About that habeus corpus recent ruling.. I'm reading this over and over

[radwriter0555]

and I need to understand the reference to ALIEN... I need to understand how if it specifically references ALIEN, and doesn't exclude US citizens, how we can be in jeopardy...

Someone, anyone?

I know they can (and will) hold those from other nations they consider terrorists or whatever, and yes, that is SO completely wrong, but how are we to actually fear from this as Americans. How can this same law be applied to us?

Help me understand!!!!

[Lautremont]

1. Someone may be able to help you (I haven't read the text yet),

but I know that, as a Canadian, I'm not too anxious to make any US visits anytime soon! Even if I don't do anything in particular, I could turn a street corner in, say, Portland, run into a protest, get picked up by cops and whammo! Cuban vacation.

[davekriss]

95. There is no place on the globe safe from...

...American security personnel -- except, of course, the twin bunk opposite Osama Bin Laden. ;)

[Hosnon]

2. I don't think it can legally be applied to U.S. citizens:

I posted my analysis here:

Official Military Commissions Act of 2006 and Habeas Corpus Thread

Unfortunately, the thread didn't get much play so it lacks the legitimacy provided by the analytical laserbeam that is DU...

Check it out and see what you think...I would still like to see it tossed around DU.

[Ravy]

11. How can you prove you are a citizen...

when you are locked up with no access to a lawyer and no court date?

[Hosnon]

12. That is a more universal problem and could have happened before

this bill was made law.

A fed could have just picked you up and you'd have disappeared...forever. This law doesn't change the legal status of U.S. citizens (Edit: regarding the writ of habeas corpus).

[onenote]

24. right

LOng before anyone was talking about the MCA, a southern sheriff could've stopped an African American driving through his town, tossed him in jail without charges and no one might know. It would've been illegal. Its worth noting that Padilla and other citizens that the government tried to hold as enemy combatants were able to have a "next friend" file a petition for habeas on their behalf.

[madmusic]

120. Padilla wasn't "able" too.

Someone did it anyone, and the responding party (the government) tried to argue they didn't have any right to file a "next fried" petition on Padilla's behalf. We still don't know if he will have access to courts or not.

[meldroc]

15. This is the key

If the Bush Admin really wanted you locked up, they could claim you're not a US citizen, then since you're denied a habeas corpus hearing, you have no way of even claiming you're a citizen.

It would take years of legal action before you would even see a judge.

Of course it isn't legal - most of the Military Commissions Act is illegal and unconstitutional. Bush and company don't care. They just care if they can get away with it.

[onenote]

26. just claiming you're not a citizen won't work

YOu're entitled to have the issue of whether you are a citizen resolved in court. If you're saying that the law might be violated, sure. But that would also be the case if the MCA stated in all caps that all US Citizens have the right to file a petition for habeas corpus.

[Hosnon]

31. The MCA could deny habeas to all green blobs. You could be swept up

and deemed a green blob and thus stay in jail forever.

Same problem. The problem isn't the MCA, it is whether or not the executive will follow the law.

[papau]

139. The new law -MCA - spells out how you don't get to court - the new law is

the problem.

[papau]

138. Enemy combatants can not get to court to prove they are citizens

n/t

[radwriter0555]

30. Okay.. that's an interesting hypothetical, but can you imagine the scenari

taking place in your life wherein that could actually HAPPEN?

Are you such a threat to the bush regime that they would dare to make you the example?

Is anyone?

I see the Jose Padilla, and that case is a true travesty of justice. It's horrific, and nothing has been explained.. but let's face it. He never rallied on DU, or marched in a protest or wrote harsh opinions about the republicans or did any of the things we, as Americans, do.

I've read the text. I haven't seen a delineation of the alien and enemy combatant. But, again, that being said, under what circumstances would Joe American be labeled as an enemy combatant, I mean... let's face it... most Americans can't be bothered to vote. They're not going to rally against the bush regime.

I know that what is going on the Cuba is so horrifically wrong. I don't excuse ANYTHING the bush regime is doing, ever. I never cut them any slack, but I hope we don't lose focus of the overall issues here. Yes, it's wrong for anyone to be denied any rights. All people are indeed entitled to that which we know to be Human Rights. I feel like we've been played a little on the habeus corpus ruling... I hope it doesn't get worse, and that it's not just another step in the wrong direction. It feels more like a CYA ruling for the bush regime.... to cover their agregious errors in detaining all those people for this long of a time.

[lumberjack_jeff]

70. Of course I can

If I were hauled to gitmo today, no one is legally obliged to know. My identity, my location and my charges are all secret. At best, once the bruises faded a bit and I faced a military tribunal (at a time of the administration's choosing, probably after the 2008 election) I might be able to try to convince them that I'm a citizen and to let me call my lawyer or home or something.

The point isn't to make examples. The point is to exert totalitarian control over dissent. Bush doesn't want martyrs, he wants quiet.

There's no mechanism for a detainee to challenge his detainment or the conditions. None.

Your basis for wondering if this would ever happen to innocent citizens appears to be based on an underlying assumption that the administration is working in good faith, and that being a legitimate terrorist is the only reason you'll get disappeared.

Absent that assumption, the argument is without merit.

[kestrel91316]

46. There's the catch. They grab you, declare that you are an

unlawful alien combatant, and lock you up without counsel or hearings, and start waterboarding and electroshocking you. How you gonna prove you are a citizen? You think they're gonna take your word for it????? LOL

[Hosnon]

47. What kept them from doing that before this law? nt

[kestrel91316]

54. How do we know they haven't?

:evilgrin:

But seriously - this will just embolden them. You really think they can be trusted to obey ANY laws any more?????

[Hosnon]

55. I don't. My point is that the MCA does not alter the legal status of U.S.

citizens regarding habeas corpus.

As an aside, I don't think habeas corpus should be denied ANYONE. If the executive is so confident that someone is "evil" then it should be easy to prove that fact to a judge.

Edit: And my point in asking what has kept them from throwing anyone in jail before this law was passed was to point out that if they have no regard for the law, denial of habeas corpus to anyone doesn't change anything (in practice).

[davekriss]

116. As an aside...

...I think the important provision in this bill, the provision most desired by Bush, is it protects the Bush Regime from the crimes they have been committing prior to signature.

[madmusic]

118. A counter view:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=2436494&mesg_id=2436494

The only thing we can be sure of is that we can't be positive. They could have made it very clear without any doubts, but chose not to. Why?

[onenote]

3. it doesn't apply to us citizens

As you point out, and I agree wholeheartedly, the MCA is an abomination because it deviates from principals of due process and fairness that should be inviolable in our country and because it ignores international norms regarding the treatment of prisoners, thus endangering our own forces and making us less safe.

However, the notion that US citizens are deprived of rights under the law is unsupportable. WHile the term "unlawful enemy combatant" is broad enough to cover a citizen as well a non citizen, the provisions of the law are limited to unlawful enemy combatants that are aliens. Why didn't the law just include the term "alien" in the definition of "unlawful enemy combatant"? The answer appears to be that the decision to designate someone as an unlawful enemy combatant is not subject to judicial review. If the term "alien" was part of the definition, then the determination that someone is an alien would also not be subject to review. HOwever, by separating the term "alien" from the definition, a citizen who is designated an unlawful enemy combatant can object to being covered by the provisions of the MCA on the grounds that he/she is an alien and a court can (and indeed must) review that claim.

[Hosnon]

7. You and I are on the same page. I feel like a small voice trying to be

heard here on DU.

I love KO but wish he wouldn't jump to such conclusions. I just don't see how it can be legally applied to a U.S. citizen.

[gkhouston]

18. this isn't just a conclusion that laymen like KO have jumped to.

NPR was reading letters from their listeners a week or so ago on Morning Edition about the this bill. One was from a Federal judge in San Antonio who was flat-out appalled and explicitly said he thought the bill would be applied to citizens as well as aliens because * gets to define enemy combatant.

[Hosnon]

19. I understand that Bush gets to decide who is and who isn't an enemy

combatant. But the MCA requires that one be an enemy combatant AND an alien in order for habeas to be denied.

[gkhouston]

25. according to post 5, the word "alien" has gone on walkabout.

Sure you've seen the current draft? (Putting aside the humorous notion that * is going to actually obey a law.)

[Hosnon]

27. I'm not 100% positive. Every version I have seen includes the word. I have

yet to see a version without it.

[gkhouston]

32. Given the tendencies of this administration, I'm not inclined

to see a huge distinction even if the word "alien" is in the present draft. Smacks too much of "we're okay, 'cause it's only happening to those weird foreigners over there". Pretty soon it will be, "We're okay, 'cause it's only happening to that citizen who's probably a criminal and we just didn't know about it". And then it's our turn and we can't figure out why we're in trouble 'cause we're the good Americans, only no one is listening to our pleas. Or screams.

[Hosnon]

37. Ok. In practice, if the Administration really so desires, the definition

doesn't matter. But that argument is a type that could undermine ALL legislation. After all, legislation is made up of words.

The point is, Congress has not denied habeas corpus to any U.S. citizen.

[onenote]

28. no, the enacted version specifically refers to aliens

Its not part of the definition, for the reasons explained in post #3

[mod mom]

16. Not according to Jonathan Turley:

From Countdown:

Does that not basically mean that at Mr. Bush or Mr. Rumsfeld's say-so anybody in this country, enemy or not, citizen or not, can end up being an unlawful enemy combatant?

TURLEY: It certainly does. And, in fact, later on, it says that if you even give material support to an organization that the President deems is connected to one of these groups, you, too, can be an enemy combatant. And the fact that he appoints this tribunal is meaningless. Standing behind him at the signing ceremony was his Attorney General who signed a memo that said that you could torture people, that you could do harm to them to the point of organ failure or death. So if you appoint someone like that to be attorney general, you can imagine who's gonna be putting on this board

And it's a huge sea change for our democracy. The framers created a system where we did not have to rely on the good graces or the good mood of the President. In fact, Madison said he created a system essentially to be run by devils where they could not do harm because we didn't rely on their good motivations. And now we must. People have no idea how significant this is. Really a time of shame this is for the American system.—The strange thing is that we have become sort of constitutional couch potatoes. The Congress just gave the President despotic powers and you could hear the yawn across the country as people turned to Dancing With the Stars. It's otherworldly.

I think people are fooling themselves if they believe that the courts will once again stop this President from taking almost absolute power. It basically comes down to a single vote on the Supreme Court, Justice Kennedy, and he indicated that if Congress gave the President these types of power that he might go along, and so we may have in this country some type of uber-president, some type of absolute ruler. And it will be up to him who gets put away as an enemy combatant, held without trial. It's something no one thought, certainly I did think, was possibly in the United States. I'm not sure how we got to this point. But, people clearly don't realize what a fundamental change it is about who we are as a country. What happened today changed us. And I'm not too sure we're gonna change back anytime soon.

[Hosnon]

17. I've read the transcript of that show and he doesn't explain how the

law denies habeas corpus to anyone other than aliens.

I'm sure he has good reason...I just don't see it.

[BelgianMadCow]

51. Where in the law are these provisions limited to aliens?

I think debate such as in this thread would be helped by posting such things. As the law kept being rewritten, I think we need to make sure.

I can only reiterate that Harry Reid stated matter-of-factly that it applies to US citizens in his final minutes during the Senate debate on the bill. Warner had the closing words then and DID NOT counter this.

I tend to believe Reid knew what he was saying. The clip is not available anymore on C-Span, I checked. Did someone TIVO it? He also referenced last-minute rewriting.

[Hosnon]

52. See my thread in post #2. Here is the provision:

S. 3930, § 7:

(a) {28 U.S.C. § 2241} is amended by ... inserting the following new subsection (e):

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

[tom_paine]

56. Got a link to the text of the final bill?

That would rapidly clear up all the assertions unsupported here on both sides.

[Hosnon]

57. I don't think the bill has been "officially" entered into the code. It is

not on WestLaw (or rather, I can't find it).

This is the Library of Congress version I use:

Library of Congress: S.3930

EDIT: The habeas corpus section is at the very bottom in section 7.

[BelgianMadCow]

59. Which, given the last-minute alterations, should give you some pause

did you see the senate dems fuming about the weekend changes to the friday compromise bill??

[Hosnon]

62. Sure...I can't say with 100% certainty that the word is there. But I will

say that I am close to 90% because every version I've seen has the word in it.

I could be wrong but I think it is there.

[BelgianMadCow]

68. Did you see the final debate in the senate?

I have been telling people citizens CAN be jailed based on the MCA, based on Reid's final statement on the bill. It was aired on C-Span.
Wish I had a link to that!

[Hosnon]

72. No I didn't. If you find a link, I'd love to see it:) nt

[BelgianMadCow]

58. Thanks, but allow me to highlight a part & add a scenario

First, those who look for the full text : A search on military commissions act on http://thomas.loc.gov/ will bring it up (senate and house version).

(a) {28 U.S.C. § 2241} is amended by ... inserting the following new subsection (e):

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Now, the scenario is as follows :

Someone "supports" in any way an unlawful enemy combatant.
Say, concerned american citizens who are researching the media blackout on the ammo dump exlosion post a link to a website where some insurgent faction claims they did it.
This can be construed as support, and the only judge on that is the president or whomever he designates.
So they decide to throw you into jail.
Ah, but these are not aliens! The government however, just like mistakenly thinking quite a bit of black voters in Florida needed to be purged in 2000, believes there is some error in your social security data, your drivers license or whatever and this is indicative of a likely alien posing as a citizen.
They are not required to show this evidence.
They just throw you into jail.

NOW all of a sudden you are "awaiting such determination". And guess what, no court, justice or judge has jurisdiction over the eventual case these citizens want to bring against the government.

Do you think this is not plausible?

[Hosnon]

60. Yes it is plausible...but illegal. The point I am trying to stress is that

the MCA DID NOT alter the legal rights of U.S. citizens regarding habeas corpus.

If the government has no respect for the law, the law is pointless no matter what it says.

[BelgianMadCow]

63. What part of the scenario is illegal?

I don't see any. And it's a way to make the dungeon for aliens apply to citizens.

I do however see your point that literally interpreting this version of the bill, and not attributing bad intentions to those who SO BADLY wanted this before the recess, you can say it doesn't change the legal rights of citizens.

My point is how it can be used. That is more important in my opinion.

[Hosnon]

65. See post #41 for habeas corpus process.

And I fully understand your point about usage. But what would have prevented a malicious government from jailing someone BEFORE this law?

[BelgianMadCow]

66. This law DID change the abilities of a malicious government

before, they could throw you in jail for no good reason as well. But if you manage to get one word out, you can get a lawyer and he can get your case to a court (judicial branch).

If they throw you in jail based on this act, there is no recourse except in the commissions (executive branch).

Big difference to me. Unless you know of other, preexisting examples of law that do away with habeas corpus.

[Hosnon]

71. The only change in the status of habeas corpus is in section 7 of the

Senate bill.

S. 3930 Section 7

Nothing has changed for a U.S. citizen. If they throw a U.S. citizen in jail based on this act, the usual judicial branch options are still open - that is how it appears to me.

All of the commission "talk" applies only to aliens.

This is an interesting point...I'm going to look into this further.

[BelgianMadCow]

77. Glad we got to an "interesting point"

seriously. You look into that and I'll look for a TIVO of the Senate debate.

Deal? :-)

[Hosnon]

78. Deal. Dinner time is approaching though. Might be a couple hours. nt

[Hosnon]

99. Alright Belgian...I'm ready:

I want to make sure I have the issue right.

Before the act, both citizens and aliens could use the judicial branch as a recourse. Now, is the issue that now, after the act, both citizens and aliens (or just one of the two) cannot use the judicial branch as a recourse?

That is, this act requires everyone (Cs and As) to only go through the military commissions?

[BelgianMadCow]

105. Point in question was as you put it the ambiguity between "alien" and

"enemy combatant" as viewed from the statement in sec 7 :

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The question before us was the awaiting determination - that meant to me determining alien status as well.

My entire point was : the act and the language quoted above bring the risk of Cs being detained under it due to being labeled As and then fall under the act and have to "await determination" in the hands of an executive commission without judiciary recourse.

The point as you stated it I certainly don't want to argue.

edited for typos

[Hosnon]

108. I agree with you. The provision is not clear enough to dispel my worries.

What we would have to do, and what a judge would do, is look at the legislative history to find out how the Senators and Representatives intended the sentence to be read.

That is a tedious task and might not even answer the question.

What we COULD do, that would be more interesting, is find a Grammarian and diagram the crap out of that sentence to see what the "awaiting" part modifies. I suck at diagramming sentences...you?

[BelgianMadCow]

112. It is worrisome.

I suck at sentences, period :-) what with being an alien and all.
Hadn't even heard of a Grammarian. I guess that is someone with a degree in Grammar. Mine definitely sucks.
But there are some legal minds on DU, hope they chime in as well.

[BelgianMadCow]

119. Here's some crap diagramming of that sentence

No court, justice, or judge
shall have
jurisdiction to hear or consider
an application for a writ of habeas corpus filed by or on behalf of
an alien detained by the United States
who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Repeat of the last part :
who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Such determination then means : The determination by the US whether the detained alien has been properly detained as an enemy combatant.

So the question then becomes : what is a proper detainment as an enemy combatant?

And the determination doesn't center on the alien anymore (your point), except maybe through the "properly" as this may refer to other sections which INCLUDE the being alien again, and thus renders it subject to determination. And the first parts of the bill set out it is about alien enemy combatants, so all I end up with is a circular reference

:crazy:

[Hosnon]

121. Actually, after looking it over, I think it is even more clear than it was

before you confused me, haha:)

"No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

"Awaiting such determination"

"Determination" is a noun...the noun form of the verb, "to determine".

So we have an alien detained by the United States, right? Now that alien has either been determined to have been properly detained as an enemy combatant OR is waiting such determination...

In other words, waiting to be determined whether or not to have been properly detained as an enemy combatant.

I think the two elements here are clear:

1) Alien detained by the U.S.

2) Determined by the U.S. to have been properly detained as an enemy combatant OR awaiting to be determined by the U.S. whether or not to have been properly detained as an enemy combatant.

The "awaiting" part is simply a provision designed to include aliens that are in the processof being declared enemy combatants.

EDIT: I know this is sloppy crap...sorry. I get it in my head better than I am able to express.

[Zhade]

80. What about this part?

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Okay, maybe it's just me, but doesn't the portion I put in bold seem to indicate that anyone could get picked up as an "alien awaiting determination", and thus this can be applied to U.S. citizens?

[Hosnon]

81. I read "awaiting such determination" to modify "enemy combatant" and

not "alien".

Seems the most reasonable interpretation.

[BelgianMadCow]

82. not unlogical, but also consider the "properly"

A properly executed determination of being an unlawful combatant means you have to check if the person really is an unlawful combatant as defined under this law.

So then you go back to all definitions and being alien or not is one of the things to check.

And consequently one of the things that can be awaiting proper determination.

That also was my initial reading. Hence post 58 :-) But I'm no lawyer.

[Hosnon]

84. There are two elements required to be denied habeas corpus:

1) Alien and 2) Enemy combatant (or awaiting determination).

To determine whether or not one is an enemy combatant, you don't have to know whether or not the person is an alien. In a room of 100 people, you can determine that 50 are enemy combatants and 50 are not. Then, out of those 50 enemy combatants, you can determine that 25 are also aliens.

Those 25 are screwed under this law. But the determination of "alienness" does not depend upon the determination of "enemy combatantness" and vice versa (I can butcher words quite nicely). The process above could be reversed with the same result: 25 alien-enemy combatants.

P.S. Haven't forgotten about our deal. It will take some work and I'm planning on doing it after dinner.

[BelgianMadCow]

87. Well where the split lies between 1) and 2) was really the question, right

bon appetit!

[Hosnon]

92. That post dealt with your question. The two elements are not dependent

upon one another.

Now, I am not CERTAIN where the split is but I'm pretty sure the "awaiting" clause modifies "alien".

[madmusic]

122. That doesn't make any sense.

So your argument is that if they use the term "alien" like they do throughout the rest of the Act, it would cause too much trouble when the accused argue they are citizens and not aliens, so the solution is to use "a person" and that clears it right up! As if using "a person" somehow negates any argument about citizenship.

No, what it actually does it make vague who it applies to: only aliens or aliens AND citizens.

It's ridiculous and contrary to statutory construction to argue that they intentionally made it vague enough to potentially include citizens because otherwise there would be citizenship issues.

Think about it. Is that your argument?

[Taoschick]

4. I believe

The adminstration is using the Johnson v. Eisentrager decision to deny habeus corpus rights to "alien enemy combatants". The argument then turns to the legality of the USA holding alien enemy combatants indefinately without trials.

[bonito]

5. Here

A copy of the draft made public by The Washington Post shows that, while an initial version anticipated military trials only for "alien" enemy combatants, the word "alien" is subsequently crossed out. Instead, the document refers time and again to "persons" who are detainees. A "person," under this draft, could be an American seized at a shopping mall, or in a suburban backyard.
From derby 378 http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=364&topic_id=2251106

[onenote]

8. see post #3

[dkofos]

6. Jose Padilla

Do you understand now

[onenote]

10. explain?

The Padilla case is extremely convoluted, but the bottom line is that he ultimately was indicted and transferred from military custody to the civilian courts. As a result, his petition for habeas corpus was declared moot. Justice Kennedy noted that the federal court has a constitutional obligation to ensure that Padilla’s speedy trial rights under the Sixth Amendment are respected and that he "retains the option of seeking a writ of habeas corpus in this court." Kennedy's concurrence was supported by Roberts and Stevens, while Ginsburg, Souter and Breyer wouldn't have declared the case moot, suggesting that at least 6 of the Justices concluded that Padilla, as a US citizen, cannot be denied his habeas corpus rights.

[dkofos]

14. True

But they still held him (a citizen) for years.
And they will do it again, because they can.

The wording is vague enough that anyone can be called a terrorist.

Even you and me

[onenote]

20. If the question is whether they can/will act illegally

there can be little argument. Of course.
If the question is what the law now allows/forbids, the answer is that denying a US citizen the right to file a petition of habeas corpus is illegal.

[Hosnon]

22. I think this is where most of the confusion when discussing this comes

from.

Of course Bush could just say you are an alien. But that would violate the MCA.

[The Stranger]

69. What are you talking about?

It wasn't "convoluted" at all.

1. He was a U.S. Citizen.

2. He was seized and declared to be an "enemy combatant."

3. He was denied all due process to which he was entitled.

Kennedy did not get a chance to write on the issue until four years later, after it was too late; if the Government decides to do the same thing again, it will be another four years.

[Hosnon]

74. He's saying that the Justices did not rule on the habeas corpus

issue and that a majority of them indicated they would vote that he was entitled to habeas corpus.

[Marie26]

136. Couple questions

Hi onenote. I wanted to ask you about a couple things that are puzzling me.

1. The bill modifies the Detainee Treatment Act by striking the reference to "Guantanamo Bay," & replacing it w/the "United States."

"Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of 2005 (title X of Public Law 109-148; 119 Stat. 2742; 10 U.S.C. 801 note) is amended by striking `the Department of Defense at Guantanamo Bay, Cuba' and inserting `the United States'."

This Detainee Treatment Act section proscribes how judges can review the Administration's determination that an alien is an enemy combatant. Anyway, I'm wondering why they struck out "Guantanamo Bay." It seems like they might be planning to hold these "alien enemy combatants" within the United States itself, and by other agencies (DHS?). That's troubling to me. I'm wondering where these detainees might now be held. US prisons, INS camps, where?

2. We seem to agree that this bill doesn't allow citizens to be tried by military commissions, or stripped of habeas corpus rights. It basically addresses how alien enemy combatants will be tried. But the definition does seem to allow the gov. to also label citizens as "unlawful enemy combatants" (as Bush has done in the past.) This bill determines what happens to "alien enemy combatants", but it doesn't address how citizen "enemy combatants" will be held & tried. So, what happens to a US citizen enemy combatant? That seems to be an open question, right? Maybe the Padilla case offers the closest parallel, & in that case, he was eventually indicted & tried in the US federal courts. But, I believe that was the government's choice, not something that was forced by the court's ruling. Hamdi v. Rumsfeld guarantees basic due process rights to citizen detainees, but that seems to be contradicted somewhat by the standing 4th Court of Appeals opinion in the Padilla case. The courts are pretty clear on guaranteeing the rights of habeas corpus & legal representation, but the rest seems rather vague. So, I'm wondering if there's any statute that specifically outlines the detention & trial process for "citizen enemy combatants"? Is there a legal precedent that addresses the legal status & rights of citizen enemy combatants? Or is that still a gray area? Thanks, sorry for the long question!

[Taoschick]

9. 948A--Definitions

http://thomas.loc.gov/cgi-bin/cpquery/?&sid=cp1099fVrf&refer=&r_n=hr664p1.109&db_id=109&item=&sel=TOC_19884&

[tom_paine]

137. This is the INTRODUCED version, not the final version

As I understand it, most of the uses of the word 'alien' have been removed. And even here they are not present when defining who is an Unlawful Enemy Combatant.

Even IF this law only provides for aliens in the rest of it, it also provides that AMERICANS (like Jose Padilla, still languishing in his Imperial Cell without trial five years later) can be designated Unlawful Enemy Combatants.

[gratuitous]

13. Since it is the policy of the current administration

The policy of the Bush administration, both de facto and de jure, is that the laws passed by Congress are subject to the Executive's reading, interpretation and application. Further, it is the policy of the Bush administration that these actions are not reviewable by the Judiciary. The Supreme Court and a couple of inferior courts have challenged those policies in very small ways, but to very little effect so far. So, if the Bush administration decides to apply the law to U.S. citizens, it seems there will be very little effective opposition. Certainly not from Congress, and the courts have seemed very reluctant to enforce their rulings on this administration.

[Marie26]

21. IT CAN'T.

Cheers.

[OPERATIONMINDCRIME]

38. IT CAN.

It might not be used legally, but then, just how are you going to dispute that in a court of law you aren't given the rights to reach out to or your family members that you won't have the right to speak to or with the evidence they won't allow you to submit or review? Just how ya gonna pull it off? You think screaming at the guard in the jail "But I'm an American citizen!" is gonna do it for ya? Do you seriously have confidence in that? For real? :rofl:

Here's news for ya. It doesn't make a shit's worth of difference who it does or doesn't include. Once you give that big of an opening for our government to be able to detain, with virtually no rights, certain individuals, while not allowing them decent trials, contacts, legal support, evidence gathering and all the while potentially torturing them into confessions that aren't fact, then you run the risk of being that person whether legally included in the definition or not, and not having a damn avenue to speak out with about how your apprehension is unlawful because the law doesn't apply to you.

[Marie26]

41. Then they can do it illegally w/o this law

If they want to illegally disappear citizens, they could do that before, and after this law. The point is: this law, specifically, DOES NOT allow US citizens to be tried by military commissions, and does not remove the right of habeas corpus for US citizens. I'm tired of arguing w/people who haven't read the law & seem desperate to believe that it is aimed at liberal posters. You're not a lawyer, and you don't know how the legal process works. Here's how it works - any prisoner can file a habeas corpus petition w/the court. Once that petition reaches the court, two things will happen - if the person is an "alien enemy combatant", the judge will throw out the petition, in accordance w/this law. If the person is a citizen, the judge will hear the petition. To stop a petition, the government is the party who has to prove the person's status, not the prisoner. So, the government would have to argue that the US citizen is in fact NOT a US citizen - a ridiculous and untenable argument. If the prisoner doesn't have his records, the court can easily check the naturalization & birth records sua sponte to verify citizenship. They cannot legally turn down habeas petitions by US citizens.

Let me repeat this: THE MILITARY COMMISSIONS LAW DOES NOT APPLY TO US CITIZENS. Ya can believe it or not, it doesn't matter to me. I'm not defending this law, which I believe is an atrocity and a violation of our Constitution & our democratic values. I'm just examining what the law actually SAYS, as opposed to what Chicken Littles are trying to tell people. That little thing called the truth matters to me, I'm funny that way. The truth in this case is bad enough, it's not really necessary to exaggerate or mislead people about what the law says.

[Hosnon]

42. Thank you! nt

[stop the bleeding]

86. there seems to be some good research on this thread,

this another link I found in this thread that you may find interesting

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=2891709&mesg_id=2891709

I am still very concerned about this issue, but you have been able to shed some clear reasoned analysis on this.

[radwriter0555]

134. I believe you're entirely correct and you've summed it all up very well.

Thank you...

I felt like I was missing something.

It doesn't negate that the rights of the people being held hostage are indeed being violated, but it's good to realize that we at least have some protection.

Now, we can get to work in ensuring the hostages in Cuba get their rights back.

[kestrel91316]

48. Furthermore, if they just disappear you, how will anyone even know

that the government HAS you, so they can help you win your freedom?

If I ever disappear, don't bother searching the morgue or dredging the river - look in Gitmo.

[BelgianMadCow]

64. I want to make a new OP on this issue including your last paragraph

can I use it, referenced?

[SPKrazy]

107. Agreed MindCrime

that's the catch

once you are detained, you don't have the chance to prove your non alien status!

you are screwed, blued, and tatooed without legal recourse

it can happen

it will happen

[Demit]

23. U.S. citizens, can be detained and declared an "unlawful enemy combatant."

Anyone, including U.S. citizens, can be detained and declared an "unlawful enemy combatant."

If you can prove you are a U.S. citizen, you still have the right to challenge your detention (under the writ of habeas corpus). You still have the right to a trial.

Aliens—and this would include legal resident aliens of the United States—now have no right to challenge their detention (in any court or tribunal). They now have no right to a trial, either. The president is the one who would declare them an Alien Enemy Combatant; he is the one who would decide WHETHER OR NOT they ever get charged, to be brought before a military tribunals. He thus has the power to detain people forever.

The trick is in proving you are a citizen.

If you are swept up and you don't have your passport and/or a notarized birth certificate on your person, how would you prove you were a US citizen so this law didn't apply to you? How, if your papers were taken away from you for some reason (for your captors to show to superiors, say), could you continue to prove you were a citizen—and to whom? You are being detained with no contact to the outside world.

All the power resides in one man, now. You have to trust his intentions to do the right thing. You used to have the law—the law that gave everybody the right to challenge their detention, the right to be heard by a judge. Now you have to trust one man.

[onenote]

29. again, that's no different than the situation was before

You would prove you are a citizen by having a "next friend" file a habeas corpus petition on your behalf and present evidence that you are a citizen.

[gkhouston]

33. well, my mom's screwed. No birth certificate, AFAIK. n/t

[onenote]

39. there are other ways to establish citizenship

They are not necessarily easy, however. I would recommend, nonetheless, that your mom pursue getting a certificate of citizenship or other proof of citizenship, and not just because she might get named an unlawful enemy combatant.

http://www.nolo.com/article.cfm/objectID/C7F58E18-EAD7-46C6-AF91BF26CCEE4D60/118/209/286/ART/

[Demit]

34. Oh! Now that I hadn't come across in my reading. Thanks!

I'll have to stay on good terms with my friends.

Except, how do you contact that friend? Is there a guaranteed mechanism for that?

[gkhouston]

40. nope. n/t

[kestrel91316]

49. If you just disappear, how will some mysterious "next friend"

even know you need help??????

[onenote]

50. and what difference does any law make then?

What if they repeal this law completly or they pass a new version that says "they can't disappear" people. And they do?

THe point isn't what might be done illegally, its what is legal.

[radwriter0555]

35. I see what you're saying, but under what circumstances would this happen

and to whom?

Is it a real and genuine possibility?

[Demit]

43. What about if your name is similar to someone on a watch list?

You've heard stories of innocent people & what happens when mistakes are made, how police bust down the door of the wrong house because someone wrote down the wrong address; the IRS seizes assets of someone whose name is the same as a criminal they've been tracking.

The troubling aspect is that it's a LEGAL possibility now. They've got the power now. Remember the TIP program Ashcroft promoted a few years ago? Encouraging people to watch those around them and report anything suspicious? That could make a comeback.

[radwriter0555]

45. But the likelihood of your fellow americans DOING THAT TO YOU is

how possible?

[Lilith Velkor]

98. It depends

on what extent your fellow american is competing in business with you, or divorcing you, or wants your property, or just doesn't like you.

[radwriter0555]

133. But... how many of those people in your life are capable of enacting

those powers against you?

Granted, 1 would be too many for it to happen, but the basic reality and scenario under which something like that could actually, really, truly happen with all the people in place to do it... it's unlkely. Kind of like the likelihood of a terrorist attack happening again, and being able to actually really happen... It's just barely within the realm of possibility.

Thank goodness.

[Lilith Velkor]

135. O ye of much faith

No one expects the Spanish Inquisition. :evilfrown:

[SmokingJacket]

79. This is how I understood it too.

I have relatives who are longtime greencard holders, and this freaks me out.

That *any* person, citizen or not, can be denied the basic human right of challenging their detention is basically what happens in TOTALITARIAN countries, not the country I was born in.

[meldroc]

36. How the Gestapo worked.

Back in Nazi Germany, the Gestapo, of course, rounded up anyone they thought wasn't a good Nazi. In the same way we're talking about, the Gestapo didn't always have legal justification for imprisoning a person. To do that, they got the person to sign a document asking the state to take them into "protective custody." To get that signature, they frequently tortured and beat the hell out of them, except the hands. The hands were always left intact so they could get that signature. Once they got the signature and the legal formalities were taken care of, "protective custody" consisted of a one-way trip to Auschwitz.

Now, citizen or not, you can be declared an "unlawful enemy combatant" and rounded up for any reason at all, including none. Once you're arrested, it doesn't matter if you have a habeas corpus hearing in a day or two. Given Bush's "interpretation" of the Geneva Convention's definitions of torture, they may likely invent a reason to charge you with a crime, and use the transcript of your "non-coercive" interrogation as evidence at your habeas corpus hearing...

Oh, almost forgot, who's to say the government can't say "He's an Unlawful Enemy Combatant" at your habeas corpus hearing to keep you locked up?

[Gwerlain]

44. I just finished reading ALL the information, and I found out that...

the House version of the bill substitutes "persons" for "aliens" in the crucial section- but the House version and Senate version were not reconciled, and the version the pResident signed is the Senate version, which retains the "aliens" language. In other words, Habeas Corpus challenges can only be denied to aliens- not citizens. Your reading is correct.

[onenote]

53. not exactly

The House actually passed two versions of the bill. THe first version was introduced on sept. 25 and approved on Sept. 27 and sent to the Senate. However, a slightly different version had been introduced in the Senate on Sept 22 and the Senate chose to take up that bill rather than the one sent over by the House. The Senate approved their version on Sept. 28 and sent it to the House, which approved it on Sept. 29. So both the House and Senate voted on the final version that was signed by the President.

[BelgianMadCow]

61. And do you have a link to that final version?

Would be helpful!
I'd like your thoughts on the scenario I posted upthread as well.

thanks

[onenote]

83. here's a link

http://www.loc.gov/rr/frd/Military_Law/pdf/S-3930_passed.pdf

I'll try to take a look at your analysis in a bit. Gotta eat sometime!!

[Gwerlain]

88. According to Jurist...

http://jurist.law.pitt.edu/paperchase/2006/10/bush-signs-military-commissions-act.php>here, The US Congress approved the bill late last month after leaders of the House of Representatives decided to forego the process of reconciling slightly-divergent House and Senate versions, with the House instead adopting the Senate version of the legislation.

I guess that's essentially what you said; but I think if you read what I said, you'll find that's what I said too. I think we agree.

[onenote]

132. agreed

[The Stranger]

67. PAGING JOSE PADILLA, U.S. CITIZEN, PAGING MR. PADILLA.

[alarimer]

73. it doesn't matter if it only applies to "aliens"

It is still wrong and unconstitutional.

The definition of terrorist is left entirely up to the president and secretary of defense. So, in theory, they could name anyone they didn't like.

[Hosnon]

75. I agree that it is wrong. I think every human being should be entitled to

habeas corpus.

Not sure if it is unconstitutional. I don't know whether Article I, Section 9, Clause 2 applies to non-citizens.

The government can deem anyone an enemy combatant but unless that person is an alien, habeas corpus was not denied by the MCA.

[BelgianMadCow]

76. THANK YOU

I'm an alien you see. I don't plan to come anywhere near the US anytime soon.

The fact that in the debate here and nationally it is often implied that all is A-OK f-if it's only them aliens that are concerned, makes me mad.

It is typical of the egocentric worldview of the US. You luckily prove my brush is too broad.

I am not saying this as criticism on the posters "on the other side" of the debate in this thread.

[Gwerlain]

101. That's absolutely true, and I don't like it either.

In particular, a US citizen determined to be an "illegal enemy combatant," who wasn't released because the government could show cause at their Habeas Corpus hearing, would be subject to the torture methods permitted by this odious piece of legislation.

[Parche]

85. ALIEN

Alf or Mork

[truth2power]

89. This is my problem...

"Sec. 948a. Definitions

`In this chapter:

`(1) UNLAWFUL ENEMY COMBATANT- (A) The term `unlawful enemy combatant' means--

`(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces);" (added underline)

http://thomas.loc.gov/cgi-bin/query/F?c109:3:./temp/~c109CMcTbx:e2995:

"It clearly says that an "unlawful enemy combatant" is "a person..." I am "a person." You are "a person." If they had meant "Muslim" or "Arab" or "alien", they would have said so, IMO.

I'm not a lawyer. Maybe a lawyer could explain how this does not give them permission to designate ANYONE as an enemy combatant.



edit> typo

edit>

Here's the link to the list of iterations of this bill. I used the one passed by both House and Senate. #3. Maybe this isn't the final version. I don't know.

Military Commissions Act of 2006 (Enrolled as Agreed to or Passed by Both House and Senate)

http://thomas.loc.gov/cgi-bin/thomas

[Hosnon]

90. It does give them permission to designate anyone as an enemy

combatant.

Any person can be an enemy combatant, alien or citizen. But the statute only denies habeas corpus to ALIENS who are enemy combatants. Habeas is not denied to citizens who are enemy combatants.

To be denied habeas, one must be BOTH X AND Y.

X = Alien

Y = Enemy combatant

By definition, a U.S. citizen cannot satisfy X.

[BelgianMadCow]

91. Read section 948 C

Sec. 948c. Persons subject to military commissions

`Any alien unlawful enemy combatant is subject to trial by military commission under this chapter.

It is being argued that this part of the bill, staing clearly "alien", means that all other parts where the alien may not present are also covered by this requirement.

And that makes sense.

[Hosnon]

93. Belgian, at first glance, I think you may have answered the question

about habeas corpus process.

It seems that section 948c doesn't take away the judicial branch recourse for citizens.

[BelgianMadCow]

96. Except if citizens are stripped of / denied their citizenship of course

and I still wonder about our other debate topics upthread - subthreads at post #58 and #80.
No point in continuing that in another place either. I still think the twice bolded part is very ominous. And we both don't trust them one bit. But strictly interpreting, I can see your point, yes.
I find it more of a style point, but style matters as well. It IS dangerous to get the facts right EDIT wrong.

Up to this point, I think the version of the law we're discussing itself does not take away habeas corpus for citizens. It just makes it easier & brings it closer.

And we have to factor in the signing statement as well. Do you know where to look for them?

And we both wonder what the reasoning of Turley for example is. Wish he was a DUer :-)

[Hosnon]

97. The ambiguity in that line upthread between "alien" and "enemy

combatant" troubles me as well.

That needs to be MUCH clearer. I don't THINK a judge would interpet it as modifying "alien" but I'd prefer if s/he didn't even have to make that decision.

[truth2power]

103. I'm sorry. I don't understand...

It seems there are two types of enemy combatant - unlawful and alien unlawful. (Geez! I feel like I'm caught in a D&D game gone horribly wrong.)

948d(c) appears to also say that someone determined to be an unlawful enemy combatant can't be tried by a military tribunal. Does "dispositive" in this context mean it affects the disposition of the case (can't be tried)?

Ok, but we're still left with what DOES happen to an unlawful enemy combatant (American citizen). I still think they can be thrown in a hole forever.

[Hosnon]

106. There are four types of enemy combatants, at least:

1)Citizen-Unlawful enemy combatant
2)Citizen-Lawful enemy combatant
3)Alien-Unlawful enemy combatant
4)Alien-Lawful enemy combatant

(3) and (4) have been denied habeas corpus.

I haven't read too closely into the tribunal provisions. Most of what I've focused on deals with the denial of habeas corpus.

As for what happens to (1), in theory s/he can be detained (and tortured, I think) but is still able to file a petition for habeas corpus. In practice, they can be thrown in a hole forever, but that could have happened to anyone even before this statute.

[bonito]

94. The neocons keep casting nets

Over the country to reign in absolute control and its like we run around trying to determine which parts of that net crosses our constitution and bill of rights while all the wile there is the signing statements that gives them immunity from following the law.

Thats why we need to vote the neocon (republican) lap dogs out this november and finally be in a better position to put them in check for once and work toward shedding light in government and undoing a whole bunch of wrongs.

[mmonk]

100. From the Center for Constitutional Rights

"Such scope means that non-citizens, such as those unjustifiably rounded up in sweeps after 9/11 in the U.S., could be held without charge or trial. U.S. citizens deemed to have "materially supported" hostilities against the United States could be held as enemy combatants as well. Once in U.S. custody, the law allows detainees to be subjected to stress positions, temperature extremes, sleep deprivation, and possibly waterboarding. It also defines sexual violence crimes so narrowly that some of the outrages of Abu Ghraib, such as forced nudity, would not be punishable, and defines rape and sexual abuse in a manner that is inconsistent with international law, turning back the clock on the hard-fought victories of survivors of sexual violence. At the same time, the bill provides retroactive immunity for U.S military and intelligence officials for the torture and abuse of detainees, including the widely condemned horrors which occurred at Abu Ghraib and Guantánamo."

[magellan]

109. Just because the Center for Constitutional Rights says

...it can be applied to US citizens doesn't mean they're right.

:sarcasm:

Honestly, I think the equivocating being done by some here is dreadful. We all know BushCo wanted this law mostly to provide themselves with legal cover over past, current and future transgressions. And that they don't care about adhering to ANY law, even their own, and have weaseled their way around untold numbers of laws so far, is a well-proved fact that should give one pause before claiming BushCo won't do something simply because it's illegal.

They can and will lock up US citizens as they please, and they can and will use this law to back up their case for the detentions -- should it ever become known and eventually maybe wind up in a non-corrupted court.

Who here is actually fool enough to give them the benefit of the doubt on that?

[Hosnon]

110. No equivocating is taking place here...at least none that I can see.

Most of the discussion has been very thoughtful, reasoned and polite...and direct.

No one wants to give them the benefit of the doubt. This statute is dreadful and I personally think that habeas should be guaranteed to every single human on the planet.

However, we ARE trying to point out what this statute DOES and what it DOES NOT say. It DOES NOT say that it is legal to deny habeas to a U.S. citizen...so no, if they get caught doing that, this statute will not legally shield them.

[magellan]

113. It will have to be tested first to find out if you're right

Which means a US citizen who's been denied habeas corpus will have to somehow get their case to the SCOTUS. Therein lies the rub.

[Hosnon]

115. Well legally, no U.S. citizen has been denied habeas corpus. The process

of filing a habeas corpus petition has been discussed in Marie's post above.

And this is the problem with "the rub":

You say that a citizen can be locked away forever without anyone knowing. This person cannot file a habeas petition even though s/he has a legal right to. Why does THIS statute enable that? That could have happened BEFORE this statute and it can still happen AFTER this statute.

If the government completely ignores the law, it doesn't matter WHAT the law says.

[magellan]

124. Somehow I think relying on these people

...to let you file a habeas petition is foolhardy at best. The president can now decide not only whether you fit his whimsical (broadly defined) definition of an unlawful enemy combatant, but also how deep a black hole you'll wind up in.

And how this statute affects their ability to disappear you is precisely that they now have this statute saying they have the legal right to do so. Until that's sorted out with the SCOTUS, which could take years, I'm not happy to shrug about it.

[Hosnon]

126. I don't think relying on them is a good idea either. The doctrine of

separation of powers practically forbids such a commingling of authority.

My point is that they have NEVER HAD to allow you to do so. A fed could have shown up BEFORE this statute and taken me away to a dark cave and no one would have ever heard from me again.

As I read it, this statute does NOT legalize denying a citizen habeas corpus. If so, how could it provide legal cover?

I don't want to shrug this statute off either. I think it is a terrible move against what is possibly the most important legal right. BUT...I do want to figure out WHAT it means and what it DOES NOT mean.

[magellan]

129. I wish you good luck with that, sincerely

I think it's written in such a way that the government can make it mean what they want it to mean, and in view of their control over the judicial branch I'm not going to underestimate the clear potential for abuse.

[mmonk]

111. Yep. They were looking to undo the cases they've lost as you say.

And the administration determines who and what an illegal or unlawful enemy combatant is. There's no definition someone can look to.

[magellan]

117. Oh, there's a definition of 'unlawful enemy combatant' all right

But it's the president who decides what that definition is, on a case by case basis. At the moment, that's GWBush** The Decider. (though by no means would I condone ANY president having this power.)

Just gives you warm fuzzies inside, doesn't it?

[mmonk]

102. The Military Commissions Act: Questions and Answers

From the Center For Constitutional Rights.
http://ccr-ny.org/v2/legal/Docs/MCA_Signing_Briefing_Paper.pdf

[Hosnon]

104. Thanks for the link.

This statute really is quite horrible. I hope to God that it finds its way up to the S. Ct. and is struck down...

[mmonk]

114. I do too.

The government is already rounding up legal residents without charge and putting them into jails with this new "return to sender" program. These people already occupy that middle ground between citizen and alien (some being here for decades).

[BelgianMadCow]

123. Some constitutional law experts opinion here

Yale Law Professor Bruce Ackerman writes in the L.A. Times :
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=2253214&mesg_id=2253214
applies to citizens.

Jonathan Turley, professor of Constitutional law at George Washington University on KO's Countdown :
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=2420699&mesg_id=2420699
applies to citizens

Those weigh a ton. Maybe contradictory opinions by similar people exist, haven't seen 'em posetd.

[Hosnon]

125. Bruce Ackerman's opinion definitely means a lot.

That article however, talks about detaining citizens, not denying them habeas corpus.

The statute definitely allows the President to declare citizens enemy combatants and detain them. I still don't see how the habeas provision can be legally applied to citizens...and Ackerman doesn't appear to weigh in on that point.

Edit: I give Turley the benefit of the doubt as well but I'd like to see his reasoning.

[BelgianMadCow]

127. He does point out this law (in general) is applicable to citizens

that's a big shocker to the general public already.

Thanks for the clarification!

Let's see if we can find opposing statements by similar people.

Had no luck dredging up Reid's statement in the senate :-(

[BelgianMadCow]

128. Snips from Ackerman's LA Times article

But the bill also reinforces the presidential claims, made in the Padilla case, that the commander in chief has the right to designate a U.S. citizen on American soil as an enemy combatant and subject him to military justice.

http://www.latimes.com/news/opinion/la-oe-ackerman28sep28,0,619852.story?coll=la-opinion-rightrail

And the one that makes your point there is a habeas corpus difference between citizens & aliens :

What is worse, if the federal courts support the president's initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.

Legal residents who aren't citizens are treated even more harshly. The bill entirely cuts off their access to federal habeas corpus, leaving them at the mercy of the president's suspicions.

Not exactly souding very promising, and his piece is blowing warm & cold at the same time, but there IS a difference in his opinion.

I will end our pleasant discussion by saying we agree there is dangerous ambiguity in this bill, even if it is not explicit.

I also guess you have to read the entire piece and pick it apart to have a full understanding. I cannot claim that I have. Those two sure have.

[Hosnon]

130. It has been a pleasure Belgian. Hopefully more in depth legal opinions

will come out in the next few weeks so we can all get a better understanding of what is going on here.

Thanks for the great discussion...we managed to have an entire intelligent talk without going negative. :toast:

Have a good night.

[BelgianMadCow]

131. Likewise. There are always 2 sides to a good honest debate

not that I'm pretending it was that good, but nothing better than having your opinions challenged.

[Toots]

140. It goes to the heart of being American

Every person is innocent until proved guilty in the America I grew up in. Now that is no longer the case. If Bush* or one of his compratriots say you are guilty then that you are and have no way of saying anything different. All they have to do is say you are a terrorist. You are not allowed to even ask to defend yourself and the courts are denied any way to even consider it. Remember Joseph Padilla was not an alien. He was born and raised American and arrested on the streets of Chicago. Now the courts are barred from even asking about him...We now live under "Unitary Executive" and no longer have a US Constitution.

[meldroc]

141. Yes, US citizens too! Check out this thread on the MCA and case law.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x2894955

In a nutshell, the MCA wasn't written in a vacuum. It uses existing case law, specifically the case Ex parte Quirin, 317 U.S. 1 (1942). Harvey Korman explained it much better than I can, but this case specifically refers to "unlawful combatants", and the SCOTUS essentially ruled that the US could detain "unlawful combatants" indefinitely, and try them for crimes with a military tribunal.

http://en.wikipedia.org/wiki/Ex_parte_Quirin has a more thorough description of the case.

That's why the MCA has the language that enables King George to label anyone he wants as an "unlawful enemy combatant" - according to the Quirin case, once you have that label, even if you are a citizen, you have no rights.

Thank you Harvey Korman, you just scared the hell out of me... more than I already am.