On 11/23/2013 3:42 AM, Telmo Menezes wrote:
On Sat, Nov 23, 2013 at 5:00 AM, meekerdb <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> 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?
Only one, I think, but it ruined the paragraph. Sorry.
"...certain fundamental rights are not being upheld is bureaucratic
impediment,..."
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
Of course "aiding" said organizations can be defined as anything that
goes against the government's wishes. Especially when we have to take
the Government's word on even the existence of such organisations.
You are assuming the government (prosecutors) get to redefine words so that "aiding" can
mean anything. But once you assume that, then no law has any meaning. Anyway you are
wrong. Judges and juries and even military tribunals are not all stupid or tools of
despotic Presidents or lackeys of corporatism. You so readily make those assumptions
implicitly; but you don't see that if true then you are already living in 1984. Do you
really think this is dystopia? Are you afraid the CIA will have you assassinated for you
opinions?
that have taken up arms against the U.S. and
only for the duration of the war against Al Quida and the Taliban.
How can a war against an undefined enemy and with undefined goals ever
stop? Can you imagine a scenario where the government says: "ok guys,
we won the war on terror. Well done everyone, it's over". And the
sailors kiss their girlfriends in Times Square and everything goes
back to normal.
No, and that is certainly a problem. But it's not a problem of violating the Constitution
or other laws - it's inherent in the form of conflict.
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.
Yes, but they redefined what an "enemy soldier" is and also what "wartime" is.
No, they are following the international rules of war, which recognize that a person who
openly carries a weapon and is part of a fighting organization should be regarded as a
soldier. This definition was included to cover the now common form of war in which an
internal organization fights against the nominal state.
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.
Right, this one is just a violation of the Universal Declaration of
Human Rights, namely article 5:
"No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment."
I assume you don't need me to link photos?
You are mixing the fact that people are held at Guantanomo with people being mistreated.
The two are not the same. The latter is certainly wrong and illegal even under U.S. law -
and Obama ordered it stopped. The former is only problematic because of the nature of a
war by terrorist: it has no definite end and not definite nation of origin.
I agree that they should be tried, but the use of a military tribunal is
certainly not unconstitutional.
He was not forced to sign the NDAA by bureaucracy (he
might have been forced in other ways, but here we get into pure
speculation). It was fully within his powers not to sign it or to
demand changes;
Demanding things of Congress doesn't necessarily get them (particularly when
the House is controlled by the Republicans).
So what? He didn't even try.
You don't know whether he tried or not. You only know he didn't try to go over the heads
of Congress and appeal to the electorate - which would not have worked.
- Harm is a very subjective word. If the Supreme Court was interested
in upholding fundamental rights, it could easily interpret loss of
fundamental human rights as harm;
The point is that the people who were plaintiffs in the case weren't harmed.
According to some convenient definition of harm, where losing money is
harm but losing rights is not.
The reporters who brought the case had not lost any rights. And the prisoners in
Guantanomo, as enemy soldiers, never had any right to a trial. Notice it cuts both ways.
If they are soldiers who have been captured then the law says they can be held until the
end of hostilities and must the then be released. If they are criminals then they can be
tried for murder or accomplices to murder and possibly executed. So, as their lawyer, do
you really want to argue that they should be charged with a crime and tried?
- The bureaucratic impediments seem to work mostly in a direction of
loss of freedom. Empirically, it does not look plausible that they are
just neutral attrition -- they prevent Guantanamo from being closed,
they allow for total surveillance, they allow the Federal Government
to go after marijuana businesses that were authorised by their states,
they allow for "free speech zones", they allow for random road check
points and so on;
- The constitution is the highest law. If people were serious about
following it, they couldn't possible let some lower level law get in
the way. It's a truism that anything that prevents the application of
constitutional principles is unconstitutional, and a lot of people in
the USA swore to defend the constitution.
And they are. You are just assuming that it says what you think it should
say, instead of what it actually says.
If you redefine certain common words like "enemy" or "war" you can go
around any constitutional provision.
So are proposing that we call people like the 9/11 attackers "friends" and their actions
"peace"?
Brent
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