I saw elsewhere someone posting about Ex Parte Quirin
http://law.jrank.org/pages/25474/Ex-Parte-Quirin-Significance.html
Ex Parte Quirin established the principle that, in times of war, enemy agents can be tried by military courts. Such defendants do not have the right to a civil jury trial, although the decisions of the courts martial are subject to review by civilian courts.
The eight saboteurs applied to the District Court of the District of Columbia for permission to file petitions for habeas corpus, challenging their confinement, in the U.S. Supreme Court. When the district court turned them down, they applied directly to the Supreme Court. In their petitions, they challenged the authority of the president to set up the military tribunal and asserted their right under the Fifth and Sixth Amendments to trial by jury, a procedure with more safeguards than are observed in military courts.
The military trial went forward, even while the Supreme Court considered their petitions. By 27 July 1942, all the evidence had been submitted at the military trial. The case was closed except for the arguments of prosecutors and defense lawyers. On 28 July 1942, the Supreme Court met in special session to consider the saboteurs’ petitions. (This was an ex parte proceeding because the petitioners were not present, having been confined in military prisons.) The Court rejected all eight. Six of the prisoners were executed a little more than a week later.
:: Ex Parte Quirin established the principle that, in times of war, enemy agents can be tried by military courts ::
So, how is “war” defined? Does war exist without a formal declaration? Ask, al-khaida. Ask Iran.
What constitutes war? How much Constitutional gravitas does a formal declaration carry? How does the Constitution define war? How does the CFR define war? How does the Military Code define war?
Maybe some should cease thinking of war as military action by the US against a foreign state?
This whole hoohah over military tribunals:
Consider that taken as a whole, the body of the discussion is about tribunals or civilian courts ...
... when there appears to be more than a sufficient number of potential defendants in both categories.
We even know the names of the more conspicuous candidates for civilian trials.
What I don’t recall are the names of the military coup participants.
You know there’s more than one.
Consider what knowledge Admiral Rogers had access to at the time of his meeting in Tromp Tower.
On the National Emergency conundrum:
During the Clinton years at least several 56k modems were sacrificed to this same discussion. The intricacies of the gold fringe on the flag in every civilian courtroom was explored, baud by baud.
Bob Ireland ...
(shout out to Bob - long time no see)
... was around (pre 11/28/1997) for those times and may remember them. At the time the concern was that Clinton would use an existing national emergency declaration to declare martial law for some reason or other.
Didn’t happen.
However, as I recall, there was a pathway he could have used, but the overall circumstances and the mood of the public, albeit poisonous, did not allow the stretch.
By the way, Bob? Do you remember the consensus thinking, or were we as bad as the current crowd? :)
That would qualify as:
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Let's do this again with a larger number.