Posted on 11/18/2001 1:30:37 PM PST by It'salmosttolate
Bush Insisted Only He Should Decide Who Should Stand Trial Before Military Court
NEW YORK, Nov. 18 /PRNewswire/ -- After he signed an order allowing the use of military tribunals in terrorist cases, President George W. Bush insisted he alone should decide who goes before such a military court, his aides tell Newsweek. The tribunal document gives the government the power to try, sentence -- and even execute -- suspected foreign terrorists in secrecy, under special rules that would deny them constitutional rights and allow no chance to appeal.
(Photo: http://www.newscom.com/cgi-bin/prnh/20011118/HSSA005 ) Bush's powers to form a military court came from a secret legal memorandum, which the U.S. Justice Department began drafting in the days after Sept. 11, Newsweek has learned. The memo allows Bush to invoke his broad wartime powers, since the U.S., they concluded, was in a state of "armed conflict." Bush used the memo as the legal basis for his order to bomb Afghanistan. Weeks later, the lawyers concluded that Bush would use his expanded powers to form a military court for captured terrorists. Officials envision holding the trials on aircraft carriers or desert islands, report Investigative Correspondent Michael Isikoff and Contributing Editor Stuart Taylor Jr. in the November 26 issue of Newsweek (on newsstands Monday, November 19).
The idea for a secret military tribunal was first presented by William Barr, a Justice Department lawyer -- and later attorney general -- under the first President Bush, as a way to handle the terrorists responsible for the 1988 bombing of Pan Am 103 over Lockerbie, Scotland. The idea didn't take back then. But Barr floated it to top White House officials in the days after Sept. 11 and this time he found allies, Newsweek reports. Barr's inspiration came when he walked by a plaque outside his office commemorating the trial of Nazi saboteurs captured during World War II. The men were tried and most were executed in secret by a special military tribunal.
That happens right now! Think about the two girls on trial by the Taleban, think about the "peace" activist in Peru. Yes we complain but the law is the law in what ever country you happen to be in. That is no argument at all, just another emotional rationalization.
No the Gestapo just gave them a shower. You are going to have to do better than that. You are not making any case at all other than absurd non-analogies.
This is a big deal. It is an cynical and unprecidented attack on the constitution. Conservatives do their cause an injustice when they roll over for any power grab by politicians who call themselves conservative. Always look to your principles. One of the highest goals a conservative in this country can have is to conserve the US Constitution. The attack is not always from the left flank.
As I've said before, I think the point is moot. Bin Laden will not surrender. You won't see the army carting him back alive for trial -- either an open, legal trial, or a secret and unconstitutional military one. We have nothing to gain, but we have the Constitution to lose.
105 posted on 11/18/01 5:21 PM Pacific by marajade
Can't be more specific, but Congress passed a resolution that allows Pres Bush to send armed troops. If Pres Bush doesn't know where his asrbitrary power ends, I'm sure there 's a den of Dems who'd be happy to tell him--but the vote was nearly unanimous.
(snip)
Sec. 2. Definition and Policy.
(a) The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:
(1) there is reason to believe that such individual, at the relevant times,
(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and
(2) it is in the interest of the United States that such individual be subject to this order.
(b) It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4.
(c) It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense.
(snip)
More interesting reading: Naturalized citizens pose problem for investigators
If there are naturalized citizens whom law enforcement wants to question, the challenge will be rooting them out in a constitutional manner. That task is all the more urgent because more lives could be lost if future terrorist plots are not quickly upended.
I guess congressional debate might have cleared up some of the confusion but I doubt it.
(c) If a person who shall have been naturalized after December 24, 1952 shall within five years next following such naturalization become a member of or affiliated with any organization, membership in or affiliation with which at the time of naturalization would have precluded such person from naturalization under the provisions of section 313, it shall be considered prima facie evidence that such person was not attached to the principles of the Constitution of the United States and was not well disposed to the good order and happiness of the United States at the time of naturalization, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the revocation and setting aside of the order admitting such person to citizenship and the cancellation of the certificate of naturalization as having been obtained by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively.
"The eight men had been born in Germany and each had lived in the United States for substantial periods. Burger had become a naturalized American in 1933. Haupt had entered the United States as a child, gaining citizenship when his father was naturalized in 1930."
Now, here are some more quotes taken from the decision in Ex Parte Quirin:
"Our Government, by thus defining lawful belligerents entitiled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privelege, including those who, though combatants, do not wear 'fixed and distinctive emblems.'"
"As we have seen, entry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and warlike act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents."
"Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war."
So, you see, citizens indeed can be covered by such courts, and have been in the past. That is why I think allowing Bush to proceed with such a court without a declaration of war sets a very dangerous precedent.
Please post your credentials that allow you to make such an absolute statement. Hyperbole is a poor excuse for basing an argument. Your assertion that this is “unprecedented” is proof positive that you are ill informed.
Bush and Ashcroft won't be in charge forever. Some leader or leaders in the future will use these new "laws against terrorism" to terrorize law-abiding citizens.
Don't let your Republicans-right-or-wrong partisanship cloud your better judgement. Make no mistake about it, Bush has put into place the instruments of our oppression.
A declaration of war is for one purpose in the constitution. It prevents a president from unilaterally acting as CIC and attacking other countries. It is part of the checks and balances. The war has been declared on us as a "Jihad". The Congress in the joint resolution gave Bush full war powers that a declaration of war would have but left them as co-equal partners in any future actions after Afghanistan. The constitutional protections were and are in effect. WW2 required a DOW because were actually going to war with two governments that had popular support of the people and in effect declaring that we were at war with the people of Japan and Germany.
I'm sure the Bush administration has followed the law as much as they need to but my problem is why did this issue have to be presented as an EO?
Also telling is the following:
The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:
Don't you think that that is a bit of a stretch of separation of powers?
More overblown rhetoric that negates your entire argument.
Everyone gets constitutional protection. Read the Bill of Rights. Look for the word "citizen". You won't find it. The constituion speaks of "persons" and "the people". The only people who are not entitled to the full protection of the constitution are US soldiers and sailors serving in time of war. Pay particular attention to the fifth and sixth ammendements.
The constitution says quite plainly that Bin Laden, if he comes to trial, is to be tried by a jury of the state of New York.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
(a) The term "individual subject to this order" shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:
(1) there is reason to believe that such individual, at the relevant times,
(i) is or was a member of the organization known as al Qaida;
He is not saying that he is going to change the term "non citizen" just that from time to time he will determine that he will put into writing individual names of Non citizens that meet the two conditions.
By definition these are NOT criminal prosecutions.
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