Balkinization  

Sunday, December 16, 2007

Black Marks and Prior Restraints

Marty Lederman

Guantanamo detainee Majid Khan claims that the CSRT determination that he is a detainable combatant was infected by testimony procurred by way of unlawful torture and other illegal forms of coercion. In challenging his detention under the Detainee Treatment Act, he has now asked the U.S. Court of Appeals for the D.C. Circuit to declare that such evidence was inadmissible -- a holding that would presumably have a significant bearing on his challenge to the CSRT detention decision.

The most remarkable thing about Khan's motion is that all of his descriptions of the way our government treated him are redacted in the public version of the motion (linked above). Check out the large swaths of blacked-out text. The government presumably required his lawyers to make those redactions as a condition of their access to Khan at GTMO. As I've discussed before, as a condition of being able to speak to their client in the first place, the government required the lawyers to agree not to reveal what their client has told them -- not even to members of Congress!

Khan is (or claims to be, anyway) a longtime U.S. resident who has had asylum in this country since 1998. Therefore there is no question that he has (or had) a First Amendment right to publicly declare to the world the way in which (he alleges) our government has treated him. If he were living in freedom in Baltimore, and were suing the U.S., he could not constitutionally be required to redact all those details in his court filings. Yes, the government has classified such information; but that only means they can prohibit government employees from revealing it -- they can't stop an ordinary U.S. resident from publicizing what he knows about how the government treated him, classified or not.

So how come the information is censored in Khan's recent motion? The government must be acting on one or more of three distinct theories. First, perhaps they would argue that once a U.S. resident is detained as an enemy combatant, he loses all First Amendment rights, including the right to describe his treatment at the hands of the government. As far as I know, that would be a fairly radical argument; but perhaps I'm missing something.

Second, perhaps the government would argue that although Khan technically has a First Amendment right to disclose his treatment, he has waived that right as a condition of being represented by counsel -- that is to say, perhaps the government would contend that the self-censorship is a condition lawfully extracted from Khan's counsel in order to give them access to their client and the ability to represent him in court. Such leveraging would appear to me to raise serious unconstitutional conditions problems -- particularly since those counsel are the only mouthpieces the government is willing to give Khan to begin with! -- but again, perhaps I'm missing something.

Third, the government might actually be under the simple misimpression that when it deems its own conduct against third parties to be "classified," that prevents not only the perpetrators, but also the subjects, of the government's actions, from revealing them.

In any event: Can anyone think of any precedent in history where the government has claimed a lawful right to prevent a U.S. resident from publicly describing what the government has done to them?

I imagine that Khan's lawyers are understandably wary of raising this issue, for fear that their access to their client might be restricted. But the First Amendment right extends to the audience for Khan's speech, as well (see, e.g., Lamont), and that audience First Amendment right is even more substantial now that the allegations are the fulcrum of a motion pending before a federal court. Has any media outlet made a motion to make the allegations public? If not, why not?

Comments:

For some reason the link is not working. This is the functioning link.
 

The link is not functioning because of a "typo" (there's an extra "http://" at the end of the URL).
 

There is no question that a legal resident alien enjoys the same First Amendment Rights as a citizen. However, the issue is hardly resolved there.

1) The predicate question is whether Khan, who is a Pakistani citizen, captured in Pakistan and is held overseas, remains a legal resident of the United States. I do not see the basis for Khan retaining his residency under those circumstances and Khan's attorneys present no case law in support of this proposition. Do we have any immigration attorneys out there who can shed any light on this question?

2) Assuming Khan would normally maintain his legal resident alien status after moving overseas, did Khan waive his constitutional rights by acting as an unlawful enemy belligerent pursuant to Quirin?

3) The United States is not taking any action to prevent released prisoners from communicating what they allege happened to them. However, even if Khan was vested with First Amendment rights, does the First Amendment require the military to allow prisoner of war (generic) unfettered or indeed any contact with persons outside of the POW camp?
 

Did German POWs detained on US soil during World War 2 have free speech rights under the First Amendment? Maybe they did, but they would seem very strange (and undesirable) to me.

Of course, there is the issue of the status of Guantanamo Bay. SCOTUS will likely hold that habeas does run to GB, but will they hold more broadly that all Constitutional rights do? I don't know.

Query. Is the First Amendment considered a "core right" that runs to all US territories? (unlike say the right to jury trial and grand jury provisions, etc. see Ocampa v. United States & Dorr v. United States.)
 

2) Assuming Khan would normally maintain his legal resident alien status after moving overseas, did Khan waive his constitutional rights by acting as an unlawful enemy belligerent pursuant to Quirin?

How does on "waive his constitutional rights" other than by actually waiving them?

Sounds to me more like someone else "waived" them for him by labelng him a "Sand N----r"/"Islamofascist"/"Camel Jockey" or whatever. Perhaps by dint of "evidence" derived through said "waiving" of rights. Or more likely, just by Preznitential decree. "L'etat, c'est moi...."

Cheers,
 

"Can anyone think of any precedent in history where the government has claimed a lawful right to prevent a U.S. resident from publicly describing what the government has done to them?"

Ever heard of "National Security Letters"?
 

Prof. Lederman:

First, perhaps they would argue that once a U.S. resident is detained as an enemy combatant, he loses all First Amendment rights, including the right to describe his treatment at the hands of the government....

IIRC, the gummint at one time argued WRT Padilla (or was it Hamdi?) that he'd "renounced" his citizenship by dint of becoming an (alleged) "enemy combatant". I think that this theory was shot down by saner minds in the judiciary.

But maybe they're going to try and float that lead blimp again, painted in different colours....

Cheers,
 

Prof. Lederman:

I imagine that Khan's lawyers are understandably wary of raising this issue, for fear that their access to their client might be restricted. But the First Amendment right extends to the audience for Khan's speech, as well (see, e.g., Lamont), and that audience First Amendment right is even more substantial now that the allegations are the fulcrum of a motion pending before a federal court. Has any media outlet made a motion to make the allegations public? If not, why not?

I don't think we're too far away from the institutionalisation of "secret courts" if the gummint has its way. Which, I think, is a Very Bad Idea for a democracy....

Cheers,
 

The government has classified the specific torture techniques used on Majid Khan. Of course, EO 1295, as amended by EO 13292, clearly says that classification can't be used to conceal violations of the law (and the torture of Majid Khan is absolutely a violation of the law). One would think that anyone who knew about those techniques would be free to talk about them.

But wait, the Bush administration says that the President can violate EO's anytime he wants. So, Mr. Bush can classify illegal activities and then prosecute anyone who reveals them.

Professor Lederman, can you explain to me again why this isn't a problem?
 

"Assuming Khan would normally maintain his legal resident alien status after moving overseas, did Khan waive his constitutional rights by acting as an unlawful enemy belligerent pursuant to Quirin?"

Since what Khan is challenging IS the determination that he is an unlawful enemy belligerent, this puts the cart before the horse, doesn't it?
 

billposer:

Since what Khan is challenging IS the determination that he is an unlawful enemy belligerent, this puts the cart before the horse, doesn't it?

Not really. SOP for military types like "Bart":

There was only one catch and that was Catch-22, which specified that a concern for one's safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane he had to fly them. If he flew them he was crazy and didn't have to; but if he didn't want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.
"That's some catch, that Catch-22," [Yossarian] observed.
"It's the best there is," Doc Daneeka agreed.


More from here:

Other forms of Catch-22 are invoked throughout the novel to justify various bureaucratic actions. At one point, victims of harassment by military agents quote the agents as having explained one of Catch-22's provisions so: Catch-22 states that agents enforcing Catch-22 need not prove that Catch-22 actually contains whatever provision the accused violator is accused of violating. An old woman explains: Catch-22 says they have a right to do anything we can’t stop them from doing.

Cheers,
 

how to lose permanent residency . The prevailing standards are: between six months and one year is possible, between one and two much more certain, above two done deal.

The interesting question is what happens when the intended return is made impossible when the CIA throws you into one of their overseas prisons or render you to Syrians and you are held there incommunicado for 3 years.
 

The government could try to justify the redactions as necessary to avoid revealing classified sources and methods, or information that could present an imminent danger to the United States or its citizens.
So let's try to figure out what they are hiding. Source? Obviously, Khan himself, unless he mentioned other names. Methods? obviously, torture, but we already knew that. Imminent danger? How imminent could any danger be coming from someone who has been detained that long?

There are also irregularities in the application of the National Security Act as amended. Classified documents are supposed to be stamped and signed by the classifying official. If there is redaction of communications, a log of such signed by the authorizing officer is supposed to be kept and made available to higher command the courts.

I also see no reason why the lawyer, Gitanjali S. Gutierrez, could not just disclose the filing unredacted, since he composed it, and see what anyone is going to do about it. In the words of the inimitable Admiral Grace Hopper, "It is easier to get forgiveness than permission."


http://www.constitution.org
http://constitutionalism.blogspot.com
 

billposer said...

"Assuming Khan would normally maintain his legal resident alien status after moving overseas, did Khan waive his constitutional rights by acting as an unlawful enemy belligerent pursuant to Quirin?"

Since what Khan is challenging IS the determination that he is an unlawful enemy belligerent, this puts the cart before the horse, doesn't it?


Not at all.

No one disputes that the multi-sourced evidence more than proves that Khan is an unlawful enemy combatant. There are at least three witnesses against him, very likely including KSM, who broke right before they arrested Khan and dozens of other al Qaeda.

Instead, Khan's attorneys are trying to establish the first exclusionary rule for military status hearings. I especially liked the "fruit of the poisonous torture" argument that the military should not even be allowed to consider evidence gained from leads procured from the interrogation of Khan and others.

The first motion of this kind should have used a detainee against which there is questionable single sourced evidence. I do not see Khan prevailing on this motion and the precedent could make future similar motions more difficult.
 

wg cited:

How does an immigration examiner or immigration judge ascertain what the alien’s intentions were? That determination will involve an examination of such elements as 1) the purpose for departing, 2) whether the trip abroad was expected to terminate within a relatively short period, 3) where the alien was employed and has a home, and 4) the location of the alien’s family. The Ninth Circuit Court of Appeals found that one critical consideration is whether the evidence demonstrates that the alien had “a continuous, uninterrupted intention to return to the United States during the entirety of his or her visit” [Chavez-Ramirez v. INS, 792 F.2d 932, 937 (9th Cir. 1986)].

Thanks for the link.

I wonder how a court would look at Khan's application for return if the purpose of his trip and his return was to wage war in the United States.

Why are we even seriously discussing advancing residency privileges to foreign citizen warring against the United States? This suggestion plumbs new depths of self destructive insanity.
 

jon said...

I also see no reason why the lawyer, Gitanjali S. Gutierrez, could not just disclose the filing unredacted, since he composed it, and see what anyone is going to do about it. In the words of the inimitable Admiral Grace Hopper, "It is easier to get forgiveness than permission."

At the very least, Gutierrez' privileges to visit the detainee would be terminated as has been the case with others. Very likely, the government would seek civil and even possibly criminal sanctions against Gutierrez and probably get them.

I doubt that there is anything very damaging to the government in the redacted portions. The court is seeing the unredacted document and these couple pages of redaction most likely contain general allegations with no evidence.

Consequently, there is very little gain for the inevitable downside for the attorney.
 

"Bart" DePalma ignores the objection of billposer as to presupposition in advance of the decision and answers a different question:

No one disputes that the multi-sourced evidence more than proves that Khan is an unlawful enemy combatant....

Well, except for Khan. But then again, WTF does he know about it? Furthermore: "Objection, your Honour, assumes evidence not in evidence." As usual, "Bart" just makes sh*te up to come to the conclusion he wants.

["Bart", making up more stuff as he goes]: There are at least three witnesses against him, very likely including KSM, who broke right before they arrested Khan and dozens of other al Qaeda.

"Bart", just OOC, did al-Libi also name Khan?

["Bart"]: Instead, Khan's attorneys are trying to establish the first exclusionary rule for military status hearings.....

Hate to point out the obvious, but the MCA even put limits on what kind of stuff obtained under coercion could be admitted.

In our criminal justice system, we have an easy rule: No torture. Yeah, it may let a dope-pusher or an axe-murderer go free on rare instances, but we've drawn that line, because of what it does to us ... and to the folks that are unjustly convicted.

... I especially liked the "fruit of the poisonous torture" argument that the military should not even be allowed to consider evidence gained from leads procured from the interrogation of Khan and others.

Yes. That would be a totally alien concept to our established concepts of justice. But why am I telling a freakin' lawyer this? Silly me, lecturing a bona fide member of the bar.....

Cheers,
 

"Bart" DePalma sez:

At the very least, Gutierrez' privileges to visit the detainee would be terminated as has been the case with others....

Yeah, the gummint doesn't like lawyers that actually do their duty. Ask Commander Swift.

... Very likely, the government would seek civil and even possibly criminal sanctions against Gutierrez and probably get them.

Oh, really? Which ones? What laws?

I'd note that just as a matter of information, many lawyers have refused to represent Guantanamo detainees under the conditions that the gummint has dictated, saying that they feel they cannot effectively represent any such person under the rules set out, and they refuse to give legitimacy to the proceedings by being nominal "lawyers" when their hands are thusly tied.

Cheers,
 

"Bart" DePalma:

I doubt that there is anything very damaging to the government in the redacted portions....

Yeah, but you "doubt" global warming too. WGAF?

But if that's the case, why redact?

... The court is seeing the unredacted document and these couple pages of redaction most likely contain general allegations with no evidence.

"[C]ouple pages" "[G]eneral allegations"

Stop pissing on us and telling us it's raining. NOW.

"[M]ost likely"....

"Your Honour: Pleeeeaaaasssseeee ask counsel to stop repeatedly asserting 'facts' not in evidence? Or just have the bailiff slap his buns until he says that he was secretly KSM's love toy....."

Cheers,
 

Getting back to the question, Huber Haupt was a US Citizen when he was tried and executed in secret as an enemy spy during WWII. The whole purpose of the Quirin case was to try the German saboteurs before a military commission, rather than having a public trial, so that the German army would not learn what happened to their people and therefore what mistakes they made. His case did go to the Supreme Court, but the US public only became aware of the case after the war.

Not only was the Blind Shaikh limited in his communication, but Lynne Steward was convicted for facilitating his communication.

Nor is this limited to the US. The Fourth Geneva Convention specifically notes that a spy or saboteur forfeits his right of communication and may be held in secret for as long as national security requires it.

This simply isn't a first amendment question. "Loose lips sink ships" is not a violation of free speech. Restrictions on speech in war is one version of the "shouting 'Fire' in a crowded theater" exception.

Which is not to say that the facts in this particular case justify the restriction, just that you actually have to look at the facts and cannot just assume this is unprecedented, or even unusual.
 

Why are we even seriously discussing advancing residency privileges to foreign citizen warring against the United States? This suggestion plumbs new depths of self destructive insanity.

Nobody advocates residency privileges for warring foreign citizens. The issue is this - the guy was a legal permanent resident. Should he be found guilty by an impartial magistrate then strip him of his residence, no buts or ifs here. But again he needs to be charged first, mere allegations are not enough, and those charges need to be properly adjudicated giving him fair chance to defend himself.

For a lawyer you seem to have a problem understanding basic legal concepts not to mention appalling lack of elementary sense of justice.
 

This comment has been removed by the author.
 

wg:

Nobody advocates residency privileges for warring foreign citizens. The issue is this - the guy was a legal permanent resident.

"Was" is the key word in your issue sentence. You were kind enough to provide the elements courts use to determine whether aliens regain legal residency after leaving the United States to live in another country. Among those was the purpose of his trip. I am having a very hard time believing that any court would return legal residency privileges to an alien who left to war against the United States.
 

There is another issue here: Who has the authority to decide whether anyone is an "enemy combatant" or some synonym thereof? The Constitution affords two alternatives: either a state actor who is a national of a nation with which we are in a congressionally declared state of war, or a pirate, using the definition of a non-state actor who commits warlike acts. The administration seems to be trying to create a new category: quasi-state actors who commit warlike acts that are called "terrorists", but without the definition of who the "enemy" that is provided by either a declaration of war or letters of marque and reprisal, both of which may only be done by Congress, not by the President. The administration seems to be trying to avoid the designation of "pirate" (other than the shoe-bomber) because that has to be handled as a crime, with the right of at least a military tribunal.

The only legal precedent I can find for the authority to torture what amount to pirates is to try them by a military tribunal, find them guilty, sentence them to death, then, having made them "legally dead", proceed to torture them for information, with the stipulation that they always have the option of ending the torture by accepting the execution of the death sentence. But even the military tribunal has to afford the accused a legal defense and to meet the burden of proof that the accused actually committed acts of piracy. Can't lawfully sentence to death on mere suspicion or a dubious accusation by a foreign actor trying to collect a bounty.
 

jon:

The military has always determined who are enemy combatants. The issue today is whether the civilian judiciary will arrogate that power to themselves for the first time in Anglo-American history.
 

Bart DePalma said...

The military has always determined who are enemy combatants. The issue today is whether the civilian judiciary will arrogate that power to themselves for the first time in Anglo-American history.

No, the military has only determined who are enemy combatants on the field of battle, as the result of direct contact. It is quite another matter to make that determination when the contact is not direct, but based only on suspicion, the testimony of dubious witnesses, or circumstantial evidence. To allow the military to make such a determination even for U.S. residents or citizens without any kind of due process is to allow military tyranny. That is one of the reasons why the Founders reserved the power to declare war, and define who the enemy is, to Congress, and also intended that the main defense activity would be militia and not a regular army.
 

It has been a few years since I was in the military and had a security clearance, but at that time I researched the authority for prosecuting anyone for disclosure of classified information, and found that it rested on the signing of an agreement subjecting oneself to the National Security Act. Without a contractual basis, there is no authority to prosecute anyone for disclosing military or state secrets, other than the definition in the Constitution of "treason" which "shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." But that still leaves the question of who is an "enemy", and that gets back to the exclusive congressional power to declare war or issue letters of marque and reprisal, which provide that definition.

So, yes, the military or anyone else can recognize someone coming at them as an enemy. But that is a practical determination, not a legal determination. There is, or is supposed to be, a separation between shooting someone trying to shoot you, and detaining or trying someone who might want to but is not.

These detainees might not have started as enemies, much less as combatants, but we need to consider whether we want to treat them in a way that would justify them becoming enemy combatants. We have historically conducted ourselves in ways that created more enemies than we destroyed, and the results were bad. Now we have to consider whether we should continue to repeat the same actions expecting different outcomes.

Or perhaps we should just detain everyone forever and "let God sort 'em out".
 

... I am having a very hard time believing that any court would return legal residency privileges to an alien who left to war against the United States.

Me too, but the key word here is "court", an entity independent at least nominally from those who formulate accusations. The individual here may be totally innocent, a US resident caught in the endless fog of our wars, protecting his access to independent adjudication is essential to preservation of some semblance of his rights.

No you cannot leave that to military or CIA alone, to see it, think about accusations leveled against the former Iraq government (weapons of mass destruction) which the accusing party was never willing to subject to an independent evaluation.

It is easy to throw accusations as this example vividly shows and for that reason accusations alone should never be the only basis of action, be it invasion of a foreign country or throwing a human being into some CIA hellhole and keeping him there incommunicado for years.
 

BTW you still owe us an example of what constitutes 2340A torture, that is example of what specific actions of Syrian interrogators would qualify them for legal sanctions as envisioned by that section of US code.

I know you think CIA waterboarding isn't and thought maybe nail pulling, or genital electric shocks would qualify, but then I realized nails aren't "major organs", beside they grow back so one cannot really talk about "organ failure" here and thus no torture per Gonzo's DoJ opinions. Shocking genitals, when done properly, also doesn't seem capable of inducing permanent failure so no torture there either.

Than I thought maybe beating people during interrogation so bad that they die (a major organ failure by definition) is, but we do it all the time* and nobody seem to object, so that could be it either.

So what is 18 USC 2340A torture ?

----

* Former vice president Al Gore publicly claimed that more than 100 people (combined CIA, FBI, military and assorted contractors) died in our interrogation chambers. Seymour Hersh reported talking to some people who actually admitted it. If all that is true we are, I'm really sorry to say, on the level of gestapo interrogation chambers or worse in Iraq, Afghanistan and "black site" countries at least, however unpalatable that conclusion may be to most of us.

So how come nobody talks about it?
 

jon:

No, the military has only determined who are enemy combatants on the field of battle, as the result of direct contact. It is quite another matter to make that determination when the contact is not direct, but based only on suspicion, the testimony of dubious witnesses, or circumstantial evidence. To allow the military to make such a determination even for U.S. residents or citizens without any kind of due process is to allow military tyranny.

Sorry, but the military has always determined who are enemy combatants, regardless of whether there was a battle going on at the time and regardless whether the combatant was a citizen or alien.

War is not a democracy. We create a military to fight our wars and part of fighting our wars is the taking and holding of prisoners of war. The military has the experience to make combatant status determinations which civilian courts completely lack. This is especially true where the enemy affirmatively seeks to hide among civilians.

Finally, the idea that the al Qeada and Taliban enemy combatants will remain detained forever simply has no basis in reality. More than half of the enemy combatants detained at Gitmo have been released during the first few years of this war with the military looking for countries who will take many of those who remain.

In reality, there are only about 80-150 war criminals whom the military wishes to keep and the military is attempting to try them for war crimes if their attorneys and the courts will ever let them start. Khan's motion is part of this litigation delay strategy.
 

Bart DePalma said...

Sorry, but the military has always determined who are enemy combatants, regardless of whether there was a battle going on at the time and regardless whether the combatant was a citizen or alien.

War is not a democracy. We create a military to fight our wars and part of fighting our wars is the taking and holding of prisoners of war. The military has the experience to make combatant status determinations which civilian courts completely lack. This is especially true where the enemy affirmatively seeks to hide among civilians.


Who says we are at war? I don't recall any declaration that we are in a state of war.

By your reasoning is it okay for the military, perhaps after reading your contributions to this blog, to arrest you and your family from your home in the middle of the night, without a warrant, remove you to a place where they claim they are not bound by law, and detain you until they decide to let you go. Or perhaps to try, convict, and execute you for some war crime of their invention, such as, say "contemplating the death of U.S. forces".

Aren't you hiding among civilians here?

What? You say you are innocent? Too bad. You have granted the military the exclusive authority to decide whether you are guilty, and to do with you what they please. Too late to complain. You're toast, Bart.
 

"War is not a democracy."

So sez our favourite RWA "Bart" DePalma. Which may well explain why he luvz him his wars soooooo much....

To -wg-:

[at "Bart"]: No you cannot leave that to military or CIA alone, to see it, think about accusations leveled against the former Iraq government (weapons of mass destruction) which the accusing party was never willing to subject to an independent evaluation.

WQ, I don't think you understand the situation. On "Bart"'s planet, the maladministration did find WoMD (and "we gave him [Saddam] a chance to allow the inspectors in, and he wouldn't let them in.").

Hope that's clear. Now we can continue the discussion.

Cheers,
 

jon said...

Who says we are at war? I don't recall any declaration that we are in a state of war.

Two AUMFs and the reality that our troops are in combat.

By your reasoning is it okay for the military, perhaps after reading your contributions to this blog, to arrest you and your family from your home in the middle of the night, without a warrant, remove you to a place where they claim they are not bound by law, and detain you until they decide to let you go. Or perhaps to try, convict, and execute you for some war crime of their invention, such as, say "contemplating the death of U.S. forces."

That is neither reality nor what I am arguing.

Military status hearings require a preponderance of evidence that the capture is an enemy combatant. In the case of Khan, they had evidence beyond any reasonable doubt.

Execution requires a military commission trial followed by appellate review.

When Justice recently argued to the Supremes that Congress has granted this enemy more due process rights than any other enemy in our history, they are more than correct.
 

Bart DePalma said...

jon said...

Who says we are at war? I don't recall any declaration that we are in a state of war.

Two AUMFs and the reality that our troops are in combat.


An authorization for the use of military force (AUMF) does not satisfy the constitutional requirements for the only two warrants defined:

Declaration of war must specify:
1. A casus belli or casus foederis;
2. A declaration that a state of war exists;
3. A definition of who the enemy is, by nationality (not leaving it to the President or military to decide more than whether someone is of the enemy nationality);
4. A commencement date; and, optionally,
5. The terms or conditions for cessation of the state of war.

Letters of marque and reprisal must specify:
1. Authorization to pass beyond the borders (marches);
2. Authorization to command forces;
3. The offense that justifies reprisal;
4. Definition of the foreign nation whose forces committed the offense;
5. Authorization to search, seize, or destroy personnel or assets of that foreign nation in proportion to the value of the offense incurred.

Congress does not have constitutional authority to delegate to the President the authority to determine who the enemy is. That would be equivalent to the "general warrants" the Fourth Amendment was intended to exclude. Warrants must have a certain minimum level of specificity, suffient to allow any reasonable person to determine whether the party holding the warrant is acting within the authority of the warrant.

By your reasoning is it okay for the military... to arrest you...

That is neither reality nor what I am arguing.


Why is it not reality? Because you trust the military not to come for you? If they can come for anyone similarly situated, they can come for you.

Military status hearings require a preponderance of evidence that the capture is an enemy combatant. In the case of Khan, they had evidence beyond any reasonable doubt.

Who says? Show us the evidence.

Execution requires a military commission trial followed by appellate review.

Yes, formal execution does, but if the subject dies under aggressive interrogation? Oops. And if the military decides not to play by its own rules, who is going to complain? The detainee? Oops. He's dead.

When Justice recently argued to the Supremes that Congress has granted this enemy more due process rights than any other enemy in our history, they are more than correct.

Maybe it's about time to catch up with the Constitution, then. Might even want to revisit Quirin. Seems there was a little matter of actually turning in his fellow saboteurs before they could do any damage.
 

jon said...

jon: Who says we are at war? I don't recall any declaration that we are in a state of war.

Bart: Two AUMFs and the reality that our troops are in combat.

jon: An authorization for the use of military force (AUMF) does not satisfy the constitutional requirements for the only two warrants defined:

Declaration of war must specify:
1. A casus belli or casus foederis;
2. A declaration that a state of war exists;
3. A definition of who the enemy is, by nationality (not leaving it to the President or military to decide more than whether someone is of the enemy nationality);
4. A commencement date; and, optionally,
5. The terms or conditions for cessation of the state of war.


Where exactly did you come up with these elements? They are nowhere in the Constitution and no declaration of war of which I am aware ever possessed all of these elements?

In any case, nothing requires the United States to have formally declared war before the military can take prisoners of war. The vast majority of our wars were not formally declared and we took prisoners of war anyway out of necessity.

Congress does not have constitutional authority to delegate to the President the authority to determine who the enemy is.

Article II provides the President all general authority inherent in a military commander, which includes taking and holding POWs. Article I does provide Congress with the express power to set rules for captures and this express authority trumps the President's general authority. However, Congress has never sought to have anyone other than the military make combatant status determinations. Indeed, the MCA recognized the military's power in this regard.

That would be equivalent to the "general warrants" the Fourth Amendment was intended to exclude. Warrants must have a certain minimum level of specificity, suffient to allow any reasonable person to determine whether the party holding the warrant is acting within the authority of the warrant.

Arrest warrants have never been required to capture and detain POWs.

BD: Military status hearings require a preponderance of evidence that the capture is an enemy combatant. In the case of Khan, they had evidence beyond any reasonable doubt.

Who says? Show us the evidence.


Go google the standards for CSRTs. I have posted the link on multiple occasions here, but I have to get to court so you are on your own.

You can also google the unclassified results of Khan's CSRT.

BD: Execution requires a military commission trial followed by appellate review.

Yes, formal execution does, but if the subject dies under aggressive interrogation? Oops. And if the military decides not to play by its own rules, who is going to complain? The detainee? Oops. He's dead.


You are changing the subject from the due process rights which Congress gave enemy combatants and war criminals.

It is equally unlawful for the government to kill POWs during interrogation under the DTA/MCA or if POWs were extended civilian criminal defense rights for the first time in history.

BD: When Justice recently argued to the Supremes that Congress has granted this enemy more due process rights than any other enemy in our history, they are more than correct.

Maybe it's about time to catch up with the Constitution, then. Might even want to revisit Quirin.


The text of the Constitution does not extend rights to alien enemy combatants, nor has it ever been interpreted to do so.

The People are citizens and aliens who have demonstrated the intent to join the citizenry, not alien terrorists seeking to murder our citizenry.

Indeed, it would be pure madness to extend the People's constitutional protections to alien enemy combatants warring against the People.
 

Jon, you have to understand that in the World According to Bart, the battlefield is everywhere a dirty mohammaden terrorist could be which, of course, means the only place you're safe is in the DePalma Compound. So, unless you want to get your ass rendered to Guantanamo, you'd better toe the DePalma Line, which is:

1. If Bush did it, it's just.
2. If guns are firing, it's war.
3. If Bush fired the gun, it's just war.
4. If 1. or 2. or 3. apply, Bush may do as Bush pleases.
5. If 4. applies and a case appears before a non-military court, a long-line of precedent tracing back to atleast the Birth of Jesus and possibly to our expulsion from the Garden of Eden supports the proposition that Bush may do as Bush pleases and the case should be dismissed.

There you go, it's that easy. If you're foolish enough to suggest that perhaps Bart is motivated by a singularly disturbing right-wing authoritarian impulse and might not espouse such radical policies if a non-Republican were President, have smelling salts and a fainting couch handy, 'cuz Bart will get all Barbara Cartland on your ass before lapsing into nearly incoherent invocations of armless, bleeding waifs and dying soldiers.

Cheers!
 

There is no question that a legal resident alien enjoys the same First Amendment Rights as a citizen. However, the issue is hardly resolved there.

It's not limited to legal resident aliens. Illegal aliens, for one, clearly have free speech rights within US territories as well.
 

jon:

For your reference, this CSRT finding references the preponderance of evidence standard used by the CSRT.

You can find the CSRT docs of Khan at entry 10020 about 2/3 the way down this page.
 

Everett:

My take on POWs is the same as those old "right-wing authoritarians" Lincoln and FDR. I am comfortable with that company.
 

I'm afraid I have to agree with Bart here; Those requirements you listed might be good requirements, but there's nothing "constitutional" about them.

OTOH, I've got to say that the "AUMF" fails the only plausibly constitutional requirement: That Congress actually state that they're declaring war. Don't see diddly in the Constitution about "AUMF"s.

But that's Congress for you, can't bring themselves to call a war a war.
 

Brett said...

I'm afraid I have to agree with Bart here; Those requirements you listed might be good requirements, but there's nothing "constitutional" about them.

Sorry, but they are indeed "constitutional", because the Constitution here, as elsewhere, incorporates best practices from history, by reference. Of course, you have to study the history of law to find out what was meant. Nor is the standard to be taken from the many deficient examples one can find, but from the best, most carefully constructed, examples, which serve as models, and those contain the elements listed, which I will repeat:

Declaration of war must specify:
1. A casus belli or casus foederis;
2. A declaration that a state of war exists;
3. A definition of who the enemy is, by nationality (not leaving it to the President or military to decide more than whether someone is of the enemy nationality);
4. A commencement date; and, optionally,
5. The terms or conditions for cessation of the state of war.

Letters of marque and reprisal must specify:
1. Authorization to pass beyond the borders (marches);
2. Authorization to command forces;
3. The offense that justifies reprisal;
4. Definition of the foreign nation whose forces committed the offense;
5. Authorization to search, seize, or destroy personnel or assets of that foreign nation in proportion to the value of the offense incurred.

To get some of this background, one can start with the writings of Grotius, Vattel, Bulamaqui, Pufendorf, Bynkershoek, Coke, and Blackstone, which you can find at http://www.constitution.org/liberlib.htm
 

To better understand how model practices were developed in the Anglo-American common law tradition, one has to examine what happened when the lawfulness of something like a warrant was challenged. A typical argument would be, "This warrant is defective because it lacks [element x], which we can see having been used in [precedent y]." So [element x] got added, and the process continued until the warrant contained everything anyone could think of, to allow for all of the objections that might be made to it. That is how search, seizure, arrest, and death warrants came to contain the standard elements we still see in them today. The lists I provided are summarizations of those elements for declarations of war and letters of marque and reprisal.

But they don't teach this stuff in law schools.
 

jon said...

Brett said...I'm afraid I have to agree with Bart here; Those requirements you listed might be good requirements, but there's nothing "constitutional" about them.

Sorry, but they are indeed "constitutional", because the Constitution here, as elsewhere, incorporates best practices from history, by reference.


The Constitution means what it says, not what you think are the "best practices from history," unless of course you can muster five votes on the Supreme Court to rewrite the document. The common law model does not apply to Article III courts.

A declaration of war is simply authorization to use military force against a foreign enemy. The declaration of war clause does not require a causus belli, to designate a nationality for the enemy and most definitely not terms or conditions requiring the end of war.

Not only are these elements not required by the Constitution, some are definitely not the best practices of warfare.

It is wise to give a causus belli to rally popular support for the war.

It is necessary to identify the enemy against which you are declaring war, but silly to limit the war to certain nationalities when you are at war with multinational groups like the Barbary Pirates, al Qaeda and the Taliban.

Finally, it is lunacy to place terms or conditions requiring the cessation of hostilities. The enemy does not always cooperate and your strategic goals may change. Iraq is a perfect example of this. The original objective in Iraq was to remove the Baathist dictatorship and replace it with an elected government. However, after the Baathists deposed, the enemy changed the nature of the war to a terror campaign requiring a changed counterinsurgency strategy to finally win.
 

Bart DePalma said...

jon said...

Brett said...I'm afraid I have to agree with Bart here; Those requirements you listed might be good requirements, but there's nothing "constitutional" about them.

Sorry, but they are indeed "constitutional", because the Constitution here, as elsewhere, incorporates best practices from history, by reference.

The Constitution means what it says, not what you think are the "best practices from history,"


Bart, you obviously lack even the most rudimentary knowledge of legal and constitutional history. You need to read the works I cited before you make statements on this topic. They are the works that were read and understood by the Founders when they developed the Constitution, and which anyone who seeks to understand the Constitution must also read and understand.

The Constitution uses terms of art that can only be understood by reference to legal history and practice. Only one term is re-defined: "treason". No other terms are defined in the Constitution, and those terms have meanings quite different what what they have today. To understand the Constitution, you have to learn the language in which it is written, and despite apparent similarities, it is not the same language we use today.

The warrants associated with the laws of war and peace are not about "practices of warfare" intended to enable victory, nor are they about public relations or building political support. They originated with devoted Christians sincerely concerned about the fates of their souls if they engaged in "unjust war", and while we might not take such concerns seriously today, the formalities of war and peace are not just ceremonial. They are about doing what is right and just, and being seen to do so, by history and by God. War is a solemn matter, not to be undertaken lightly. People today need to be reminded of that.
 

jon, you might want to clarify your constitutional interpretation theory.

Are you advancing an original meaning textualist argument that the term "declare war" had a different common meaning in the 18th Century than it does today?

Are you advancing an original intent argument that the term "declare war" had a different meaning to the Founders than it does today?

Or are you advancing a living constitution argument that the Constitution incorporates the "best practices from history" in some sort of a constitutional common law?

Furthermore, you are citing to no less than 149 different books for whatever proposition you are advancing.

Let's make this simple. What theory are you advancing and give specific cites (books and pages) which support your theory.

We can start with your list of prerequisites for a declaration of war. Is that your synthesis or is it a cut and paste from someone else? Give us your sources.
 

"Bart" DePalma sings a new song:

["Bart"]: Execution requires a military commission trial followed by appellate review.

[jon]; Yes, formal execution does, but if the subject dies under aggressive interrogation? Oops. And if the military decides not to play by its own rules, who is going to complain? The detainee? Oops. He's dead.

You are changing the subject from the due process rights which Congress gave enemy combatants and war criminals.

It is equally unlawful for the government to kill POWs during interrogation under the DTA/MCA or if POWs were extended civilian criminal defense rights for the first time in history.


Oh, really? I though that enemies could be summarily executed. That's the old tune you kept humming over and over while trying to say that people ought to be happy just to be trtured severely and/or locked away for aeternity ... despite the fact that the one cite you had for this showed that such is almost never the case and the primary parties that had done such were Nazi Germany and Imperial Japan in WWII (hardly a "golden standard" for behaviour in war).

Cheers,
 

"Bart" DePalma:

[jon]: Maybe it's about time to catch up with the Constitution, then. Might even want to revisit Quirin.

["Bart"]: The text of the Constitution does not extend rights to alien enemy combatants, nor has it ever been interpreted to do so.


Wrong question. The Constitution doesn't deny rights to "alien enemy combatants", and if there's some other reason for which the Constitution would apply (such as citizenship, presence on U.S. soil or in U.S. custody) to any person, there is nothing "Bart" can point to in the Constitution that would write them out of such by dint of such "alien enemy combatant" status, much less the simple allegation that they are such by the maladministration.

I'd note (once again, for the brain-dead here) that the Supreme Court, in Ex parte Quirin stated that the Quirin defendants weren't entitled to a trial by jury in an Article III court because U.S. Servicemen were also similarly denied such ... not because the Constitution wrote out "alien enemy combatants" but rather because of the very same clause that allowed trial by courts martial for miscreant U.S. soldiers.

Cheers,
 

"Bart" DePalma said:

No one disputes that the multi-sourced evidence more than proves that Khan is an unlawful enemy combatant.

From "Bart"'s link:

"The subject tribunal determined by a vote of 2-to-1 that the detainee was properly classified as an enemy combatant. In an articulat [sic] and thoughtful dissent, one of the tribunal members opined that the [[w:Unclassified Summary of Evidence was deficient because it failed to present a prima facie case that the detainee is an enemy combatant.[1]"

"Bart"'s own source calls him a liar.

Not to mention that the phrase "more than proves" is hardly evident from "Bart"'s sources, even using the rigged proceedings and the loose "preponderance of the evidence" standard which is hardly a sine qua non for "proof"....

Cheers,
 

From Khan's CSRT transcript:

[President (of the CSRT): "I will address each of your witness requests now. You requested the testimony of UZAIR PARACHA [who was convicted and turned stoolie against Khan] to address statements attributed to him in Exhibit R-1, which was read to us earlier, the SUmmary of Evidence. I determined that the request was relevant. UZAIR PARACHA, through his attorney, has volunteered not to participate. Because this process cannoot compel the testimony of non-U.S. military witnesses, the witness is not reasonably available....." Anon.....

"volunteered not to participate".....

Paracha and Faris (another jailhouse stooge) were the primary evidence in the non-classified materials. If anyone can think of a perhaps less reliable witness, I don't know who it might be. It beggars (nay, buggers) imagination to think that such testimony, perhaps obtained under duress or even torture, and at the very least, probably on condition of leniency in thjeir own proceedings, should not be subject to hostile cross-examination. I've always had a low opinion of jailhouse snitches (particularly since they seem to be one of the prime reasons that innocents have been put on death row; see, e.g. the Illinois cases), but here "Bart" seems to be taking the word of such convicted "enemy combatants" at face value.....

Does this procedure sound fair to anyone here besides Hang-Em-High "Bart"?

Cheers,
 

Bart DePalma said...

jon, you might want to clarify your constitutional interpretation theory.

It is basically original understanding, weighted toward the Founders more educated in history and law, such as James Madison, Thomas Jefferson, James Wilson, and John Adams.

For reading you can start with the following:

Hugo Grotius, On the Law of War and Peace, Book III, Chapter 3. http://www.constitution.org/gro/djbp_303.htm

Emmerich de Vattel, The Law of Nations, Book III, Chapter IV, Of the Declaration of War. http://www.constitution.org/vattel/vattel_03.htm

Samuel Pufendorf, Of the Law of Nature and Nations, Book VIII, Chapter VI, Section 15, Of the Declaration of War. To be at http://www.constitution.org/puf/puf-law.htm but rendering not yet completed.

Jean Jacques Burlamaqui, The Principles of Politic Law, Part IV Chap. IV. http://www.constitution.org/burla/burla_2404.htm

Cornelius Bynkershoek, Questions of Public Law. Discusstion of declarations of war scattered throughout. http://www.constitution.org/bynk/bynk.htm

James Kent, Commentaries on American Law, Lecture III, Section 2. Declaration of War. http://www.constitution.org/jk/jk_003.htm

Joseph Story, Commentaries on the Constitution of the United States ..., Chapter XXI. http://www.constitution.org/js/js_321.htm

Bouvier's Law Dictionary, 1856 ed. Entry on Declaration of War. http://www.constitution.org/bouv/bouvier_d.htm

Edward Coke has not yet been rendered into searchable form.
 

For examples of letters of marque and reprisal see http://www.geocities.com/Tokyo/Garden/5213/marque2.htm

My list of requirememts is a reasonable synthesis from these and other examples.
 

"Bart" DePalma:

Let's make this simple. What theory are you advancing and give specific cites (books and pages) which support your theory.

Jon, "Bart"'s such a kidder. Trying to get cites out of him is just like getting your teeth pulled (to turn a phrase appropriately). Repeated requests for such are ignored, and then when he does come through, they're a pile'o'crap.

Don't even try to humour him. It's wasted effort; those that care will take the time to research the substantial issues you discuss; those that just want to play RW troll will just demand, demand, demand, and won't learn a friggin' thing from it even if supplied....

I wish it were different. But that just is "Bart"'s nature, and he's not about to change now.

Cheers,
 

Edward Coke has not yet been rendered into searchable form.

You can find Coke in searchable form here.
 

Clarification: the site I linked has only selections from Coke, not the full Institutes.
 

Our rendition of Coke's works will be complete, not excerpts. For a start on it see http://www.constitution.org/coke/coke.htm
 

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