Posted on 11/01/2001 3:58:19 AM PST by Polybius
And what do we do if 10 years down the road, some liberal idiot, i.e., Clinton, decides to "pardon" these people as a show of solidarity, i.e., FALN, or the need to win an election?
De jure, then, we aren't at war with any State, and our president is simply pursuing prudent--but not secret, as he is authorized to do--action against some pirates. We have had a CIA for half a century, and I for one would be amazed to learn that it had never killed a foreign national abroad. So establishing a military tribunal is actually far more lawyerly than possible alternatives, overseas.
As to terrorists inside our borders, that is in principle a somewhat different matter. The best analog of the present situation is the Civil War. There was a case where you had people who had been native born citizens waging war on the U.S. When a Confederate soldier was captured, he was on "U.S." soil so far as the federal government was concerned. But such people were generally paroled after the hostilities were ended, if not before.
Undoubtedly some of the sleepers in the U.S. have availed themselves of the opportunity to become naturalized citizens, and that puts them in different legal standing from aliens. Yet they committed perjury in taking an insincere oath of loyalty to the U.S., and deserve the greater condemnation on that account. Of course we have of late seen influential people vigorously defending insincere oaths by a certain member of the bar not now accredited to appear before the SCOTUS . . .
On which account I would like to see the Constitution amended to make the governors of the nation's States the tribunal for impeachments.
Putting foreigners on our soil under the jurisdiction of a military tribunal is entirely proper and would be within the President's war powers once war is declared.
That's exactly right. That's why we need effective justice using military tribunals. The extermination of terrorists may not always be feasible and some terrorists will be apprehended rather than killed. These terrorists will go through our civil judicial system unless Congress declares war or passes a law permitting the use of Military tribunals against the terrorists who committed these atrocities.
"Congress should pass such an act - in part because terrorism is very different from other crime. For one thing, existing international laws prohibit such activities. As Crona and Richardson note, when terrorist acts of aggression target innocent civilians, they are not "legitimate acts of war under international law, but rather must be regarded as war crimes or crimes against humanity." The 1949 Geneva Conventions prohibit attacks on civilians. And the Geneva Protocol II expressly prohibits "acts of terrorism.""Nevertheless, we have so far treated terrorist as ordinary criminals - charging them with common law crimes, and give them all the protections of our criminal justice system. The 1993 World Trade Center attack, for example, led to indictments that were tried before a judge in the Southern District of New York.
"Granted, Congress has not declared war in authorizing President Bush "to use all necessary and appropriate force against" those involved with "the terrorist attacks that occurred on September 11, 2001." But it would trivialize what was done to treat it as ordinary crime."
But who decides whether the individual is tried before the tribunal?
And, to whom does the individual appeal this decision?
How does one know if the individual is a "foreign enemy"?
Those are good questions. I presume, without any other reference, that the ultimate decision to use a tribunal would rest with the President of the United States as Commander in Chief of the Armed Forces. Bush has already indicated his approval of the process by issuing the EO and directing the Sec. of Defense to select a convening authority. As tribunals would not be used for US citizens, anyone tried by this system would be a foreigner. Whether they are an enemy or not would be decided by the tribunal. A matter that would be fairly obvious in most cases involving the capture of a combatant/saboteur/conspirator during a time of war. It is my understanding that there is no appeals process, although I'm sure someone would launch a Supreme Court protest upon the first use of these tribunals.
Look at the list of enemies in the joint resolution that Congress fobbed off on the President, "permitting" him to conduct a limited war under their supervision. That list of hostiles should be as legitimate in a declaration of war as it is in the joint resolution.
No, first we have to give them a fair trial, and then kill them.
Love your approach, Goodie, got a great laugh from me.
So far on page one I haven't seen the most important reason why this is a necessary step.
How many average people are going to want to serve on a jury and then be marked for reprisals by other terrorists?
I could be wrong about this but here's my take on it. I think it has something to do with an oath the terrorists swear to when being tried in a court. Furthermore, the U.S. courts does not have jurisdiction over these terrorists. They would have to be tried in a Muslim court.
When did he do that?
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed
Aliens are considered to have the rights in the Declaration. But that means that they come from another place where another "government has been instituted among them". They do not have the rights delineated in the Constitution - the Constitution is the framework of the government of the CITIZENS of the United States.
If Aliens have the same rights as citizens under the Constitution, then second amendment rights apply. In which case, the Mexican Army is completely within its "constitutional" rights to march across the border under arms and take up residence in Tucson. Plus they get to vote. You buy that?
Your interpretation of the usage of the word "persons" was argued successfully in one famous case: Plyler v. Doe. But Plyler rests on the 14th, and a comment by Justice Douglas that the founders really did mean just persons, as in anyone who happens to be in the country under whatever auspices. Justice Rehnquist disagreed with him at the time and said so. To say I disagree is to put it mildly.
The Declaration is a human rights document but the Constitution is not. The Constitution is the framework of a "government among men", i.e., Citizens, and is amendable. The Declaration is not.
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