How the f*ck would you or any other American know whether their civil liberties were being "curtailed". The boy king doesn't think it's any of your goddamn business.
That's just beautiful. I really love you shep. You spelled every word correctly. The punctuation is spotty (questions usually end in question marks [?])but still understandable. You wrote in complete sentences that have a subject, verb and an object with subordinate clauses properly placed. You even used the correct "their" (they're, there) and your contractions were superb.
And yet, it makes absolutely no sense at all.
As if we would know we were living in a fascist state only if someone told us.
You know, because the knocks on the door in the night and the daily shootings of protestors and the closings of newspapers that attack our Boy King are so..... understated.
"You know, because the knocks on the door in the night and the daily shootings of protestors and the closings of newspapers that attack our Boy King are so..... understated."
So that's what it would take to destroy your support of a Republican president. I do have to wonder what you'd think of a Democratic president who declared the right to arrest and hold you forever without charge or listen to your phone calls without a warrent. Actually, I take it back; I don't really care.
What a disgusting attitude toward American liberty rights (and former greatness) that the founders and every soldier in every war has fought and died for.
I do have to wonder what you'd think of a Democratic president who declared the right to arrest and hold you forever without charge or listen to your phone calls without a warrent. Actually, I take it back; I don't really care.
Buh?
Well, if I was taking overseas phone-calls from terrorists being legally wire-tapped or committing terrorist acts I hope a Dem president would do something about it.
Are you saying a Dem president wouldn't even use the law-enforcement model to fight terrorists? How exactly are they going to fight them? By converting? I'll note that for 2008. Thanks for the tip.
But you really should look into the part about "Arrest and hold me forever without charge" accusation. It's just not true. And no, I won't link it for you as that would just be a waste of time. Try to educate yourself.
Mark Adams, who's always correct, get used to it. (mail) (www):
Rose is right! Just like most Americans realize their liberties haven't been curtailed, most Germans realized they weren't forced on the trains to the camps. Hell, most of them didn't realize where the trains were going.
Likewise, most Poles weren't stuck in the Warsaw getto, most Russians weren't sent to the Gulags.
What garbage.
Now, for those who don't click the Liberal baiting link, allow me to quote the actual headline, with emphasis to point out the misleading nature of Rose's title.
Most feel civil liberties not harmed by war on terror
.You can realize objective truths. You can feel just about anything your preconceived, ill-informed notions wish.
In Wickham we lost the ancient right to farm our land.
In Roe v. Wade we lost the ancient right to be born.
Game wardens take away our ancient hunting rights.
Fire wardens take away our ancient rights to light things on fire!
Busybodies take away our ancient rights to purposely inhale the smoke.
The Border Patrol takes away our ancient rights to walk wherever we want.
If I become famous, I lose my right to be protected from slander and libel.
In the Slaughterhouse cases we lost the rights in the 14th Amendment.
Our civil liberties have also been expanded, right?
Who holds the civil liberties ruler?
You know darn well you are perfectly happy curtailing civil liberties, Mark. You say, there outta be a law! And you elect a person to pass it. And we lose a liberty.
Actually, liberals don't elect someone to pass it. They file a lawsuit and hope they get the right judge. That whole democracy thing is so ...uncertain.
Actually, most Germans knew about the camps and the Jew hatred; most of them supported it. Likewise, the reason there was a Warsaw ghetto is that the Poles had been forcing Jews to live there WELL before the Nazis came along. And all Russians knew the Gulags existed; its just that most of them were unwilling to do anything about it.
The differing approaches here are instructive: in the 90's, when the right was afraid that Clinton would take over and really take away American citizen's rights, they formed militias and stockpiled supplies and weapons to fight to take the country back. Now that the left finds itself in the same perceived position, what's their response? Hold naked protest rallies.
As always, there are those who talk and those who do.
Jubal sang of the golden years
When wars and wounds shall cease --
But Tubal fashioned the hand-flung spears
And showed his neighbours peace.
New -- new as the Nine-point-Two,
Older than Lamech's slain --
Roaring and loud is the feud avowed
Twixt Jubal and Tubal Cain!
Mark Adams, who's always correct, get used to it. (mail) (www):
This was Sheps fight, but since he ignored Meathead Veeshir, and I happened upon a convenient link, I'll swat this mosquito
But you really should look into the part about "Arrest and hold me forever without charge" accusation. It's just not true.
Ron Suskind is a twice Pulizer Prize winning expert in Government, the CIA, and terrorism. His sources are top notch, always. He assumes there are about 100 suspected terrorists being held, still, in secret US prisons throughout the world, or are being kept by our allies at our request.
I'm going to give his hunch a lot more weight than Mr. Veeshir's unsupported assertion.
I have no doubt that most, and maybe even all, should be locked up because they are indeed terrorists.
I also know that some completely innocent people have been "disappeared" this way. This guy, Maher Arar, is but one example.
Our system of justice is designed to prevent such tragic mistakes. Bush has ignored these basic protections, even the ability to prove a case of mistaken identity with the elimination of habeas corpus.
I'll respond, shep said
I do have to wonder what you'd think of a Democratic president who declared the right to arrest and hold you forever without charge
Note that he was talking to me, i.e., an American citizen.
Note that Suskind is talking about foreign born terrorists not captured in the US.
But yeah, I can see why you would be confused. You are just confused easily and don't appear to have very good reading comprehension skills.
I don't know where this claim that the Military Commissions Act of 2006 applies to citizens comes from. I read it and don't see any verbiage that claims this applies to citizens. The act explicitly applies to "Alien Unlawful Combatants".
The text of the law states that its "Purpose" is to "establish 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." Legal and Constitutional scholar Robert A. Levy commented that the Act denies habeas rights only to aliens, and that U.S. citizens detained as "unlawful combatants" would still have habeas rights and could challenge their indefinite detention.[9] While formally opposed to the Act, Human Rights Watch has also concluded that the new law limits the scope of trials by military commissions to non-U.S. citizens including all legal aliens. [10] CBS Legal expert Andrew Cohen has commented on this question and writes that the "suspension of the writ of habeas corpus – the ability of an imprisoned person to challenge their confinement in court—applies only to resident aliens within the United States as well as other foreign nationals captured here and abroad" and that "it does not restrict the rights and freedoms and liberties of U.S. citizens anymore than they already have been restricted". [11]
Mark Adams, who's always correct, get used to it. (mail) (www):
Mike, fuck off. I've really had it with the snide amusment and personal attacks.
I'm stopping, unilateral cease fire. I'm not going to disparage your intellect again. You and I have a lot to offer each other because we have such different perspectives. There's learning to be had here. But I'm not going to induldge the slime anymore with you. At least I'm going to try. We're grown men, not children and we should act the part.
Right now, right here, please accept my apology for every nasty personal attack I've directed your way. Hopefully you won't have cause to respond to any more.
But just as an editorial suggestion on style, words to the effect that you are ammused or find someone's comments funny, etc., add no substance to the merits of what you have to say. In fact, it takes away from, rather than adds to the authority of your analysis. You'd come across with much more credibility if you lose that particular habit. It's not dignified.
So, Brian, under your analysis, it's ok to be treated like an animal if you're a foreigner -- even if you are here quite legally and IF you had the opportunity to present some evidence on your behalf it would show that your activities were also quite legitimate.
I'll make it short for you. Maher is a Canadian, an ally in the WoT whose blood spread on the fields of Afghanistan is the same color as yours. He was sent off by your government and tortured on your behalf, without any decent reason.
He was no terrorist, had no terrorist ties. If they had something on this guy, believe me they would have used it to cover their ass for what was done to this man.
Are you proud of what your country now stands for. That shining City on the Hill is in the middle of a blackout.
And I won't even get into my disagreements with the analysis itself right now, maybe later when I have a bit more time to give you some citations.
If you're okay with refusing equal protection to foreign nationals (a right guaranteed to "all persons" not merely citizens under the 14th Amendment) I'll withdraw my demurrer to your proposition of what the Act means and we can discuss the merits of its implications.
Are you comfortable with torturing foreigners under circumstances that would be unforgivable if the subject were a US citizen?
"So, Brian, under your analysis, it's ok to be treated like an animal if you're a foreigner"
Never discussed the topic. The article was about whether American citizens have had their rights curtailed by this. I just don't like baseless claims.
From Democrats I am only interested in whether Bush has done anything worse than what say FDR, or Lincoln did during war. If an independent wants to make an argument that things Bush and other presidents have done are wrong then I'm willing to have that conversation. Just don't want to hear a pot calling the kettle black conversation.
I found Cheney's recent remarks pretty incredible. Does he really expect me to believe that when he was talking about dunking terrorists that he wasn't referring to water boarding? I guess he was talking about bobbing for apples or perhaps setting up one of those things where you throw baseballs.
Mark Adams, who's always correct, get used to it. (mail) (www):
War, as they say, is hell. I certainly don't recall codification of FDR or Lincoln's alleged excesses in pursuing their war powers comparable to the legilative blessings and twisted constitutional interpretations of the last three years.
I'm a bit young to remember just exactly how I acted in support of FDR's internment camps, but I suspect in another life I was opposed. As for Lincoln's sidestep of Habeas Corpus -- it was Constitutional as the nation was dealing with an insurrection even if it wasn't legislatively approved. So why my being a democratic kettle has relevance is puzzling.
You'll find I don't indulge too much in the moral rightness or wrongness arguments, but rather the legalities.
I know we've prosecuted people for war crimes when they dunked people in water they way you and I know Cheney was talking about -- but refuses to admit.
You'll have to inqure of the people running our internment camps, both the public and secret ones, to "know" whether Bush has been engaging in "worse" behavior. I don't mean to change the subject, but his admissions regarding the NSA domestic surveillance program indicate illegal activities with more certainty than what has been done with detainees.
But that's because he hasn't admitted as much, or been fingered for as much through subordinants -- like Gonzales specifically stating that Bush was approving that program.
The NSA program is illegal under my interpretation of current law. And I'm certainly not alone in this opinion which includes a couple federal judges -- including a cousin, Judge Walker, of "W" himself.
When it comes to detainees, I think you have to step back from asking about specific evidence and ponder whether there's a concerted effort to never let any such evidence come to light, including changing some of the fundamental tenants of western jurisprudence. Your inquiry to democrats is meaningless if the argument is over what Bush did, but not about his legitimate or illegitimate authority to cover-up what has or has not been done.
The latin origin of the very words "habeas corpus" is testament to it's fundamental enduring importance to a functioning goverment, responsive to the rights of people subject to it's power.
Which begs my original question about the difference in status as a citizen being determative of the right to habeas relief. That is one of the vehicles that safeguards people from a government that steps over the line. It not only exposes previous abuses, it deters future ones.
The Constitution, following common law tradition, mades a careful distinction in the use of the words "citizen" and "person." A citizen must be a "person born" or naturalized. But persons can be other things, like corporations or resident aliens -- documented or otherwise. The Military Commissions Act distinquishes between combatants -- lawful, unlawful, alien and US citizens -- all of whom are still "persons." Moreover, designation of a person's status by POTUS or SecDef is "definitive" under that act.
If you are innocent, and a citizen, but are misidentified as an alien unlawful combatant -- your vehicle to clear up the error, habeas corpus, has been forclosed. That doesn't comport with any definition of justice that I can acknowledge. Until this Act, your rights to be protected from this mistake -- or worse, misuse and abuse of the procedure purposely directed at you for your political beliefs, was protected.
You just lost a right, a protection, you didn't know you had -- but somehow instinctively thought existed, because it could never happen here, to you. Tell that to Maher Arar. Mistakes happen.
Equal protection is guaranteed to all persons, not just citizens under the Constitution. Likewise the Due Process clauses of the 5th and 14th Amendments protect "persons." This Act creates a new class of non-person straight out of 1984.
Saying that what is going on is no worse than what has transpired before is a fallacious argument. It's unconstitutional and unamerican. Railing about FDR or Lincoln won't bring them up from the grave to face the music or change their tune.
I'm just one voice in the wilderness, so I don't expect to change the course we're on. But voicing my objections to the current situation is still exponentially more effective than lamenting the past.
Mike, fuck off. I've really had it with the snide amusment and personal attacks.
That's just beautiful. I mean, in an attack you say you are sick of attacks.
Sorry, I know you declared a unilateral cease-fire where I'm supposed to not laugh at your assertions that I find laughable, but that's still pretty funny.
What's funnier? To what did I respond with a personal attack?
quoth MarkThis was Sheps fight, but since he ignored Meathead Veeshir, And how did I respond that seems to have ticked Mark off?
You are just confused easily and don't appear to have very good reading comprehension skills.
Sorry, but that's funny. I'll try to stop being too confrontational, but I don't know why and I don't promise to be not confrontational.
Not everybody can be the Olympian that is Wince. (and no, I don't mean that as an attack on Wince).
Mark Adams, who's always correct, get used to it. (mail) (www):
Mike, telling you to fuck off, while hardly polite, it's not an attack either -- it's an instruction to you and expression of my exasperation.
Who really knows who started what how many threads ago. I can only attempt to control my own actions, try to modify my bad behavior, and offer friendly advice. It's your choice whether you decide to curb your most irritating qualities.
But I'm still interested on how Padilla's case backs your position.
If Lincoln and FDR are too far back then consider Clintons activities (and we were not even at war). Didn't he ship people off to third party countries for torture sessions? Seems to me it's "Pot, Kettle, Black".
Seeing how you are a lawyer maybe you can explain how the Military Commissions Act applies to citizens. I read it and don't see it.
Mark Adams, who's always correct, get used to it. (mail) (www):
Brian, you're going to have to refresh my memory about Clinton. But before you bother, two wrongs never make a right.
I already explained how a citizen could get caught up in the Act, with no ordinary redress absent habeas corpus. We can't even count ballots without controversy in the country. That's why Habeas is "basic." It remedies mistakes.
What's to keep POTUS from arbitrarily declaring a naturalized citizen an alien unlawful combatant? POTUS can make (or order his appointees to make) the determination that the citizenship is revokable because it was gained under fraud for purposes of aiding enemies of the state.
How is this determination challengable under the Act? It isn't as far as I can tell. No recourse if POTUS classifies you and his military tribunal agrees that you are indeed an alien unlawful combatant. The appellate court, since it is only empowered to review the procedural aspects of the case, and not make a factual determination that there was no fraud invalidating the citizenship which was determined (not merely alleged subject to any burden of proof) by POTUS and upheld by his Commission.
What's happened is that the executive prosecutorial power has been combined with a judicial function. POTUS's determination of a detainee's status as both unlawful and an alien is dispositive, and the mere classification -- unchallengable -- is reason enough for conviction by the tribunal. There is no procedural mechanism to challenge the revokation of citizenship. At least Demjanuk got an extradiction hearing to challenge the revokation of his citizenship.
But I got another way, which is admittedly twisted, so feel free to flame me for this since it's fairly inconcievable, but follow along just for the fun. This time the American Citizen is the interrogator, not the detainee, who is screwed.
Jack Balkin know a thing or two about the subject, and in this post he correctly points out that the MCA has eliminated any effective enforcement procedure to prevent commission of torture or war crimes against any detainee. McCain's Amendment can be effectively ignored because without recourse to Habeas Corpus or Geneva, war crimes can be committed by overzealous interrogators acting under or beyond their specific orders with no fear of consequences unless the justice department goes after them.
However, certain nations like Israel, Belgium and the UK claim "universal jurisdiction" to prosecute war crimes. Unlikely as you can imagine this scenerio, other nations, including some Middle Eastern countries would be delighted to enforce international law against CIA interogators.
An American citizen, trusting his government (first mistake) believing that he is following lawful orders by waterboarding a prisoner (something we have prosecuted others for), has just broken international law because he believed the MCA shielded his act. He gets nabbed and put into the dock for a show trial much more interesting than Saddam's circus.
I know, Brian, this wasn't the answer you were looking for, but us lawyers are trained to look for the unlikely and protect against them.
The law is not designed to protect criminals, or terrorists, but just treat them as they deserve, if they deserve it -- no more, no less. It tries to be fair to them while protecting innocent people as well. But legal procedures are also put in place to protect the law enforcement community and the integrity of the system itself.
You just saw something like this with Dawg The Bounty Hunter, who was acting perfectly lawfully under US law, but since he was in Mexico arresting someone, and they don't recognize his acts as anything more than an abduction and kidnapping, he was put on the hot seat.
Now, put the Dawg in Pakistan and instead of hunting bail jumpers, he's CIA employee tasked with getting info out of an islamist recruit. With Pakistan perpetually on the verge of internal meltdown -- especially after this shenanigans missed the Zawahiri, inflamed an already tense situation, and probably screwed up the deals Musharraf had just made and was about to sign -- but won't now since the raid outraged members of the Islamic Party who are walking out of the government along with the leaders of the provinces Musharraf was negotiating with.
Now it's no stretch to suppose that some American who looks a lot like "Dawg" with shorter hair got the info regarding Zawahiri's location by waterboarding someone in the Isalmic Party. Nor is it a stretch to ponder that while we're watching the election returns next week, the next coup against Musharraf is successful, the airports and borders are closed, the Islamist take over the government, arrest "Dawg" and try him under international law (since of course his actions were otherwise sanctioned by POTUS and Pakistan).
American citizen, nice kid, very patriotic, who was only obeying orders.......
Mark Adams, who's always correct, get used to it. (mail) (www):
Edmund Burke, a brilliant conservative said that bad laws are the worst sort of tyranny. It's one of my favorite quotes and along with a quote from Jefferson, usually appears as the signature line of my e-mail.
I just gave you three reasons the MCA is a very bad law -- for Americans.
There's a lot more wrong with the law if you're a person duly entitled to due process and equal protection which extends to everyone subject to our jurisdiction whether they're a citizen or not.
This is how tyranny begins, but we're not there yet. But supposedly we Iraq isn't in the middle of a religious civil war -- yet.
Sorry, been busy and I saw that Dean was attacking me over at INDC and had to respond to that.
I will say that I wasn't making the argument that two wrongs make a right. I was saying that I didn't understand something. You have clarified a little but it is still a white lie to claim that the bill allows any citizen to be plucked off the street and locked up without trial. That's the kind of nonsense I'm hearing from people.
Mark Adams, who's always correct, get used to it. (mail) (www):
Agreed Brian. Until you made me look beyond the things I had skimmed in the act before, I didn't catch the exclusively alien nature of the verbiage.
Along with habeas corpus elimination, yet another reason the bill's only provision that will survive court scrutiny will be the elimination of any possible war crimes prosecutions stemming from abusive interrogations under US law. Once a future administration reinstates Geneva principles into the US code, any attempt to go after the thugs or their bosses will be dismissed as ex post facto.
I had been looking for something else entirely when I read it before, part of an ad hoc bit of research -- why the act absolved folks rhetroactively to November 26, 1997, giving POTUS on down a legislative pardon, which is another story, explained better here.
I really wasn't looking to make arguments for what the administration is doing or how it is doing it. I'm not a lawyer and I'm not competent to read this stuff and know what exactly it means. I do know that I don't like the idea of secreting people away. I also know that I don't like the idea of foreign terrorists and illegal combatants in war getting the full protection of the Geneva Conventions, nor using our civil or criminal court systems. I think it appropriate that a military tribunal judge them. I don’t see why a military trial would require people disappearing though. I saw aspects of it I liked and aspects I didn't like.
Seems to me they are getting the same treatment our own soldiers would get, a military tribunal. The document goes into all sorts of procedural details that seem to work towards providing a reasonably fair trial. Maybe they could be better, like a jury, but maybe there are reasons I am unaware of why a jury is unfeasible.
I do agree that once someone has been granted citizenship that they should be given all the benefits. It should not be up to the president to revoke citizenship. I do think however that revocation should be an option if a person has lied (in a relevant way) to become a citizen. You've made the claim that this act gives the President the power to revoke someone’s citizenship. Did I state yoru position correctly? Could you please point out where? I didn't see that but am willing to believe it if you can provide the text and explain it.
I'm actually fed up with both Democrats and Republicans but for different reasons. The same goes for Libertarians too a lesser extent. I have to say that I am most pissed off at the Democrats these days. I am probably going to vote for any Libertarians running on the ticket and then straight anti-incumbent come the election. Which means voting mostly Republican on the remainder where I live.
What pisses me off most about the Democrats is they seem to be willing to believe the worst of the U.S. at the drop of a shoe. What irks me about it is that the same stuff doesn't flip them out when their side is doing it. It's not just hypocrisy but is bad for the country. I'm not talking about being against the war. That's fine. I'm talking about things like the Joe Wilson liar incident, which I investigated in depth. The false claim that we "knew" Saddam didn't have WMD really irks me. The fact is we didn't know.
If further bugs me that I get accused of advocating the use of nukes by someone who is apparently a Democrat when in fact I had just got done quitting a blog on the issue that it was rash to even joke about nuking North Korea. This is especially ironic when it was a Democrat president that dropped the atom bomb twice and another Democrat who was involved in firebombing during WWII.
I don't know what it is about the Internet but I sometimes find myself doing that same thing. You know, arguing against a position that someone never explicitly took. I don’t get it that wrong usually. I guess it's an attempt to preemptively deal with possible counterarguments due to the delayed nature of comment posting. I’m not exactly sure. There is also the whole issue of looking bad in front of others. It all becomes an issue of ego.
I’m not going to comment on Dean. I don’t know what motivates him. I also think it is pointless to get into those sorts of arguments. He’s speculated on what motivates me. That is he’s claimed I’m a bigot. So now I can psychoanalyze him but where does that get me? He surely is in the most authoritative position to know what his motivations are. The same goes for my motivations. I know them best. I’m not interested in such a pointless argument. It would be much more productive if he’d just ask me why I said something instead of imputing all sorts of vile motivations on me.
What I’m interested in is an argument based on accuracy. Is what I am saying accurate or not. If he thinks it is not accurate then why not. I want specifics. I want my position understood before it is criticized. Dean isn’t sticking to this formula and that is why I am no longer commenting on his blog. In fact he does his darndest to drag the conversation into the gutter. To make it a name-calling contest. I’m not going to play.
Mark Adams, who's always correct, get used to it. (mail) (www):
I get that, Brian. You and I seem to be the long-winded types, partly because we try to fend off the inevitable twists of our meanings by folks deliberately trying to get their kicks from snark. I like being snarky too, so being accurate in my own writing becomes important to pre-empt the inevitable counter-attack.
Accuracy usually takes extra paragraphs, fending off the straw-men even more.
There's so much just plain wrong with the MCA. Take a look at section 948b. It does away with speedy trial, compulsory self-incrimination, pretrial discovery and stare decisis. It's the very definition of a kangaroo court.
MCA Sec. 948d describes two judging bodies. A "Combatant Status Review Tribunal or other tribunal" [Tribunal] hand picked by POTUS or SecDef which designates someone as an Unlawful Enemy Combatant, and a "Military Commission" that tries the subject for the designated war crimes specified in the act. Nowhere does it say how alien status is determined, but presumably the tribunal will.
The rulings of the Tribunal under subsection (c) of 948d that someone is an "unlawful enemy combatant" is "dispositive for purposes of jurisdiction for trial by military commission."
That's the section I had noted before you clued me onto the restriction of the act to aliens. There's no provision for review of that determination as an "unlawful enemy combatant" by the tribunal. There is no provision for judicial determination of the alien status of a subject whatsoever by the tribunal or commission.
Also, I would think, logically, that the determination of someone as an "unlawful" enemy combatant is a legal determination -- usually something a court/tribunal would decide. Not here.
Also, the government will argue (correctly, it seems to me) that the tribunal's jurisdiction is limited to the acts against the US specified in the MCA, and not permitted to even rule on citizen status. Article I courts do not have general jurisdiction like Article III trial courts, but only specific grants as articulated under the legislation creating them, in this case the MCA.
The question isn't where is the Commission prevented from ruling on citizen status, but where is it granted such power? It isn't, and those that make that determination (the Tribunal) answer only to POTUS.
So what happens if they aren't proved to be a war criminal (which covers your average terrorist by my reading of the crimes the commission can try). They are still "unlawful" they are still an "enemy alien." Without habeas writs, that status alone will keep them locked up, right? Are we rendering them to Jordan to have their genitals tied to the wall if they're accquitted, held until a declaration of peace with all international terrorists in the Global War on Terror (ie. forever)? Or do they go free?
As for revoking citizenship, you understood my position correctly. I know the power exists because I took interest in the John Demjanuk case that dragged on through the 90's when I lived in the Cleveland area (which was where the alleged former Nazi prison guard lived). Because my Austrian step-father emigrated here after WWII, became a citizen, and had fought in the German army, my ears perked up when there was news of the case which was extensively covered in the local media.
From what I remember, Demjanuk's was extradited answer for war crimes, his citizenship was challenged and I believe revoked in the extradition hearings (since he was, after all, eventually sent to Israel for trial) on the grounds that he lied on his citizenship application and didn't disclose he was a Nazi war criminal (who would).
It became a trial within a trial -- the government having to prove that he was a war criminal and not a victim of mistaken identity at the extradition hearing, and then again in a habeas proceeding. (This is all from memory, so I could be mistaken about the specific time-line and prodedures) then he was sent to Israel to be tried as a war criminal -- and he somehow got an accquital, came back and they tried to deport him outright by claiming after a decade or two they'd developed additional evidence. I lost track after that.
Since under the MCA, you aren't deporting/extraditing someone, just sending them to (presumably) Gitmo, and there's no habeas writs -- the only place a naturalized citizen could have the opportunity to challenge the allegation of fraud in procurment of citizenship is before the the MCA tribunal which will likely take POTUS's word on it, and does not appear under the act to be adversarial (ie. the accused doesn't get heard at this stage -- think grand juries indicting ham sandwiches in secret). The war crime commission doesn't have jurisdiction to challenge that determination later on.
I don't necessarily have a problem with Military Tribunals, per se, and neither did SCOTUS. The problem with Hamden was that Geneva III required that unlawful enemy combatants be tried before a "regularly constituted" court or tribunal. POTUS doesn't have the power, alone, to set up a court or tribunal. Congress can, and has created many such Article I courts -- military and civilian.
The Code of Military Justice is written by Congress which provides for Courts Martial, and Congress also has created things like the Tax Court and Court of Claims whose judges have limited terms unlike Article III judges who serve for life as long as they behave. Those courts have to have rules and procedures which need to be written by Congress, not via presidential fiat or made up along the way.
What Hamden didn't say was that the act setting up such courts have to have constitutional procedures as well. Really, if we were dealing with an adminstration and Congressional majority that acted in good faith, it shouldn't have had to be spelled out. The courts simply can't rule that lawful procedures were followed in something so obviously violative of so many basic legal principles.
I'm convinced that the strategy was two-fold in passing this abomination while they could still get away with it before they lost their majority. 1.) to grant a legislative pardon to any CIA/White House/Pentagon officer or contractor who engaged in or authorized torture. 2.) To create yet another damn wedge issue for the '08 election.
You know how the GOP loves to hate the courts, getting their base all riled up over "activist judges." It should take about two years for the first cases to make their way to SCOTUS, which starts it term the 1st Monday of October. They'll announce they'll be hearing one of these things about 30 days before the next presidential election. (How convenient.)
Whatever the issues are through the campaign, this will be all we'll be debating in October 2008.
War, as they say, is hell. I certainly don't recall codification of FDR or Lincoln's alleged excesses in pursuing their war powers comparable to the legilative blessings and twisted constitutional interpretations of the last three years.
Thus showing your ignorance and being unwilling to do basic research.
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
Note the little word "privilege". When the Founders were addressing "rights" which the government isn't supposed to take away, they say so. The Right to keep and bear arms, for example. Every word in the Constitution has a meaning, accurate at the time; that's why it is possible to know what the Founders intended. That's why, for example, the 4th Amendment has "unreasonable" as a criterion for searches and seizures. I once again submit that the search for a pound of Marijuana has different definitions of reasonable than the search for people who want to fly airplanes into skyscrapers.
Note also that this is in article 1, Powers of the Congress. Note that the President can't suspend habeas. However, Lincoln did just that in 1861 and 1862. The Supreme Court said that was unconstitutional. Lincoln ignored them. The Republican controlled Congress declined to impeach. Finally, in 1863, it passed the Habeas Corpus Act, ratifying what Lincoln did.
Aren't computers wonderful? You don't have to rely on what you can recall. This took me 5 minutes of Googling to find. I suggest that you need to significantly revise your handle on this blog.
Mark Adams, who's always correct, get used to it. (mail) (www):
Oh Snelson, do you feel better now that you got your little snark in? Thanks for for effort to refresh my recollection, but your use of The Google isn't what I think of when I say "research."
When someone says words to the effect of "I recall," or "IRRC" or "to the best of my recollection," that's a flag that you should feel free to double check something easily confirmable.
Your suggestion on my snarky handle is unwarranted since I all but professed my addmittedly incomplete memory of the issue.
However, the last thing I need at this stage of life and professional experience is to "research" the basic text of the Constitution, or to be reminded that SCOTUS invalidated Lincoln's habeas suspension. That, I did indeed recall.
But you're right, the fact that the habeas clause is in Article One, the legislative article, should have tipped me off on what grounds the suspension was invalidated -- that it's a congressional power. I'd never followed up on what Congress did after the court ruled nor read the actual court opinions. Have you?
"Research" to me means pulling up the Court opinions themselves, and the subsequent congressional acts. (Try findlaw.com, great free resource for this kind of thing.) There must be some jewels of wisdom there.
Now if you do that, you're really helping, instead of glossing over the issue that with the MCA congress is creating authority where where none exists because the condition of rebellion or invasion has not been met.
Brian had asked if Bush was doing something worse than FDR or Lincoln. My point is that since there is no insurrection, there isn't even the attempt to comply with the spirit of the constitution now. With Lincoln, until SCOTUS ruled (like in Hamden, coincidentally) the legislative nature of the power to suspend habeas was a brand new issue -- as far as I know. It was not that the government couldn't do something, just that one branch just couldn't do it unilaterally.
Now, with the MCA, it's not a matter of how they do it, but that they have done something that is prohibited because conditions haven't been met. Your point that SCOTUS invalidated and congress "ratified" Lincoln is irrelevant to that analysis. There is no rebellion or invasion.
Which is worse, doing something permissible but in the wrong way, or going through the procedureal motions to look like your doing something proper which clearly is not?
My concentration on 19th century history centered more on Europe while everyone else it would seem became an expert in our Civil War, but I'm always willing to examine the nuances of constitutional interpretation.
Specifically, I'd like to see some expansion on what SCOTUS actually said regarding Lincoln's suspension of habeas to give us some guidance on how the court will treat the MCA.
There must also have been challenges to the 1863 suspension acts. It may tell us whether I'm right in believing that the nature of the conflicts, the Civil War vs. the GWOT, will be dispositive -- centering on the justification of habeas suspension under Lincoln (yes, yes, under his congress) being contingent on the fact that their war was truly a "rebellion" and ours which is not.
Not having read the court's opinions (again admitting ignorance) I'd think that the nature of invasion and rebellion presupposes a emergency situation making congressional approval impractical. Indeed, until the court could rule and congress could act, habeas was de facto suspended anyway. And since there was indeed a rebellion, Lincoln was acting within the spirit of the clause, albeit unilaterally, unlike today's world of signing statements and rubber stamps approving something blatently violative of the constitution.
I'd be interested in some guidence by the court to supplement or refute my interpretation of the constitution and recollection of Con.Law classes whether the MCA, although enacted by congress, is indeed unconstitutional because we are not facing an invasion or rebellion. That would be real research.
Also of note would be a judicial expansion on your premise that habeas, as a privilege (vs. a right) somehow affects my conclusion that it still extends to all persons and is not restricted merely to citizens (which goes to the heart of Brian and my discussion).
Lastly you could educate us whether the 1863 act is still in effect or was invalidated, sunsetted, or updated.
So, my snarky friend. When you come up with a useful link to something other than a document pounded into my head for the last several decades, I'd be glad to review how it affects my opinion.
That is, unless you're too lazy to do some basic research to prove me wrong. Until then, I'll keep your suggestion on hold.
And yet, it makes absolutely no sense at all.
As if we would know we were living in a fascist state only if someone told us.
You know, because the knocks on the door in the night and the daily shootings of protestors and the closings of newspapers that attack our Boy King are so..... understated.
So that's what it would take to destroy your support of a Republican president. I do have to wonder what you'd think of a Democratic president who declared the right to arrest and hold you forever without charge or listen to your phone calls without a warrent. Actually, I take it back; I don't really care.
What a disgusting attitude toward American liberty rights (and former greatness) that the founders and every soldier in every war has fought and died for.
Buh?
Well, if I was taking overseas phone-calls from terrorists being legally wire-tapped or committing terrorist acts I hope a Dem president would do something about it.
Are you saying a Dem president wouldn't even use the law-enforcement model to fight terrorists? How exactly are they going to fight them? By converting? I'll note that for 2008. Thanks for the tip.
But you really should look into the part about "Arrest and hold me forever without charge" accusation. It's just not true. And no, I won't link it for you as that would just be a waste of time. Try to educate yourself.
Likewise, most Poles weren't stuck in the Warsaw getto, most Russians weren't sent to the Gulags.
What garbage.
Now, for those who don't click the Liberal baiting link, allow me to quote the actual headline, with emphasis to point out the misleading nature of Rose's title..You can realize objective truths. You can feel just about anything your preconceived, ill-informed notions wish.
There, now I feel better.
In Wickham we lost the ancient right to farm our land.
In Roe v. Wade we lost the ancient right to be born.
Game wardens take away our ancient hunting rights.
Fire wardens take away our ancient rights to light things on fire!
Busybodies take away our ancient rights to purposely inhale the smoke.
The Border Patrol takes away our ancient rights to walk wherever we want.
If I become famous, I lose my right to be protected from slander and libel.
In the Slaughterhouse cases we lost the rights in the 14th Amendment.
Our civil liberties have also been expanded, right?
Who holds the civil liberties ruler?
You know darn well you are perfectly happy curtailing civil liberties, Mark. You say, there outta be a law! And you elect a person to pass it. And we lose a liberty.
Yours,
Wince
I think this guy does a good job.
Ancient right to be born. Funny, Wince.
I think this guy does a good job.
He isn't measuring very much or looking at very much in that piece. Seems to be a single issue, if an important one.
Are single-issue civil liberties activists like single-issue voters?
Yours,
Wince
The differing approaches here are instructive: in the 90's, when the right was afraid that Clinton would take over and really take away American citizen's rights, they formed militias and stockpiled supplies and weapons to fight to take the country back. Now that the left finds itself in the same perceived position, what's their response? Hold naked protest rallies.
As always, there are those who talk and those who do.
Jubal And Tubal Cain
I'm going to give his hunch a lot more weight than Mr. Veeshir's unsupported assertion.
I have no doubt that most, and maybe even all, should be locked up because they are indeed terrorists.
I also know that some completely innocent people have been "disappeared" this way. This guy, Maher Arar, is but one example.
Our system of justice is designed to prevent such tragic mistakes. Bush has ignored these basic protections, even the ability to prove a case of mistaken identity with the elimination of habeas corpus.
I do have to wonder what you'd think of a Democratic president who declared the right to arrest and hold you forever without charge
Note that he was talking to me, i.e., an American citizen.
Note that Suskind is talking about foreign born terrorists not captured in the US.
But yeah, I can see why you would be confused. You are just confused easily and don't appear to have very good reading comprehension skills.
This from wiki:
I'm stopping, unilateral cease fire. I'm not going to disparage your intellect again. You and I have a lot to offer each other because we have such different perspectives. There's learning to be had here. But I'm not going to induldge the slime anymore with you. At least I'm going to try. We're grown men, not children and we should act the part.
Right now, right here, please accept my apology for every nasty personal attack I've directed your way. Hopefully you won't have cause to respond to any more.
But just as an editorial suggestion on style, words to the effect that you are ammused or find someone's comments funny, etc., add no substance to the merits of what you have to say. In fact, it takes away from, rather than adds to the authority of your analysis. You'd come across with much more credibility if you lose that particular habit. It's not dignified.
So, Brian, under your analysis, it's ok to be treated like an animal if you're a foreigner -- even if you are here quite legally and IF you had the opportunity to present some evidence on your behalf it would show that your activities were also quite legitimate.
I'll make it short for you. Maher is a Canadian, an ally in the WoT whose blood spread on the fields of Afghanistan is the same color as yours. He was sent off by your government and tortured on your behalf, without any decent reason.
He was no terrorist, had no terrorist ties. If they had something on this guy, believe me they would have used it to cover their ass for what was done to this man.
Are you proud of what your country now stands for. That shining City on the Hill is in the middle of a blackout.
And I won't even get into my disagreements with the analysis itself right now, maybe later when I have a bit more time to give you some citations.
If you're okay with refusing equal protection to foreign nationals (a right guaranteed to "all persons" not merely citizens under the 14th Amendment) I'll withdraw my demurrer to your proposition of what the Act means and we can discuss the merits of its implications.
Are you comfortable with torturing foreigners under circumstances that would be unforgivable if the subject were a US citizen?
Never discussed the topic. The article was about whether American citizens have had their rights curtailed by this. I just don't like baseless claims.
From Democrats I am only interested in whether Bush has done anything worse than what say FDR, or Lincoln did during war. If an independent wants to make an argument that things Bush and other presidents have done are wrong then I'm willing to have that conversation. Just don't want to hear a pot calling the kettle black conversation.
I found Cheney's recent remarks pretty incredible. Does he really expect me to believe that when he was talking about dunking terrorists that he wasn't referring to water boarding? I guess he was talking about bobbing for apples or perhaps setting up one of those things where you throw baseballs.
I'm a bit young to remember just exactly how I acted in support of FDR's internment camps, but I suspect in another life I was opposed. As for Lincoln's sidestep of Habeas Corpus -- it was Constitutional as the nation was dealing with an insurrection even if it wasn't legislatively approved. So why my being a democratic kettle has relevance is puzzling.
You'll find I don't indulge too much in the moral rightness or wrongness arguments, but rather the legalities.
I know we've prosecuted people for war crimes when they dunked people in water they way you and I know Cheney was talking about -- but refuses to admit.
You'll have to inqure of the people running our internment camps, both the public and secret ones, to "know" whether Bush has been engaging in "worse" behavior. I don't mean to change the subject, but his admissions regarding the NSA domestic surveillance program indicate illegal activities with more certainty than what has been done with detainees.
But that's because he hasn't admitted as much, or been fingered for as much through subordinants -- like Gonzales specifically stating that Bush was approving that program.
The NSA program is illegal under my interpretation of current law. And I'm certainly not alone in this opinion which includes a couple federal judges -- including a cousin, Judge Walker, of "W" himself.
When it comes to detainees, I think you have to step back from asking about specific evidence and ponder whether there's a concerted effort to never let any such evidence come to light, including changing some of the fundamental tenants of western jurisprudence. Your inquiry to democrats is meaningless if the argument is over what Bush did, but not about his legitimate or illegitimate authority to cover-up what has or has not been done.
The latin origin of the very words "habeas corpus" is testament to it's fundamental enduring importance to a functioning goverment, responsive to the rights of people subject to it's power.
Which begs my original question about the difference in status as a citizen being determative of the right to habeas relief. That is one of the vehicles that safeguards people from a government that steps over the line. It not only exposes previous abuses, it deters future ones.
The Constitution, following common law tradition, mades a careful distinction in the use of the words "citizen" and "person." A citizen must be a "person born" or naturalized. But persons can be other things, like corporations or resident aliens -- documented or otherwise. The Military Commissions Act distinquishes between combatants -- lawful, unlawful, alien and US citizens -- all of whom are still "persons." Moreover, designation of a person's status by POTUS or SecDef is "definitive" under that act.
If you are innocent, and a citizen, but are misidentified as an alien unlawful combatant -- your vehicle to clear up the error, habeas corpus, has been forclosed. That doesn't comport with any definition of justice that I can acknowledge. Until this Act, your rights to be protected from this mistake -- or worse, misuse and abuse of the procedure purposely directed at you for your political beliefs, was protected.
You just lost a right, a protection, you didn't know you had -- but somehow instinctively thought existed, because it could never happen here, to you. Tell that to Maher Arar. Mistakes happen.
Equal protection is guaranteed to all persons, not just citizens under the Constitution. Likewise the Due Process clauses of the 5th and 14th Amendments protect "persons." This Act creates a new class of non-person straight out of 1984.
Saying that what is going on is no worse than what has transpired before is a fallacious argument. It's unconstitutional and unamerican. Railing about FDR or Lincoln won't bring them up from the grave to face the music or change their tune.
I'm just one voice in the wilderness, so I don't expect to change the course we're on. But voicing my objections to the current situation is still exponentially more effective than lamenting the past.
That's just beautiful. I mean, in an attack you say you are sick of attacks.
Sorry, I know you declared a unilateral cease-fire where I'm supposed to not laugh at your assertions that I find laughable, but that's still pretty funny.
What's funnier? To what did I respond with a personal attack?
quoth MarkThis was Sheps fight, but since he ignored Meathead Veeshir,
And how did I respond that seems to have ticked Mark off?
You are just confused easily and don't appear to have very good reading comprehension skills.
Sorry, but that's funny. I'll try to stop being too confrontational, but I don't know why and I don't promise to be not confrontational.
Not everybody can be the Olympian that is Wince. (and no, I don't mean that as an attack on Wince).
"I read it and don't see any verbiage that claims this applies to citizens."
Two words for you cretins:
Jose. Padilla.
It applies to who the President says it applies to. That’s the whole f*cking point.
I'll give you a hint, it's not what you think it is.
Who really knows who started what how many threads ago. I can only attempt to control my own actions, try to modify my bad behavior, and offer friendly advice. It's your choice whether you decide to curb your most irritating qualities.
But I'm still interested on how Padilla's case backs your position.
That may be what you meant, Mark, but it's not how it's likely to be understood. Actually, that's a dramatic understatement.
Yours,
Wince
If Lincoln and FDR are too far back then consider Clintons activities (and we were not even at war). Didn't he ship people off to third party countries for torture sessions? Seems to me it's "Pot, Kettle, Black".
Seeing how you are a lawyer maybe you can explain how the Military Commissions Act applies to citizens. I read it and don't see it.
I already explained how a citizen could get caught up in the Act, with no ordinary redress absent habeas corpus. We can't even count ballots without controversy in the country. That's why Habeas is "basic." It remedies mistakes.
What's to keep POTUS from arbitrarily declaring a naturalized citizen an alien unlawful combatant? POTUS can make (or order his appointees to make) the determination that the citizenship is revokable because it was gained under fraud for purposes of aiding enemies of the state.
How is this determination challengable under the Act? It isn't as far as I can tell. No recourse if POTUS classifies you and his military tribunal agrees that you are indeed an alien unlawful combatant. The appellate court, since it is only empowered to review the procedural aspects of the case, and not make a factual determination that there was no fraud invalidating the citizenship which was determined (not merely alleged subject to any burden of proof) by POTUS and upheld by his Commission.
What's happened is that the executive prosecutorial power has been combined with a judicial function. POTUS's determination of a detainee's status as both unlawful and an alien is dispositive, and the mere classification -- unchallengable -- is reason enough for conviction by the tribunal. There is no procedural mechanism to challenge the revokation of citizenship. At least Demjanuk got an extradiction hearing to challenge the revokation of his citizenship.
But I got another way, which is admittedly twisted, so feel free to flame me for this since it's fairly inconcievable, but follow along just for the fun. This time the American Citizen is the interrogator, not the detainee, who is screwed.
Jack Balkin know a thing or two about the subject, and in this post he correctly points out that the MCA has eliminated any effective enforcement procedure to prevent commission of torture or war crimes against any detainee. McCain's Amendment can be effectively ignored because without recourse to Habeas Corpus or Geneva, war crimes can be committed by overzealous interrogators acting under or beyond their specific orders with no fear of consequences unless the justice department goes after them.
However, certain nations like Israel, Belgium and the UK claim "universal jurisdiction" to prosecute war crimes. Unlikely as you can imagine this scenerio, other nations, including some Middle Eastern countries would be delighted to enforce international law against CIA interogators.
An American citizen, trusting his government (first mistake) believing that he is following lawful orders by waterboarding a prisoner (something we have prosecuted others for), has just broken international law because he believed the MCA shielded his act. He gets nabbed and put into the dock for a show trial much more interesting than Saddam's circus.
I know, Brian, this wasn't the answer you were looking for, but us lawyers are trained to look for the unlikely and protect against them.
The law is not designed to protect criminals, or terrorists, but just treat them as they deserve, if they deserve it -- no more, no less. It tries to be fair to them while protecting innocent people as well. But legal procedures are also put in place to protect the law enforcement community and the integrity of the system itself.
You just saw something like this with Dawg The Bounty Hunter, who was acting perfectly lawfully under US law, but since he was in Mexico arresting someone, and they don't recognize his acts as anything more than an abduction and kidnapping, he was put on the hot seat.
Now, put the Dawg in Pakistan and instead of hunting bail jumpers, he's CIA employee tasked with getting info out of an islamist recruit. With Pakistan perpetually on the verge of internal meltdown -- especially after this shenanigans missed the Zawahiri, inflamed an already tense situation, and probably screwed up the deals Musharraf had just made and was about to sign -- but won't now since the raid outraged members of the Islamic Party who are walking out of the government along with the leaders of the provinces Musharraf was negotiating with.
Now it's no stretch to suppose that some American who looks a lot like "Dawg" with shorter hair got the info regarding Zawahiri's location by waterboarding someone in the Isalmic Party. Nor is it a stretch to ponder that while we're watching the election returns next week, the next coup against Musharraf is successful, the airports and borders are closed, the Islamist take over the government, arrest "Dawg" and try him under international law (since of course his actions were otherwise sanctioned by POTUS and Pakistan).
American citizen, nice kid, very patriotic, who was only obeying orders.......
I just gave you three reasons the MCA is a very bad law -- for Americans.
There's a lot more wrong with the law if you're a person duly entitled to due process and equal protection which extends to everyone subject to our jurisdiction whether they're a citizen or not.
This is how tyranny begins, but we're not there yet. But supposedly we Iraq isn't in the middle of a religious civil war -- yet.
weIraq, hey it was late.Sorry, been busy and I saw that Dean was attacking me over at INDC and had to respond to that.
I will say that I wasn't making the argument that two wrongs make a right. I was saying that I didn't understand something. You have clarified a little but it is still a white lie to claim that the bill allows any citizen to be plucked off the street and locked up without trial. That's the kind of nonsense I'm hearing from people.
Along with habeas corpus elimination, yet another reason the bill's only provision that will survive court scrutiny will be the elimination of any possible war crimes prosecutions stemming from abusive interrogations under US law. Once a future administration reinstates Geneva principles into the US code, any attempt to go after the thugs or their bosses will be dismissed as ex post facto.
I had been looking for something else entirely when I read it before, part of an ad hoc bit of research -- why the act absolved folks rhetroactively to November 26, 1997, giving POTUS on down a legislative pardon, which is another story, explained better here.
That Dean guy, what an insufferable wanker, eh?
I really wasn't looking to make arguments for what the administration is doing or how it is doing it. I'm not a lawyer and I'm not competent to read this stuff and know what exactly it means. I do know that I don't like the idea of secreting people away. I also know that I don't like the idea of foreign terrorists and illegal combatants in war getting the full protection of the Geneva Conventions, nor using our civil or criminal court systems. I think it appropriate that a military tribunal judge them. I don’t see why a military trial would require people disappearing though. I saw aspects of it I liked and aspects I didn't like.
Seems to me they are getting the same treatment our own soldiers would get, a military tribunal. The document goes into all sorts of procedural details that seem to work towards providing a reasonably fair trial. Maybe they could be better, like a jury, but maybe there are reasons I am unaware of why a jury is unfeasible.
I do agree that once someone has been granted citizenship that they should be given all the benefits. It should not be up to the president to revoke citizenship. I do think however that revocation should be an option if a person has lied (in a relevant way) to become a citizen. You've made the claim that this act gives the President the power to revoke someone’s citizenship. Did I state yoru position correctly? Could you please point out where? I didn't see that but am willing to believe it if you can provide the text and explain it.
I'm actually fed up with both Democrats and Republicans but for different reasons. The same goes for Libertarians too a lesser extent. I have to say that I am most pissed off at the Democrats these days. I am probably going to vote for any Libertarians running on the ticket and then straight anti-incumbent come the election. Which means voting mostly Republican on the remainder where I live.
What pisses me off most about the Democrats is they seem to be willing to believe the worst of the U.S. at the drop of a shoe. What irks me about it is that the same stuff doesn't flip them out when their side is doing it. It's not just hypocrisy but is bad for the country. I'm not talking about being against the war. That's fine. I'm talking about things like the Joe Wilson liar incident, which I investigated in depth. The false claim that we "knew" Saddam didn't have WMD really irks me. The fact is we didn't know.
If further bugs me that I get accused of advocating the use of nukes by someone who is apparently a Democrat when in fact I had just got done quitting a blog on the issue that it was rash to even joke about nuking North Korea. This is especially ironic when it was a Democrat president that dropped the atom bomb twice and another Democrat who was involved in firebombing during WWII.
I don't know what it is about the Internet but I sometimes find myself doing that same thing. You know, arguing against a position that someone never explicitly took. I don’t get it that wrong usually. I guess it's an attempt to preemptively deal with possible counterarguments due to the delayed nature of comment posting. I’m not exactly sure. There is also the whole issue of looking bad in front of others. It all becomes an issue of ego.
I’m not going to comment on Dean. I don’t know what motivates him. I also think it is pointless to get into those sorts of arguments. He’s speculated on what motivates me. That is he’s claimed I’m a bigot. So now I can psychoanalyze him but where does that get me? He surely is in the most authoritative position to know what his motivations are. The same goes for my motivations. I know them best. I’m not interested in such a pointless argument. It would be much more productive if he’d just ask me why I said something instead of imputing all sorts of vile motivations on me.
What I’m interested in is an argument based on accuracy. Is what I am saying accurate or not. If he thinks it is not accurate then why not. I want specifics. I want my position understood before it is criticized. Dean isn’t sticking to this formula and that is why I am no longer commenting on his blog. In fact he does his darndest to drag the conversation into the gutter. To make it a name-calling contest. I’m not going to play.
Accuracy usually takes extra paragraphs, fending off the straw-men even more.
There's so much just plain wrong with the MCA. Take a look at section 948b. It does away with speedy trial, compulsory self-incrimination, pretrial discovery and stare decisis. It's the very definition of a kangaroo court.
MCA Sec. 948d describes two judging bodies. A "Combatant Status Review Tribunal or other tribunal" [Tribunal] hand picked by POTUS or SecDef which designates someone as an Unlawful Enemy Combatant, and a "Military Commission" that tries the subject for the designated war crimes specified in the act. Nowhere does it say how alien status is determined, but presumably the tribunal will.
The rulings of the Tribunal under subsection (c) of 948d that someone is an "unlawful enemy combatant" is "dispositive for purposes of jurisdiction for trial by military commission."
That's the section I had noted before you clued me onto the restriction of the act to aliens. There's no provision for review of that determination as an "unlawful enemy combatant" by the tribunal. There is no provision for judicial determination of the alien status of a subject whatsoever by the tribunal or commission.
Also, I would think, logically, that the determination of someone as an "unlawful" enemy combatant is a legal determination -- usually something a court/tribunal would decide. Not here.
Also, the government will argue (correctly, it seems to me) that the tribunal's jurisdiction is limited to the acts against the US specified in the MCA, and not permitted to even rule on citizen status. Article I courts do not have general jurisdiction like Article III trial courts, but only specific grants as articulated under the legislation creating them, in this case the MCA.
The question isn't where is the Commission prevented from ruling on citizen status, but where is it granted such power? It isn't, and those that make that determination (the Tribunal) answer only to POTUS.
So what happens if they aren't proved to be a war criminal (which covers your average terrorist by my reading of the crimes the commission can try). They are still "unlawful" they are still an "enemy alien." Without habeas writs, that status alone will keep them locked up, right? Are we rendering them to Jordan to have their genitals tied to the wall if they're accquitted, held until a declaration of peace with all international terrorists in the Global War on Terror (ie. forever)? Or do they go free?
As for revoking citizenship, you understood my position correctly. I know the power exists because I took interest in the John Demjanuk case that dragged on through the 90's when I lived in the Cleveland area (which was where the alleged former Nazi prison guard lived). Because my Austrian step-father emigrated here after WWII, became a citizen, and had fought in the German army, my ears perked up when there was news of the case which was extensively covered in the local media.
From what I remember, Demjanuk's was extradited answer for war crimes, his citizenship was challenged and I believe revoked in the extradition hearings (since he was, after all, eventually sent to Israel for trial) on the grounds that he lied on his citizenship application and didn't disclose he was a Nazi war criminal (who would).
It became a trial within a trial -- the government having to prove that he was a war criminal and not a victim of mistaken identity at the extradition hearing, and then again in a habeas proceeding. (This is all from memory, so I could be mistaken about the specific time-line and prodedures) then he was sent to Israel to be tried as a war criminal -- and he somehow got an accquital, came back and they tried to deport him outright by claiming after a decade or two they'd developed additional evidence. I lost track after that.
Since under the MCA, you aren't deporting/extraditing someone, just sending them to (presumably) Gitmo, and there's no habeas writs -- the only place a naturalized citizen could have the opportunity to challenge the allegation of fraud in procurment of citizenship is before the the MCA tribunal which will likely take POTUS's word on it, and does not appear under the act to be adversarial (ie. the accused doesn't get heard at this stage -- think grand juries indicting ham sandwiches in secret). The war crime commission doesn't have jurisdiction to challenge that determination later on.
I don't necessarily have a problem with Military Tribunals, per se, and neither did SCOTUS. The problem with Hamden was that Geneva III required that unlawful enemy combatants be tried before a "regularly constituted" court or tribunal. POTUS doesn't have the power, alone, to set up a court or tribunal. Congress can, and has created many such Article I courts -- military and civilian.
The Code of Military Justice is written by Congress which provides for Courts Martial, and Congress also has created things like the Tax Court and Court of Claims whose judges have limited terms unlike Article III judges who serve for life as long as they behave. Those courts have to have rules and procedures which need to be written by Congress, not via presidential fiat or made up along the way.
What Hamden didn't say was that the act setting up such courts have to have constitutional procedures as well. Really, if we were dealing with an adminstration and Congressional majority that acted in good faith, it shouldn't have had to be spelled out. The courts simply can't rule that lawful procedures were followed in something so obviously violative of so many basic legal principles.
I'm convinced that the strategy was two-fold in passing this abomination while they could still get away with it before they lost their majority. 1.) to grant a legislative pardon to any CIA/White House/Pentagon officer or contractor who engaged in or authorized torture. 2.) To create yet another damn wedge issue for the '08 election.
You know how the GOP loves to hate the courts, getting their base all riled up over "activist judges." It should take about two years for the first cases to make their way to SCOTUS, which starts it term the 1st Monday of October. They'll announce they'll be hearing one of these things about 30 days before the next presidential election. (How convenient.)
Whatever the issues are through the campaign, this will be all we'll be debating in October 2008.
Thus showing your ignorance and being unwilling to do basic research.
US Constitution, Article 1, section 9
Note the little word "privilege". When the Founders were addressing "rights" which the government isn't supposed to take away, they say so. The Right to keep and bear arms, for example. Every word in the Constitution has a meaning, accurate at the time; that's why it is possible to know what the Founders intended. That's why, for example, the 4th Amendment has "unreasonable" as a criterion for searches and seizures. I once again submit that the search for a pound of Marijuana has different definitions of reasonable than the search for people who want to fly airplanes into skyscrapers.
Note also that this is in article 1, Powers of the Congress. Note that the President can't suspend habeas. However, Lincoln did just that in 1861 and 1862. The Supreme Court said that was unconstitutional. Lincoln ignored them. The Republican controlled Congress declined to impeach. Finally, in 1863, it passed the Habeas Corpus Act, ratifying what Lincoln did.
Aren't computers wonderful? You don't have to rely on what you can recall. This took me 5 minutes of Googling to find. I suggest that you need to significantly revise your handle on this blog.
When someone says words to the effect of "I recall," or "IRRC" or "to the best of my recollection," that's a flag that you should feel free to double check something easily confirmable.
Your suggestion on my snarky handle is unwarranted since I all but professed my addmittedly incomplete memory of the issue.
However, the last thing I need at this stage of life and professional experience is to "research" the basic text of the Constitution, or to be reminded that SCOTUS invalidated Lincoln's habeas suspension. That, I did indeed recall.
But you're right, the fact that the habeas clause is in Article One, the legislative article, should have tipped me off on what grounds the suspension was invalidated -- that it's a congressional power. I'd never followed up on what Congress did after the court ruled nor read the actual court opinions. Have you?
"Research" to me means pulling up the Court opinions themselves, and the subsequent congressional acts. (Try findlaw.com, great free resource for this kind of thing.) There must be some jewels of wisdom there.
Now if you do that, you're really helping, instead of glossing over the issue that with the MCA congress is creating authority where where none exists because the condition of rebellion or invasion has not been met.
Brian had asked if Bush was doing something worse than FDR or Lincoln. My point is that since there is no insurrection, there isn't even the attempt to comply with the spirit of the constitution now. With Lincoln, until SCOTUS ruled (like in Hamden, coincidentally) the legislative nature of the power to suspend habeas was a brand new issue -- as far as I know. It was not that the government couldn't do something, just that one branch just couldn't do it unilaterally.
Now, with the MCA, it's not a matter of how they do it, but that they have done something that is prohibited because conditions haven't been met. Your point that SCOTUS invalidated and congress "ratified" Lincoln is irrelevant to that analysis. There is no rebellion or invasion.
Which is worse, doing something permissible but in the wrong way, or going through the procedureal motions to look like your doing something proper which clearly is not?
My concentration on 19th century history centered more on Europe while everyone else it would seem became an expert in our Civil War, but I'm always willing to examine the nuances of constitutional interpretation.
Specifically, I'd like to see some expansion on what SCOTUS actually said regarding Lincoln's suspension of habeas to give us some guidance on how the court will treat the MCA.
There must also have been challenges to the 1863 suspension acts. It may tell us whether I'm right in believing that the nature of the conflicts, the Civil War vs. the GWOT, will be dispositive -- centering on the justification of habeas suspension under Lincoln (yes, yes, under his congress) being contingent on the fact that their war was truly a "rebellion" and ours which is not.
Not having read the court's opinions (again admitting ignorance) I'd think that the nature of invasion and rebellion presupposes a emergency situation making congressional approval impractical. Indeed, until the court could rule and congress could act, habeas was de facto suspended anyway. And since there was indeed a rebellion, Lincoln was acting within the spirit of the clause, albeit unilaterally, unlike today's world of signing statements and rubber stamps approving something blatently violative of the constitution.
I'd be interested in some guidence by the court to supplement or refute my interpretation of the constitution and recollection of Con.Law classes whether the MCA, although enacted by congress, is indeed unconstitutional because we are not facing an invasion or rebellion. That would be real research.
Also of note would be a judicial expansion on your premise that habeas, as a privilege (vs. a right) somehow affects my conclusion that it still extends to all persons and is not restricted merely to citizens (which goes to the heart of Brian and my discussion).
Lastly you could educate us whether the 1863 act is still in effect or was invalidated, sunsetted, or updated.
So, my snarky friend. When you come up with a useful link to something other than a document pounded into my head for the last several decades, I'd be glad to review how it affects my opinion.
That is, unless you're too lazy to do some basic research to prove me wrong. Until then, I'll keep your suggestion on hold.