Posted on 11/20/2001 11:10:54 AM PST by dead
like i said, stick to the original title, not the front page teaser. the original title was "assault on liberty".
this is my final word on this. thanks for your cooperation.
"Assualt on Liberty" is the title for the series of articles they are publishing..... the sidebar a few paragraphs down in the article list all four of them.... If you open any of them, "Assualt on Liberty" appears at the top and then the particular article title follows.....
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so "Abandoning the Constitution to Military Tribunals" was the original title. i have restored it.
When did Congress pass this law? As I understand the Constitution, only Congress can pass laws.
"The UCMJ IS part of the federal code. It was never 'incorporated' into it. You make it sound as if the UCMJ was created by the military and that Congress simply adopted it."
As I remember from my UCMJ classes, Congress directed the services to develop a common set of rules and regulations that would apply to all services to replace those developed by each service so that all servicemen would be treated in a consistent manner. This set was submitted to Congress that codified these rules and regulations into law, the US Code. I believe that is consistent with my original statement.
"Once again, the UCMJ applies only to our soldiers and POWs. The Bush EO makes it apply to any foreignor he chooses. Sound inconsistent?"
No, the UCMJ also applies to those subject to a tribunal. Tribunals are normally reserved to those who violate the law of land warfare and who are not US Servicemen.
"The UCMJ provides for appeals up to the Supreme Court. The Bush EO forbids appeals before ANY court EVER. Sound "inconsistent"?"
No, the EO specifically tasks the SecDef to develop post trial procedures (that includes appeals). That said, you read too much into the EO. The EO does not forbid appeals to courts. I believe the section that has you upset ensures the procedings will be restricted to the military commissions and the appeals process defined by the SecDef. If this has to be consistent with the UCMJ, then it will include the Military Court of Appeals and USSC. In any event, you'll have to see the SecDef rules before making this claim.
"The UCMJ provides for habeas corpus. The Bush EO abolishes the right of habeas corpus. Sound "inconsistent"?"
Once again, no. The EO does not address habeas corpus. The SecDef is directed to develop rules and regulations for the conduct of the tribunals. This is properly addressed in those rules and regulations.
"The UCMJ requires unanimity for a death sentence. The Bush EO requires only 2/3. Sound "inconsistent"?
For once, you're right. I suspect the EO was hurriedly drafted and no one noticed the distinction. I suspect the EO will be changed.
"The UCMJ requires a formal indictment and the right to cross-examine the witnesses. The Bush EO requires only the president's signature. Sound "inconsistent"?"
And again, no. The SecDef is tasked to develope the rules and regulations governing the tribunals specifically including pretrial procedures. The procedures for an indictment will properly be included in those rules and regulations.
"The list could stretch out indefinitely."
So far, there is only one inconsistency, the number of votes for the death penalty. Hardly, indefinite.
No, the UCMJ also applies to those subject to a tribunal. Tribunals are normally reserved to those who violate the law of land warfare and who are not US Servicemen.
That is incorrect. Cite the statute if you disagree. You may be thinking of those subject to court martials. (Even then, the Code applies only to war criminals in the cusotdy of the armed forces; not any Tom, Dick, or Harry sitting in Podunk, Iowa, and certainly not the 1,400 prisoners currently being held.) But even if you were correct, the jurisdiction of the EO is far broader than anything in the UCMJ. If it were not, what need would Bush have had to define the jurisdiction in Section 2(a)?
No, the EO specifically tasks the SecDef to develop post trial procedures (that includes appeals). That said, you read too much into the EO. The EO does not forbid appeals to courts.
I'm reading too much?
I think you are reading too little.
Section 4(b)(8) puts final review of any conviction before the President.
Section 7(b)(2) specifically states there will be no recourse to the courts.
Once again, no. The EO does not address habeas corpus. The SecDef is directed to develop rules and regulations for the conduct of the tribunals. This is properly addressed in those rules and regulations.
Habeas Corpus allows any person detained by any branch or agency of the government to petition an Article III court for relief.
Section 7(b)(2) specifially states no accused shall ever be allowed to petition any court for relief.
"The UCMJ requires unanimity for a death sentence. The Bush EO requires only 2/3. Sound "inconsistent"? For once, you're right. I suspect the EO was hurriedly drafted and no one noticed the distinction. I suspect the EO will be changed.
I WROTE:
"The UCMJ requires a formal indictment and the right to cross-examine the witnesses. The Bush EO requires only the president's signature. Sound "inconsistent"?"
And again, no. The SecDef is tasked to develope the rules and regulations governing the tribunals specifically including pretrial procedures. The procedures for an indictment will properly be included in those rules and regulations.
You just don't get it....
Before ANY person is caught up in the judicial system as set forth in the UCMJ, there must be a charge -- an indictment so to speak.
The EO on the other hand, can have someone detained merely by the President signing an order. (Section 2(a)). The Sec. of Defense then arrests and detains the individual. (Section 2(b)).
I'd also point out that the EO allows the trial to take place at "any place." This is directly contrary to Article III of the Constitution.
You are missing the bigger picture here. The UCMJ is a JUDICIAL system. Article III judges oversee it. The Executive branch does not have the authority to judge ANYTHING.
But even MORE fundamentally... You are sitting here arguing that the EO changes nothing in the UCMJ (except the 2/3 thingie) when the EO itself states "the principles of law and the rules of evidence generally recognized in the trial of criminal cases" will not apply. (Section 1(f))
Excuse me???? What country have you been living in? I guess the survivors of Ruby Ridge and Waco know first-hand the meaning of "neurotic paranoia." Wait. They must have been non-citizens. The government would never have fired on women and children if they were U.S. citizens. You're probably right. What have we got to fear?
FDR convened his tribunal in total secrecy and when the NAZI's lawyer petitioned for a writ, FDR gathered the Supremes post haste, not Congress. Was FDR's tribunal convened by the judiciary or the military?
Would you provide some source that speaks to who actually ordered the tribunal in 1942?
I disagree based upon the instruction I've received on the UCMJ in a variety of military course, most recently Command General Staff College.
"(Even then, the Code applies only to war criminals in the cusotdy of the armed forces; not any Tom, Dick, or Harry sitting in Podunk, Iowa, and certainly not the 1,400 prisoners currently being held.) But even if you were correct, the jurisdiction of the EO is far broader than anything in the UCMJ. If it were not, what need would Bush have had to define the jurisdiction in Section 2(a)?"
This section defines a class of persons to be treated as "war criminals".
"Section 4(b)(8) puts final review of any conviction before the President."
The convening authority reviews the outcome of a courts martial or tribunal. This EO states that Bush will be the convening authority. Appeal may take place during the review process, but it includes much more, the US Court of Military Appeals and USSC for example.
"Habeas Corpus allows any person detained by any branch or agency of the government to petition an Article III court for relief."
And a military tribunal may not function as an Article III court? Where do military personnel file habeas corpus?
"Before ANY person is caught up in the judicial system as set forth in the UCMJ, there must be a charge -- an indictment so to speak."
The charging official is the President.
"The EO on the other hand, can have someone detained merely by the President signing an order. (Section 2(a)). The Sec. of Defense then arrests and detains the individual. (Section 2(b))."
And, how does this differ from other criminal cases? You have an indictment, the Presidential order, then an arrest, detention, and trial, in that order.
" I'd also point out that the EO allows the trial to take place at "any place." This is directly contrary to Article III of the Constitution."
Are you claiming that the UCMJ is unconstitutional. Courts martial (trials) can take place "any place" too.
"You are missing the bigger picture here. The UCMJ is a JUDICIAL system. Article III judges oversee it. The Executive branch does not have the authority to judge ANYTHING."
How then does the Executive Branch administer the UCMJ? Doesn't that require judging? Aren't the military judges members of the Executive Branch?
"But even MORE fundamentally... You are sitting here arguing that the EO changes nothing in the UCMJ (except the 2/3 thingie) when the EO itself states "the principles of law and the rules of evidence generally recognized in the trial of criminal cases" will not apply. (Section 1(f))"
But, even more fundamentally, "836. ART 36. PRESIDENT MAY PRESCRIBE RULES (a) Pretrial, trial, and post trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter."
You will note the part about "so far as he considers practicable". (Section 1(f)) is nothing more than a "finding" of the extent this is practicable.
Would you provide some source that speaks to who actually ordered the tribunal in 1942?
Certainly.
First, let's get our terms straight. FDR had authority to convene the tribunal -- the executive branch always does that.
The issue regards the nature of the tribunal and the source of its creation.
The tribunal at issue in FDR's day was not created by Presidential decree. Rather it was created by Congress. The following excerpt is from the Supreme Court case of Ex Parte Quirin, 317 US 1:
By the Articles of War, 10 U.S.C. 1471-1593, 10 U.S.C.A. 1471- 1593, Congress has provided rules for the government of the Army. It has provided for the trial and punishment, by courts [317 U.S. 1, 27] martial, of violations of the Articles by members of the armed forces and by specified classes of persons associated or serving with the Army. Arts. 1, 2. But the Articles also recognize the 'military commission' appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by court martial. See Arts. 12, 15. Articles 38 and 46 authorize the President, with certain limitations, to prescribe the procedure for military commissions. Articles 81 and 82 authorize trial, either by court martial or military commission, of those charged with relieving, harboring or corresponding with the enemy and those charged with spying. And Article 15 declares that 'the provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions ... or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military commissions ... or other military tribunals'. Article 2 includes among those persons subject to military law the personnel of our own military establishment. But this, as Article 12 provides, does not exclude from that class 'any other person who by the law of war is subject to trial by military tribunals' and who under Article 12 may be tried by court martial or under Article 15 by military commission.
In short, FDR was merely executing the laws enacted by the legislature. And, at the end of the day, the Judiciary had the final say on the verdict of the accused.
In this case, the Executive branch has enacted the law, and the executive branch has the final say on the verdict of the accused.
Why does the bold print only apply to FDR? I have seen nothing yet that states Congress specifically authorized those tribunals in 1942.
As for your analysis, I've heard many others from both ends of the spectrum come to the opposite conclusion. Yours is an informed opinion but thats it, you're not the final arbiter. From what I have seen and heard you will end up helping write the minority opinion.
By the way, I think Dukes is a more compelling argument. But then again, I have an agenda. I want as many terrorists dead as possible
If by secret you mean closed to the public, I have no problem with that. This country has had secret-trials for national security reasons for well over 200 years.
Why does the bold print only apply to FDR? I have seen nothing yet that states Congress specifically authorized those tribunals in 1942.
I cited that passage becasue it is a good summary of the Articles of War passed by Congress which authorized the military tribunal system utilized by FDR. The statutes themselves are found at 10 U.S.C. 1471-1593. (They were repealed after the war, of course, but you should be able to find a copy on the internet.)
With all due respect, I sense a basic confusion as to how the three branches of government work in relation to a judicial system.
Congress doesn't convene a trial. It doesn't 'authorize' the Executive branch to move forward with a trial in a particular case. That is, FDR did not have to ask Congress for permission to try those particular Germans.
Rather, our Legislative branch passes LAWS setting forth the procedures and rules pertaining to trials. Every Federal Court in this country was created by Congress. All the rules -- how many jurors, what kind of evidence comes in, what the penalties are, what the accused may and may not do during the trial, etc., etc. -- are LAWS and passed by Congress.
Now... The Judicial branch is the branch in charge of actually hearing the case. They decide how Congress' laws are to be interpreted and applied to the particular case at hand. Congress can create quasi-courts -- such as administrative courts or military tribunals -- which aren't technically organs of the Judicial branch. However, at the end of the day, an Article III judge must have the final say.
The Executive branch serves as the prosecutor. It's job is to convince the Judicial branch that a law was broken. The Executive branch can do NOTHING to the accused without first having the Judicial branch OK it. Does the Executive branch want to execute a terrorist? It's first gotta have the Judicial branch's permission. This is what is meant by "due process."
Returning to FDR -- the tribunal, its basic procedures, and its organization was created by Congress. The Judicial branch had the ultimate authority to determine if the verdict was correct. And, the Executive branch (FDR) had the job of prosecuting the accused.
But then again, I have an agenda. I want as many terrorists dead as possible
A laudable goal perhaps.
And one that can easily be accomplished without gutting the Constitution.
I know I lack clarity and legal training but I know the meaning of hubris.
You insisted that FDR did not issue an order. That is not true.
Do you realize that the UCMJ is what Bush cited as his authority?
By the authority vested in me...by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force Joint Resolution (Public Law 107-40, 115 Stat. 224) and sections 821 and 836 of title 10, United States Code, it is hereby ordered...
Aiiiieeee...
jwalsh07, that is the way it works! Forget about the EO for a moment and consider a regular old court martial. Congress has set forth a procedure for court martials. It has also set forth a procedure for convening one. Basically, Congress says, "Mr. Executive branch, here are the laws regarding court martials. Whenever you find someone who has broken one of our laws, you can convene one."
Back in WWII, Congress created a system for having a military tribunal in the Articles of War. The Articles also said, "The President can set this system up and start the ball rolling whenever he wishes."
That's what FDR did.
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