On 21/10/2006, at 12:00 PM, Dan Minette wrote:
This would seem to exclude citizens. However, it actually doesn't,
because if you are declared a UEC because you have been deemed to
have provided material support to terrorists (say you'd rented an
apartment to the 9/11 hijackers), then you are one until you can
challenge it in a court... oh. Now you can't, until the Government
says you can.
Why not? Where in the law does it say that habeas corpus has been
suspended?
In a bit you already quoted. If you are declare a UEC, habeus corpus
has been suspended.
“(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--
`(A) is currently in United States custody; and
`(B) has been determined by the United States to have been properly
detained as an enemy combatant or is awaiting
such determination.”
Now, if you can show me where it states that citizens lose
their habeas corpus rights if they are declared an unlawful enemy
combatant,
then I'd get worried and upset.
It doesn't. But what it allows is for a citizen to be declared a UEC.
But they're a citizen, and can show they're not covered by the law!
Great! They can show their passport to the judge! When they get a
judicial review... which *they're not entitled to* if they're
declared a UEC... They're illegally detained (as citizens aren't
aliens) BUT CAN'T APPEAL TO THE COURTS to prove this...
But, it's pretty clear from the actions of
Bush and the Supreme Court that they don't. If Bush thought there
was a
real chance he could do this, he would have let the case reach the
Supreme
Court.
The new law means there's no review at all. Can't you see how
insidious this is? Yes, under most circumstances I'd be inclined to
agree that *in practice* it's difficult to use this law to screw a
citizen of the USA... but it can stuff a citizen good and true for a
couple of years.
What I don't get is how preventing a person from exercising their
right to a hearing in court (a *human right*, not an American one)
helps anything at all.
The example that is often used is the response of AQ to the trial
of the
first WTC bomber. They learned a great deal about the exact
technique the
US used to determine the involvement of AQ in that bombing from the
court
proceedings. As a result, a lot of intelligence dried up. In
order to
prove guilt, the government had to submit evidence, and make a copy
of that
evidence available to the defendant before the trial.
Sure. That's an example, but your country was founded on freedom and
liberty. Ben Franklin had something to say about trading liberty for
security.
It seems reasonable to me that there is a tradeoff between security
and
liberty. I'll give one example. Let's say the police didn't
follow proper
procedures in getting a warrant, and the warrant they received wasn't
sufficient to cover the evidence they found.
That's ok, the rules of admissable evidence have been weakened by
this law too...
That evidence, even though it
might be sufficient to prove someone guilty of murder...he might
get off and
be free to kill again because of the screw-up. But, if such
evidence is
allowed, then the police will be free to go on fishing expeditions,
with a
limited warrant serving as a basis for an unlimited search.
This type of question is one of the tradeoffs that are brought to the
Supreme Court. There is a tradeoff involved.
What I also don't get is how *any* erosion of the Bill of Rights
helps make Americans "safer".
Well, I think that keeping the folks I know who are members of private
militia from being able to buy any weapons they want is a very good
idea,
even thought they insist it erodes their 2nd Amendment rights. :-)
It's the same in the UK (in fact more so, as there is no written
constitution) and many other places. It's not a subtlety, it's a
feature of most jurisprudence I'm aware of, and I'm sure someone as
politically savvy as Ritu is perfectly aware of it.
Maybe so, but if so, how could the law of changed anything? Since
the US
does have a constitution and the powers of the Commander in Chief
as they
exist today were not clearly expressed in the Constitution, the
interplay
between precedent and the written Constitution is rather subtle.
And, it's
strongly debated.
So, what I am saying is that, due to the nature of the Constitution
and the
precedent, the effect of the law is limited...it provides a legal
framework
for the military court system used to try alien unlawful
combatants. The
Supreme Court said that those courts Congress must be involved in
setting up
these courts. This law involves Congress. That's the only
important new
ground covered by this law.
...and Congress has said that it will accept any person defined as a
UEC as a UEC. Let's hope there's a big shift in Congress in a couple
of weeks eh?
Let me ask a question about the UK legal system. Let's say Parliament
passes a law that prohibits the criticism of the government during
a war,
and that the House of Lords approves it (IIRC, they can still
reject a bill
once by sending it back to the House of Commons, but I may be wrong
about
this.)
Twice (more precisely, for two sessions). If it passes the Commons a
third time, the Lords has no veto.
Can the law be ruled null and void by the courts because it violates
the precedence of court rulings?
To an extent.
My understanding is that, if Parliament were to pass such a law,
there would
be no legal reason that courts could declare it null and void.
The courts have greater powers of interpretation. While it's hard for
an Act of Parliament to be struck down by the Law Lords, it can be
rendered impotent by the courts through precedents.
In the US,
they could. Further, they could, and often do, rely on precedence in
interpreting the constitution to do so. That's the sort of subtle
interplay
that I didn't think was clear to non-Americans.
It's perfectly clear. But that doesn't mean that new interpretations
can't be made, and new laws generated.
Charlie_______________________________________________
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