posted
Did anyone else see this on CSPAN and/or get a clip? Once again, he's one of the few people out there making sense.
Posts: 37449 | Registered: May 1999
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The best I've seen on it was from Scalia, actually:
quote:“The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.” If any single sentence can sum up Justice Scalia’s vision of the core value underlying the Apprendi principle, it is this, the beginning of his dissent in Hamdi v. Rumsfield. Justice Stevens was the only member of the Rehnquist Court to join Justice Scalia’s ringing declaration that the sole means by which the United States Government could deprive accused enemy combatant Yaser Esam Hamdi of his liberty was to charge Hamdi, an American citizen, with a crime. Acknowledging a few specific means by which citizens can be detained in noncriminal proceedings, Justice Scalia noted that the “process and proceedings of the common law,” including charges “followed by indictment and trial,” are required for the most common type of executive detention, detention for criminal acts. Nor can the few acceptable noncriminal grounds for detention be used in place of criminal proceedings. Exceptions to this rigid requirement can be made only after suspension of the great writ of habeas corpus by act of Congress in time of invasion or rebellion. Accordingly, absent a very few rare exceptions, the only way to imprison a U.S. citizen under the Constitution is to charge, and ultimately convict, him of a crime. Thus, as demonstrated by Scalia’s argument in Hamdi, the concept of “crime” is fundamentally related to his conception of liberty. Without this concept and its attendant due process, the government cannot generally deprive a citizen of personal liberty.
posted
*nod* Hamdi still stands out for me as one of the very few times when I've found myself agreeing wholeheartedly with Scalia.
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posted
Barack Obama scares the hell out of me. I mean, I literally get chills just from picturing him. I can't pin it down, but there's something really, seriously, creepy about him.
It's just a hunch, but I suspect a lot of you will be agreeing with me about this before too long.
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quote: there's something really, seriously, creepy about him
Maybe it's the idea of a politician with a clear(er) moral compass? A politician less prone to corruption?
Everyone's got skeletons in their closets, though. I don't find Obama creepy. But I'm not following political news much anymore.
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Whenever he gives a speech I get an upwelling of excitement, like I know there's good things to come from him, and I can't wait until they happen.
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posted
"Did anyone else see this on CSPAN and/or get a clip?"
Just gotta check out the usual suspects. For those who aren't too scared to actually read Obama's speech.
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posted
It's like presidential hopeful Trent Lott said: We [Republican Senators] don't [care] and the real people out in the real world don't for the most part.
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posted
I'm just wondering how many people who've voted Republican in the past few years knew that their votes would go to enshrining in law the practices of kidnapping and torture. It's weird, living in Wisconsin after years in Indiana, because my reps here already vote the right way and I can generally count on them to do so -- but for people whose representatives voted for this thing, is it even seen as an issue? How are people who voted for the representatives who voted for this justifying that decision to themselves?
Posts: 37449 | Registered: May 1999
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quote:I'm just wondering how many people who've voted Republican in the past few years knew that their votes would go to enshrining in law the practices of kidnapping and torture.
Oddly, it wasn't on any of the ads, websites, or interviews given by the candidates.
Funny how that works...
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posted
Your right, Kerry would have done a much better job. Just slap them on the wrist and say "bad boy, don't play with terrorists".
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quote:We [Republican Senators] don't [care] and the real people out in the real world don't for the most part...
quote:...enshrining in law the practices of kidnapping and torture.
I just want to know - is this the standard for political dialog here on Hatrack now? Prejudging the motives of other people? Restating - in a manner that almost amounts to lying - what political opponents say instead of actually responding to it?
Posts: 26071 | Registered: Oct 2003
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posted
This is a legal question: There are several safegaurds and deliminators enshrined in this law to limit its use, but doesn't the lack of Habeus Corpus make them useless?
I don't believe President Bush would do this, but if some future President wished to abuse his power, is not the following now a possibility.
You catch the president doing something wrong, abusing an intern, accepting a bribe, stewing a baby, whatever. He immediately grabs two close confidants and creates a "Executive Tribunal". He then asks for evidence of your terrorist connections. He is told its rock solid, and totally secret. You are convicted of being an enemy combatant and escorted roughly to some out of the country detention center.
You protest, but there is nothing anyone can do.
You say, "It is limited to only non-citizens. I am a citizen. I can prove it."
The guards and federal attorney's say, "THat doesn't matter--THE VERDICT CAN NOT BE APPEALED. THE EVIDENCE AGAINST YOU, including your own citizenship or lack there of, the safegaurds legislated into the law, ARE IMMATERIAL.
Your friends, spouce, family, lawyer, all can do nothing for you because once that tribunal declares you an "ENEMY COMBATANT" you are an "OUTLAW" in the oldest sence. That is there is no law to protect you.
At least in Viking days, when they cast someone as OUTLAW, they gave the shmuck 3 days to leave the country before allowing anyone to kill him on sight.
Accordng to this law, those we declare OUTLAW will be locked away and exposed to anything those who hold power over them wish to inflict.
What happens if those who hold power over them, the jailers, the wardens, the government, break the law and torture the "Enemy Combatant"?
Can you prosecute someone for a crime if there is no legal defendant?
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posted
Obama's speech makes some good points which strike very closely to the big problem in Iraq/Afghanistan:
A lack of careful planning.
I can forgive the invasion of Iraq; I can't overlook the deadly ineffectiveness that our planners and the Administration have carried since Iraq came under our control.
With this bill, the administration and the republicans rush into another situation, and leave American standards behind. I don't like it.
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quote:Your right, Kerry would have done a much better job. Just slap them on the wrist and say "bad boy, don't play with terrorists".
Leaving aside the issue of whether this is in fact what Kerry would have done, let's explore this more deeply.
Do you think this law -- which restricts not the rights of the convicted, but the rights of the accused -- is an effective measure in the War on Terror? Regardless of whether you answer yes or no to this question, do you believe that it creates a problematic rights issue by essentially making it possible for the executive branch to kidnap and torture American citizens without legal review or recourse?
quote: I just want to know - is this the standard for political dialog here on Hatrack now? Prejudging the motives of other people? Restating - in a manner that almost amounts to lying - what political opponents say instead of actually responding to it?
You know, in a way, I certainly hope so. Because if people don't get angry about this, Dag, if they continue to allow the legalists to whittle away at American freedom with each loophole and special case and niggling concern, we're going to wind up with a truly terrible situation and won't realize it until it's way, way too late. We're far, far too complacent about this.
When Trent Lott says that "real people" don't care about the War in Iraq, or that Sunnis and Shiites all "look alike" to him, we should get angry. We should mention it every time we hear his name. Because people need to know he feels that way, and need to understand why it represents a serious failing in him.
And when people vote for Republicans (or a handful of Democrats; this is an equal-opportunity blunder) who wind up supporting through law dramatic curtailments of liberty, we should call 'em on it. We should say, "Hey, bonehead, why'd you do that? You regret it yet? Are you going to make that mistake NEXT TIME?"
I sincerely hope that everyone who voted the wrong way -- by which I mean "pro-torture" -- the last time will recognize that and vote the right way this time.
And if you didn't know you were voting pro-torture when you voted Republican last election, despite the fact that you made fun of me and dozens of other people who said that very thing when you did it, I certainly hope this vote made it obvious to you.
If you don't want your name associated with torture, don't vote for people who vote for torture. It's really that simple.
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posted
Dan, you've outlined a very scary scenario about what would happen if the executive branch totally ignored the law and refused to respond to judicial orders to comply.
I'm at a loss as to why you think this is couldn't happen under the laws as they existed in 2000. Since you're positing the President ignoring the law, it doesn't seem to matter what the law is.
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quote:do you believe that it creates a problematic rights issue by essentially making it possible for the executive branch to kidnap and torture American citizens without legal review or recourse?
Please document where it does this.
Posts: 26071 | Registered: Oct 2003
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posted
By permitting the executive branch to invent a new form of "tribunal," by eliminating the right of captives to see the evidence and charges against them, and by banning specific behaviors while endorsing the executive branch's ability to engage in unspecified forms of interrogation, the law as I understand it does exactly this.
Can you explain to me what would -- under this law -- prevent the executive branch from creating, say, a two-person CIA "tribunal" to oversee all captives, denying access and/or notification to any member of the outside world, and under a blanket authorization from the executive torture those captives in methods not specifically banned? Indefinitely? With appeals possible only through methods defined by the "tribunal" itself, to be determined later?
Note that any argument that this only applies to wartime is irrelevant here, because the "War on Terror" is as finite and winnable as the War on Drugs in that regard; we'll be "at war" until the government announces that it's decided to stop.
posted
It seems almost pointless to ask again. Please document where it does this.
quote:Can you explain to me what would -- under this law -- prevent the executive branch from creating, say, a two-person CIA "tribunal" to oversee all captives
quote:Panels of military officers need not reach unanimous agreement to win convictions, except in death penalty cases, and appeals must go through a second military panel before reaching a federal civilian court.
quote:`(a) In General- Any commissioned officer of the armed forces on active duty is eligible to serve on a military commission under this chapter, including commissioned officers of the reserve components of the armed forces on active duty, commissioned officers of the National Guard on active duty in Federal service, or retired commissioned officers recalled to active duty.
`(b) Detail of Members- When convening a military commission under this chapter, the convening authority shall detail as members thereof such members of the armed forces eligible under subsection (a) who, as in the opinion of the convening authority, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of an armed force is eligible to serve as a member of a military commission when such member is the accuser or a witness for the prosecution or has acted as an investigator or counsel in the same case.
`(c) Excuse of Members- Before a military commission under this chapter is assembled for the trial of a case, the convening authority may excuse a member from participating in the case.
...
`(a) Detail of Military Judge- A military judge shall be detailed to each military commission under this chapter. The Secretary of Defense shall prescribe regulations providing for the manner in which military judges are so detailed to military commissions. The military judge shall preside over each military commission to which he has been detailed.
`(b) Eligibility- A military judge shall be a commissioned officer of the armed forces who is a member of the bar of a Federal court, or a member of the bar of the highest court of a State, and who is certified to be qualified for duty under section 826 of this title (article 26 of the Uniform Code of Military Justice) as a military judge in general courts-martial by the Judge Advocate General of the armed force of which such military judge is a member.
`(c) Ineligibility of Certain Individuals- No person is eligible to act as military judge in a case of a military commission under this chapter if he is the accuser or a witness or has acted as investigator or a counsel in the same case.
`(d) Consultation With Members; Ineligibility to Vote- A military judge detailed to a military commission under this chapter may not consult with the members except in the presence of the accused (except as otherwise provided in section 949d of this title), trial counsel, and defense counsel, nor may he vote with the members.
`(e) Other Duties- A commissioned officer who is certified to be qualified for duty as a military judge of a military commission under this chapter may perform such other duties as are assigned to him by or with the approval of the Judge Advocate General of the armed force of which such officer is a member or the designee of such Judge Advocate General.
`(f) Prohibition on Evaluation of Fitness by Convening Authority- The convening authority of a military commission under this chapter shall not prepare or review any report concerning the effectiveness, fitness, or efficiency of a military judge detailed to the military commission which relates to his performance of duty as a military judge on the military commission.
...
`(a) Number of Members- (1) A military commission under this chapter shall, except as provided in paragraph (2), have at least five members.
`(2) In a case in which the accused before a military commission under this chapter may be sentenced to a penalty of death, the military commission shall have the number of members prescribed by section 949m(c) of this title.
quote:`(b) Statements Obtained by Torture- A statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture as evidence the statement was made.
`(c) Statements Obtained Before Enactment of Detainee Treatment Act of 2005- A statement obtained before December 30, 2005 (the date of the enactment of the Detainee Treatment Act of 2005), in which the degree of coercion is disputed may be admitted only if the military judge finds that--
`(1) the totality of the circumstances renders it reliable and possessing sufficient probative value; and
`(2) the interests of justice would best be served by admission of the statement into evidence.
`(d) Statements Obtained After Enactment of Detainee Treatment Act of 2005- A statement obtained on or after December 30, 2005 (the date of the enactment of the Detainee Treatment Act of 2005), in which the degree of coercion is disputed may be admitted only if the military judge finds that--
`(1) the totality of the circumstances renders it reliable and possessing sufficient probative value;
`(2) the interests of justice would best be served by admission of the statement into evidence; and
`(3) the interrogation methods used to obtain the statement do not violate the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the United States Constitution.
That's enough. Now it's your turn to attempt to support your accusations.
Oh, on the appeals beiong determined by the tribunal:
quote:`Sec. 950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court
`(a) Review by United States Court of Appeals for the District of Columbia Circuit- (1) Subject to the provisions of this subsection, the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the final validity of any judgment rendered by a military commission under this chapter.
`(2) The United States Court of Appeals for the District of Columbia Circuit may not determine the final validity of a judgment of a military commission under this subsection until all other appeals from the judgment under this chapter have been waived or exhausted.
`(3)(A) An accused may seek a determination by the United States Court of Appeals for the District of Columbia Circuit of the final validity of the judgment of the military commission under this subsection only upon petition to the Court for such determination.
`(B) A petition on a judgment under subparagraph (A) shall be filed by the accused in the Court not later than 20 days after the date on which--
`(i) written notice of the final decision of the military commission is served on the accused or defense counsel; or
`(ii) the accused submits, in the form prescribed by section 950c of this title, a written notice waiving the right of the accused to review by the Court of Military Commission Review under section 950f of this title.
`(C) The accused may not file a petition under subparagraph (A) if the accused has waived the right to appellate review under section 950c(a) of this title.
`(4) The determination by the United States Court of Appeals for the District of Columbia Circuit of the final validity of a judgment of a military commission under this subsection shall be governed by the provisions of section 1005(e)(3) of the Detainee Treatment Act of 2005 (42 U.S.C. 801 note).
`(b) Review by Supreme Court- The Supreme Court of the United States may review by writ of certiorari pursuant to section 1257 of title 28 the final judgment of the United States Court of Appeals for the District of Columbia Circuit in a determination under subsection (a).
quote:and appeals must go through a second military panel before reaching a federal civilian court.
I'm waiting for you to explain why this matters. I'm assuming kangaroo courts here; are you not? Note too that we can under this bill hold someone indefinitely before trying them, making the trial itself an irrelevance.
As captives do not under this bill have the right to select their own counsel or even be informed of the charges against them, I'm not sure why the specific route available to them for appeal is relevant if one presumes executive intent to retain the captive.
And in the absence of oversight, that presumption is only logical.
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Note that it's also my understanding that the Bush Administration specifically requested and obtained line items in this bill that permit them to create tribunals not subject to the UCMJ and eliminate judicial review for all but military commissions.
I'm afraid I haven't gone to primary sources for this, because I'm a) not a lawyer and b) at work, and thus a bit unwilling to wade through the text of the bill itself, but I'm willing to trust the NYT on this.
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quote:I'm waiting for you to explain why this matters. I'm assuming kangaroo courts here; are you not? Note too that we can under this bill hold someone indefinitely before trying them, making the trial itself an irrelevance.
You can't be serious. You alleged that "appeals [are] possible only through methods defined by the 'tribunal' itself, to be determined later."
I demonstrated, through first and second-hand sources, that there are appeals not definable by the tribunal itself.
Federal criminal defendants have an appeal of right to the Circuit, and a right to petition for cert. Tribunal defendants have a an appeal of right to the Circuit, and a right to petition for cert. They might have to complete an additional step first - the downside is time, the upside is two chances to present the case on appeal instead of one.
quote:not sure why the specific route available to them for appeal is relevant if one presumes executive intent to retain the captive.
It seemed relevant enough to you two posts ago when you complained that the route was definable by the tribunal.
quote:Note that it's also my understanding that the Bush Administration specifically requested and obtained line items in this bill that permit them to create tribunals not subject to the UCMJ and eliminate judicial review for all but military commissions.
Unless Thomas or the post bill is wrong, this didn't happen. The commissions are not subject to the UCMJ - technically, they revised the UCMJ to allow for them, but the effect is the same - but that doesn't mean they are free from oversight an lack rules governing their structure.
Can you link the NYT article that says this was in the bill that was passed?
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Dag: If the current President, House majority, and Senate majority were Democrats, what would your position be on this?
Tom: Same question.
I ask because I want to hear an unbiased view of this without any political motivations.
Personally, any infringement of someone's rights scares me, and the reaction of our government reminds me of a quote by Albert Einstein: "Politics is a pendulum whose swings between anarchy and tyranny are fueled by perpetually rejuvenated illusions."
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quote:If the current President, House majority, and Senate majority were Democrats, what would your position be on this?
I don't know, because I don't know what my position is on the bill yet. There are parts I would definitely want amended assuming the press accounts are accurate - something I'm no longer willing to assume if Tom did indeed form these impressions of this bill from NYT accounts.
But it would be the same position as the one I will eventually arrive at. I have no reason to suspect Tom's position would be any different, either.
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posted
Okay, you talked me into reading the full text of the bill before I go on. There are some problematic paragraphs that I'd like to address, but because they're not related to these specific issues I'll save 'em for later.
That said, Dag, before I go on, could I get your opinion on how Sec. 949a(b)(2) interacts with the Section 8 Habeas Corpus text? Do the rights enumerated in 949a apply even if habeas corpus as a principle is denied to captive aliens?
I'm a little bit worried about interpretation of this thing. I've run across several passages that seem dangerous in one context and completely innocuous in another, which would seem to make review particularly important -- but the bill itself goes to some pains to restrict that review. At the end of the day, Dag, who usually decides who wins that sort of thing?
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BTW, Dag's right. My objection is cross-party, mainly because -- regardless of who's in office -- I don't trust the government and am deeply suspicious of any law endorsing the use of force by the executive branch that does not include public oversight.
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quote: William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
posted
Hm. You know, as I go through this thing, one of the biggest concerns I'm developing is one that had previously been a minor one on my list.
I'm not seeing anything here that would prevent the executive branch from apprehending someone, locking them up, refusing to notify anyone, and then just not going to trial for decades. And given that it looks like trials aren't public, either, and retrials can be had fairly easily, it seems like the potential to just lock somebody up and "interrogate" them while locked up for as long as you see fit is present in the text. And if you chose to do this, they could literally do nothing about it; you wouldn't even have to tell them why they were imprisoned.
Dag, am I wrong in this?
Posts: 37449 | Registered: May 1999
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quote:I'm not seeing anything here that would prevent the executive branch from apprehending someone, locking them up, refusing to notify anyone, and then just not going to trial for decades
Not really, although the protections are not as explicit as I'd like. The new act applies the Detainee Treatment Act of 2005 to all detainees, not just GITMO. That's where you look to see what review applies to determinations of combatant status.
There are two types of proceedings in play here.
1.) a tribunal to determine unlawful enemy combatant status. 2.) A commission to determine guilt or inocence of war crimes.
The latter is the subject of the new act. Only people determined to be unlawful enemy combatants will face the new tribunals.
The act allows the DoD to define the procedures for determining status. It seems to suggest that the longest someone can be held without such a review is 1 year (they must "provide an annual review to determine the need to continue to detain an alien who is a detainee"). However, there is an appeals process:
quote:2) REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF DETENTION-
(A) IN GENERAL- Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.
(B) LIMITATION ON CLAIMS- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien--
(i) who is, at the time a request for review by such court is filed, detained by [the Department of Defense at Guantanamo Bay, Cuba] [this was replaced with "in the U.S." by the new act]; and
(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.
(ii) basically says that the bare minimum set of constitutional protections - whatever those happen to be - will apply to the tribunals. The Courts, not the Executive, have the power to determine that.
The limitation on habeas prevents collateral attacks, but not direct appeals.
It looks like there is quite a bit of play here for the DoD to extend detention without judicial review, but not indefinite. Once status is determined to be "enemy combatant," though, detention is allowed, possibly to the end of the conflict. This is problematic to me, but I'm not sure yet how I would modify it. Lawful enemy combatants are essentially POWs, held without trial or judicial review as a matter of course in more traditional conflicts. Unlawful enemy combatants have fewer rights under the international rules currently in place.
We need to find a way to tailor those rules to this type of conflict that prevents lifetime detention. There are two extremes here: no detention at all without trial, which essentially requires us to release enemy combatants immediately, and detention until we declare the conflict over, which would be indefinite detention. We need to find the middle ground.
However, your larger concern of indefinite detention without judicial review is not going to happen under this law - if it happens, it will be in violation of this and the 2005 law.
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1) Which courts would have jurisdiction over citizen findings in this situation? 2) What's the status of someone who has been transferred to a foreign facility? Would they still be considered "detained by the U.S." at this point? 3) My interpretation of what you've written is that the Secretary of Defense could at his discretion permit a review tribunal to delay its finding indefinitely, barring Supreme Court intervention. Is that correct? 4) The right to appeal is available only pending the final findings of the annual review, the requirements and conditions of that review determined solely by the DoD and communicated to congress, and this appeal must be conducted without habeas corpus and with the presumption of guilt? 5) The DoD is required each year to provide to Congress a list of the number of people held at any facility and the procedures used at each facility, but nothing else?
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quote:1) Which courts would have jurisdiction over citizen findings in this situation?
Do you mean "civillian" court, or which court would review a U.S. citizen's claim?
If the former, the answer is the D.C. Circuit Court. If the latter, neither act applies to citizens.
quote:2) What's the status of someone who has been transferred to a foreign facility? Would they still be considered "detained by the U.S." at this point?
Not sure.
quote:3) My interpretation of what you've written is that the Secretary of Defense could at his discretion permit a review tribunal to delay its finding indefinitely, barring Supreme Court intervention.
No - there seems to be a requirement of annual review. Further, it wouldn't take SCOTUS action, but merely D.C. Circuit action, which is an appeal of right.
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quote:4) The right to appeal is available only pending the final findings of the annual review, the requirements and conditions of that review determined solely by the DoD and communicated to congress, and this appeal must be conducted without habeas corpus and with the presumption of guilt?
I'm not sure what this question means. Habeas corpus is not part of appeals. It is a form of collateral attack. A normal criminal defendant must exhaust appeals before using habeas, and habeas has a much higher bar for granting relief. Appeals - if available - are better than habeas review in almost all instances - again, where they are available.
The procedures must comply with the law, so it seems they can't delay it much past a year - maybe a year to start, and another year to complete it.
quote:The DoD is required each year to provide to Congress a list of the number of people held at any facility and the procedures used at each facility, but nothing else?
They also have to report their procedures, and the procedures must have certain attributes.
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posted
The wording here "...the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense...for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien..." doesn't seem to require an annual review. Am I misunderstanding the use of "or" in that item?
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If you were a U.S. citizen and taken as an "enemy combatant," which laws would be applied to your treatment? Do you still retain all the normal legal channels?
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quote:The wording here "...the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense...for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien..." doesn't seem to require an annual review. Am I misunderstanding the use of "or" in that item?
It depends on court review, but there are a lot of reasons to think that it does.
Think of the sentence "These procedures are used for determining the status of a detainee or for providing an annual review of such status." If you're looking at this sentence from the perspective of a single proceeding, "or" is the proper way to look at it: the procedures won't be used for both in a single proceeding.
As counterintuitive as it seems, this is common construction. And the sloppiness evident here is common in legislative drafting.
I tried to use "seems" everywhere I discussed the annual requirement. If I didn't, please mentally add it, because it's not definitive.
Second, if you said the procedures had to be for "status determination or annual review" but not both, it might be self-contradictory, because you would be allowing review without an intitial determination. That's not a review.
quote:If you were a U.S. citizen and taken as an "enemy combatant," which laws would be applied to your treatment? Do you still retain all the normal legal channels?
Go read Hamdi and see if you can figure it out.
That's flippant, but not aimed at you. The decision flat out doesn't say. You retain some legal channels, but it's not clear at all which ones. More than non-citizens, though.
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quote:Originally posted by starLisa: Barack Obama scares the hell out of me. I mean, I literally get chills just from picturing him. I can't pin it down, but there's something really, seriously, creepy about him.
It's just a hunch, but I suspect a lot of you will be agreeing with me about this before too long.
We shall see
Right now I LOVE Obama, I really hope he somehow obtains more influence and power without selling his soul (it seems to be still intact right now)
He refuses to accept (this is the way things are done in the senate) and yet he isnt blindly idealistic. He sees the obstacles and works very hard to effectively and moralistically work through them.
I think we are going to see great things from him.
But hey, he might psychofy and Ill join Lisa's camp Posts: 14316 | Registered: Jul 2005
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quote:What is to stop the people doing the annual review from reporting that they need another year to review... And do this indefinitely?
The review is of whether detention is still necessary, and these decisions are appealable (it seems).
Posts: 26071 | Registered: Oct 2003
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posted
I'd probably want that more explicit, since the entire existence of an annual review at this point hinges upon whether or not mentioning that any annual review would be conducted in a certain fashion means that an annual review must be conducted.
Posts: 37449 | Registered: May 1999
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He might be setting himself up for a surprising backlash. The higher he ratchets up the partisan sniping, and I think this is a new level, the greater the chances that people will just start to hate the person spewing the loudest BS.
Posts: 21898 | Registered: Nov 2004
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quote:Originally posted by TomDavidson: I'd probably want that more explicit, since the entire existence of an annual review at this point hinges upon whether or not mentioning that any annual review would be conducted in a certain fashion means that an annual review must be conducted.
I would, too. But, this type of drafting is the norm, not the exception, even for laws about more serious issues.
Which is why I'm fairly comfortable saying that, given the way vague statutes are typically interpreted, this is likely to provide some kind of judicial review. But I wish almost all legislation was better drafted.
Posts: 26071 | Registered: Oct 2003
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