Time to Kiss Habeas Corpus Goodbye

[kaylasdad99]

@Bricker

Exactly. The fact that a statement was made under torture is highly relevant in a trial against the accused torturer.

Thank you for the response, Bricker. I’m going to trouble you for one more, if I may.

@Bricker

Stop trying to use our criminal process, with its multitude of protections for the accused, to handle battlefield detentions. They are two different beasts meant for two different situations.

Is the mere fact that a detainee is in the custody of our military enough to establish that the circumstances surrounding his incarceration amount to a “battlefield detention”?

If so (IYO), I would appreciate your reasoning for accepting this construct.

If not, I would appreciate learning your opinion on what tests must be satisfied to establish that a detainee’s presence in the custody of the military is the result of a battlefield detention.

'Cos ISTM that, given your demand above, “battlefield detention” needs to be established before a military tribunal may legitimately begin to assess the lawful combatant/unlawful combatant status of the detainee.

Thank you for your time.

[Bricker]

@David Simmons

Probably not, but If you were in the military you know that kangaroo court justice isn’t at all unheard of and not all that uncommon. If you get to a formal Court Martial your situation is improved as to having a set of rules. I must say though, that I’ve always been suspiction about the results of a court martial brought by a base commander and tried by a panel responsible to the base commander and with a defense counsel who was provided by the base commander. I know that the JAG’s do their best to be independent by there comes a point when your whole carrer can depend upon the wishes of a martinet. Yes, you can appeal up the chain of command but the bias of higher command is toward the commander in the absence of nearly open and shut evidence to the contrary.

Well, you’re perfectly entitled to that point of view.

But to have outrage over this proposal now, when the same compliants apply to our own servicemen and women, AND ALWAYS HAVE, seems a bit alarmist.

[Bricker]

@jayjay

And the actual evidence of such is…?

*Charges and specifications against an accused in a military commission under this chapter shall be signed by a person subject to chapter 47 of this title under oath before a commissioned officer of the armed forces authorized to administer oaths and shall state–

`(1) that the signer has personal knowledge of, or reason to believe, the matters set forth therein; and

`(2) that they are true in fact to the best of his knowledge and belief.*

[Kevbo]

@Hamlet

From In Re Quirin:

… our Government has recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry…

(bolding mine)

What percentage of gitmo detainees ever set foot on US territory?

[Bricker]

By the way – I have bemoaned in the past the tendency of many on this board to demonize their opposition. This thread is a good example of that.

The view I’m defending is held by sixty-five of our nation’s 100 senators, including ten Democrats.

You may certainly disagree with the wisdom of the view, and claim yours is a better approach for all sorts of reasons.

But no – it’s the Only Good View. Mine is Evil. It’s motivated by a lack of decency, by mindless allegiance to the Bush administration, or by outright evil. And that outright evil is so pervasive that it’s shared by 65 senators, 10 from the minority party?

Wow. Think maybe that your view of utter evil or complete lack of decency is maybe the one that’s wrong?

[RTFirefly]

@Bricker

I agree that Padilla’s detention was improper. However, he has now been indicted, so his detention NOW is proper.

True. But my point in bringing up Padilla wasn’t his ongoing detention, but the site of his capture.

They’ve been (a) outside our national borders;

See above.

and (b) involved with blowing things up, either directly or as part of a group conspiracy.

Oh, really? Seems that in the case of a hell of a lot of our Gitmo detainees, there was no evidence to back that up.

So in the actual history of such things, you’re wrong on both counts, and therefore in this absurd notion that every detainee is an enemy as well.

Now, is there anything in the new statute that requires either (a) or (b) to be true before someone is detained as an Unlawful Enemy Combatant?

[vibrotronica]

“Personal knowledge.” Like the personal knowledge W. had there were weapons of mass destruction in Iraq? That was true to the best of his knowledge and belief, but really, factually wrong. So if W. just “knows” with his “personal knowledge” that I am in al Qaeda, he can declare me an enemy combatant and put me in a military prison and I will have absolutely no access to the courts to prove that I am not in league with al qaeda, but am instead a political opponent of the President. That’s the road we’re headed down, Bricker. Will you defend me when that happens? No, you won’t, because you won’t ever know I’ve been disappeared and couldn’t get me in front of a judge even if you did know. Sound like America to you?

This legislation is absolutely disgusting and un-American. And I am disgusted that anyone is defending it who is not a paid employee of the Torture Party.

[kaylasdad99]

@Bricker

By the way – I have bemoaned in the past the tendency of many on this board to demonize their opposition. This thread is a good example of that.

The view I’m defending is held by sixty-five of our nation’s 100 senators, including ten Democrats.

You may certainly disagree with the wisdom of the view, and claim yours is a better approach for all sorts of reasons.

But no – it’s the Only Good View. Mine is Evil. It’s motivated by a lack of decency, by mindless allegiance to the Bush administration, or by outright evil. And that outright evil is so pervasive that it’s shared by 65 senators, 10 from the minority party?

Wow. Think maybe that your view of utter evil or complete lack of decency is maybe the one that’s wrong?

I’d like to hope that my personal conduct in this thread has been courteous enough to merit continued attention to my posts, and responses to the questions I’ve posed.

[Shayna]

@Bricker

But no – it’s the Only Good View. Mine is Evil. It’s motivated by a lack of decency, by mindless allegiance to the Bush administration, or by outright evil. And that outright evil is so pervasive that it’s shared by 65 senators, 10 from the minority party?

Yes, as a matter of fact. Might does not make right, and all that.

[Bricker]

@RTFirefly

True. But my point in bringing up Padilla wasn’t his ongoing detention, but the site of his capture.

Right, and I’ve agreed that capturing Padilla in the borders of the US and then subjecting him to this process was not appropriate. We’re not going to be doing that any more.

See above. Oh, really? Seems that in the case of a hell of a lot of our Gitmo detainees, there was no evidence to back that up.

People get arrested by the cops. Sometimes there turns out to be insufficient evidence, and the cops have to let them go.

Why is this different?

So in the actual history of such things, you’re wrong on both counts, and therefore in this absurd notion that every detainee is an enemy as well.

Now, is there anything in the new statute that requires either (a) or (b) to be true before someone is detained as an Unlawful Enemy Combatant?

Well, the Second Circuit’s decision in the Padilla case certainly goes towards (a)'s end, doesn’t it? And as for (b), again:

*Charges and specifications against an accused in a military commission under this chapter shall be signed by a person subject to chapter 47 of this title under oath before a commissioned officer of the armed forces authorized to administer oaths and shall state–

`(1) that the signer has personal knowledge of, or reason to believe, the matters set forth therein; and

`(2) that they are true in fact to the best of his knowledge and belief.*

[Bricker]

@Shayna

Yes, as a matter of fact. Might does not make right, and all that.

What sort of evidence might be used to convince you that you’re wrong, then? (Not ultimately wrong as to the merits, but wrong in the supposition that the opposing view is utterly without reason, utterly evil.) No matter how many people tell you you’re wrong, that’s not evidence. So what is?

[vibrotronica]

@Bricker

By the way – I have bemoaned in the past the tendency of many on this board to demonize their opposition. This thread is a good example of that.

The view I’m defending is held by sixty-five of our nation’s 100 senators, including ten Democrats.

You may certainly disagree with the wisdom of the view, and claim yours is a better approach for all sorts of reasons.

But no – it’s the Only Good View. Mine is Evil. It’s motivated by a lack of decency, by mindless allegiance to the Bush administration, or by outright evil. And that outright evil is so pervasive that it’s shared by 65 senators, 10 from the minority party?

Wow. Think maybe that your view of utter evil or complete lack of decency is maybe the one that’s wrong?

Torture is wrong, immoral and evil. How have you talked yourself into believing it isn’t? Habeus corpus is one of the bedrock principals of our country. It’s part of the reason we think we’re better than everybody else, because the government can’t just arbitarily seize someone and hold them for an indefinite period of time. “Disappearing” them. If you want to deny that right to a person, any person, you’re wrong and you’re un-American. These are principals people like David Simmons fought wars to uphold, and you want to flush them down the toilet for a moment’s political advantage. Or maybe not for a moment’s political advantage. After all, how hard would it be to unseat a ruler who can detain and torture at will? That’s what this is about, Briker. It’s about the choice between democracy and tyranny. Which side are you on?

[Bricker]

@kaylasdad99

I’d like to hope that my personal conduct in this thread has been courteous enough to merit continued attention to my posts, and responses to the questions I’ve posed.

yes, it has. And I’m trying.

But look how many people I have to respond to, here.

[Bricker]

@vibrotronica

Torture is wrong, immoral and evil. How have you talked yourself into believing it isn’t? Habeus corpus is one of the bedrock principals of our country. It’s part of the reason we think we’re better than everybody else, because the government can’t just arbitarily seize someone and hold them for an indefinite period of time. “Disappearing” them. If you want to deny that right to a person, any person, you’re wrong and you’re un-American. These are principals people like David Simmons fought wars to uphold, and you want to flush them down the toilet for a moment’s political advantage. Or maybe not for a moment’s political advantage. After all, how hard would it be to unseat a ruler who can detain and torture at will? That’s what this is about, Briker. It’s about the choice between democracy and tyranny. Which side are you on?

We have never extended habeas corpus rights to captured POWs before, have we? It’s a bedrock principal of our criminal justice system, yes. And I am not for a moment suggesting we change that. But it’s not, and has never before been, a bedrock principal of our battlefied detentions. So why do you claim it has been?
And how do you get from any of this that I am defending torture? This thread is about the habeas provision of the tribunal process.

[Bricker]

@vibrotronica

“Personal knowledge.” Like the personal knowledge W. had there were weapons of mass destruction in Iraq? That was true to the best of his knowledge and belief, but really, factually wrong. So if W. just “knows” with his “personal knowledge” that I am in al Qaeda, he can declare me an enemy combatant and put me in a military prison and I will have absolutely no access to the courts to prove that I am not in league with al qaeda, but am instead a political opponent of the President. That’s the road we’re headed down, Bricker. Will you defend me when that happens? No, you won’t, because you won’t ever know I’ve been disappeared and couldn’t get me in front of a judge even if you did know. Sound like America to you?

It sounds very similar to America, yes, because here in America, you can be arrested if the arresting officer has probable cause to believe you committed a crime. Even if his probable cause turns out to be really, factually, wrong.

Are you outraged over this, too?

[elucidator]

Excellent! I am so reassured. Well, somewhat. Not being a lawyer, I am forced to rely on my somewhat dim capacity for reason and upon the forthright, non-partisan opinions of such as yourself.

So, what this says is: if Achmed Poorshmuck is dragged off the streets by bounty hunting warlords and turned over to US authorities with the definitive statement “Here is Achmed Poorschmuck, Number Three Bigdeal Al-Queda leader, where’s my money…” that would certainly not qualify Achmed P. for treatment as a “battlefield detainee”? That wouldn’t fall under than rather nebulous qualification “or reason to believe”?

Perhaps you could further reassure us by limning the strict limitations on that phrase “or reason to believe”. That it doesn’t include anything so vague and nebulous as “The Leader says so!”. Yes, that would be good.

[Bricker]

@vibrotronica

“Personal knowledge.” Like the personal knowledge W. had there were weapons of mass destruction in Iraq? That was true to the best of his knowledge and belief, but really, factually wrong. So if W. just “knows” with his “personal knowledge” that I am in al Qaeda, he can declare me an enemy combatant and put me in a military prison and I will have absolutely no access to the courts to prove that I am not in league with al qaeda, but am instead a political opponent of the President. That’s the road we’re headed down, Bricker. Will you defend me when that happens? No, you won’t, because you won’t ever know I’ve been disappeared and couldn’t get me in front of a judge even if you did know. Sound like America to you?

This legislation is absolutely disgusting and un-American. And I am disgusted that anyone is defending it who is not a paid employee of the Torture Party.

By the way – what is this “absolutely no access to the courts” business?

Have you even read this legislation? Have you?

Please answer this question. Have you read the proposed legislation - yes or no?

[Bricker]

Ok, everyone – I have not the time or the patience to debate the particulars of a piece of legislation with a group of people who seemingly, based on their utterly ignorant statements, have not even read it.

If you haven’t read it, then stop spewing your idiotic opinions about what it says here. Go read it.

[Bricker]

@elucidator

Excellent! I am so reassured. Well, somewhat. Not being a lawyer, I am forced to rely on my somewhat dim capacity for reason and upon the forthright, non-partisan opinions of such as yourself.

So this means — what? You’ve read it, but didn’t understand it? Or you’ve read summaries at dailykos, and now aren’t sure if you got the whole story?

So, what this says is: if Achmed Poorshmuck is dragged off the streets by bounty hunting warlords and turned over to US authorities with the definitive statement “Here is Achmed Poorschmuck, Number Three Bigdeal Al-Queda leader, where’s my money…” that would certainly not qualify Achmed P. for treatment as a “battlefield detainee”? That wouldn’t fall under than rather nebulous qualification “or reason to believe”?

That statement, without more, would not.

Perhaps you could further reassure us by limning the strict limitations on that phrase “or reason to believe”. That it doesn’t include anything so vague and nebulous as “The Leader says so!”. Yes, that would be good.

Normal rules of statutory construction. Couple hundred years of common law says so.

[elucidator]

Objection! Counsel is buggering the witness! What…oh, really?..hmmm, thanks.

Objection! The Leader is buggering the Constitution, and counsel is weaseling the witness…what, still not right?..Damn, all those Perry Mason reruns, I was sure…ok, ok! so whats the real wording…“badgering the witness”? Badgering? Badgering? We don’t need no steeeeeenking badgering!