Antipitas said:
So what do you do with them, since you are not calling them, "prisoners of war?" Do you simply execute them as spies? Well, no. That requires a specific declaration of war on a specific enemy (read: Country).
The problem with that is that the mechanism for the US “declaring” a war has been effectively removed from international legal operation by post-war international law. They need not be shot as spies, but may be summarily executed in the field.
MedBow said:
Zukiphile:
And what is the expertise of the SCOTUS to determine whether public safety may require it? I assure you there is no L-Skule course on identification of Rebellion, Invasion and threats to public safety.
This makes no sense.
Of course the Supreme Court determines the meaning and application of Article I, Section 9, Clause 2. (Which clause, by the way, you are misquoting.)
That power cannot be legislated away.
Since I am not quoting it, I am not misquoting it. No one disputes that the SCOTUS should determine controversies involving art I sec. 9 clause 2 according to the COTUS and related precedent. The question is whether they did that. Hope that makes sense to you.
Scalia in his dissent said:
“The very foundation of the power of the federal courts todeclare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them.” United States v. Raines, 362 U. S. 17, 20–21 (1960) (citing Marbury v. Madison, 1 Cranch 137 (1803); emphasis added). Our power “to say what the law is” is circumscribed by the limits of our statutorily andconstitutionally conferred jurisdiction. See Lujan v. De¬fenders of Wildlife, 504 U. S. 555, 573–578 (1992). And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courtsto decide petitioners’ claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.
radshop said:
Zukiphile - a couple quick points, then I'm done with this one.
If you intend to depart, that’s fine. If you want to return to address any of these points, please do.
radshop said:
Respectfully, every question you are asking I have already answered or explained why it's not relevant.
If you had, I would not have posed them. I don't think you would argue that you've provided the requested precedent for your position of universal application of HC.
radshop said:
Under any common sense understanding of habeus corpus, to what sovereign nation should a detainee submit a writ of habeus corpus?
This begs the question of whether an specific individual has the right. If your premise and conclusion are precisely the same, your argument is only a tautology.
I believe you misunderstand habeas corpus and its place in the COTUS. HC is a common law right, i.e. one defined by prior case law, none of which expands the right to aliens abroad. At English common law, the writ of habeas corpus did not extend beyond the sovereign territory of the Crown. The COTUS probibits or defines how THAT right can be suspended. In codifying the common law limits of that right, Congress does not suspend it.
radshop said:
You keep asking for precedent.
And you’ve yet to provide a single case. That would make your position, well,…unprecedented.
radshop said:
Let me ask you - what is the precedent for the US to hold detainees as enemy combatants for years and openly deny them habeus corpus. (Eisentrager has already been dealt with in this thread.) Prisoners of war are different - they are not detainees classified as enemy combatants and have the rights accorded under the Geneva Convention.
Let’s not be so quick to conclude that Eisentrager “has already been dealth with”. That an individual has GC rights does not bear on whether he has HC rights or is within the jurisdiction of a US court.
You want precedent?
Boumedeine v. Bush (2007) SCOTUS should not review the requested writ unless petitioner has exhausted his remedies.
Hamdi v. Rumsfeld (2004) due process to be afforded to US citizens, but not necessarily in the form of a HC writ. Nothing prevents exec and Congress from limiting HC as set forth in the DTA.
Verdugo-Urquidez, 494 US at 271, aliens abroad have no HC access.
“[t]he distinction between citizens and aliens follows from the undoubted proposition that the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined,
limitless class of noncitizens who are beyond our territory.” Id., at 275 (KENNEDY, J., concurring).
Cowle, at 856, 97 Eng. Rep., at 599–600. “[t]o foreign dominions, which belong to a prince who succeeds to the throne of England, this Courthas no power to send any writ of any kind. We cannot send a habeas corpus to Scotland . . . .”
radshop said:
Your other arguments about limits and the voting analogy don't make sense. Of course the habeus corpus clause of COTUS has limits - it's limited to people detained by the US government.
As ample precedent shows, that is not its only limitation.