RE: We Will Not Be Afraid
Dan Minette wrote: So, the bill states specifically that it's chapter 47 that codifies the procedures for using military commissions to try unlawful enemy combatants. Later in the chapter it says Alien unlawful enemy combatants may be tried. Nowhere does it say that citizens who are unlawful enemy combatants. Citizens can still be declared as UEC, and held indefinitely without any recourse to courts, lawyers, family, and friends. Nothing in that bill protects the citizens from that. I am confused. What *was* the nature and scope of the attack, other than being a terrorist attack which left approximately 3000 people dead? The nature of the attack was that it was made by folks hiding among the general population, pretending to be engaged in lawful activities. Isn't that the nature of *all* terrorist attacks? I am struggling to think of even one example where the terrorists wore uniforms, or held press conferences to alert the authorities. Contrast this with Pearl Harbor, where the attackers were clearly members of the air force of Japan. Why? Are you saying that terrorism is the same as war between nation states? If not, then surely any contrast compare has to focus on another terrorist act rather than on Pearl Harbour? The scope of the attack was one that, with bad luck, could have killed 50k. And the Dec. 13 2001 attack on the Parliament could have taken out the entire government of India. But it didn't. The bombs on the eve of Diwali last year could have taken out 30k, but they didn't. The attack on Sankat Mochan temple in March this year could have taken out 25k, but it didn't. A lot of terrorist attacks have the potential to take out thousands of people, and in the immediate aftermath of the attack, it is only natural to shudder over what might have been, but sooner or later one needs to get a grip and focus on what *did* happen. Uh uh. Terrorists are never as bad a risk as a Govt intent on stripping rights from its citizens. The case that the government is intent on stripping rights from its citizens has not been well made. There is a lot of hyperbola involved. Especially when the word unprecedented is used. Since 9-11, IIRC, _one_ American out of 300 million has been declared an unlawful enemy combatant...and the justification is that he renounced his citizenship by fighting with a foreign army against US troops. Last I heard, it was two - Hamdi and Padilla. 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. [I wrote the above almost 2 weeks ago, and since then the Mohammad Munaf case has come to light - I see that too as a gross violation of Munaf's rights, and the fact that one of the US military officials actually claimed to be the Romanian govt's representative doesn't fill me with confidence that things are proceeding as they ought to] I do not see this as an indication that this government is intent in stripping rights from its citizens. With this law, no citizen is left with the protection of habeus corpus. 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. All the terrorists can do is kill some people and blow up some buildings/vehicles. But, when some approaches hundreds of thousands, then it falls in a different category than the Canary Warf bombings. The actual loss of life ~ 3000 Your estimate earlier in the mail ~ 50k It is still far below 'hundreds of thousands'. So what were you saying about hyperbole, Dan? :) To focus this, let me ask one question. What liberties have American citizens lost during the last 5 years? The habeus corpus. That whole bit about due cause, due process of law, a speedy trial, ban on hearsay, and a presumption of innocence. If other rights have been lost, I guess the American citizens will be keeping track. And if they wish, they might even answer this question. 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. The law addresses a Supreme Court decision on the trial of aliens who were captured outside of the US. Reading the law, this seems clear to me. Well, they keep on focusing on the Hamdan case, so your statement is not a surprise. But it also easily takes care of the problems of Hamdi and Padilla case. Just because they are US citizens
RE: We Will Not Be Afraid
On Behalf Of Ritu I am a bit surprised you don't notice this - the military commissions can only try alien UECs, but the term UEC may well be applied to US citizens. No provision in the Act says that it is applicable to aliens and aliens alone. But it does specifically refer to aliens in the section about habeas corpus. - jmh CONFIDENTIALITY NOTICE: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information or otherwise protected by law. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. ___ http://www.mccmedia.com/mailman/listinfo/brin-l
Re: We Will Not Be Afraid
On 10/20/06, Ritu [EMAIL PROTECTED] wrote: Dan Minette wrote: The nature of the attack was that it was made by folks hiding among the general population, pretending to be engaged in lawful activities. Isn't that the nature of *all* terrorist attacks? I am struggling to think of even one example where the terrorists wore uniforms, or held press conferences to alert the authorities. [...] Ritu Actually, both the ETA and the IRA have been known to alert the media before some of their attacks. In these cases, the goal was clearly terror, not murder. Still the comment stands, terrorism is effective in large part because the authors are invisible, at least until they act. However, terror is also enduced by visibility. Gang colours and criminal biker crests are worn not only to display affiliation, but also to intimidate. Disclaimer: This comment is not in any way an endorsement of the actions of the groups mentioned. Jean-Louis ___ http://www.mccmedia.com/mailman/listinfo/brin-l
RE: We Will Not Be Afraid
John Horn wrote: I am a bit surprised you don't notice this - the military commissions can only try alien UECs, but the term UEC may well be applied to US citizens. No provision in the Act says that it is applicable to aliens and aliens alone. But it does specifically refer to aliens in the section about habeas corpus. Yes, at least in one instance [HC is mentioned in two provisions and the second only says 'person']. But the basic aim declared at the beginning of the Bill, and sections 950b [subchapter VI], 950r and 950x [subchapter VII for both] are vague enough to be used to argue a suspension of Haebus Corpus for citizens if the need arises. If it was my govt I'd be very curious as to why they needed to introduce the concepts of both UEC and Alien UEC. Ritu GSV Suspicious ___ http://www.mccmedia.com/mailman/listinfo/brin-l
RE: We Will Not Be Afraid
-Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ritu Sent: Friday, October 20, 2006 2:52 PM To: 'Killer Bs Discussion' Subject: RE: We Will Not Be Afraid Dan Minette wrote: So, the bill states specifically that it's chapter 47 that codifies the procedures for using military commissions to try unlawful enemy combatants. Later in the chapter it says Alien unlawful enemy combatants may be tried. Nowhere does it say that citizens who are unlawful enemy combatants. Citizens can still be declared as UEC, and held indefinitely without any recourse to courts, lawyers, family, and friends. They can be declared UEC. They always could be. UEC is a term which has no meaning with respect to the US Constitution, thoughit's only reference is the Geneva Convention. Nothing in that bill protects the citizens from that. It doesn't have to. That's the default position within the American constitution. Congress can suspend habeas corpus when, during the time of war or Rebellion, the public safety requires it. This has occurred once during the history of the US, during the Civil War. This law does not suspend habeas corpus. It defines unlawful enemy combatant, defines alien, and then states what can be done with unlawful enemy combatants. So, this law has next to no impact on the rights of American citizens. A president has declared two Americans unlawful enemy combatants, and the way these declarations have been handled in the courts defines the boundaries of how Bush may restrict the habeas corpus rights of US citizens. In one case, a man was captured on the battlefield fighting for an enemy of the US. The Supreme Court stated that this was reasonable. 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. 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. I am confused. What *was* the nature and scope of the attack, other than being a terrorist attack which left approximately 3000 people dead? The nature of the attack was that it was made by folks hiding among the general population, pretending to be engaged in lawful activities. Isn't that the nature of *all* terrorist attacks? I am struggling to think of even one example where the terrorists wore uniforms, or held press conferences to alert the authorities. I was thinking about previous restrictions on the liberty of Americans during conflicts. When free speech rights were restricted during WWI, and Japanese were interned during WWII, there were no terrorist attacks. Contrast this with Pearl Harbor, where the attackers were clearly members of the air force of Japan. Why? Are you saying that terrorism is the same as war between nation states? If not, then surely any contrast compare has to focus on another terrorist act rather than on Pearl Harbour? The scope of the attack was one that, with bad luck, could have killed 50k. And the Dec. 13 2001 attack on the Parliament could have taken out the entire government of India. But it didn't. The bombs on the eve of Diwali last year could have taken out 30k, but they didn't. The attack on Sankat Mochan temple in March this year could have taken out 25k, but it didn't. A lot of terrorist attacks have the potential to take out thousands of people, and in the immediate aftermath of the attack, it is only natural to shudder over what might have been, but sooner or later one needs to get a grip and focus on what *did* happen. Uh uh. Terrorists are never as bad a risk as a Govt intent on stripping rights from its citizens. The case that the government is intent on stripping rights from its citizens has not been well made. There is a lot of hyperbola involved. Especially when the word unprecedented is used. Since 9-11, IIRC, _one_ American out of 300 million has been declared an unlawful enemy combatant...and the justification is that he renounced his citizenship by fighting with a foreign army against US troops. Last I heard, it was two - Hamdi and Padilla. It was, I was mistaken about the citizenship of Padilla. In one case, it was a case of fighting for an enemy army against the US army was considered by the courts to be a renunciation of citizenship. A parallel would be a German who was born while his parents were visiting in the US being captured during WWII. That doesn't seem to be much of a risk for the average
Re: We Will Not Be Afraid
On 21/10/2006, at 8:10 AM, Dan Minette wrote: 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. (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces; or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. 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. What I don't get is how preventing a person from exercising their right to a hearing in court (a *human right*, not an American one) helps anything at all. What I also don't get is how *any* erosion of the Bill of Rights helps make Americans safer. 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. It's the same in the UK (in fact more so, as there is no written constitution) and many other places. It's not a subtlety, it's a feature of most jurisprudence I'm aware of, and I'm sure someone as politically savvy as Ritu is perfectly aware of it. Charlie ___ http://www.mccmedia.com/mailman/listinfo/brin-l
RE: We Will Not Be Afraid
-Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Charlie Bell Sent: Friday, October 20, 2006 8:17 PM To: Killer Bs Discussion Subject: Re: We Will Not Be Afraid On 21/10/2006, at 8:10 AM, 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? 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. But, it's pretty clear from the actions of Bush and the Supreme Court that they don't. If Bush thought there was a real chance he could do this, he would have let the case reach the Supreme Court. What I don't get is how preventing a person from exercising their right to a hearing in court (a *human right*, not an American one) helps anything at all. The example that is often used is the response of AQ to the trial of the first WTC bomber. They learned a great deal about the exact technique the US used to determine the involvement of AQ in that bombing from the court proceedings. As a result, a lot of intelligence dried up. In order to prove guilt, the government had to submit evidence, and make a copy of that evidence available to the defendant before the trial. It seems reasonable to me that there is a tradeoff between security and liberty. I'll give one example. Let's say the police didn't follow proper procedures in getting a warrant, and the warrant they received wasn't sufficient to cover the evidence they found. That evidence, even though it might be sufficient to prove someone guilty of murder...he might get off and be free to kill again because of the screw-up. But, if such evidence is allowed, then the police will be free to go on fishing expeditions, with a limited warrant serving as a basis for an unlimited search. This type of question is one of the tradeoffs that are brought to the Supreme Court. There is a tradeoff involved. What I also don't get is how *any* erosion of the Bill of Rights helps make Americans safer. Well, I think that keeping the folks I know who are members of private militia from being able to buy any weapons they want is a very good idea, even thought they insist it erodes their 2nd Amendment rights. :-) It's the same in the UK (in fact more so, as there is no written constitution) and many other places. It's not a subtlety, it's a feature of most jurisprudence I'm aware of, and I'm sure someone as politically savvy as Ritu is perfectly aware of it. Maybe so, but if so, how could the law of changed anything? Since the US does have a constitution and the powers of the Commander in Chief as they exist today were not clearly expressed in the Constitution, the interplay between precedent and the written Constitution is rather subtle. And, it's strongly debated. So, what I am saying is that, due to the nature of the Constitution and the precedent, the effect of the law is limited...it provides a legal framework for the military court system used to try alien unlawful combatants. The Supreme Court said that those courts Congress must be involved in setting up these courts. This law involves Congress. That's the only important new ground covered by this law. 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.) Can the law be ruled null and void by the courts because it violates the precedence of court rulings? My understanding is that, if Parliament were to pass such a law, there would be no legal reason that courts could declare it null and void. 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. Dan M. ___ http://www.mccmedia.com/mailman/listinfo/brin-l
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, it's pretty clear from the actions of Bush and the Supreme Court that they don't. If Bush thought there was a real chance he could do this, he would have let the case reach the Supreme Court. The new law means there's no review at all. Can't you see how insidious this is? Yes, under most circumstances I'd be inclined to agree that *in practice* it's difficult to use this law to screw a citizen of the USA... but it can stuff a citizen good and true for a couple of years. What I don't get is how preventing a person from exercising their right to a hearing in court (a *human right*, not an American one) helps anything at all. The example that is often used is the response of AQ to the trial of the first WTC bomber. They learned a great deal about the exact technique the US used to determine the involvement of AQ in that bombing from the court proceedings. As a result, a lot of intelligence dried up. In order to prove guilt, the government had to submit evidence, and make a copy of that evidence available to the defendant before the trial. Sure. That's an example, but your country was founded on freedom and liberty. Ben Franklin had something to say about trading liberty for security. It seems reasonable to me that there is a tradeoff between security and liberty. I'll give one example. Let's say the police didn't follow proper procedures in getting a warrant, and the warrant they received wasn't sufficient to cover the evidence they found. That's ok, the rules of admissable evidence have been weakened by this law too... That evidence, even though it might be sufficient to prove someone guilty of murder...he might get off and be free to kill again because of the screw-up. But, if such evidence is allowed, then the police will be free to go on fishing expeditions, with a limited warrant serving as a basis for an unlimited search. This type of question is one of the tradeoffs that are brought to the Supreme Court. There is a tradeoff involved. What I also don't get is how *any* erosion of the Bill of Rights helps make Americans safer. Well, I think that keeping the folks I know who are members of private militia from being able to buy any weapons they want is a very good idea, even thought they insist it erodes their 2nd Amendment rights. :-) It's the same in the UK (in fact more so, as there is no written constitution) and many other places. It's not a subtlety, it's a feature of most jurisprudence I'm aware of, and I'm sure someone as politically savvy as Ritu is perfectly aware of it. Maybe so, but if so, how could the law of changed anything? Since the US does have a constitution and the powers of the Commander in Chief as they exist today were not clearly expressed in the Constitution, the interplay between precedent and the written Constitution is rather subtle. And, it's strongly debated. So, what I am saying is that, due to the nature of the Constitution and the precedent, the effect of the law is limited...it provides a legal framework for the military court system used to try alien unlawful combatants. The Supreme Court said that those courts Congress must be involved in setting up these courts. This law involves Congress. That's the only important new ground covered by this law. ...and Congress has said that it will accept any person defined as a UEC as a UEC. Let's hope
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, thoughit'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
