Doing some work during my internship, I've had to read over many of the decisions regarding habeas corpus petitions and the military or executive's right to detain combatants. In the past, I've held little sympathy for most of the detainees. But now, some of the language from the representatives for government in those petitions truly scares me. The Courts didn't accept it... but this is what the current administration wants to be the law. Don't think that such language as the following wasn't approved from the top - the cases were far too important for it not to be. Here's a quote from the text of the opinion of Hamdi v. Rumsfeld 296 F.3d 278 : "The government urges us not only to reverse and remand the June 11 order, but in the alternative to reach further and dismiss the instant petition in its entirety. In its brief before this court, the government asserts that "given the constitutionally limited role of the courts in reviewing military decisions, courts may not second-guess the military's determination that an individual is an enemy combatant and should be detained as such." The government thus submits that we may not review at all its designation of an American citizen as an enemy combatant--that its determinations on this score are the first and final word." Does this not frighten anybody else? Does anybody think it's good policy for the military being able to designate anybody it pleases an enemy combatant... and imprisoning them indefinitely without judicial review? Just imagine the potential for abuse. And the lack of any of the checks and balances envisioned in the Constitution.
that frightens the hell out of me! if someone has even a marginal claim to citizenship, and thus the protections of the Constitution, there needs to be judicial review of those types of proceedings. where is your internship?
MadMax: Nothing too spectacular... staff at the American Journal of Criminal Law at UT. Working for free and hoping to meet someone who will help out my career later . It's pretty interesting though and has given me hope that I'll like law when I actually start practicing it (not the biggest fan of law school...).
man, i hated law school. about half way through my first year i told my wife, "i'm not sure i can do this." i was really unwilling to sell my soul to a big firm. just not for me. but i worked that first summer as a clerk for the Texas First Court of Appeals and fell in love with the law. met judges and found the ones on that court to be honorable people. and got to research all kinds of crazy issues that were up on appeal. the practice of law is NOTHING...NOTHING...NOTHING...like law school. if you're like me, you'll find that a relief!
Should the courts determine if someone is an enemy combatant if the military is going to be shooting at them, or just if they are going to detain them?
In your world view, at what point should the military be walking around shooting people in our country?
They haven't started shooting yet, but there are some serious heat packing commandos walking around grand central these days.
It is uncontested in the debate that the military has the right to detain enemy combatants and that such detention is immune from a writ of habeas corpus. Moreover, Bush authorized the detention of non-citizens w/o Constitutional due process (somewhat controversial). However, the writ of habeas corpus is effective for US citizens in challenging their status as enemy combatants. It is the position of the administration that it should not be. The administration argues that the courts have no role in the situation - not even a military tribunal. Moreover, the administration w/held the authority to define "unlawful combatant" however it wanted w/o any firm standards. This is terrible - technically, this allows absolute and unlimited power by the executive and military to detain whoever the hell they want, brand them an "unlawful combatant," and keep them w/o proof. Even if you trust our current leaders (which I don't), surely you can see the horrific potential for abuse. The 4th Circuit rejected this position. Unfortunately (imo), the 4th Circuit ultimately determined that a very, very little amount of evidence was sufficient to sustain a finding that a given US citizen is an enemy combatant in times of crisis. The document submitted for in camera review contained little information, and the trial judge rejected it as inadequate. THe 4th Circuit upheld the document, and adjudged that deference was necessary. However, it stressed that it might find differently in slightly different factual circumstances. Scary stuff.
Max...you are among the most reasonable and objective up to now pro-war/administration people on this board, so I make this appeal to you: Do you see this as another isolated event? If it frightens you, and if the lies and false claims frighten you...do you see a frightening connection, and moreover that we are going in a frightening direction? Don't you see a common denominator, in terms of intent and political philiosophy from on high?
first of all...thank you. second...i don't know yet. but i'm not sure it matters who is in power...both sides seemingly want to trash our liberties or ignore the constitution to meet their agenda. but this is quite ominous. i really don't like this...not one little bit (that last part was for my son, who loves Dr. Seuss books...and for me, who enjoys reading them to my son).
MacBeth, what is your PhD in? You seem to enjoy engaging in mental masturbation with Max, so I assume that you're in the humanities?? Is this correct? I only ask, b/c you and Max have quite a few interesting conversations. However, no matter what Max concedes, he's still going to vote a straight republican ticket.
"i did not have mental masturbation with that poster, mr. macbeth." -- in my best arkansas accent. actually, you might be surprised, Achebe. seriously. of course, i guess the abortion qualifier really hurts most dem candidates in my book.
Oh, God, the miasma that is my academic resume... Short answer: Classical Civilizations. But if I told you how many I have pending, you would accurately feel not a little pity for me. Will still be studying long after I've moved on from teaching...
I'm no lawyer but doesn't Habeus Corpus means proving that the gov't, local, federal, state, has to prove that there is a good reason to hold someone in custody. What does an invasion or act of terrorism have to do with that principal? If we are attacked, we wouldn't be trying to hold the person, we would be trying to stop them. The same applies to the police, if someone robs a bank and comes out guns blazing, there is no issue of Habeus Corpus when people's lives are in danger.
pgabriel: You're on the right track, but you've got it backwards. From latin, it means something like "to have the body." It's essentially your freedom of movement. The practical effect is that the government has to show just cause for imprisoning you in accordance w/due process. Here, the executive wishes to remove due process considerations from the table. This gives unchecked power to the executive and could lead to tyranny.
You apparently aren't much of a reader either. I was replying to heb's question about at what point the military would be shooting people in our own country. It had nothing whatsoever to do with habeas corpus.
Are we really worried about Bush turning into Hussein? Would this new power extend to the cancellation of elections, etc? Who loves and appreciates freedom more than the US mililtary? They are willing to die for someone else to enjoy it. Are they going to support this tyranny from an American president? It doesn't pass the Smell Test in my opinion.
giddyup: Get a brain. Or at least, read some history. No system is safe from corruption and tyranny that is not structurally protected. You're so in love with the founders - they believed that unchecked power from any branch would inevitably lead to tyranny. That's why the system they set up is delicate. Oh, I forgot - the founders are no longer important to you when it leads you to a conclusion you don't like. Regardless, even if you for some bizarre reason trust the current administration - you can't have rules like that. Many laws are passed with good intentions. They are beneficial "content" wise. However, the structural safeguards must be kept in place or else such laws shall be co-opted by the ruthless in the future. As for the military being a great safeguard of democracy... there's little evidence to suggest this. No doubt they're a great protector of American security. But I fail to see how the military is particularly invested in maintaining personal freedoms, given its general political bent. Many commanders are not exactly great exponents of civil liberty. Besides, such changes are gradual... and them invidiously began to cause the core of freedom to decay. Liberty is seldom lost in a day, but in a series of gradual steps. Freedoms are surrendered gradually - because they don't seem important, or because the trade-off might seem good at the time. But the end result isn't something anybody wants. But that's not even true in this case. This is a declaration that this administration doesn't want a balance of power - but rather an all-powerful executive branch that, in such matters, may bypass fundamental rights of citizens contained in the Constitution, and never questioned until now. It's your freedom of movement. Your right to not be held in captivity without having your day in court. Are you really so eager to give it up? To tell the executive: "I trust you so much, and all that may come after you, that I give you ultimate power to allow you to imprison whomever you want without examination?" THat's ****ing scary.
