posted
I'd be interested in people's take on this. There's some parts of what they have to say (in between the rhetoric) that I found really kind of disturbing...like the presidential powers have been extended well beyond anything reasonable. Whether one likes GWB or not, I think the idea of all presidents from now on having the powers listed in this article is more than a little scary.
PS: I know nothing about this organization and do not necessarily support or agree with their politics. Someone sent me this link and I found the article extremely interesting. If you can get beyond some of the obvious bias, I think there's some things here worth at least discussing in an open forum...
I haven't seen these concerns expressed in the mainstream media or I would've linked to a less volatile source. I hope we can get beyond that to have a decent discussion.
In particular, I'd like to see fact-based refutations of their claims, or maybe some independent sources backing up their claims.
Posts: 22497 | Registered: Sep 2000
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quote:"The compromise legislation....authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights."
The Yale law Professor Bruce Ackerman made the above statement in the article. I did not see how he made the conclusion based on what I read. That is an outrages (if true or if it is a lying scare tactic) statement. I would like it explored.
That being said, I really was freaked by the video in this link I got off the above article. If "White House Targets Conspiracy Theorists As Terrorist Recruiters" doesn't make you think twice about possible validity in Bush conspiracy theories, nothing will.
The freakiest part was a phone call I just got. I was reading the above link and worrying about the government watching when my phone rang. It was from an unknown number. I could hear someone breathing and no one responded to my "hellos."
Here's some thinking on the recent legislation, Bob.
If this part in the article you posted, Bob, is true:
quote: In section 950j. the bill criminalizes any challenge to the legislation's legality by the Supreme Court or any United States court. Alberto Gonzales has already threatened federal judges to shut up and not question Bush's authority on the torture of detainees
Then I'd say it's way past time to be very very very afraid.
Posts: 5609 | Registered: Jan 2003
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My letter (which vents a bunch of things I've been upset about) to my Rep, Joann Davis:
quote:
Mrs. Davis:
I have become very concerned of late with the GOP's support of unethical POW treatment. To be brief: the conduct of the GOP Congressmen and of the Republican administration has been underhanded, double-dealing, and wholly unethical. These past six years have been witness to an upshift in politicking, and a degradation of honest, grass-roots effectiveness which the GOP has long made their hallmark.
I once was a stalwart Republican. After the mishandling of post-invasion Iraq, and the allegations of corruption within the GOP, I'm afraid I can no longer call myself a "proud" member of the Grand Old Party. The GOP simply doesn't stand for anything Grand-- not in reality and not in practice. In reality, they seem to stand for Money for the Rich, and Prestige for the Party. With the allegations against Sen. Foley and Sen Hastert, it has become plain that the GOP is more interested in maintaining its political power rather than serving justice.
I'm writing you with the hope that you, as a member of the House of Representatives, are more responsive to the will of the American people. The GOP is foundering-- if Republican senators/representatives continue pushing legislation that allows inhuman treatment of enemy combatants, it will sink. The American people DO NOT want this blood on their hands.
The GOP can be restored to honor by: 1) divorcing itself from unethical and inhumane policies towards prisoners of war. We're Americans-- we thrive on ingenuity and creativity. Surely, better methods of interrogations can be found that don't rely on torturing prisoners, or violating treaties we have already agreed to.
2) Honoring laws. The recent allegations of corruption and cover-up have been damning. The GOP needs to start sacrificing malefactors-- it's time to clean house. The American people will respond better to acceptance of wrong-doing, and punishment of offenders than they will to games of spin and pass-the-buck. The GOP needs to take responsability (that WAS one of the most attractive things about the party-- personal responsability) for the actions of their members and publically censure those who've wronged their offices. Complete cooperation with independent investigators goes without saying... but now I've said it, just in case.
I voted for you every time you've ran because I was impressed with your honesty. I hope that you can influence your colleagues within the GOP and within the HoR to restoring honor to American law.
posted
I wrote a very well thought out and well formed letter to my Republican senator, criticizing one of his decisions, in detail.
He sent back a not thanking me for agreeing with him.
I was tempted to send him a dollar so he could buy a clue, but he'd only use it to buy tv commercials and lie about his opponent.
Posts: 11895 | Registered: Apr 2002
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posted
Yes -- nice letter, Scott. Very articulate. HAve you thought about following it up with a phone call, or an in-person visit, if possible?
An interesting side note, at least here in Washington -- the letters constituents write are generally tallied up in a count on the "pro" or "con" side of impending decisions after being read by staff. That tally is then reported back to the rep. Rarely do the letters go to the representative in question to be read by him/her. This might be different in smaller states -- I don't know.
If you want your voice heard as an individual, you might try the following: 1. Meet them in person and talk to them about your concern, hopes, fears, etc. 2. Phone and talk to them. 3. Write. 4. Send e-mail (it takes about 100 of these to equal the importance of one letter).
Posts: 5609 | Registered: Jan 2003
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posted
This is what happens when people are more concerned about safety than freedom, and life above what is right.
What's going on right now is appalling and we the people should stand up and do something about it.
"God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty.... And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure." -Thomas Jefferson
I say we've been lethargic for much too long. We are overdue for a rebellion, and certainly have cause for one.
Posts: 2880 | Registered: Jun 2004
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posted
It's all very well and good to say you'd die for a cause, Katarain, but who would you be willing to kill?
Posts: 37449 | Registered: May 1999
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posted
What good will taking arms do? That's what causes this sort of thing in the first place. There has to be a better, smarter way to handle these people and to take back our power... Maybe waking up the apathetic might help a bit, but I'm slowly becoming one of them and have to fight it like fighting sleep.
Posts: 9942 | Registered: Mar 2003
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quote:It's all very well and good to say you'd die for a cause, Katarain, but who would you be willing to kill?
I don't want to kill anyone. But I also don't want anyone to take away our freedoms or rights. I wouldn't go as far as to pick out leaders and start assassinations, but if things progress to where they're using military against the populace (which they're already practicing and preparing for), then if I'm needed, I would stand and fight. I might not last long, but I hope that I'd make some difference in the resistance before I died. And since I'd probably be no good on the battlefield, I would help as I could in other ways. At this point, though, trying to get people to wake up to what's really going on might be enough.
quote:What good will taking arms do? That's what causes this sort of thing in the first place.
Please back that up.
Is there a better, smarter way to take back our power? Well, currently, I still think that we might have some power in our voting abilities and our demands to our representatives that they start listening to us instead of the money and power. But the problem IS the apathetic, and those duped into believing that Government knows best. And people who have such fierce loyalty to a party that they fail to see its flaws and its real agenda. I see no difference in the two parties except the publicized version of their views. They both want to take away our rights in one way or another.
Will it take bloodshed to take our country away from the conglomeration of tyrants who control it and who are destroying our constitution? Maybe not, but their crimes certainly warrant it if it comes to that.
Posts: 2880 | Registered: Jun 2004
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quote:I hope that I'd make some difference in the resistance before I died.
Do you hear the people sing, singing the songs of angry men? It's the music of a people who will not be slaves again! When the beating of your heart echoes the beating of the drum, There's a life about to start when tomorrow comes! Posts: 14554 | Registered: Dec 1999
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quote: In section 950j. the bill criminalizes any challenge to the legislation's legality by the Supreme Court or any United States court.
Okay. I don't have legal training, so wading through the law text was difficult. The actual text of section 950j reads:
quote:(a) Finality- The appellate review of records of trial provided by this chapter, and the proceedings, findings, and sentences of military commissions as approved, reviewed, or affirmed as required by this chapter, are final and conclusive. Orders publishing the proceedings of military commissions under this chapter are binding upon all departments, courts, agencies, and officers of the United States, except as otherwise provided by the President.
(b) Provisions of Chapter Sole Basis for Review of Military Commission Procedures and Actions- Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.
I'll frankly say that the bolded part (bolded by me) makes no sense to me. It simply can't be saying what I read it to be saying.
That said, it sounds more like it's trying to keep civilian courts out of military trials. I don't think that would (or could) prohibit a challenge to the legislation itself.
Posts: 2907 | Registered: Nov 2005
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quote:It's all very well and good to say you'd die for a cause, Katarain, but who would you be willing to kill?
I don't want to kill anyone. But I also don't want anyone to take away our freedoms or rights. I wouldn't go as far as to pick out leaders and start assassinations, but if things progress to where they're using military against the populace (which they're already practicing and preparing for), then if I'm needed, I would stand and fight. I might not last long, but I hope that I'd make some difference in the resistance before I died. And since I'd probably be no good on the battlefield, I would help as I could in other ways. At this point, though, trying to get people to wake up to what's really going on might be enough.
quote:What good will taking arms do? That's what causes this sort of thing in the first place.
Please back that up.
Is there a better, smarter way to take back our power? Well, currently, I still think that we might have some power in our voting abilities and our demands to our representatives that they start listening to us instead of the money and power. But the problem IS the apathetic, and those duped into believing that Government knows best. And people who have such fierce loyalty to a party that they fail to see its flaws and its real agenda. I see no difference in the two parties except the publicized version of their views. They both want to take away our rights in one way or another.
Will it take bloodshed to take our country away from the conglomeration of tyrants who control it and who are destroying our constitution? Maybe not, but their crimes certainly warrant it if it comes to that.
It's the pattern. Just look at history. Look at the French Revolution, the Russian Revolution. Read this excellent book on Mao and the Chinese Communist Revolution if I can think of the author. It was brilliant. Revolutions lead to more blood shed then back to the status quo. There has to be a better way, a lasting revolution WITHOUT bloodshed, now there's a strange concept.
Posts: 9942 | Registered: Mar 2003
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quote: H.R.6166 Military Commissions Act of 2006 (Engrossed as Agreed to or Passed by House)
`Sec. 948c. Persons subject to military commissions
`Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.
`Sec. 948d. Jurisdiction of military commissions
*SNIP*
Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.
Am I just seeing things, or does that say:
The president can convene a tribunal to determine whether or not someone is an unlawful enemy combatant and then send them to a military tribunal?
Posts: 3295 | Registered: Jun 2004
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The president can convene a tribunal to determine whether or not someone is an unlawful enemy combatant and then send them to a military tribunal?
You're just seeing things. The tribunal determines if the person is an enemy combatant. The commission tries the combatant for war crimes. Two different things.
Posts: 26071 | Registered: Oct 2003
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quote: quote:Am I just seeing things, or does that say:
The president can convene a tribunal to determine whether or not someone is an unlawful enemy combatant and then send them to a military tribunal?
You're just seeing things. The tribunal determines if the person is an enemy combatant. The commission tries the combatant for war crimes. Two different things.
So can you translate this law for us? Is it really as scary as that article is making it out to be (gonna guess not)? How scared by it should we be?
Posts: 3295 | Registered: Jun 2004
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posted
There are some scaryish things. I'm going to try to analyze it more fully in the appeals/habeas thread tonight.
I haven't read the biased rant in question, but, if "In section 950j. the bill criminalizes any challenge to the legislation's legality by the Supreme Court or any United States court" is typical of the quality of reasoning, then it's basically B.S."
Posts: 26071 | Registered: Oct 2003
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Ok, when my dad brought this up at dinner tonight I knew I had read SOMETHING about this at Hatrack. But given the usual nonsense that goes on in political threads around here ( ), I confess to doing no more than skimming those few I actually open -- including this one. My bad.
WHY aren't more people screaming about this law? Don't get me wrong, letters like Scott's (and the one my dad sent our congress-critter) are important. But why isn't this headline news, and big time?
I read the habeas thread as well, and listened to my dad's concerns about this law (as well as reading what little I could find in terms of news articles), and it seems pretty clear to me that this law essentially revokes habeas corpus! Is that not one of the reasons we had the Revolutionary War?!?
Not to mention that this law states that the government can refuse to allow you to examine the evidence against you, on the grounds of it being restricted or confidential. Not to mention allowing torture.
How does this effect me? I know there are some scary things in here for non-citizens, but how does this legislation change the law for American citizens?
It might be selfish, but I don't think anyone can blame me for being concerned about America first.
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posted
What makes you think citizens are safe? Early versions of the bill excluded citizens, but the version the president signed into law yesterday did NOT.
Posts: 32919 | Registered: Mar 2003
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quote:Originally posted by Dagonee: There are some scaryish things. I'm going to try to analyze it more fully in the appeals/habeas thread tonight.
I haven't read the biased rant in question, but, if "In section 950j. the bill criminalizes any challenge to the legislation's legality by the Supreme Court or any United States court" is typical of the quality of reasoning, then it's basically B.S."
Then could you please clarify it a bit for us? This part is especially troubling:
"no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter."
It really does sound as though it is trying to prevent the bill from being challenged in court.
Posts: 2437 | Registered: Apr 2005
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quote:It really does sound as though it is trying to prevent the bill from being challenged in court.
It might sound like that - it has to be read in context of the rest of the bill and I don't have time to do so - but even so, it does NOT, in any way, shape or form, "criminalize" a challenge to the legislation's legality. It's a ludicrous charge, one so ridiculous as to call into question every single thing the author has ever said on the subject.
Can people please find a link to the actual section of the law they are citing or at least include the section numbers? It makes it very difficult to analyze without it.
If someone links the passed and signed bill, I'll post on it tonight.
Every version of this bill I've seen has the words "Except as provided for in this Chapter" in it before that quote you object to, rice. It might have been taken out of the version signed by the President, but I don't think it was.
Posts: 26071 | Registered: Oct 2003
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posted
This is the information I found from the Congress website.
Here is the full bill at its introduction. I've not been able to locate a final version.
As an aside, I think it's hillarious that on the Washington post site that tracks congressional voting you can see how the different astrological signs voted on a bill. Posts: 5879 | Registered: Apr 2001
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quote:What makes you think citizens are safe? Early versions of the bill excluded citizens, but the version the president signed into law yesterday did NOT.
The act states the following:
quote:Sec. 948a. Definitions ... (3) ALIEN- The term `alien' means a person who is not a citizen of the United States. ...
Sec. 948b. Military commissions generally
`(a) Purpose- This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.
...
Sec. 948c. Persons subject to military commissions
Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.
I'd like to see some proof that this bill applies to citizens.
quote:Then could you please clarify it a bit for us? This part is especially troubling:
"no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter."
To reiterate, this clearly does not criminalize challenging anything in court. Now let's turn to the actual issue: is judicial review available?
As I noted before, the especially troubling part leaves out some very important words. In it's entirety, the part says:
quote:Sec. 950j. Finality or proceedings, findings, and sentences
`(a) Finality- The appellate review of records of trial provided by this chapter, and the proceedings, findings, and sentences of military commissions as approved, reviewed, or affirmed as required by this chapter, are final and conclusive. Orders publishing the proceedings of military commissions under this chapter are binding upon all departments, courts, agencies, and officers of the United States, except as otherwise provided by the President.
`(b) Provisions of Chapter Sole Basis for Review of Military Commission Procedures and Actions- Except as otherwise provided in this chapter and notwithstanding any other provision of law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.
So we need to determine, what is provided in this chapter. Answer:
quote:Sec. 950f. Review by Court of Military Commission Review
`(a) Establishment- The Secretary of Defense shall establish a Court of Military Commission Review which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges. For the purpose of reviewing military commission decisions under this chapter, the court may sit in panels or as a whole in accordance with rules prescribed by the Secretary.
`(b) Appellate Military Judges- The Secretary shall assign appellate military judges to a Court of Military Commission Review. Each appellate military judge shall meet the qualifications for military judges prescribed by section 948j(b) of this title or shall be a civilian with comparable qualifications. No person may be serve as an appellate military judge in any case in which that person acted as a military judge, counsel, or reviewing official.
`(c) Cases To Be Reviewed- The Court of Military Commission Review, in accordance with procedures prescribed under regulations of the Secretary, shall review the record in each case that is referred to the Court by the convening authority under section 950c of this title with respect to any matter of law raised by the accused.
`(d) Scope of Review- In a case reviewed by the Court of Military Commission Review under this section, the Court may act only with respect to matters of law.
`Sec. 950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court
`(a) Exclusive Appellate Jurisdiction- (1)(A) Except as provided in subparagraph (B), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority) under this chapter.
`(B) The Court of Appeals may not review the final judgment until all other appeals under this chapter have been waived or exhausted.
`(2) A petition for review must be filed by the accused in the Court of Appeals not later than 20 days after the date on which--
`(A) written notice of the final decision of the Court of Military Commission Review is served on the accused or on defense counsel; or
`(B) 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.
`(b) Standard for Review- In a case reviewed by it under this section, the Court of Appeals may act only with respect to matters of law.
`(c) Scope of Review- The jurisdiction of the Court of Appeals on an appeal under subsection (a) shall be limited to the consideration of--
`(1) whether the final decision was consistent with the standards and procedures specified in this chapter; and
`(2) to the extent applicable, the Constitution and the laws of the United States.
`(d) Supreme Court- The Supreme Court may review by writ of certiorari the final judgment of the Court of Appeals pursuant to section 1257 of title 28.
So there are three levels of review:
1.) A military appeals court. This is an automatic appeal (see Sec. 950c(a)). 2.) U.S. Court of Appeals for the District of Columbia. This is an appeal of right and covers all applicable constitutional provisions. The court will determine which provisions are applicable. 3.) Supreme Court, at SCOTUS's discretion.
quote:it seems pretty clear to me that this law essentially revokes habeas corpus!
Here's what this act has to say on Habeas:
quote: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 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.
`(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.
So we need to know what section 1005(e) of the Detainees Treatment Act of 2005 says. Here it is:
quote:(e) Judicial Review of Detention of Enemy Combatants-
(1) IN GENERAL- Section 2241 of title 28, United States Code, is amended by adding at the end the following:
`(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider--
`(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or
`(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--
`(A) is currently in military custody; or
`(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.'.
(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; and
(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.
(C) SCOPE OF REVIEW- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of--
(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.
(D) TERMINATION ON RELEASE FROM CUSTODY- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.
(3) REVIEW OF FINAL DECISIONS OF MILITARY COMMISSIONS-
(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 rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).
(B) GRANT OF REVIEW- Review under this paragraph--
(i) with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or
(ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Columbia Circuit.
(C) LIMITATION ON APPEALS- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to an appeal brought by or on behalf of an alien--
(i) who was, at the time of the proceedings pursuant to the military order referred to in subparagraph (A), detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a final decision has been rendered pursuant to such military order.
(D) SCOPE OF REVIEW- The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of--
(i) whether the final decision was consistent with the standards and procedures specified in the military order referred to in subparagraph (A); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.
(4) RESPONDENT- The Secretary of Defense shall be the named respondent in any appeal to the United States Court of Appeals for the District of Columbia Circuit under this subsection.
Once again, we see that a person subject to a final determination by the military (in this case, a tribunal, not commission) has an appeal of right to the D.C. Circuit, one in which no constitutional claims are precluded.
Two aspects of habeas are precluded (quick note, none of these restrict citizens' access to the Writ):
1.) The analog of "post-conviction" review that exists in criminal cases. (In short, after final appeals are completed in a criminal case, a defendant may, essentially one time, challenge his conviction. These are very seldom successful. This preclusion is much less troubling than the second one I'll discuss, because it only occurs when a detainee has had access to one appeal of right in a civilian court and one discretionary appeal (cert. to SCOTUS) in a civilian court. This represents the by-far most common use of habeas in this country, and is far removed from any revolutionary war roots of the habeas corpus provisions.
2.) Prior to a final determination, the detainee seems to be precluded from filing a petition for release. The analog to this in criminal proceedings is if the police arrest someone and never take him to court. Any citizen can file a habeas petition while in jail pretrial. However, if the case is proceeding "normally," the judge will simply toss the petition. If a lawyer filed the petition for the defendant, he could be sanctioned if he lacked a good faith basis to do so. It is only when the normal procedures of criminal prosecution and pretrial detention are not be followed that pretrial habeas becomes non-trivial. It is a critically important protection whose mere existence means that it seldom has to be exercised in the criminal context.
To relate this to detainees, the court is saying that, if a final determination of combatant status has not been made against an alien, that alien has no recourse. The problem is whether there is a time limit for that review. If not, then, by dragging its feet on the review, the military can detain an alien indefinitely. I find this aspect of the act very troubling. As I've discussed elsewhere, the act seems to require review of status each year. The language is very vague, though. Not any more vague or poorly drafted than many other laws, though, so it's not clear if the vagueness is intended to allow a loophole or not.
A couple of things to note:
1.) this provision has been in effect since January. The latest law affected it very little (applying it to aliens held in places other than GITMO but not changing the procedures for combatant status determination). I'm not saying that makes it OK. I am saying that claims that the new law eliminates habeas corpus are very inaccurate. The limitations on habeas corpus are now 10 months old. This makes me question legal conclusions drawn by those making this claim until I can analyze it for myself.
2.) The new act does not allow a person convicted by a military commission to be held without civilian court review, which is the primary evil opposed by habeas corpus. The detainee act does leave open the possibility that unreviewed detainees may be held indefinitely without such a review. To the extent it results in this, it is evil. To the extent it does not make the right to review after an unreasonable delay explicit, it is sloppy.
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That will be much easier when the actual problems are pointed out rather than the insane critiques I've seen on the subject.
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posted
Okay...I'll start writing my congresspeople again. Though (thankfully) none of my congresspeople voted for it. Senator Obama argued against it, saying that it was, among other things, "sloppy".
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Clinton endorses torture in the ticking time bomb situation! Interesting audio clip at the link. I actually agree with Bill Clinton on this, mainly because he seems to agree with Bush and disagree with most of the people in his own party. I wonder if he failed to get the talking points from Hillary in time for this NPR interview. http://hotair.com/archives/2006/10/19/audio-clinton-endorses-torture-in-special-cases/Posts: 407 | Registered: Mar 2006
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Bob_Scopatz, here's what you were looking for (hard facts). I looked up the bill on Thomas; here it is.
This is the relevant text on enemy combatants and allegiance to the President:
quote:The term ‘lawful enemy combatant’ means a person who is— [A, B, or...]
(C)
a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.
The "such hostilities" mentioned in (A) and (B) are "hostilities against the United States." (A) says conventional soldiers engaged in hostilities against us and (B) says militias engaged in hostilities against us; they don't use the word "allegiance." (So, Dagonee, it does apply to US citizens, provided they are trying to kill us or provided they are US soldiers who profess allegiance to those trying to kill us.)
So you can compare this to Information Liberation's claim that this "labels all American citizens who breach their 'allegiance' to President Bush and the actions of his government as terrorists" and see, it isn't just a casual mistake. It's an outright lie, provided the writer of the article actually read the part of the bill he was covering.
I expected (with dread) to find the claim accurate, because there are sometimes real horrors buried deep within bills. Not this time, at least, not in that text.
--
Regarding this:
quote:no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever,
This is what it sounds like: the court system doesn't have jurisdiction over these military tribunals.
In a way this is new and in a way it's not. What isn't new is saying the courts can't challenge the constitutionality of a law. It isn't even that unusual; sometimes it's done on budget bills! It's in the Constitution, Section III, Article 2.
quote:In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
"Original" means that these things are tried *first* in the SC. This I don't understand, because the State is a party in any federal criminal prosecution, right? And those don't start in the SC. Anyway, unless it starts with the SC, Congress can make exceptions to SC's jurisdiction, and this could be one.
Aren't military tribunals already not subject to SC appeal?
I'm not saying this is a good idea. Actually, I think it's a terrible one. But it Constitutional, unless these trials *start* in the SC.
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actually what you should be most worried about is the over 700 signing statements Bush has issued along with the bills that he has signed. Instead of using the Veto to oppose a bill he has signed it into law and then issued statements saying that he does not hold the law constitutional and therefore reserves power to ignore sections of the law. Un fortunately there is no way of knowing if that by declairing his beliefe taht the law is unconstitutional and that the presedent will ahve say over the law taht he has broken the laws himself or acted upon the powers that his signing statements grant him. Especially since all information reguarding uses and abuses of the laws are to be reviewed by him and his staff before any reports are given to congress.
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quote:Originally posted by Dagonee: Just make sure you're talking about the right bill. Too many people have confused the two.
I think I'm talking about S 3930? Right?
It depends on what you're upset about. I'm particularly upset that there is no explicit time limit for making the enemy combatant determination. This is the only loophole (if it exists - the fact that I can't tell is pretty damning) that allows detention without civilian court review, which is the evil habeas corpus is supposed to prevent. This loophole is from the second bill I linked, the Detainee Treatment Act, not S 3930. So if you want to write on that subject, write about the earlier bill.
You have expressed distaste for aspects of the S 3930 bill in other threads. However, since that bill allows civilian court review, even if it's not habeas review, I don't have the visceral and immediate dislike for it that I have with the other. I need time to analyze it. If you wish to complain about aspects of that bill, be very careful to specify to which bill each complaint applies. My suggestion would be to be very explicit about the provisions and make sure the complaints are accurate. If not, the whole letter will be tainted.
(Note: Habeas relief is generally far more difficult to get than relief on direct appeal. So, if only one is offered, then I'm glad it's direct appeal. Also, until the second half of last century, post-conviction habeas relief was EXTREMELY limited. So the historical scope of habeas is not affected much by restrictions on post-conviction review.)
quote:The "such hostilities" mentioned in (A) and (B) are "hostilities against the United States." (A) says conventional soldiers engaged in hostilities against us and (B) says militias engaged in hostilities against us; they don't use the word "allegiance." (So, Dagonee, it does apply to US citizens, provided they are trying to kill us or provided they are US soldiers who profess allegiance to those trying to kill us.)
No, it doesn't apply. From the bill I linked above:
quote:Sec. 948d. Jurisdiction of military commissions
...
`(b) Lawful Enemy Combatants- Military commissions under this chapter shall not have jurisdiction over lawful enemy combatants. Lawful enemy combatants who violate the law of war are subject to chapter 47 of this title. Courts-martial established under that chapter shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter.
That seems pretty clear.
The reason some people are saying that it applies to citizens application is that there is no similar statement "Military commissions under this chapter shall not have jurisdiction over citizens." I would bet a lot of money that no federal appellate court will interpret this bill to apply to citizens, for the simple reason that there is a list of who the bill applies to, and citizens aren't on it. (It's a list of one, quoted above.)
quote:This I don't understand, because the State is a party in any federal criminal prosecution, right?
No. "State" means Virginia, or New York, or Hawaii. No "State" is a party in a criminal federal prosecution.
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), I confess to doing no more than skimming those few I actually open -- including this one. My bad.![[Eek!]](eek.gif)
