This is just plain wrong. Even Clinton didn't do this.

[alan]

DRC:

Given that I'm following, rather loosely, the commentaries between yourself and Mr. Peel, the following from your latest caught my eye.

Even with this information it won't change the fact that a legal US citizen is being detained without charges or access to legal council, but will give more background on whether Congress passed an unconstitutional resolution. Again I still contend that there's more on Jose Padilla than we know and more to the circumstances than we're privy to.

The Congress has been known as the source of other unconstitutional or extra-constitutional enactments before. One is what was originally known as The Lautenberg Amendment, which certainly does appear to run afoul of stipulation in The Constitution directing that "The Congress shall pass no ex-post facto laws." If Lautenberg isn't ex-post facto, than likely NOTHING would be. The question that then comes up is as follows. Given the clear constitutional problems with this legislation, even granting that The Congress is more noted for it's lack of intestinal fortitude, than for it's display of same, why in the name of hell were they so cowardly as to get stampeeded into passing such damned foolishness in the first place?

As to your closing observation regarding Mr. Padilla, you might be quite right in your assumption.

 

[jimpeel]

DRC

Take your time. I wasn't able to get to the decisions. My daughter and grandkids were visiting as well as having to do a couple of peices of semi-emergency repairs.

 

[DRC]

Myself either.

Hello Mr. Peel and alan,

I haven't forgotten about you, but I too have been a bit preoccupied and will be more occupied in the very near future BUT I have been reading when I get the rare chances but haven't formulated anything as of yet. I'm still enjoying the conversation.

Alan,

I will answer your post as soon as I can so please bare with me.

Thanks for your consideration and understanding.

DRC

 

[alan]

DRC:

At your leisure, give me a shout when ready.

 

[jimpeel]

DRC

I was able to read the decision but it seems to spend an inordinate amount of time with who the proper respondent of the complaint would be. The decision that they had to cut the guy loose was nearly secondary to the ferreting out of the proper respondent.

This paragraph from the decision pretty well sums up the government's contentions; and it took 24 pages to get there:

The District Court concluded, and the government maintains here, that the indefinite detention of Padilla was a proper exercise of the President’s power as Commander-in-Chief. The power to detain Padilla is said to derive from the President’s authority, settled by Ex parte Quirin, 317 U.S. 1 (1942), to detain enemy combatants in wartime – authority that is argued to encompass the detention of United States citizens seized on United States soil. This power, the court below reasoned, may be exercised without a formal declaration of war by Congress and “even if Congressional authorization were deemed necessary, the Joint Resolution, passed by both houses of Congress, . . . engages the President’s full powers as Commander in Chief.†Padilla I, 233 F. Supp. 2d at 590. Specifically, the District Court found that the Joint Resolution acted as express congressional authorization under 18 U.S.C. § 4001(a), which prohibits the detention of American citizens absent such authorization. Id. at 598-99. In addition, the government claims that 10 U.S.C. § 956(5), a statute that allows the military to use authorized funds for certain detentions, grants authority to detain American citizens.

After going through Hamdi, inherent powers, Quirin, Milligan, The Non-Detention Act, the court found:

We disagree with the assumption that the authority to use military force against these organizations includes the authority to detain American citizens seized on American soil and not actively engaged in combat.

and

The plain language of the Joint Resolution contains nothing authorizing the detention of American citizens captured on United States soil, much less the express authorization required by section 4001(a) and the “clear,†“unmistakable†language required by Endo. While it may be possible to infer a power of detention from the Joint Resolution in the battlefield context where detentions are necessary to carry out the war, there is no reason to suspect from the language of the Joint Resolution that Congress believed it would be authorizing the detention of an American citizen already held in a federal correctional institution and not “arrayed against our troops†in the field of battle.

and

It is unlikely – indeed, inconceivable – that Congress would expressly provide in the Joint Resolution an authorization required by the War Powers Resolution but, at the same time, leave unstated and to inference something so significant and unprecedented as authorization to detain American citizens under the Non-Detention Act.

and finally

In sum, we hold that (1) Donna Newman, Esq., may pursue habeas relief on behalf of Jose Padilla; (2) Secretary of Defense Rumsfeld is a proper respondent to the habeas petition and the District Court had personal jurisdiction over him; (3) in the domestic context, the President’s inherent constitutional powers do not extend to the detention as an enemy combatant of an American citizen seized within the country away from a zone of combat; (4) the Non-Detention Act prohibits the detention of American citizens without express congressional authorization; and (5) neither the Joint Resolution nor 10 U.S.C. § 956(5) constitutes such authorization under section 4001(a). These conclusions are compelled by the constitutional and statutory provisions we have discussed above. The offenses Padilla is alleged to have committed are heinous crimes severely punishable under the criminal laws. Further, under those laws the Executive has the power to protect national security and the classified information upon which it depends. See, e.g., 18 U.S.C. app. § 3. And if the President believes this authority to be insufficient, he can ask Congress—which has shown its responsiveness—to authorize additional powers. To reiterate, we remand to the District Court with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release Padilla from military custody within 30 days. The government can transfer Padilla to appropriate civilian authorities who can bring criminal charges against him. Also, if appropriate, Padilla can be held as a material witness in connection with grand jury proceedings. In any case, Padilla will be entitled to the constitutional protections extened to other citizens.

The other decision was merely the dissent which, whlie informative and inciteful, bears no weight in the case.

 

[DRC]

Howdy fellas. I'm still reading but have a few minutes to give a short synopsis thus

Hello Mr. peel,

God picks on the information brought forward. One thing that I am looking for in my reading is where the basis of legal opinion came from e.g. if they looked into or even asked on what grounds Padilla would have given up his legal citizenship. So far I've not found where they did. Moreso to see if the question entered into all of this which has been my contention from the beginning. Did Padilla do what would legal constitute giving up his US citizenship? I'm just not finding that information (on either side, truth be known) Rumsfeld says Padilla is an enemy combatant but based on what? The courts say he's not, is an American citizen and entitled to protections under US law, but based on what? I'm a detail guy and there are a few small details left to the imagination that are picking at me. I will read on though but wanted to touch base with you on what I'm looking for and what I've found thus far.

alan,

"The Congress has been known as the source of other unconstitutional or extra-constitutional enactments before."

Absolutely! I don't discount that at all, but in this case there are some ambiguities, not in the constitutional laws but in the circumstances of the case itself. Even with the decision being made it appears to be little more than the administration saying we're right and justified in doing what we're doing based on this law and the courts saying they're right and justified in doing what they're doing based on that law. In any event neither are accountable based on the laws in place.

One is what was originally known as The Lautenberg Amendment, which certainly does appear to run afoul of stipulation in The Constitution directing that "The Congress shall pass no ex-post facto laws." If Lautenberg isn't ex-post facto, than likely NOTHING would be."

I agree. After the fact is the wrong time to decide on the legality or constitutionality of a crime or possible crime. In this case however, everything was already in place when this action took place and has been in effect for sometime now.

"The question that then comes up is as follows. Given the clear constitutional problems with this legislation, even granting that The Congress is more noted for it's lack of intestinal fortitude, than for it's display of same, why in the name of hell were they so cowardly as to get stampeeded into passing such damned foolishness in the first place?"

My opinion? Because liberals are afraid of everything and appeasement is the only plan of action they have or take

Seriously, that's where the other part of my question came from. Again basing it on the circumstance and actual provisions of the resolution itself, which is where more reading is envolved. As an example I will use homeland security. Homeland security is less a new administration office as it was a quicker and easier way to get around a silly law passed that kept FBI and the CIA from sharing information in fear that they would become one big unstopable investigative entity. Then to branch off to The Patriot Act for just a moment the provisions in the Patriot Act already existed but people are up in arms about it now that they are all in one place. For some reason when they were scattered all over the legal map they were okay and not a violation of our rights but now that they are all under one specific title they are. Most of what I've found in the Patriot Act is just minor changes to include specific wording in pre-existing laws (pre-existing meaning prior to the Bush administration and even before the Clinton administration and farther back)

"As to your closing observation regarding Mr. Padilla, you might be quite right in your assumption."

Not patting myself on the back because it's nothing to warrant celebration but I was right on the Mike Hawash situtation which was similar so I'm gambling on the same premise I used for that on Padilla's case as well. We'll have to wait and see what all plays out in this situation. I don't claim to know anything definitive about this case I simply have questions that remain unanswered which makes me question the otherside of the case (proesution/defense sort of thing)

For now my time is up. I'll catch you gentlemen as soon as possible.

DRC

 

[jimpeel]

DRC

One thing that I am looking for in my reading is where the basis of legal opinion came from e.g. if they looked into or even asked on what grounds Padilla would have given up his legal citizenship. So far I've not found where they did. Moreso to see if the question entered into all of this which has been my contention from the beginning. Did Padilla do what would legal constitute giving up his US citizenship? I'm just not finding that information (on either side, truth be known)

I have posted the text of 8 USC 1481 and that is the only way someone gives up their U.S citizenship.

Rumsfeld says Padilla is an enemy combatant but based on what?

As stated in other posts and cites, there was no evidence that Padilla ever attempted to commit any crime. If we are to give rise to "thought crimes" we likely have a cause of action. All that is needed is a clairvoyant prosecutor; and Rumsfeld apparently qualifies for that job.

The courts say he's not, is an American citizen and entitled to protections under US law, but based on what?

Just a wild guess; but I would guess that the Constitution has something to do with that.

I'm a detail guy and there are a few small details left to the imagination that are picking at me. I will read on though but wanted to touch base with you on what I'm looking for and what I've found thus far.

Perhaps you are attempting to micromanage the details.

 

[DRC]

"I have posted the text of 8 USC 1481 and that is the only way someone gives up their U.S citizenship."

Yes, but we've discussed this as well and the problem is that we don't know all the particulars of this case in order to propperly determine if this action was warranted under the circumstances of said case. You and I are both making assumptions on unknown information at this point but erring on the side of caution to an extent.

"As stated in other posts and cites, there was no evidence that Padilla ever attempted to commit any crime. If we are to give rise to "thought crimes" we likely have a cause of action. All that is needed is a clairvoyant prosecutor; and Rumsfeld apparently qualifies for that job."

Actually no evidence that we are aware of or that has been turned over. There again is the problem there are still pieces missing that could be very pertinent to one side or the other. Keep in mind too that I'm not saying that your assessment is incorrect and if constitutionally sound I'm all for going after them for rights violations.

"Just a wild guess; but I would guess that the Constitution has something to do with that."

Perhaps I should have clarified this question (which I tought I did) by saying in the matter of this case and the evidence (much of which is still unknown) to support these specific rulings both by the administration as well as the court. I could go on almost infinitum on scenarios envolving Padilla and actions taken by him in another country that in my opinion and in a prosecutions opinion could warrant the voluntary denunciation of US citizenship effectively making him an enemy combatant and the only thing that would keep him a free man would be loopholes which there are many.

"Perhaps you are attempting to micromanage the details."

And perhaps you're trying to omit them

Take care,

DRC

 

[jimpeel]

DRC

I have given an honest assessment of every detail I can glean. There has been presented no evidence that Padilla entered a written renouncement of his citizenship at any embassy.

Section 1481. Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions

(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 gainst
the United States, or (B) such persons serve as a commissioned or non-commissioned officer ...

There has been presented no evidence that Padilla became naturalized in a foreign state.

There has been presented no evidence that Padilla made any formal oath or affirmation of allegiance to a foreign state.

There has been presented no evidence that Padilla entered any foreign military service or was a commissioned or non-commissioned officer thereof.

Hell, we didn't declare John Walker Lindh to be a non-citizen and he was proveably in a foreign military during ongoing hostilities.

If Padilla had done any of the above, it would have come out by now as a ploy to glean American resentment of him and further help to justify the government's case.

 

[DRC]

Sorry I haven't been back in so long...

I've made this statement and asked this question before regarding:

"(3) entering, or serving in, the armed forces of a foreign
state if (A) such armed forces are engaged in hostilities gainst
the United States, or (B) such persons serve as a commissioned or non-commissioned officer ..."

What is Al Queda classified as if not an armed force in a foreign state? Isn't Al Queda engaged in hostilities against the United States both here and abroad?

With that said according to the reports regarding this case (and I'm still reading the links mind you I just haven't had much time here lately and I apologize) Padilla was actively seeking enlistment into Al Queda, received training from them and was given money by them. Sounds like he applied, was trained and got paid but Al Queda didn't just openly accept him as a member of the group. Number three doesn't say he has to do all of the above but rather one or the other. To me, with what I've read thus far, it would appear that he could quite possibly have met the criteria for denunciation under the first part of number 3.

I'll be back as soon as I can but I'm working on a custody case so it might be a little while.

Take care,

DRC

 

[jimpeel]

What is Al Queda classified as if not an armed force in a foreign state?

If you can find them on a map of the Earth, or you can show that they are a recognized signatory to the United Nations Charter, or introduce their ambassador to the United Nations to any foreign leader you would have a point.

They are an "armed force in a foreign state" as much as the Militia of Montana, or the Militia of Michigan, is an armed force here in the United States.

Isn't Al Queda engaged in hostilities against the United States both here and abroad?

Although they are engaged in hostilities virtually against the entire planet, including the United States, they are not a recognized military entity as defined by the accords of the Geneva Convention -- one of which is that a military entity must have a uniform which is recognizable as such at a distance.

 

[DRC]

Hello Mr. Peel

I finally finished reading the case files and links.

The points you make in your last post make my point. Not to detract from your own but as to the classification that Al Queda would fall under, there is no real classification which is (through what I've read) the point being made on the side of the administration.

"They are an "armed force in a foreign state" as much as the Militia of Montana, or the Militia of Michigan, is an armed force here in the United States."

Sorry to say but they are. If not then what would you classify them as? A bunch of people with guns that go to meetings? They may not be recognized by the US government or the US military but they are what they are Geneva Convention or not.

"Although they are engaged in hostilities virtually against the entire planet, including the United States, they are not a recognized military entity as defined by the accords of the Geneva Convention -- one of which is that a military entity must have a uniform which is recognizable as such at a distance."

Sadly the Geneva Convention also stipulated that Red Cross personel not be targeted by the enemy, but low and behold they are the first to be shot in combat situations. So how much weight do you want to lend to the Geneva Convention and the outcomes thereof? The US is about the only country that follows those rules since the rules set forth by the Geneva Convention were designed to hinder the US's ability to fight a war, not our enemies ability.

As to the uniform being easily recognizable from a distance; ever heard of camoflage, blending into the crowd to make it easier to strike when the opportunity presents itself? Our guys look like sand dunes, and in the jungles they look like trees and bushes (especially in a Gilly suit) So being easily identified from ones uniform makes it easy to target said person; not smart warfare and a good way to get people killed. So again Geneva Convention or not that is definitely one not to follow.

Take care,

DRC

 

[jimpeel]

DRC

Sorry to say but they are. If not then what would you classify them as? A bunch of people with guns that go to meetings? They may not be recognized by the US government or the US military but they are what they are Geneva Convention or not.

By your definition, the Mafia would be an "armed force in a foreign state" and Al Capone was merely a misunderstood General. Being an "armed force in a foreign state" does not in any manner legitimize that force.

The Northern Alliance was an "armed force in a foreign state" but was not a recognized "armed force in a foreign state". They were insurgents against the Taliban which was recognized as an "armed force in a foreign state" by the UN and many nations. Al Qaeda has never been recognized by the UN or any country. They are merely an "armed force in a foreign state" that exists outside of any lawful authority.

Sadly the Geneva Convention also stipulated that Red Cross personel not be targeted by the enemy, but low and behold they are the first to be shot in combat situations.

My point is made. Those who are not signatories to the Geneva Accords are not bound by their covenants. Only those entities that are recognized nation states are invited to become signatories and adhere to the covenants. All others are operating outside of the Geneva Accords; which are the existing rules of war.

So how much weight do you want to lend to the Geneva Convention and the outcomes thereof?

As stated, the Geneva Accords exist as the rules of war for the planet. There are those which operate within their confines; those which operate outside their confines; and those which do not qualify to be included within their confines and wouldn't operate within them even if so invited.

The US is about the only country that follows those rules since the rules set forth by the Geneva Convention were designed to hinder the US's ability to fight a war, not our enemies ability.

The Geneva Accords were instated to set the rules of war under which the signatories thereto were to operate. It almost sounds as though you are of a mindset that the Geneva Accords are an obsolete proviso in law that we should simply ignore and begin operating in whatever manner we see fit.

The United States is not "about the only country that follows those rules" as many countries remain bound by their provisions. It is the rogue states, such as Iraq, which ignore the Geneva Accords and operate outside their confines which make it neccessary to once and for all go and clean them out.

Saddam used chemical weapons on Iranians and Kurds in direct violation of the Geneva Accords to which Iraq is a signatory. Even though the Geneva Accords were ignored by him, they will be the laws under which he will be tried. Even though the Iranians had these banned weapons used against them, they did not respond in kind and, as such, remanied within the Accords.

I honestly believe that I have given reasoned, documented responses to you on this issue but I must respectfully ask: Are you simply yanking my chain now? I have no way to make myself any clearer and I believe I have a firm grasp of the English language. What I am not, is a typist; and it takes me quite some time to compose these responses one key at a time.