In Terror War, 2nd Track for Suspects

The Washington Post ^ | 12/01/2002 | Charles Lane

[KayEyeDoubleDee]

The Bush administration is developing a parallel legal system in which terrorism suspects -- U.S. citizens and noncitizens alike -- may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system, lawyers inside and outside the government say.

The elements of this new system are already familiar from President Bush's orders and his aides' policy statements and legal briefs: indefinite military detention for those designated "enemy combatants," liberal use of "material witness" warrants, counterintelligence-style wiretaps and searches led by law enforcement officials and, for noncitizens, trial by military commissions or deportation after strictly closed hearings.

[KDD]

If what you are saying to me is that these actions are legal, then I say to you that the law that makes it so is an ass.

Quirin

Petitioners, and especially petitioner Haupt, stress the pronouncement of this Court in the Milligan case, . . . that the law of war "can never be applied to citizens and states which have upheld the authority of the government, and where the courts are open and their process unobstructed." . . .[We construe the Court's statement as to the inapplicability of the law of war to Milligan's case as having particular reference to the facts before it.] From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as . . . martial law might be constitutionally established.

did not overturn Milligan

At that time, two opinions were filed: an opinion for the majority of the Court by Justice David Davis, and an opinion for four concurring Justices by Chief Justice Salmon P. Chase. All the Justices agreed that the trial of these defendants by a military commission was invalid. But they divided five to four on their reasoning. The five Justice majority basically adopted the position of the petitioners and held that a United States citizen not in the armed forces could not be tried before a military commission even in time of war if the civil courts were open for business. According to the majority, as the federal court in Indianapolis had been open for business throughout the war, these defendants should have been tried there, rather than before a military commission. The majority opinion relied on the definition of judicial power in Article III of the Constitution, and on the Sixth Amendment guarantee of the right to jury trial.

The concurring Justices held that a law passed by Congress in 1863 allowed those suspected of disloyal activity to be detained, but only until a Grand Jury had an opportunity to indict them. If the Grand Jury indicted, they were to be tried in the civil courts; if it did not, they were to be released. Thus, in effect, these Justices said Congress itself had ruled out trials of civilians by a military commission.

All members of the Court joined in rejecting the government's argument that the Bill of Rights simply did not apply in wartime. The majority opinion contains a somewhat rhetorical passage for which it is justly famous:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.]

If terrorism is the enemy...then the one who defines terrorism has a powerful weapon to use against his enemies.

[KDD]

This is really irritating to me- congress is getting a free pass on this. Yet they are where the buck stops.

Amen to that.

[mrsmith]

"the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war "

But these guys, allegedly, are belligerents like the Nazis.
'Milligan' was based on Milligan not being a belligerent.

Frankly, to me, the only debatable question about Hamdi and Padilla is how much evidence the Judiciary can require of the Executive branch for the Habeas Corpus.
They should be deferential, but they are the only review he would have for an indefinite period of time.

Padilla, captured on US soil, seems to be entitled to a much more careful examination of the evidence than Hamdi- the court could constitutionally require almost as much evidence, and access to it for him or his lawyer, as for a trial.
That would really put a damper on the use of military detention- I hope they come up with a fair standard.

[KDD]

In August 1864, military authorities raided the offices of an Indianapolis man named Harrison H. Dodd and found guns, ammunition, and incriminating documents. Based on this evidence, Dodd, Lambdin P. Milligan, a lawyer from Huntington, Indiana, and three others were charged with conspiracy against the government of the United States, conspiracy to aid the rebellion, and conspiracy to overthrow the government of the United States. The federal government decided to try these defendants before a military commission, rather than a civil court, and the trial began in the federal courthouse in Indianapolis in September 1864.

But Milligan would have been considered a belligerent under the new standards in effect today don't you think?

[KDD]

The only reason those men ever saw the inside of a Civil courthouse was because the Civil War ended. Otherwise, they would have hung.

A War on Terrorism will be a War without end.

Would government be more inclined to shall we say, stretch out this War to cover for the inevitable abuses that will occur under these laws?

[mrsmith]

"would have been considered a belligerent under "
... the congressional authorization?
I'll have to consider the significance of that. Replacing "rebellion" with "Al Queda" makes me think 'yes' but I should review Milligan.
I consider the authorization too broad, but haven't a better one to offer.

Gotta retire for the night. Thanks, I appreciate anyone who takes this subject seriously.

[KDD]

I just can't buy the B.S.

I want a defined enemy.

[KDD]

Gotta retire for the night.

Me too.

Till later...

[jwalsh07]

I want a defined enemy.

I want to retire and play golf.

[jwalsh07]

A comment from General Washington.

[KDD]

Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.
George Washington

[jwalsh07]

Actions speak louder than words, no?

He hung John Andre (pictured above) after a perfunctory Courts Martial. When Andre asked to be shot, as a gentleman spy should, instead of hung Washington's reply was something to this effect:

I'll let you go and hang that sob Arnold but if you can't give me Arnold, you're swinging.

[Mixer]

If you read their article carefully, I believe you'll see they are talking only about "agents of foreign powers who may be citizens or US persons".

Sorry I will not register with them either, but if that is what they are saying then I have no problem with it at all. Like I stated before though if a person took the time to become a legal citizen then they are entitled to the same rights. This is a very thin line though with me. Perhaps a law should be stated on how long you have to be a citizen before you can reap these benefits.