(3-judge panel, 9th Circuit) Rules ALL GITMO detainees must have access to an attorney

Fox

[Dog]

AP via Fox news alert..

Lord help us from the judges..

[BikerNYC]

It's been part of our law since the beginning of time.

I didn't know our law went back to the beginning of time.

The last time the government indefinately imprisoned citizens with no charges being brought and no access to lawyers was on the west coast during WWII. I suppose you stand on the grand tradition of that fiasco to support this Saddamista-type action by our government.

[Maximum Leader]

If I remember correctly, wasn't this the issue with which the Supreme Court declined to review substantively General Takeshita's war crime conviction?

I hate to agree with the 9th Circuit, but I'm of the view that the court's jurisdiction follows the flag. The military officers who run Gitmo work for the president and are paid by Congress. Government employees and taxpayer dollars would put what happens there within the jurisdiction of the judicial branch.

Where the 9th Circuit went wrong is that the inmates at Gitmo are enemy combatants captured on the battlefied. The supreme law of the land on this issue are the Geneva Conventions that the US has signed and ratified. Unless those Conventions allow for a legal challenge by prisoners (and I strongly doubt they do), then the Court was out of line with their remedy.

[Maximum Leader]

Thanks for the comment. I didn't know that.

[angkor]

The Constitution gives the Congress the power to declare war. It does not stipulate the method. It does not, for example, say: Congress shall pass a "Declaration of War".

I guess I'm mystified about the means of declaring war without a Declaration Of War (and I'm capitalizing that phrase to distinguish as a formal process, which it clearly is).

A state of war exists whenever a country chooses to use military force to achieve it's objectives.

Fine, I'll give you the benefit of doubt that this "state of war" is coupled with military force. But you could just as easily call it a "condition of war," "an environment of war," "a melieu of war," whatever. Point is, there is nothing formal in the phrase "state of war" where there is a very specific meaning to "Declaration Of War," since that is what Congress is called upon to do: declare war. And that in fact is what results" a Delaration Of War, e.g., Congressional Declaration of War on Germany, December 11, 1941.

Just cite the portion of the Constitution that states the Congress "shall" pass a declaration of war in order for a state of war to exist.

You know as well as I do that there's no such language in the Constitution, which grants Congress the power to "declare war."

Congress can recognize a "state of war," "a melieu of war," "a condition of war", or whatever they'd like to call it, because it has no specific formal meaning in law, e.g., "the state of war between the United States and the Government of Germany which has thus been thrust upon the United States is hereby formally declared." (Congressional Declaration of War on Germany, December 11, 1941)

BTW, this was resolved by the US Supreme Court in the early 1800's. Even these dodo judges admit as much in their opinion. Did you read it?No, and I won't, because I can't even fathom what you're arguing and the exercise would thus be pointless.

[Cogadh na Sith]

I hate to agree with the 9th Circuit, but I'm of the view that the court's jurisdiction follows the flag.

Nope. The law does not support that view, thank God, or else soldiers would have to read the Miranda warning to every bad guy before taking them into custodyLOL! We couldn't interrogate them on the battlefield without a lawyer present if they choose to 'take the fifth'. Does that make sense?

Besides, it is a lease we have with Cuba, not an invasion. They retain sovereignty as specified under the lease.

The military officers who run Gitmo work for the president and are paid by Congress.

Immaterial. Jurisdiction is based on the 'where' of a case, not a 'who'. Notice that the only way the 9th Circus could claim jurisdiction to even hear the case is that one of the sh!tbags brothers lived in California. So, the case is actually not to redress violations of rights of the prisoners, but to redress the CA brother by allowing him the to file a habeas corpus--the only way to do that is to allow writs and lawyers for ALL the detainees.

Where the 9th Circuit went wrong is that the inmates at Gitmo are enemy combatants captured on the battlefied. The supreme law of the land on this issue are the Geneva Conventions that the US has signed and ratified.

Not in this case. The Geneva Convention applies to war conducted between nations. The Gitmo prisoners meet none of the tests for 'combatant' under the Geneva Convention: Not soldiers of a recognized state or government, no uniforms, no form of identification. I have an ID card right here in my wallet that IDs me as Geneva Conv. Cat II. I fall under the Geneva convention. Those guys do not. In fact, by a strict view of the Geneva Contention, we would have been well within that convention to execute the Taliban rabble following a military tribunal--they are not recognized combatants.

Sorry, US law applies to Gitmo as much as it applies in Afghanistan or Iraq. Nor does the Geneva Convention apply. We could execute them after a military tribunal under the appropriate martial laws, not the Constitution.

The 9th Circus Courts opinion is entirely unsupportable it will be overturned when heard 'en banc'.

[Cogadh na Sith]

Declaration Of War (and I'm capitalizing that phrase to distinguish as a formal process, which it clearly is).

It's not. There is no written, or agreed-upon process for a declaration of war.

The Congressional Resolution allowing the President to use military force satisfies all the requirements for a 'declaration of war': Congress gave him the OK to send troops.

[DugwayDuke]

"I guess I'm mystified about the means of declaring war without a Declaration Of War (and I'm capitalizing that phrase to distinguish as a formal process, which it clearly is)."

Sure, it's a formal process. It requires a vote, but it doesn't require the use of the words "Declare War".

"Point is, there is nothing formal in the phrase "state of war" where there is a very specific meaning to "Declaration Of War," since that is what Congress is called upon to do: declare war."

Actually, the phrase "state of war" has international recognition. The Geneva Conventions, treaties that have become "law of the land" by act of Congress are replete with that term.

"And that in fact is what results" a Delaration Of War, e.g., Congressional Declaration of War on Germany, December 11, 1941."

Actually, it was a Joint Resolution, just like this one. Only minor difference is that it included the term "Declare War".

"Congress can recognize a "state of war," "a melieu of war," "a condition of war", or whatever they'd like to call it, because it has no specific formal meaning in law,..."

When Congress ratified the Geneva Conventions, the term "state of war" become a part of our law.

"No, and I won't, because I can't even fathom what you're arguing and the exercise would thus be pointless."

Well, then, why are you even posting to a thread where you admit you haven't bothered to inform yourself?

These are serious matters of international law and treaty. You should take the time to become informed.

[angkor]

I thinks it's been thoroughly established by historic precedent, by the U.S. Constitution, and by common and reasonable interpretation of the English language, that "declare war" means "declare war."

[angkor]

Wrong, and I'm not going to bother to address it in any detail.

[BikerNYC]

As if indefinately imprisoning 80-year-old Japanese women without access to lawyers helped end the war. It was a cowardly act.

[angkor]

Actually, the phrase "state of war" has international recognition. The Geneva Conventions

That is a lie. That particular linguistic construction has international recognition as a matter of contention, not unanimity.

And neither the U.S. Constitution nor the CFR acknowledges this bogus phrase "state of war".

You're making it up, and it has no meaning in either U.S. or international law. Nobody knows what it means, legally.

Congressional Declaration of War on Germany, December 11, 1941."

Lie #2. Look it up. The actual wording of the bill is "Declaration Of War."

I haven't said it before but will finally say it now" you guys have been lying since post #1.

Why?

[angkor]

Congress gave him the OK to send troops.

And Congress did not declare war.

[DugwayDuke]

"And neither the U.S. Constitution nor the CFR acknowledges this bogus phrase "state of war"."

"You're making it up, and it has no meaning in either U.S. or international law. Nobody knows what it means, legally."

"Lie #2. Look it up. The actual wording of the bill is "Declaration Of War.""

"I haven't said it before but will finally say it now" you guys have been lying since post #1."

You just called me a liar. That's not a very nice thing to do. It's also not a very smart thing to do because I can back up my claims. There are two issues here. First, is the term "state of war" having legal meaning and second, were the "declarations of war" "joint resolutions".

Quoting from "The War Resolution" that declared war on Germany (WWII): "Declaring that a state of war exists between the Government of Germany and the government and the people of the United States and making provision to prosecute the same."

First, you'll note that it was entitled a "War Resolution" and not a "Declaration of War".

Second, you'll note that the US Congress included that term you maintain that no one knows the meaning of, ie, "state of war". Furthermore, you'll note that they didn't "declare war" they declared "that a state of war exists". Evidently, Congress understands the meaning of this term you find so elusive.

We've already established that you like to talk about things without doing your research, but for the sake of others who prefer to know what they're talking about here's a URL with the text of the "War Resolution".

http://www.law.ou.edu/hist/germwar.html

Now, let's consider the "declaration of war" on Japan. Here's the first paragraph:

"JOINT RESOLUTION Declaring that a state of war exists between the Imperial Government of Japan and the Government and the people of the United States and making provisions to prosecute the same."

Here's the URL:

http://www.law.ou.edu/hist/japwar.html

Gee, it's a "Joint Resolution". Gee, there's that pesky phrase "state of war". BTW, you'll note that in this case, once again, Congress didn't "declare war" they declared "that a state of war" exists".

Don't bother responding unless you include an apology. And, I would suggest that a little research prior to posting will prevent future embarassment of this nature.

[Bryan]

I've often found that a basic misunderstanding of the relevant law has clouded a lot of the issues for both the left and the right. My compliments.

The government's position is that the Guantanamo Bay detainees are unlawful combatants. They were not wearing uniforms, and they did not obey the laws and customs of war. This prevents them from being classified as POWs, according to Article 4 of the Third Geneva Convention.

Even POWs do not have a right to an attorney unless they're charged with a crime. And even unlawful combatants have rights under the Geneva Convention. They have a right to "three hots and a cot," freedom of religion, medical care and freedom from torture.

In the case of Jose Padilla, the man is an American citizen accused of being an enemy combatant. The legal precedent of Ex parte Quirin, 317 U.S. 1 (1942), is the controlling authority in this matter.

The ruling by the Court of Appeals of the Ninth Circuit is vulnerable to reversal. It was not a unanimous ruling: only two justices of the three-justice panel voted to give the detainees a right to counsel, and the third dissented. Upon review by the entire Ninth Circuit en banc -- a total of 14 justices, I believe -- it may be reversed. (That's what happened to the Pledge of Allegiance case.)

Of course, if the decision survives en banc review, there's always the Supreme Court.

[Bryan]

The Geneva Conventions do not provide a right to legal counsel or a right to visitation with family. Unlawful combatants have a right to "three hots and a cot," freedom of religion, medical care and freedom from torture. POWs have two additional rights: the right not to co-operate with an interrogator (beyond name, rank and serial number) and the right of repatriation after the end of the war.

[wgeorge2001]

"We cannot simply accept the government's position," Reinhardt continued, "that the Executive Branch possesses the unchecked authority to imprison indefinitely any persons, foreign citizens included, on territory under the sole jurisdiction and control of the United States, without permitting such prisoners recourse of any kind to any judicial forum, or even access to counsel, regardless of the length or manner of their confinement."


There are conservatives who believe that the judicial system is destroying the powers of the legislative and executive branches of the federal government and that the people who elect these politicians, who appoint judges that do not represent their core base voters, are now partaking of the results of this evil. Many of the liberal judges that now destroy our American constitution were appointed by (not!) conservative politicians that are now taking freedoms and justice away from America's citizen's, the parents of this country who are not voting are failing to protect their children's future, people should vote to protect their children from such liberal monsters that are corrupter's of unions and politicians and free enterprise. Campaign finance reform is an example of the dangers of such thinking which is resulting in the political and cultural disaster for our once great country.
It's a reckoning, if you will, and the people will suffer more than the foolish politicians, history proves it over and over.I wonder if this disaster can be corrected at this point of history. So much for allowing liberals to become rino politicians. A masterful stroke for the enemies of freedom of American's. A disaster for freedom loving citizens. Disaster for us and for the children.

[DugwayDuke]

"I've often found that a basic misunderstanding of the relevant law has clouded a lot of the issues for both the left and the right. My compliments."

I'm not a lawyer but I have had some courses in military law. The relevent law is not difficult to understand. However, some would post than read.

Thanks.

[sawyer]

I think we call that part of Cuba ours.