I have no reason to doubt the integrity of the military judiciary, I’m questioning whether the detainees will ever see a judge. Does the law provide for a speedy trial? What is to keep the government from holding a person for 20 years and never be brought before a judge? What is the time frame the the government must bring forth a charge?
Can this law provide a loophole with respect to your right to a “speedy trial”? I didn’t see anything in the text to specifically define any sort of timeframe for the trial.
If one can argue that the 6th amendment doesn’t apply to these cases, then we’ve got a problem. I honestly don’t know if that is a reasonable argument or one that would be laughed out of court.
If the government’s adherence to the 8th amendment banning cruel and unusual punishment (for example, waterboarding) is any indication, I wouldn’t trust them to adhere to the 6th either.
My dear Martin,
I would be quite happy to know that there are good solid built-in reasons why the above scenario would be extremely unlikely to play out.
What might those reasons be? Does a person who is only (so far) hypothetically an unlawful combatant alien retain all rights until proven to be an unlawful combatant alien, and only then subjected to the attenuation of rights?
How the hell can you prove you’re NOT an “unlawful alien enemy combatant” or whatever WITHOUT Habeaus Corpus? As Olbermann so brilliantly pointed out-all they have to do is pull you off the street and accuse you-and since you don’t have any rights, good luck proving them wrong!
Oh, and just a request to Cratylus-3-you don’t have to hit “Enter” after you reach the end of the line-it will automatically space your text correctly. No big deal, just a little friendly request. Welcome to the Dope!
EVERY person who considers him or herself an American should be up in arms about this. What’s the good of fighting for our freedoms if those freedoms are no longer available?
Other than trial?
For pete’s sake, people. It’s right there in the statute. All you have to do is read bullet point number 1 in the Library of Congress’s executive summary (which Martin Hyde provided in the 4th post of this thread), and you’ll see where it provides for the trial of alien unlawful combatants.
And yes, there’s a possibility that everyone will break this law and violate your Constitutional rights and you’ll be kidnapped in the dead of night and whisked away into a George Orwell novel.
But that would not be because of this law; it would be in spite of this law (and many other laws). In fact, this law was intended to address the exact concern that you’re raising now.
It would also require violating a number of other laws and rights. And it would require violating logic, since it would require a President who wants to lock you up for no reason, and who is obtaining no benefit from locking you up, but who is still willing to spend millions of dollars and burn huge amounts of political capital to ensure that you’re locked up forever. And it would require that hundreds or even thousands of other people are willing to go along with the President’s scheme to lock you up for no reason. And it would require there to be no government leaks (ha ha) through which others could find out about the people locked up.
And here’s a little tip: any time you find yourself typing the words “Olbermann” and “brilliant” in the same sentence, it may be a good idea to check yourself for blunt trauma to the head. The guy is quickly finding his niche as the left’s Rush Limbaugh.
And in what time frame are you guaranteed a trial in front of a “military judge”? This should be explicitly spelled out, especially in the light of the behaviour of this current administration, who is argued in the past for the necessity of torture, and has chosen to interpret current laws (e.g. adherence to FISA) in controversial ways, to chip away at limitations on the power of the executive branch to monitor citizens without overview by those other pesky branches of government like the judiciary.
Are you saying, Cheesesteak, that you approve of the law as currently written?
I find it hard to understand or justify that some of the basic protections of law (the right to appeal your imprisonment?) should be so blithely dismissed in the case of people just because they happen to be born on the other side of a river or an ocean. Citizenship of a particular country should not be a determinant for the applicability of a human right.
(Universal Declaration of Human Rights, Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.)
Same question to you as to Cheesesteak: in what time frame?
A reasonable time under the circumstances.
You lost me here. It doesn’t require the president to do anything. All it would take would a rogue agent or two and inattention on the part of those above him. Do you think the overlords at Gitmo ever say “Hey, now. Why is prisoner #418 here, anyway?” Once you’re in and out of the reach of anyone that cares about you, there are no guarantees that you’ll ever see a judge. It wouldn’t take millions of dollars or a vast conspiracy- just a squalid cell in Gitmo and the barest amount of food along with a small number of government agents.
The right to appeal your imprisonment hasn’t been blithely dismissed. It’s in the statute under “Trial Procedure” and “Post Trial Procedure and Appeal of Military Commissions.”
The protections of the US Constitution haven’t just been blithely dismissed. They don’t apply to foreign people located in foreign lands under basic principles of law, which have been developed over thousands of years. Foreigners located in foreign lands are no more entitled to our Constitutional rights than they are subject to our penal codes, which is expressly forbidden under the Geneva Conventions. And the rights guaranteed to US citizens were not made part of the Geneva Conventions, I’m sure for very good reasons.
And of course there’s the small matter of this being applicable only to alien unlawful combatants. So these people weren’t merely born on other side of the river. They have also acted in a manner inconsistent with the Geneva Conventions (or other applicable law), which were designed to protect non-combatants. These folks aren’t merely victims of geography. It’s their actions and defiance of laws that makes them subject to these provisions.
And these people are given a full equality to a fair and public hearing by an independent and impartial tribunal, etc.
And are you satisfied with the way the law is written? You think that this is sufficient to trust the government (thinking back on the interpretation of laws by this current administration) to guarantee that people will not suffer unreasonable periods of detention without trial?
As I mentioned later on, it appears that there is no time frame spelled out in this law. Not being a legal scholar, I have zero clue as to whether or not it is typical or unusual to have no mention of a timeframe for trial in legalese like this.
I know the 6th amendment provides for a “speedy trial” but I don’t know how that applies or doesn’t apply to these trials. If the 6th does apply to these trials, then the timeframe is covered, as much as it’s covered in any other sort of criminal trial. If the 6th does not apply, and no other laws provide for timeframe, then this is a gaping loophole.
Cheesesteak, you agree then that the right of habeas corpus is one that should be reserved to American citizens arrested on US soil, and it’s OK to deny it to permanent residents arrested on US soil?
The Olbermann quote you posted referred to the shadowy, evidently evil organization called “them.” I interposed the President, since I thought it was obvious that he was talking about his administration. Who would you prefer that I put as the actor in my argument?
Gitmo isn’t run by a half dozen soldiers. There are seven detention camps within Camp Delta (at Gitmo). They are guarded, maintained, and run by hundreds (if not thousands) of soldiers. Those soldiers rotate in and out of Gitmo regularly, so however many soldiers are there now is just a small portion of the soldiers that have and will work there. Those soldiers are overseen by dozens (if not hundreds) of people in the civilian and military branches. If you’re a prisoner at Gitmo, I assure you that more than a few people are aware of you.
Plus, the “them” would have to find some way to get you to Gitmo. So someone would have to kidnap you from your home in the US. And they’d have to transport you covertly down to Gitmo (again, if anyone knew they’d kidnapped you, they’d likely report it to someone who would sue in Court, and that would blow up the whole conspiracy theory we’re working on). And then they’d have to convince the military to allow you into Gitmo, despite the fact that you obviously haven’t arrived by the ordinary, military channels.
And then they’d have to convince the military personnel to keep you there, despite the fact that you clearly weren’t captured in a foreign country, you’re an American citizen, and when they question you, you obviously don’t know anything about anything. And Gitmo has been releasing people for some time now, so they would have to come up with some convincing reason for why they can’t release you.
And they’d have to come up with some way to keep the military from trying you while you’re down in Gitmo. So they’d presumably have to come up with some reason why you’re name should never get selected for trial, and why the law doesn’t apply to you.
And, of course, someone would have to be willing to do all these things to you for no apparent reason. And all of these people would have to be willing and able to do these things in such a way that no one else ever finds out about them. No one reports these things up the chain of command, or to a civilian oversight committee, and the military manages to keep you safely harbored away from the Red Cross’s periodic visits.
And yes, I do think the military personnel at Gitmo ask why certain prisoners are there. It’s the job of certain military personnel to know that the prisoners are there, who they are, why they’re there, how long they’ve been there, etc. And it will presumably be someone’s job to make sure that each prisoner gets a trial.
But even if we accept that all of the above is possible – and it is possible, although it doesn’t cross the line by much – then the big question is how you would change the laws to protect against these things happening? How would you write the law differently so that it protects against the law being violated?
As I type, there’s a discussion about to begin on CSPAN at U. of George Washington on the treatment of detainees, and no doubt on the Constitutional aspects of same.
It has just now begun
Pretty simple: Repeal the law just passed. Or pass a new one that states that habeus corpus applies to everyone in US custody. I’ve yet to see the compelling reason to deny this.
No. In fact, I’m sure some people will probably suffer periods of detention without trial that are later found to be “unreasonable.” But that’s a violation of the law, and it’s not something that I think will happen lightly or without consequences.
So I think there will probably be slip-ups, but I am satisfied with the way the law is written. And it’s not based solely on trust, but based on the fact that violations will have consequences.
And I don’t agree that this administration has a track record of ignoring the law. Any more discussion will constitute a hijack, so I’ll leave it at that.
We don’t know who’s guilty, or who isn’t. How could we? What evidence would suffice, if we were to apply even a rough version of due process? Sgt. Jones captured Achmed Taliban with an AK-47, smoking, in his hand. Achmed states, for the record, “Its a fair cop, but Society is to blame.” What percentage of detainees meet such a standard? Given that an unknown and never-to-be-released number of detainees were turned in for bounty, what evidence is possible?
The other rub on that is that some of the detainees are guilty, but the evidence to charge them with is just as flimsy and hearsay as the evidence for the innocent! Rather a bad choice, that: knowingly incarcerate the innocent because you simply can’t distinguish them from the guilty.
We have already released a lot the “lambs” - those we have slammed up who simply cannot be guilty, by any stretch of the imagination. Sooner or later, we are left with the conundrum of seperating out the sheep from the goats. Keeping in mind, I emphasize, that we very probably could not convict even the guilty, were we to use the sort of standards we expect in our own courtrooms. Where would we find witnesses, after these years? What physical evidence could possibly still exist, with what confidence?
We are stalling. Period.
Everyone? Even POWs under the Geneva Conventions?
The reason I’d argue against it is impracticability. If every time we capute a soldier in a war, the soldier can petition the courts for habeas corpus, then:
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The courts would be flooded with such requests in times of war. Seriously. Flooded. According to Wikipedia, in World War 2, 300,000 German soldiers became POWs … after one battle.
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The requirement would be ridiculously burdensome for the military. First, the military would be required to keep detailed records of witnesses and events leading to capture. Someone would have to perform field interviews for these records, which would require taking soldiers out of the field of battle to perform interviews (“Did you see this guy on the battlefield? What did you see him do? Did you see him captured? Who captured him?” Etc. Multiply by 300,000).
Second, the military would be required to pull soldiers out of battle to provide testimony at the habeas corpus hearings. Since habeas corpus hearings are usually held shortly after the petition is filed, that would mean that we’d have to pull soldiers out of the field during ongoing missions, and then fly them back to the US to have a hearing before an American court. All that would have to occur within a few days of receiving notice of the habeas corpus hearing.
And someone has to retrieve these soldiers. Presumably, these would be other soldiers. So we’re drawing even more soldiers out of the war.
Those soldiers are likely trying to win a war. So the already great burden (finding them, picking them out of the field, flying them back to the US, having them appear at the hearing, hoping they remember the defendant and the circumstances of his capture, then flying them back out the field, and hoping that the interruption hasn’t blown the op … which it almost certainly has) is multiplied by the fact that these appearances make it less likely that we’re going to win the war.
But then again, you don’t have to believe me. You can believe every country in the history of the world, none of which have ever extended habeas corpus to POWs. And I don’t believe any federal public official has ever endorsed extending habeas corpus to POWs. I believe it is almost universally rejected.