The Farce of the Enemy Combatant

Zebo

Elite Member
Jul 29, 2001
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Right when the cases get to the SC steps, Bush is allowing the interned to have lawyers to defuse the cases and prevent rule by the SC. Obvious he knows he's screwing over the constitution on the two US citizens detained without due process/habus corpus.

Then you have the little matter of enemy combatants which have to fall under US juristiction or the geneva code who are stuck in no mans legal limbo... if you value justice at all... and quaint notions like innocent till proven guilty...these guys hav'nt even been charged in over 2 years.

IMO they should fall under US Jusistiction according to the 14th amendment:

" Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ..."

Question does the first subsection, being specific to citizens alone, and the subsequent conditions explicitly relate to ANY PERSON, not "any citizen"?


Anyway this whole story below is a very sad state of affairs for this country IMO.

The Farce of the Enemy Combatant
The Bush Administration is under a considerable amount of pressure regarding its policy of indefinitely detaining people ? American citizens or not ? without charge, access to attorneys or legal recourse. The administration is currently detaining at least two American citizens at a US Navy brig in South Carolina and is detaining hundreds of foreign nationals ? including citizens of allied nations ? at its facility in Guantanamo Bay, Cuba. An additional number of suspected al-Qaeda members are being detained at Diego Garcia, the British-owned military base.

Many of these detainees have been held for two years now without charge. They have been held without access to attorneys. And, most importantly, they have been held in contravention of the laws and customs of war.

A number of legal and diplomatic challenges to the Administration's detention practices have been lodged over the past nearly two years, and it seems that the Administration is finally listening ? if only because a case regarding its detentions has made its way to the Supreme Court.

The Boston Globe reports today that the Bush Administration "mounted its full defense" of its power to detain "enemy combatants" yesterday. The arguments are taking place before the Supreme Court.

The case before the court is whether or not Yaser Esam Hamdi, an American citizens, should be allowed access to an attorney. Hamdi has been detained for two years by the Department of Defense, ever since he was captured on the field of battle in Afghanistan. Yaser Hamdi himself was denied access to an attorney, and indeed disallowed access to anyone. He was not allowed to make phone calls, to accept visitors or to read or write letters.

Because Yaser Hamdi was incapable of appealing his detention his father did so on his behalf. Esam Fouad Hamdi filed a case arguing that his son had been denied his fundamental rights as an American citizen by the Bush Administration and the Department of Defense.

The Bush Administration is presently arguing before the Supreme Court that the Court has no jurisdiction over the treatment of Yaser Hamdi, Jose Padilla or any other "detainee" the Bush Administration chooses to keep incommunicado. They argue that the president retains the power to capture and detain "enemy combatants" during wartime, and that due to the concept of seperation of powers the Court has no right to get involved.

Even so, Bush seems to have caved at least to some extent. In the Bush Administration's brief to the Court it revealed that it has now decided that Yaser Hamdi should have access to an attorney. It explains that this "privelege" was granted to Hamdi not because he had a right to an attorney but "as a matter of discretion and military policy."

Last night the Pentagon also announced that David Hicks, an Australian citizen detained at Gitmo, would be given access to a US military attorney. Presumably Hicks' attorney will be utterly qualified and competent ? an attorney who has won at least one case before in his or her career. Surely the best the military can offer.

The Bush Administration hasn't allowed these two wretches to see attorneys out of some deep-seated respect for the Constitution. They aren't letting them have legal representation because they feel it's the "right thing to do." They're doing it because by giving these two the right to attorneys they may be able to retain the ability to deny others attorneys. With the case currently before the Supreme Court the Bush Administration needs to show that it can be a fair arbiter itself. The Bush Administration needs to show that it can be "nice" in some cases, and that it only denies access to attorneys when it's "absolutely necessary."

More than that, the Bush Administration wants to avoid any Supreme Court ruling on this subject. That's why they're arguing the Court has no authority. But it hopes that even if the Court rejects that argument (which it should) that the Court won't rule because the case before it pertains to a situation which no longer exists ? Hamdi has been allowed an attorney.

The crux of the Bush Administration's argument before the Supreme Court is that it has the ultimate authority to detain combatants during wartime. The brief presented to the Court by US Solicitor General Theodore Olson states that "The military detention in this case is consistent with this court's precedents recognizing the president's authority to capture and detain combatants in wartime, Congress's express statutory backing of the president's use of all necessary and appropriate military force in connection with the current conflict, and the time-honored laws and customs of war."

This is simply not true and entirely misleading, and the Supreme Court will hopefully see past the Administration's faulty and dishonest argument.

All the precedents in the Administration's brief to the court come from World War II. World War II was an officially declared war with a definite beginning and end. The Congress had authorized the conduct of that conflict by formally declaring war. The "War on Terror," however, bears more resemblance to the "War on Drugs" than World War II. It is a war against ideas, not against nations. It is a war with a beginning but no clearly defined end (i.e. the surrender of the enemy nation).

More than that, the Administration's power to detain so-called "enemy combatants" comes from two documents: the 1949 Geneva Convention Relevant to the Treatment of Prisoners of War and Ex Parte Quirin, a 1942 Supreme Court decision.

The 1949 Geneva Convention is most relevant, and so we will discuss it first.

The Bush Administration has repeatedly argued that the 1949 Geneva Convention does not apply to those captured in Afghanistan, arguing that those captured in Afghanistan are instead "enemy combatants" and not prisoners of war. The term "enemy combatant" appears nowhere in the 1949 Convention.

In fact, the Convention states plainly that it applies to everyone captured in wartime is a POW until and unless proven otherwise. Article 5 states:



Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong
to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their
status has been determined by a competent tribunal.


Article 5 mentions an Article 4. Article 4 of the Convention sets out who is a POW (and thus entitled to various rights and priveleges under the law) and who is not. There are three very important sectinos of Article 4 that may well mean that those captured in Afghanistan are indeed POWs (or EPWs as DoD prefers to refer to them).

Section 2 of Article 4 states that "Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that [they] fulfil the followinc conditions..."

This section goes on to say that people defined as POWs under Section 2 must be commanded by a person responsible for his subordinates, have a "fixed distinctive size recognizable at a distance", carry arms openly and "conduct their operations in accordance with the laws and customs of war."

Section 3 of Article 4 states that "Members of regular armed forcse who profess allegiance to a government or an authority not recognized by the Detaining Power" are POWs.

Section 6 states that "Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war."

It could be argued that any one of these three conditions could apply to at least some of those captured in Afghanistan. Certainly they could apply to members of the Taliban, if not members of al-Qaeda.

This is because although the United States did not recognize the Taliban as the government of Afghanistan, a number of other United Nations members did. And those fighting on behalf of the Taliban were doing so as part of the "armed forces" of this government, whether or not the government was recognized by the United States.

In the end, though, I am not the one to determine whether or not those captured on the battlefield in Afghanistan are enemy prisoners of war or illegal combatants (the proper term for those captured on the field of battle who don't meet the criteria for POW status under the 1949 Convention). But it isn't up for the President either.

The 1949 Convention, which was signed and ratified by the United States of America, states plainly that only a "competent tribunal" can decide whether or not a given individual is a POW or an illegal combatant if there is "any doubt". It states specifically that "Should any doubt arise as to whether persons, having committed a
belligerent act and having fallen into the hands of the enemy, belong
to any of the categories enumerated in Article 4, such persons shall
enjoy the protection of the present Convention until such time as their
status has been determined by a competent tribunal."

That couldn't be any clearer.

So, now that it has been shown conclusively that the 1949 Geneva Convention provides the Administration no cover for its detention of "enemy combatants" let's move over to the other precedent they cite: Ex Parte Quirin.

Ex Parte Quirin applied to members of a regular armed forces who got out of a submarine on the coast of Long Island and immediately shed their uniforms during World War II. These German soldiers were captured by the FBI and were obviously spies.

A military tribunal empaneled by the War Department determined that the spies were not entitled to the protection of POW status because they had acted as spies. The tribunal (and later the U.S. Supreme Court) quoted a general order of 1863 and the 1940 Rules of Land Warfare, issued by the War Department.

Under those precedents (and under the 1949 Geneva Convention) those German soldiers were illegal combatants and not entitled to the protections of POW status. But the Roosevelt Administration didn't just say "this is true because we said so". No. Instead they empaneled a military tribunal to determine whether or not these Germans were entitled to the protections of POW status. The case went to the Supreme Court and the Supreme Court ruled that:

"Specification 1 of the First charge is sufficient to charge all the petitioners with the offense of unlawful belligerency, trial of which
is within the jurisdiction of the Commission, and the admitted facts
affirmatively show that the charge is not merely colorable or without
foundation."

You see, the Court in that case simply confirmed the ruling of a military tribunal. In doing so it reaffirmed ? even before the Geneva Convention of 1949 was written ? that detainees are entitled to a judicial review of their status to determine whether they are POWs or illegal combatants.

The Bush Administration in this case is acting unconstitutionally and illegally. It is violating the laws and customs of war and the United States Constitution. It has announced its intention to indefinitely detain many of those captured in the War on Terror. It has announced that the provisions of the 1949 Convention do not apply to those captured.

And, most importantly, the Bush Administration is labelling American citizens "enemy combatants" without due process, without trial, without giving those citizens access to counsel to argue on their behalf. Even American citizens captured on American soil, like Jose Padilla, are being detained indefinitely as enemy combatants.

Under the United States Constitution American citizens ? and, in fact, anyone arrested in the United States ? are entitled to due process. They are entitled to access to an attorney. They are entitled to a day in court, to a trial by a jury of their peers (peers in the case of members of a military can be members of a military, making military tribunals okay under the Constitution).

What the Bush Administration is arguing for in front of the Supreme Court is nothing less than the power to indefinitely and secretly detain American citizens in military brigs. They are arguing for the ability to grab American citizens off the streets ? or in airports in Chicago ? and put them in a hole for the rest of their lives. They're trying to get the power (which they've actually already seized for themselves) to "disappear" anyone they want.

Hamdi may now have access to an attorney, but Jose Padilla doesn't. Padilla continues to rot in the US Navy Brig in South Carolina. Padilla continues to be held without charge. Padilla still has no recourse. He remains incapable of apealling his detention to a judge.

Jose Padilla has been denied his every single right under the US Constitution. Yaser Hamdi, for two years, was denied his every single right under the US Constitution. And every single detainee at Gitmo and Diego Garcia are being denied their rights under the 1949 Geneva Convention, which was signed and ratified by the United States of America and is thus the "supreme law of the land" according to the United States Constitution.

The Bush Administration has given itself powers normally reserved only for brutal dictatorships such as Pinochet's Chile, Stalin's Soviet Union, Hussein's Iraq and Karimov's Uzbekistan. The power to detain citizens incommunicado without due process, without access to an attorney, without access even to a judge is the power to oppress every last American. It is one of several powers necessary to become Caesar. Others include the ability to suppress dissent and the ability to conduct searches without probable cause a crime has been committed.

Text
 

Spencer278

Diamond Member
Oct 11, 2002
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You have a different copy of the consition then the neo-cons there says only that you have the right to own any kind of weapon you want. That is why you are confessued about the reading of the above text.
 

Jhhnn

IN MEMORIAM
Nov 11, 1999
62,365
14,677
136
Even at the time, the SCOTUS decision favoring the govt in the Quirin case was a stretch- that was during a real war, with real saboteurs who had even confessed their intentions.

That's not the case today. While John Walker Lindh is afforded the protection of the constitution, Hamdi is not. While claiming wartime powers, prisoners of that same "war" are denied POW status.

Failure by the SCOTUS to annihilate the Administration's claims would be to deny the Bill of Rights and the relevance of the entire legal system, including their own. Only then can we put this entire episode of shameless fearmongering and doublespeak in its proper perspective and reclaim the moral underpinnings of our country.
 

Zebo

Elite Member
Jul 29, 2001
39,398
19
81
Originally posted by: Jhhnn
Even at the time, the SCOTUS decision favoring the govt in the Quirin case was a stretch- that was during a real war, with real saboteurs who had even confessed their intentions.

That's not the case today. While John Walker Lindh is afforded the protection of the constitution, Hamdi is not. While claiming wartime powers, prisoners of that same "war" are denied POW status.

Failure by the SCOTUS to annihilate the Administration's claims would be to deny the Bill of Rights and the relevance of the entire legal system, including their own. Only then can we put this entire episode of shameless fearmongering and doublespeak in its proper perspective and reclaim the moral underpinnings of our country.
Yes unfortunatly it appears they have removed this choice of a ruling by the SC by granting at the mid-night hour what was asked of in this case.
 

Jhhnn

IN MEMORIAM
Nov 11, 1999
62,365
14,677
136
Not necessarily, Zebo. The court may yet rule such detainees actually have rights, rather than exceptions granted by the govt. While the govt. may well argue the point as moot, the court doesn't have to see it that way...
 

maluckey

Platinum Member
Jan 31, 2003
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" Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ..."
OK, this Amendment can be clarified if you examine two parts. For this Amendment to apply, there are conditions:

1. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

They must be legally residing in the country, and subject to the laws of the United States. There are persons in this country not subject to U.S., or State jurisdiction and/or laws. They are not afforded the protection of this Amendment.

2. "...nor deny any person within its jurisdiction"

Persons must still be subject to the laws of the United States. This doesn't change. This is why certain classes of illegal aliens, and Diplomats are afforded due process, and others are not. It is also why enemy combatants are not generally afforded any civilian legal rights. They are under the juridiction of the UCMJ, and not the civil laws of the United States. Case law and legal precedents can establish jurisdiction where none had existed before, such as in the case of certain classes of illegals. This is precisely what is being reviewed for possible changes in regards to the Guantanamo detainees.
 

CaptnKirk

Lifer
Jul 25, 2002
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It goes deeper than that, at one time Pakistan was being paid a bounty for each 'Suspect that they turned over to the U.S. Athorities.
They unloaded whatever they could get their hands on for the cash.
Letter from Guantanamo
----------------------------------------------------------------------------

Most of Guantanamo's 598 detainees are indeed al-Qaeda terrorists. But, as U.S. authorities are finally conceding, the lovelorn Khan ? and perhaps as many as 100 other captives ? simply aren't. They were grabbed by mistake in the chaos of battle. As Rumsfeld said last week: "If you don't want them for intelligence, and you don't want them for law enforcement ... then let's be rid of them."
Mixed in with the genuine terrorists are a 16-year old boy, two 90-year old Afghans ("They look 110," remarked one visitor), a Sudanese TV cameraman from the al-Jazeera network, and scores of hapless Pakistani youths who heeded the cry of jihad but found themselves abandoned and robbed on the battlefield by their fleeing Taliban brethren. Others were packed off to Guantanamo because they failed to pay extortion money to Kandahar city's secret police chief ? supposedly a U.S. ally ? who then denounced them as bin Laden henchmen.
Guantanamo has, in fact, turned out to be a windfall for America's Afghan confederates. According to Pakistani detainees, the U.S. military paid the Northern Alliance $5,000 for each captive who confessed to being a Taliban and $20,000 for each purported al-Qaeda fighter. With that incentive, the prisoners claim the allied commanders grabbed any Pakistani wandering dazed around the battlefield, then extracted confessions by force.
 

Jhhnn

IN MEMORIAM
Nov 11, 1999
62,365
14,677
136
Ass-backwards, Maluckey. The first part establishes who is a citizen, not who is subject to the law. The second part establishes who is subject to the rule of law, that being citizens and everybody within the country, the defined jurisdiction. Diagram the sentences to obtain the true meaning, if required...

The Admin's argument concerning the Gitmo prisoners is that Gitmo isn't part of the US, but rather part of Cuba, and therefore outside the rule of law. They also claim that they can hold these people because of the alleged "war", while simultaneously denying them POW status under the Geneva conventions.

The Admin is not attempting to apply the UCMJ, not at all. Even there, defendants have more rights than any of those being held in legal limbo...

Our system is transparent and subject to checks and balances for good reasons, that being avoidance of abuse by the govt. While such abuse is currently limited in scope, allowing it encourages even more. Creating an manipulating citizen support of such is a hallmark of tyranny throughout history, a basic feature of weak, unpopular, repressive and paranoid regimes everywhere.

 

NogginBoink

Diamond Member
Feb 17, 2002
5,322
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As a Republican and former supporter of Bush, I can't wait for the supreme court to get this case.

This scares the hell out of me and the court has got to step in with a big "hell no!" to the executive branch here.
 

Jhhnn

IN MEMORIAM
Nov 11, 1999
62,365
14,677
136
"enemy combatants fall under the universal code of military justice, not the constitution."

While there may be some validity to that argument, in the event of a real war, that is not the Bush Admin's position, either. The UCMJ does not allow detainees to be held incommunicado, w/o charge or access to legal representation for years on end, and that's precisely what is being done with Hamdi, Padilla, and the Gitmo crowd...
 

XMan

Lifer
Oct 9, 1999
12,511
46
91
Habeus corpus was suspended by Lincoln during the Civil War. Was any case ever brought to the Supreme Court to judge whether his actions were legal or not?
 

Spencer278

Diamond Member
Oct 11, 2002
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Originally posted by: X-Man
Habeus corpus was suspended by Lincoln during the Civil War. Was any case ever brought to the Supreme Court to judge whether his actions were legal or not?
I think there was and basicly if the courts where still there and the judges still there then you can't legally suspended Habeus Corpus.
 

maluckey

Platinum Member
Jan 31, 2003
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They are indeed, under the UCMJ, able to be held virtually indefinitely, so long as they are believed to be a threat to the interests of the United States. I do not know that any of the detainees are a threat any more than you do. Age and sex are irrelevant where information, and leadership of opposition forces is concerned.

Also Jhhnn, the first sentence of the first subsection not only establishes what is basic citizenship, but it defines who falls under the jurisdiction of the U.S., and the state in which they reside......"citizens". The persons in question must be "citizens", AND fall under the jurisdiction of the U.S. and the state in which they live for this subsection to apply. If not, forget reading the rest as it does not apply. Thats how ALL U.S. legal documents are drawn.

The second sentence goes on to establish that those that meet the first criteria may not be denied equal protection under the laws of the U.S.

I fear that you may have missed the AND in the sentence, and haven't brushed up on the UCMJ lately.
 

Bowfinger

Lifer
Nov 17, 2002
15,776
392
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One of the sheep dismissed Zebo's article since it doesn't come from a an acceptable right-wing shill. As an altrusitic person, I decided to help him (the sheep) out by finding a more palatable source. From Faux "News":
Pentagon Allows Terror Suspect Access to Lawyer

WASHINGTON ? Reversing course, Pentagon officials have decided to allow a U.S.-born terrorism suspect access to a lawyer, the Defense Department announced Tuesday.

The Defense Department will make arrangements over the next few days for a lawyer to visit Yaser Esam Hamdi "subject to appropriate security restrictions," a Pentagon statement said. Hamdi is being held as an "enemy combatant," a designation the Bush administration says denies him rights to a lawyer or a trial.

The Supreme Court is considering whether to hear an appeal from a public defender, Frank Dunham, who challenged Hamdi's detention and wanted to act as his lawyer.

Dunham had asked the Supreme Court to decide if the government has unconstitutionally imprisoned Hamdi without access to attorneys and without charges being filed against him.

Dunham said the Justice Department told him Tuesday night that officials would arrange for him to see Hamdi within a few days. He said he was happy the Defense Department was allowing Hamdi to meet with a lawyer but said that would not affect his arguments before the Supreme Court.

"U.S. citizens shouldn't be held without counsel for long periods of time," Dunham said. "I don't think it cures all the ills of this enemy combatant situation, especially for U.S. citizens."

The Pentagon announcement came one day before the Bush administration was scheduled to file a response at the Supreme Court to that appeal.

Hamdi will be allowed to decide whether he wants to be represented by Dunham or a private attorney, said Air Force Maj. John Smith, a spokesman for the Defense Department's legal office.

Hamdi was being held in the U.S. Navy brig in Charleston, S.C. He was captured in Afghanistan in November 2001. Originally taken to the prison for terrorism suspects in Guantanamo Bay, Cuba, he was transferred to the United States in April 2002 after military authorities determined he had been born in Louisiana and therefore is a U.S. citizen.

The Pentagon statement said that allowing Hamdi access to a lawyer "is not required by domestic or international law and should not be treated as a precedent."

Officials decided to grant the access to a lawyer because Hamdi is a U.S. citizen and the military has finished interrogating him, the Pentagon statement said. Hamdi has not been charged with any crime.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., rejected Dunham's appeal challenging his detention, ruling that the president has wide powers to detain enemy combatants during wartime. The Bush administration argues that under international law, enemy combatants such as Hamdi can be held until the war is over -- which could be years, if not decades, away.

Dunham and other lawyers challenging the detentions say they violate the prisoners' constitutional rights to a lawyer and a trial.

Hamdi is one of three terrorism suspects being held at the Charleston brig as enemy combatants. The other two are Jose Padilla, a former Chicago gang member who is accused of plotting to detonate a radioactive "dirty bomb," and Ali Saleh Kahlah al-Marri, a Qatari man accused of being an Al Qaeda sleeper agent.

Because Hamdi and Padilla are U.S. citizens, they are not eligible for trials by military tribunals like the foreigners being held at the Navy base in Guantanamo Bay.
 

Bowfinger

Lifer
Nov 17, 2002
15,776
392
126
Here's a related story from Faux "News":
Pentagon Assigns Lawyer for Australian at Gitmo

WASHINGTON ? An Australian prisoner at Guantanamo Bay, Cuba, has become the first foreign terrorist suspect to be given a U.S. military lawyer, the Pentagon announced Wednesday.

Marine Corps Maj. Michael Mori will represent David Hicks, the Defense Department said in a brief statement. Hicks also will be given access to an Australian lawyer to act as a legal adviser, said Pentagon spokesman Maj. Michael Shavers.

Hicks is one of six prisoners at the U.S. Navy base in Cuba whom President Bush named as possible candidates for trial by a special military tribunal for terrorism suspects. One other Australian citizen is among the more than 660 men and boys being held there.

Deputy Defense Secretary Paul Wolfowitz will make the final decision on which Guantanamo prisoners, if any, will face trial. Wolfowitz has not decided on Hicks' case, the Pentagon statement said.

The announcement came a day after the Pentagon announced an about-face in the case of a Louisiana-born terrorism suspect being held in the United States as an "enemy combatant." The Defense Department agreed to let Yaser Esam Hamdi meet with a lawyer, a reversal from its previous refusal to do so.

The United States and Australia announced last week they had reached an agreement on how Hicks would be tried before a U.S. military tribunal. Australian officials said they were satisfied Hicks would get a fair trial.

U.S. officials assured Australia that Hicks would not face the death penalty and would not have his conversations with his lawyer monitored by American troops. The Bush administration also has agreed to allow terrorism suspects like Hicks to have lawyers from their home countries act as advisers during any trial, a measure not allowed in the original rules for the tribunals.

Mori will contact Hicks' Australian lawyer to arrange contacts between them and the prisoner, Shavers said. Hicks' family has hired lawyer Stephen Kenny to represent him.

Kenny said in Australia Thursday that charges could soon be filed against Hicks and that he wanted permission to visit Guantanamo Bay and speak to Mori before Christmas.

"I think that's the very least they can do," he said, adding he had already had some discussion with U.S. authorities about traveling there, although no commitments have been made.

Steve Ingram, a spokesman for Australian Attorney General Philip Ruddock, said his government was holding talks with the U.S. military about allowing an Australian attorney into Cuba to act as a consultant with the U.S. lawyer on Hicks' case. Ingram would not comment on who that might be.

Ruddock has said the two Australian men being held at Guantanamo have no automatic right of return to Australia, but officials have been negotiating with the United States to have their cases finalized quickly.

"The minister recently made it clear that matters were progressing and this is an indication of that," Ingram said.

Richard Bourke, another Australian lawyer working on Hicks' case in the United States, said Wednesday he hoped Hicks' defense would be given enough time to prepare for a tribunal.

"In my view, lawyers involved in tribunal hearings are little better than window dressing for what are show trials," Bourke said.

Mori will travel to Guantanamo within the next few days to meet with Hicks and inform him of the tribunal rules, Shavers said. The visit will be the first of any defense lawyer to the high-security prison camp.

Hicks, a former cowboy who converted to Islam, was captured in Afghanistan in late 2001 and later brought to the Guantanamo prison. Australian officials have said Hicks is accused of training with Al Qaeda for several months in Afghanistan.
 

Bowfinger

Lifer
Nov 17, 2002
15,776
392
126
Finally, here is a good article on the subject from FindLaw:
A Guantanamo-Size Hole in the Constitution
By JOANNE MARINER
----
Monday, Dec. 01, 2003

Visit the official U.S. Navy website for Guantanamo Bay and the first thing you'll see is a picture of a gigantic American flag planted firmly on Cuban soil. The picture confirms the obvious: that this forty-five square mile chunk of territory, geographically part of Cuba, is under direct and exclusive American control.

The United States has occupied Guantanamo Bay for over a century. U.S. Marines first wrested control of Guantanamo from Spain in 1898, at the outset of the Spanish-American war. The American government later formalized its power over the territory via agreements signed with Cuba in 1903 and 1934, back when the Cuban Republic was an obedient client state.

A single clause in these agreements reserves "ultimate sovereignty" over the territory to Cuba. Except for the right to an annual rent -- money that the current Cuban government refuses to accept -- Cuba's formal sovereignty has little practical value. No matter how unhappy the Cuban authorities may be with the United States, their putative "tenant," they are unable to evict U.S. forces from the island.

Cuban sovereignty over Guantanamo exists only in the abstract. Yet it is, for the U.S. government, a convenient legal fiction. In the current litigation over the fate of the hundreds of detainees held on Guantanamo, the government's position is premised on the fact that Guantanamo is technically foreign soil. Because Guantanamo is part of Cuba, argues the government, it is beyond the reach of American courts.

What is most dismaying about these formalistic discussions of Guantanamo's legal status is not simply that they disregard the practical reality of U.S. control over the territory. They also, quite mistakenly, ignore the U.S. government's deliberate decision to place the detainees there.

This much should be clear. The detainees did not accidentally fall outside of the jurisdiction of the federal courts because they ended up on Guantanamo. Rather, they were brought to Guantanamo for the very purpose of being kept beyond the jurisdiction of the courts.



A Constitution-Free Zone

A few weeks ago, the Supreme Court agreed to hear two cases brought on behalf of foreign detainees on Guantanamo. Although the appeal has not been framed in precisely these terms, what the Court will rule on, in essence, is whether Guantanamo should remain a Constitution-free zone.

As the situation now stands, it is not Guantanamo's security features that make it a tempting place to hold detainees. In Illinois, Colorado, and elsewhere, there are high-tech super-maximum security prisons that are far more secure than the makeshift facilities on Guantanamo. What makes Guantanamo unique is that, if the Supreme Court accepts the Administration's views, the courts will have no role in monitoring and protecting the right of the detainees held there.

The key precedent underlying the Administration's position is Johnson v. Eisentrager. In that 1950 case, the Supreme Court denied a group of convicted German war criminals the right to seek federal court review of their sentences. The Court's opinion placed great emphasis on the fact that occupied Germany, where the prisoners were being held, was foreign territory.

The Court has never before ruled on the legal status of Guantanamo, but the lower courts have. In the 1990s, when tens of thousands of Haitian and Cuban refugees were detained on Guantanamo, the courts reached differing conclusions regarding the implications of Cuban sovereignty over the territory.

In a 1992 ruling by the U.S. Court of Appeals for the Second Circuit, which was later vacated as moot, the court found that the Cuba's residual sovereignty over Guantanamo did not strip detainees there of all rights. Three years later, however, the U.S. Court of Appeals for the Eleventh Circuit took the opposite view. Relying on the fact that the detainees were held outside of U.S. territory, it found that they were "without legal rights that are cognizable in the courts of the United States."


The Government's Choice of Where to Imprison

There are many good reasons not to extend the Eisentrager precedent to cover Guantanamo. Even without overruling Eisentrager, the Court should find for the Guantanamo detainees.

Yet a re-reading of Eisentrager shows what an embarrassment it is, like the Japanese internment cases of the same era. Justice Hugo Black, one of the dissenters in the case, raises powerful objections to the majority's stubborn and begrudging focus on territorial sovereignty.

"Does a prisoner's right to test the legality of a sentence," Black asked, "depend on where the Government chooses to imprison him?" He warned, specifically, against allowing the executive branch, "by deciding where its prisoners will be tried and imprisoned," to deprive the federal courts of their power to protect individual rights.

What is most relevant, Black explained, are not abstract notions of sovereignty but instead concrete realities of power and control. "We control that part of Germany we occupy," he noted. "Only our own courts can inquire into the legality of [the prisoners'] imprisonment."

Whenever and wherever the U.S. government imprisons someone, the courts should be able to review it. The contrary idea -- power but no law -- is lawlessness.
As with most FindLaw material, it's solidly researched and well-written. It's worth your time to read it.
 

Jhhnn

IN MEMORIAM
Nov 11, 1999
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Your interpretation of the Constitution is obviously bogus, Maluckey, and contrived to fit into the admin's handling of the situation. As I said earlier, an eigth-grader sentence diagram reveals the true meaning. When it reads "citizen", it means "citizen", and when it goes so far as to mention "any person " in the same sentence, it means"any person". Otherwise, we'd be able to do anything we want with foreigners, as they'd exist outside the law...

Fill me in on the UCMJ, OK? Quote chapter and verse, from a linked source... otherwise, forget it. Include the part where detainees have no right to counsel, while you're at it....
 

sandorski

No Lifer
Oct 10, 1999
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Originally posted by: X-Man
Habeus corpus was suspended by Lincoln during the Civil War. Was any case ever brought to the Supreme Court to judge whether his actions were legal or not?
The Civil War was a War, the WoT is just a fancified name to emphasize a Foreign Policy initiative.
 

maluckey

Platinum Member
Jan 31, 2003
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"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

Once again Jhhnn........ If you were born in the U.S. (Jus Solis), or naturalized in the U.S., AND you fall under the laws of the U.S., and the state where you live, then you are for the purpose of the law a "citizen". It implies that you are under the jurisdiction of the United States, if the above conditions of citizenship apply.

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws..."

Now this next sentence goes on to say that no state can take away any rights, properties or priveliges of the above qualified "citizens" without due process, nor deny anyone within it's jurisdiction equal protection under the laws of said state. This seems to leave out certain classes of aliens, and most illegal aliens, along with certain diplomatic classes. This also leaves out the Iraqis and Afghans captured in their respective countries, which are not part of the United States, and their citizens are not either born in the United States or naturalized in the United States, and certainly do not fall under the laws of the United States.....

Guantanamo, and Iraq do not fall under jurisdiction. The Iraqi, and Afghan detainees do not meet either criteria to be a "citizen" and thus be protected.

Just using eighth grade logic, as you suggested Jhhnn.





 

Jhhnn

IN MEMORIAM
Nov 11, 1999
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As I said before, maluckey, the terms "Citizen" and "any person" aren't used interchangeably, the distinction was obviously intentional to those who wrote the 14th amendment. And that's been the weight of longstanding legal practice except in very narrow recent rulings concerning illegal aliens and bail.

It's moot in the issue of Hamdi and Padilla, as they're citizens, anyway.

It's moot in the issue of the guantanamo captives, as well. If we're at war, then they're prisoners of war. If we're not, then we have no legal basis to hold them... We agreed to the Geneva Conventions of our own free will, and would scream bloody murder if captured American soldiers weren't properly treated. How can we support the blatant hypocrisy inherent in treating soldiers of the Taliban regime any differently?
 

maluckey

Platinum Member
Jan 31, 2003
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Jhhnn, the term citizen is not the same as Citizen. A citizen as far as the terms of the 14th Amendment does include non-U.S. Citizens and certain aliens. It still points out however, that they MUST fall under the definition of citizen, AND under the jurisdiction of the U.S. and the state in which they reside, for the entire protection to be allowed.

The U.S. has many clear examples of persons not covered by the 14th Amendment. Full protection is not afforded to certain classes of Aliens when they (INS) RTM an alien (Return to Mexico). This is done when someone cannot establish to the Inspectors satisfaction either, who they are, and/or that they have the right to enter and/or reside in this country. At this point, they are classified as a Deportable Alien and an I-213 Form is filed. They have no right to lawyers or legal counsel at that time. They may protest from their "own" country, and always at their own expense. The United States also has the authority to revoke Citizenship of a person deemed unsuitable. This removes all protection of the 14th amendment, and the person is deported. Certain classes of aliens (Mainly Diplomats, but there are a few others) are totally exempt from due process, and the 14th Amendment because they do not fall under the jurisdiction of the U.S. The U.S. has no jurisdiction in foreign countries except on the soil controlled autonomously by the embassies it establishes. These places are in effect The United States, as far as jurisdiction goes, and the 14th amendment applies. U.S. soldiers are not always protected under the 14th Amendment because they often fall under the UCMJ, and not the states juridiction. The DOD will NEVER allow a soldier to be tried civilly if the crime was while the soldier was on duty, regardless of the location. For this same reason, foreign combatants cannot be universally covered under the 14th Amendment. They are governed by their own ruling bodies, AND are not citizens of the United States.

The point of these examples is that protection is not automatic to those on this soil, nor those captured and brought here. They must qualify under jurisdiction, and citizenship. Citizenship being the primary qualification.

I do feel that the detainees should at least be afforded a visit by military lawyers to assist clearing themselves of possible terrorist charges, as would a U.S. soldier being detained for the same charges. If they turn out to be spys, or terrorists, then of course the protocol should then change, as would control over these persons.
 

Jhhnn

IN MEMORIAM
Nov 11, 1999
62,365
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Nice try, maluckey, still no cigar. Although you do seem to be backpedalling a bit, muddying the waters as you go.

Both Hamdi and Padilla are native-born citizens, and cannot be stripped of that distinction by any court. And yet the govt is handling them entirely differently than John Walker Lindh. The similarities between Hamdi and Lindh are striking in terms of their alleged offenses, yet their treatment is not. How can this be justified?

The whole basis of the Admin's argument concerning the Gitmo detainees is that being brought "here" by our govt isn't really "here", but rather Cuba, where our laws don't apply. And that they're not POW's, but rather some new kind of prisoner having no status or rights either internationally or within the constitution. The notion that they're spies is absurd, considering they were captured in afghanistan, and the idea that they're dangerous international terrorists totally unsubstantiated. The Bushies intend on keeping it that way, too, having no intention of ever bringing charges in any court not of the kangaroo variety.

References to diplomats are totally off-topic, their status is the result of international agreements, like the Geneva conventions, freely entered into by our govt long ago. Illegal aliens are also a red herring, as they aren't being held except insofar as that expedites deportation. Hardly the same as being dragged halfway around the world, locked away indefinitely for nothing more than suspicion and a convenient beard for the phony and failed WoT...
 

maluckey

Platinum Member
Jan 31, 2003
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The Guantanamo detainees can be held in Guantanamo under the UCMJ under UCMJ Chapter 47, 802. ART. 2(a)(12). They were captured under Chapter 47, 802. ART. 2(a)(9), and/or 802. ART. 2(a)(10), and are suspected of being enemy combatants, and/or in the company of the enemy. Suspected perhaps because they did not have sufficient proof that they were soldiers, yet either had the trappings thereof, or were encountered in the company of. They never fell under the control of any govt. authority outside of the UCMJ since their capture. They have not now, nor have they ever fallen within the jurisdiction of the the Civil governmental authorities federally, or in any state in the United States. 805. ART. 5., goes on to state that Territorial Application of Chapter 47, that: "This chapter applies in all places". This intimates that even if they were held in the United States, on a Military base, that Chapter 47 should apply.

You focus intensly on two examples, ignoring the rest. I do not know the full details of their detainment, nor do you. You can indeed hold Native born Citizens, or anyone else without trial, or anything else where it is the concern of National Security. It has happened before, happens now, and will continue to happen to secure the interests of this country. It is essential to be able to do so. It should always be VERY narrowly applied, monitored closely, and only under extraordinary circumstances. Possibly Lindh was not considered effective enough against the United States to be tried by the military. I have seen felony cases against a soldier be tried civilly, under DOD approval, where the circumstances permit stiffer punishment under civil authorities, or better charges to be filed against the soldier. This normally was for serious crimes that involved a civilian though.

In John Lindh's case, he is a United States Citizen (Jus Solis), whose citizenship was never formally renounced at any United States Embassy, and thus falls under the definition of citizen, this is true. He did not have legal residence in a foreign country, nor citizenship there. His status is still as a citizen of the United States, and a resident of the last state in which he lived. The big difference between Lindh and the rest in Guantanamo is that they are citizens of their respective countries, and were residents of their respective countries at the time of removal. They were brought to a location under control of the military and under the laws of the UCMJ, to a location that is not under civil jurisdiction by any court within the United States.

Nice try Jhhnn
 

Jhhnn

IN MEMORIAM
Nov 11, 1999
62,365
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Indeed, Maluckey. However, Chapter 47 subchapter2 sec810 art 10 goes on to state-

"When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him. "

So, uhh, what's "immediate" about the handling of the gitmo detainees? And how does their legal non-representation and other details of their confinement conform to the UCMJ?

The other aspect of this that Bush fans seek to ignore is that the UCMJ is subject to review by the SCOTUS, and that the US is bound by international treaties, as well, having the full force of our own laws, by definition...

As I stated before, the thrust of the Admin's argument is that Gitmo is beyond even the reach of the UCMJ and the SCOTUS, being part of Cuba... While they've successfully delayed thru the lower courts, it seems unlikely that the SCOTUS will allow it to stand.

 

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