Federal court rules against arbitrary suspension of habeas corpus

[Matt King]

Why all the anti-Islamic sentiment?

Where? I didn't notice any.

 

[Ratzinger_p38]

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]

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]

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]

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]

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]

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]

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]

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]

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]

"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]

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]

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]

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]

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]

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]

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]

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

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]

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]

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]

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]

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.