Posted on 11/14/2005 9:10:04 PM PST by jmc1969
http://www.freerepublic.com/focus/f-news/1522120/posts?page=45#45 <- On point
http://www.freerepublic.com/focus/f-news/1513207/posts?page=630#630
http://www.freerepublic.com/focus/f-news/1522120/posts?page=17#17 <- Initial take
bttt
Graham S.AMND.2524 passed 84-14.
Hard to argue with that bad news scenario. No one dares expose them in public discourse because you can't win. So many evil forces at work in this slumbering nation. Sadly it has slumbered for a long long time.
no, everything I read about this says its a good compromise. remember, this replaces the habeas appeals the SCOTUS already gave these prisoners. this would allow a simple review of the case against them via at most 2 appeals (DC circuit/SCOTUS), and once the military apparatus trying and sentencing them is deemed to have acted fairly - they belong to the military for carrying out of sentence.
the habeas appeals for these prisoners are stacking up right now - every week we fly ACLU lawyers down to Gitmo to review these cases. this appeals mechanism replaces that, its a limited appeal, after which their sentencing is carried out solely by the military. this law does not give them US criminal trials, it merely allows a review (limited to 2 courts) of the military apparatus trying and sentencing them, once that hurdle is cleared, their fate belongs to the military.
its not perfect, but in light of the fact that the courts have already inserted themselves into this - its better then the status quo I think. I am open minded however, if someone can point out where I'm wrong, have at it.
And therein lies the problem. The whole issue as I see it, is foreign elements not representing a given nation we are at war with, never had any rights period within the scope of our laws.
This move will tie up our court system with perhaps hundreds of cases, and make at best for a very very messy way of handling prisoners.
And the Islamofacist now can advertise that if their adherants are caught, chances are they will beat the charges given enought time and they will get off scott free to resume their evil doings.
With this change we now will have some damn full liberal judge taking charge of the future of these goons, where they will bend to offering them the same rights as a bonified citizen of the United States. And you know what that means will most likely happen.
Why should they have any rights normally extended to citizens of the country?
I can understand the argument that these prisoners do not even deserve Geneva rights (since they are not uniformed soldiers), much less anything in US courts.
All I was saying was, the reality is that we brought these prisoners to Gitmo, and the courts already injected themselves into this by granting them habeas rights and lawyers, etc. the use of military tribunals is bottled up right now by that. this law is an attempt at least to end that - to give the military control to try them and sentence them, so long as they can meet the hurdle of whatever standards are used to judge the military tribunal apparatus as "fair". the initial cases will go all the way to the SCOTUS I am sure. but these prisoners are not getting trials in the US criminal system, this law does not provide for that.
I am sure most of us are aware that with this modification:
"Under the agreement, prisoners who receive a punishment of 10 years in prison to death would receive an automatic appeal to the U.S. Court of Appeals for the District of Columbia Circuit. Lesser sentences would not receive automatic review, but detainees still could petition the court to hear their case."
This may very well open the Pandora Box.
but its limited - one appeal to DC and another (if they take it) to the SCOTUS. these habeas appeals which they have now, can drag on forever - and have bottled up the military tribunal mechanism from even starting up.
I think that unless some issue can be found in the tribunal mechanism the military sets up is so flawed - these two courts will be unlikely to start tossing out military justice verdicts. But, we shall see.
I can see your points. And I no longer offer any objection to the proposed process. Thanks.
SCOTUS already did that. The Senate is tring to close off the line of access to civilian court system that SCOTUS opened up.
See Rasul v. Bush. 542 US 466 (2004).
Held: United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.
Lindsey Graham clarified/qualified that option of appeal today, from the floor of the Senate. The detainee has no right of appeal, but the Circuit Court of Appeals may seek a writ of certiorari on its own volition. The proposed statute (now passed by the Senate, I don't know if it needs house action) recites exclusive jurisdiction for the defined class of case.
Lindsey Graham clarified/qualified that option of appeal today, from the floor of the Senate. The detainee has no right of appeal, but the Circuit Court of Appeals may seek a writ of certiorari on its own volition. The proposed statute (now passed by the Senate, I don't know if it needs house action) recites exclusive jurisdiction for the defined class of case.
No right of appeal to SCOTUS - I see my post wasn't very clear on that point.
The statute itself will be attacked first. Will be an interesting case.
"Held: United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay."
Now takes preceedence over say:
"The question now before us is whether the habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not "ultimate sovereignty. FOOTNOTE: 6."
I read chunks of the reference article. Paying attention to above. Part of the FOOTNOTE 6 below:
With respect to §1331, petitioners assert a variety of claims arising under the Constitution, treaties, and laws of the United States. In Eisentrager, though the Court's holding focused on §2241, its analysis spoke more broadly: "We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States." 339 U. S., at 777-778. That reasoning dooms petitioners' claims under §1331, at least where Congress has erected a jurisdictional bar to their raising such claims in habeas.
WE HAVE BEEN HAD ONCE AGAIN. The box is now open.
when you say "again" - the decision you are quoting is the one currently in place, where the SCOTUS ruled 6-3 to give the Gitmo prisoners access to the courts. this new law, if it stands, I still believe will improve on the current status quo. it all stinks mind you, but absent a declaration of war, and given the makeup of the SCOTUS, I don't know where else we can go.
And most certainly neither do I. It's a done case. I want to thank you and Cbolt for presenting a more clear case that made me look a bit deeper into what was at stake.
The dissent opined the opposite conclusion, and pointed to Congress as being able to clarify any confusion.
Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.The Court today holds that the habeas statute, 28 U. S. C. §2241, extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This is not only a novel holding; it contradicts a half-century-old precedent on which the military undoubtedly relied, Johnson v. Eisentrager, 339 U. S. 763 (1950). The Court's contention that Eisentrager was somehow negated by Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973)--a decision that dealt with a different issue and did not so much as mention Eisentrager--is implausible in the extreme. This is an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field. I would leave it to Congress to change §2241, and dissent from the Court's unprecedented holding.
As we have repeatedly said: "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction . . . ." Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375, 377 (1994) (citations omitted). The petitioners do not argue that the Constitution independently requires jurisdiction here. Accordingly, this case turns on the words of §2241, a text the Court today largely ignores.
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