Winston, Why Are You So Angry?

[Winstonm]

Regardless of what this may initially appear, it is not another thread simply about torture, terrorism, or politics - it is deeper than that and goes to the heart of the changes of which I believe few Americans have taken the time to understand or acknowledge - changes that alter the very fabric of the republic we used to call the United States of America.

 

From an article by Jacob Hornberger:

 

In fact, to belabor the obvious, the U.S. Justice Department itself has implicitly acknowledged that terrorism is a crime, for it is the Justice Department that has secured grand-jury indictments and prosecuted many defendants for the criminal offense of terrorism.

 

I repeat: terrorism is a crime. No one can deny that, especially given the federal proceedings involving Padilla, Moussaoui, and many others who have been tried for terrorism.

 

So why is there a class of people who are accused of terrorism who are being treated differently than Padilla, Moussaoui, and others who have been prosecuted for terrorism in U.S. district courts? That is, under what justification are some accused terrorists provided one route — i.e., the federal court route — for determining their guilt and their punishment while others are subjected to another route — i.e., the military-commission route?

 

The answer to that question involves an examination of one of the cleverest and most devious processes ever devised by the lovers of power, one that has enabled U.S. officials to circumvent the procedural protections outlined in the Bill of Rights, the very thing that the Framers and our American ancestors tried to prevent.

 

Let’s first refresh our recollections as to the purpose of the Constitution and the Bill of Rights. The Constitution called into existence the federal government. But our American ancestors understood that that federal government might well prove to be the greatest danger to their freedom and well-being. That’s in fact why so many of our American ancestors opposed even establishing a federal government.

 

Thus, the Framers used the Constitution to ensure that the federal government they were establishing would always remain weak and divided. That was the idea behind setting forth enumerated powers and division of powers.

 

That wasn’t good enough for the American people, however. They still didn’t like the idea of establishing a federal government, but they went along with the deal on one condition: that immediately after ratification, the Constitution would be amended with a Bill of Rights, which is what happened.

 

The Bill of Rights contains restrictions on federal power relating to the arrest, prosecution, and punishment of people accused of violating federal criminal laws. These include provisions relating to search and seizure, indictment, a person’s right to remain silent, the right to an attorney, the right to trial by jury, the right to confront witnesses, and the right to be free of cruel and unusual punishments.

 

Why did our American ancestors insist on the inclusion of those express guarantees in criminal cases? Because they believed that without them, the federal government would simply arrest people, especially people they didn’t like, and inflict harm on them. To ensure that that would not happen, our American ancestors declared, “We’re reluctantly going to permit a federal government to come into existence despite our misgivings. But here are the rules under which you people must operate. If you decide that you want to incarcerate and punish someone, you are required to follow these procedural principles.”

 

Ever since the inception of the United States, by and large the quest of people who have been attracted to federal power has been to break free of constitutional constraints, oftentimes with the best of intentions and the greatest zeal. What has prevented them from doing so has been a citizenry that has treasured its freedom and has been knowledgeable about the history and nature of the Constitution as well as a federal judiciary determined to enforce the Bill of Rights.

 

The terrorist attacks on 9/11, however, provided the opportunity that the lovers of power had long been waiting for — the opportunity to arrest and punish people, including Americans, without the constraints of the Constitution and the Bill of Rights.

 

How did they accomplish that monumental feat without even the semblance of a constitutional amendment? By simply announcing that a criminal offense — namely, terrorism — would henceforth be treated as an act of war. Since this was war, the argument went, federal officials would no longer be required to comply with procedural requirements outlined in the Bill of Rights when arresting and punishing people, including Americans.

 

How clever and devious is that? It will undoubtedly go down in U.S. history as the most brilliant — and perhaps the most evil — end-around of the Constitution ever. While there have been, of course, innumerable violations of constitutional provisions in U.S. history, what was revolutionary about the post–9/11 power was that it was intended to a become permanent feature of American life, given the perpetual nature of the war on terrorism.

 

And, again, what is amazing is how this power grab was accomplished: through the simple act of declaring that a certain federal criminal offense — terrorism — was now being considered by federal officials as an act of war.

 

Yet, it’s not as though they converted terrorism from a crime into an act of war. As previously noted, terrorism is a federal criminal offense. It was before 9/11 and it continued to be after 9/11. Again, that’s why both Americans and foreigners (e.g., Padilla and Moussaoui) have been prosecuted for terrorism in U.S. district court.

 

Therefore, after 9/11 U.S. officials did not cancel terrorism as a federal crime. Instead, they simply declared that it could also be considered as an act of war, at their option. Of course, the power associated with that option gave them almost complete control over the American people, an omnipotence that the Bill of Rights was intended to prevent.

 

If U.S. officials opted to treat a person as a criminal defendant, they would have to accord him the protections of the Bill of Rights. But if they opted to treat a person as a combatant, they could simply ignore the Bill of Rights. Their omnipotence lies in the power to exercise the option.

 

Let’s keep in mind the reason that the Pentagon established its detention facility in Cuba rather than the United States. It was not to protect the American people from possible prison escapes. After all, convicted terrorists are held in maximum-security prisons around the country and no one loses any sleep over their possible escape. Moreover, in World War II German prisoners of war were imprisoned here in the United States.

 

The reason that the Pentagon went to Cuba to establish its prison facility was precisely to avoid the application of the Constitution and the Bill of Rights and any federal-court interference with its operations. At Gitmo, the Pentagon was going to show America and the world what could be accomplished for law and order in a society without a Constitution and a Bill of Rights — a society in which military power is sovereign and supreme.

 

One of the fascinating aspects of Gitmo is that the Pentagon was determined to set up not only what it considered an ideal prison facility — one that didn’t coddle criminals — but also a model judicial system, one that would prove superior to the federal court system that is required to accord people constitutional rights.

 

In fact, one big difference between the Guantanamo prison and World War II prisons immediately became evident: The prisoners at Gitmo were not treated as prisoners of war but rather as criminal defendants — yes, criminal defendants, charged with the crime of terrorism! The only difference — but a big difference — was that these criminal defendants would be tried under the Pentagon’s new judicial system rather than under the judicial system the Pentagon scorned — the one established by the Framers.

 

So, the fact of the matter is that when it comes to terrorism cases, the United States is now operating under two competing, dual-track federal judicial systems. One system for prosecuting suspected terrorists is being run by the Pentagon at Gitmo. The other system is being run by the federal courts here in the United States under the principles of the Constitution. The government, not the defendant, gets to decide which system the defendant will be tried under.

 

What are the attributes of the Pentagon’s system? In the Pentagon’s system, the accused is presumed guilty (unlike the constitutional system, where the person is presumed innocent), the accused can be tortured into incriminating himself, the accused can be punished before determination of guilt, evidence acquired by torture can be used to convict the defendant, hearsay evidence can also be used, the defendant is denied the right to confront witnesses against him, there is no right of trial by jury, and kangaroo military tribunals are employed.

 

At Gitmo the Pentagon has established a judicial system that is the dream of those who believe that the procedural protections in the Bill of Rights are nothing more than constitutional “technicalities” that let guilty people go free. No more reading people their rights. No more Miranda warnings. No more coddling of criminals. No more exclusionary rule. Defense attorneys under tight control. Secret proceedings.

 

In other words, The system that law-and-order types have been dreaming of for decades — one freed of the due-process guarantees outlined in the Bill of Rights — has arrived, and it is at Gitmo.

 

The English jurist William Blackstone (1723-1780) enunciated the underlying principle of English and American criminal jurisprudence: “Better that ten guilty persons escape than that one innocent suffer.”

 

The Pentagon’s system is different. It is oriented toward one goal: the punishment of people it has determined are terrorists. The Pentagon’s system operates under the dictum “Better that ten innocent persons suffer than that one guilty person escape.”

 

Every American should realize what 9/11 enabled federal officials to accomplish — it gave them the ability to do things to both Americans and foreigners that our ancestors feared they would in the absence of a Constitution and a Bill of Rights, the ability to take people into custody and punish them, without having to concern themselves with procedural due process. By wielding the option to treat people accused of terrorism as either criminal defendants or as combatants — an option which, by the way, violates the principles of equal treatment under law and the rule of law — the federal government and its military have upended their relationship with the citizenry, enabling the former to gain supremacy and control over the latter.

 

Unless and until we reestablish the Bill of Rights as they were before 9-11 then we can no longer claim to reside in the same country as before - the country that the framers envisioned where the rule of law superceded the law of man is not the country in which we now live.

 

And that pisses me off.

[kenrexford]

Y'all are missing something.

 

It's a small word, but with a lot of power.

 

The word "people" comes up several times in this article, but it is used without understanding the importance of the word "the" before "people" in the Bill of Rights.

 

The first amendment uses that word. It describes the right of THE people to assemble.

 

The second amendment also uses that word, again, the right of THE people to bear arms.

 

The fourth amendment uses that word, in describing the right of THE people to be secure in their persons and property.

 

The ninth and tenth amendments also use the term THE people.

 

So, most of the bill of rights pertains to one specific group of "people" generally, THE people of the United States, meaning citizens.

 

However, when you get to the fifth and sixth amendments, dealing with due process rights as accused people, the term changes to "persons," no longer "THE people." Hence, the rules should extend to all people, whether citizens or non-citizens. So far, so good.

 

However, both of these deal with criminal prosecutions. Criminal prosecutions start with indictments. However, that very start is not necessary under certain circumstances. Namely, "except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger."

 

Hence, the very Bill of Rights itself carried an exception.

 

Note, however, that this exception bypasses normal due process in dealing with forcing someone to asnwer for a CRIME. Hence, the framers themselves knew they were dealing with an issue that could at one time be a crime but at another time be a crime of war, or a crime done during a time of "public danger."

 

The nature of the act as criminal does not change. Rather, the very Constitution we ratified had that exception built in.

 

You cannot claim allegiance to the Constitution legitimately if you reject terms within that Constitution with which you disagree. Maybe the exception is and was a bad idea -- that's subject to debate and amendment. But, it is there.

 

Maybe you don't agree that terrorism is an "act of war." Well, all you need for the Bill of Rights to not cover the "calling to answer for a CRIME" is the much lesser standard of "public danger."

 

Now, this is the point where many reasonable people might actually have a point, I would hope that you would agree. The average idiot robbing banks from time to time is hardly a cause to decide that we have a generalize "public danger." However, dive-bombing airplanes, anthrax threats, and generalized world-wide attacks on the civilian populations of our friends and allies, coupled with direct, televised threats of widespread destruction and targeted civilian attacks would qualify. Remember, there were no terrorist attacks like these in the late 1700's.

 

So, if YOU want to be honest about the real debate, then debate the real issue. I'd suggest that the real issue is simple:

 

Is the stated purpose of Al Qaeda and the experienced history of that organization sufficient to meet the definition of a "public danger" as described in the Bill of Rights"?

 

End up on what side you want, but please don't use B.S. to defend your point.

[Lobowolf]

Regardless of what this may initially appear, it is not another thread simply about torture, terrorism, or politics - it is deeper than that and goes to the heart of the changes of which I believe few Americans have taken the time to understand or acknowledge - changes that alter the very fabric of the republic we used to call the United States of America.

 

From an article by Jacob Hornberger:

 

In fact, to belabor the obvious, the U.S. Justice Department itself has implicitly acknowledged that terrorism is a crime, for it is the Justice Department that has secured grand-jury indictments and prosecuted many defendants for the criminal offense of terrorism.

 

I repeat: terrorism is a crime. No one can deny that, especially given the federal proceedings involving Padilla, Moussaoui, and many others who have been tried for terrorism.

 

So why is there a class of people who are accused of terrorism who are being treated differently than Padilla, Moussaoui, and others who have been prosecuted for terrorism in U.S. district courts? That is, under what justification are some accused terrorists provided one route — i.e., the federal court route — for determining their guilt and their punishment while others are subjected to another route — i.e., the military-commission route?

 

The answer to that question involves an examination of one of the cleverest and most devious processes ever devised by the lovers of power, one that has enabled U.S. officials to circumvent the procedural protections outlined in the Bill of Rights, the very thing that the Framers and our American ancestors tried to prevent.

 

Let’s first refresh our recollections as to the purpose of the Constitution and the Bill of Rights. The Constitution called into existence the federal government. But our American ancestors understood that that federal government might well prove to be the greatest danger to their freedom and well-being. That’s in fact why so many of our American ancestors opposed even establishing a federal government.

 

Thus, the Framers used the Constitution to ensure that the federal government they were establishing would always remain weak and divided. That was the idea behind setting forth enumerated powers and division of powers.

 

That wasn’t good enough for the American people, however. They still didn’t like the idea of establishing a federal government, but they went along with the deal on one condition: that immediately after ratification, the Constitution would be amended with a Bill of Rights, which is what happened.

 

The Bill of Rights contains restrictions on federal power relating to the arrest, prosecution, and punishment of people accused of violating federal criminal laws. These include provisions relating to search and seizure, indictment, a person’s right to remain silent, the right to an attorney, the right to trial by jury, the right to confront witnesses, and the right to be free of cruel and unusual punishments.

 

Why did our American ancestors insist on the inclusion of those express guarantees in criminal cases? Because they believed that without them, the federal government would simply arrest people, especially people they didn’t like, and inflict harm on them. To ensure that that would not happen, our American ancestors declared, “We’re reluctantly going to permit a federal government to come into existence despite our misgivings. But here are the rules under which you people must operate. If you decide that you want to incarcerate and punish someone, you are required to follow these procedural principles.”

 

Ever since the inception of the United States, by and large the quest of people who have been attracted to federal power has been to break free of constitutional constraints, oftentimes with the best of intentions and the greatest zeal. What has prevented them from doing so has been a citizenry that has treasured its freedom and has been knowledgeable about the history and nature of the Constitution as well as a federal judiciary determined to enforce the Bill of Rights.

 

The terrorist attacks on 9/11, however, provided the opportunity that the lovers of power had long been waiting for — the opportunity to arrest and punish people, including Americans, without the constraints of the Constitution and the Bill of Rights.

 

How did they accomplish that monumental feat without even the semblance of a constitutional amendment? By simply announcing that a criminal offense — namely, terrorism — would henceforth be treated as an act of war. Since this was war, the argument went, federal officials would no longer be required to comply with procedural requirements outlined in the Bill of Rights when arresting and punishing people, including Americans.

 

How clever and devious is that? It will undoubtedly go down in U.S. history as the most brilliant — and perhaps the most evil — end-around of the Constitution ever. While there have been, of course, innumerable violations of constitutional provisions in U.S. history, what was revolutionary about the post–9/11 power was that it was intended to a become permanent feature of American life, given the perpetual nature of the war on terrorism.

 

And, again, what is amazing is how this power grab was accomplished: through the simple act of declaring that a certain federal criminal offense — terrorism — was now being considered by federal officials as an act of war.

 

Yet, it’s not as though they converted terrorism from a crime into an act of war. As previously noted, terrorism is a federal criminal offense. It was before 9/11 and it continued to be after 9/11. Again, that’s why both Americans and foreigners (e.g., Padilla and Moussaoui) have been prosecuted for terrorism in U.S. district court.

 

Therefore, after 9/11 U.S. officials did not cancel terrorism as a federal crime. Instead, they simply declared that it could also be considered as an act of war, at their option. Of course, the power associated with that option gave them almost complete control over the American people, an omnipotence that the Bill of Rights was intended to prevent.

 

If U.S. officials opted to treat a person as a criminal defendant, they would have to accord him the protections of the Bill of Rights. But if they opted to treat a person as a combatant, they could simply ignore the Bill of Rights. Their omnipotence lies in the power to exercise the option.

 

Let’s keep in mind the reason that the Pentagon established its detention facility in Cuba rather than the United States. It was not to protect the American people from possible prison escapes. After all, convicted terrorists are held in maximum-security prisons around the country and no one loses any sleep over their possible escape. Moreover, in World War II German prisoners of war were imprisoned here in the United States.

 

The reason that the Pentagon went to Cuba to establish its prison facility was precisely to avoid the application of the Constitution and the Bill of Rights and any federal-court interference with its operations. At Gitmo, the Pentagon was going to show America and the world what could be accomplished for law and order in a society without a Constitution and a Bill of Rights — a society in which military power is sovereign and supreme.

 

One of the fascinating aspects of Gitmo is that the Pentagon was determined to set up not only what it considered an ideal prison facility — one that didn’t coddle criminals — but also a model judicial system, one that would prove superior to the federal court system that is required to accord people constitutional rights.

 

In fact, one big difference between the Guantanamo prison and World War II prisons immediately became evident: The prisoners at Gitmo were not treated as prisoners of war but rather as criminal defendants — yes, criminal defendants, charged with the crime of terrorism! The only difference — but a big difference — was that these criminal defendants would be tried under the Pentagon’s new judicial system rather than under the judicial system the Pentagon scorned — the one established by the Framers.

 

So, the fact of the matter is that when it comes to terrorism cases, the United States is now operating under two competing, dual-track federal judicial systems. One system for prosecuting suspected terrorists is being run by the Pentagon at Gitmo. The other system is being run by the federal courts here in the United States under the principles of the Constitution. The government, not the defendant, gets to decide which system the defendant will be tried under.

 

What are the attributes of the Pentagon’s system? In the Pentagon’s system, the accused is presumed guilty (unlike the constitutional system, where the person is presumed innocent), the accused can be tortured into incriminating himself, the accused can be punished before determination of guilt, evidence acquired by torture can be used to convict the defendant, hearsay evidence can also be used, the defendant is denied the right to confront witnesses against him, there is no right of trial by jury, and kangaroo military tribunals are employed.

 

At Gitmo the Pentagon has established a judicial system that is the dream of those who believe that the procedural protections in the Bill of Rights are nothing more than constitutional “technicalities” that let guilty people go free. No more reading people their rights. No more Miranda warnings. No more coddling of criminals. No more exclusionary rule. Defense attorneys under tight control. Secret proceedings.

 

In other words, The system that law-and-order types have been dreaming of for decades — one freed of the due-process guarantees outlined in the Bill of Rights — has arrived, and it is at Gitmo.

 

The English jurist William Blackstone (1723-1780) enunciated the underlying principle of English and American criminal jurisprudence: “Better that ten guilty persons escape than that one innocent suffer.”

 

The Pentagon’s system is different. It is oriented toward one goal: the punishment of people it has determined are terrorists. The Pentagon’s system operates under the dictum “Better that ten innocent persons suffer than that one guilty person escape.”

 

Every American should realize what 9/11 enabled federal officials to accomplish — it gave them the ability to do things to both Americans and foreigners that our ancestors feared they would in the absence of a Constitution and a Bill of Rights, the ability to take people into custody and punish them, without having to concern themselves with procedural due process. By wielding the option to treat people accused of terrorism as either criminal defendants or as combatants — an option which, by the way, violates the principles of equal treatment under law and the rule of law — the federal government and its military have upended their relationship with the citizenry, enabling the former to gain supremacy and control over the latter.

 

Unless and until we reestablish the Bill of Rights as they were before 9-11 then we can no longer claim to reside in the same country as before - the country that the framers envisioned where the rule of law superceded the law of man is not the country in which we now live.

 

And that pisses me off.

This perspective sort of reminds me of a professor's comment on Mel Gibson's Hamlet - "They should have called it 'My Favorite Scenes from Hamlet, in No Particular Order'."

 

 

Firstly, neither Padilla nor Moussaoui was charged with terrorism; they were charged various counts of conspiracy. And we should be grateful to the flight instructor who tipped off the FBI to Moussaoui, while we're at it.

 

The Padilla case is significant for the material witness detention (keeping him locked up an awfully long time without charging him). The desire to classify his activities as "criminal," as is apparent from the article, is based on an interest in simply letting the criminal justice system take care of him (and thereby relieve him from another agencies' jurisdictions). Legally, it's a bit of an oversimplification (although they did manage to convict Padilla). The basic idea is that it wasn't clear what, if anything, he did HERE (meaning on American soil and therefore clearly subject to American criminal courts jurisdiction). He was recognized as a dangerous guy with bad intentions, but the worrisome stuff (i.e. training with Al Qaeda) wasn't done here.

 

Padilla was treated as an enemy combatant (a phrase that's hard to leave out of a discussion of Jose Padilla, but unsurprisingly was left out of Hornberger's article, probably for an obvious reason -- the precedent for treating people as enemy combatants didn't come from the post 9-11 era; it came from an early 1942 court case (Quirin)). Even when people's activities are minimal on American soil (like Padilla's and Moussaoui, and is often the case in conspiracy matters, where the "bad act" requirement is pretty minimal; it's generally bad plans + ANY act), the criminal justice system can usually handle them fairly adequately.

 

It's when those activities are carried out on the battlefield, or at least in the battle theater, that they're more problematic. In those situations, there are distinctions (and reasonable ones) between lawful and unlawful combatants. Lawful combatants are treated much better, at least in principle; but they're supposed to follow some rules. They wear a uniform or other identifying garb, they carry their weapons openly (i.e. they're recognizable), they conduct themselves in acccordance with some generally accepted military rules, etc. When people NOT in that category take up arms, they're not accorded POW treatment. But they're not subject to American criminal court jurisdiction, because American criminal courts don't have jurisdiction over them. So they're sort of in a no-man's land, wherein we're not going to ignore them, we're not going to arrest them the way we'd arrest a guy robbing a 7-11, and we're pretty surely not going to let them go, either. And that doesn't go back to 2001; it goes back to 1942, where it was Germans, not Middle Easterners, who receieved, essentially, terrorist training and snuck into the USA. And guess what? They didn't get American criminal court hearings; they got a secret military tribunal backed by a unanimous Supreme Court that said the President could do it as Commander in Chief.

[Winstonm]

It's when those activities are carried out on the battlefield, or at least in the battle theater, that they're more problematic. In those situations, there are distinctions (and reasonable ones) between lawful and unlawful combatants. Lawful combatants are treated much better, at least in principle; but they're supposed to follow some rules. They wear a uniform or other identifying garb, they carry their weapons openly (i.e. they're recognizable), they conduct themselves in acccordance with some generally accepted military rules, etc.

 

It is remarkable you can proclaim the Feith principle so totally and with a straight face - let's gut the infidels and make them wear red coats and stand in lines to get Geneva rights.

 

My understanding is not in keeping with your claims. This is non-supportive of your recasting of the Feith Proclamation about the Geneva convention: from Wikipedia:

 

The treatment of prisoners who do not fall into the categories described in Article 4 has led to the current controversy regarding the interpretation of "unlawful combatants" by the George W. Bush administration. The assumption that such a category as unlawful combatant exists is contradicted by the findings by the International Criminal Tribunal for the Former Yugoslavia in the Celebici Judgment. The judgement quoted the 1958 ICRC commentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, "There is no intermediate status; nobody in enemy hands can be outside the law,"[2]

 

It makes the Feith Proclamation look idiotic. Maybe that's the reason for this quote:

 

Gen. Tommy Franks in Bob Woodward's Plan of Attack, in which Franks calls Feith "the *****ing stupidest guy on the face of the earth."

 

As for Padilla, I think you are simply wrong.

 

(B) Attempt or Conspiracy With Respect to Homicide.— Whoever outside the United States attempts to kill, or engages in a conspiracy to kill, a national of the United States shall—

(1) in the case of an attempt to commit a killing that is a murder as defined in this chapter, be fined under this title or imprisoned not more than 20 years, or both; and

(2) in the case of a conspiracy by two or more persons to commit a killing that is a murder as defined in section 1111 (a) of this title, if one or more of such persons do any overt act to effect the object of the conspiracy, be fined under this title or imprisoned for any term of years or for life, or both so fined and so imprisoned.

© Other Conduct.— Whoever outside the United States engages in physical violence—

(1) with intent to cause serious bodily injury to a national of the United States; or

(2) with the result that serious bodily injury is caused to a national of the United States;

shall be fined under this title or imprisoned not more than ten years, or both

 

Padilla was transferred from being in the criminal justice system to the military tribunals as an "enemy" combattant and then back again. And that is the entire point of the article - a person or a government does not have the right to chose whether or not a person should be a criminal or an enemy combattant.

[kenrexford]

It's when those activities are carried out on the battlefield, or at least in the battle theater, that they're more problematic. In those situations, there are distinctions (and reasonable ones) between lawful and unlawful combatants. Lawful combatants are treated much better, at least in principle; but they're supposed to follow some rules. They wear a uniform or other identifying garb, they carry their weapons openly (i.e. they're recognizable), they conduct themselves in acccordance with some generally accepted military rules, etc.

 

It is remarkable you can proclaim the Feith principle so totally and with a straight face - let's gut the infidels and make them wear red coats and stand in lines to get Geneva rights.

 

My understanding is not in keeping with your claims.

In all fairness, I think there's a slight difference between not marching in formation with a flagsman, and sending children into markets to blow themselves up and kill as many women and children as possible for no military advantage.

[blackshoe]

They didn't get American criminal court hearings; they got a secret military tribunal backed by a unanimous Supreme Court that said the President could do it as Commander in Chief.

We were at that time formally at war (after a declaration by Congress) with Germany. To me, that makes a difference.

[Winstonm]

it goes back to 1942, where it was Germans, not Middle Easterners, who receieved, essentially, terrorist training and snuck into the USA. And guess what? They didn't get American criminal court hearings; they got a secret military tribunal backed by a unanimous Supreme Court that said the President could do it as Commander in Chief. 

 

The Supreme Court also ruled at one time that seperate but equal was valid, thus legalizing segregation.

 

A Supreme Court Ruling is not always right. Police used to browbeat suspects until the Miranda ruling.

[Lobowolf]

The Supreme Court also ruled at one time that seperate but equal was valid, thus legalizing segregation.

 

A Supreme Court Ruling is not always right. Police used to browbeat suspects until the Miranda ruling.

I didn't cite it for the proposition that it was right; I cited it for the proposition that it predated 9-11 by about 60 years.

[Winstonm]

The Supreme Court also ruled at one time that seperate but equal was valid, thus legalizing segregation.

 

A Supreme Court Ruling is not always right.  Police used to browbeat suspects until the Miranda ruling.

I didn't cite it for the proposition that it was right; I cited it for the proposition that it predated 9-11 by about 60 years.

OK. Fair enough, although there is a difference as pointed out that we were in a declared war with Germany.

[Lobowolf]

As for Padilla, I think you are simply wrong.

 

(:( Attempt or Conspiracy With Respect to Homicide.— Whoever outside the United States attempts to kill, or engages in a conspiracy to kill, a national of the United States shall—

(1) in the case of an attempt to commit a killing that is a murder as defined in this chapter, be fined under this title or imprisoned not more than 20 years, or both; and

(2) in the case of a conspiracy by two or more persons to commit a killing that is a murder as defined in section 1111 (a) of this title, if one or more of such persons do any overt act to effect the object of the conspiracy, be fined under this title or imprisoned for any term of years or for life, or both so fined and so imprisoned.

© Other Conduct.— Whoever outside the United States engages in physical violence—

(1) with intent to cause serious bodily injury to a national of the United States; or

(2) with the result that serious bodily injury is caused to a national of the United States;

shall be fined under this title or imprisoned not more than ten years, or both

 

Padilla was transferred from being in the criminal justice system to the military tribunals as an "enemy" combattant and then back again. And that is the entire point of the article - a person or a government does not have the right to chose whether or not a person should be a criminal or an enemy combattant.

Conspiracy was probably a bad example for the most problematic cases (though I wasn't aware of this provision, which obviously does extend jurisdiction).

 

The most problematic are the ones where people get training by organizations, then return to the USA without a specific terrorist act planned, but are basically awaiting further orders, i.e. the "sleeper cell" situation. They haven't committed any crime. Maybe the answer to that is that they should just be left alone, or surveilled.

[blackshoe]

It occurs to me that while the Constitution specifies that the power to declare war is granted to Congress, it doesn't say that such declarations must necessarily be against nations. While I would not like to see the principle extended to inanimate objects (eg, drugs), it doesn't seem unreasonable that Congress might formally declare war against terrorists. Of course, a formal declaration of war against them might grant them status under the Geneva Conventions (not to mention the Laws of War). Maybe that's why the Executive Branch has not pursued that route. Either way, it seems to me that either we declare war on them, and treat them as combatants, or we don't declare war on them, and treat them as criminals. I don't see how it can be right to allow the Executive Branch to have it whichever way it wants, on a case by case basis.

[kenrexford]

Is everyone going to continue to ignore the phrase "public danger?"

 

Act of War, Declared War, War Powers Act, Laws of War -- these concepts have nothing to do with the simpler "emergency" of a "public danger."

 

What, precisely, would you consider to be, in the eyes of the Framers or by any modern breathing Constitutional analysis, a crime of such character to trigger the "public danger" part of the Bill of Rights if terrorism doesn't count?

[luke warm]

Is everyone going to continue to ignore the phrase "public danger?"

 

Act of War, Declared War, War Powers Act, Laws of War -- these concepts have nothing to do with the simpler "emergency" of a "public danger."

 

What, precisely, would you consider to be, in the eyes of the Framers or by any modern breathing Constitutional analysis, a crime of such character to trigger the "public danger" part of the Bill of Rights if terrorism doesn't count?

i think you have a point, i'm just a little leery of the slippery slope effect... i'm also unsure what exactly you mean... for example, would your rights as a citizen be curtailed if you (or your acts) were declared a 'public danger'? who would make the decision as to whether or not your acts rose to that level? i'm not arguing, just seeking clarification

[Winstonm]

Is everyone going to continue to ignore the phrase "public danger?"

 

Act of War, Declared War, War Powers Act, Laws of War -- these concepts have nothing to do with the simpler "emergency" of a "public danger."

 

What, precisely, would you consider to be, in the eyes of the Framers or by any modern breathing Constitutional analysis, a crime of such character to trigger the "public danger" part of the Bill of Rights if terrorism doesn't count?

Sorry. I thought I did address this point of public danger. I bet I did it on another thread - oops.

 

My point was the what you are claiming is that the THREAT of public danger should be treated as a REALITY of public danger.

 

Regardless, all you are pointing out is the division between military justice and civilian justice - it still does not give the government a choice as to which way it wants to go.

 

Remember, the Constitution is a document that was based on restricting the rights of the federal government by specifying what powers it held - all other powers were held by the states or the people.

 

Edit: Reviewing this IMO you have interpreted this wrong:

 

"except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger."

 

All this does is differentiate between criminal and military justice systems - and regardless of which system is used, there is procedure that must be followed.

 

An aside: Al-Qaeda had NOTHING to do with the anthrax mailings.

[mycroft]

Again, I repeat:

What's the "public danger"? What's the chance of dying in a terrorist attack? Again, about 10 times less than my chance of dying walking to the bus stop to get to work in the morning. About the same, probably, as the chance of me dying in a fatal accident involving the bus on the way to work in the morning. About the same as the chance of me getting hit by a stray bullet in a drive-by - and I'm in Canada. Does that cause me to change my lifestyle in any way? No - I just ignore it and chalk it up as a cost of living where I do.

 

Over 45 000 people died in 2006 (the latest data the CDC have published, the data I'm using are in this table) in the United States in traffic accidents. 18 500 people died by homicide - which includes unintentional victims. 6 000 died from C. difficile - which you can only get voluntarily submitting yourself to "the world's best medical care". Any of those numbers (except possibly the last) is higher than the total terrorist deaths in America and to Americans worldwide since 1775 - possibly higher than the total terrorist deaths worldwide since 1775, in the case of the traffic accidents.

 

And this is the "massive public danger" that requires us to change our lives (almost always for the worse) and gut the Bill of Rights? This is the "massive public danger" that requires us to return to the xenophobic insularity that makes a mockery of that great New York Landmark, the Statue of Liberty (or at least its inscription)?

 

Not the official definition of terrorism, but a good one for me, is "using tactics designed to inspire fear in the population in order to convince them to change their lifestyle, to their detriment and if possible in your favour." Using *that* definition, it's clear who the terrorists are, and that's why I fight for my liberty and Americans'. It's not swarthy guys in turbans - it's well-cut white (mostly) guys (mostly) in suits. A power grab, pure and simple. And it's still WORKING, 8 years on and two changes of government later. Because it's CONVENIENT - at least for the people in power.

 

Which gets us back, potential quibbling about the supporting arguments aside, to the original post.

[kenrexford]

The definition of a "public danger" is not stated anywhere. That is apparently for generations and courts to decide.

 

However, I find it hard to imagine how organized global terrorism would not qualify.

 

To cite statistics about the chances of dying from a terrorist attack is misleading for so many reasons. First, the chance of me dying is not as critical as the chances of 3000+ dying by one single act. Second, death is not the only harm done by a terrorist attack. For example, I could imagine an idea that might have global implications. What if, say, some group set out to destroy a giant building or two in one of the most important financial districts of the world, with the idea being not just creation of fear but rather actual harm to an entire global economy? I bet that plan, if carried out into execution, might just work...

 

I'm not sure why I'm even typing though. Some of these arguments that I am reading are so absurd from my perspective on the world that ours brains must function differently.

[vuroth]

So why is there a class of people who are accused of terrorism who are being treated differently than Padilla, Moussaoui, and others who have been prosecuted for terrorism in U.S. district courts? That is, under what justification are some accused terrorists provided one route — i.e., the federal court route — for determining their guilt and their punishment while others are subjected to another route — i.e., the military-commission route?

Wait, it's a complicated, bizarre conspiracy that people who break American laws on foreign soil and are not American citizens can not be tried in a criminal proceding? :blink:

[kenberg]

The details of the Constitution matter, and I confess I didn't know about the public danger clause. It has relevance, I think.

 

I think "threatened danger" and "actual danger' is a false distinction. Danger is potential harm so there is always an element of uncertainty whether we call it threatened or actual.

 

Evaluating the seriousness of the danger is difficult, but it is perceived by most as being very serious. If this were not so, there would be a huge outcry against security checks in airports. To the contrary, if the security checks were canceled I think you would see a lot of empty seats. Some of course think the cia flew the planes into the Twin Towers, making airport security checks silly, but most folks, certainly including myself, regard them as an unfortunate necessity. That is, we accept that there is a public danger.

 

"Trust me, I am from the government and my only interest is in protecting you" is not something most of us are ready to sign on to. So some thought is desperately needed. But "public danger" seems to be a fair description of our situation with respect to Al Qaeda and its cousins. .

[jonottawa]

Most people are cowards and sheep. We in America live in the safest time and civilization in the history of the world. It is not misleading to point out just how unbelievably unlikely it is to fall victim to a terrorist attack.

 

I do think our brains work differently. Your brain seeks comfort, mine seeks truth.

[luke warm]

Some of course think the cia flew the planes into the Twin Towers, making airport security checks silly, but most folks, certainly including myself, regard them as an unfortunate necessity.

nobody thinks that, eh? now the cia might have known about it, hell it may have even financed the operation (after planting high explosives in the buildings), but i doubt any actual cia operatives were on the planes... unless cia heaven is way better than we've heard

[kenrexford]

Most people are cowards and sheep. We in America live in the safest time and civilization in the history of the world. It is not misleading to point out just how unbelievably unlikely it is to fall victim to a terrorist attack.

 

I do think our brains work differently. Your brain seeks comfort, mine seeks truth.

Sheep who graze on the plains have it better than sheep who graze on the mountains. They have more grass to eat. Their offspring don't fall to their deaths because of a mis-step. Life is good.

 

However, how stupid are the sheep? The sheep doesn't even realize that the wolf is being kept away by the shepherd. Blissful ignorance.

 

What would be really stupid, however, would be for the sheep to comment about how few sheep really get eaten by wolves, as if the shepherd wasn't needed. I'm sure great sheep poets pine on about how their days on the prairie are the safest times ever experienced by sheepkind.

 

Translation: My brain is based in real politik, which is truth. Your brain is mushy from perceived comfort, which puts a rosey picture on a perceived truth.

[jonottawa]

Realpolitik my ass. The Bush administration was full of chickenhawks, religious zealots, neo-fascists, crony-capitalists and demagogues and virtually every one of their policies showed it.

 

Here are the 14 defining characteristics of fascism. Let's see how many can be fairly said to apply to the Bush administration.

 

1. Powerful and continuing nationalism. Check

2. Disdain for the recognition of human rights. Check

3. Identification of enemies/scapegoats as a unifying cause. Check

4. Supremacy of the military. Check

5. Rampant sexism. Not so much.

6. Controlled mass media. Check

7. Obsession with national security. Check

8. Religion and government are intertwined. Check

9. Corporate power is protected. Check

10. Labor power is suppressed. Check

11. Disdain for intellectuals and the arts. Check

12. Obsession with crime and punishment. Check

13. Rampant cronyism and corruption. Check

14. Fraudulent elections. Check

 

Here's a good slogan for the Republicans in 2010: 'Hey, we're not TECHNICALLY fascists, because we're not sexist!'

[jonottawa]

That's one thing that really burns my ass. I'm a conservative (a Goldwater conservative) and these people decided that neo-fascism didn't sound very palatable, so they changed their name to neo-conservative and now the neo- has been dropped altogether even though the ideology is indistinguishable from fascism. (Some of them even have the unmitigated gall to call Obama fascist. You'd be surprised at how often when you listen to Bush speak about our enemies, he is perfectly describing his own policies/administration.)

 

Anyway, as for your specious Realpolitik reference:

 

How did toppling a secular regime in Iraq, the enemy of the religious extremists in Iran, contribute to US national security?

 

How did bankrupting our country, which was running a massive surplus when Bush took over, contribute to US national security?

 

How did voting for a coke-snorting, alcoholic, religious zealot and failed businessman to the most powerful office on the planet contribute to US national security?

 

How did torturing people, in violation of the rule of law, which acted as a huge recruiting tool for our enemies and which (rightfully) turned many of our allies against us contribute to US national security?

 

I was railing against all of these things AT THE TIME. You can't even see your mistakes with the benefit of hindsight. Whose brain is mushy now?

[kenrexford]

Jon, I think you are falling into the trap of an ad hominem argument without even realizing it.

 

I said that the argument on one side was flawed because it ignored the "public danger" aspect of the U.S. Constitution. One who is a thinking person would recognize that I am correct and therefore would at least re-do the argument to address the real constitutional question, namely whether the current events do or do not amount to a "public danger" as either contemplated by the framers or as understood by modern society in a living, breathing document sense.

 

Your response was somewhat along those lines, in the sense that you provided absurd statistical analyses to suggest that errorism is not a "public danger" as intended. I responded that I thought this analysis to be wildly flawed and illogical, from my way of looking at this.

 

You then noted that people are "cowards" and "sheep" and that my mind seeks "comfort" while yours seeks "truth."

 

I responded that your actual comfort makes you think things are better than they are, because you are not recognizing the effect of the man on the wall, kind of like how a person who takes a vaccine never sees it work because they don't get sick and might conclude that they would have never gotten sick anyway. I also noted that my willingness to ask dark questions and consider dark solutions was based on what I [erceive to be a real view of the world and not this cushioned rosey view.

 

So, after this, what is your response? You attack George Bush. You also attack a lot of things that George Bush did, with which you disagree.

 

First of all, how can my position that "public danger" needs to be defined be in any way translated as "I agree with everything George Bush did?" Just because George Bush, who by the way to my knowledge never had the brains to mention "public danger" as his justification -- apparently relying on the same "act of war" nonsense that has everyone responding to it only, happened to conclude with his particular world view that some act was justified does not mean that the act was or was not justified by any other world view OR that the debate must be argued using his terms.

 

That last part is worth repeating. Why are you giving George Bush some sort of intellectual authority on this issue? Why do you insist on arguing the matter from some absurd Counter-Bush perspective rather than from an intelligent perspective?

 

I mean, there seems to be at least four possible theories:

1. This was an act of war, and they neither wore uniforms nor carried flags, so we can do whatever we want to do (George Bush's Theory)
   
2. This was not an act of war, and George Bush is playing semantics games, and George Bush is a stooge with nuclear capabilities, so whatever George Bush thinks is right must be wrong(your view)
   
3. This seems to be a "public danger," such that perhaps certain procedural rights are in fact suspended(intelligent possible view in favor of certain acts accidentally done right by Bush), or
   
4. This does not seem to qualify for the "public danger" exception, for such-and-such reason(intelligent view, almost adopted by you until you reverted to the anti-Bush argument)
   

Here's my view of your argument so far, then. You dabble with the idea of actually debating "public danger" until you see reasoned arguments that might actually justify what Bush did, at least at times. Knowing that Bush did these things for the wrong reasons, and not willing to let your view of his motives and lack of intelligence off the hook, you cannot stand the idea of an intellectual argument that seems pro-Bush, even if the argument accidentally favors the actual act but not the stated justification. So, lacking persuasive firepower on the intellectual debate, you attack that which you emotionally feel -- Bush is Evil. Using that as your first principle, you conclude that any reasoned argument that leads anyone to the same end result as George Bush, even on one issue, must also be evil, or at least wrong because it just cannot be.

 

The problem is that the real debate that should have occurred and that should now occur leaves an honest man with no confident answers. Global terrorism is different. It is not something anyone could have predicted in the 1700's. Suicide bombings would never even enter their minds. The closest parallel to a gigantic non-national network would have been the trade companies, but these were rich people seeking profits, not crazy people trying to blow stuff and people up. Hence, unfortunately we have to draw upon imperfect parallels and unclear, competing principles to reach answers. Unfortunately, no answer is obvious. Reasonable people (if any actually debate this honestly) can disagree.

 

That sucks, because it takes away that which you really want. You want George Bush and his cronies to rot in Hell.

 

By the way, if you carefully read through what I have posted, I have not stated anything that could pin me down on an end position. The fact that I assess the world from a self-proclaimed "real politik" perspective does not mean that I endorse whatever Kissinger would have done, either. I merely mention the debate as one that should occur in a real world with honest review of the actual words of the Constitution and not in an emoptional, irrational, political world.

 

As a criminal defense attorney, I side on procedural protections. Hence, I actually would vote against relieving due process under these circumstances, if I was given a vote. But, I cannot proclaim any argument like what has been made so far, and I believe that I might be off base in my weighting of interests. I myself consider this an extremely close call, as far as the due process issue is concerned.

 

So, please quit attacking me on the basis of "my mistakes" by citing what George Bush did. And, your answer is simple -- yours is the mushy mind.

[Al_U_Card]

Realpolitik my ass. The Bush administration was full of chickenhawks, religious zealots, neo-fascists, crony-capitalists and demagogues and virtually every one of their policies showed it.

 

Here are the 14 defining characteristics of fascism. Let's see how many can be fairly said to apply to the Bush administration.

 

1. Powerful and continuing nationalism. Check

2. Disdain for the recognition of human rights. Check

3. Identification of enemies/scapegoats as a unifying cause. Check

4. Supremacy of the military. Check

5. Rampant sexism. Not so much.

6. Controlled mass media. Check

7. Obsession with national security. Check

8. Religion and government are intertwined. Check

9. Corporate power is protected. Check

10. Labor power is suppressed. Check

11. Disdain for intellectuals and the arts. Check

12. Obsession with crime and punishment. Check

13. Rampant cronyism and corruption. Check

14. Fraudulent elections. Check

 

Here's a good slogan for the Republicans in 2010: 'Hey, we're not TECHNICALLY fascists, because we're not sexist!'

Fascists are just corporate elite socialists..... :ph34r: