Earth to Second Circuit

The Wall Street Journal ^ | January 1, 2004 | BRADFORD A. BERENSON

[neverdem]

If they can incarcerate Padilla for years and not give him access to an attorney, what is to stop them from arresting an innocent man, John Q. Public, and doing the same?

It's my understanding that Lincoln basically suspended Habeus Corpus during the Civil War. This clown Padilla chose his course. I could care less about his civil rights. As far as I'm concerned, he has no country either.

[jwalsh07]

Out of curiosity, do you know why the Geneva Convention would require that POW's be tried only by military courts?

It doesn't.

Is there some reason the Convention didn't trust civilian courts to dispense proper justice?

See above.

[Pan_Yans Wife]

Has Bush suspended Habeus Corpus?

[Polybius]

If they can incarcerate Padilla for years and not give him access to an attorney, what is to stop them from arresting an innocent man, John Q. Public, and doing the same?

As I outlined in Post 56, the Supreme Court has ruled in the past that individuals charged as enemy belligerents will be tried in military court.

The attorney he gets may be a JAG Corps attorney instead of a Johnny Cochran or a Ramsey Clarke or but he will have an attorney.

The jury may be made up of U.S. military officers with Top Secret sucurity clearances instead of the O.J. jury but he will have a jury.

The evidence that will be based on U.S. intelligence data that cannot be compromised by being made public will be kept secret instead of being televised worldwide on Court TV but the evidence will be presented.

When the enemy is waging all out war, including, in Padilla's case, allegedly planning a weapons of mass destruction attack on a major city, you can't expect to survive by treating the enemy combatants as you would treat a civilian criminal.

[cdrw]

Outstanding thread. Really outstanding constructive debate of a vital issue.

I share Pan_Yans... concern about J Q public. I have made prior posts on other topics to the affect that I didn't think a US citizen should ever be snatched away by the government without review by the civilian courts but as I read this thread it becomes more clear to me. I will share my thoughts later after I've had a chance to think them out a little. Our framers really covered a lot of ground. It seems they recognized that there are circumstances under which outrageous powers must be given to the executive branch. Thats why they put in the right to keep and bear arms as an ultimate, if really messy and nasty, balance against the holders of power becoming the problem rather than the solution.

Excellent thread.

[Pan_Yans Wife]

Military court sounds appropriate to me.

Thank you for your explanation.

[neverdem]

Has Bush suspended Habeus Corpus?

I guess he's trying to do that for enemy combatants. That's OK with me.

[Pan_Yans Wife]

He should have done it already, then. To let this sit for so long, leads to an even bigger mess.

[neverdem]

Priceless, where did you find that cartoon?

[jwalsh07]

President Bush has not nor can he suspend the right to a Writ of Habeas Corpus. Only Congress can do that.

The Bush Administration is arguing that allowing Padilla-like creatures unfettered access to an attorney and treating them like common criminals in time of war is detrimental to the prosecution of that war and their duty to protect the citizens of the US as thay have been Constitutionally charged with doing.

[Polybius]

Out of curiosity, do you know why the Geneva Convention would require that POW's be tried only by military courts? Is there some reason the Convention didn't trust civilian courts to dispense proper justice?

It is my opinion that the Convention believed that a jury composed of professional military officers would be better able to pass unemotional and impartial judgement in an honorable and professional manner on military matters than a civilian jury.

With the passions of war, a civilian jury can be whipped up into the equivalent of a legal lynch mob by a prosecuting attorney that appeals to their raw emotions rather than to their brains.

Imagine an O.J. jury in reverse.

Imagine the trial of a U.S. airman in a German town where the Messerschmitt factory was bombed and Uncles Manfred, Otto and Fritz and Grandpa Rudolph were killed. Imagine a local prosecuter filing murder charges in the civilian court.

In such a case, I would rather trust my life to a jury of German military officers that had some professional understanding of what war is rather than trying to convince a bunch of p*ssed off German civilians that killing dear old Grandpa Rudolph was perfectly legal under the Rules of War.

[John Beresford Tipton]

"Has Bush suspended Habeus Corpus?"

My foggy recollection is that habeas corpus can only be suspended if the "courts are closed."

There is a law review article on the subject, that is in Google's cache. A section is titled "II. Civil War Military Commissions and Suspension of Habeas Corpus"

http://216.239.53.104/search?q=cache:0wGAU75UZ0sJ:www.law.ohio-state.edu/lawjournal/french.htm+%22courts+are+closed%22+%22suspend+habeas+corpus%22&hl=en&lr=lang_en&ie=UTF-8

[Pan_Yans Wife]

So, it was Congress who suspended Habeus Corpus, not Lincoln?

[jwalsh07]

No Liclon claimed the right to do it becasue Congress was not in session but the Constitution grants that power to the Legislature not the President.

[John Beresford Tipton]

This is the relevant section of the Law Review article.
Unfortunately it is only in Google's cache:

II. Civil War Military Commissions and Suspension of Habeas Corpus

A. Lincoln Establishes Martial Law and Suspends Habeas Corpus

On April 27, 1861, President Lincoln simultaneously declared martial law and authorized Commanding General Winfield Scott to suspend the writ of habeas corpus[11] in Union territories where civilian war protesters were compromising the war effort by encouraging defectors and recruiting for the confederate army.[12] Lincoln proclaimed that all persons who discouraged enlistments or engaged in disloyal practices would be subject to trial in a military commission, regardless of whether they were civilians or military.[13] Lincoln thought military commissions[14] were necessary because, according to him, state courts did not have the authority to convict war protesters.[15] By suspending the privilege of habeas corpus, Lincoln denied persons tried under military commissions the right to remove their cases to civil courts, including the Supreme Court.[16]

Writing for the Court, Justice Taney ruled in Ex parte Merryman[17] that the President?s suspension of habeas corpus was unconstitutional on two grounds: (1) only Congress has the right to suspend the privilege of habeas corpus; and (2) the President exceeded his war powers.[18] First, Justice Taney rejected the proposition that in times of war the President must have the authority to do whatever is necessary to protect the country.[19] He asserted that because ?[t]he government of the United States is one of delegated and limited power,? the branches of the government could not exercise power beyond those expressly granted under the Constitution, even in times of war.[20] The Constitution does not expressly state who has the authority to suspend habeas corpus when public safety so requires.[21] Taney asserted, however, that because the constitutional provision authorizing suspension of habeas corpus is located in Article I, the article devoted to the legislative department, only an Act of Congress could authorize the suspension.[22]

Second, Justice Taney stated that unless a person was under the military?s judicial authority and subject to military control, a military officer had no right to arrest and detain a person not subject to the rules and articles of war for an offense against the laws of the United States.[23] If a military officer arrested a party not subject to the military?s judicial authority, Taney asserted, the officer had the duty to deliver that person to the civil authority immediately.[24] Taney found that because Merryman was a civilian from Indiana, a state not at war with the United States, and because the civilian courts in Indiana were open, the military did not have judicial authority over Merryman.[25] Although Lincoln released Merryman, he ignored Justice Taney?s clear position and continued to suspend the writ of habeas corpus and to try civilians in military courts.[26]

B. Lincoln Defends His Actions to Congress and Congress Responds

During a special address to Congress on July 4, 1861, President Lincoln acknowledged that as executive he did not generally have the authority to suspend habeas corpus.[27] Lincoln in fact expressly requested that Congress sanction his actions.[28] Lincoln nevertheless defended his establishment of military courts and his suspending habeas corpus.[29] He claimed that because Congress had not been in session when the need to suspend habeas corpus arose, as President and Commander-in-Chief he was forced to act on his own to protect the nation:

[T]he Constitution itself, [sic] is silent as to which, or who, is to exercise the power [to suspend habeas corpus]; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together . . . .[30]

Congress apparently took to heart the President?s request to ratify his actions. On August 6, 1861, Congress retroactively approved ?all the acts, proclamations, and orders of the President . . . respecting the army and navy of the United States.?[31] On March 3, 1863, Congress passed the Habeas Corpus Act that provided President Lincoln the power to suspend habeas corpus whenever he determined public safety required suspension.[32] President Lincoln cited the March 3 statutory authority when, on September 15, 1863, he again proclaimed that the privilege of the writ of habeas corpus was suspended.[33]

C. The Supreme Court Responds

The Supreme Court did not address the constitutionality of Lincoln?s military commissions and his suspending habeas corpus until Ex parte Milligan,[34] decided a year after the war had ended and Lincoln had died.[35] The Court established that, despite Congress?s ratification of Lincoln?s military order suspending habeas corpus, the federal courts had jurisdiction to hear a writ of habeas corpus to determine the validity of the military commission?s jurisdiction.[36] Consequently, the Supreme Court could review whether a military commission had jurisdiction over Milligan.[37]

The Court also recognized that in emergency times, the government needed the ability to detain persons who posed immediate danger to the country.[38] Nevertheless, the Court agreed with Justice Taney?s holding in Merryman[39] that national emergency and war could not sanction a military trial of a civilian if the federal civil courts were open to hear criminal accusations.[40] Additionally, although Congress gave the President, in the 1863 Act, the authority to suspend habeas corpus when public safety required, that Act also expressly stated that, as long as civil courts were open, the military was required to cede jurisdiction over civilians whom it had arrested to the civil courts.[41] The Court felt that the law would only justify a military trial of a civilian if the civil courts were closed.[42] Therefore the President, even though the country was at war, ?had no right to conclude that Milligan, if guilty, would not receive in [Circuit Court] merited punishment . . . .? The Court also contradicted Lincoln?s belief that civil courts did not have the authority to convict war protesters. The Court stated that the circuit court ?constantly engaged in the trial of similar offense, and was never interrupted in its administration of criminal justice.?[43] Additionally, the Supreme Court noted that times of war are times when the Court is most compelled to protect constitutional civil liberties.[44]

D. Important Points to Remember from the Milligan Decision

There are three elements of the Milligan case that are important in analyzing President Bush?s November 13 Order. First, the Milligan Court focused on the fact that Congress?s March 3, 1863, Habeas Corpus Act expressly stated that any civilian citizens that the military arrested were to be handed over to the civil courts, so long as the civil courts were in session.[45]

Second, the Court noted that even if Congress had authorized the President to suspend habeas corpus, the federal courts would always enjoy the right to review the jurisdiction of the military commissions.[46]

Third, the Milligan Court only addressed one of the three types of cases that a military commission may hear: a case in which a civilian committed a civil crime.[47] Note that the Court was focusing on the distinction between members of the military versus civilians, not on the distinction between citizens and aliens. Even though Milligan was a citizen, the Court indicated that its decision applies not only to civilians, but also to all citizens.[48]

[jwalsh07]

The Chief Justice of the Supreme Court, Roger Taney, ruled that Lincolnc act was unconstitutional. Lincoln told him to take a hike.

[Pan_Yans Wife]

Now I don't know what to think. :)

Thank you for the information.

However, all along I have thought that a military tribunal, which can protect the evidence that the government has gathered, would be the best route.

[Polybius]

Out of curiosity, do you know why the Geneva Convention would require that POW's be tried only by military courts?

It doesn't.

Article 84 of the Third Geneva Convention:... A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.

Unless your State or the Federal Government has a civilian law on the books that addresses the issue of what consitutes an "illegal combatant" and has the legal authority to try a member of the Armed Forces of the United States under such a civilian law in a civilian court, then Article 84 of the Geneva Convention mandates that any enemy belligerent be tried in a U.S. military court when charged with being a illegal combatant in violation of the Rules of War.

[GeekDejure]

Now is not the time for idealism, now is the time for action.

The answer: Extract all possible information from treasonist Jose Padilla... then Exterminate treasonist Jose Padilla. Period, end of argument !!!

.

[Polybius]

Priceless, where did you find that cartoon?

The Iraq War in Cartoons