject matter jurisdiction can be raised at ANY time during the trial. It can't be waived. Jurisdiction is also specific. Its not some willy nilly concept where some people can be added just because. Its hard and fast. Thus what this statement means is that the ONLY people that this ENTIRE act confers jurisdiction over is non US citizens.

There simply is no jurisdiction over anyone who isn't an alien. Thats why its impossible for a US citizen to face a military comission under this act. The court would have no jurisdiction and couldn't hear the case. This is repeated and driven home in the following section immediately below...

‘‘§ 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

And they ever go as far as to say that lawful enemy combatants, whether alien or not are not subject to the jurisdiction of this act. If these folks aren't there theres no way to make a case that a US citizen could ever be subject to this act. Moving on to habeas matters.


‘‘(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
‘‘(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.’’.

These two sections amend current sections of the US code, meaning that they supplement what is already there. Now I don't know about you, but I can't find anything in here that even mentions US citizens. All this says is that ALIENS who have been deemed enemy combatants, can't file a writ of habeas corpus. This says nothing about US citizens.

Its also says that ALIENS can't petition to contest their detention. Again, this says nothing about US citizens and doesn't replace any of the other US code provisions regarding habeas matters.

In short under this act legally there is no way that a US citizen could ever face a military tribunal or have their habeas rights suspended.


Strange that it was in quotes but you need to go back and read the US Code again. That only applies to natualized resident that have been so for more than ten years. If otherwise and someone fails to testify on ''subversive activities'' (by say invoking rights) than they CAN be stripped of citizenship simply on the grounds of failing to testify.


You are incorrect (again). You have the wrong section of the INA. Heres the one I was posting from.


INA: ACT 349 - LOSS OF NATIONALITY BY NATIVE-BORN OR NATURALIZED CITIZEN

Sec. 349. [8 U.S.C. 1481]


(a) A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality-


(1) obtaining naturalization in a foreign state upon his own application or upon an application filed by a duly authorized agent, after having attained the age of eighteen years; or


(2) taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years; or


(3) entering, or serving in, the armed forces of a foreign state if


(A) such armed forces are engaged in hostilities against the United States, or


(B) such persons serve as a commissioned or non-commissioned officer; or


(4) (A) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state; or


(B) accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years for which office, post, or employment an oath, affirmation, or declaration of allegiance is required; or


(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or


(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense; or


(7) committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, United States Code, or willfully performing any act in violation of section 2385 of title 18, United States Code, or violating section 2384 of said title by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if an d when he is convicted thereof by a court martial or by a court of competent jurisdiction.


(b) 1/ Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after the enactment of this subsection under, or by virtue of, the provisions of this or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.


As you can see there is no 10 year requirment and this applies to born and naturalized citizens. Again, your scenario is impossible.

Titan6
June 14, 2007, 04:32 PM
Clarify what you mean by "this position". As far as the courts, the executive has been gung ho about their policies and have been repeatedly rebuked by the courts so the idea that its one big happy government just isn't so.

The position of the Executive that no such right as Habeas exists. You are Republican do you support your party on this legal issue? You calling the AG an "idiot" is kind of open ended since he has been in the news a lot.

So you are saying that the law added a class of people who specifically were not covered under the law for clarity maybe? So but for one word "alien" that would put it out there for everyone. Maybe not crystal clear to me as I am not a lawyer but clear to you; yet you should understand my concern. Thank you for clearing that up it was a misconception on my part.

But there are always legal end runs on jurisdiction. For example in Insurance Corp. of Ireland, LTD v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) The court found:

Federal courts are courts of limited jurisdiction. In order for a federal court to pass judgment upon the parties, that court must have both subject-matter and personal jurisdictions. Subject-matter jurisdiction addresses limitation of the federal court’s power. Article III of the United States Constitution sets forth that limitation by defining the subject-matter which a federal court may preside over. Thus subject-matter jurisdiction acts is a restriction on federal power and contributes to the characterization of the federal sovereign. Consequently, no action of the parties can confer subject matter jurisdiction upon a federal court. Additionally, in the exercise of its appellate power, an appellate court may sua sponte find lack of subject-matter jurisdiction, and a party may object on the basis of lack of subject-matter jurisdiction anytime during the trial or on appeal, even if no objections were made during trial. On the other hand, personal jurisdiction addresses an individual’s liberty and not federal sovereignty power. Personal jurisdiction derived not from Article III, but from the Due Process Clause. It recognizes and protects an individual’s liberty interest. Because personal jurisdiction is a legal right protecting an individual, it may be intentionally waived or defendant may, for various reasons, be estopped from raising it as an issue. The expression of legal rights is often subject to certain procedural rules and failure to follow these rules may result in the curtailment of those rights. The action of a defendant may amount to voluntary or involuntary submission to the court’s jurisdiction. Thus under Rule 12(h)(1) of the FRCP, a party who failed to timely object on the basis of lack of personal jurisdiction, is deemed to have waived that objection. Because personal jurisdiction is subject to involuntary waiver, a sanction under Rule 37(b)(2)(a) consisting of a finding of personal jurisdiction has precisely the same effect as the defendant’s failure to raise a timely objection to personal jurisdiction under Rule 12 (h)(1). Therefore, a Rule 37 sanction applied to a finding of personal jurisdiction creates no more of a due process problem than a Rule 12.
The defendant is always free to ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding. Therefore, by submitting to the jurisdiction of the court for the limited purposes of challenging jurisdiction, the defendant agreed to play by the procedural rules of that court and to abide by that court’s
determination on the issue of jurisdiction. The mere use of procedural rules does not in itself violate the defendant’s due process rights.

Ooops. So if the defendent does not object in a timely manner or otherwise submits to the court then he could be tried under the MCA; could he not? Now this would rely on a compliant victim or one with poor representation but would not be outside the realm of possibility would it? Also would require a compliant court. I wonder where one of those could one of those be found?

Regardless, on the other question I do not see your point. The section of code you quoted on citizenship covers only Voluntarily (1481) giving up citizenship. The section I quoted covers revocation (1451). These are two different animals. I say the US Government can revoke citizenship under that line of the code. You are saying that they can not for some other unspecified reason that I don't follow.... But the real question is have they?

Well of course they have:
For what the courts determined to be fraud:
COSTELLO v. UNITED STATES, 365 U.S. 265 (1961)
UNITED STATES OF AMERICA vs. JONAS STELMOKAS, a/k/a JONAS STELMOKEVICIUS

Maybe we should look at the code again:

340 REVOCATION OF NATURALIZATION
SEC. 340. [8 U.S.C. 1451]

(a) It shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any district court of the United States in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively: Provided, That refusal on the part of a naturalized citizen within a period of ten years following his naturalization to testify as a witness in any proceeding before a congressional committee concerning his subversive activities, in a case where such person has been convicted for contempt for such refusal, shall be held to constitute a ground for revocation of such person's naturalization under this subsection as having been procured by concealment of a material fact or by willful misrepresentation. If the naturalized citizen does not reside in any judicial district in the United States at the time of bringing such suit, the proceedings may be instituted in the United States District Court for the District of Columbia or in the United States district court in the judicial district in which such person last had his residence.

(b) The party to whom was granted the naturalization alleged to have been illegally procured or procured by concealment of a material fact or by willful misrepresentation shall, in any such proceedings under subsection (a) of this section, have sixty days' personal notice, unless waived by such party, in which to make answer to the petition of the United States; and if such naturalized person be absent from the United States or from the judicial district in which such person last had his residence, such notice shall be given either by personal service upon him or by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the State or the place where such suit is brought.

(c) If a person who shall have been naturalized after December 24, 1952 shall within five years next following such naturalization become a member of or affiliated with any organization, membership in or affiliation with which at the time of naturalization would have precluded such person from naturalization under the provisions of section 313, it shall be considered prima facie evidence that such person was not attached to the principles of the Constitution of the United States and was not well disposed to the good order and happiness of the United States at the time of naturalization, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the revocation and setting aside of the order admitting such person to citizenship and the cancellation of the certificate of naturalization as having been obtained by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively.

(d) [Former subsection (d) was repealed by Sec. 104(b) of the Immigration and Nationality Technical Corrections Act of 1994 (Pub. L. 103-416, 108 Stat. 4308, Oct. 25, 1994), applicable to persons admitted to citizenship on or after October 25, 1994 under Sec. 104(e) of that Act. Subsequent subsections were redesignated respectively by Sec. 104(c) of the Immigration and Nationality Technical Corrections Act of 1994 (Pub. L. 103-416, 108 Stat. 4308, Oct. 25, 1994) .]

(d) Any person who claims United States citizenship through the naturalization of a parent or spouse in whose case there is a revocation and setting aside of the order admitting such parent or spouse to citizenship under the provisions of subsection (a) of this section on the ground that the order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation shall be deemed to have lost and to lose his citizenship and any right or privilege of citizenship which he may have, now has, or may hereafter acquire under and by virtue of such naturalization of such parent or spouse, regardless of whether such person is residing within or without the United States at the time of the revocation and setting aside of the order admitting such parent or spouse to citizenship. Any person who claims United States citizenship through the naturalization of a parent or spouse in whose case there is a revocation and setting aside of the order admitting such parent or spouse to citizenship and the cancellation of the certificate of naturalization under the provisions of subsection (c) of this section, or under the provisions of section 329(c) of this title on any ground other than that the order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation, shall be deemed to have lost and to lose his citizenship and any right or privilege of citizenship which would have been enjoyed by such person had there not been a revocation and setting aside of the order admitting such parent or spouse to citizenship and the cancellation of the certificate of naturalization, unless such person is residing in the United States at the time of the revocation and setting aside of the order admitting such parent or spouse to citizenship and the cancellation of the certificate of naturalization.

(e) When a person shall be convicted under section 1425 of title 18 of the United States Code of knowingly procuring naturalization in violation of law, the court in which such conviction is had shall thereupon revoke, set aside, and declare void the final order admitting such person to citizenship, and shall declare the certificate of naturalization of such person to be canceled. Jurisdiction is hereby conferred on the courts having jurisdiction of the trial of such offense to make such adjudication.

(f) Whenever an order admitting an alien to citizenship shall be revoked and set aside or a certificate of naturalization shall be canceled, or both, as provided in this section, the court in which such judgment or decree is rendered shall make an order canceling such certificate and shall send a certified copy of such order to the Attorney General. The clerk of court shall transmit a copy of such order and judgment to the Attorney General. A person holding a certificate of naturalization or citizenship which has been canceled as provided by this section shall upon notice by the court by which the decree of cancellation was made, or by the Attorney General, surrender the same to the Attorney General.

(g) The provisions of this section shall apply not only to any naturalization granted and to certificates of naturalization and citizenship issued under the provisions of this title, but to any naturalization heretofore granted by any court, and to all certificates of naturalization and citizenship which may have been issued heretofore by any court or by the Commissioner based upon naturalization granted by any court, or by a designated representative of the Commissioner under the provisions of section 702 of the Nationality Act of 1940, as amended, or by such designated representative under any other Act.

(h) Nothing contained in this section shall be regarded as limiting, denying, or restricting the power of the Attorney General to correct, reopen, alter, modify, or vacate an order naturalizing the person.

Maybe I am reading something different than you are (well actually we were). But that is what is. So tell me again how it is impossible I must be missing something...

flatrock
June 14, 2007, 05:21 PM
"Um, Flatrock, you just said that he deserves a trial to determine whether he's guilty--but he doesn't deserve a civilian trial, because he's guilty."

Um, no.

I said he deserves a hearing to determine if he is an enemy combatant. Being an enemy combatant isn't a crime. However, enemy combatants aren't released until the conflict ends.

He only gets a trial after he is charged with a criminal offense. However, if he is an enemy combatant, his crime is a war crime in violation of the rules of war rather than a civilian crime.

If he is being held as a prisoner of war, the government is under no obligation to rush in and bring criminal charges against him now, because he isn't being held in conjunction with such crimes. The government can wait until they not only build a case against him, but they can wait until revealing evidence they have against him is less likely to harm other investigations and reveal sources of information which could get our people killed.

However, I do agree that he shouldn't simply be held indefinitely on the determination by the President that he is an enemy combatant. He deserves an opportunity to present his case that he is not.

However, the evidence seems pretty overwhelming that he is an enemy combatant and so what we are instead seeing are appeals based on procedural issues.

What these appeals court judges did was rule that he didn't have a proper opportunity to defend against the determination that he was an enemy combatant, but instead of saying that he should receive a hearing to determine that, they simply said that the government could not hold him as an enemy combatant and had to either charge him with a civilian criminal crime or release him. That completely ignores the fact that we are at war, and that Congress has created a military procedure to handle appealing enemy combatant determination. They instead came up with a convoluted argument that that process didn't appeal to this person and therefore the only option was that he could not possibly be held as an enemy combatant and must be either tried as a civilian or released.

STAGE 2
June 14, 2007, 06:09 PM
The position of the Executive that no such right as Habeas exists. You are Republican do you support your party on this legal issue? You calling the AG an "idiot" is kind of open ended since he has been in the news a lot.


Gonzales is an idiot ofr several reasons, one of which is the suggestion that habeas doesn't exist. It does.


But there are always legal end runs on jurisdiction. For example in Insurance Corp. of Ireland, LTD v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) The court found:

You found the right passage, but put the wrong part in bold. Like I said before, personal jusrisdiction can be waived, subject matter jurisdiction cannot. The jurisdiction that is listed in the act is subject matter jurisdiction. From your passage...

Subject-matter jurisdiction addresses limitation of the federal court’s power. Article III of the United States Constitution sets forth that limitation by defining the subject-matter which a federal court may preside over. Thus subject-matter jurisdiction acts is a restriction on federal power and contributes to the characterization of the federal sovereign. Consequently, no action of the parties can confer subject matter jurisdiction upon a federal court. Additionally, in the exercise of its appellate power, an appellate court may sua sponte find lack of subject-matter jurisdiction, and a party may object on the basis of lack of subject-matter jurisdiction anytime during the trial or on appeal, even if no objections were made during trial.

Thus, any court or military tribunal only has authority to hear things regarding aliens. If they are citizens, the the MCA has no authority as there is no jurisdiction.


Regardless, on the other question I do not see your point. The section of code you quoted on citizenship covers only Voluntarily (1481) giving up citizenship. The section I quoted covers revocation (1451). These are two different animals. I say the US Government can revoke citizenship under that line of the code. You are saying that they can not for some other unspecified reason that I don't follow.... But the real question is have they?

There are 2 ways of becoming a citizen, born here or naturalized here. If you were born here then the quoted section doesn't apply to you and the only way to not become a citizen is to voluntarily have it revoked.

If you're a naturalized citizen then the only way to have your citizenship revoked is if there was some problem with the process of your naturalization. Thats it. If you lied or concealed a material fact during your naturalization process thats the only thing that can get your citizenship stripped.

Thus, if Johnny Jihad was naturalized here and there wasn't any problem with his process, then it doesn't matter what he does or blows up. He can't have his citizenship revoked.

This section that you posted...

Provided, That refusal on the part of a naturalized citizen within a period of ten years following his naturalization to testify as a witness in any proceeding before a congressional committee concerning his subversive activities, in a case where such person has been convicted for contempt for such refusal, shall be held to constitute a ground for revocation of such person's naturalization under this subsection as having been procured by concealment of a material fact or by willful misrepresentation.

...does not get someone kicked out automatically. Its is a ground for revocation, but they still need to have the hearing and the govt still needs to prove their case with respect to having illegally obtained citizenship.

Bottom line, unless something funny happened with their process you can't have their citizenship stripped.

Titan6
June 14, 2007, 07:46 PM
Well, my limited legal knowledge is spent and I will happily concede on the issue of the MCA not covering citizens and the right of habeas still being alive and well in the US for citizens (and now with this ruling for legal residents as well) despite pronouncements from numerous congressmen, lawyers, lobbyists and the AGUS. I am thankful you were able to illustrate that matter in a such a clear manner that often absent from the rhetoric that is often present in these forums.

On the issue of citizenship revocation I never said there was no procedure merely that it could be done and under what grounds. The code allows the grounds I stated so it is not ''impossible'' as you once said. One might deem it unlikely this would come to pass but many unlikely things have occurred over the past few years. We have seen numerous challenges to constitution that were previously unheard of.

I know you disagree (and this is beside the point) but I still believe that these rights alliterated in the Constitution should be the rights of all men. It is sad that we live in such a world where some people crave self destruction and violence over freedom when it is offered but such is the world we live in.

In some future thread we should address some of the constitutional issues of the Patriot Act and other of it's offshoots. But that is for another time.

glummer
June 15, 2007, 08:31 AM
And just for the record, the government ISN'T snatching up people and locking them away.
The government DOESN'T have the power to detain citizens indefinately.

How would you know if they did, if prisoners can be held without access to the courts?

To this day, a single american hasn't come forward alleging that they personally had their rights violated by the government. Feds aren't breaking down doors in the dead of night, and citizens aren't being jailed indefinately.
How does one come forward, if one is being held with habeas?

It denies habeas to ALIEN enemy combatants. Its specifically goes to the trouble of explaining that only non-citizens can have their habeas rights suspended.
Without habeas, there is no difference between citizens and non-citizens, just as there is no difference between the innocent and the guilty.
All prisoners without access to the courts are equal - equally invisible.

Its also says that ALIENS can't petition to contest their detention.

Hoe do you prove you’re NOT an alien, if you can’t protest your detention?

budney
June 15, 2007, 08:51 AM
To this day, a single american hasn't come forward alleging that they personally had their rights violated by the government.

That's nonsense. For one, José Padilla is an American citizen. For another, you're overlooking thousands of people involved in "wrong-door", "no-knock" raids, asset forfeiture cases, Kelo v New London, etc.

--Len.

Titan6
June 15, 2007, 10:23 AM
To this day, a single american hasn't come forward alleging that they personally had their rights violated by the government.

Yep, it has been a few dozen just over the Patriot Act.

Feds aren't breaking down doors in the dead of night,

Now that is really funny.

and citizens aren't being jailed indefinately.

Except the one (that we know of).

All of the statements were false however they have little to do with the truth to the arguement on the law itself. If the government is breaking the law we have to catch them at it. This will be very difficult but is certainly not impossible.

Bartholomew Roberts
June 15, 2007, 10:23 AM
You appear to be obfuscating the issue. Your first statement clearly identifies Padilla's process as a 'trial' in response to statements about being held without going to trial (ie indictment and criminal proceedings). The rest of your statements pertain to Padilla's various legal appeals specifically regarding his being held without charges or indictment.

Aren't they the same thing? Padilla cannot be held without charges unless he is an enemy combatant. The purpose of the hearing is to determine whether he can be held without charges. What do you think the habeas argument is going to center on?

If one is charged in 2002, proceeds to trial and has appealed to the Supreme Court within two years, that is an exceptionally speedy process.

That is not the Padilla situation. Padilla's petition for a writ of habeas corpus reached the Supreme Court within two years. That is an exceptionally long time for a habeas hearing.

An exceptionally long time for a habeas hearing to reach the Supreme Court? What do we have to compare it to? Quirin? Milligan? Most habeas matters are determined at a lower level and much more quickly because they are settled law for the most part. Despite the relative novelty of the government's claims here, Padilla was standing before the apellate court within 18 months and the Supreme Court a few months after that.

STAGE 2
June 15, 2007, 01:51 PM
How would you know if they did, if prisoners can be held without access to the courts?

I suppose we wouldn't, but since you're the one making the accusations, the bonafides are on you. Thus unless you can show me something tangible, insinuations are all you have.

How does one come forward, if one is being held with habeas?

But again you're missing the point. There isn't a single piece of legislation that allows the govt to do this to us citizens. If it is happening the the law is being broken, and you can't blame the PA or anything else.

Without habeas, there is no difference between citizens and non-citizens, just as there is no difference between the innocent and the guilty.
All prisoners without access to the courts are equal - equally invisible.


Thats legally incorrect, factually incorrect, and just plain stupid.


Hoe do you prove you’re NOT an alien, if you can’t protest your detention?

Because your citizenship is known to the government before you're even arrested. Its a rare case where the govt doesn't know who you are or where you're from.


That's nonsense. For one, José Padilla is an American citizen. For another, you're overlooking thousands of people involved in "wrong-door", "no-knock" raids, asset forfeiture cases, Kelo v New London, etc.

Padilla is a terrorist who deserves a trial. He's already been discussed at length. No-knock warrants have nothing to do with the PA nor does Kelo. Coming up with a laundry list of the bad things the government does has no impact on your argument if they aren't related to the PA or MCA.

Because I think my taxes are too high should I blame the PA:rolleyes:



Yep, it has been a few dozen just over the Patriot Act.

And the system has dealt with these abuses as it should.


Now that is really funny.

Not any funnier than thinking that the feds didn't do this before the PA was passed.

glummer
June 15, 2007, 03:10 PM
How would you know if they did, if prisoners can be held without access to the courts?
I suppose we wouldn't, but since you're the one making the accusations, the bonafides are on you.

Not so. All I’m claiming is lack of knowledge, for you as well as me. (And you just admitted I’m right.)
You’re the one making the claim to know something; so what is the source of your knowledge?

There isn't a single piece of legislation that allows the govt to do this to us citizens. If it is happening the the law is being broken, and you can't blame the PA or anything else.
You’re confusing definitions of “allow.” The law makes it possible by creating a class of persons who can have no access to the courts.


Without habeas, there is no difference between citizens and non-citizens, just as there is no difference between the innocent and the guilty.
All prisoners without access to the courts are equal - equally invisible
Thats legally incorrect, factually incorrect, and just plain stupid.

That’s an unsupported assertion, not an argument. Very High Road.


How do you prove you’re NOT an alien, if you can’t protest your detention? Because your citizenship is known to the government before you're even arrested. Its a rare case where the govt doesn't know who you are or where you're from.
Exactly how does that protect me? The mass graves in Iraq and Kosovo are full of people whose citizenship was known to their captors.

STAGE 2
June 15, 2007, 04:21 PM
Not so. All I’m claiming is lack of knowledge, for you as well as me. (And you just admitted I’m right.) You’re the one making the claim to know something; so what is the source of your knowledge?

You made the inference that americans are being taken and detained indefinately. Show me something other than Padilla.


You’re confusing definitions of “allow.” The law makes it possible by creating a class of persons who can have no access to the courts.

The patriot act has nothing to do with habeas. The MCA has no jurisdiction over US citizens. No matter how many times you write to the contrary it doesnt change this. Your logic is like saying, because we give police the authority to arrest people they will just arrest anyone they want. It doesn't fly.


That’s an unsupported assertion, not an argument. Very High Road.


I just spent a long time and alot of bandwith going through the specific details of the MCA and how it is impossible for habeas to be suspended for citizens under that act, and they you go ahead and post some talking point with no legal or factual support. My guess is that you fall into a category of people with 1) no actual legal expertise and 2) not willing to entertain any reason. I may be wrong on the second point but I'll be dollars to doughnuts I'm dead on with the first.


Exactly how does that protect me? The mass graves in Iraq and Kosovo are full of people whose citizenship was known to their captors.

I'm not interested in protecting you. I'm interested in writing constitutional legislation. You can't show me anything unconstitutional in the MCA. Short of that you have no objection.

Aguila Blanca
June 17, 2007, 12:58 AM
He only gets a trial after he is charged with a criminal offense. However, if he is an enemy combatant, his crime is a war crime in violation of the rules of war rather than a civilian crime.
???

How can anyone be a war criminal and "in violation of the rules of war" when there ain't no war? With whom is the United States of America currently at war? What and where is Al Quiada -- if the Congress decided to declare on Al-Quaida on Monday, how does a sovreign nation declare war on a shadow organization that has no embassies, has no territory, and does not legally exist?

This entire "enemy combatant" schtick (whether or not preceded by "unlawful") is a disgusting perversion of law and common sense on the part of the Bush administration.

Remember the movie Red Dawn? According to the Bush Adminstration, the Russians could have deemed every one of the kids in that little resistance group as "unlawful enemy combatants." Is that how you thought of them when you watched the movie?

Titan6
June 17, 2007, 01:15 AM
In the fictional movie the kids would likely have been known as unlawful friendly combatants. But since the event in the movie took place long ago the definitions did not exist then.

A nation can still declare a state of war against the US even if the US does not declare war against it. An example would be Panama which got wind of the '89 invasion shortly beforehand and declared war against the US. Not everyone has to pass a resolution in congress.

Regardless the congress no longer has the courage to declare war or even try to stop it. They just go along with the executive. This creates a de facto state of war even if it is not a legal one since the executive can not declare war legally in the US. War happens regardless of little pieces of paper from congress.

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