Balkinization  

Thursday, September 28, 2006

"Tyranny": "Our Generation’s Version of the Alien and Sedition Acts"

Marty Lederman

I don't recall ever having seen a more strongly worded New York Times editorial (see below). "The Democratic leadership in the Senate seems to have misplaced its spine." "Americans of the future won’t remember the pragmatic arguments for caving in to the administration. They’ll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts."

[UPDATE: Over at Obsidian Wings, Katherine rightly complains that the Times' headline, "Rushing off a cliff," is "completely unfair":

"Congress isn't driving the bus over a cliff--that's what the administration asked for, but thanks to the bold rebellion of Senators McCain, Warner and Graham, [Congress] refused. Instead they simply removed the guard rail, fired the traffic cops, gave the keys to a drunk driver, and closed their eyes."

She's right, of course. The most striking thing about the bill--perhaps more than all of its substantive provisions--is that in case after case (e.g., defining "unlawful enemy combatants"; deciding whether commissions must abide by statutory standards; defining less-than-"grave" breaches of Common Article 3; deciding what process detainees will receive in lieu of habeas; etc.) it would (i) delegate virtually unbridled discretion to the Executive; and (ii) then attempt to foreclose any meaningful judicial review of the President's decisions (no matter how far those decisions might stray from remaining legal limits, such as treaty obligations), and purport to eliminate any precedential effect of other legal authorities that might cabin the Executive's discretion (e.g., international interpretations of Geneva; prior court decisions concerning the courts-martial system).

In other words, the principal theme and effect of this legislation is to systematically abdicate and destroy existing legislative and judicial checks and balances. [Stephen Colbert: "Governing is a lot easier when your checks and balances come from people who don't want to check or balance you."]

As if this Administration, if granted absolute discretion and left unchecked, could be trusted to make wise -- and legal -- choices. For more, see Andrew Sullivan's plea.]

(The House passed the bill today by a 253-168 vote. The Democratic vote was 161-34 against. Seven Republicans (Bartlett, Gilchrest, Jones (NC), LaTourette, Leach, Moran (KS), Paul) out of 226 voted against. Senate debate and vote scheduled for tomorrow (Thursday).)

Rushing Off a Cliff


Here’s what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans’ fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws — while actually doing nothing to protect the nation from terrorists. Democrats betray their principles to avoid last-minute attack ads. Our democracy is the big loser.

Republicans say Congress must act right now to create procedures for charging and trying terrorists — because the men accused of plotting the 9/11 attacks are available for trial. That’s pure propaganda. Those men could have been tried and convicted long ago, but President Bush chose not to. He held them in illegal detention, had them questioned in ways that will make real trials very hard, and invented a transparently illegal system of kangaroo courts to convict them.

It was only after the Supreme Court issued the inevitable ruling striking down Mr. Bush’s shadow penal system that he adopted his tone of urgency. It serves a cynical goal: Republican strategists think they can win this fall, not by passing a good law but by forcing Democrats to vote against a bad one so they could be made to look soft on terrorism.

Last week, the White House and three Republican senators announced a terrible deal on this legislation that gave Mr. Bush most of what he wanted, including a blanket waiver for crimes Americans may have committed in the service of his antiterrorism policies. Then Vice President Dick Cheney and his willing lawmakers rewrote the rest of the measure so that it would give Mr. Bush the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error.

These are some of the bill’s biggest flaws:

Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.

Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.

Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.

•There is not enough time to fix these bills, especially since the few Republicans who call themselves moderates have been whipped into line, and the Democratic leadership in the Senate seems to have misplaced its spine. If there was ever a moment for a filibuster, this was it.

We don’t blame the Democrats for being frightened. The Republicans have made it clear that they’ll use any opportunity to brand anyone who votes against this bill as a terrorist enabler. But Americans of the future won’t remember the pragmatic arguments for caving in to the administration.

They’ll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts.

Comments:

Why does the Times assume future Americans will see this bill as a low point? It may be the point of no return on a descent into a durable tyranny, one whose depths cannot even be fully seen.

The Times seems stuck in the mindset of "it can't happen here." If an 800-year writ can be shredded without debate, it seems it can. In fact it seems it is.

About the least significant aspect of this bill is its role in election year politics. A president is about to take on the powers of a generalissimo, the power to disappear enemies real and imagined and bludgeon them. It so happens he is doing so by playing on the opposition's political fears.

That is a footnote. The true question is, Where are we heading? The fact is we don't really know.
 

When you have legislators who value their job security over their country's future, then you have the genesis of the tyranny Creeping Truth describes. But I think the Democrats are not only wrong but blind. The country, however insulting it can be to politicians, counts on the opposition to keep the system in balance.
 

I'm not expert on the Alien and Sedition Acts, so I ask, were they really as bad as this, or is this not one of our low points, but the lowest? I fear that Creeping Truth is right, as the House has voted to repeal not only the Constitution, but the Magna Carta. But, if Creeping Truth is wrong, and Nuremberg trials are held someday, 253 House members will be in the dock.
 

Professor,

Thank you for listing the seven sane Republicans who voted against this heinous legislation. This really should not be a partisan issue; as Professor Levinson pointed out Republicans as well as Democrats should fear and oppose giving this kind of unchecked power to the executive branch. No party should have this kind of power. And I am saddened that any American party should want it; no responsible party would.
 

Professor Lederman:

These are some of the bill’s biggest flaws:

Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.


1) As discussed in the posts in response to previous similar assertions below, the President has no authority under this bill to treat lawful enemy combatants or noncombatant civilians as unlawful enemy combatants.

2) US citizens who are also unlawful enemy combatants have constitutional rights which trump this legislation.

3) This bill does not give the President any power to detain enemy combatants for the duration of a conflict. The President already has an Article II power as CiC to do this.

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.

This is 180 degrees wrong.

In this bill, Congress establishes what constitutes rights under and breaches of the Geneva Convention and allows the President to add (not subtract) to the list of forbidden acts.

Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.

Foreign unlawful enemy combatants have never had habeus corpus rights under the Constitution until the court arrogated this power during this conflict. In the past, foreign enemy combatants only had the right to appeal sentences handed down by military commissions. This proposed legislation merely reinstates the status quo ante. The question is whether the Court will again ignore a limiting jurisdictional statute of Congress as they did in the Hamdan case.

Moreover, the constant litigation has stopped the military commission process in it tracks for years now.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals.

See above. This bill simply restores the status quo ante.

The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly.

Not really. Rather, Congress takes back its constitutional power to set rules for Captures arrogated by the courts by defining what constitutes rights and breaches of the Geneva Conventions and then by forbidding the Courts taking this power unto themselves in the future.

All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

The President under Article II already has the power to detain enemy combatants for the duration of the conflict. This has always been the case.

Trials are only for the purpose of imposing additional sanctions for war crimes. This bill covers the procedures for such trials.

Coerced Evidence...Secret Evidence

These are not US citizens, they are foreign enemy combatants who have no constitutional rights.

This bill gives foreign unlawful enemy combatants far more rights that they had in the past. Throughout our history before we voluntarily treated Viet Cong unlawful combatants as POWs, our practice was to summarily execute unlawful enemy combatants found to be fighting as civilians or in our uniforms.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11.

Hardly. This legislation borrows the long standing US definition of torture from the the Torture Convention. The memos to which you refer are simply legal analysis of how to apply that long standing definition of torture.

They’ll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts.

Please.

This bill restores the status quo ante in several areas and grants unlawful enemy combatants far more due process rights than they have had historically.
 

Good question, Henry. Here is the Columbia Encyclopedia entry on the Alien and Sedition Acts:

"1798, four laws enacted by the Federalist-controlled U.S. Congress, allegedly in response to the hostile actions of the French Revolutionary government on the seas and in the councils of diplomacy (see XYZ Affair), but actually designed to destroy Thomas Jefferson’s Republican party, which had openly expressed its sympathies for the French Revolutionaries. Depending on recent arrivals from Europe for much of their voting strength, the Republicans were adversely affected by the Naturalization Act, which postponed citizenship, and thus voting privileges, until the completion of 14 (rather than 5) years of residence, and by the Alien Act and the Alien Enemies Act, which gave the President the power to imprison or deport aliens suspected of activities posing a threat to the national government. President John Adams made no use of the alien acts. Most controversial, however, was the Sedition Act, devised to silence Republican criticism of the Federalists. Its broad proscription of spoken or written criticism of the government, the Congress, or the President virtually nullified the First Amendment freedoms of speech and the press. Prominent Jeffersonians, most of them journalists, such as John Daly Burk, James T. Callender, Thomas Cooper, William Duane (1760–1835), and Matthew Lyon were tried, and some were convicted, in sedition proceedings. The Alien and Sedition Acts provoked the Kentucky and Virginia Resolutions and did much to unify the Republican party and to foster Republican victory in the election of 1800. The Republican-controlled Congress repealed the Naturalization Act in 1802; the others were allowed to expire (1800–1801)."

This is not exactly my understanding. I thought the sedition provisions stayed on the books. New York Times v. Sullivan declared them unconstitutional, though maybe it was only driving nails into a coffin. What should not be lost on us is the political use to which the laws were put even though it was nominally aimed at French revolutionaries.

As for whether we are at a darker point than 1798, I think the lighting is the same, but then dawn and dusk are indistinguishable in this respect. The fits and starts a republic goes through at its inception are not the same as the measures it takes to unwind itself near its end. Again, the Times has no sense of a radical dynamic in play. It disturbs me. Tom Paine would have quit this paper long ago.

Recently Jordan Paust argued, on jurist.law.pitt.edu, that members of Congress may be aiding and abetting war crimes by enacting the detainee bill. But will the prospect do anything more than put an end to congressional junkets to Europe, at least until the White House is prepared, as this one is in theory, to invade the Netherlands should the Hague "get ideas"?
 

Nothing in the Times about indefinite detention of U.S. citizens declared "enemy combatants."

May we infer that such detention is *not* part of the bill?
 

Bart,

Why should I consider your analysis over that of the man recently described as the best of the nation's conlaw attorneys? My cursory read of the bill certainly falls in line with Professor Lederman's; your statements seem, frankly, partisan, and certainly out of step with the Lincoln quote in the masthead of your blog. Short of armed struggle between nations there can be no legitimate grant of war powers to the excecutive; short of invasion or rebellion there can be no legitimate abridgement of the writ of habeas corpus---or perhaps you can refute these two simple declarative statements?
 

Are these tribunals going to be presided over by military judges? My experience is that military judges on the whole have a pretty fair conception of legal rights and due process. I may be a bit optimistic, but I think people are jumping the gun by assuming that these people will be unfair to defendants. These judges are the final arbiter of such much according to these new procedures, so a lot depends on them. It can be a fiar process if the judges make it so.
 

And I would note that Bart blithely ignores what constitutes a "conflict" for the purposes of determining the scope of the alleged CiC powers laid out in Article II. Without debating whether such powers do, in fact, emanate from penumbras of Article II, we still need to know when a conflict exists that will trigger those powers. Just as importantly, when does the conflict end, such that the CiC powers go back in the box? Bart, of course, can't answer that, the RNC hasn't sent the talking points over yet....
 

Robert Link:

Bart, Why should I consider your analysis over that of the man recently described as the best of the nation's conlaw attorneys?

This is a simple matter of history and statutory interpretation. If you can prove my points to be mistaken, go ahead. Citation to credentials is not an rebuttal of the historical and legal points I made.

As to constitutional interpretation, I have a great deal of respect for Professor Lederman, but in a prior discussion Professor Lederman has admitted that he is a proponent of a "living Constitution." I suspect, therefore, that he is placing what he wants in his personal living Constitution as to the alleged constitutional rights of foreign enemy combatants.

Short of armed struggle between nations there can be no legitimate grant of war powers to the excecutive; short of invasion or rebellion there can be no legitimate abridgement of the writ of habeas corpus---or perhaps you can refute these two simple declarative statements?

I would be pleased to.

1) Article II CiC powers grant the President general authority over the military. These are not war powers per se nor have they ever been limited to periods of declared or undeclared wars.

Moreover, wars are not limited to conflicts with nation states. Our history is filled with undeclared wars with irregular groups from the Indian Wars, the Philippines, Haiti, Nicaragua, etc. Naturally, our military captured and held enemy prisoners during these conflicts. They did so under the President's Article II CiC powers.

2) Once again, I am not aware of the US granting habeus corpus to unlawful enemy combatants fighting in civilian clothing or our uniforms as does al Qaeda. Perhaps Professor Lederman can provide us with examples of when this occurred in the past, but I have not seen any offered by proponents of extending HC to unlawful enemy combatants.
 

Bart: Sen. Specter addressed this every time he rose to speak on behalf of his amendment to preserve habeas rights, yesterday and this morning. The Constitution explicitly states that the writ is not to be denied except in cases of rebellion or invasion, and the Supreme Court in Rasul explicitly ruled that this right extended to any individual detained by the United States.

This is from memory of the Senator's remarks; feel free to correct them by consulting the Congressional Record for yesterday.
 

Kennedy offered an amendment prohibiting waterboarding:

S.AMDT.5088

SA 5088. Mr. KENNEDY (for himself, Mrs. FEINSTEIN, and Mrs. CLINTON) submitted an amendment intended to be proposed by him to the bill S. 3930, to authorize trial by military commission for violations of the law of war, and for other purposes; which was ordered to lie on the table; as follows:

On page 83, between lines 8 and 9, insert the following:

(2) PROTECTION OF UNITED STATES PERSONS.--The Secretary of State shall notify other parties to the Geneva Conventions that--

(A) the United States has historically interpreted the law of war and the Geneva Conventions, including in particular common Article 3, to prohibit a wide variety of cruel, inhuman, and degrading treatment of members of the United States Armed Forces and United States citizens;

(B) during and following previous armed conflicts, the United States Government has prosecuted persons for engaging in cruel, inhuman, and degrading treatment, including the use of waterboarding techniques, stress positions, including prolonged standing, the use of extreme temperatures, beatings, sleep deprivation, and other similar acts;

(C) this Act and the amendments made by this Act preserve the capacity of the United States to prosecute nationals of enemy powers for engaging in acts against members of the United States Armed Forces and United States citizens that have been prosecuted by the United States as war crimes in the past; and

(D) should any United States person to whom the Geneva Conventions apply be subjected to any of the following acts, the United States would consider such act to constitute a punishable offense under common Article 3 and would act accordingly. Such acts, each of which is prohibited by the Army Field Manual include forcing the person to be naked, perform sexual acts, or pose in a sexual manner; applying beatings, electric shocks, burns, or other forms of physical pain to the person; waterboarding the person; using dogs on the person; inducing hypothermia or heat injury in the person; conducting a mock execution of the person; and depriving the person of necessary food, water, or medical care.
 

Nell said...

the Supreme Court in Rasul explicitly ruled that this right extended to any individual detained by the United States.

I noted this in my original post:

Foreign unlawful enemy combatants have never had habeus corpus rights under the Constitution until the court arrogated this power during this conflict.

I apologize if my latter post was unclear.

For what it is worth, I strongly disagree with the Court's ruling in Rasul. Extending habeus corpus rights to foreign enemy combatants detained overseas, whether lawful or unlawful, was a radical overreach of judicial power at odds with the prior two centuries of deferring establishment of the rules for captures to the Executive and Congress.

Congress shares my disagreement. This will be the second statute Congress has enacted under its Article I power to set the jurisdiction for federal courts attempting to stop this overreach.

Bart: Sen. Specter addressed this every time he rose to speak on behalf of his amendment to preserve habeas rights, yesterday and this morning. The Constitution explicitly states that the writ is not to be denied except in cases of rebellion or invasion...

The Rasul court extended habeus rights to enemy combatants held overseas pursuant to its interpretation of previously enacted congressional statutes establishing the jurisdiction of federal courts. See 28 U.S.C. § 2241(a), (c)(3). What Congress can grant by statute, Congress can take away.

It is true that Article I, Section 9(2) states: "The privilege of the Writ Habeus Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

The provision indicates that the writ as envisioned by the Founders was limited to the boundaries of the United States because the wartime events which allowed the suspension of the writ are both domestic - rebellion or invasion. These prisoners were captured and held overseas.

To the extent this provision can be held as applying to overseas enemy combatants, al Qaeda has repeatedly invaded or attempted to invade the United States. Therefore, Congress can suspend the writ for this enemy.

Finally, Article III allows Congress to establish inferior courts to consider Writs of Habeas Corpus. Congress has designated military commissions to conduct combatant status hearings which are the equivalent of consideration of a domestic writ of habeas corpus.
 

Bart DePalma wrote:
------
It is true that Article I, Section 9(2) states: "The privilege of the Writ Habeus Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

The provision indicates that the writ as envisioned by the Founders was limited to the boundaries of the United States because the wartime events which allowed the suspension of the writ are both domestic - rebellion or invasion.
------

This is an unjustified inference. The President's powers arise entirely from the Constitution, as do the powers of congress and of the federal judiciary. All of these powers are contrived to act as checks on the other. It breaks the symmetry of this set of checks to conclude that the President has power to act beyond our borders but that the other branches do not. Similarly it breaks this symmetry to conclude that our rights under the Constitution are territorially limited. And both breaks in symmetry are unsupported by the Constitution's text.

Quote:
------
These prisoners were captured and held overseas.
------

Nothing in the bill on the senate floor confines its application to prisoners captured overseas.

Quote:
------
To the extent this provision can be held as applying to overseas enemy combatants, al Qaeda has repeatedly invaded or attempted to invade the United States. Therefore, Congress can suspend the writ for this enemy.
------

You say, "for this enemy," but the suspension is far broader, and encompasses anyone that the President or SoD, in their sole discretion, consider to be an "unlawful enemy combatant." s.948a(1)(ii).
http://thomas.loc.gov/cgi-bin/query/F?r109:1:./temp/~r109wKyJ8q:e131313:
By the statute's plain language, that includes civilians and even U.S. citizen civilians.

Quote:
------
Finally, Article III allows Congress to establish inferior courts to consider Writs of Habeas Corpus. Congress has designated military commissions to conduct combatant status hearings which are the equivalent of consideration of a domestic writ of habeas corpus.
------

Only if they include all the rights ordinarily attaching to the writ. Otherwise they operate as a suspension and must obey the Suspension Clause.
 

...your [Bart's] statements seem, frankly, partisan.

You say that like it's a bad thing.

Vince Lombardi has succeeded from beyond the grave where King George, Jeff Davis, Hitler and Stalin alive all failed.

On the tombstone of the Republic will be the words 'Winning isn't everything, it's the only thing'.
 

Bart says "US citizens who are also unlawful enemy combatants have constitutional rights which trump this legislation."

There is great irony here. In trying to defend this bill and the President, Bart instead outlined grounds for impeachment. The President isn't supposed to sign unconstitutional bills, Bart.
 

Bart,

Apologies for the veiled ad hominem; that's the not level of discourse I aspire to, and I appreciate your gracious response.

Bart: ...They did so under the President's Article II CiC powers.

That would seem to obviate the need for passage of the AUMF, as well as the AUMF's direct reference to the war powers act. The better reading would seem to be that Congress fallaciously and unconstitutionally gave legislative embodiment to the rhetoric of war and granted war powers to the executive in the passage of AUMF.

Bart:I am not aware of the US granting habeus corpus to unlawful enemy combatants fighting in civilian clothing or our uniforms as does al Qaeda.

You seem to contradict this in another comment, but I think you mean that such protections are not derived from the Constitution but rather from acts of Congress. Still, taken at face value the quoted statement ignores the dangers in this bill's definition of "unlawful enemy combatant," a definition which, by its letter, could be used against the seven Republicans who voted against it, requiring only that their vote is "determined by or under the authority of the President or the Secretary of Defense...to have supported hostilities in aid of such a force or organization so engaged." This does not appear to concern you, but frightens many of us mightily. It is true that I only noted the term "unlawful enemy combatant" once separate from the modifier "alien", but that does nothing to allay my fears.
 

Tonal Crow said...

Bart DePalma wrote:
------
It is true that Article I, Section 9(2) states: "The privilege of the Writ Habeus Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

The provision indicates that the writ as envisioned by the Founders was limited to the boundaries of the United States because the wartime events which allowed the suspension of the writ are both domestic - rebellion or invasion.
------

This is an unjustified inference. The President's powers arise entirely from the Constitution, as do the powers of congress and of the federal judiciary. All of these powers are contrived to act as checks on the other. It breaks the symmetry of this set of checks to conclude that the President has power to act beyond our borders but that the other branches do not. Similarly it breaks this symmetry to conclude that our rights under the Constitution are territorially limited. And both breaks in symmetry are unsupported by the Constitution's text.


In the area of making rules for captures, the Supreme Court in Hamdan recognized that the President has the first word as CiC and Congress has the final word under Article I. The Court is not here to check either branch. They are a referee applying (not rewriting) the rules created by the other two branches.

Nothing in the bill on the senate floor confines its application to prisoners captured overseas.

This is true. However, this bill does limit the military commissions to aliens and all those set to be tried are aliens captured and held overseas.

You do raise an interesting question of what rules apply to alien enemy combatants caught inside the US. They have traditionally been tried in civilian courts or under the rules of courts martial by a military court.

Bart: To the extent this provision can be held as applying to overseas enemy combatants, al Qaeda has repeatedly invaded or attempted to invade the United States. Therefore, Congress can suspend the writ for this enemy.

You say, "for this enemy," but the suspension is far broader, and encompasses anyone that the President or SoD, in their sole discretion, consider to be an "unlawful enemy combatant."


As I stated above, I do not believe that any habeas rights under the Constitution extend to foreign enemy combatants. The Court in Rasul was interpreting a statute about to be changed, not the Constitution. So there should be no problem in the first instance.

However, your argument really goes to my next point...

Bart: Finally, Article III allows Congress to establish inferior courts to consider Writs of Habeas Corpus. Congress has designated military commissions to conduct combatant status hearings which are the equivalent of consideration of a domestic writ of habeas corpus.

Only if they include all the rights ordinarily attaching to the writ. Otherwise they operate as a suspension and must obey the Suspension Clause.


Not if any constitutional (rather than statutory) right to Habeas Corpus is limited to United States territory.
 

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.

This is 180 degrees wrong.

In this bill, Congress establishes what constitutes rights under and breaches of the Geneva Convention and allows the President to add (not subtract) to the list of forbidden acts.


While I agree the bill does not permit the President to use every abusive interrogation method, anything not explicitly prohibited (and in some cases, it is not clear what is prohibited) is totally at the discretion of the President and can remain secret.
 

Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

1) As discussed in the posts in response to previous similar assertions below, the President has no authority under this bill to treat lawful enemy combatants or noncombatant civilians as unlawful enemy combatants.

What prevents the President from interpreting the statute in the way Marty claims it can be interpreted?

2) US citizens who are also unlawful enemy combatants have constitutional rights which trump this legislation.

In your opinion, does this legislation violate the constitutional rights of US citizens?
 

JoshR said...

Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

Bart: As discussed in the posts in response to previous similar assertions below, the President has no authority under this bill to treat lawful enemy combatants or noncombatant civilians as unlawful enemy combatants.

What prevents the President from interpreting the statute in the way Marty claims it can be interpreted?


The letter of this law. We can play what ifs all day, but right now all we have is the law.

2) US citizens who are also unlawful enemy combatants have constitutional rights which trump this legislation.

In your opinion, does this legislation violate the constitutional rights of US citizens?


By the terms of this new law, only aliens are subject to military commissions and the limits on habeas corpus.

I don't see where this legislation authorizes the Executive to violate a citizen's constitutional rights.

The limitation of military commissions and their more limited procedural rights to aliens means by default that citizen unlawful combatants must be tried under UCMJ or civilian rules.
 

Bart,

Relying on the "letter of the law", when 1) the law is ambiguous (just look how Marty and you disagree) and 2) there is no way to enforce the law, is a very weak argument.

How did you conclude that unlawful enemy combatant citizens are prohibited from being tried under this statute's military commissions?
 

It seems some of these comments are stuck on arguing whether this law specifically targets citizens. The real argument is that over the past 5 years or so, we're being led faster and faster into a reality where the United States Constitution means absolutely nothing.
 

The main purpose of the Runescape players would be getting Runescape gold. Players often dream about getting as much Buy Gold for WOWas he can but it is hard. To achieve your goal you should get a good gold guide.
 

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