> -----Original Message----- > From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On > Behalf Of Ritu > Sent: Friday, October 20, 2006 2:52 PM > To: 'Killer Bs Discussion' > Subject: RE: We Will Not Be Afraid > > > Dan Minette wrote: > > > So, the bill states specifically that it's chapter 47 that codifies > > the procedures for using military commissions to try unlawful enemy > > combatants. Later in the chapter it says "Alien unlawful enemy > > combatants may be tried." Nowhere does it say that citizens who are > > unlawful enemy combatants. > > Citizens can still be declared as UEC, and held indefinitely without any > recourse to courts, lawyers, family, and friends.
They can be declared UEC. They always could be. UEC is a term which has no meaning with respect to the US Constitution, though....it's only reference is the Geneva Convention. >Nothing in that bill protects the citizens from that. It doesn't have to. That's the default position within the American constitution. Congress can suspend habeas corpus when, during the time of war or Rebellion, the public safety requires it. This has occurred once during the history of the US, during the Civil War. This law does not suspend habeas corpus. It defines unlawful enemy combatant, defines alien, and then states what can be done with unlawful enemy combatants. So, this law has next to no impact on the rights of American citizens. A president has declared two Americans unlawful enemy combatants, and the way these declarations have been handled in the courts defines the boundaries of how Bush may restrict the habeas corpus rights of US citizens. In one case, a man was captured on the battlefield fighting for an enemy of the US. The Supreme Court stated that this was reasonable. In the other case, a US citizen was arrested entering the US (technically outside of the US before customs) and the government declared him an unlawful enemy combatant. By the time the case was to make it to the Supreme Court, Bush backed down...and the conservative chief justice that he appointed stated that the court would be watching how this man was treated. As I stated in my correspondence with Rob in this thread, this pretty well sets the boundaries. Americans who fight overseas against US soldiers can be treated like the other soldiers. American citizens who are not so engaged cannot, even if they are declared unlawful enemy combatants. > > > I am confused. What *was* the nature and scope of the attack, other > > > than being a terrorist attack which left approximately 3000 people > > > dead? > > > > The nature of the attack was that it was made by folks hiding among > > the general population, pretending to be engaged in lawful activities. > > Isn't that the nature of *all* terrorist attacks? I am struggling to > think of even one example where the terrorists wore uniforms, or held > press conferences to alert the authorities. I was thinking about previous restrictions on the liberty of Americans during conflicts. When free speech rights were restricted during WWI, and Japanese were interned during WWII, there were no terrorist attacks. > > Contrast this with Pearl Harbor, where > > the attackers were clearly members of the air force of Japan. > > Why? Are you saying that terrorism is the same as war between nation > states? If not, then surely any contrast & compare has to focus on > another terrorist act rather than on Pearl Harbour? > > > The scope of the attack was one that, with bad luck, could have killed > > 50k. > > And the Dec. 13 2001 attack on the Parliament could have taken out the > entire government of India. But it didn't. The bombs on the eve of > Diwali last year could have taken out 30k, but they didn't. The attack > on Sankat Mochan temple in March this year could have taken out 25k, but > it didn't. A lot of terrorist attacks have the potential to take out > thousands of people, and in the immediate aftermath of the attack, it is > only natural to shudder over what might have been, but sooner or later > one needs to get a grip and focus on what *did* happen. > > > Uh uh. Terrorists are never as bad a risk as a Govt intent on > > > stripping rights from its citizens. > > > > The case that the government is intent on stripping rights from its > > citizens has not been well made. There is a lot of hyperbola > > involved. Especially when the word "unprecedented" is used. Since > > 9-11, IIRC, _one_ American out of 300 million has been declared an > > unlawful enemy combatant...and the justification is that he renounced > > his citizenship by fighting with a foreign army against US troops. > > Last I heard, it was two - Hamdi and Padilla. It was, I was mistaken about the citizenship of Padilla. In one case, it was a case of fighting for an enemy army against the US army was considered by the courts to be a renunciation of citizenship. A parallel would be a German who was born while his parents were visiting in the US being captured during WWII. That doesn't seem to be much of a risk for the average citizen The second case could represent a risk. But, Bush backed down before the Supreme Court could rule on this...effectively establishing a boundary. > But basically, it seems to be a difference in perspective, and in the > amount of trust one places in the government. You see it as only one [or > two] such case in the last 5 years, I see it as one case when they > didn't have the authority to do so, and wonder what they will do now > when they *do* have the authority to do so. The law has not changed the authority. One subtlety of US law that you might not be familiar with is the use of precedence to define law. If one reads the US Constitution, one would not see how Bush would think that he could claim so much power because he was commander-in-chief. But, as Gautam informed me, much of this power came from Supreme Court rulings in the latter half of the 19th Century. Lincoln had used the title of Commander-in-Chief to claim an overwhelming amount of power. For example, he had the Maryland legislature arrested on the way to a vote. One has to look at the Constitution upside down and sideways to see that as legitimate power. But, at the same time, that action saved the Union, which he was sworn to protect. The expansion of the powers of the president in his Constitutional role of Commander-in-Chief came from this. This is not the only example. The US government's right to "regulate interstate commerce" has been used to expand the power of the US government vs. the states tremendously. There was an enormous amount of nervousness that an effective central government would collapse when the Supreme Court indicated that it might reverse this, back in the late '80s IIRC. > [I wrote the above almost 2 weeks ago, and since then the Mohammad Munaf > case has come to light - I see that too as a gross violation of Munaf's > rights, and the fact that one of the US military officials actually > claimed to be the Romanian govt's representative doesn't fill me with > confidence that things are proceeding as they ought to] > Looking at this case, it is a very specialized one. A man with dual Iraqi-US citizenship was tried and convicted in Iraq by Iraqi courts. He was held in "coalition jails" run by the US. The US judge who ruled this stated that the fact that the jails were coalition jails meant that the US was not required to apply its own standards to his conviction. A good argument could be made that this was not a good decision, that the US should do a better job of protecting its citizens when convicted in foreign courts. But, a very very narrow precedent is established by this. > With this law, no citizen is left with the protection of habeus corpus. Why? Where does it say "Congress Suspends Habeas Corpus"? Where in US law does it state "citizens declared unlawful enemy combatants shall not have habeas corpus rights? When has the Supreme Court decided this? > Their liberty is now dependant on the say-so of the President, or the > Sec Def. Regardless of how you see it, it *is* a stripping of one of the > most basic rights of the citizens. How? With a Republican President, House and Senate, it would be possible to set up a law that states anyone who votes Democrat be declared "unlawful enemy combatants" It wouldn't mean anything...except that those Democrats would not be afforded Geneva convention rights if found fighting the US Army. > The actual loss of life ~ 3000 > Your estimate earlier in the mail ~ 50k A > It is still far below 'hundreds of thousands'. So what were you saying > about hyperbole, Dan? :) I wasn't stating that this would kill hundreds of thousands....I was referring to the risk seen _before_ 9-11 by the commission that Bob Kerry was on. As far as the 50k goes, utterly destroying buildings that usually house 50k is a lot closer to killing 50k than an attack that didn't come close to that type of destruction. The destruction of the WTC was a fairly massive act. > > To focus this, let me ask one question. What liberties have American > > citizens lost during the last 5 years? > > The habeus corpus. That whole bit about due cause, due process of law, a > speedy trial, ban on hearsay, and a presumption of innocence. Nope...hasn't happened. Those rights are still firmly intact. > > My interest in the bill is focused on how the bill proposes to treat > non-merkins, and I find it quite despicable. Not that I find it a major > concern >- my govt would have to agree to this bill for it to apply in my > country, and any govt which takes such a stupid step wouldn't survive > too long in office. Neither would their agreement last any longer than > it takes to file a PIL in the Supreme Court. Except if the US captured a citizen of India outside of India. Then, India would have the usual recourse when a citizen of one state is captured by the government of another state. If the citizen is captured in the US, they'd have no more influence than the US has when its citizens are arrested in Turkey. > > The law addresses a Supreme Court decision on the trial of aliens who > > were captured outside of the US. Reading the law, this seems clear to > > > me. > > Well, they keep on focusing on the Hamdan case, so your statement is not > a surprise. But it also easily takes care of the problems of Hamdi and > Padilla case. Just because they are US citizens [or, in Hamdi's case, > were] doesn't mean they can't be declared UEC, and then they have to > wait until the Govt figures out who tries them and where. But after this > Bill, no US citizen can approach the courts and ask to be either charged > and tried, or released. Instead, they have to wait for some bureaucrat > or the other to decide what to with them, and when. Absolutely not. This bill doesn't address this at all. The only possible way this can be done is to assume that the law tacitly suspends habeas corpus....and that's a real stretch. The Supreme Court has drawn some fairly clear lines with respect to the rights of citizens...which is how such matters are commonly resolved (although a few cases will fall between those lines). What is unclear is the rights of non-citizens. That is certainly problematic. Dan M. _______________________________________________ http://www.mccmedia.com/mailman/listinfo/brin-l
