The ninth circus in action again

[scoutingagain]

Thanks NJ for your thoughts and response. I find your posts quite educational. I hope you take pro bono(I think that's the correct term) credit for the time you spend educating us laymen on the board.

 

SA

 

 

[eisely]

I too have found NJCubScouter's input to be informative and helpful. This whole thread has been rather civilized so far.

[le Voyageur]

Scoutingagain....Great question, but for the now it'll have to go unanswered...here's why, armed conflict over the intervening years from WW II to this current conflict has changed, and the Geneva Convention has not. The principle problem is the growth of unconventional warfare which has brought fourth issues currently lacking answers...quoting Steven R. Ratner (professor of law U. of Texas School of Law)..."A common assumption in favor of updating the law of war is that the exsisting corpus of international humanitarian law is ill-equipped to address uses of force by and against terorist groups. While the laws of war provide detailed rules for interstat conflicts, conflicts between states and liberation movements, and conflicts between states and well organized insurgencies, they do not provide any guidance to those fighting in wars between states and terrorist movements..."

Thus for the now, we are in a muddle with an outdated map....

[RobK]

I was in no way attempting to excuse the actions of past Republican administrations. I was attempting to illustrate the left's hypocrisy and the absurdity of attempting to make moral equivalence between Prescott Bush and John Walker Lindh. We hear from the left a constant clamor about Reagan/Bush having dealt with Hussein and how evil they were for it, but no mention EVER of the French or Germans dealing with them.

 

I don't know all the facts about Prescott Bush's dealings through that company with the Nazi's but I will certainly not condemn his grandson for anything Prescott might have done. I do however know that John Walker Lindh actively participated with the sworn enemies of the US.

 

Pointing out where person A was not punished for doing wrong bears no relevance on person B having done wrong and deserving punishment anyway.

 

Please, le Voyageur, give me a history lesson. This ought to be good!

[le Voyageur]

NJ has done an excellant job in covering what I would of said...besides, it appears you're looking for an argument per the tone of your postings...lets keep this thread civil since this is a chance to explore an important issue from many different perspectives

[scoutingagain]

le Voyager,

 

No argument from me. I sincerely find the information you and NJ have provided most informative.

 

eisely, you said.

 

"Whatever you may feel about our invasion of Iraq, similar observations could be made about non-Iraqis now being captured in Iraq. What business is this of theirs? They cannot be said to be trying to liberate their own territory since what they are trying to do is reinstate the former regime."

 

I don't think the foreign fighters are trying to reinstate the former regime as much as just kill Americans and their allies. I agree though they would appear not to be a party to the original conflict and as you noted not provided POW status. Organized, Iraqi insurgents would be more likely to be able to make such a claim.

 

Since there seems to be some consensus in not granting detained Al Queada members POW status, I have another question that is more relevant to the original article. Under what conditions or circumstances might civilian authorities be able to detain individuals without providing the detained individual access to his/her constitutional rights? i.e. due process, access to a lawyer, trial, etc. Are there such circumstances under out current legal system?

 

SA

 

 

[le Voyageur]

SA...I'll try and answer your second question a little later. However, I would like to put some finishing thoughts to your first question....

 

As I mentioned earlier the changing nature of warfare, especially in regard to unconventional warfare has not only made the Geneva Convention outdated, but continues also a constitutional problem yet to be resolve by the Supreme Court. First, the constitutional problem that I see is this, as it points directly to Article 1 Section 8 wherein only the Congress has the power to declare war.

Additionally, the Constitution contains no express provision for "emergency" or crisis" situations. However, and I think that most of us can agree on this point, is that there are times when a President must step outside the checks and balances of the constitution during national emergencies, and take on dictatorial powers for the short term to provide Congress the necessary time to respond. Self preservation is the first law of any nation.

Beginning with Truman, the Executive Branch now has a long tradition of operating without constitutional brakes as Congress has failed repeatedly to perform per the constituion, allowing national emergencies such as Korea, Vietnam, and this current muddle to stay protracted. This failure of duty has allowed the Executive Branch to usurp ever increasing powers outside of the the checks and balances of the constitution.

With the advent of 9/11, we have a President who took advantage of this shift of power to take this nation into a war that the International community (the U.N.) was not prepared for in the way of treaties in regard to the way our adversaries had elected to engage and prosecute their war. Basically, the Bush adminstration had to deal with an unfolding problem that had these key points...(1)the privatization of violence (2)the resurgence of identity based violence (3)growth of violent groups not bound by geography (4)loss of monopoly of force by displaced ethnic groups (5)no separation of civilian and soldier.

Thus emerged the Bush Doctrine for preemptive war, but what was lacking was a codified document that was current in regard to P.O.W.'s engaged in unconventional warfare. Therefore, U.S. adherence to international law concerning the treatment of P.O.W.'s is spotty at best. Hopefully, this revising is now on the anvil...

[eisely]

Scoutingagain has raised a very broad question about which we should all be concerned.

 

In our recent history the internment of Japanese and American citizens of Japanese descent during WWII is the clearest example of deprivation of civil liberties of a segment of the population just for who they were. Someone with more knowledge of the facts can comment, but I believe this action was litigated at the time and the Supreme Court found no constitutional prohibition to this action. I think that the precedent still stands. Subsequent moves by the congress to pay a reparation to these people were undertaken not because of the legalities, but because of the consensus that it was a bad idea and unjust to the people interned. I could be wrong about that. Someone correct me if they have better information.

 

Probably the earliest major incidents of the Federal Government in particular under this constitution occurred early in the history of the republic when a series of anti sedition laws were adopted. These were later repealed and/or found unconstitutional. This was probably prior to the Supreme Court asserting authority to rule on constitutionality per se. These laws were a severe abridgment of freedom of the press among other things. If memory serves me correctly, this occurred during the presidency of John Adams, who served a single term. He was our second president after George Washington, who served two terms.

 

One of the single most important civil liberties is the right of access to Habeus Corpus. Section 9 of Article I of the constitution reads, "The Privilege of the Writ of Habeus Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

 

As far as I know, the only suspensions of habeus corpus occurred during our civil war, when Lincoln invoked it. Again, I don't enough of the history of this to comment on it. Since the entire confederacy was under military government for some period of time, I suspect that normal civil liberties were limited in those areas while under the rule of the army.

 

The most interesting and important point is that the constitution contemplates situations where normal civil liberties can be suspended or curtailed by the government. One could therefore argue that curtailment of civil liberties by itself is not necessarily unconstitutional. The questions are who decides, what criteria apply, and for how long? These are very serious issues about which we should all be concerned.

[le Voyageur]

 

SA, per your 2nd question, try this site

 

ex parte Milligan

 

http://www.geocities.com/tthor.geo/milligan.html

 

I belive (but not sure)that Milligan still stands as good case law to date...

[scoutingagain]

Thanks to all for the education.

 

Based on le Voyager's reference it seems there is a very high threshold required to void an individual's constitutional rights, which as far as I'm concerned is as it should be. However eisely points out a number of instances where the government has suspended these rights.

 

As eisely points out, in these times of unconventional threat, how the government goes about the process of protecting us is extremely important to us all. In my opinion, it's not just about succeeding in preventing terrorist attacks and capturing those that would do harm, but doing so without sacrificing key elements of the constitution.

 

Also in le Voyager's reference in the Milligan decision there is this statement, "...for it is the birthright of every American citizen when charged with crime, to be tried and punished according to law." How does this statement effect the rights of foreign nationals in the US or does it?

 

SA

 

 

 

[eisely]

The 6th amendment to the constitution reads:

 

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

 

Writing as a non-lawyer, this would appear to be the basis for the reference in the Milligan case. While Milligan refers to the birthright of citizens, the amendment refers only to the "accused". Non citizens get the same rights as citizens.