The death of checks and balances

[ShootinDave]

SEC. 7. HABEAS CORPUS MATTERS.
(a) IN GENERAL.—Section 2241 of title 28, United States Code,
is amended by striking both the subsection (e) added by section
S. 3930—37
1005(e)(1) of Public Law 109–148 (119 Stat. 2742) and the subsection
(e) added by added by section 1405(e)(1) of Public Law
109–163 (119 Stat. 3477) and inserting the following new subsection
(e):
‘‘(e)(1) No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus filed
by or on behalf of an alien detained by the United States who
has been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such determination.

--- Do we really want to believe that one of the most basic aspects of American Government is being stomped before our eyes? How is it that the Executive and Legislative branches have all the power in the world in these matters and the Judiciary most stand idle?

The last time Habeas Corpus was suspended was by Lincoln during the Civil war. This was for a limited part of the country due to massive civil unrest.

Habeas Corpus is only to be suspended in times of national emergencies.

The US has detained hundreds... who knows how many.... for up to FOUR years now. They have not seen the evidence before them and have no rights to Habeas Corpus and a trial.... EVER. They are just there,

-----------------------

Some would ask, WHO CARES? They are all terrorists anyway!

http://www.washingtonpost.com/wp-dyn/articles/A3868-2005Mar26.html

Maybe not. All I am saying is that they should have hearings and checks and balances need to remain in affect.

- Dave

[JimS]

SEC. 7. HABEAS CORPUS MATTERS.
(a) IN GENERAL.—Section 2241 of title 28, United States Code,
is amended by striking both the subsection (e) added by section
S. 3930—37
1005(e)(1) of Public Law 109–148 (119 Stat. 2742) and the subsection
(e) added by added by section 1405(e)(1) of Public Law
109–163 (119 Stat. 3477) and inserting the following new subsection
(e):
‘‘(e)(1) No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus filed
by or on behalf of an alien detained by the United States who
has been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such determination.

--- Do we really want to believe that one of the most basic aspects of American Government is being stomped before our eyes? How is it that the Executive and Legislative branches have all the power in the world in these matters and the Judiciary most stand idle?

The last time Habeas Corpus was suspended was by Lincoln during the Civil war. This was for a limited part of the country due to massive civil unrest.

Habeas Corpus is only to be suspended in times of national emergencies.

The US has detained hundreds... who knows how many.... for up to FOUR years now. They have not seen the evidence before them and have no rights to Habeas Corpus and a trial.... EVER. They are just there,

-----------------------

Some would ask, WHO CARES? They are all terrorists anyway!

http://www.washingtonpost.com/wp-dyn/articles/A3868-2005Mar26.html

Maybe not. All I am saying is that they should have hearings and checks and balances need to remain in affect.

- Dave



First, I am not sure this is actually an amendment to our Constitution - but rather the U.S. Code - as such, it can be challenged on the basis of Constitutionality. Thus, the Court still has a role to play.

In addition:

Those being detained are not U.S. citizens. Are you proposing we extend our Constitutional Rights to foriegn combatants? Habeous Corpus is a Constitutional Right. As a foriegn combatant they have rights under the Geneva Convention if and only if they follow the rules of war as outlined in that Convention. What does the Geneva Convention say about prisoners of war - I have not looked other than the definition of a prisoner of war? My suspicion is that it allows detention without any sort of charge until the hostilities cease and treaties/agreements are worked out. Our Constitution, I do not believe, was ever meant to extend rights to prisoners of war. That is in fact what these individuals are - they declared war very clearly.

With Lincoln, the suspension would have affected actual citizens not foriegn combatants (unless one wanted to consider the Rebels as such - but most would not.

It would appear that the Codes are being changed to clarify how enemy combatants should be handled - not a revocation of Habeus Corpus for citizens. Entirely different than revoking a right of the Constitution or suspending a power of the U.S. Justice system.

JimS

[ShootinDave]

They do not qualify for POW status for a multitude of reasons. Habeas Corpus isn't just a US Code it is a vital part of Common Law and the basic understanding that people have rights when being detained.

Furthermore, common article three of the Geneva Conventions apply. The most interesting part of which reads:

"(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

ALL THE JUDICIAL GUARANTEES. I read that as including one of the most basic aspects of western law and criminal procedure, Habeas Corpus.

Also, one of the most fundamental aspects of detaining combatants for prosecution is a hearing to prove to a tribunal that there is cause to hold the person. No such hearings have been held in over 4 years.

- Dave

[JimS]

They do not qualify for POW status for a multitude of reasons. Habeas Corpus isn't just a US Code it is a vital part of Common Law and the basic understanding that people have rights when being detained.

Furthermore, common article three of the Geneva Conventions apply. The most interesting part of which reads:

"(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

ALL THE JUDICIAL GUARANTEES. I read that as including one of the most basic aspects of western law and criminal procedure, Habeas Corpus.

Also, one of the most fundamental aspects of detaining combatants for prosecution is a hearing to prove to a tribunal that there is cause to hold the person. No such hearings have been held in over 4 years.

- Dave

Why are they not POW's? No judgements have been pronounced. So if they are POW's then my argument applies to when they will potentially be released (at end of Hostilities) - they took on this battle supposedly knowing the potential consequences of war. This is a war with the Terrorists - they declared it - it is what they call Jihad. So in my estimation that makes them a POWs. All judicial guarantees - the Geneva convention does not state that this is to be a civilian court - it could very easily be a military court or a special tribunal.

JimS

[ShootinDave]

The thrid Geneva convention outlines how to treat POW's. I took an abreviation from Wikipedia as to who qualifies so I don't have to copy and paiste 3 pages.

"To be entitled to prisoner of war status, the captured service member must have conducted operations according to the laws and customs of war: be part of a chain of command and wear a uniform and bear arms openly. Thus, franc-tireurs, terrorists and spies may be excluded."

Terrorists running planes into buildings and exploding cars into our troops in hardly under the laws of war. They also do not wear a recognizable uniform with a common insignia (I.E. a flag/etc).

They don't have to be a POW to be granted COMMON article three however. EVERYONE captured should be given ALL judicial rights and access to a CONSTITUTIONAL court. Thats why it is a COMMON article.

You are right the court doesn't have to be a civilian court. However, when Bush tried to make a Military tribunal outside the limits of the Constitution the Supreme Court struck it down. A military court must be created in the image outlined in the UCMJ, Uniform Code of Military Justice.

This is where you hear all the fancy ideas like..... pre trail hearings to prove you should be held, being able to see the evidence before you, having coucel to help before trial. Well, you can google it and see.

- Dave

[ShootinDave]

Wow!.... I thought that the story of Murat Kurnaz would spark some creative reponse here..... I guess not. His story brings real debate to my mind....


- Dave

[freesw]

Republicans are trying to ram through legislation that will pardon any and all members of the Bush administration from any possible sanctions related to their conduct of the war, including illegal detentions, torture, etc:

http://www.youtube.com/watch?v=5ewI0Rz2FtM

[Boogyman]

Wow!.... I thought that the story of Murat Kurnaz would spark some creative reponse here..... I guess not. His story brings real debate to my mind....
- Dave
As for me, I've been staying out of this, but I think it's another attempt to grab power by this administration.

Also I agree with FreeSW about trying to cover for Bush & Cronies, especially if/when the Democrats gain control of the house.

I'm outraged and sickened by this assault on the Constitution, but ya'll already know how I stand. :rolleyes:

[chrisb]

They did exactly what the court told them to do. Congress created the legislation and the President signed it. The detainees will have trials in a military court. If it was good enough for the Nazis it is good enough for Al Qeada.

[ShootinDave]

But the bill DOESN'T say they all will get trials.... it just outlines what the trials will be.
BTW: How do you know everyone there is a member of Al Qeada? Did you even read the article above?

I'm glad you brought up the Nuremburg trials.... are you aware that many of those people's charges were dropped. It was found that most arrested were not directly linked to the illegal activity. Is it fair to hold people for 4 years before discovering this?

[chrisb]

This is aimed at our enemies. Hell it even says aliens in the legislation. It is formalized now. They can be held forever without trial as far as I am concerned. I could not care less. The truth however is that every single person in Gitmo has had a hearing every year to see whether they should be let go or not. More have been released than are there now. It isn't like they are just rounding up 1,000s of brown people on the streets of our country and sending them to Gitmo no questions asked.

This has nothing to do with checks and balances. Actually that is not quite true. The judiciary said that the legislature needed to define the parameters of treatment and detention for these combatants for the executive branch. That is what has happened. All three branches were involved.

[ShootinDave]

It is the "could care less" attitude that allows the exicutive to gain so much uncontrolled power.

[chrisb]

The executive branch has always had broad powers during a time of war. Frankly I thought the SC's ruling was bunk to begin with. This is hardly uncontrolled power. It is the exact opposite. The legislature granted him the power.

[Dutch Nick]

[QUOTE=chrisb]This is aimed at our enemies. Hell it even says aliens in the legislation. It is formalized now. They can be held forever without trial as far as I am concerned. I could not care less. The truth however is that every single person in Gitmo has had a hearing every year to see whether they should be let go or not. More have been released than are there now. It isn't like they are just rounding up 1,000s of brown people on the streets of our country and sending them to Gitmo no questions asked."

Boloney...

According to the definition approved by the Senate, you don't even have to be part of a terrorist organization. Nor does your "hostile" act have to be done to aid such a force; nor do you have to have supported such acts. Nor do you have to be in violation of the "law of war." Nor is there anywhere in the act where the term "hostilities" has itself been defined. For example, is an anti-war activist an unlawful enemy combatant? What about an American journalist who publishes leaked information damaging to the Bush administration? What about an anti-Bush blogger? In short, the definition is broad (and vague) enough to include any American citizen who is acting in a way the President deems "hostile" to the United States. As such, it is difficult to imagine a single piece of legislation with greater potential to undermine freedom and democracy in America.

In chapter 948c ("Persons Subject to Military Commissions"), the Act does stipulate that "any alien unlawful enemy combatant engaged in hostilities against the United States or having supported hostilities against the United States is subject to trial by military commission..." (my italics). However, any student of elementary logic knows that, from "All A are "B" it does not follow that All non-A are non-B." In other words, this does not mean that someone who is determined by the President or the Secretary of Defense to be an "unlawful enemy combatant," but who also happens to be an American citizen is therefore automatically off the hook. The staute was left intentionally vague... else the simple words "American citizens are excluded from all sections of this legislation."

The Act also suspends the constitutional protection of habeas corpus, which means that those branded as unlawful enemy combatants can be incarcerated indefinitely without even being charged. And, if the person so branded happens to be an "alien" (say, a Canada citizen) he can no longer use the Geneva Conventions in his defense because "no alien enemy unlawful combatant subject to trial by military commission... may invoke the Geneva Conventions as a source of rights at his trial by military commission."

As for who interprets the meaning and application of Article 3 of the Geneva Conventions, concerning whether or not a prisoner has been tortured, "the President has the authority for the United States to determine the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violation of treaty regulations which are not grave breaches of the Geneva Conventions."

While a list of "grave breaches" is provided in the legislation, the bill enjoins that no foreign or international law shall be used by any U.S. court of law to interpret these breaches. This means that it is up to the President to decide whether or not someone is guilty of torture or other cruel and inhumane violations of the Geneva Conventions. This in turn means that George W. Bush now has the authority to decide whether he himself is guilty of having tortured anyone. And, of course, the provisions of this Act regarding torture have been conveniently made retroactive and take effect as of November 26, 1997.

The Act also makes clear that the President's power to establish military tribunals does not "alter or limit" his authority "to establish military commissions for areas declared to be under martial law..." Now, a presidential declaration of a state of martial law in America might well be the last thing any American would care to envision. Nevertheless, checking the awesome power of government cannot safely be left to chance or the goodness of those who govern. This is why our founding fathers established a system of checks and balances. Unfortunately, with the passage of the 2006 Military Commissions Act, our nation has moved considerably closer to dissolving legal protections that have helped sustain our democracy in the past.

Unfortunately, this conclusion does not appear to resonate with lawmakers who have supported the Act. For example, according to Representative Duncan Hunter, Republican of California and chairman of the Armed Services Committee, "We are dealing with the enemy in war, not defendants in our criminal justice system...In time of war it is not practical to apply the same rules of evidence that we apply in civil trials or courts martial for our troops."

However, the war to which this Act applies is not a "war" at all in the conventional sense. The "enemy" is now defined as anyone who is "hostile" to the United States. This is an "enemy" that is not attached to a state government and is not necessarily attached to an organized terrorist group. This "war" knows neither geographical nor temporal boundaries. It is a "war" without end, where "victory" is an empty concept. Empty metaphors have taken over the job of criminal court proceedings and due process, and have instead been misguidedly placed in the hands of a powerful federal government. Ironically, in the ongoing, gradual process of tearing down our internal system of checks and balances, we face a much more ominous and identifiable threat, one that has just, with the passage of this Act, become even more ominous.

[chrisb]

So basically you think we should grant UBL full constitutional rights just like every citizen in the country? That is flat out stupid. When an anti-war activist is taken away by the MIB get back to me. The law enforcement angle you wish to return to worked out great for us didn't it?:rolleyes:

[freesw]

So basically you think we should grant UBL full constitutional rights just like every citizen in the country?

So basically you think providing an extreme counterexample in any way nullifies the original point?

[chrisb]

It isn't extreme. They have KSM at Gitmo right now. These are the people this is designed to deal with. Like I said when they use this against citizens protesting the war get back to me. I think we have already covered this in the other thread though.