"enemy combatants"

[jlassen.livejournal.com]

Comments

[kip-w.livejournal.com]

[Pretend this entry is completely blank.]

[shadowfox24.livejournal.com]

Yep, HUAC 2 is comin to get you alright. Run run to Canada before it's too late.

[hikarugenji.livejournal.com]

I'll respond pre-emptively to the "you don't have anything to worry about, Bush isn't going to use the power like that" argument -- it's the same as saying the 4th amendment shouldn't exist because we can trust the police not to conduct needless searches, or that the 8th amendment isn't necessary because we can trust the government not to impose excessive bail or cruel punishments.

The idea that any branch of the government should be given an unlimited power and that the American people must simply trust them not to misuse it is antithetical to the type of government the Founders were trying to create.

[clownshoes.livejournal.com]

...the government is imposing cruel punishments, and I've cited the fourth amendment in a court case (which then got thrown out solely to to that fact).

[goumindong.livejournal.com]

?

[jfboyd.livejournal.com]

Is this cartoon really correct? I'm not disagreeing, I just want a citation for future reference.

[hikarugenji.livejournal.com]

Although as the case with Jose Padilla shows, the laws can be made to apply to American citizens as well. There are parts of the law that mention it only being used with terrorists, but the language of that part is more of "trust me, I'll only use it like this" than an actual restriction on what can be done.

[goumindong.livejournal.com]

The law is actualy written in such a way as that determination as an unlawful enemy combatant doesnt qualify you for Habeas Corpus petitions rights, because the government doesnt claim jurisdiction.

As well, even with U.S. government jurisdiction, the process of extrordinary rendition makes such problems of jurisdiction moot, because the U.S. can not jurisdiction over prisoners it technically is not holding.

As well because of these jurisdiction matters, the government can give the citizen UEC over to a private corporation, which is also not technically U.S. jurisdiction, allowing another way to easily and legally indefinitly detain citizens without Habeas Corpus petition rights.

[goumindong.livejournal.com]

Yes, its in the text of the detainee bill.

For some "light" reading...

http://www.senate.gov/legislative/LIS/roll_call_lists/vote_menu_109_2.htm

Kennedy Amdt. No. 5088; To provide for the protection of United States persons in the implementation of treaty obligations. [Rejected]

Byrd Amdt. 5104; To prohibit the establishment of new military commissions after December 31, 2011. [Rejected]

Rockefeller Amdt. No. 5095; To provide for congressional oversight of certain Central Intelligence Agency programs. [Rejected]

Specter Amdt. No. 5087; To strike the provision regarding habeas review.[Rejected]

Levin Amdt. No. 5086; In the nature of a substitute.[Rejected]

http://thomas.loc.gov/cgi-bin/query/F?c109:3:./temp/~c109DIf2sl:e2995:

or

http://thomas.loc.gov/cgi-bin/query/z?c109:S.3930:

[you may have to go to the second link and then click on 3 . Military Commissions Act of 2006 (Enrolled as Agreed to or Passed by Both House and Senate)[S.3930.ENR]]

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

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

`(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

`(B) CO-BELLIGERENT- In this paragraph, the term `co-belligerent', with respect to the United States, means any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy.

`(2) LAWFUL ENEMY COMBATANT- The term `lawful enemy combatant' means a person who is--

`(A) a member of the regular forces of a State party engaged in hostilities against the United States;

`(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or

`(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.

`(3) ALIEN- The term `alien' means a person who is not a citizen of the United States.

`(4) CLASSIFIED INFORMATION- The term `classified information' means the following:

`(A) Any information or material that has been determined by the United States Government pursuant to statute, Executive order, or regulation to require protection against unauthorized disclosure for reasons of national security.

`(B) Any restricted data, as that term is defined in section 11 y. of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).

`(5) GENEVA CONVENTIONS- The term `Geneva Conventions' means the international conventions signed at Geneva on August 12, 1949.


[more to come]

[goumindong.livejournal.com]

[cont]
O.K. So lets go the the power to grant writ[Tile 28 U.S.C. 2241]...

http://www4.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00002241----000-.html

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.
(b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain an application for a writ of habeas corpus and may transfer the application for hearing and determination to the district court having jurisdiction to entertain it.
(c) The writ of habeas corpus shall not extend to a prisoner unless—
(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
(5) It is necessary to bring him into court to testify or for trial.
(d) Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.

And add the section E from the new law.

(a) In General- Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and the subsection (e) added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477) and inserting the following new subsection (e):

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

`(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.'.

[more to come]

[goumindong.livejournal.com]

[cont]

(b) Effective Date- The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.

--------------------------------------------------

Now, on the surface of it, it looks like Habeas for citizens is free and clear, but lets go back to those exceptions. UECs who are citizens dont fall into any of them as the U.S. claims they are not held under U.S. jusirsidction, and they havent violated any laws, they are simply held due to a status determination [despite Razul V. Bush, 2002].

I.E. So long as the U.S. doesnt bring a citzen UEC to trial, there is no real way to challenge the lack of habeas corpus [which bringing them to trial fulfills, also in Razul V. Bush, 2002]

[goumindong.livejournal.com]

Now, here is the kicker, remember back in the first post where i gave the definition of an enemy combatant?

Well, look closely at the defintions.

"
`(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

Basically, it asserts that the President and the Secretary of Defense have unilateral control to conviene tribuals that have the authority to determine whether or not someone is an enemy combatant.

This is independant of the congress and the judiciary and is essentialy a free pass to label anyone you want an enemy combatant, so long as you can get togother a group of people to call someone an enemy combatant[in secret, with no oversight]. The only question is "what does competent mean", which is a definition, discreetly, left blank. It is essentialy a non-word absent a definition of what constitues competent it has no meaning, they might have called it a "jabberwok tribunal".

Or maybe, a kangaroo court.

[jfboyd.livejournal.com]

Thanks for that, it's terrifying.

[averajamerican.livejournal.com]

very well stated. thanks.

[freemyn.livejournal.com]

Whatever happened to innocent until proven guilty? The idea that 100 guilty men should be let free before even one innocent person is wrongfully imprisoned?

[cursethedark.livejournal.com]

You must not have seen the memo.

[torrintion.livejournal.com]

Doubleplus oldthink.

[freemyn.livejournal.com]

I think old think is better than newthink because newthink is just doublespeak for nothinking.

[torrintion.livejournal.com]

Maybe I should start newthink. Sounds easier.