Winston, Why Are You So Angry?

[Winstonm]

Couple items, Ken,

 

I think you are overusing your argument about "public danger". Here is the quote your provided concerning the Constitution:

 

"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."

 

I think that is pretty clear that the exception arises only to define when it the military has jurisdiction, and the "public danger" portion of quote applies only when those forces have been committed to act - "when in actual service" is the key phrase - if no forces have been committed to act then the exception does not apply.

[Winstonm]

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? :ph34r:

If you don't know what the debate is about you might want to refresh by reading the original post again - the complaint is that the rule of law has been pushed aside in favor of the discretion of men.

[blackshoe]

What does "cases arising in the land or naval forces, or in the Militia" mean in this quote? I have always understood it to mean that it applies to soldiers and sailors (and marines, and air force personnel and, in time of war, Coast Guard personnel). Not to some raghead the CIA kidnapped out of his home country, or even one who came over here to crash planes into buildings. That is, at least, what I was taught it meant, in basic training some forty years ago.

[Winstonm]

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.

 

Exactly how many terrorists are there in the world? Can you quote any verifiable figures of the numbers of American terrorist enemies willing and capable of directly attacking the U.S.?

 

One of the mainstays of Straussian neo-conservatism is that if there is no common enemy one must be created. Are you arguing the reality of global terrorism or are you simply trying to sell us a common enemy?

[jonottawa]

Re: ad hominem Dude, you started it with 'your brain is mushy' but whatever floats your boat. If you want to include yourself anytime I say 'most people', be my guest.

 

I admit I went off on a tangent. Your argument is wrong and nothing but an attempted distraction (typical Republican apologist move) but in a boring, dry, legalistic way. I broadened the debate with some fresh meat since you can (and probably will) argue all day long that your interpretation of the 'public danger' clause of the 5th amendment is correct, in spite of common sense, context, precedent, etc.

 

If you google 'public danger,' you will discover that the EPA has declared global warming as a public danger. So no more 5th amendment protection because of global warming. Yeah, okay.

 

Since you're so fond of the constitution:

 

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding."

 

Treaties are the supreme law of the land. We signed treaties making torture a war crime. Prosecute war criminals. We signed treaties governing the treatment of prisoners of war. We violated those treaties.

 

You want a nightlight to keep you safe from the terrrists, knock yourself out.

[kenrexford]

Couple items, Ken,

 

I think you are overusing your argument about "public danger". Here is the quote your provided concerning the Constitution:

 

"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."

 

I think that is pretty clear that the exception arises only to define when it the military has jurisdiction, and the "public danger" portion of quote applies only when those forces have been committed to act - "when in actual service" is the key phrase - if no forces have been committed to act then the exception does not apply.

Two contrasting perspectives.

 

I think the military is in "actual service" right now, "committed to act" if you will. Not sure, but they seem to talk about it a lot on the news. Plus, I think those guys in Gitmo were captured by soldiers.

 

On the other hand, this might mean that grand jury process is suspended when prosecuting OUR soldiers, not necessarily THEIR soldiers, or whatever they are called. That seems plausible, but I don't think that's what is meant. I may be wrong.

 

Now, an interesting observation I have never made before. Article III, Section 2, says that trial of ALL crimes shall be by jury. It specifies that when the crime is committed outside of any State, Congress shall declare where. So, any crime seems to require trial by jury, at least.

 

I also note that habeas corpus can be suspended if there is rebellion or "invasion," if the "public safety" requires it. However, this is described as a congressional power.

 

The sixth amendment uses the term "all," but it seems strange in that it doesn't seem to address what happens when a crime is committed outside the States. Furthermore, I'm not sure when an act truly is a "crime" and not simply an "invasion."

 

The fourteenth amendment discusses "privileges and immunities" of citizens. Non-citizens are not protected and by definition must not have these privileges and immunities. For, if any privilege or immunity is afforded to a citizen and deemed one specific to citizenship, then by it very nature a non-citizen does not have that same privilege or immunity.

 

Ultimately, I think the most important amendment to this debate is the 21st.

[Lobowolf]

What would Barry do?

[Lobowolf]

Ultimately, I think the most important amendment to this debate is the 21st.

I agree! Partly because I need the drink, and partly because this thread is amusing and amazing enough in parts to make me feel as though I've already had 10.

[Winstonm]

I think the military is in "actual service" right now, "committed to act" if you will. Not sure, but they seem to talk about it a lot on the news. Plus, I think those guys in Gitmo were captured by soldiers

 

If so, then Geneva applies. It is either one or the other.

 

The Feith Illusory argument is just that: illusion. You don't have to wear red coats and march in a straight line to be covered under the Geneva Conventions - under Geneva you are either a soldier or a civilian, with protections for both.

 

I also note that habeas corpus can be suspended if there is rebellion or "invasion," if the "public safety" requires it. However, this is described as a congressional power

 

This is what brings about revolutions and civil wars - there is never a time when habeus corpus should be suspended in criminal proceedings. If it is not a criminal proceeding, then it must by its nature be military.

 

Torture is one of the main reasons nations agreed to Geneva Conventions.

[Lobowolf]

Torture is one of the main reasons nations agreed to Geneva Conventions.

More specifically, the notion that we if agreed to treat Country X's citizens a certain way, they'd do the same for ours. Al Qaeda, I'm guessing, not so much.

 

The contradictory parts of the Geneva Convention(s) I've seen posted are interesting, but why do you think your favorite parts are more valid than the parts that explicitly state that it applies to signatories and to non-signatories who abide by its terms?

[cherdanno]

Torture is one of the main reasons nations agreed to Geneva Conventions.

More specifically, the notion that we if agreed to treat Country X's citizens a certain way, they'd do the same for ours. Al Qaeda, I'm guessing, not so much.

 

The contradictory parts of the Geneva Convention(s) I've seen posted are interesting, but why do you think your favorite parts are more valid than the parts that explicitly state that it applies to signatories and to non-signatories who abide by its terms?

This sideshow is completely irrelevant as far as torture is concerned. The US should not torture because torture is wrong, and because it is counter-productive. But if you need a rule that forbids torture, the US has signed (under President Reagan) and ratified the UN convention against torture.

http://en.wikipedia.org/wiki/United_Nation...Against_Torture

[Lobowolf]

Torture is one of the main reasons nations agreed to Geneva Conventions.

More specifically, the notion that we if agreed to treat Country X's citizens a certain way, they'd do the same for ours. Al Qaeda, I'm guessing, not so much.

 

The contradictory parts of the Geneva Convention(s) I've seen posted are interesting, but why do you think your favorite parts are more valid than the parts that explicitly state that it applies to signatories and to non-signatories who abide by its terms?

This sideshow is completely irrelevant as far as torture is concerned. The US should not torture because torture is wrong, and because it is counter-productive. But if you need a rule that forbids torture, the US has signed (under President Reagan) and ratified the UN convention against torture.

http://en.wikipedia.org/wiki/United_Nation...Against_Torture

My previous post wasn't to rehash the torture thread, but to speak to the initial post in this one -- alternative jurisdictions for certain detainees.

 

To the extent that Winston brings up the Geneva Convention to support the proposition that you're either a POW or a criminal arrestee, and mentions that torture was one of the reasons it was signed, it's worth looking at the nature of a "treaty."

 

A treaty isn't something you sign BECAUSE you have a deep-rooted sense that action X is wrong. You could just stop doing action X. A treaty, by its nature, is a "We won't if you won't" document.

 

Again, this is not to advocate torture, or to suggest that the US hasn't broken any treaties to which it's a party. This is just to point out something that is pretty obvious -- there's an inherent mutuality in a treaty. I don't think there are any active treaties signed by only one party. When it comes to Al Qaeda and the Geneva Convention, that mutuality is...suspect.

 

Portions of the Geneva Convention (and other documents) have been posted that suggest that all detainees are covered by it. On the other hand, it also says on its face that it applies to signatories and non-signatories who abide by it, so at the very least, it's extremely inconsistent as far as the extent of its applicability.

 

At the risk of being understood, I'll reiterate - this is with respect to enemy combatant military detention, not torture. The T-Word appears in my previous post because it appeared in the post I was responding to.

[Winstonm]

Torture is one of the main reasons nations agreed to Geneva Conventions.

More specifically, the notion that we if agreed to treat Country X's citizens a certain way, they'd do the same for ours. Al Qaeda, I'm guessing, not so much.

 

The contradictory parts of the Geneva Convention(s) I've seen posted are interesting, but why do you think your favorite parts are more valid than the parts that explicitly state that it applies to signatories and to non-signatories who abide by its terms?

I thought this debate had been settled long ago....by the U.S. Supreme Court

 

Washington Post Staff Writers

Wednesday, July 12, 2006; Page A01

 

The Bush administration has agreed to apply the Geneva Conventions to all terrorism suspects in U.S. custody, bowing to the Supreme Court's recent rejection of policies that have imprisoned hundreds for years without trials.

 

The Pentagon announced yesterday that it has called on military officials to adhere to the conventions in dealing with al-Qaeda detainees. The administration also has decided that even prisoners held by the CIA in secret prisons abroad must be treated in accordance with international standards, an interpretation that would prohibit prisoners from being subjected to harsh treatment in interrogations, several U.S. officials said.

[cherdanno]

To the extent that Winston brings up the Geneva Convention to support the proposition that you're either a POW or a criminal arrestee, and mentions that torture was one of the reasons it was signed, it's worth looking at the nature of a "treaty."

 

A treaty isn't something you sign BECAUSE you have a deep-rooted sense that action X is wrong. You could just stop doing action X. A treaty, by its nature, is a "We won't if you won't" document.

 

Again, this is not to advocate torture, or to suggest that the US hasn't broken any treaties to which it's a party. This is just to point out something that is pretty obvious -- there's an inherent mutuality in a treaty. I don't think there are any active treaties signed by only one party. When it comes to Al Qaeda and the Geneva Convention, that mutuality is...suspect.

I think of the Geneva convention as a treaty where we promise to not do X because it is wrong. We make it a treaty so that more follow along in not doing X, which makes the world a better place, but we would stop it anyway.

(Oh and of course Al Qaeda won't ever sign the Geneva convention, but the US not following the Geneva convention has certainly helped their recruiting efforts in Iraq.)

[Lobowolf]

(Oh and of course Al Qaeda won't ever sign the Geneva convention, but the US not following the Geneva convention has certainly helped their recruiting efforts in Iraq.)

Ahhhhh, maybe, but definitely? And to what extent? I don't believe everything I hear from the government about what happens in the Middle East, but I don't believe everything I hear from the government's most ardent detractors, either. I just don't know how many people I can see saying, "Well, I was going to be an actuary if the USA had followed the Geneva Convention(s), but since they don't, I guess I'll go into my second love, improvised explosive devices."

[kenrexford]

...Your argument is ... nothing but a[] (typical Republican apologist move)...

 

...Since you're so fond of the constitution:

 

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding."

 

Treaties are the supreme law of the land. We signed treaties making torture a war crime. Prosecute war criminals. We signed treaties governing the treatment of prisoners of war. We violated those treaties.

 

You want a nightlight to keep you safe from the terrrists, knock yourself out.

Seeing as I'm not a Republican, but a registered Democrat, I find it humorous that you have decided that I have taken on the Republican apology as a means of explaining my arguments. But, I digress from what I wanted to point out.

 

I hear this treaties business all the time.

 

Read the words again. Three things are "the supreme law of the land," namely the U.S. Constitution, the laws of the United States, and treaties, IN THAT ORDER.

 

Any law of the United States that is unconstitutional falls to the U.S. Constitution. A treaty falls to the first two.

 

What that means is that we can and do violate treaties without violating the U.S. Constitution or U.S. laws.

[cherdanno]

(Oh and of course Al Qaeda won't ever sign the Geneva convention, but the US not following the Geneva convention has certainly helped their recruiting efforts in Iraq.)

Ahhhhh, maybe, but definitely? And to what extent? I don't believe everything I hear from the government about what happens in the Middle East, but I don't believe everything I hear from the government's most ardent detractors, either. I just don't know how many people I can see saying, "Well, I was going to be an actuary if the USA had followed the Geneva Convention(s), but since they don't, I guess I'll go into my second love, improvised explosive devices."

Of course I may have a bias in favor of believing this. But I didn't get this claim from an ACLU member or Berkeley Hippie, but have seen it in several quotes from military officers who had been in Iraq. Iraq definitely has a big number of former-civilians-later-Al-Qaeda-members. Do you really not believe Abu Ghraib etc. helped that cause?

[mike777]

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.

ok Winston what are you so angry about?

 

 

 

you know usa is far far from perfect..see fire bombing..nukes..etc....?

 

Winston you of all people know about cia/nsa...etc etc...last decades....

[kenrexford]

I am remembering the Star Trek episode (old Trek) where two warring worlds decided to avoid the collateral damage to infrastructure. They used computer simulations to attack and defend. When the battle was over, each side volunteered to have its soldier be executed. But, the infratsructure, arts, historic buildings, and the like were saved. The crew convinced them to stop that nonsense and face reality that war is hell. In the end, the hope was that this reality would stop the war completely and force settlement.

 

I'm imagining a war where one side does that -- computer simulations and self-enforced executions -- to save the other world of a loss of infrastructure, historic places, and the like, while the other sides just blows stuff up. A one-sided war, with one side honorable and the other side indiscriminate loons.

 

Then, imagine that the one side eventually decides to do some limited outrage, contextually limited in any event, and the side who blows stuff up randomly then complaining, expressing outrage, and noting how impure the ideals of their opponent are. Maybe the one side, the computer-sim world, decides that three men who initiated the really-bomb-and-really-destroy campaign should be subjected to the Trek pain device for a while, as a punishment for blowing the crap out of all sorts of real buildings and real historical monuments.

 

I'm sure Kirk would have sided with those guys.

[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.

ok Winston what are you so angry about?

 

 

 

you know usa is far far from perfect..see fire bombing..nukes..etc....?

 

Winston you of all people know about cia/nsa...etc etc...last decades....

This is why.

 

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.

[luke warm]

This is why.

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.

maybe true, but it seems to me that the last part, "... the federal government and its military have upended their relationship with the citizenry, enabling the former to gain supremacy and control over the latter" has been going on for quite awhile now... it seems as if this one issue has caused you to view the above as true, while imo it started long ago

[Winstonm]

This is why.

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.

maybe true, but it seems to me that the last part, "... the federal government and its military have upended their relationship with the citizenry, enabling the former to gain supremacy and control over the latter" has been going on for quite awhile now... it seems as if this one issue has caused you to view the above as true, while imo it started long ago

I do not disagree. It has crystallized since the attacks of 9-11.