Misstates the opposition’s position and the EO. The EO applies to ALL terrorists ANYWHERE and ALL those who harbor them. It also includes folks who are not terrorists at all. Indeed, if you have at any time ever been a member of al-Quaeda, you are within the EO’s jurisdiction. If you have ever been the landlord of a former al-Quaeda member, you are within the jurisdiction.
(I would also note that Dean assumes at the outset it is possible to obtain “justice” by military trials.)
The critics suggest that the constitutional standards of our criminal justice system should be applied in a military proceeding for war criminals – but that makes little sense.
Wrong. The critics suggest there should not be a military proceeding in the first place.
Many of these critics earlier called for a military response to terrorism. Now they want to demilitarize it.
Irrelevant. For the record, however, I am a critic and I never called for a military response.
In effect, what the critics of military tribunals would have the President do is turn enemy belligerents over to civilian law enforcement authorities for prosecution. To do so, however, would not only be unprecedented, but would set a horrifically bad precedent.
In fact, “enemy belligerents” are considered POWs. Their fate is decided under the UCMJ -- not purely executive military tribunals. Purely executive military tribunals may only be used, according to the S.C., for unlawful enemy belligerents.
America Is At War
Against what country?
Wars, including this war, are fought under well-understood rules. They don't include providing Miranda warnings when capturing an enemy, nor employing the legal niceties of the Federal Rules of Criminal Procedure when punishing them.
Irrelevant.
Nobody claims “Miranda warnings” are required on the battlefield. He’s battling a strawman.
Once captured, however, “lawful enemy belligerents” are subject to a whole set of rules set forth in the UCMJ and international treaty. None of them are subject to solely executive military tribunals.
In any case, keep in mind that the EO applies to people that are in no way connected to Afghanistan, the Taliban, or al Queada.
Congress has formally declared war only four times: in 1812 against Britain, in 1898 against Spain, and for both the First and Second World Wars. Nonetheless, the United States is engaged in the legal equivalent of a formally declared war, as it did in Korea, Vietnam and Kuwait.
Looks like your man disagrees with you regarding whether or not we are in a state of war.
The mere use of the US Military abroad does not constitute a “War”. A “War” is a legal term with real legal consequences. The actions in Korea, Vietnam, etc. are NOT the “legal equivalents” of a declared war; they may be the “practical equivalents”, but not “legal”.
And while no declaration of war issued, Congress did authorize President Bush "to use all necessary force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." By doing so, Congress provided the legal and practical equivalent of a formal declaration of war.
Once again, does the mere use of military force constitute “War”?
Of course not.
Did we declare war on Haiti, Somalia, Yugoslavia, Colombia, etc., etc.?
I’m not going to address this further. There have only been four declarations of war in this country’s history. John Dean states as much.
In all past American wars, our law enforcement officers have turned over enemy belligerents to military authorities. Critics of military tribunals have not explained why it should be different -- or the reverse -- this time.
Apples and oranges.
Once again, keep in mind who the EO covers: people who have NOTHING whatsoever to do with Afghanistan, the Taliban, or al-Quaida.
As the Supreme Court stated in Ex Parte Quirin, "military tribunals … are not courts in the sense of the Judiciary Article [of the Constitution]." Rather, they are the military's administrative bodies to determine the guilt of declared enemies, and pass judgment.
There’s that word again. Who is the declared enemy?
“Terrorists”?
Ha. That’s no different than declaring war on “The Enemy -- whoever or wherever he is.”
The 20th Century has had it’s fair share of regimes in which a perpetual state of war existed against the “enemy of the State.”
China, Cambodia, the USSR, E. Germany, Vietnam, Argentina, Cuba, etc...
Indeed, if it covers all terrorists, why single out al Qaeda, and what is the penalty for being a member, since there is no law on point. But if the order, in fact, covers all terrorists I understand why civil libertarians are distressed.
Ringing support....
Read the EO.
Because these military tribunals are not courts, and because they have been used since before the Constitution was adopted, there are unresolved issues relating to the application of the Constitution. In Quirin the Court noted, "We cannot say that Congress in preparing the Fifth and Sixth Amendments intended to extend trial by jury to cases of alien or citizen offenders against the law of war otherwise triable by military commission," even for infractions "punishable by death."
Dean again dodges the distinction Quirin makes between ordinary POWs and “unlawful enemy belligerents.”
As that was the central deciding factor in the case, why hasn’t he mentioned it?
The answer, of course, is that he knows the EO covers those who under no circumstances could ever be considered “unlawful enemy belligerents.”
So far, Ex Parte Quirin suggests only one question regarding the constitutionality of the President Bush's order: Did the President need Congressional approval before issuing it?
This is nonsense.
Quirin suggests several questions...
Must there be a “declared enemy”?
Must there be a state of war?
What is the difference between a “lawful” and an “unlawful” belligerent?
... to name a few.
There can be little doubt that President Bush has acted just as his predecessors did, namely Abraham Lincoln and Franklin D. Roosevelt. Congress had already given its approval for his actions, through these prior statutes; if it seeks to retain the power to approve each military tribunal order of each President, it must first repeal the applicable provisions of the UCMJ.
Bush’s EO has nothing to do with the UCMJ.
Neither did FDR’s tribunal have anything to do with the Articles of War.
Once again, Dean is disregarding Quirin’s distinction between “lawful” and “unlawful” belligerents.
The remainder of the article does not address any of substantive criticisms.
Though they claim religious and ideological affiliations, their loyalty is seldom with a government, or a nation. They are their own cause.
These people killed five thousand people and caused billions of dollars (maybe more) in damages to structures and the economy. They did it with the malicious intent to bring America to its knees, and to dictate to us what our foreign policies should be.
These thughs exist in many countries, and are of many nationalities, but theese countries may not be supporters of their actions, in fact, they may be unaware of their very existence.
We are at war, with a group of people, not with a nation. We fight against people who recognize no rules of engagement, and to whom a school full of children is as legitimate a target as a military base, if not indeed a more attractive one by its effect on the general population.
In my understanding of the constitution, the war Powers Act of 1973 and all that I have read on the subject, I am satisfied with the current war, and the way it is being conducted.
President Bush requested, several times, that the Taliban turn Usama bin Laden over to the US to stand trial for his part in the act of war perpetrated on the US on 9/11, they refused to hand him over, and did not heed our warning. They are about to become a footnote of history.
Better them than us.
Usama bin Laden waged war against the US, he and any who assisted him, are war criminals, and should be tried by a war tribunal.
Hear me out, I haven't gone over the edge like Hugh, and decided that some people do not have rights, such as the right to a trial, but war tribunals are the right vehicle for this.