Posted on 02/15/2006 8:09:51 AM PST by inquest
Another example could be the Nuernburg trials. They were a Military Commission. The Chief Justice of the US Supreme Court presided over the Tribunal.
People are now criticizing him because they didn't use the standard of "beyond reasonable doubt" in convicting many and executing many.
It was not appropriate to use the standards of "beyond reasonable doubt" because many who would be witnesses had died in the concentration camps, or were scattered all over the world as refugees. Also many of the records had been destroyed in the war damages.
They used the standards set in the Laws of War, which were appropriate to the conditions.
Was the Chief Justice of the United States dishonorable because he participated in a Military Commission and used the appropriate standards?
Do you imply that someone who is sworn to uphold the constitution is dishonorable enough to prostitute themselves?
Judges are kept independent for a reason. The founders judged rightly that it's not a good idea to rely only on the personal honor of those who take the oath. If we could, then there would hardly be any need for separation of powers and checks and balances. All that would be necessary is just a few people to be put in charge, take the oath, and then trust them to do what's right from there.
Yes, as long as they confine themselves to the part of the constitution that does not infringe on the separation of powers.
Then I think we're at an impasse on this point. I can't see how it is that the same legislative language that would be constitutional when it's in one section of the federal code, would not be constitutional if it's in another. Law is law. Whatever it requires, it requires, as long as its language doesn't conflict with another law (such as the Constitution).
They also recognized that it is impractical to have an independent judiciary in war time conditions, and so provided a separate set of laws and method of applying those in the actual conditions that prevail in war.
That is why the Military Commissions and Laws of War were provided. They should be used as provided by the Constitution.
It certainly is not unconstitutional to follow provisions of the constitution, or is it?
That is the rub. As soon as a law, passed by congress, or is interpreted in such a way as to violate the separation of powers, it is unconstitutional.
The FISA court of review in its dicta was advising both the FISA Court and the legislative branch to tread lightly when they get close to that divide.
The laws of war are a general outline of how a war is run. Congress does not have authority to specify what tactics are used when they authorize Military Force.
The object of Military Force is to prevail. Force means just that. It is not democratic nor does it require the permission of those it is used against. In civil terms it is a wholesale violation of the opponent's "rights".
It is intended to be that, and is why the Constitution does not provide the normal "rights" to the opponents of that Force. The opponents are Forced to comply. It is not intended that they have any choice in the matter.
As such, any "law" that infringes on the operation of the Commander in Chief in the operation of the Military Force is unconstitutional because of the Separation of Powers.
Congress can rescind the authorization to use Military Force, or refuse to fund it, but they cannot step in and command the operation.
Military commissions are provided by the Constitution? Where?
I can understand the idea that a law might conflict with the Constitution, but my challenge was to the notion that the same law would conflict with the Constituion when it's in one area of the federal code, but not conflict when it's in another. It's counterintuitive, to say the least.
It did just that when it authorized the Quasi-War with France in 1798. It limited the executive to only seizures of French shipping. And SCOTUS confirmed in Bas vs Tingy that Congress has the power to do this.
Congress can rescind the authorization to use Military Force, or refuse to fund it, but they cannot step in and command the operation.
But they can limit it. Providing rules and restrictions for something is not the same as commanding it. Congress doesn't run businesses when it provides rules of commerce, and it doesn't command the military when it provides rules of war.
Rasul v. Bush, 542 US 466 (2004)
http://laws.findlaw.com/us/000/03-334.html
Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.
Citizens of Britain, Australia and Kuwait
Captured in Afghanistan
Classified as "enemy combatant"
Held at Gitmo
Asserted a right of access to United States courts
United States courts have jurisdiction under 28 USC 2241 to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay
Congress amended 28 USC 2241 (Graham amendment) to limit detainee access to United States courts
The Padilla case is also pending, and relevant (citizen of US, "captured" at O'Hare, held other than at Gitmo)
Hamdan v. Rumsfeld will be heard by SCOTUS on March 28th. Summary and current "status" ...
Citizen of Yemen
Captured in Afgahnistan
Classified as "enemy combatant"
Held at Gitmo
Asserted entitlement to prisoner of war status
If it is in the Civil Law, it would be constitutional.
If it is intended to regulate how the Commander in Chief exercises his authority to use Military Force or defend the country, it would be unconstitutional.
Note that the President takes an oath to defend the country, the congress does not.
Information gathered would not be admissible in civil court, but could be used in a Military Commission.
Spies and saboteurs (unlawful enemy combatants) can be tried by Military Commission whether a citizen or not.
You mean alleged spies and saboteurs. And that means the military gets to decide whether or not these people fall under military jurisdiction. That effectively places them over the civil jurisdiction.
OK, But they did not put restrictions on intelligence gathering in the Authorization to use Military Force.
I suppose they could amend the authorization and add it now, but I think the political fallout would be such that they won't do it.
Bush could veto it, so it would have to be by 2/3 of both houses. Unlikely.
It has always been that way in time of war. Courts are not equipped to decide the issue.
They are under the part that says about the Commander in Chief. Article 2, section 2
They are provided under Article 1, section 8 where the poser of Congress to provide rules for the armed forces.
They are in the Laws of War, which were passed by Congress and signed by the President in the 1700s, which regulate how wars are run.
Military Commissions or Tribunals are nothing new.
Though I don't disagree about spying on people residing outside the US, the first 10 Amendments to our Constitution (Bill of Rights) are restrictions on the Government, and are not limited to US citizens.
That claim is probably correct.....
No reason to read on, even the author believe the C-in-C has the authority to PROTECT & DEFEND the United States of America.
The utter obsurdity of the NOTION that the President has the authority to use any and all means to defend the United States of America against our enemies, which INCLUDES using NUCLEAR WEAPONS to KILL the ENEMY, but does NOT have the authority to listen to the enemy's phone calls, leaves ONE speechless!!
That is true except for unlawful enemy combatants, who fall under the Laws of War which do not contain any of the first 10 amendments or right of habeas corpus.
The Laws of War apply to both citizen and non-citizen alike.
You mean the alleged enemy's phone calls. If there was no uncertainty over who the enemy is and is not, then there would be absolutely no controversy here.
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