> -----Original Message----- > From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On > Behalf Of Charlie Bell > Sent: Friday, October 20, 2006 9:52 PM > To: Killer Bs Discussion > Subject: Re: We Will Not Be Afraid > > > 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 their "next friend" can...and this has happened in both cases where a citizen was declared an unlawful enemy combatant. Both cases have been reviewed by the courts. The potential hole in habeas corpus, someone rotting in prison has no chance to petition a court because he can't get to a court has been thought of and dealt with decades ago. The real problem is the 60+ year old precedent that's on the books. > The new law means there's no review at all. I don't think the intent of the law was to remove American citizens who were declared illegal combatants from the US court system. If it was, then the Constitution clearly states that the courts are the ones who will decide if the Congress has the constitutional right to bar them from intervening. ` The precedent we have to decide this isn't as clear as I'd like, because Bush folded his tent rather than let the Supreme Court rule against him. But the fact that the court let Bush know that they'd be watching him closely, combined with Bush withdrawing his case, indicates to me that its pretty clear that declaring an American an IEC does not deprive him of his rights. So, the bottom line is that if the president uses the law, instead of his power as Commander in Chief to declare a citizen an IEC, and then state that the courts can't review this...then this will be reviewed by the courts...just as his previous argument was. Since the Supreme Court offered guidance concerning the role of Congress in setting up military tribunal for alien UEC...and provided different guidance concerning American citizens, the lower courts should be able to work through this rather straightforwardly. >Can't you see how insidious this is? No, because the American legal system doesn't work that way. The real risk is, as it was in 1942, that the Supreme Court will acquiesce. There are two cases where this happened in WWII, to the detriment of liberty, which we've already considered here. > > ...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? I'm definitely pulling for the Democrats to take the House and Senate. They are favored to take the House, and the Senate is up in the air. Going out on a limb, I'm predicting a 50/50 Senate, with Cheney breaking the tie, and a 20 seat Democrat majority in the House. I invite others to go out on the limb with me and take a guess. > > > > 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.) > > > 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. OK, let's look at the restrictions on civil liberty that have been recently passed in the UK. Which have been rendered impotent? > > 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. Sure, both are possible. In the US, new law has precedence over interpretations of old law, but inferior to old interpretations of the Constitution. By the book, judges are expected to use these precedents when deciding cases. By the book, the Supreme Court's latest interpretation of the Constitution is the highest law. Given this, which we all seem to know, why do you think that the latest law, which doesn't suspend habeas corpus for citizens, changes the legal rights of the President from what they were in 2000? The FDR precedent seems to be far stronger and much more straightforwardly applied than this law. Indeed, with respect to the Presidential power to declare citizens enemy combatants, construct tribunals, and execute them on the decisions of these tribunals, the actions of the last 5 years has slightly restricted Bush's power from what the Supreme Court declared FDR's power to be. Dan M. _______________________________________________ http://www.mccmedia.com/mailman/listinfo/brin-l
