Posted on 06/16/2006 1:26:08 PM PDT by Dubya
I just heard on the radio that due to efforts by one of the dads (Pennington I believe was the last name) they are at least relieved of being shackled while outside.
Congressional Code of Military Criminal Law applicable to all military members worldwide
http://www.au.af.mil/au/awc/awcgate/ucmj.htm#SUBCHAPTER%20II.%20APPREHENSION%20AND%20RESTRAINT
809. ART. 9. IMPOSITION OF RESTRAINT
(a) Arrest is the restraint of a person by an order, not imposed as a punishment for an offense, directing him to remain within certain specified limits. Confinement is the physical restraint of a person.
(d) No person may be ordered into arrest or confinement except for probable cause.
810. ART. 10. RESTRAINT OF PERSONS CHARGED WITH OFFENSES
Any person subject to this chapter charged with an offense under this chapter shall be ordered into arrest or confinement, as circumstances may require; but when charged only with an offense normally tried by a summary court-martial, he shall not ordinarily be placed in confinement. When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.
As an aside, and though its been awhile, I used to be a Special Agent in the Air Force Office Of Special Investigation--responsible (among other duties) for Investigating Criminal Offenses of Air Force Personnel--and though the UCMJ may have been revised and/or modified, the core tenets of law cannot have been altered to a degree which would deny those subject thereto, basic rights thereunder.
Everything in context. If you have one cop transporting three prisoners in a car from from the jail to the Court House three miles away, then cuffs and shackles and very appropriate. If you have three guards transporting one prisoner from his cell to an interview room to meet his attorney or mom, all inside the secured portion of the jail, then, in the absence of violent behavior directed at the guards, or a very credible threat of the same, cuffs and shackles are purely for harassment.
Thank you friend. I will. And thank you for your kind words. I'm kind of upset right now.
Regardless of whether these Marines end up getting charged or whether they are guilty of "whatever" the Corps perceives them as having done, there is NO reason to treating them thus and not either informing them of the charges (if any) or at least, putting them in a confinement condition which is commensurate with any other "suspect" who is being held, during the investigative period--which in my opinion, has gone on way too long, already.
IIRC, the "shot clock" on going to trial is 120 days from start of pre-trial confinement.
Okay. And what does that have to do with conditions of confinement and or, being informed of the charges?
See my Post # 62 re: UCMJ.
On conditions of confinement, nothing. That's a command decision. On being informed of the charges, absolutely everything. The case has to go to trial--not to an Article 32, but to trial--in 120 days. That means the clock is running out on the pre-trial actions.
On conditions of confinement, nothing. That's a command decision. On being informed of the charges, absolutely everything. The case has to go to trial--not to an Article 32, but to trial--in 120 days. That means the clock is running out on the pre-trial actions.
I realize this is NOT in Article 32 realm and also have come to conclusion that conditions of confinement are command decision--which is WAY over the top and (WHY, I might add are they necessary for individuals yet charged)--but their being [not]advised of to nature of charges (in a timely fashion) is beyond the pale.
Speedy trial is not the issue--nature of confinement and lack of chares, and specificity thereof, IS!!!
Basically, the command probably judges them to be a severe risk for flight/violence.
but their being [not]advised of to nature of charges (in a timely fashion) is beyond the pale.
That "120 days" is the timely fashion for the charges. That means that the charges are getting filed well before 120 days.
We had a rape case when I was in the Army where the suspect was in shackles for 63 days because he was a demonstrated threat to life and limb.
The preliminary (probable cause) investigation has not proven actionable yet. After it has been demonstrated that sufficient evidence exists of a crime having been committed, and that specific suspects are believed responsible for said crime, said suspects can be arrested for said crime (their legal status formally changes to accused). Upon being arrested the accused are scheduled for an arraignment, whereby formal charges are read to the accused, a plea is made by the accused (or entered on their behalf), and the defense attorney argues for release pending trial on either PR or bail, and a court date is scheduled either before a judge or jury.
My understanding is that anybody can be taken into "custody" for any reason whatsoever, however, under the principles of habeas corpus ad subjiciendumz, a prerogative writ is ordered whereby a prisoner, i.e., suspect in custody, be brought to the court so it can be determined whether or not the prisoner is being imprisoned lawfully. For civilians a probable cause - preliminary - hearing must be held within 24 hours of imprisonment.
Does the UCMJ not afford habeus corpus to military personnel (or are the standards different in some way)? Perhaps under USMJ, habeus corpus allows resolution of grand jury investigation while the suspect remains in custody? Perhaps there's no distinction made as in civilian realm respecting indictment by grand jury, and "preliminary hearing"; in that incarceration is permitted until either is completed. The only thing I can speculate about all that, is that the case entails exigent circumstances, a situation in the American law of criminal procedure, that allows law enforcement to enter a structure without a warrant, or if they have a "knock and announce" warrant, without knocking and waiting for refusal under certain circumstances. It must be a situation where people are in imminent danger, evidence faces imminent destruction or a suspect will escape.
Generally, an emergency, a pressing necessity, or a set of circumstances requiring immediate attention or swift action. In the criminal procedure context, exigent cricumstances means:
An emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect, or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the extraordinary situation must be measured by the facts known by officials. - People v. Ramsey, 545 P.2d 1333,1341 (Cal. 1976)It is my understanding that the Patriot Act contains provisions with respect to habeus corpus. A September 18, 2001 Presidential Military Order gives the POTUS the power to declare anyone suspected of connection to terrorists or terrorism (as it may be construed), as an enemy combatant. As such, that person can be held indefinitely, without charges being filed against him or her, without a court hearing, nor is this person entitled to a legal consultant.
Many legal and constitutional scholars contend that these provisions are in direct opposition to habeas corpus, and the U.S. Bill of Rights. Specifically, American citizens declared enemy combatants by the President may be denied their constitutional rights as set forth in Amendments 4, 5, 6 and 8. One recent example is the José Padilla case. In the case of Hamdi v. Rumsfeld, argued before the United States Supreme Court in March 2006, Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging the lawfulness of Secretary of Defense Donald Rumsfeld's plan to try him for alleged war crimes before a military commission convened under special orders issued by the President of the United States, rather than before a court-martial convened under the Uniform Code of Military Justice.
Furthermore, it is my understanding that many provisions of the Patriot Act are being used for a myriad of issues wholly and totally unrelated to terrorism. It is for that reason explicitely that I was against extending the Patriot Act without any sort of "Sunset Provision." Although, I suppose, I can take succor in the concept that Congress can take al l of the Patriot Act away in a heartbeat - without any "Sunset Provision" - if "exigent cirucumstances" warrent such action, i.e., woefully heinous and egregious abuse. Congress usually acts like molasses, but they can (and have done so) acted like lightening.
You post explains a lot to me.
once again, even though he is off the wall sometimes, Michael Savage was way ahead on this.
SHACKLES REMOVED FROM PENDLETON 8
On Michelle's blog and HotAir.com
source - Marine Corps Times
Military officials on Friday said they have decided to remove shackles put on seven confined Marines and one sailor whenever they’re outside their individual cells at the Camp Pendleton brig, a Marine Corps spokesman said.
The eight men, confined at the brig since May 24, were being held with “maximum” restraints based on their battalion commander’s decision following an initial investigation into the shooting. As of Friday, they were shifted into what’s called “medium-in” restraint in pre-trial custody, which does not require shackles to be worn, although they remain escorted anytime they are outside their cell, according to 2nd Lt. Lawton King, a base spokesman.
Under “medium-in,” they won’t have any personal restraint while inside the brig, but once outside – such as to go to a court hearing – each “is restrained with handcuffs attached to a leather belt … and their respective escorts carry along leg cuffs in the event they are needed,” King said.
Good rant!....I share your thoughts...
That's correct, the Article 32 officer's report is a finding that is non-binding on the convening authority.
I share your rant and have said several times on this forum since hearing about this that we treat the jihadists detainees better than we're treating these Marines.
What kind of message does THAT send? It's an outrage.
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