Hayabusa Rider
Admin Emeritus & Elite Member
- Jan 26, 2000
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I don't see where the ruling referred to any POWs. These people were scooped up not in a war zone, but in other nations. POWs were caught and held with the expectation that they would be released at the end of whatever war. Since "the war on terror" is a construct and not a war proper, there is no end.
The effect of your position is that anyone anywhere can be captured and held forever, and it never needs a resolution. The government has the right to imprison people forever without demonstrating a need.
That's spooky.
Haven't been a big BHO fan but is it possible that once in the big chair.
You meet face to face with the facts and the reality of situations like this.
Facts and reality that are louder then your rhetoric, louder then your ideaology, and louder then the price of alienating the far left wing (many of whom hang out here) of your party?
You meet face to face with the facts and the reality of situations like this.
Facts and reality that are louder then your rhetoric, louder then your ideaology, and louder then the price of alienating the far left wing (many of whom hang out here) of your party?
Or it could be caving to the pressure that might be getting applied by all the lobbyists, ex-military, and defense contractors, and all the neo-cons.
My guess is equally valid as your guess.
Fern
Elite Member
- Sep 30, 2003
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We're beyond the ruling, he's invoked inalienable rights. We're not even talking about the US Constitution now.
The effect of your position is that these people should be afforded the rights and status of someone charged with a crime, and that military rules are irrelevant.
If so, that would mean that we (in the USA) can go into other soverign countries, arrest non-US citizens for crimes they committed abroad and try them in court.
I don't see how that's less 'spooky', nor do I see how it's any more appropriate than military type rules under these circumstances.
So, the problem is neither set of rules fits very well.
For those who wanna treat this as a criminal law type matter how do you properly gather evidence in a battlefield environment? How do we respect the chain of custody for evidence? What about forensics? Are soldiers to now be turned into police and sworn in under the courts (as police officiers are - they are sworn officers of the court)? How to reconcile the fact that one group is under the executive branch and the other under the judicial branch? I don't see how or why, the courts should have domain over soldiers who belong under the exec branch, or why police who belong under the courts should be commanded by the military under the exec branch. That has so many fundamental Constitutional defects/problems I don't see how it can be resolved.
Is it a good idea to fight wars, non-traditional/asymmetrical wars, via lawyers? We'll be paying for both sides' lawyers too. Does that make sense? On a per-person basis I bet we end up spending more time in the courtroom than the battlefield. That makes no sense to me.
The military has proceedures to determine if these people should be held, but people on your side of the debate want the judicial system lording over them and micro-managing this stuff on a case-by-case basis. Must our troops and officiers make themselves available for court testimony - all the way through the process (appeals and all) as the police must do? Do we really want our soldiers traveling back and forth and hanging out in courtrooms and all that entails?
Is the judicial branch supposed to micro-manage the military which is under the Exec branch? Is there a Constitutional problem/conflict there?
If terrorists will continue to fight on 'forever', why should they be released? Lets say it's not 'forever', but rather it's a matter of time and we just don't know how long before it's over - does that mean we must release them? If so, why? We've never known when any other conflict, even traditional ones, was gonna be over until, well, it was over. We didn't release prisoners then. Why should that change now?
Sure everybody wants 'justice' and 'fairness'; who really wants to keep some innocent goat herder locked up? No one. But have you guys thought this through with any level of detail?
Our judicial system is said to prefer letting 10 guilty get away in order to ensure that not one innocent gets locked up; is that how you fight an asymmetrical war and have any hope of winning? What of the cost in American lives for our troops?
As in all things, there won't be a perfect system but trying to turn this situation into some kind of criminal process is about as imperfect as it gets IMO.
Unless their attack, like 911, is over here I don't want our courts clogged up with this, nor do I want I our prisons over here filled with these foreigners who didn't break any US laws over here. I prefer the military handle it and I don't believe they have any (irrational) desire to imprison innocent goat-herders either.
Fern
BudAshes
Lifer
- Jul 20, 2003
- 13,986
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[bill hicks]/"I'll show you politics in America right here, 'I believe the puppet on the right shares my beliefs.' 'Well, I believe the puppet on the left is more to my liking.' Hey, wait a minute, there's one guy holding up both puppets! 'Go back to bed, America, your government is in control. Here's Love Connection, watch this and get fat and stupid. By the way, keep drinking beer.'"/[bill hicks]
Well Fern, it's way way way less spooky. Currently we go into sovereign countries, arrest non-US citizens for crimes they committed abroad, and throw them into jail forever with no trial. Adding a trial to the whole procedure seems to be a huge step in the less spooky direction to me.
You're furiously battling against a straw man here. (good job defeating it!) Nobody is suggesting that we take every person we pick up in Afghanistan and pack them off to a courtroom, people are saying that we can't hold these guys forever without any means by which to contest their detention, you know... habeas corpus.
You're furiously battling against a straw man here. (good job defeating it!) Nobody is suggesting that we take every person we pick up in Afghanistan and pack them off to a courtroom, people are saying that we can't hold these guys forever without any means by which to contest their detention, you know... habeas corpus.
jonks
Lifer
- Feb 7, 2005
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No, the US commanders couldn't give you a date certain for defeat of the Axis powers in WWII, but they could certainly tell you that when Germany was defeated and/or surrendered, that the war would be over. How does the WoT end? (hint: never)
The fairly obvious difference here is that traditional wars are capable of having an end. A "war on terror[ists]" will NEVER end. There will always be some terrorist somewhere. Using such a conflict to define your detention policies results in indefinite and likely permanent detainment. Not allowing such detainees any recourse is irresponsible when permanent detainment is the likely outcome.
Fern
Elite Member
- Sep 30, 2003
- 26,907
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Well is it HC or not? If it is it means court.
Habeas Corpus:
Or (definition from another source):
[q}a writ of habeas corpus ad subjiciendum is a summons with the force of a court order addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person; if not, the person shall be released from custody
[/quote]
You wrote:
I wasn't under the impression they were "arrested", but captured. And not for "crimes" but fighting.
How is it a US crime for some Afgan tribesman, in Afganistan, to fight US troops over there? If it were to be, that would be 'spookier' to me. I don't like the principal you guys advocate. Surely if the USA can pick up Afgani's in Afganistan for doing something over there, somebody oughtta be able to do likewise here - pick us up for doing something over here that they think violates the law of their (foreign) country.
Fern
Same apples, Fern.
'Detainees' are held in another sovereign country (Afghanistan as opposed to Cuba) under the 'effective control' of the US gov't.
What folks find 'spooky' is that the *Gov't* is free to snatch folks up and imprison them with no recourse without the writ of habeas corpus.
Not only does this 'implode' the US Constitution it violates the primary tenet of the Magna Carta by disallowing an appeal against unlawful imprisonment.
I'm not defending the Bad Boys of Bagram but they cannot be held in limbo indefinitely as 'enemy combatants'.
Fifty percent or more of them may well be guilty of physical crimes against humanity.
It's the folks who are held for 'thought' crimes that's spooky ...
Hayabusa Rider
Admin Emeritus & Elite Member
- Jan 26, 2000
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Fern, I have yet to be shown how someone in Thailand can be fighting us in the battlefield of Afghanistan. To remove a non combatant from a third country IS a legal issue.
Let me ask you this. Suppose the Chinese suspected you of being in sympathy with people opposed to their government, and had you taken captive. By your standard you ought to have no legal recourse, because the Constitution doesn't apply. In other words, nations can do whatever they want and law needn't apply. Moreover, they have the implicit right to do just that. It seems there isn't a lot of difference between despots and democracies in this case.
Let me ask you this. Suppose the Chinese suspected you of being in sympathy with people opposed to their government, and had you taken captive. By your standard you ought to have no legal recourse, because the Constitution doesn't apply. In other words, nations can do whatever they want and law needn't apply. Moreover, they have the implicit right to do just that. It seems there isn't a lot of difference between despots and democracies in this case.
Fern
Elite Member
- Sep 30, 2003
- 26,907
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I don't understand the Thailand thing either. That would seem to me to be a criminal/legal matter and not military, but I'm not aware of details, or for that matter, any info on it.
To be clear, we're fighting wars in Afganistan & Iraq and IMO if they come over to fight it's a military thing. (Not civilian courts). I don't understand where our military gets off nabbing people in Thailand? Unless I hear some compelling argument to the contrary as far as I'm concerned you get nabbed in Thailand you're in a court system (not military).
If the Chinese picked me up over here, violation of my civil/constitutional rights. I'm a US citizen in the USA.
If they get me while I'm in China, Chinese law applies unless, perhaps, there's a treaty override.
Fern
Fern
Hayabusa Rider
Admin Emeritus & Elite Member
- Jan 26, 2000
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That's been my chief complaint. We aren't talking taking fighters and holding them, although at some point we'll have to deal with that. For now the issue is about people captured in areas other than Afghanistan or Iraq, and being swept into Afghanistan so we can say they have no rights.
Doesn't seem quite right, does it?
Doesn't seem quite right, does it?
Fern
Elite Member
- Sep 30, 2003
- 26,907
- 174
- 106
No, not necessarily the same apples, I say that because the court went to great lengths to create an argument that the (unique) lease on GITMO granted US courts jurisdiction there. Nor was this GITMO case based upon Constitutional rights, rather it was a federal statute section 2241 dealing with HC.
The ruling was based, in part, on the earlier HC cases of Ahrens v. Clark and Johnson v. Eisentrager:
So, we start from the proposition that HC is extended ONLY to US citizens, or non-citizens within the US court's jurisdiction (because of the way the court interpreted the GITMO lease US jurisdiction was held to be over GITMO).
That case that ruled GITMO (non-citizen prisoners) had HC rights was Rasul v Bush:
The above quotes are from wiki.
The below quote is from the SCOTUS opinion:
While I had created a similar post but lost it when my PC crashed (and I'm too tired to re-do the whole again), the above is the most succint cite from the opinion that explains why the unique GITMO lease worked to extend juridiction of federal statute 2241, and thus HC, to those non-citizens in GITMO.
So, unless these other bases have similar leases those non-citizens prisoners may well be denied the to writ of HC.
However, I do note that there is some basis in this opinion for finding non-citizens in foreign prisons get HC regardless of any unique GITMO-type lease. The majority opinion seems to say that statute 2241 does NOT require that the non-citizens be under US jurisdiction, it says the custodian of the prisoners is the one who must be under US jurisdiction. Now it's not clear at all that a US military commander in Afgan or Iraq would be subject to the US courts. It is mentioned that the courts don't always have jurisdiction over troops, particulary in a place of war (that was not relevent to the GITMO case, Cuba is not involved in the war).
However, if HC is extended to all non-citizen combatants abroad the SCOTUS shares my concerns I posted above:
Cliffs: I'm unsure of whether the prisoners in Bahgram etc get HC, I'm equally sure that no one else really knows either. The Rasul case is quite odd and a seeming departure from established precident, yet denies doing so (presumably leaving all cases in play for any future HC challenge). Weird stuff.
Fern
[/quote]
Well actually currently we are justifying our indefinite detention because we are saying these people are in fact fighting illegally, which would imply it was a crime to fight in the manner they are doing it. So, if you don't like this principle then by all means talk to our government. I certainly hope you change their minds.
A habeas corpus proceeding is far far far different than the courtroom proceedings that you referenced in your previous post. They have almost nothing to do with one another. Do you realize just how low the bar is for habeas review?
Obama really has no other choice - at a minimum it buys a little time in the search for a permanent solution.
At best it helps protect the grunts who are complicit in the crimes of their 'superiors' ....
At best it helps protect the grunts who are complicit in the crimes of their 'superiors' ....
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