On 11/22/2013 11:06 PM, Jason Resch wrote:




On Fri, Nov 22, 2013 at 11:00 PM, meekerdb <meeke...@verizon.net <mailto:meeke...@verizon.net>> wrote:

    On 11/22/2013 5:38 AM, Telmo Menezes wrote:
    On Thu, Nov 21, 2013 at 7:51 PM, meekerdb<meeke...@verizon.net>  
<mailto:meeke...@verizon.net>  wrote:
    On 11/21/2013 1:50 AM, Bruno Marchal wrote:

    On 20 Nov 2013, at 22:20, Richard Ruquist wrote:

    Chief Supreme Court Justice Marshall usurped the Constitution
    when he maintained that the Supreme Court had the right to rule
    laws made by Congress and signed by the President unconstitutional.
    As a result the USA is essentially ruled by the Supreme Court

      There is no provision in the US Constitution for this right.
    Congress instead has the right to regulate the Supreme Court,



    The supreme court has judged the NDAA 2012 anti-constitutional. But
    apparently this has changed nothing. I don't find information on this. Some
    sites on this  have just disappeared.


    It changed nothing because it didn't happen.  First, the NDAA authorizes the
    defense budget and other things.  The Supremes would not have found it
    "anti-constitutional".  The controversial provision you may be thinking of
    was clause that affirmed the Presidents power to detain people without trial
    as set out in the 2001 resolution following the 9/11 attack.  The ACLU has
    challenged this provision and a case was brought in 2012, Hedge v Obama.  A
    district court ruled that the indefinite detention provision was
    unconstitutional and gave an injunction against its use.  This went up
    through the layers of appeals courts.  The Supreme Court threw out the
    injunction on the grounds that the plaintiffs lacked legal standing to bring
    the case - and so in effect upheld the law without actually ruling on
    whether or not it is constitutional.

    This is an aspect of U.S. law inherited from English law, that only persons
    who are actually harmed by a law can challenge it in court.  More modern
    democracies, seeing the importance of the U.S. Supreme Court in being able
    to nullify unconstitutional laws, have explicitly provided for court review
    of laws without there having to be a plaintiff and a case.
    Brent,

    I would say you're making an implicit extraordinary claim here. This
    claim being that the reason why certain fundamental rights (like the
    right to a trial) are not being is bureaucratic impediment, as opposed
    to these impediments being created for the purpose of preventing the
    application of said rights in practice.

    ?? Left out some words?


    I argue that this claim is extraordinary for the following reasons:

    - The President signed the NDAA. He also swore to defend the
    constitution and he's supposed to be a constitutional expert, so it is
    not likely that he is not aware that citizens have a fundamental right
    to a trial.

    The controversial clause of the NDAA only applies to citizens who have 
taken up arms
    or aided organizations that have taken up arms against the U.S. and only 
for the
    duration of the war against Al Quida and the Taliban.  So you are confused 
on
    several counts.  This is what the 6th amendment actually says:

    /"In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and
    public trial, by an impartial jury of the state and district wherein the 
crime shall
    have been committed, which district shall have been previously ascertained 
by law,
    and to be informed of the nature and cause of the accusation; to be 
confronted with
    the witnesses against him; to have compulsory process for obtaining 
witnesses in his
    favor, and to have the assistance of counsel for his defense.//"/

    Note that it refers to a criminal trial.  An enemy soldier captured in 
wartime is
    not a criminal.


It becomes problematic when the "war on terror" has no defined end, no defined enemy, and is global in scope, making the whole world into a battlefield.

Indeed, it's not like wars contemplated in laws, including international law. But it's not like a criminal enterprise either.

It is the same stretching of laws that enabled the US to implement concentration camps of Japanese Americans by creating "exclusion zones" around military bases that were hundreds of miles in range of the military base, or the idea od "fourth ammendment free zones" which extend hundreds of miles from national borders, and impact 2 out of 3 Americans: http://blogs.computerworld.com/privacy/21805/2-out-every-3-americans-lost-fourth-amendment-protections-dhs

It may be legal under some stretched interpretation of the letter of a law, but certainly not under the spirit of the law.


I recently learned that the "/In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,/" is not actually upheld. The Supreme Court has ruled this right does not exist for crimes that have a sentence of less than six months in prison. I guess they don't know how to interpret the word "all".

I think you have left out important qualifications.  Do you have a case 
citation?


      Second, it clearly refers to crimes committed in a state or district of 
the U.S. -
    not Afghanistan or Iraq.  So it is not at all unconstitutional to deny a 
trial to
    those captives in Guantanomo.


It is against the declaration of independence, which holds that human rights (including the right to not be deprived of liberty without due process of law) apply to all people, not just Americans.

Actually the 6th amendment does apply to all people charged with a crime in the U.S. It doesn't say anything about "citizen". But the Declaration of Independence is not a law and never was intended to be one.

Have you heard that the US has recently restored the practice of prison ships ( http://www.theguardian.com/world/2008/jun/02/usa.humanrights ) to further obscure the presence, number, and conditions of such prisoners?

      I agree that they should be tried, but the use of a military tribunal is 
certainly
    not unconstitutional.


What would you say if things were reversed, e.g. U.S. soldiers were captured and tried by a military tribunals of Afghanistan, or perhaps worse, held indefinitely without any trials at all? The concept of prisoners of war may make sense in a conventional war (between nations), but not a war without an entity with which you can establish peace with and conclude the war.

Exactly why it is a problem. But you can't conclude from the lack of national enemy that you have no enemies or that the people who are fighting you are just guilty of crimes (is firing a rifle in Aghanistan a crime?) and should be tried in civil court. So one logical (though not humane) solution is to hold them indefinitely, e.g. till they're to old to fight. After all war is generally inhumane.

Trying opposing combatants for committing the crime of fighting against your own combatants is also not very sensical.

A trial to determine whether or not a person was a prisoner of war or an innocent who got turned in as an enemy by some Afghan warlord is not non-sensical.

Brent

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