Military Commissions Act/Keith Obermann report

[Gary Conner]

Stage 2:

On the Geneva Conventions, yes we definitely are a signator, it is the terrorists that are not signators, thus the argument from the Administration that they can be treated differently than a legal combatant.

One point being missed by some folks is not whether Olberman and O'Reily et al are biased. Of course they are, one to the extreme left, and one to the extreme right.

The point is, we need to read this act to determine if indeed a U.S. citizen can be prosecuted under this act, and honestly, I have read to page nine of the thirty eight pages, and skimmed over the balance, with the intent to devote a great deal of time studying the entirity as it is written in what I feel is very ambiguous language.

And the reason is because from what I see of the first eight pages, and based upon the letter posted by the President (see original links) it appears that "any person" could possibly be prosecuted by a military commission, for discussing "conspiracy theories" both because of the way he addresses it in the leter, and the manner in which that is addressed or alluded to, within the Act itself.

And that could encompass just about everyone at one time or another. I don't think I ever have spoken with anyone since 1963, who has not at least discussed the Dallas/Kennedy matter, and there really is no law (until this one) against discussing a conspiracy theory.

So the point is, what is the Act, and how is it going to be interpreted by the military commission officers appointed by the Secretary of Defense to detain and prosecute "any person" they feel is in violation of portions of the act.

 

[STAGE 2]

It sounds like you are suggesting those beliefs should be suspended because we find ourselves in an ugly situation with an enemy we haven't faced before... So, we live by the Constitution - sometimes.

No, I believe in the rule of law. When the government steps out of bounds I'll be the first one to stand up and shout. However when the government acts within its authority I'm going to let it do so. The constitution places no restrictions on the government as far as alien combatants. I'm not going to impose something on the government that isn't there.

We are not a signatory on the Geneva Conventions, but we waste no time calling for those standards when our solders are captured. That is a double standard. You want the benefit of it but refuse to follow it's guidelines.

So insisting that people who have signed, act in accordance with what they have agreed to is a double standard? Again, it all comes down to the rule of law. We didn't sign and thus should not be held to those standards. Others that did sign cannot cry foul as no one put a gun to their heads. Show me another country that hasn't agreed to something yet follows it 99% of the time.

Here is my point - in our society, it is not supposed to be acceptable to stoop down to the level of the criminal, combatant or offender in how we behave.

Well that depends. If I'm walking down the street and someone attacks me I am going to give him no quarter. I will fight dirty and I will do what is necessary to win. Because I arguably use some of the same tactics as the criminal does that make me bad? No.

We are supposed to be the leader – the example. In our past we denounced the Kremlin and the SS specifically for taking such tactics. Now we are saying it is okay for us because these are really bad people. I think we can accomplish the task of prosecuting these people and combating their efforts without giving up who we are.

This statement makes the incorrect assumption that our government has adopted the tactics you speak of. Show me where it has become SOP to do any of the things that you are alleging we do.

This is about who we are as a society. This is not about whether some people want to "free the terrorist" - that is an argument used by people who have no good position to argue from. This is about how we as a country choose to behave in a very difficult and new situation.

This is about people wanting to free the terrorist. Its about people wanting to make it that much easier for terrorists to foul up our lives by injecting themselves into our judicial system. It takes us decades to give punishment to murderers who are guilty beyond all doubt. Giving terrorists access to our courts will be the death of our judicial system.

 

[September11]

I believe in the rule of law

They have passed a law that appears to remove them from being bound by the laws.

So insisting that people who have signed, act in accordance with what they have agreed to is a double standard?

Expecting others to abide by standards that you won't apply to yourself is a double standard. Whether we signed it or not, if we expect others to abide by established standards, then we should hold ourselves to the same accord.

Because I arguably use some of the same tactics as the criminal does that make me bad?

Actually, sometimes yes... I think in kindergarten we were taught that two wrongs don't make a right... Nothing is absolute, but as a general rule of thumb, that works.

This statement makes the incorrect assumption that our government has adopted the tactics you speak of. Show me where it has become SOP to do any of the things that you are alleging we do.

We have admitted to as much! The President admitted to rendering people two weeks ago. I don't think you have to go too far to find numerous cases and situations. That is why we are having this conversation.

This is about people wanting to free the terrorist.

This is exactly what I am talking about. Because I don't agree with your methods you accuse me of siding with the enemy and wanting to help them. Claiming that people who oppose this bill want to aid the terrorist is no better than name calling. You are a doo-doo head! Accept the possibility that people can oppose your opinion and still want the same as you and we can begin to find a solution. Otherwise we will fight each other and not the real enemy.

This is about defeating the terrorists without giving up our rights or becoming a terrorist ourselves.

 

[STAGE 2]

They have passed a law that appears to remove them from being bound by the laws.

Umm... no. If you're referring to the recent bill regarding habeas and tribunals it has zero effect on american citizens.

Expecting others to abide by standards that you won't apply to yourself is a double standard. Whether we signed it or not, if we expect others to abide by established standards, then we should hold ourselves to the same accord.

No we shouldn't. They signed the agreement. No one forced them to. They did so of their own free will. We reserve the right to choose what we will sign and what we won't. I expect everyone to abide by what they say they will. Thats the difference. By not signing the agreement we said we weren't willing to be bound where as other did.

Actually, sometimes yes... I think in kindergarten we were taught that two wrongs don't make a right... Nothing is absolute, but as a general rule of thumb, that works.

I'll remember that if you ever get mugged. Don't kick him in the nuts, don't gouge eyes, don't throw dirt in his face, don't hit him over the head with a cell phone, and by all means don't pull a gun when he pulls a knife. Thats just fighting dirty.

We have admitted to as much! The President admitted to rendering people two weeks ago. I don't think you have to go too far to find numerous cases and situations. That is why we are having this conversation.

Rendering what? The taliban, the SS and all of the other organizations people love to hold as comparative had simple procedures. They whacked all those that weren't useful and for those that were, they kept them around until they fell under the first category. Our government has no offical policy of torture or abusiev conduct or anything of the kind. Most here think the treatment at Gitmo is far to lenient for the kinds of people that are being held there.

This is exactly what I am talking about. Because I don't agree with your methods you accuse me of siding with the enemy and wanting to help them.

Never said that.

Claiming that people who oppose this bill want to aid the terrorist is no better than name calling. You are a doo-doo head! Accept the possibility that people can oppose your opinion and still want the same as you and we can begin to find a solution. Otherwise we will fight each other and not the real enemy.

Once again I never said that people who oppose this bill want to aid terrorists. I do think that people that want terrorists to have access to our courts are incredibly shortsighted and relatively ignorant about how the law works.

This is about defeating the terrorists without giving up our rights or becoming a terrorist ourselves.

No one is giving up rights. Up until a short while ago, the idea of an enemy combatant, official or otherwise, having habeas rights was just insane. The aclu and its buddies decided to get together to "fix" the system and now we have to pass laws to get things back to the way they were for 2 world wars, and hundreds of other conflicts.

 

[September11]

Stage
It appears you aren't reading what the other poster are writing nor are you reading the actual document like Gary suggested. It really seems like we are talking about unrelated topics.
This thread is about the Military Commissions Act -
Yes, your rights are in jeapardy.

I don't think a person (or country) should have to sign a document to be required to behave as they would expect other to behave.

I don't think self defense is wrong. I do believe that there are limits to the level a person (or country) should go in said defense... your opinion here differs - which is why we have laws... so people who differ know what is acceptable and what is not.

Our government has no offical policy of torture or abusiev conduct or anything of the kind. Most here think the treatment at Gitmo is far to lenient for the kinds of people that are being held there.

Google "rendering"
Our currrent administration refused to define torture - which means they have a policy on it...

Most here think the treatment at Gitmo is far to lenient

Most here will likely admit we don't really know what happened at Gitmo.

 

[STAGE 2]

Stage
It appears you aren't reading what the other poster are writing nor are you reading the actual document like Gary suggested. It really seems like we are talking about unrelated topics.
This thread is about the Military Commissions Act -
Yes, your rights are in jeapardy.

Then apparently you've missed the entire thread on this act in this forum. There isn't any way this will be applicable to an american citizen.

I don't think a person (or country) should have to sign a document to be required to behave as they would expect other to behave.

You're changing your tune. What is legal and what you think are two different things. If all the neighbors on my block sign a petition to always keep their yards nice and neat, but I don't, no one should expect my yard to be mowed. If my neighbor lets his go downhill and I call him on it, then its his problem. He agreed to abide by it. It might not be nice and it might not get me invited to the next pool party, but he hardly can say its a double standard as it was self imposed.

Our currrent administration refused to define torture - which means they have a policy on it...

Refusing to define a very ambiguous term (something 10 out of 10 people probably disagree on) is hardly having a policy of torture. This is aside from the strategic stupidity of doing such a thing.

Most here will likely admit we don't really know what happened at Gitmo.

Well, in however many years with red cross and amnesty international chomping at the bit for some kind of abuse, some fake koran scandal, and all of these other "peace" freaks hoping for doom and gloom, if something had happened we would probably have known about it.

 

[September11]

There isn't any way this will be applicable to an american citizen.

Have you read the document?
Here is a link to the house of repesentative sight where you can download and read it.

http://www.rules.house.gov/announcement_details.aspx?NewsID=2159

It refers to BOTH "Unlawful Alien Enemy Combatant" and to "Unlawful Enemy Combatant"
It discusses who is authorized to determine if you are a unlawful enemy combatant and what can be done if you are determined to be one. Many places in the document it

Page 8, line 8:

8 ‘‘(c) DETERMINATION OF UNLAWFUL ENEMY COM
9 BATANT STATUS DISPOSITIVE.—A finding, whether be
10 fore, on, or after the date of the enactment of the Military
11 Commissions Act of 2006, by a Combatant Status Review
12 Tribunal or another competent tribunal established under
13 the authority of the President or the Secretary of Defense
14 that a person is an unlawful enemy combatant is disposi
15 tive for purposes of jurisdiction for trial by military com
16 mission under this chapter.
17 ‘‘(d) PUNISHMENTS.—A military commission under
18 this chapter may, under such limitations as the Secretary
19 of Defense may prescribe, adjudge any punishment not
20 forbidden by this chapter, including the penalty of death
21 when authorized under this chapter or the law of war.

nothing in there about "alien" combatant...

 

[September11]

You're changing your tune. What is legal and what you think are two different things.

I am not changing my tune. You seem very miopic. It sounds like you believe a person should only do what they are required by law to do...
I believe a person should do what is right because it is right, not because he/she is required to by law or a signed document.

I am talking about constitutional rights and you are talking about mowing the lawn!!???

 

[STAGE 2]

nothing in there about "alien" combatant...

I don't understand what is with this recent fad of selective reading. Even if an american citizen is deemed an unlawful enemy combatant it doesn't matter. The military courts only have jurisdiction over aliens. Habeas can only be suspended for aliens. Its really that simple.

 

[STAGE 2]

I am not changing my tune. You seem very miopic. It sounds like you believe a person should only do what they are required by law to do...
I believe a person should do what is right because it is right, not because he/she is required to by law or a signed document.

I am talking about constitutional rights and you are talking about mowing the lawn!!???

Baloney. You were dumping on the US because we seemingly don't abide by the geneva convention. Why should we abide by something that we didn't agree to.

If you think we have a moral obligation to act a certian way thats fine. But you can't criticize someone for not complying with regulations they expressly did not agree to.

BTW, constitutional rights have nothing to do with the genva convention

 

[September11]

I believe that you see this a cut and dry because you believe the intent of the document is very straightforward. You also know, based on your legal interests, that a law can be made for one purpose and used for another. It certainly would not be the first time. Build the loopholes now, use them later. Purhaps you are being coy...

 

[September11]

BTW, constitutional rights have nothing to do with the genva convention

Go back to message 37 and 38 in this thread, I never said they have anything to do with one another but I did relate them to this topic.

Baloney. You were dumping on the US because we seemingly don't abide by the geneva convention. Why should we abide by something that we didn't agree to.

All this time you are making an argument and you don't even have your facts straight:

The Red Cross movement (later renamed the International Red Cross and Red Crescent Movement) spearheaded the first Geneva Convention in 1864. The purpose of this first treaty was to protect wounded soldiers and those caring for them during times of war. Twelve nations signed the initial document. Over the following decades, more countries agreed to the convention.
In 1882, U.S. President Chester Arthur signed the treaty, making the U.S. the 32nd nation to do so. The U.S. Senate ratified it shortly thereafter. At the same time, the American Association of the Red Cross was formed (many nations had begun to create their own Red Cross organizations in concert with the first Geneva Convention).
The second Geneva Convention in 1907 extended protection to wounded armed forces at sea and to shipwreck victims. The third convention in 1929 detailed the humane treatment of prisoners of war. The fourth convention in 1949 revised the previous conventions and addressed the rights of civilians in times of war. This convention is said to be the cornerstone of modern humanitarian law. It was amended in 1977 with two protocols that further protect civilians during wartime and address armed conflicts within a nation.
According to the Red Cross/Red Crescent, the U.S. has signed each of these international agreements. However, a signature does not bind a nation to the treaty unless the document has also been ratified by that nation (in the U.S., Congress ratifies such treaties). Generally, these treaties are open for signature for a limited time period after they're written. The U.S. ratified all the Geneva Conventions with the exception of the two protocols of 1977.

 

[Rich Lucibella]

Actually, it's quite possible that nothing has yet been settled regarding American Citizens and Military Tribunals.

The last Court Ruling upheld the power of the Executive to try American citizens by Military Tribunal. [Decision by the Second Circuit in the Padilla case]. Remember that was referred to SCOTUS which refused to hear it, since the Executive responded by transferring Padilla to the Justice Dept.

So, the highest court ruling, thus far, is from the Second Circuit. It upholds .gov's power to try American citizens in Military Tribunals. There is nothing in this new law that prevents the government from using that ruling in the next case of an American designated as "enemy combatant" in the undefined "War on Terror" for which the battleground is the entire surface of the earth.

It would then be up to SCOTUS to clarify, in light of the Second Circuit's decision and this new Military Tribunal act.

Anybody remember back, before the War on Terror, to the days of Waco and Ruby Ridge? The OKC Bombing? Back when religious "cults" and "armed militias" were becoming a growing "threat" to national security? Back when people were starting to look strange at anyone who showed an interest in evil "looking" riles? That trend only lost it's cache because we had 9-11. But, life's a long time. That "battle" is easily rejoined by a government in the habit of declaring "War" on nouns.
Stay tuned folks.
Rich

 

[gc70]

Rich, could you clarify which cases/opinions you refer to above.

In 03-2235 (12-18-2003), the Second Circuit remanded

to the District Court with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release Padilla from military custody within 30 days. The government can transfer Padilla to appropriate civilian authorities who can bring criminal charges against him. Also, if appropriate, Padilla can be held as a material witness in connection with grand jury proceedings. In any case, Padilla will be entitled to the constitutional protections extended to other citizens.

In 03-1027 (6-28-2004), the Supreme Court ruled that the Second Circuit lacked jurisdiction.

In 05-6396 (9-9-2005), the Fourth Circuit ruled that Padilla could be detained as an enemy combatant.

The issues in the Padilla cases appear to concern detention without trial and refer to Ex parte Quirin as allowing the detention of US citizens who are enemy combatants.

added: The Padilla and Hamdi cases appear to be the only ones in which US citizens are involved. In both sets of cases, the courts have been clear that a vital characteristic was that both of the men had been enemy combatants in a foreign war zone.

 

[Rich Lucibella]

GC-
In the first case you bring up from Oct '03 the issue of legality of holding Padilla under Military authority was specifically avoided by SCOTUS:

Held:
1. Because this Court answers the jurisdictional question in the negative, it does not reach the question whether the President has authority to detain Padilla militarily
[Emphasis Mine]

They ruled only that the Second Circuit did not have jurisdiction over the proper person to respond on the Government's behalf, the brigg Commander, Marr, since she was not in the Second's jurisdiction. They also ruled that the original case should properly be heard by the Federal Court in SC, where he was being held. (Start over).

The District Court in SC heard the case and found in favor of Padilla.
In June '05 SCOTUS refused the government's request to hear the case, directing it to the 4th Circuit in Richmond. (Proper progression)

In September '05 the 4th Circuit heard the Appeal and ruled that the government had the authority to hold Padilla, a US Citizen, for Military Tribunal. (I misspoke when I stated the Second Circuit in my previous post).

From this point it gets real interesting:
- Padilla appealed to SCOTUS and arguments from the government were due by Nov 28, '05.
- On Nov 22 the Govt indicted Padilla in Miami on charges of planned attacks on persons overseas and transferred him out of Military jurisdiction. Note that this does not preclude .gov from reinstituting the charges of being an "enemy combatant" in context of the [now unfiled] charges of plans for a dirty bomb attack on US soil.
- On Dec 21, 05, the same 4th Circuit that found in favor of the government, went a bit ballistic, citing the government for cherry picking its charges and arguments for holding Padilla as an enemy combatant, on the one hand, and charging him as a common criminal, on the other. In essence, they refused to allow the transfer from Military jurisdiction.
- Jan 4, 06: SCOTUS overrules the 4th Circuit and allows the transfer from military jurisdiction to the Federal Courts. Enemy combatant charges are not at issue in this round.


In fact, thru the Executive's artful slight of hand on charges and jurisdictions, SCOTUS has avoided hearing arguments as to whether a US Civilian Citizen may be tried in Military Tribunal. The last ruling on that score was the Sept '05, 4th Circuit, decision that such action is, in fact, legal. SCOTUS has never heard an appeal to that decision and it remains, today, the highest court ruling on the books.

Such is my understanding of the facts. Others here are far more knowledgeable on these issues and I stand ready for correction.
Rich

 

[Fremmer]

There is nothing in this new law that prevents the government from using that ruling in the next case of an American designated as "enemy combatant" in the undefined "War on Terror" for which the battleground is the entire surface of the earth.

An American citizen can be deemed an "enemy combatant", and rightfully so, because there is no Constitutional Right to take action (or to help others take action) against American troops. But, an "enemy combatant" who is an American citizen retains the right to seek a Writ of Habeus Corpus from a Federal Court.

That legislation is a result of a recent Supreme Court ruling. The Administration did exactly what the Court required: it obtain Congressional authorization in the form of legislation that defines the jurisdiction of Federal Courts, provides for the use of military tribunals, and protects the rights of United States citizens.

 

[Rich Lucibella]

But, an "enemy combatant" who is an American citizen retains the right to seek a Writ of Habeus Corpus from a Federal Court.

That legislation is a result of a recent Supreme Court ruling. The Administration did exactly what the Court required: it obtain Congressional authorization in the form of legislation that defines the jurisdiction of Federal Courts, provides for the use of military tribunals, and protects the rights of United States citizens.

This may or may not be the case, but it could be an Administration talking point in favor of the Military Tribunal Act.
I'm sorry, but it's not that clear, and saying it will not make it so. According to the highest Court ruling on this issue, thus far, Padilla (or any other US Citizen named as an Enemy Combatant in a War on [Insert Noun Here]) is subject to Military Tribunal. According to that ruling, .gov might continue to hold Padilla, without charge, indefinitely:
http://news.findlaw.com/hdocs/docs/padilla/padhnft90905opn4th.pdf

The new law does not invalidate that ruling. It only sets context in which that ruling might be challenged. Since Padilla is being tried for criminal charges in Miami, there is no challenge to the ruling that might be taken in the near future. Therefore, it stands.
Rich

 

[gc70]

Rich: thanks for the clarification. Your original reference to the 2C had me looking in the wrong place and I spent practically no time looking at the 4C; I guess I have to do some more reading.

All: There has been a lot of discussion about what is or is not stated in the Military Commissions Act of 2006. One thing that may be overlooked is that MCA2006 is part of Title 10, Chapter 47 (Uniform Code of Military Justice) of the United States Code. References to "this chapter" in MCA2006 also refer to language, definitions, and context in other parts of 10 USC 47.

 

[Gary Conner]

I'm sorry, but not according to the highest Court ruling on this issue, thus far. According to that ruling, .gov might continue to hold Padilla, without charge, indefinitely:

(Quoted from Rich's post above)

From my reading thus far of the act itself along with the President's announcement letter (see link) that his Administration has determined our enemies are "emboldened by conspiracy theories" the ambiguous language in this Act (which switches from "alien" to "any person" is a cause for everyone's concern.

When considering the President's announcement letter flat out states "conspiracy theories" (which is also ambiguously referred to in the Act) embolden our enemies, there is indeed a basis for the fear that a citizen could be prosecuted under this act for simply discussing a theory that Mr. Rumsfield or one of his "Commissioned Officers" doesn't agree with.

Considering it throws a retro-active loop at any action previous to the passing of the Act, it should be a cause for concern for anyone who even talked about the recent South Park television program.

Now many may feel that anyone who fits their definition of "Tin foil hat crowd" should be carted off and executed, they may want to remember what the Clintonistas pulled off back off in their glorious "Janet Reno Dance Party" days. Echelon. Ruby-Ridge, Waco, Elian Gonzales, et al. Many folks discussed the Administration's actions at the water coolers at work. Wonder what Janet et al would have done with your posts and e-mails back then if they had this little writ?

Even the writers of South Park (if they read the act and the letter) would have basis for concern, due to the show they did a couple of weeks ago. In fact, it fits the very description.

No American citizen should be subject to being seized by the military, held indefinitely without the benefit of counsel of his own choosing, and denied his Constitutional rights for the act of questioning an Administration's involvement in thing such as the Gulf of Tonkin incident (I believe even some textbooks books in our Nation's High Schools teach that some believed it a staged incident to get us heavily involved in Viet Nam.

References are often made to FDR, and Pearl Harbor, and giving contaminated blankets to the Plains Indians in a plan to spread disease. Now it is preposterous in my opinion that the Army did so, due to the fact it would have infected the plotters. However, many believe it, and some of our textbooks posit such theories. While we may not like it, I don't think the book publisher should be whisked off to Gitmo and never allowed his Constitutional protections for a fair trial, in public, by a jury of his peers.

So for all my fellow doubters of Clintonian honesty and integrity, imagine how this Act could affect your being able to discuss issues such as:
Vince Foster, Whitewater, Loral, Ron Brown, Johnny Wong, the Lincoln Bedroom Lend-Lease program of the late 1990's, etc. etc., when the keys are turned back over to Bill and his wife?

Article VI, Clause II of our Constitution is our only protection by claiming the Military Commissions Act is not "in pursuance of" the Constitution (at least until the removal of such language as "any person" takes place) but Unfortunately under the act it appears if you were seized for "promoting a conspiracy theory" you don't have a right to a lawyer to enter that plea for you, unless the head of the Military Commission seizing you, allows it.

Our entire Congress let us down. And now, 17 days till election time they are wondering why their "Base" is hacked off?

 

[Rich Lucibella]

Rich: thanks for the clarification. Your original reference to the 2C had me looking in the wrong place and I spent practically no time looking at the 4C; I guess I have to do some more reading.

Yah, well you were more on track with that than I, but I think our point remains. Also, as you point out, the less spectacular Hamdi case provides some direction. Hamdi was a US born citizen found on the battlefield in Afghanistan. There is no question of his activities.

SCOTUS heard argument as to his indefinite military interment and rejected the government's position, which gives me some hope:
http://wid.ap.org/scotus/pdf/03-6696P.ZO.pdf

Sandra Day O'Conner wrote the majority opinion on June 28th 2004. This was, however, a narrowly split decision with the majority consisting of Renquist, O'Conner, Breyer.

Today, Renquist is replaced by Roberts and O'Conner by Alito. Whether Stare Decisis would sway the ostensible leanings of the two newest justices in future challenge is unclear.

Of great interest to me, if anybody can clear it up, is that I'm obviously missing a substantial issue in Hamdi that caused it not to be relevant to the Fourth Circuit's ruling in Padilla more than a year later.

Anybody?
Rich