Enemy Combatants: Judicial Qs

I was watching Ashcroft testifying before the Senate Judiciary committee and a few questions came to my mind. He said that under the War Powers Act, the president and the military acting under his command, can detain anyone, independent of nationality, as an “enemy combatant” for an indefinite period of time without a chance for the detained party to make his/her case to an independent body. ( Sen Edwards brought this up). I was wondering …
(1) why such a law exists. Why can’t an independent body hear his/her case in a secure setting? A check to prevent abuse by the military, ensuring that someone other than the military has a voice.
(2) Even though Sen. Edwards seemed to be referring to Gitmo detainees, why was John W. Lindh treated differently and allowed into the criminal justice system? Was the president the determining authority?
(3) If this Act exists, what is the necessity to hold certain enemy combatants off the land of the USA?

Any answers out there?

Why don’t you read the War Powers Resolution for yourself, and then debate?

See http://www.yale.edu/lawweb/avalon/warpower.htm

Ashcroft is blowing smoke out his ass. The Resolution places limits upon the President; it does not grant him new powers.

But, since the media in the USA is too bloody lazy to do any investigative journalism anymore, let alone confront Bush/Cheney/Ashcroft at face value, the media wimps out. I guess they must figure their White House press passes are more important than honest-to-goodness reporting.

I can only speculate as to why such a law exists. However, in general I would say Congress feels the President should be able to prosecute a war in the best manner he (or she) sees fit. In most wars you are likely to end up with thousands of ‘enemy combatants’ being detained. It wouldn’t do to have courts and whoever bringing endless legal suits for this or that reason. Presumably the country’s mind should be focused on prosecuting the war and not distracted by extraneous things.

I think John Lindh was treated differently because he is an American citizen. As Duckster pointed out this law does not abrogate your constitutional rights. Of course, some might point out the treatement of Jose Pedilla who is also an American citizen yet is somehow being held without right to counsel, a speedy trial and all that jazz. Personally I think Pedilla’s case is a scary abrogation of the Constitution yet somehow Bush is getting away with that one. Lindh probably got into the legal system because he was caught relatively early on and the Bush administration probably hadn’t decided to sweep these malcontents under the carpet yet.

Once you are actually in* the US a whole bevvy of rights accrue to you even if you are a foreign national. As a foreigner you don’t get anywhere near the rights enjoyed by an American citizen in the US but you have some rights nonetheless. As long as these prisoners are held off of American soil there is little to know legal recourse for anyone to change the prisoner’s situation. In short, they are being held at the whim of the American government and will be dealt with when and how the American government sees fit and not a moment sooner.

[sub]*–Interestingly along these lines of being IN the US is how the US deal with illegal immigrants. The Coast Guard and police attempt to stop immigrants who come to the US via boat from ever reaching shore. I’ve seen video of these people being tackled in the surf not 20 feet from the beach. If the Coast Guard (or whoever) catches the immigrant before he or she sets foot on American soil they can simply be carted back to their country of origin…simple as that. However, if the illegal immigrant so much as sets foot on the beach then a whole set of legal procedures must be followed to determine whether the immigrant can stay or should be sent back home. As a result you get crazy videos like the one I saw where the Coast Guard does there level best to stop immigrants BEFORE they set foot in the US.[/sub]


Not that it affects the location of the prisoners’ incarceration, but malaria was common among them (per the magazine “Navy Medicine”). They had to be treated and certified malaria-free before being sent to Gitmo, as the malaria mosquito is common in Cuba, but the disease itself was wiped out some long time ago. TB is also common among these, which is why you all saw them and some of the guards wearing those masks that look like bra-cups in the initial footage when they were first brought over.

FWIW, the Navy has at least one Islamic chaplian providing services to its involuntary guests. They get their own Qu’rans, too. (Yes, there are a lot Islamic sailors in the USN nowadays.)

As far as the govt’s authority, the constitution itself states that a writ of habeas corpus can be suspended or somesuch as that. No need for the war powers act business. I think that one of the reasons is that in case of hostilities it is to keep some judge from slapping a subpoena on the president to appear in court, or directiong him to release 500,000 enemy captives, while he is directing the mother of all battles for civilization. WAG, tho.

Duckster, Thanks for the link. This resolution only seems to discuss what powers the President, in tandem with the Congress and Senate has in entering, continuing and exiting hostilities. There is no mention of “enemy combatants” etc which is very surprising as Ashcroft kept referring to this Act as giving the president deference in his/her decisions involving storing away these “enemy combatants”. What was interesting was that in the absence of a declaration of war etc, the President has to submit a report to the House and Senate Foreign Relations committees, and has to continually get their official support renewed every sixty-day period!
Whack-a-mole, The point Sen.Edwards was indeed making was that both foreigners and citizens could be (and are) held without them not only having the right to counsel but without the right to even make a personal case to someone other than those who picked them up, that they are innocent. And, since you pointed out the Pedilla case, it turns out he was correct that the nationality nor location matters which is what prompted my question as to why Cuba was being used. I guess it is much easier to hold a select number on US land bypassing the constitutional rights, than an entire bevy of people. The Coast Guard story was fascinating… So, I guess it can it be concluded that the people held in Cuba are held “illegally”, along with Pedilla and his ilk.
handsomeharry, I assume you are talking with reference to an official war authorized by Congress, where other international treaties would come to bear.

negative. I was referring to the vague constitution. it doesn’t really say anything about circumstances except for war or invasion or something like that. it doesn’t say who can exercise this power. and, of course, given the kind of tricks politicians love to pull, that clause as well as the definition of what constitutes a war can be interpreted any way that they choose. in short, if ashcroft is too popular to have the rug pulled out from under him by congress, and the supreme court isn’t feeling too frisky, it can be interpreted to mean anything that ashcroft says it means. don’t know about the war powers act, tho.

Article 1, Section 9:

Artilce 1 refers to the powers of Congress. However, this is irrelevant since Constitutional rights extend only to US citizens or those in the US, not to foreign nationals not in the US.

To OP question #3:

It would seem to me that by detaining the folks there in Cuba —a country which the US has no relations with— there will be no grief from the local government about whatever is alleged to go on there, or who has authority over the facility.

It also puts Castro in the position of being percieved as pro-terrorist should he decide to make some public case against the detention facility, or pro-US should he come out and support it. Castro’s best bet to save his image is to keep relatively quiet about the facility.

Other than taking the land route into Cuba proper (which because of US-Cuba non-relations is very well guarded on both sides), Gitmo IIRC is pretty much escape-proof. It’s also out of the theater of operations.