Dan Minette wrote: > 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.
Sure, and that is why Jose Padilla has been detained, tortured, and kept in custody for more than 4 years now, right? > 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. Well, let's see, what you call 'backing down', I see as a shrewd move to remove the case from the Supreme Court's purview *before* this Military Commissions law could be passed. Since the Supreme Court didn't hear and rule on the case, the current standing judgment on the issue is of the US Courts of Appeal for the Fourth Circuit, and Luttig's opinion clearly states that Bush does have the authority to hold Padilla without any charges. What the Supreme Court did was to allow the govt to transfer Padilla from military to civilian custody, and declined to hear Padilla's appeal from the 4th Circuit Court's decision that the President had the power to designate him and detain him as an "enemy combatant" without charges and with disregard to habeas corpus. Now you may find the Chief Justice's comments about watching the administration satisfactory, I find this entire set of precedents disturbing. Or at least I would if I were an American. Since I am not a US citizen, it is only a matter of academic interest to me. The Supreme Court had the opportunity to strike down this notion of incarcerating US citizens without charges but it side-stepped the issue. And I'd define it as a case of both the Supreme Court and the Administration backing down. Now, with this piece of legislation in place, it would be interesting to see how things work out. > 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. No, the American citizens who are not so engaged can instead be held in military custody for as many number of years as the administration wishes. That is the current precedent. > The second case could represent a risk. But, Bush backed > down before the Supreme Court could rule on > this...effectively establishing a boundary. I don't think you have seriously considered the nature of the boundary that has been established. > > 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. Interestingly enough, for decades if not centuries, you guys have been arguing over the extension of Presidential powers far beyond anything envisioned by the makers of your constitution. New precedents are created all the time, as Charlie pointed out. [Mohammad Munaf case] > 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. Umm, actually, by all reports, he was convicted on the behest of two US military officials, one of whom lied about his credentials. That's specialised all right. > 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. Yep, a very very narrow precedent. So how many American citizens are in Iraq today? A mere 5 or 6, I guess. > > 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? The Supreme Court has refused to say anything on the matter when an appeal was filed on the issue in the court. And the Court of Appeals has already said this. With the Military Commissions Act in place, we will see, sooner or later, what the Supreme Court says about it. Might take years for a case to reach the Supreme Court, but I hope to be around when it does happen. > > 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 way it meant nothing in Padilla's case, and all he lost were his Geneva convention rights... > > 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. Yep. But the number of Indian citizens travelling outside India is still marginal when compared to those who stay within the country. Those who travel are already aware, or at least ought to be aware, that they are not afforded the same rights abroad that they would enjoy within their own country. Charlie has answered some other of your points, and since I do not disagree with him, I'll not mention the same issues. Ritu _______________________________________________ http://www.mccmedia.com/mailman/listinfo/brin-l
