Arguments like Bricker’s are the reason for my total distrust of conservative legal types. They make all the pretext of objectivity and respect for the law, but when prodded by partisan feelings, they’ll wipe their butts with the Constitution itself in a heartbeat.
OK, now I’m comfused, does this new law REQUIRE such a determination or not? If we HAVE to and there are sufficient procedural protections in place to insure that these are not rubber stamp courts but real courts of justice, then we get close enough to satisfy the constitution.
The habeus issue will always be at least a little disturbing when the prosecutor, judge and jury all come from the same branch of government.
If we can repeal constitutional amendments, we can repeal this law. When we become convinced that we will no longer be subjectd to terrorist attacks on our soil, we’ll basically go back to being Americans again.
It’s pretty simple. Every legal analyst I’ve read on this (pro and con) says the same thing.
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**Non-citizens ** can be detained without judicial review indefinitely. No determination about their status need ever be made. In fact the goverment doesn’t even need to determine whether it thinks they’re enemy combatants, and it can keep them in an eternal state where that determination is still being made. There are certain review procedures in place should the government decide to charge them with war crimes, but there’s no reason why the government would ever want to do that for most detainees.
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**Citizens ** can also be detained as enemy combatants, however they do have the right to habeas corpus review - i.e. they have the right to stand before a judge and challenge their determination as an enemy combatant. This does not amount to a trial however and they can also be detained indefinitely without charges or trial.
The definition of an enemy combatant is vague, and amounts to whatever the government deems “material support” to the enemy or directly engaged in hostilities against the U.S. or its allies. As you can imagine that can be pretty much anything the government wants it to be. And again, at no point is the government required to bring you to trial to prove that you’re doing either of these things.
‘Should’ means ‘must’ in this case. Refer to the copy of the GC Bricker cites.
The determination is to be made by a ‘competent tribunal’. I believe the Supreme Court has rejected the argument that the President or executive can sit as the ‘competent tribunal’ and certainly not after the fact.
The situation so far. Because of the GC obligation to treat all people concerned as POW and the decision not to, there has been an overt and planned breach of the Convention by the President and more junior members of the executive. The definition of ‘war crime’ becomes interesting at this point.
Hence the need to re-define the laws concerned, after the facts and conduct.
Secondly, POW is a heavily protected class of persons. From memory, such persons can only be subject to tribunals or military commissions which are the equal of the detaining power’s system for trial of its own soldiers.
So you see the legal bind. The questions are:
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Does the US adhere to the GC now?
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If yes, what does it do with the fact that none of the detainees can be convicted under the system of tribunal / military commission which the GC mandates?
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If no, is the US prepared to wear the facts that a) its own soldiers are no longer entitled to GC protections and b) that serious breach of the GC - as contemplated - falls within the GC definition of ‘war crimes’.
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if no, what is the value of ‘convictions’ obtained pursuant to the Kangaroo courts Congress has enacted. Bearing in mind, the likelihood that the SC will again strike them down as unconstitutional.
Unless I’m misremembering, Bricker, as a strict constructionist, largely regards the phrase “substantive due process” as a term of art that has the effect of being detrimental to the valid interpretation and application of the Constitution.
This is not a comment on the merits of your post. But, if I am right in my recollections, the invocation of substantive due process is not going to give your argument much traction with him. Just FYI.
As always, I welcome correction/clarification from Bricker on any of his positions that I have misstated or garbled.
He has a document in his hand with their names on it?
Can somebody tell me just what it is we’re still defending anymore?
Oh, yeah. “They hate our freedoms”. We’re protecting ourselves from people who hate our freedoms. I keep forgetting.
Remember, folks, the less freedom you have, the safer you are.
Forgive a completely non legal eagle like me from speaking up here, but I thought this bill didn’t effect American citizens. Or is this a case of “they came for the non-citizens, and I didn’t speak up…”?
Seems to me that any fillintheblank that amounts to “they came for Somebody Else, and I didn’t speak up” would carry the same cautionary validity, wrt our freedoms, don’t you agree?
Did you bother to read what the **ICRC **sez about the detainees? Look back one page- but here is a sample:’*Those persons detained outside of a situation of armed conflict have rights enshrined in a number of other bodies of law, such as international human rights law and relevant provisions of domestic law. The ICRC has adopted a case-by-case approach to qualifying situations arising from the “global war on terror” as an armed conflict or not and believes that the status of detainees should be determined based on the relevant rules. There are currently two broad strands of legal thinking: according to one, detainees in the “global war on terror” are all criminal suspects and should be treated as such. According to the other, they are all prisoners of war and should be treated as such. The ICRC does not share either of these views. It is clear that States may also detain persons for imperative reasons of security."
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That may be. (As you can tell, I haven’t posted much.) But if there’s no such things as substantive due process, we can throw out a whole slew of Constitutional protections that we take for granted. Parents no longer have the right to homeschool children, interracial marriage can be banned, gay and lesbian folks can be arrested for physically expressing their love, married (and unmarried) folks could be prohibited from getting access to birth control, etc.
AFAIK, that’s true, never mind that the Constitutional protections it purports to limit apply to “*all * persons”.
You may not be aware that Bricker’s views on that subject are pretty far from the mainstream, and for good reason. He’s quite radical about dismissing pretty much the entire body of jurisprudence we’ve built up since the Civil War. Do not by any means accept his preferred interpretations of the law or the Constitution as definitive, or even honestly considered. They will invariably ignore the simple fact that SDP is in fact integral to our legal culture and body of precedents no matter his desire that it were not so. That’s been pointed out to him in very plain language a number of times, however without apparent effect.
To be fair, Constitutional law is a playground for the cerbrally over-burdened. What at first glance appears straightforward and direct becomes, in talented hands, a convoluted greased-earthworm-cluster-fuck that would give a Jesuit theologian a blazing headache.
The Devil famously quotes Scripture, he can quote Plessy v. Ferguson to his own ends as well.
We’ve been over substantive due process bit before. I can’t speak for Bricker but my impression is that he believes that rights are granted by the Constitution and I say that couldn’t be wronger.
The people start out with the right to do whatever they please. As time goes by societal frictions require that some of these original rights must be curtailed. For example you must not shoot a gun in a crowded place. Stuff like that.
The Constitution is a document that enumerates the powers that the people have granted to the federal government in order to bring about the itemized list in the Preamble.
James Wilson of Pennsylvania, a signer of both the Declaration of Independence and the Constitution, argued against the inclusion of a Bill of Rights as being uneeded. The people have all rights and need no dispensation from the government for them. Furthermore, he argued, a list of rights in such a Bill would necessarily be incomplete and those rights that aren’t on the list would be presumed as not protected. And, as a matter of fact, that is what has happened in spite of the 9th Amendment.
The idea of Constitutional rights, I believe, is a hangover from the time when the sovereign had all the rights and granted some of them to his or her subjects.
Some people simply can’t move past the 18th centtury in some things.
I really don’t think the issue of Congress removing habeas rights from detained prisoners has anything to do with substantive due process. Habeas has its own Constitutional basis in Article I, Section 9; and it’s application to foreign entities, or the constitutionality of suspending habeas for “enemy combatants” has no SDP implications that I can see.
To wit, "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. " Perhaps that exception includes invasion *by * us, not just *of * us?