> -----Original Message----- > From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On > Behalf Of Ritu > Sent: Saturday, October 21, 2006 12:48 AM > To: 'Killer Bs Discussion' > Subject: RE: We Will Not Be Afraid > > > 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.
But, a case could be made that he had no real choice. He had to follow Supreme Court precedent. http://www.law.uchicago.edu/tribunals/wp_011302.html This was a very unfortunate Supreme Court ruling...akin to the ruling that allowed Japanese to be interned. That later ruling was, fortunately overturned. The precedent provided by this ruling had not been used for about 60 years, before Bush used it (maybe twice, but definitely once.) Given that we agree on > 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. Saying that the case no longer had standing, because the habeas corpus rights were allowed. That's certainly not a good ruling, but the ruling that stands is the Supreme Court ruling of 60+ years ago. My guess is that Roberts, as most Supreme Court justices now are, didn't want to overturn a previous court ruling. But, by saying that he would watch things, he did give notice that he would do it if Bush pushed things. > 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. If it was a precedent, I would agree. But, the precedent has existed for many decades already. > 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. No, the Supreme Court said it would intervene if need be. This pushes the boundary back from what it was from '42 to '05. > > 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. They are usually created in gray areas. The biggest extension of Presidential power was from 1860-65. The second biggest one was from 1932-45. With the exception of pushing the button, no president from Truman on had FDR's power. After Nixon's excesses, presidential powers were reduced ~1974-80. Bush was the first president since FDR to use the Supreme Court precedent of '42. This is problematic for a number of Americans, including a number of conservatives. But, the precedent for it is well established in law. What we need now are laws and Supreme Court rulings that firmly move the boundary back from where the Supreme Court set it in '42. But, the law we've been discussing really has little to do with this. Dan M. _______________________________________________ http://www.mccmedia.com/mailman/listinfo/brin-l
