Judge bars government from seeking death penalty against Zacarias Moussaoui

Anybody on American soil deserves Constitutional protection. The democratic process can't be applied on a case-by-case basis -- everybody deserves a fair trial.

 

OK, so riddle me this, which constitutional protections DOES he get in a US District Court? Does he get any? Is there an alternative set of procedures for non-americans? Do the Federal Rules of Criminal Procedure still apply?

Can the judge just make it up as she goes along, and give him certain ones and not others?

The 6th amendment says "all criminal prosecutions", are you trying to tell me that those cases limit 6th Amendment protections to Americans only? I think that's almost certainly wrong.

I don't feel like looking it up, but I'm going to say that this is not the first time a foreing national has been prosecuted, and I have never heard about there being a separate set of rules for them, so I am confident that it applies.

 

Ah, OK, I just figured it out, Hayes Street, those cases you cite say that constitutional rights don't apply in another country i.e. you can't invoke the 4th amdt against searches and seizures for your villa in Spain, but don't limit them to American citizens only.

 

I don't feel like looking it up, but I'm going to say that this is not the first time a foreing national has been prosecuted, and I have never heard about there being a separate set of rules for them, so I am confident that it applies

I think Hayes is referring to deportation or immigration cases. I believe that if tried for a crime immigrants and even illegals have rights.

 

Yes, and no. What they say at the core of the decisions are that foreign nationals are not entitled to the same due process rights we are. That a non-US citizen is not entitled to the same protections under the Constitution that a US citizen is. 'The people' refers to 'a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.' Moussaoui hardly falls under that definition. In addition, mere physical presence is not a guarantee of Fourth, Fifth, or any other 'rights,' as shown by the Quirin Court's upholding of military tribunals for aliens and citizens IN THE COUNTRY.

 

But that's what the problem is This decision is not based on the fourth amdendment, which says "the people". The sixth amendment says "In ALL criminal persecutions, the accused shall. . ." It does not say "the people shall"

This is not a military tribunal case, if the govt wanted to do it that way, they easily could have (as Lithwick notes in the article I posted) it is a criminal case proceeding in US District court. Therefore, normal rules apply, and the 6th amendment is on.

 

Not sure why 'the 6th Amendment is on.' As I've already shown, there is plenty of doctrine separating the rights of aliens and the rights of citizen. Yes, the 4th is 'the people.' This shows the Constitution delineates a line that you aren't acknowledging. Your argument is that the 6th say 'in ALL criminal prosecutions,' but this is false as shown by Ex parte Quirin, which allowed the suspension of the 6th Amendment even when the violations occur on U.S. soil and the alleged offender is a U.S. citizen. Much less when the offender is NOT a US citizen.

There is sufficient latitude to limit, if not remove, Moussaoui's 4th, 5th, and 6th Amendment claims.

 

Suspension of the 6th Amendment by a military tribunal not by an Article III court.

If that is such an easy argument, why didn't the government make it? Their argument in the case wasn't that "the 6th Amendment ddoesn't apply to non-citizens" (because I'm sure there is a case that says it does). THe governments position was that it didn't have to comply because of National security.

The sixth amendment does apply to non-citizens.

 

I think you're missing the point. Moussaoui is arguably better off in a civilian court than in a military tribunal. That, at least, is the reason the Administration is pursuing these cases through federal courts. However, an effort to give Moussaoui, or other terrorist defendants the most fair trial possible does not mean that he necessarily is entitled to the same protections as a normal criminal defendant, nor a US citizen or resident alien. Your argument is that is legitimate to strip his rights with a tribunal, but not in a civilian court. I have no idea why that is true, nor why it would make any sense.

I found this passage from an article interesting...

'The most powerful argument in favor of the administration's new measures, however, is very different, and it has undoubted force. What any nation can afford to provide, by way of protection for accused criminals, must at least partly depend on the consequences such protections would have for its own security. The terrorist threat to our security is very great, and perhaps unprecedented, and we cannot be as scrupulous in our concern for the rights of suspected terrorists as we are for the rights of people suspected of less dangerous crimes. As Justice Jackson put it in a now often-quoted remark, we cannot allow our Constitution and our shared sense of decency to become a suicide pact. (Another) put the point this way: it may be right, in more normal times, to allow a hundred guilty defendants to go free rather than convict one innocent one, but we must reconsider that arithmetic when one of the guilty may blow up the rest of Manhattan.'

 

I got it from the qurin case:

"In the light of this long-continued and consistent interpretation we must conclude that Section 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts....We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury. "

 

Notice how it says 'or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts....' There is still an option to try these offenses 'against the law of war' in civil courts. In these instances, the Fifth and Sixth Amendments do not apply. Now in this case the instance was a Tribunal. But I don't understand why it doesn't equally apply in the other option, as written, a civil court.

 

Notice how it says 'or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts....' There is still an option to try these offenses 'against the law of war' in civil courts. In these instances, the Fifth and Sixth Amendments do not apply.

I'm not sure how you're interpreting this, but this makes no sense. They very clearly conclude that these protections don't apply in military tribunals - nothing more:

<I>We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission</I>

If they had wanted to extend this to civil courts, they would have clearly done so in the language above, in my opinion. Essentially, you can try these in military tribunals or civil courts - if you choose military tribunals, those protections don't apply.

 

Alright, Moussoui is not a United States Citizen, and yet he is having his trial played out in Federal Court..

But at the same time Jose Padilla a U.S Citizen is in a military brig somewhere with no citizenship/due proccess protections..

I cannot say I understand this policy...