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Supreme Court restores habeas to Gitmo, giving yet another setback to Bush (pg. 3)
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| pkcRAISTLIN |
| quote: | Originally posted by Q5echo
whether a bounty was paid for them or whether they were caught conventionally is irrelevant. |
no it isn't. if you are receiving unknown people into your custody then you should have to prove that they are what you tell people they are.
how can you call them 'enemy combatants' when you can't even prove that they were captured on the battlefield? and then you're going to turn around and say that not only do you not have to prove where they came from, but that you can hold them indefinitely without charge??
that Q5. despite your country's spectacular history of ups, i still think its better than that.
| quote: | Originally posted by Q5echo
todays decision reflects that and so does the statutes recently passed by Congress and the President |
meaningless.
| quote: | Originally posted by Q5echo
that so happened to be struck down as well by the 5 Justices. |
as they should have. thank someone at the pointy end of law in your country has a proper sense of context.
| quote: | Originally posted by Q5echo
they were criminals. they were "UNLAWFUL ENEMY COMBATANTS". show me where in Geneva they fall inside. |
but i am not arguing that they necessarily fall inside the geneva accords. but if they do not fall inside geneva then they are civilian criminals, and subject to relevant civilian protections. you can't have it both ways. they cannot just be persona non gratias and you're free to do whatever you want with them without any oversight. that's just bollocks any way you look at it.
you bring a person to face charge or you let them the go, whether they pose a threat to your country or not.
| quote: | Originally posted by Q5echo
again this was supposedly taken care of through statute in bi-partisaned compromise btween Congress and the President. today they both lost to the majority Justices. |
you can keep repeating this fact all your want, but it doesn't make it right any more than saddam's elections made him a democrat. i dont have to tell you the role of the justices, but here is a perfect example of them doing their job, and doing it right. |
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| Groundhog Boy |
| quote: | Originally posted by Q5echo
because these particular people were caught on a battlefield in a time of war. |
I think they call these POWs and the White House won't acknowledge them as such because that would offer them certain protections, too. |
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| Clovis |
| The fact that American citizens in 2008 are even arguing about this is troubling in itself. |
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| Zild |
| quote: | Originally posted by Clovis
The fact that American citizens in 2008 are even arguing about this is troubling in itself. |
Very sad indeed. |
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| jerZ07002 |
| quote: | Originally posted by pkcRAISTLIN
yeah, that's what i figured.
so why isn't anyone being called to account? someone at the executive level should be paying through their arsehole. i vote cheney. even if they haven't been breaking laws with some of their activities, this administration has been using the letter of the law to defeat the spirit of the law. |
the president and most executive officials have absolute immunity for official acts. So, unless those acts are clearly unlawful it is impossible to do anything about it. With this specific issue, there is actually some ambiguity, however, it is not favorable to the presidents position. If the president or any official were to violate a court order prohibiting the current activity then that person would be held to account for those actions. Unfortunately in this case the rule of law has to actually play out in courts. Our system ensures that a court has the final determination and that can take years to play out.
| quote: | Originally posted by pkcRAISTLIN
like the anti torture provisions (forgive my butchery of american law here) which they tabled over the holidays with an extra proviso snuck in there basically saying that "this law is against the constitutional powers of the president thus he is not bound by it" or " you i wont do what you tell me" :rolleyes: |
i'm not familiar with this issue.
| quote: | Originally posted by pkcRAISTLIN
i mean, . i find it incredible that your democracy can allow such power into the hands of one person. |
the president is actually the weakest head of our government. The supreme court and congress are much more powerful. The reason Bush was so powerful is that he had a republican congress that rubber-stamped anything he wanted. Without congress he couldn't have done most of what occurred. You have been seeing changes recently since the republicans lost congress. To repeat though, a president typically doesn't have this kind of power. additionally, Bush has showed an unprecedented willingness to push the boundaries of what is believed to be legal, and his power is actually illusory, meaning he doesn't have that much power in a legal sense. It takes years of legal proceedings to bring the balance back. Unfortunately, the harm is done and the legal proceedings can actually take longer than the presidents term.
| quote: | Originally posted by pkcRAISTLIN
and while im here railing against the US, the ing state of a woman's right to choose in your country, free of un-needed intrusion by the state, is ing atrocious. |
this is a common rallying point that is mostly irrelevant. What many people outside of the US don't realize is that these issues are dealt with on a state level (i.e., New York, California, Illinois, etc...). Unlike most countries around the world, the US federal government is limited in the laws it can enact. Most laws that we think of as effecting people's everyday lives are state laws (i.e,. rape laws, traffic laws, etc...). The federal government's main power in regulation is the power to regulate interstate and international commerce. You wouldn't believe what kinds of laws are crafted to fall within interstate commerce laws. However, since an abortion by a woman in NJ doesn't affect interstate commerce (and doesn't fall within another constitutional power) the federal government can't directly prohibit abortion. On abortion, the federal government can only say what a state can and can't prohibit under the constitution. The federal government can't say to a state that they must prohibit abortions. Currently, no state can prohibit abortions. However, if the supreme court rules that a woman's right to choose is not a protected right under the constitution that only means that a state has the right to prohibit abortions, it is not a mandate that states must prohibit abortions. If the Supreme Court goes down that road there are certainly many states that will not prohibit abortions, namely, Cali, Mass, NY, NJ, and the other blue states. Congress, however, always has the power to attach conditions to money earmarked for states. That is, a state can only accept money from the federal government if it accepts the conditions that Congress attaches. With abortion, I assume Congress could only places conditions relating to abortion on money that has to do with public health. For example, Congress could not say that in order for New Jersey to receive federal highway funding it must outlaw abortions. There must be a relationship between the condition and the purpose of the funding. |
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| Krypton |
| We can not hold "enemy combatants" because we are not at war with any nation-state. Al-Qaida is a criminal organization so they should be charged in criminal courts. |
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| Clovis |
| quote: | Scalia's fear factor
His dissent in a key terror case makes it harder to solve the Gitmo problem.
By David Kaye
June 13, 2008
Justice Antonin Scalia has been a controversial voice of fidelity to the text of the Constitution and a forceful advocate for conservatism throughout his 22 years on the Supreme Court. Yet Thursday, his dissent in a key ruling in the war on terrorism showed him at his worst. His ill-considered language makes it harder for national leaders to clean up one of the darkest blots on America's reputation in President Bush's post- 9/11 world -- the policy of detaining enemy combatants that is summed up in one word: Guantanamo.
The court decided that Guantanamo Bay detainees have the right (known as habeas corpus) to challenge the legality of their detentions in federal district court. It did not authorize the release of a single detainee, nor did it answer many tough questions (What should be the standard adopted in evaluating a detainee's claim? What deference should be given the military by a civilian court?). But it squarely stated that the Constitution has full effect at Guantanamo, available even to those detained there.
"The laws and Constitution are designed to survive, and remain in force, in extraordinary times," Justice Anthony M. Kennedy wrote for the majority.
The decision infuriated Scalia. It "will make the war harder on us," he asserted in dissent. "It will almost certainly cause more Americans to be killed."
Scalia's overheated rhetoric harms a critical national decision that must be made about what to do next with the detainees. Be afraid! he says. And know whom to blame when the next terrorist attack comes! It's exactly this kind of demagoguery, designed to limit debate, that got us where we are today, with the Congress adopting a detainee law based on fear rather than effective policy and American principles
The sad truth is that Guantanamo has been an epic failure. For more than six years, hundreds of individuals have been held there, some on the flimsiest of evidence and some undoubtedly dangerous, devoted terrorists. Fewer than 300 remain today. None has been tried by the military tribunals set up by Bush in 2001 and ratified by Congress in 2006. Hundreds have been released to their home countries after an opaque process in which the military determined that they "no longer" pose a threat. Some have returned to battle.
Scalia seems to believe that Guantanamo has made Americans safer. But we know that Guantanamo and its harsh interrogation policies have attracted global disapproval and made it difficult for our allies to cooperate with us on counter-terrorism issues.
And are we safer today than we would have been if the president, in 2001 or early 2002, had established a legally sustainable process for determining whether individuals brought to the prison at Guantanamo were in fact associated with the Taliban or Al Qaeda, as the State Department advised?
Are we safer than we would have been if the president had sought to devise a secure but humane policy in a good-faith consultation with Congress long before the Supreme Court forced him to do so (in the case of Hamdan vs. Rumsfeld in 2006)?
To turn the page on Guantanamo will most likely require congressional action based on dispassionate debate about our limited options. A raft of ideas from liberals, centrists and conservatives have been proposed to replace the heavy-handed detention of Guantanamo with a better system.
For instance, it is already possible to imagine a new legal framework that would allow long-term detention in the United States of a small number of detainees who would either be held with regular and rigorous judicial review of their status (much as Israel has done with suspected terrorists it detains), or prosecuted in federal court or military tribunals.
Presidential politics will likely conspire against such action before next year. This is a shame, particularly for detainees who have been held since 2002. Barack Obama and John McCain support the closing of Guantanamo, and they should each work to lower the temperature of the rhetoric. Congressional races may also make it more difficult to move new legislation forward. Experience has shown that members of Congress who support closing Guantanamo will be liable to a Scalia-type attack.
Getting out of the Guantanamo morass must be a national priority, based not on fear but on sound policy. It is long past time for the president and Congress, not just the Supreme Court, to step up to that challenge.
David Kaye, a former State Department staff lawyer with responsibility for the law of war, is executive director of the UCLA School of Law's international human rights program. |
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| pkcRAISTLIN |
| quote: | Originally posted by jerZ07002
i'm not familiar with this issue. |
http://www.pbs.org/wgbh/pages/frontline/cheney/view/
excerpt: For three decades Vice President Dick Cheney conducted a secretive, behind-closed-doors campaign to give the president virtually unlimited wartime power. Finally, in the aftermath of 9/11, the Justice Department and the White House made a number of controversial legal decisions. Orchestrated by Cheney and his lawyer David Addington, the department interpreted executive power in an expansive and extraordinary way, granting President George W. Bush the power to detain, interrogate, torture, wiretap and spy -- without congressional approval or judicial review.
| quote: | Originally posted by jerZ07002
the president is actually the weakest head of our government. |
yes and no. congress might have 90% of the power but that's split between hundreds of individuals. no individual senator or member of the house has, say, the power of veto.
| quote: | Originally posted by jerZ07002
The supreme court and congress are much more powerful. |
true, but the supreme court doesn't make law (even if their decisions have the tendency to do that) and must be called upon before they can act.
| quote: | Originally posted by jerZ07002
What many people outside of the US don't realize is that these issues are dealt with on a state level (i.e., New York, California, Illinois, etc...). |
of course. federalism is alive and kicking in australia i can assure you ;)
| quote: | Originally posted by jerZ07002
Unlike most countries around the world, the US federal government is limited in the laws it can enact. Most laws that we think of as effecting people's everyday lives are state laws (i.e,. rape laws, traffic laws, etc...). The federal government's main power in regulation is the power to regulate interstate and international commerce. You wouldn't believe what kinds of laws are crafted to fall within interstate commerce laws. However, since an abortion by a woman in NJ doesn't affect interstate commerce (and doesn't fall within another constitutional power) the federal government can't directly prohibit abortion. On abortion, the federal government can only say what a state can and can't prohibit under the constitution. The federal government can't say to a state that they must prohibit abortions. Currently, no state can prohibit abortions. However, if the supreme court rules that a woman's right to choose is not a protected right under the constitution that only means that a state has the right to prohibit abortions, it is not a mandate that states must prohibit abortions. If the Supreme Court goes down that road there are certainly many states that will not prohibit abortions, namely, Cali, Mass, NY, NJ, and the other blue states. Congress, however, always has the power to attach conditions to money earmarked for states. That is, a state can only accept money from the federal government if it accepts the conditions that Congress attaches. With abortion, I assume Congress could only places conditions relating to abortion on money that has to do with public health. For example, Congress could not say that in order for New Jersey to receive federal highway funding it must outlaw abortions. There must be a relationship between the condition and the purpose of the funding. |
yes, that's pretty much identical to how it works here. like i said it was "an aside" im not meaning to blame the state of a woman's right to choose on the federal government.
and while its all very nice in theory to talk about how a state cannot ban abortion, the reality is that more than half the states have enacted laws limiting access to abortion. individually, the separate conditions might not sound like much, but taken together they can be a huge and unfair impediment and imo they make a mockery of parts of roe v wade. |
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| The17sss |
By granting the unlawful combatants habeas corpus, the court has now eliminated the main reason for the military tribunal system, and for that matter, Gitmo itself. If the detainees can access American courts, they may as well be held on American soil.
The previous two rulings that struck down the tribunals forced the government to quickly pass laws that allowed for them. The reason why this seems so wrong to me is that the Supreme Court has basically ruled that the Constitution applies worldwide rather than just to the US and its residents. They want to take the right to prosecute war away from the commander-in-chief and turn it over to themselves. It seems absurd to apply criminal law to unlawful combatants captured during hostilities abroad. Will they require a Miranda reading, too? Do we have to bring the soldiers and Marines who captured them to the trial? In our 232-year history, when have we ever allowed that kind of access to enemy combatants not captured inside the US itself? I assume the US taxpayer is going to be footing the bill as well. |
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| Clovis |
| Are you for or against a fair justice system for human beings? |
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| The17sss |
| quote: | Originally posted by Clovis
Are you for or against a fair justice system for human beings? |
That's a good question... tricky to answer because I believe in treating people fairly. But this is so much more complicated than a simple yes or no answer. I don't believe in extending constitutional rights of American citizens to people in other places around the world who are not citizens, and who are being detained as enemy combatants, or whatever catchy phrase used to classify them. They should not have access to American lawyers funded by taxpayer money, and given the same luxuries we have under citizenship. All of these detainees are going to get hearings before a US district judge, and they are going to be able to make the case that they are not enemy combatants. They're going to lawyer up, and they're going to have plenty of ACLU-type lawyers defending them on the content, in the sense that they're not enemy combatants, and then the judge decides. And if the judge says, "You know what, we think you're right, Sahib. You're not an enemy combatant," then he has to be released, and the US government has gotta release the guy, when technically they are prisoners of war captured on the "battlefield." Individual judges have been given the choice to decide whether or not they believe each person in the enemy. If you're gonna grant these people constitutional rights, at what point do you say, "Okay, those are all the constitutional rights you get." It's a slippery slope, you know? Are we gonna turn over more and more aspects of fighting a war to the Supreme Court and the US judiciary, or are we gonna leave it where it's always been constitutionally: in the executive, the commander-in-chief? |
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| jerZ07002 |
| quote: | Originally posted by pkcRAISTLIN
http://www.pbs.org/wgbh/pages/frontline/cheney/view/
excerpt: For three decades Vice President Dick Cheney conducted a secretive, behind-closed-doors campaign to give the president virtually unlimited wartime power. Finally, in the aftermath of 9/11, the Justice Department and the White House made a number of controversial legal decisions. Orchestrated by Cheney and his lawyer David Addington, the department interpreted executive power in an expansive and extraordinary way, granting President George W. Bush the power to detain, interrogate, torture, wiretap and spy -- without congressional approval or judicial review. |
sounds interesting, i will have to watch when i have free time.
| quote: | Originally posted by pkcRAISTLIN
yes and no. congress might have 90% of the power but that's split between hundreds of individuals. no individual senator or member of the house has, say, the power of veto.
true, but the supreme court doesn't make law (even if their decisions have the tendency to do that) and must be called upon before they can act. |
fair points
| quote: | Originally posted by pkcRAISTLIN
of course. federalism is alive and kicking in australia i can assure you ;) |
;) i didn't mean to be condescending at all
| quote: | Originally posted by pkcRAISTLIN
yes, that's pretty much identical to how it works here. like i said it was "an aside" im not meaning to blame the state of a woman's right to choose on the federal government.
and while its all very nice in theory to talk about how a state cannot ban abortion, the reality is that more than half the states have enacted laws limiting access to abortion. individually, the separate conditions might not sound like much, but taken together they can be a huge and unfair impediment and imo they make a mockery of parts of roe v wade. |
while that's true, most of the restrictions are imposed in red states, and they limit late term abortions and parental notification. I have no problem with either restrictions (even though i think a woman should have the right to choose). If someone wants an abortion noone can stop them from having the abortion within the first few months. I don't think it's unreasonable to make someone choose within that period. even if certain states did choose to make abortion illegal citizens of those states could just travel to other states. (although i think congress could restrict that because that could arguably fall under interstate commerce). |
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