"Land of the Free" R.I.P.

[REDWAVE]

The death knell of freedom has now sounded (if it hadn't already). The ultra right-wing Fourth Circuit, located in Richmond, Virginia (headquarters of the Confederacy) has ruled that U.S. citizens designated as "enemy combatants" may be detained without the slightest semblance of due process-- no charges, no trial, no access to a lawyer, nada. Bush's police state was at first limited to immigrants, an easy target, especially after 911. Now no one is safe. The U.S. is now officially a police state.

This abominable ruling overturns the trial court's ruling in the case. It is subject to review by the U.S. Supreme Court of Injustice-- the same gang of reactionary bigots who shut down democracy and handed the White House to Bush in opposition to the will of the people. Don't count on them to stand up for freedom-- quite the contrary!

The story's on the AP wire, the front page of the NYT, and no doubt elsewhere.

It's a sad, sad day for democracy and human rights.

 

[Texan]

big surprise, REDWAVE doesn't like what the U.S. government is doing again. Sorry, REDWAVE, but you'll have to wait for another day to have all your little "enemy combantants" over for dinner.

 

[Vinny]

Who gives a shit about enemy combatants. But on a lighter note, how are you feeling today?

 

[mbb308]

Yeah, I heard a bit of that on NPR this afternoon.

The Fourth Circuit is noted for a number of things, including being the venue for the Starr witch-hunt of Julie Hiatt Steele.

The trick appears to be the determination of what an "enemy combatant" is. Either way, the unlucky prisoner will have to get a court date to find out if s/he is one.

I'll have to read up on this one further.

 

[REDWAVE]

Vinny

Fine, thank you, and you? But I think you're missing the point here. The government can identify anyone it chooses as an "enemy combatant," and then detain them indefinitely, with no legal recourse on their part. Unless they're given a fair trial, how can we know they're really "enemy combatants"? (Hint: we can't.) Basic concepts of Anglo-American jurisprudence, such as due process, the right to a fair trial, "presumed innocent until proven guilty", and the ancient writ of habeas corpus, have been trampled upon and destroyed by Bush & Co.

Why, that's downright unpatriotic of them, don't ya think?

 

[Vinny]

I do agree with you on what and who should be defined as an enemy combatant. But once they are "considered" one I think they should have no rights and treated humanly

 

[Ham Murabi]

Redrave is right, as usual. As soon as the ruling was announced, earth moving heavy equipment rolled into the desert near Las Vegas and started clearing away brush and flattening a large acreage. I can see it from my window.
Today they are stringing razor wire. The area in question appears to cover about 15 to 20 acres. Guard towers are being constructed, and they are bringing in electricity, no doubt for the spotlights they can use at night to help them shoot "combatants" who will try to escape.
It's clear none of us are safe. I just hope they don't take Redrave first. He's the lone voice crying out in the wilderness, our last hope for freedom.

 

[REDWAVE]

Unintended truth

Redrave is . . . the lone voice crying out in the wilderness, our last hope for freedom.

Congratulations, Ham. For once you said something which was true, even though you obviously were being sarcastic.

 

[Problem Child]

Redrave, do you have a link to a news story on this?

And, I mean not The Socialist World Workers Daily or one of those other commie rags you're always pushing.

I'd seriously like to read about it if you have a mainstream source.

 

[Oliver Clozoff]

It doesn't go as far as Red would have you believe, PC.

Surprised?

It was case ruling on an American fighting against Americans overseas.

"Judicial review does not disappear during wartime, but the review of battlefield captures in overseas conflicts is a highly deferential one'' to the government, the three-judge panel wrote. "

http://www.news-journal.com/news/co...l/Washington/AP.V0847.AP-Afghan-American.html

 

[Ham Murabi]

Re: Unintended truth

Congratulations, Ham. For once you said something which was true, even though you obviously were being sarcastic.

Sarcastic? After the warning you issued? How could this not be true?
Or were you the one who was exxagerating?

 

[Oliver Clozoff]

Weep for your freedom, Ham.

You no longer have the right to take arms against your country in a foreign land.

What is this country coming to???

 

[Problem Child]

Thanks Ollie.

That's why I wanted a link. Whenever Red or busybody conveniently forget to link to their source you can bet they're leaving out some small, yet important fact.

 

[REDWAVE]

Distinction without a difference

"Highly deferential" judicial review is essentially equivalent to no effective judicial review at all. It's never been proven in a court of law that Hamdi took up arms against the U.S., and until it is, he's supposed to be presumed innocent.

Interesting how some people applaud their own enslavement.

 

[Problem Child]

Re: Distinction without a difference

"Highly deferential" judicial review is essentially equivalent to no effective judicial review at all. It's never been proven in a court of law that Hamdi took up arms against the U.S., and until it is, he's supposed to be presumed innocent.

Interesting how some people applaud their own enslavement.

Thanks RED, but I'd rather defer to an actual lawyer on this one if you don't mind.

 

[teddybear4play]

"Highly deferential" judicial review is essentially equivalent to no effective judicial review at all. It's never been proven in a court of law that Hamdi took up arms against the U.S., and until it is, he's supposed to be presumed innocent.

Interesting how some people applaud their own enslavement.

As opposed to you. If the September 11 attacks were a stabbing, you'd have the U.S. apologize for bleeding on the knife.

TB4p

 

[mbb308]

Re: Distinction without a difference

It's never been proven in a court of law , and until it is, he's supposed to be presumed innocent..

I would have sworn that this was the basis for our system of criminal justice, and I find it obnoxious that so many will accept an accusation as proof positive. Hell, the courts make mistakes, too.

 

[Ham Murabi]

Weep for your freedom, Ham.

You no longer have the right to take arms against your country in a foreign land.

What is this country coming to???

And isn't it amazing, as well, that Redrave can offer thread after thread regarding our lost freedom, and continue to rail against the government, and no one has come knocking on his door to take him away?

 

[REDWAVE]

Well, not yet, anyway.

So far I've managed to elude them.

 

[Oliver Clozoff]

Applauding my own enslavement? I'm not a lawyer, but I'm fairly certain that the same due process guarantees have never been afforded to combatants in military action as to domestic non-combatants.

And the fact that he hasn't been proven a combatant is irrelevant - the point in question is whether or not the military has the legal authority to abrogate what would be, under civil domestic circumstances, a number of basic civil liberties on the basis of nothing but suspicion.

One can argue whether this is good or bad, but your idea that this ruling could be used to trump up domestic terrorism charges against ordinary folks here at home seems pretty exaggerated to me, Red.

And you say you don't manufacture "crises".

 

[teddybear4play]

Well, not yet, anyway.

So far I've managed to elude them.

Yeah, 'cause you're like so high up on their list, like Osama bin Laden and shit, that you gotta keep moving in order to avoid their dragnet.

TB4p

 

[Pagliacci]

Why are you so worried Redwave ?

If you're a combatant and get nabbed then you're protected by the Geneva and Hague conventions,both of wish the USA are signatories.

Read up on them and you'll see that it wouldn't be that bad to become a POW.

As shown by the US and their allies in the last desert action the Iraqis had it better after giving up then they've ever had it under Saddam.
It is when nations either aren't signatories or doesn't give a shit that things happen.

Yet again as shown by Saddams treatment of special forces soldiers and Air Force pilots of many nations during the same conflict.

 

[REDWAVE]

Ha!

The problem is Bush isn't honoring the Geneva Convention either. Hundreds, if not thousands, of people are being held, interrogated and tortured at Camp X-Ray in Guantanamo Bay and elsewhere.

Comparing Bush to Hitler is probably unfair-- to Hitler!

 

[Gil_Favor]

Re: Ha!

The problem is Bush isn't honoring the Geneva Convention either. Hundreds, if not thousands, of people are being held, interrogated and tortured at Camp X-Ray in Guantanamo Bay and elsewhere.

Comparing Bush to Hitler is probably unfair-- to Hitler!

How does Bush compare to some of your personal heros? Stalin, Mao, PolPot

 

[busybody..]

The REAL DEAL of todays decision, READ IT!

SOME KEY HOLDINGS OF THE HAMDI DECISION:

When a person is captured "in a zone of active combat in a foreign theater of conflict," the executive branch may detain him as an enemy combatant, without any further judicial review except to determine that the executive branch has indeed asserted that the person is an enemy combatant. "Because it is undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict, we hold that the submitted declaration [broadly outlining the executive branch's findings and conclusions about Hamdi] is a sufficient basis upon which to conclude that the Commander in Chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the United States Constitution. No further factual inquiry is necessary or proper, and we remand the case with directions to dismiss the petition."


The court did not decide what would happen if the detainee was an American citizen captured on American soil. "We have no occasion . . . to address the designation as an enemy combatant of an American citizen captured on American soil or the role that counsel might play in such a proceeding. We shall, in fact, go no further in this case than the specific context before us -- that of the undisputed detention of a citizen during a combat operation undertaken in a foreign country and a determination by the executive that the citizen was allied with enemy forces."


The court rejected the argument that 18 U.S.C. § 4001(a), "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress," bars the detention.
Even if Hamdi were right that § 4001(a) requires Congressional authorization of his detention, Congress has, in the wake of the September 11 terrorist attacks, authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” or “harbored such organizations or persons.” Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001). . . . [C]apturing and detaining enemy combatants is an inherent part of warfare; the “necessary and appropriate force” referenced in the congressional resolution necessarily includes the capture and detention of any and all hostile forces arrayed against our troops. Furthermore, Congress has specifically authorized the expenditure of funds for “the maintenance, pay, and allowances of prisoners of war [and] other persons in the custody of the [military] whose status is determined . . . to be similar to prisoners of war.” 10 U.S.C. § 956(5) (2002). It is difficult if not impossible to understand how Congress could make appropriations
for the detention of persons “similar to prisoners of war” without also authorizing their detention in the first instance.
The court rejected Hamdi's argument that "Article 5 of the Geneva Convention applies to Hamdi’s case and requires an initial formal determination of his status as an enemy belligerent 'by a competent tribunal.'"
This argument falters also because the Geneva Convention is not self-executing [i.e., doesn't by itself provide a private right of action absent implementing legislation]. . . . [W]hat discussion there is of enforcement [in the Convention] focuses entirely on the vindication by diplomatic means of treaty rights inhering in sovereign nations. If two warring parties disagree about what the Convention requires of them, Article 11 instructs them to arrange a “meeting of their representatives” with the aid of diplomats from other countries, “with a view to settling the disagreement.” Similarly, Article 132 states that "any alleged violation of the Convention” is to be resolved by a joint transnational effort “in a manner to be decided between the interested Parties.” We therefore agree with other courts of appeals that the language in the Geneva Convention is not “self-executing” and does not “create private rights of action in the domestic courts of the signatory countries.” . . . This is not to say, of course, that the Geneva Convention is meaningless. Rather, its values are vindicated by diplomatic means and reciprocity, as specifically contemplated by Article 132. There is a powerful and self-regulating national interest in observing the strictures of the Convention, because prisoners are taken by both sides of any conflict. This is the very essence of reciprocity and, as the drafters of the Convention apparently decided, the most appropriate basis for ensuring compliance. . . .

Even if Article 5 were somehow self-executing, there are questions about how it would apply to Hamdi’s case. In particular, it is anything but clear that the “competent tribunal” which would determine Hamdi’s status would be an Article III court. Every country has different tribunals, and there is no indication that the Geneva Convention was intended to impose a single adjudicatory paradigm upon its signatories. Moreover, Hamdi’s argument begs the question of what kind of status determination is necessary under Article 5 and how extensive it should be. Hamdi and the amici make much of the distinction between lawful and unlawful combatants, noting correctly that lawful combatants are not subject to punishment for their participation in a conflict. But for the purposes of this case, it is a distinction without a difference, since the option to detain until the cessation of hostilities belongs to the executive in either case. . . . [Unlawful combatants are] subject to mere detention in precisely the same way that lawful prisoners of war are. The fact that Hamdi might be an unlawful combatant in no way means that the executive is required to inflict every consequence of that status on him. The Geneva Convention certainly does not require such treatment.

The court acknowledged that its conclusion might leave some people detained who shouldn't be detained.

The murkiness and chaos that attend armed conflict mean military actions are hardly immune to mistake. Yet these characteristics of warfare have been with us through the centuries and have never been thought sufficient to justify active judicial supervision of combat operations overseas. To inquire, for example [as the district court had], whether Hamdi actually fired his weapon is to demand a clarity from battle that often is not there. The district court, after reviewing the Mobbs affidavit, did not “have any doubts [Hamdi] had a firearm [or] any doubts he went to Afghanistan to be with the Taliban.” To delve further into Hamdi’s status and capture would require us to step so far out of our role as judges that we would abandon the distinctive deference that animates this area of law.
More broadly,
Article III courts are ill-positioned to police the military’s distinction between those in the arena of combat who should be detained and those who should not. Any evaluation of the accuracy of the executive branch’s determination that a person is an enemy combatant, for example, would require courts to consider, first, what activities the detainee was engaged in during the period leading up to his seizure and, second, whether those activities rendered him a combatant or not. The first question is factual and, were we called upon to delve into it, would likely entail substantial efforts to acquire evidence from distant battle zones. The second question may require fine judgments about whether a particular activity is linked to the war efforts of a hostile power -- judgments the executive branch is most competent to make.
The court held that these rules apply to detainees who, like Hamdi, are U.S. citizens, as well as to foreign citizens. "[T]he fact that [Hamdi] is a citizen does not affect the legality of his detention as an enemy combatant."


The court rejected Hamdi's claim that the detention is no longer lawful because the hostilities have ended. "Whether the timing of a cessation of hostilities is justiciable [i.e., subject to judicial review] is far from clear. See Ludecke, 335 U.S. at 169 (“Whether and when it would be open to this Court to find that a war though merely formally kept alive had in fact ended, is a question too fraught with gravity even to be adequately formulated when not compelled.”). The executive branch is also in the best position to appraise the status of a conflict, and the cessation of hostilities would seem no less a matter of political competence than the initiation of them. . . . In any case, we need not reach this issue here. The government notes that American troops are still on the ground in Afghanistan, dismantling the terrorist infrastructure in the very country where Hamdi was captured and engaging in reconstruction efforts which may prove dangerous in their own right. Because under the most circumscribed definition of conflict hostilities have not yet reached their end, this argument is without merit.


Finally, the court concluded with this:
It is important to emphasize that we are not placing our imprimatur upon a new day of executive detentions. We earlier rejected the summary embrace of “a sweeping proposition -- namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so.” Hamdi II, 296 F.3d at 283. But, Hamdi is not “any American citizen alleged to be an enemy combatant” by the government; he is an American citizen captured and detained by American allied forces in a foreign theater of war during active hostilities and determined by the United States military to have been indeed allied with enemy forces.

Cases such as Hamdi’s raise serious questions which the courts will continue to treat as such. The nation has fought since its founding for liberty without which security rings hollow and for security without which liberty cannot thrive. The judiciary was meant to respect the delicacy of the balance, and we have endeavored to do so.


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