He is guilty! The President said so! The Attorney General said so! Have you forgotten the Nixon Doctrine: “If the President does it, that means it’s not illegal.”
Next we’ll be hearing some wild-ass idea like the Bushistas are hyping this up to cover thier inadequacies!
Article one, paragraph three, catch-22: “If the President shall declare a person “bad”, such person is guilty, and no (dirty bomb! dirty bomb!) further consideration of thier alleged rights is needed”.
Thanks for your opinion, minty. It will be interesting to see what the courts decide.
I read through Quirin, and it’s not clear to me whether “unlawful enemy belligerents” can be tried by military tribunal in the situation we find ourselves (which isn’t exactly the issue in the case of Al Muhajir, but it is related, it seems to me). However, it does seem as if a declared state of war isn’t strictly necessary. On one hand, the Court did make a lot of references to the state of war then in existance. For instance:
On the other hand, there are passages such as:
and:
While there was a declaration of war against Mexico, there was none during the time of the Civil War. A number of Confederate officers and soldiers were tried by military tribunal for violations of the law of war. I’m not familar with the legislative history of the Civil War, and there may have been an act of Congress that made the use of such tribunals appropriate that hasn’t been issued by Congress in this case, but the reference to the Civil War (and in the footnotes they list several cases involving Confederate officers who were tried and convicted by military tribunals for “unlawful belligerency”) cleary seems to indicate that military tribunals for “enemy belligerents” are not solely restricted to times where Congress has passed a declaration of war.
I thought this was quite the interesting line:
It may now be necessary, unless Congress has passed legislation dealing with this matter that I didn’t notice.
It does seem clear, that if Al Muhajir is an “enemy belligerent” who has “violated the law of war”, then his being a citizen is irrelevant to how he should be treated.
The question is whether Al Muhajir can be classified as an enemy belligerent given that al-Queda is cleary not an “enemy government”. On that, as well, I’m not sure. We’ll have to see what the courts have to say.
Additionally, it seems to me that many (though certainly not all) of the respondents to this thread are asserting that the government’s treatment of Al Muhajir is unconstitutional without attempting to show why that is within the framework of the legal precedents. In my opinion, that’s not good form.
Which is why we don’t constantly re-vote on the Constitution. How’s it go? Ah yes - “No person shall…be deprived of life, liberty, or property, without due process of law…” Good words.
Once again, the problem isn’t the deprivation of liberty; it’s the due process. We can lock him up and protect our skins while providing him with access to counsel, for instance. Unless the government doesn’t have a leg to stand on in locking him up, in which case Ashcroft made a big fool of himself the other day.
But the government shouldn’t get the idea that they can grab people off the streets with evidence against them that would be laughed out of court. Maybe this guy can’t show that the government has no reason to hold him, but the next guy might be able to. So I want this guy to have counsel handy, so that when they grab the wrong somebody, that guy has someone to make the case for him that he doesn’t belong in jail.
Oh for Christ’s sake, Ashcroft and Bush are bigger dangers than an organization that killed 3000 people on September 11th, several hundred others over the past few years, and are now hoping to detonate radiological weapons in our majors cities?
Your emphasis in that quote is wrong, Amok. It should read as follows:
It does say “and,” after all, not “or.” The lawful vs. unlawful combatants thing only comes into play after you determine whether there’s a state of war. If there is such a war, the president may declare that lawful combatants, like soldiers, are not subject to military tribunal. Unlawful combatants, such as the spies/saboteurs at issue in Quirin, may be detained and tried by the military.
Eugene Volokh discusses it here. (Scroll downo a bit.)
[quote]
[ol][li]Under Ex parte Quirin (1942), enemy saboteurs and spies can be tried by military tribunals, whether or not they are citizens, for violation of the laws of war. Quirin makes a persuasive case that this has long been seen as an exception to various Bill of Rights protections, and that the Framers would not have understood the Bill of Rights as applying to such military crimes.[]At the same time, it’s easy to see the risk of military tribunals, which may operate in secret and dispense with all sorts of other protections, trying people for “sabotage” and “espionage.” []This is why it’s good that the President’s executive order limited military tribunals to noncitizens: []While military tribunals may pose unusually high dangers – in the long-term, not (in my view) now – of suppressing domestic dissent, military detention may pose such dangers, too, even if it’s followed by eventual civilian trial.[]On the other hand, we can’t let even a real risk of the slippery slope down to bad results in the future cripple our ability to protect ourselves against dirty bombs, nuclear bombs, smallpox plagues, and all the other horrors that the enemy may unleash on us. And the sad fact is that our criminal justice system may not be an effective way to deal with saboteurs who are agents of an enemy force such as al-Qaeda.[]What’s more, the risk of the slippery slope is serious, but American history cuts against it, at least as to military tribunals and military detention.[]A possibly relevant, though possibility not relevant, fact: While the saboteurs in Quirin were tried by military courts, those who allegedly helped them – who were not in any meaningful sense enemy soldiers, and were perhaps not in on the plan in the first place, but who allegedly ended up knowingly assisting the saboteurs – were tried by civilian courts; []Might this point to a sensible distinction between people accused of being actual enemy soldiers, and those who were supposedly only helping them, incidentally to their daily lives? []One important question to which I haven’t seen the answer: Will there be some civilian court screening of whether there’s indeed very strong evidence to think that a detainee really is an enemy combatant, and thus properly subject to military detention and perhaps (if he’s a noncitizen, or if he’s a citizen and the rules are changed) military trial?[/ol][/li][/quote]
I didn’t say that I found it unpatriotic; I said that others would so find it.
Sure. And, I expect that to come out of the Habeus Corpus hearing.
Can you cite this editorial? How do you know that they are conservative?
But, it’s likely to work the opposite way. If there are a series of deadly terrorist attacks here in the US, that’s when Constitutional freedoms are likey to be most willingly compromised
To be blunt, I see a lot of robotic thinking. Constitutional protections are vital, but protection against terrorism isn’t simply a matter of following the rules. We’re not bureaucrats filling out a form.
IMHO the right sort of thinking is:
What actions are necessary and appropropriate to deal with this problem?
Are these actions legal and constitutional?
If not, what can we do to find effective actions that are legal and constitutional.
Ashcroft is intelligently beginning at #1. The New York Times is stolidly thinking inside the box, and beginning at #2.
I considered that, minty, and you may very well be right. The grammar question is what is the full clause that “and” implies? Is it just “in time” or is the full clause “in the declared exercise of his powers as Commander in Chief of the Army in time”? Is “in time of war and [in time] of grave public danger” a full condition that must be met, or should we read it as “ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and [in the declared exercise of his powers as Commander in Chief of the Army in time] of grave public danger” (i.e. there were two conditions, he has powers when either is in existance, and he exercised both powers)? The former usage is more common, but the later isn’t unheard of. I don’t know, I think I slept through that class. I looked at the sentance for awhile trying to decide, and ultimately figured it was the later, but I might well be wrong.
My thoughts were that made more sense in the context of the whole opinion, because if the lawful vs. unlawful thing only comes into play during times of war, how are we to explain what happened during the Civil War (when Confederate officers were tried by military tribunal in the abscense of a declared state of war)? Assuming what was done during that time was lawful, then it only makes sense to me if it was a time “of grave public danger” (and that alone is enough) or if the Civil War was recognized as being a (de facto) state of war, and that is sufficient.
What actions are necessary and appropropriate to deal with this problem?
Are these actions legal and constitutional?
If not, what can we do to find effective actions that are legal and constitutional.
Ashcroft is intelligently beginning at #1.*
Personally, I think the most intelligent thing would be to start with #3, that is, consider effectiveness and constitutionality simultaneously, but YMMV. In any case, we’re now intelligently raising the question in #2, in our role as concerned and informed citizens of a democracy. So what’s the problem with that? What was the point of your snide insinuations that we’re simply being lazy, unpatriotic kibitzers who think the War on Terror ™ is less important than the World Cup?
*But, it’s likely to work the opposite way. If there are a series of deadly terrorist attacks here in the US, that’s when Constitutional freedoms are likey to be most willingly compromised *
Well, we’ve already had at least one extremely deadly terrorist attack here in the US, and many of us are not willing to compromise our freedoms on that account. Saying “we shouldn’t protest any government infringements of our freedoms now, because something might happen to make it more difficult to resist them later” is not sensible advice.
I’d explain the Civil War as a state of rebellion, which is certainly something the Constitution contemplates: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Article 1, Section 9, Paragraph 1.
december, none of what yuo just posted explains, even indirectly, why the dirty bomb suspect cannot be held and tried within the ordinary justice system without compromising national security.
rsa, there are already existing procedures to ensure that a criminal suspect can be tried without compromising national security or the security of intelligence sources. Think of all those FBI and CIA spies, for instance. It is simply unacceptable for an American citizen to be detained without charge or trial on the naked assurance of the government that national security demands it. The more I think about it, the more disgusted I become.
How can he get away with saying this? If there were ever a trial, how would you be able to find jurers who would not be prejudiced by this statement?
I’m also worried about the timing of this thing. The guy was arrested way back in May, which I did not know beforehand. The idea that this could happen with no one not knowing for a month is concerning to me. How many other American citizens have “disappeared” in these last few months?
True. However, I think the better question is, “Can he be dealt in the military system in a way that legal and constitutional?” My first priority is preventing and defeating terrorism
Why should the default be to use ordinary justice system? We are dealing with organized terrorists, not ordinary criminals.
Isn’t it funny how some people keep on declaring they’re in favor of a smaller federal government, except when a larger one will help them and their buddies acquire more power?
He has apparently been denied the right to counsel for over a month. He has been detained without charge for over a month. He has been detained without any due process whatsoever for over a month. Clearly, the answer to your question is no.
Yet it worked for the Rosenbergs, and they were researching how to make real atom bombs. I guess the current Al Qaeda scare is just much scarier than the old red scare :rolleyes:
Squink, our policy to keep nuclear secrets out of Stalin’s hands was an utter failure. Thank God, we never had a nuclear war. But, the USSR’s possession of a nuclear arsenal no doubt helped them maintain control of Eastern Europe for 50 years – producing terrible lives for hundreds of millions of people. (Not that the Rosenberg trial was the cause of the failure. The secrets were long-since lost by then. Also, Klaus Fuchs gave the USSR more useful info than Julius Rosenberg did.)
The important thing isn’t the quality of Al Mujahir’s trial; it’s protecting America from terrorist attacks. I hope that we’re more successful now than we were in guarding our nuclear secrets 55 years ago.
BW minty, the WSJ had a neat point. The ordinary justice system is designed to deal with crime i]after it has occurred*. Ashcroft’s challenge is to prevent an attack from occurring in the first place. It’s not surprising that ordinary criminal procedures may not be well-suited for Ashcroft’s purpose.
it’s simply not true that our criminal justice system is only geared to deal w/crime after it’s occured.
Police make routine patrols as a preventative measure. They also do community service presentations on how to best protect yourself from crime to various groups (gee, I get to sit through one tomorrow as a matter of fact).
Personal protective orders are another means to avoiding crime.
the DOJ even spends actual $$ on crime prevention grants etc.
Police will be stationed at large gatherings etc. and increase patrols and visibility on holidays etc. all while announcing the fact.
That’s bullshit and a copout. Why do you keep repeating it if you don’t believe it? Either say what you think or shut up about it, but don’t go around blaming your farts on the dog.
[ul][]Ashcroft’s actions have some precedent. They may or may not be upheld in the Habeas Corpus hearing, but there’s enough support for them so that Ashcroft’s action is reasonable…[]Those who exaggerate this as a civil liberties crisis are behaving foolishly. []Those who analyze and advise on this matter without giving due attention to the purpose – prevention of terrorism – do not deserve to be taken seriously. E.g., the N Y Times editorial page.[]A very few Democrats may be using this accusation for political purposes, which is disgusting. However, this is rare.[/ul]
I don’t give a rat’s ass whether there is precedent or not. Wrong is wrong, no matter how many precedents are equally wrong. The Constitution does not empower any authority, period to abrogate its protections.
All exaggerations are, by definition, foolish. Nonetheless, the prisoner (or detainee, if you prefer) is an American citizen with precisely the same set of rights as Mr. Ashcroft, you or me. The law applies to all, or it applies to none.
“without due attention” same as above.
I’m sure Democrats will appreciate the balm of your amnesty. Let us hope that they continue to emulate the loftily non-partisan attitude of the Pubbies, who so fervently pursue the common weal without even a nod to political advantage.