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.

"I'd also like you to address Section 7(b)(2) of the EO. This section abolishes writs of habeas corpus."

I'm presuming that you understand what "abolish" actually means. Of course, all American citizens still have the right of habeas corpus. Under that assumption above then, habeas corpus can not have been "abolished" by definition.

Now someone (probably a flaky college professor) has obviously tried to convince you that habeas corpus has been "abolished" with the creation of President Bush's military tribunals. What those flakes won't tell you (because facts interfere with their ideology) is that foreign beligerents never had the right of habeas corpus in the first place. It's pretty hard to "abolish" something when one party never had said right and all other parties still retain that right, so let's refrain from claiming that habeas corpus has been "abolished" in the future, shall we.

As for President Bush's authority to create military tribunals in which to try foreign beligerents (some of whom may even be illegally on U.S. soil), please recall that the civilian President of the United States is also the supreme military commander in chief in complete control of ALL aspects of military operations and personnel. Military tribunals therefor fall under his authority per our Constitution.

To abolish Habeas Corpus, it must exist in the first place. Sure, Habeas Corpus exists for U.S. citizens, but where and when did foreign beligerents gain the right of Habeas Corpus?

"The Writ of Habeas Corpus was designed to protect every person from being detained, restrained, or confined by any branch or agency of the government." Scaggs v. Larsen, 396 U.S. 1206 (1969).

Anyone may file a writ of habeas corpus. Even convicted terrorists.

It also goes without saying that "[i]n absence of Congressional action a writ of habeas corpus cannot be denied in a proper case even in wartime." Ex parte Stewart 47 F.Supp. 410 (D.C.Cal.1942)

And, of course, the most famous case on the matter:
"The President, under this clause, cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it." Ex parte Merryman, 17 Fed.Cas.No. 9,487 (1861)(Chief Justice Taney.)

I've been reading your posts. It would greatly shock and dissapoint me if you are among those uneducated lost souls floating around these threads who think the "constitution does not apply to non-citizens." Surely, you understand the Constitution restricts the actions of the government regarldess of who it is dealing with. If you do not grasp this basic feature of our government, don't bother replying. I don't mean to be rude, but a discussion would be pointless. However, I am confident you DO understand how the constitution works and that you DO understand that ANY person may file a writ of habeas corpus.

What those flakes won't tell you (because facts interfere with their ideology) is that foreign beligerents never had the right of habeas corpus in the first place. It's pretty hard to "abolish" something when one party never had said right and all other parties still retain that right, so let's refrain from claiming that habeas corpus has been "abolished" in the future, shall we.

I guess I was wrong. You DO appear to be one of those who think the US Government may do whatever it wants to non-citizens.

Sorry to have bothered you.

In any case, I need to get back to work. I am currently filing two habeas corpus petitions with the 5th circuit on behalf of two clients who are Mexican citizens. I'll be sure to tell the judge and the other attorneys at the hearing that for the past two hundred years we have all been erroneously filing writs on behalf of non-citizens. I'm sure everyone will have a big laugh over it.

Good day sir. And by the way, the next time you see a non-citizen being arrested, you might want to tell the cop to just go ahead and shoot him. Afterall, none of the protections in the Constitution apply to non-citizens. Right? Of course right. I'll let you get back to sleep now...

"I guess I was wrong. You DO appear to be one of those who think the US Government may do whatever it wants to non-citizens."

No, I don't appear to be someone who matches that simplistic description at all.

I do know that I said foreign beligerents, and yes, the U.S. maintains the right to execute, especially during live combat, all foreign beligerents.

No, armed foreign combatants may NOT file for a writ of habeas corpus, even if they have successfully invaded United States territory.

Yes, foreign beligerents/combatants can be tried in military courts. No, those combatants may not be granted all rights and priviledges of U.S. citizens.

Your law career and education were wasted. I'd suggest that you ask for a refund from your university, except that I'm rather glad that someone with your views got ripped off thusly. Good riddance.

I do know that I said foreign beligerents, and yes, the U.S. maintains the right to execute, especially during live combat, all foreign beligerents.

I was under the impression you were discussing Bush's EO.

The EO does not apply to "foreign beligerents". It applies to any and all foreignors suspected of terrorism, former and current members of Al Quaida, and folks who harbor members of the previous two groups.

During combat, if an enemy is captured, he is a POW. If the Government wishes to try him, Chapter 47 of Title 10 applies, and the POW is afforded the exact same rights as a US soldier. In other words, the EO does not apply to POWs. Nor does it apply to "foreign beligerents."

I am beginning to wonder if you have even read the EO. Actually, I am beginning to wonder if I have not confused you with another poster. I think I did. I'll go back through the thread and make sure.

Like I said before, sorry to bother you. I would like to ask one additional question, however.... Why do you post on threads pertaining to Constituional and Statutory issues when you obviously have no legal training whatsoever or even the most rudimentary familiarity with the documents you discuss? Do you also log on to Medical sites and post diatribes about the best way to perform appendectomies?

"Why do you post on threads pertaining to Constituional and Statutory issues when you obviously have no legal training whatsoever or even the most rudimentary familiarity with the documents you discuss?"

You must be kidding. Your "interpretation" of our Constitution is that the FAA is illegal and that Congress can't delegate the authority to issue and verify postage stamps to mere employees of the Post Office.

You asked for specific cites of our Constitution that supported what I laid out (e.g., that Congress can delegate the power to verify stamps to people outside of Congress), and I posted those cites.

At best, you can ignore what I say, but you are deluding yourself if you think that you understand our Constitution.

Not only have you not read the statutes you discuss, but you also do not read this thread.

You have me utterly confused with somebody else. I have never once mentioned the FAA or Post Office.

Scroll back up and figure out who it is you are responding to before posting.

How embarassing (for you).

An easy mistake to make. Gee, I got TwoDees (who claims the FAA is illegal and that Congressmen have to verify stamps because they can't delegate any Congressional power to anyone outside of Congress) confused with backup, who claims that a single EO "abolished" the Constitutional protection of habeas corpus (even though backup admits to filing for a writ of habeas corpus today, long after the EO in question alledgedly "abolished" that protection).

Goodness, my apologies to you both.

Only lawful combatants need to get treated as POWs. Under Quirin, unlawful combatants are subject to trial by military commission, under the customary law of war. The German saboteurs were held in Quirin to be unlawful combatants. I don't think there's much doubt that the al Qaeda people abroad are unlawful combatants, and it is at least arguable that their members and accomplices in this country are also unlawful combatants. If an attempt is made to try the latter by military commission, I imagine at least the first case will be litigated on the matter. Myself, I would expect the Supreme Court to reaffirm Quirin and hold that such people also are unlawful combatants. But time will tell. I don't understand why you regard this view as outrageous. It is at least a strong, easily defensible view. And, as I say, myself, I expect the courts to uphold it.

Congress can only pass legislation. Enforcement is the job of the Executive branch, regardless of what any would be tyrant may "find" in the jurists' amendment. Enforcement of the provisions of the 14th by Congress is limited to the passage of legislation, according to the language of the amendment. What makes you think that by passing legislation, Congress is delegating their legislative power to those who enforce the law?

The President isn't delegating any powers to another branch by assigning tasks to military leaders or civilian contractors. Even by assigning judges to tribunals, the President is not granting them any of his powers.

Congress has no rights at all, it has powers. The power to establish courts is indeed a Congressional power. However, legislation which defines jurisdiction of courts is not a delegation of legislative power to those courts. Congress would have to empower the courts to legislate, which they haven't quite gotten around to yet. Let's don't give them any ideas. It's bad enough that they allow unconstitutional agencies to write regulations which the judiciary then pretends have the force of law.

If you'll buy yourself a copy of that ingenious document instead of using the text on a website, you'll be able to form a single response instead of hacking your post up into sections while you surf back to the site where you're reading our founding document.

Thanks for at least reading the Constitution, though. Most people I've discussed these issues with have been more pharasaical about it, basing all their arguments on commentary from Tribes or some other liberal poseur.

Now that you've broken into the text, you will find that reading the document and comparing it to the actions of politicians in government is very enlightening. You can easily see that most of what the politicians in DC do in a given day is clearly unconstitutional. I'll give one suggestion if you'll consider it: stick to the text and ignore all the ridiculous extensionist "interpretation" by the Marxist professors who make a living fooling people about the Constitution. The document is very short and concise, written in plain, spare language and needs no interpretation. You'll come to love it after you've been reading it for awhile. Most conservatives do.

I'm unable to give you any cite of legislation or constitutional article which empowers the President to establish this system of tribunals. My view is that he is acting outside his proper powers by issuing any EO whatsoever which is supposed to be binding on anyone other than Executive branch employees or the military.

My friend, southack, refers to the writ of habeus corpus as a right. Actually, it's more properly referred to as the privilege of the writ of habeus corpus, as you probably know. The President has no power to suspend the writ, as Roger Taney properly pointed out in his Merryman opinion. Unfortunately, Lincoln didn't take it as a slap-down, but instead as an affront to his wrongfully assumed authority. Most of the slapping down of Lincon's bizarre usurpations of power were handed out after his death.

Thanks for your response. It's nice to converse with someone who is awake when he posts.

Your servant, sir.

Edd

The tribunals that would be established by President Bush's order would be established by his executive branch in accordance with an identical provision of the equally congressionally passed Uniform Code of Military Justice, the successor of the Articles of War. There is no difference.

Hold on here...

If Bush wanted to argue that the detained foreign suspects were POWs and run them through the UCMJ I don't believe anyone would be complaining. (Some might contend the definition of POW was being stretched to far, but that would be a matter for the courts.)

That is NOT what has occured, however.

Those subject to Bush's EO will NOT be run through a UCMJ trial. Rather, the EO creates out of whole-cloth a completely different tribunal system; one with none of the safeguards built into the UCMJ (or the Constitution for that matter.)

That is the difference.

FDR did not enact his own tribunal in blatant opposition to the one enacted by Congress.

The old Articles of War, while most of their provisions concerned courts martial, had one section that allowed the president to set up military commissions with rules that he was empowered to promulgate. FDR did so for the German saboteurs, and the Supreme Court held he was entitled to do so, under that provision of the Articles of War and the customary law of war.

The current Uniform Code of Military Justice, again, like the old Articles of War, chiefly concerns courts martial, but it has the same provision as the old Articles of War allowing the president to set up military commissions under rules that he is entitled to promulgate. The provision is identical to that in the old Articles of War. President Bush has issued an order patterned after FDR's order under that provision.

If FDR did not contravene Congress -- and the Supreme Court held he did not -- I do not see how President Bush has.

I believe we are making progress, aristeides... You are almost there.

Everything you said regarding FDR is correct -- the Articles of War set up a tribunal system and FDR used it.

Now.... Let's compare that to what is going on with our dear friend Mr. Bush.

In the preamble of the EO you will see that Bush has cited THREE sources of statutory authority for what he is doing. The first is the yet-to-be-codified Resolution passed a few weeks ago which says nothing about tribunals.

The second and third statutes are from the UCMJ. I urge you to read them. 10 USC 820 and 10 USC 836. These statutes state that the President may make certain regulations and procedures in order to implement the military tribunals set up by Congress. HOWEVER, Congress wisely added that no regulation or procedure promulgated by the President can be "contrary to or inconsistent with" ANYTHING in the UCMJ.

You follow me?

Now, the EO is wildly contrary to the current UCMJ in numerous important respects: no juries, no appeals, no voire dire, no indictment, only a 2/3 decision for the death sentence instead of unanimity, no habeas corpus, and an enlargement of the UCMJ's jurisdiction to include ANY foreignor Bush desires. To name a few.

Are we getting closer to being on the same page here?

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