Geneva Convention

[epeemike81]

Originally Posted by Tireur

And we know who you quote, right?

I'm not sure of the exact meaning of this question...

-m

[Tireur]

Originally Posted by epeemike81

well, there is a reason that they've already been ruled against.

any attorneys wanna chime in on the strength or weakness of the government case?

-m

No. no, you made the statement, I'd rather you told me. If you can, without a "lifeline".

[epeemike81]

Originally Posted by Tireur

No. no, you made the statement, I'd rather you told me. If you can, without a "lifeline".

Well, such a detention of an American citizen violates the 5th and 6th amendments. The government's contention that the president has the right to declare "enemy combatants" as part of his war powers is dubious at BEST, since there's no legal definition of the term "enemy combatant," and that designation is the basis of Padilla's captivity.

Originally Posted by U.S. Constitution

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

These fundamental rights are the basis of our society. If we allow indefinite detention without any proof of wrongdoing, there is nothing to prevent them from picking you up tomorrow and holding you incommunicado til your death. and if they can hold you incommunicado til your death, they could pick you up tomorrow and toss you into the ocean from a plane without anybody ever being the wiser. Such allowances are INCREDIBLY bad ideas.

And the 2nd circuit would seem to agree.

btw, while I'm glad to tell you why I think their case is weak (and, in fact, already had), I asked lawyers to chime in because you were deriding my legal expertise and I thought maybe you'd take their opinion with more weight. So which way is it? you want my opinion, not a "lifeline's," or my opinion isn't worth anything cause I'm not a legal expert? you can't have it both ways.

-m

[Tireur]

I didn't "deride" your expertise, I said I was unaware of it and asked what it was based on?

[epeemike81]

Originally Posted by Tireur

I didn't "deride" your expertise, I said I was unaware of it and asked what it was based on?

it's based on my ability to read, my ability to reason, and the easy availability of legal documentation on the web. In terms of official expertise, I don't have any, which is why I asked for an attorney to back me up when you were looking for some. btw, you didn't "ask" me anything, but simply made the following comment, which is, IMO, fairly clearly sarcastic and derisive:

Originally Posted by Tireur

I'm sorry, I didn't know you were an attorney or legal expert.

how about instead of screwing around with semantics you actually answer the points I made? do you agree or disagree that the gov'ts case is weak? if you disagree, why?

-m

[Tireur]

Well, you might have told me this:


clear congressional authorization is required for detentions of American citizens on American soil because 18 U.S.C. § 4001(a) (2000) (the
“Non-Detention Act”) prohibits such detentions absent specific congressional authorization. Congress’s Authorization for Use of Military Force Joint Resolution, Pub. L. No. 107-40, 115 Stat. 224 (2001) (“Joint Resolution”), passed shortly after the attacks of September 11, 2001, is not such an authorization, and no exception to section 4001(a) otherwise exists.


And you might have noted this:


The (district) court did not find a right to counsel under the Constitution: It
ruled that neither the Sixth Amendment nor the Fifth Amendment’s Self-Incrimination Clause affords Padilla a right to counsel, and it declined to rely on the Fifth Amendment’s Due Process Clause.

I cannot tell whether the case is weak or not. I think it has some merit and some weakness.

My point is, do not pretend to know what any particular court will do or not do. Because you have no idea what technical points all those judges will focus on when they deliberate.

They may lose, they may prevail. Just because "These fundamental rights are the basis of our society" Has nothing do with what will happen.

[PeterGustafsson]

Hi!

Originally Posted by Tireur

Let the Geneve Convention come up with a new category and then let us abide by it.

And the category of PoW is inadequate in which way?

Have a nice time!

Peter Gustafsson

[epeemike81]

Originally Posted by Tireur

Well, you might have told me this:


clear congressional authorization is required for detentions of American citizens on American soil because 18 U.S.C. § 4001(a) (2000) (the
“Non-Detention Act”) prohibits such detentions absent specific congressional authorization. Congress’s Authorization for Use of Military Force Joint Resolution, Pub. L. No. 107-40, 115 Stat. 224 (2001) (“Joint Resolution”), passed shortly after the attacks of September 11, 2001, is not such an authorization, and no exception to section 4001(a) otherwise exists.

right, I might of, but I didn't. this is yet ANOTHER reason that the gov't's case is weak.

And you might have noted this:

The (district) court did not find a right to counsel under the Constitution: It
ruled that neither the Sixth Amendment nor the Fifth Amendment’s Self-Incrimination Clause affords Padilla a right to counsel, and it declined to rely on the Fifth Amendment’s Due Process Clause.

you realize you're citing the decision which the 2nd circuit overturned? hell, if I can cite overturned cases as a legal precedent, I'm pretty sure I can justify just about anything, including but not limited to segregation (Plessy v. Ferguson, and the District ruling of Brown v. Board of Education) and not allowing the teaching of evolution (Scopes Monkey Trial).

I cannot tell whether the case is weak or not. I think it has some merit and some weakness.

My point is, do not pretend to know what any particular court will do or not do. Because you have no idea what technical points all those judges will focus on when they deliberate.

They may lose, they may prevail. Just because "These fundamental rights are the basis of our society" Has nothing do with what will happen.

I don't "pretend to know what any particular court will do," but rather express an opinion (based on reading and reason) of what the court SHOULD do, and an opinion about the strength (or lack thereof) of the case. I never said they WOULD lose in the Supreme court (after all, it would be foolish to bet against Scalia's golf partner). I said they DID lose in the 2nd circuit and contended that they lost because their case was weak. I am, frankly, a little worried by the fact that any judge originally ruled in the gov'ts favor. IMO, the legalities are fairly clear here, even to laymen.

-m

[Tireur]

Originally Posted by epeemike81

you realize you're citing the decision which the 2nd circuit overturned?I -m

Yes, I do. It's what higher courts do. Confirm or overturn lower court decisions. Just because that court overturned doesn't mean the USSC will confirm it's decision. It also doesn't mean it won't.

I don't know if I could find it now or not, but I'm pretty sure you were telling me at one point ".......court will do ......".

[Philistine]

Originally Posted by Tireur

{snip}
The (district) court did not find a right to counsel under the Constitution: It
ruled that neither the Sixth Amendment nor the Fifth Amendment’s Self-Incrimination Clause affords Padilla a right to counsel, and it declined to rely on the Fifth Amendment’s Due Process Clause.

Where did you find this quote?

My reading of the District Court's Opinion is that he found Padilla's right to counsel in the (Federal due process clause of) the Fifth Amendment--in that due process required Padilla to be able to respond to the Government's allegations, and the fact that Padilla could not effectively do otherwise than through counsel.

I cannot tell whether the case is weak or not. I think it has some merit and some weakness.

I would not call the Government's case "incredibly weak." The basis--that the President has the right to detain citizens convinced both the district court and one Dissenting Judge of the 2nd Circuit.

Two other judges of the 2nd circuit disagreed. Majority Opinion

Personally, I think it is something of a legal tossup on the issue, and I have no clear view of what the Supreme Court is going to do with the case (though they could always punt and say it was improperly brought for procedural reasons).

The main issue that bothers me about the Government's position isn't really at issue on this appeal--(though it was at the District Court level)--but it is squarely at issue in the Hamdi case. That issue is what opportunity does the detainee have to contest what the Government says about him which justifies his detention.

It is the Government's contention that all they need to do is submit an affidavit indicating reasons why they believe the detainee is an enemy combatant, and the detainee would have no opportunity to contest these allegations (or even see them in some cases). I have a problem with this position.

Hopefully, the Supreme Court will at least clarify the situation.

--Philistine

[epeemike81]

Originally Posted by Tireur

Yes, I do. It's what higher courts do. Confirm or overturn lower court decisions. Just because that court overturned doesn't mean the USSC will confirm it's decision. It also doesn't mean it won't.

I don't know if I could find it now or not, but I'm pretty sure you were telling me at one point ".......court will do ......".

true, but you shouldn't cite an overturned decision as evidence. you didn't cite the evidence that LED to that decision (which was their "war powers" contention, addressed in my earlier post), but rather the fact that a district court ruled in their favor at one time. At one time, a district court ruled that it was okay to not allow the teaching of evolution in public schools on the basis of Genesis. that doesn't mean that wasn't a weak case.

-m

[Tireur]

Originally Posted by epeemike81

that doesn't mean that wasn't a weak case.-m

That's my whole point. You can't know what any court is going to find in any given case.

Your presumption of a strong case because, "These fundamental rights are the basis of our society." really means nothing in practicality. I'm not saying that's right. That's just reality. I wasn't citing it as precedent, just as what happens in court.

It's a strong case to you. It could go either way to me.

[Tireur]

Originally Posted by Philistine

[/b]

Where did you find this quote?

It was in findlaw. I'd have to go back and find it again.

[Tireur]

Originally Posted by Philistine

[/b]

It is the Government's contention that all they need to do is submit an affidavit indicating reasons why they believe the detainee is an enemy combatant, and the detainee would have no opportunity to contest these allegations (or even see them in some cases). I have a problem with this position.

Hopefully, the Supreme Court will at least clarify the situation.

OK, I'm not really following all these cases like you guys are, but, wasn't he found in a combat zone, wasn't he carrying an enemy weapon, was he there as a member of US Forces, did he actually live there and just picked the weapon up to turn it in?

Seems to me he is probably an enemy combatant.

[Philistine]

Originally Posted by Tireur

OK, I'm not really following all these cases like you guys are, but, wasn't he found in a combat zone, wasn't he carrying an enemy weapon, was he there as a member of US Forces, did he actually live there and just picked the weapon up to turn it in?

Seems to me he is probably an enemy combatant.

The answer to all those questions is "that's what the government's affidavit says." (except being there as a member of US forces--not sure what you're saying).

Personally, everything I've read suggests they are true.

BUT, he has been denied any chance to dispute them. For instance--he cannot say (and I don't know if he is saying anything like this) "I was set up, I was just a tourist and these Afghans falsely gave up my name so they could get the $1000 reward for turning in Taliban members."

Beyond the ability of the President to detain citizens (which I feel is at least likely to be found for someone in Hamdi's situation, who was caught on a battlefield), is the question of whether they ever get a chance to be heard to dispute the facts which have led to their detention.

What I find especially troublesome is that, because I don't ever see an end to a war on terror, it very well may mean a life sentence with no ability to dispute anything, ever.

--Philistine

[Tireur]

Originally Posted by Philistine

The answer to all those questions is "that's what the government's affidavit says." (except being there as a member of US forces--not sure what you're saying).

Personally, everything I've read suggests they are true.

I was using that as an exclusion. If he wasn't there as part of the US Forces, then why was he in a combat zone with a weapon?

[epeemike81]

Originally Posted by Tireur

OK, I'm not really following all these cases like you guys are, but, wasn't he found in a combat zone, wasn't he carrying an enemy weapon, was he there as a member of US Forces, did he actually live there and just picked the weapon up to turn it in?

Seems to me he is probably an enemy combatant.

no, he was "found" at O'Hare Airport.

-m

[Inquartata]

Originally Posted by epeemike81

well, if they don't qualify for international protection as either soldiers or civillians, then they qualify for domestic protection as criminals. it's one or the other. there is no option three.

Sure there is. ( Fallacy of bifurcation or false alternatives. )

Read some of the analysis here:

http://www.fed-soc.org/Publications/...combatants.htm

BTW, I learned something interesting: the US is not even a signatory to the revisions of the Geneva Convention which extend all the protections we've been discussing to the likes of spies, saboteurs and other "unlawful combatants". Neither, of course, is al-Qaeda and its ilk, which are neither nations nor Powers as defined by international law, and they do not even profess to be fighting for a state, unless it's the non-existent pan-Islamic State...how can a treaty to which neither party has agreed bind either?

[Inquartata]

Originally Posted by Philistine

The detention was held to be improper by the 2nd Circuit. The Supreme Court will determine whether it was proper or not (and the 2nd Circuit's ruling is being held in abeyance until after the Supreme Court rules). The Government's main arguments are that it is proper either as part of the President's war powers as commander-in-chief, or because of the Joint Resolution of Congress after 9/11.

The 2nd Circuit said neither applied (However, it distinguished the Hamdi case where a US citizen was captured in a "zone of active combat" and intimated that such a detention would be within the President's war powers. The 4th Circuit held that it was, and the Supreme Court heard both cases together).

--Philistine

YES! Why is this never sufficiently noted? To every complaint about these awful "new powers", whether they be derived from the PA or otherwise, he response is that problems, violations and abuses will be sorted out and revised in the courts, as is the established procedure in this country. Just as the law of search and seizure has always been sorted out and revised and excesses corrected. ( Because EVERY law-enforcement power has the potential to be abused by the state; the PA is no different. )

Perhaps instead of howling for prior restraint or immediate repeal we should let the courts do their job and enable us to keep the good parts and excise the bad instead of throwing the baby and the bath out together?

[Inquartata]

Originally Posted by epeemike81

Well, such a detention of an American citizen violates the 5th and 6th amendments.

Perhaps we should leave this to the courts to decide? I mean I know it's much more fun to leap into the saddles of our moral high horses and call for immediate repeal of all provisions endangering our precioius civil liberties and blah blah blah, but that's not really the way our system works, is it? Such things get worked out in the courts...

If we allow indefinite detention without any proof of wrongdoing, there is nothing to prevent them from picking you up tomorrow and holding you incommunicado til your death. and if they can hold you incommunicado til your death, they could pick you up tomorrow and toss you into the ocean from a plane without anybody ever being the wiser.

Here's another slippery slope of Olympic bobsled-run magnitude...