I just got around to reading Judge Doumar’s Order (the link is in .pdf format) suspending proceedings. It seems to support the idea that the Department of Justice refused to comply on jurisdictional grounds. The Order says, in part:
It looks to me like DOJ argued jurisdiction then refused to comply when Judge Doumar issued his orders. If that’s the case, then I don’t think they acted improperly.
Anyway, the Washington Post has a story that mentions that the Fourth Circuit has issued a mandate.
This is the only site I found that has the text of the Fourth Circuit’s order:
So we’ll soon find out if the Department of Justice will still refuse to comply. I’m betting they won’t. Now Judge Doumar has to decide whether the declaration the government gave is enough. If not, we’ll have another separation of powers appeal.
Sua, this is not entirely correct. Because the defendant in this situation is techncially an enemy combatant, not a P.O.W., the Executive branch has full legal control over the legal options afforded to him. With the Dept. of Defense, a direct subordinate of the Exec. Branch, is an elaborate court system wherein the accused has little or no rights. As long as these people are not classified as P.O.W.'s, at hich point you can constitustionally question their treatment and trial, the judge has no enforcable options here at all.
As you are all aware, military courts do not even allow for the simple right to remain silent. In the whole Military Court scenario, their is no right to remain silent, and they have been granted powers and authorities to incarcarate or execute.
I would be really interested in finding someone with prior military law knowledge to further speak to these issues, but in their abscence I would advise that you spend some time reviewing the following information:
Please note that the only court entity authorized to review their work is the United States supreme court, not some lowly federal and or circuit judge. So I think this brings us back to the point that was mentioned earler wherein a judge with no authority or jurisdiction summoning you to jury duty in a court he is not recognized in. In this case the judge is not only wrong, but he appears uninformed as well. National security and Military law are not subject to his review, nor is his authority recognized.
Hmm, in clarification, after reading everyones thoughts and feedback I now see the dilemna more clearly. However in the end I suspect that the DOJ is utilizing the information I referenced to claim that the rights of the court in this case should follow the rules set forth in a military trial. This is really most interesting as it brgs the question of:
1.) Should this not be a closed door military trial, as it is eligible to be?
2.) If the President is utilizing the U.S. court system to try a military prisoner which set of rules take precidence?
3.) Who determines the drawing of the line on then Exec. Branch’s right to not submit information that runs contrary to what they deam the ‘The sovereign Security of The United States of America?’
I think the final ruling will be very interesting, because it will set a precident for all future criminal trials as it relates to terrorists. Are they military or U.S. court violators?
Sorry Sua, if I pounced to early, and or did not clarify.
No worries, Chris, and welcome to the Boards. However, you are still wrong.
This
is not a conceded point. The district judge has been asked to rule whether Hamdi has properly been classified as an “enemy combatant.”
In any event, regardless of what Hamdi is determined to be, a district court judge can still impose contempt sanctions for the DOJ’s refusal to obey his orders. As it happens, my discussion here is moot, as (due to Zoff’samazingly helpful links :D), the DOJ’s refusal to obey is premised on what appears to be a proper assertion that the 4th Circuit never relinquished jurisdiction and handed it back to the district court.
Is anyone able to explain to me what the difference is between an enemy combatant in US custody, and a prisoner of war?
Without any knowledge of the nitty gritty of the subject, I would have thought that the very definition of a prisoner of war was an enemy combatant that you have captured.
What am I missing? Does anyone understand the DoJ’s arguments in this respect?
I think when they’re saying “enemy combatant,” they mean"illegal enemy combatant," a combatant that doesn’t fit the definition of a soldier or legal combatant (Though I could be wrong, I’m not psycic ). Terrorists openly fighting soldiers on the battlefield would most likely quallify as “illegal enemy combatants,” as they do not fit the generally accepted definitions. The Taliban troops seem more questionable, closer to regular soldiers. Thinking about it, I would have to point out if the US declares the Taliban troops to be illegal combatants, it would be quite hypocritical after sponsoring the northern alliance soldiers, which seem to be at about the same level of legitimacy.
And declaring terrorists arrested off of the field of battle, even US citizens, to be illegal combatants, without supplying any more proof or evidence than “because we say so” seems to be setting a precedent that I really don’t like (But that’s a matter for a different GD thread).
I can’t remember the requirments for legal combatants, unfortunatly.
