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Title: ACLU objects to killing of al Qaeda leader
Source:
The Hill
URL Source: http://thehill.com/blogs/blog-brief ... -to-killing-of-al-qaeda-leader
Published: Sep 30, 2011
Author: Erik Wasson
Post Date: 2011-09-30 12:40:46 by Sebastian
Keywords: None
Views: 136115
Comments: 179
The American Civil Liberties Union has objected to the killing of the U.S.-born Muslim cleric Anwar al-Awlaki in Yemen by U.S. forces.
Awlaki was a U.S. citizen, and the ACLU said President Obama does not have the authority to kill an American without due process of law. The White House confirmed the cleric was killed by a U.S. drone attack.
“The targeted killing program violates both U.S. and international law,” ACLU Deputy Legal Director Jameel Jaffer said. “As we’ve seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts.”
The ACLU said the government only has the authority to kill Americans when a threat is imminent.
“It is a mistake to invest the president — any president — with the unreviewable power to kill any American whom he deems to present a threat to the country,” Jaffer said.
Ben Wizner, litigation director of the ACLU’s National Security Project, added:
“If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state.”
Obama’s actions also garnered criticism from GOP presidential candidate Rep. Ron Paul (Texas).
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discussion of legal issues and past related rulings:
http://volokh.com/2011/09/30/anwar-al-aulaqi-apparently-killed-by-drone-in-yemen/
Tagline for sale - inquire within
#2. To: Sebastian (#0)
President Obama does not have the authority to kill an American without due process of law.
The ACLU seems to forget that our government doesn't care about the law...
They do what they WANT.
"Due process of law" is for the little people, dontcha' know.......
DUMMY DwarF: ...I'm eating a meatball...
Capitalist Eric: Foreplay before the president's staff?
http://libertysflame.com/cgi-bin/readart.cgi?ArtNum=24347&Disp=35#C35
#3. To: Capitalist Eric (#2)
The ACLU seems to forget that our government doesn't care about the law...They do what they WANT.
The ACLU seems to forget that our government doesn't care about the law...
Neither does the ACLU.
They do what they WANT.
So does the ACLU.
#4. To: Sebastian (#0) (Edited)
President Obama does not have the authority to kill an American without due process of law.
It's called first degree murder.
I know that a lot of people are out thumping their chests today, but without any evidence to the contrary, the only thing we know for sure is that al-Awlaki was posting political opinions on a website.
Posting political opinions on a web site is not against the law. Remember, that is what we do here on LF.
Also remember, that the very first thing Obama's Department of Homeland Security did was issue a report about homegrown, "right-wing extremists".
Tie these two together, along with Obama's constant demonetization of his opponents, and it points to a very bad place.
That government is best which governs not at all -- Henry David Thoreau
#5. To: jwpegler (#4)
It's called first degree murder.
Nope, it's called war. Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.
See: http://volokh.com/2011/09/30/anwar-al-aulaqi-apparently-killed-by-drone-in-yemen/
and:
http://www.lawfareblog.com/2011/09/al-awlaki-as-an-operational-leader-located-in-a-place-where-capture-was-not-possible/
Tagline for sale - inquire within
#6. To: Sebastian (#0)
“The targeted killing program violates both U.S. and international law,” ACLU Deputy Legal Director Jameel Jaffer said
We don't need no steenkin' laws.
#7. To: Sebastian (#0)
The American Civil Liberties Union has objected to the killing of the U.S.-born Muslim cleric Anwar al-Awlaki in Yemen by U.S. forces.
I guess my question is who really gives a shit about what the ACLU thinks/says in the first place????
"CHANGE" you can step in..... 
My dogs have created more shovel ready jobs than the self appointed Messiah!!!
#8. To: go65 (#5)
Under current U.S. law
There are a lot of current U.S. laws that violate the Constitution.
That's the problem.
That government is best which governs not at all -- Henry David Thoreau
#9. To: go65, jwpegler (#5) (Edited)
Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.
Can you please identify the U.S. law to which you refer?
#10. To: go65 (#5)
Nope, it's called war.
Where is the Declaration of war? Or if there is no declaration of war, which act are you talking about? That way I can see where you think the authority came from.
#11. To: CZ82 (#7)
I guess my question is who really gives a shit about what the ACLU thinks/says in the first place????
They are right in this case. Think about it. The president with the ability to play a video game and kill anyone he wants to. Just because he "declared" them an enemy combatant.
#12. To: jwpegler, go65 (#8)
Under current U.S. law There are a lot of current U.S. laws that violate the Constitution.
That's the problem.
When I woke up this morning, it must have been in the Twilight Zone.
I agree with the ACLU on this one.
BTW -go65 - weren't you once opposed to the so called war on terror? Or was that just when Bush was prez.?
__________________________________________________________________________________________
ABC NEWS: [Ron Paul] added that the United States is in 130 countries and has 900 bases around the world, and added that “we’re broke.”. He was booed at a Tea-Party debate.
Congratulations Mr. and Mrs. Statist and all ships at sea. Your demonization of the Tea Party has worked - you need no longer fear it! Carry on!!
#13. To: Get Outta Dodge!, jwpegler, go65, A K A Stone (#12)
When I woke up this morning, it must have been in the Twilight Zone.I agree with the ACLU on this one.
I disagree with all those who found an allegedly "good cause" to ignore the Constitution, whether it was Lincoln, Dubya Bush, or Obama. Some future president becomes the sole arbiter of what is a "good cause." Glenn Greenwald spoke to the issue today.
http://www.salon.com/news/opinion/glenn_greenwald/2011/09/30/awlaki/index.html
Friday, Sep 30, 2011 06:31 ET
The due-process-free assassination of U.S. citizens is now reality
By Glenn Greenwald
[excerpt]
What's most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar ("No person shall be deprived of life without due process of law"), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law). What's most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government's new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government. Many will celebrate the strong, decisive, Tough President's ability to eradicate the life of Anwar al-Awlaki -- including many who just so righteously condemned those Republican audience members as so terribly barbaric and crass for cheering Governor Perry's execution of scores of serial murderers and rapists -- criminals who were at least given a trial and appeals and the other trappings of due process before being killed.From an authoritarian perspective, that's the genius of America's political culture. It not only finds way to obliterate the most basic individual liberties designed to safeguard citizens from consummate abuses of power (such as extinguishing the lives of citizens without due process). It actually gets its citizens to stand up and clap and even celebrate the destruction of those safeguards.
#14. To: nolu chan (#13)
I disagree with all those who found an allegedly "good cause" to ignore the Constitution, whether it was Lincoln, Dubya Bush, or Obama.
Well commented as usual nolu....though I'm just skimming around here and not reading everything.
Missing for most would be the reason for Lincoln in there.
Unless they are capable and actually think about it a bit.
Death to everybody who does not get outta my way. (decided to retire the beatdowns on old worthless retread posters that are bozoed)
#15. To: jwpegler (#8)
I'm really hoping after the pig in office takes his sow and their droppings out of the WH that somebody in the next Justice Department considers bringing some serious investigations and that they result in criminal charges being proferred.
Wouldn't that be a hoot to watch the drroling leftards howl were that to occur:):):)
Death to everybody who does not get outta my way. (decided to retire the beatdowns on old worthless retread posters that are bozoed)
#16. To: e_type_jag (#14)
Missing for most would be the reason for Lincoln in there.
I am primarily considering the suspension of habeas corpus. The authority to suspend was not only claimed, but was delegated to military officers. Secretary of War Stanton was the first to suspend it throughout the union, and Lincoln followed that with his own proclamation. Notably, this was in the Northern states. People were picked up, imprisoned without charge, and denied any legal process.
Where such actions are justifiable, the people should decline to prosecute or convict, essentially jury nullification. We should not translate justifiable to lawful. It makes for bad precedent. Litigation against the Bush administration was defended by citing Civil War precedents.
#17. To: e_type_jag (#15)
I'm really hoping after the pig in office takes his sow and their droppings out of the WH that somebody in the next Justice Department considers bringing some serious investigations and that they result in criminal charges being proferred.Wouldn't that be a hoot to watch the drroling leftards howl were that to occur:):):)
I'm convinced if Perry is elected he will have Obama executed.
#18. To: A K A Stone, e_type_jag (#17)
I'm convinced if Perry is elected he will have Obama executed.
There will not even be an attempted prosecution for anything, regardless of what Republican may be elected, just as there has been no prosecution of Bush/Cheney.
#19. To: nolu chan (#18)
I'm convinced if Perry is elected he will have Obama executed.There will not even be an attempted prosecution for anything, regardless of what Republican may be elected, just as there has been no prosecution of Bush/Cheney.
Perry isn't any of those people. He said that the Fed (Obama) was commiting treason if they printed more money. I think they just did that recently didn't they? So that is the punishment for treason. Or do you think Perry was just kidding? Or maybe he is serious but wouldn't follow through with it?
#20. To: A K A Stone (#19)
Perry isn't any of those people. He said that the Fed (Obama) was commiting treason if they printed more money. I think they just did that recently didn't they? So that is the punishment for treason. Or do you think Perry was just kidding? Or maybe he is serious but wouldn't follow through with it?
Obama is now the Federal Reserve too? And here I thought they were a private corporation.
You Tea Baggers need to stop this silliness if you ever expect to be taken seriously.
#21. To: A K A Stone (#19)
Perry isn't any of those people. He said that the Fed (Obama) was commiting treason if they printed more money. I think they just did that recently didn't they? So that is the punishment for treason. Or do you think Perry was just kidding? Or maybe he is serious but wouldn't follow through with it?
Perry's babble is meaningless political rhetoric. Treason is the one crime defined by the Constitution, and it has been very narrowly defined by the judicial system.
The Fed is not Obama, it is an agency. The Fed is not a U.S. citizen. The Fed has not levied war against the United States.
U.S. Const., Article 3, Section 3:
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
If candidates for president did what they say during the campaign, GHWB would not have brought any new taxes, Bill Clinton would have delivered a modest middle class tax cut, GWB would have "pa[id] the debt down to a historically low level," and Obama would have rapidly closed Gitmo and be gone from Iraq.
They are all full of crap, both parties. Pay more attention to what they do, and less attention to what they say.
#22. To: nolu chan (#9)
Can you please identify the U.S. law to which you refer?
I do not make the argument but in El– Shifa, 607 F.3d at 841, the issue of the political question doctrine was raised i.e. "this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case ......"
That would be an opinion of the court in case law, would it not? Does that mean the political question doctrine means the Executive Branch can get away with killing a US citizen without due process and not be held accountable except by the ballot?
#23. To: nolu chan, all (#21)
They are all full of crap, both parties. Pay more attention to what they do, and less attention to what they say.
BRAVO!
#24. To: Sebastian, go65 (#22)
[go65 #5] Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.
[Sebastien #22I do not make the argument but in El– Shifa, 607 F.3d at 841, the issue of the political question doctrine was raised i.e. "this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case ......"
That would be an opinion of the court in case law, would it not?
El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010)
I believe el-Shifa would not be an opinion of the court in case law, at least not in the sense of deciding anything about the issue other than that the court could not decide it or render any opinion on it, at least not in the sense you appear to convey.
It is the same as the al-Aulaqi case. The court stated it did not have jurisdiction to hear the case. It's only "opinion" was that it was asked to answer a non-justiciable political question. The court lacked subject matter jurisdiction. The case was dismissed. The court did not decide the issue of whether the President has the authority to atttack enemy combatants outside the U.S., regardless of their citizenship/country of origin. It decided that the Plaintiff's question was not proper for the court to decide.
Under current U.S. law the President has the authority to attack enemy combatants outside of the U.S., regardless of their citizenship/country of origin.
I would have to question this claim of go65 on a few points.
I am unaware of current U.S. law that affirmatively grants such authority as that claimed. I do not know what law was being considered.
The use of the term enemy combatants appears imprecise. I believe the more appropriate term would be unlawful combatants. In this context, I would question whether whether al-Aulaqi fits the description of any sort of combatant.
The CIA action appears to be the targeted assassination of an American citizen. Assassination appears to be prohibited by EO12333 of 1981 (Reagan), Section 2.11.
- - -
Doc 1 - Al-Aulaqi v Obama, DCDC 10-1469, COMPLAINT Re Targeted Killing
- - -
Al-Aulaqi v Obama, USDC DCDC 1-10-cv-01469, Doc 31, OPINION (07dec2010)
At 4: "Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum."
The reference to a non-judicial forum is to a Legislative forum, i.e., Congress.
= = = = =
el-Shifa OPINION of the Court at 6-7:
The district court granted the government’s motion to dismiss the complaint for lack of subject-matter jurisdiction, see FED. R. CIV. P. 12(b)(1), concluding that sovereign immunity barred all of the plaintiffs’ claims. See El-Shifa, 402 F. Supp. 2d at 270–73. The court also noted that the complaint “likely present[ed] a nonjusticiable political question.” Id. at 276. The plaintiffs filed a motion to alter the judgment with respect to their claims for equitable relief, which the district court denied. See El-Shifa Pharm. Indus. Co. v. United States, No. 01-731, 2007 WL 950082 (D.D.C. Mar. 28, 2007). The plaintiffs appealed, challenging only the dismissal of their claims alleging a violation of the law of nations and defamation. The plaintiffs have abandoned any request for monetary relief, but still seek a declaration that the government’s failure to compensate them for the destruction of the plant violated customary international law, a declaration that statements government officials made about them were defamatory, and an injunction requiring the government to retract those statements. A divided panel of this court affirmed the district court, holding that these claims are barred by the political question doctrine. See El-Shifa Pharm. Indus. Co. v. United States, 559 F.3d 578 (D.C. Cir. 2009). We vacated the panel’s judgment and ordered rehearing en banc. See El-Shifa Pharm. Indus. Co. v. United States, 330 F. App’x 200 (D.C. Cir. 2009).
el-Shifa OPINION of the Court at 27:
Our concurring colleagues charge the court with “sub silentio expand[ing] executive power.” Concurring Op. of Judge Ginsburg at 3 (quoting Concurring Op. of Judge Kavanaugh at 11). To the contrary, it is they who would work a sub silentio expansion. By asserting the authority to decide questions the Constitution reserves to Congress and the Executive, some would expand judicial power at the expense of the democratically elected branches. And by stretching beyond all precedent the limited category of claims so frivolous as not to involve a federal question, all would permit courts to decide the merits of disputes under the guise of a jurisdictional holding while sidestepping obstacles that are truly jurisdictional.Straightforward application of our precedent makes clear that the plaintiffs face such an obstacle here. Under the political question doctrine, the foreign target of a military strike cannot challenge in court the wisdom of retaliatory military action taken by the United States. Despite their efforts to characterize the case differently, that is just what the plaintiffs have asked us to do. The district court’s dismissal of their claims is
Affirmed.
Docket Report - el-Shifa v USA, USCA DC Cir 07-1514, Docketed 31may2007 Termed 08jun2010
- - -
el-Shifa v USA, USCA DC Cir 07-5174, OPINION (8jun2010) (political question)
- - -
Here are some documents that touch on the topic.
- Geneva Convention Relative to the Treatment of Prisoners of War
- Military Commissions Act of 2006
- Authorization for Use of Military Force (AUMF) of 2001
- Military Order - Detention, Treatment, And Trial of Certain Non-Citizens in the War Against Terrorism, (13nov2001) President GW Bush
- The WAR POWERS Resolution of 1973
- EO 12333 (4dec1981) US Intelligence Activities as Amended by EO 13284 (2003), 13355 (2004) and 13470 (2008)
- - -
- - -
Military Commissions Act of 2006, S3930
- - -
Authorization for Use of Military Force (AUMF), 115 Stat 224; PL 107-40; SJ Res 18sep2001
- - -
- - -
The WAR POWERS Resolution of 1973 - Text and Records From Congress
- - -
Page 14, paragraph 2.11:
2.11 Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination.
- - -
#25. To: nolu chan (#24)
The use of the term enemy combatants appears imprecise. I believe the more appropriate term would be unlawful combatants. In this context, I would question whether whether al-Aulaqi fits the description of any sort of combatant.
How about unlawful enemy combatant?
certainly fits the bill..especially with his fingerprints on the diaper bomb.
I also question Al-Aulaqi's right to claim citizenship in the United States as well as the legal standing for his father to bring the lawsuit.
#26. To: Thunderbird (#25)
How about unlawful enemy combatant?certainly fits the bill..especially with his fingerprints on the diaper bomb.
I also question Al-Aulaqi's right to claim citizenship in the United States as well as the legal standing for his father to bring the lawsuit.
certainly fits the bill..especially with his fingerprints on the diaper bomb.
I believe that was al-Asiri, not al-Aulaqi.
http://www.libertysflame.com/cgi-bin/readart.cgi?ArtNum=24576&Disp=1
Ibrahim al-Asiri is the bomb-maker linked to the bomb hidden in the underwear of a Nigerian man accused of trying to blow up a plane over Detroit on Christmas Day 2009.The FBI pulled al-Asiri's fingerprint off that bomb. Authorities also believe he built the bombs that al Qaeda slipped into printers and shipped to the U.S. last year in a nearly catastrophic attack.
I also question Al-Aulaqi's right to claim citizenship in the United States as well as the legal standing for his father to bring the lawsuit.
As far as I know al-Aulaqi was born in the USA, making him a natural born citizen. His citizenship does not appear to be contestable. Dual citizenship does nothing to deprive one of U.S. citizenship.
His father was found to lack standing to bring the lawsuit. The subject matter has also been judicially determined to be a non-judicial political question (generally, whether a President has the authority under a claim of national security to assign someone to a kill list, to be killed in the absence of any legal process.) The Executive has claimed the authority. The Judiciary has punted to the Legislature. The Legislature has played see no evil, hear no evil, do nothing. The Executive can continue to do as it pleases as long as neither of the other branches acts on the issue.
How about unlawful enemy combatant?
Unlawful combatant requires foremost that one be a combatant.
I fail to see how al-Aulaqi could be a lawful combatant, unlawful combatant, unlawful enemy combatant, or any other invention of combatant. al-Aulaqi was neither indicted nor charged, much less convicted of anything. He gave speeches, but I don't believe talking rises to the level of military combat. I am unaware of al-Aulaqi having engaged in any combat.
We killed both a Yemini and a U.S. citizen, in Yemen. It was certainly an international act. The claim of his being a combatant is further diminished as any sort of defense or justification when the kill action is attributed not to our military, but to the CIA.
The following is from an international court and addresses how the matter of POW or protected status is seen by the international community.
http://www.icty.org/x/cases/mucic/tjug/en/cel-tj981116e.pdf
UNITED NATIONS, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Case No.: IT-96-21-T, 16 November 1998
See Delalic et al. (I.T-96-21) (Celebici) 16 November 1998, Part III B, Applicable law, pp 97-111, para 236-277, quoted below para 265-277, footnotes omitted.
265. Without yet entering the discussion of whether or not their detention was unlawful, it is clear that the victims of the acts alleged in the Indictment were arrested and detained mainly on the basis of their Serb identity. As such, and insofar as they were not protected by any of the other Geneva Conventions, they must be considered to have been “protected persons” within the meaning of the Fourth Geneva Convention, as they were clearly regarded by the Bosnian authorities as belonging to the opposing party in an armed conflict and as posing a threat to the Bosnian State.266. This interpretation of the Convention is fully in accordance with the development of the human rights doctrine which has been increasing in force since the middle of this century. It would be incongruous with the whole concept of human rights, which protect individuals from the excesses of their own governments, to rigidly apply the nationality requirement of article 4, that was apparently inserted to prevent interference in a State’s relations with its own nationals. Furthermore, the nature of the international armed conflict in Bosnia and Herzegovina reflects the complexity of many modern conflicts and not, perhaps, the paradigm envisaged in 1949. In order to retain the relevance and effectiveness of the norms of the Geneva Conventions, it is necessary to adopt the approach here taken. As was recently stated by Meron,
[i]n interpreting the law, our goal should be to avoid paralyzing the legal process as much as possible and, in the case of humanitarian conventions, to enable them to serve their protective goals.
(ii) Were the Victims Prisoners of War?267. Article 4(A) of the Third Geneva Convention sets rather stringent requirements for the achievement of prisoner of war status. Once again, this provision was drafted in light of the experience of the Second World War and reflects the conception of an international armed conflict current at that time. Thus, the various categories of persons who may be considered prisoners of war are narrowly framed.
268. In the present case, it does not appear to be contended that the victims of the acts alleged were members of the regular armed forces of one of the parties to the conflict, as defined in subparagraph 1 of the article. Neither, clearly, are sub-paragraphs 3, 4 or 5 applicable. Attention must, therefore, be focused on whether they were members of militias or volunteer corps belonging to a party which: (a) were commanded by a person responsible for his subordinates; (b) had a fixed distinctive sign recognisable at a distance; (c) carried arms openly; and (d) conducted their operations in accordance with the laws and customs of war. Alternatively, they could have constituted a levée en masse, that is, being inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously took up arms to resist the invading forces, without having had time to form themselves into regular armed units, and at all times they carried arms openly and respected the laws and customs of war.
269. The Prosecution seeks to invoke the provisions of Additional Protocol I to interpret and clarify those of article 4(A)(2) and wishes to take a liberal approach to the detailed requirements that the sub-paragraph contains. Even should this be accepted, and despite the discussion above of the need to take a broad and flexible approach to the interpretation of the Geneva Conventions, the Trial Chamber finds it difficult, on the evidence presented to it, to conclude that any of the victims of the acts alleged in the Indictment satisfied these requirements. While it is apparent that some of the persons detained in the ^elebi}i prison-camp had been in possession of weapons and may be considered to have participated to some degree in ‘hostilities’, this is not sufficient to render them entitled to prisoner of war status. There was clearly a Military Investigating Commission established in Konjic, tasked with categorising the ^elebi}i detainees, but this can be regarded as related to the question of exactly what activities each detainee had been engaged in prior to arrest and whether they posed a particular threat to the security of the Bosnian authorities. Having reached this conclusion, it is not even necessary to discuss the issue of whether the Bosnian Serbs detained in ^elebi}i “belonged” to the forces of one of the parties to the conflict.
270. Similarly, the Trial Chamber is not convinced that the Bosnian Serb detainees constituted a levée en masse. This concept refers to a situation where territory has not yet been occupied, but is being invaded by an external force, and the local inhabitants of areas in the line of this invasion take up arms to resist and defend their homes. It is difficult to fit the circumstances of the present case, as described in Section II above, into this categorisation. The authorities in the Konjic municipality were clearly not an invading force from which the residents of certain towns and villages were compelled to resist and defend themselves. In addition, the evidence provided to the Trial Chamber does not indicate that the Bosnian Serbs who were detained were, as a group, at all times carrying their arms openly and observing the laws and customs of war. Article 4(A)(6) undoubtedly places a somewhat high burden on local populations to behave as if they were professional soldiers and the Trial Chamber, therefore, considers it more appropriate to treat all such persons in the present case as civilians.
271. It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied. The Commentary to the Fourth Geneva Convention asserts that;
[e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view.
272. This position is confirmed by article 50 of Additional Protocol I which regards as civilians all persons who are not combatants as defined in article 4(A) (1), (2), (3) and (6) of the Third Geneva Convention, and article 43 of the Protocol itself.
273. The Prosecution has further argued that article 5 of the Third Geneva Convention required that, where there was some doubt about the status of the ^elebi}i detainees, they had to be granted the protections of the Convention until that status was determined by a competent tribunal. On this basis, they were “protected persons” and subject to the grave breaches provisions of the Third Convention. While there may, on the basis of this article, have been a duty upon the Bosnian forces controlling the ^elebi}i prison-camp to treat some of the detainees as protected by the Third Geneva Convention until their status was properly determined and thus treat them with appropriate humanity, the Trial Chamber has found that they were not, in fact, prisoners of war. They were, instead, all protected civilians under the Fourth Geneva Convention and the Trial Chamber thus bases its consideration of the existence of “grave breaches of the Geneva Conventions” on this latter Convention.
(c) Findings
274. On the basis of the above discussion, the Trial Chamber concludes that all of the victims of the acts alleged in the Indictment were “persons protected” by the Fourth Geneva Convention of 1949. For the purposes of the application of Article 2 of the Statute, these victims must be regarded as having been in the hands of a party to the conflict of which they were not nationals, being Bosnian Serbs detained during an international armed conflict by a party to that conflict, the State of Bosnia and Herzegovina.
275. This finding is strengthened by the Trial Chamber’s fundamental conviction that the Security Council, in persistently condemning the widespread violations of international humanitarian law committed throughout the conflict in Bosnia and Herzegovina and, indeed, in establishing the International Tribunal to prosecute and punish such violations, did not consider that the protection of the whole corpus of international humanitarian law could be denied to particular groups of individuals on the basis of the provisions of domestic citizenship legislation. The International Tribunal must, therefore, take a broad and principled approach to the application of the basic norms of international humanitarian law, norms which are enunciated in the four Geneva Conventions. In particular, all of those individuals who took no active part in hostilities and yet found themselves engulfed in the horror and violence of war should not be denied the protection of the Fourth Geneva Convention, which constitutes the very basis of the law concerned with such persons.
276. The Trial Chamber does not consider it necessary to discuss at length in the present context the development of the law of the Third Geneva Convention relating to prisoners of war, for even if none of the victims can be viewed as prisoners of war, there is no gap between the Geneva Conventions and they must, therefore, be considered protected civilians, along with the other detainees. This finding does not prejudice the later discussion of whether the authorities of Bosnia and Herzegovina were legitimately entitled to detain all of these civilians.
277. Having decided that Article 2 of the Statute is applicable to the facts of the present case, the Trial Chamber now turns its attention to the application of Article 3, concerning violations of the laws or customs of war.
Military Commissions Act of 2006
‘‘§ 948a. Definitions‘‘In this chapter:
‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlawful enemy combatant’ means—
‘‘(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or
‘‘(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.
The obvious legal problem with this is that the definition is pure bullcrap. According to this, an unlawful enemy combatant is whoever some competent tribunal says it is.
#27. To: Sebastian (#0)
Once you read the orginal charter of the ACLU you realize its long held goal is pretty much the same as Al Qaeda's.
The destruction of the United States of America.
They just employ different tactics. As it says in the charter they will use the US Constitution to destroy the country from within - rough paraphrasing, but its 'in there'.
Proxy IP's are amusing.....lmao
#28. To: Badeye (#27)
Once you read the orginal charter of the ACLU you realize its long held goal is pretty much the same as Al Qaeda's.
Do you stay up late **thinking** of stupid things to write, Boof? The ACLU was deemed so "subversive" that its founder was used as a civil liberties consultant as they US rebuilt the world aftr WWII.
/twit
America...My Kind Of Place...
"I truly am not that concerned about [bin Laden]..."
--GW Bush
"THE MILITIA IS COMING!!! THE MILITIA IS COMING!!!"
--Sarah Palin's version of "The Midnight Ride of Paul revere"
I lurk to see if someone other than Myst or Pookie posts anything...
#29. To: nolu chan (#24)
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
~~~~~~~~~~~~~~~~~~~~~~~~~
It's pretty clear that such a "determination" about this asshole was so made.
America...My Kind Of Place...
"I truly am not that concerned about [bin Laden]..."
--GW Bush
"THE MILITIA IS COMING!!! THE MILITIA IS COMING!!!"
--Sarah Palin's version of "The Midnight Ride of Paul revere"
I lurk to see if someone other than Myst or Pookie posts anything...
#30. To: war (#29)
aided the terrorist attacks
You deny the government did it. You are aiding them. You can be targeted for assassination anytime.
#31. To: A K A Stone (#30)
Wha...huh?
America...My Kind Of Place...
"I truly am not that concerned about [bin Laden]..."
--GW Bush
"THE MILITIA IS COMING!!! THE MILITIA IS COMING!!!"
--Sarah Palin's version of "The Midnight Ride of Paul revere"
I lurk to see if someone other than Myst or Pookie posts anything...
#32. To: war (#29)
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Please show the slightest evidence that al-Aulaqi had anything to do with "the terrorist attacks that occurred on September 11, 2011."
Please show that "appropriate force" permits targeted assassination.
While the AUMF related to September 11, 2001 is often cited, that AUMF is directly related to the events of 9/11. Also, the AUMF authorizes the use of military force under specified conditions. The CIA is not military. The non-uniformed CIA operatives would fall under the category of unlawful combatants.
U.S. Const., Amdt 5: "No person shall be … deprived of life, liberty, or property, without due process of law…." If the AUMF is interpreted to bypass any provision of the Constitution, then it must be unconstitutional.
This argument will not be ultimately resolved until Congress directly addresses it, and the judicial branch rules on it.
There are problems with the attempt to contort the law to hold as lawful, targeted assassination, absent any due process, based solely on bureaucratic placement on a list. Would it be proper and lawful for Yemen or some other country to declare the Wall Street banksters a terrorist organization, posing a threat to the national security of the world, and initiate attacks upon Wall Street?
#33. To: nolu chan (#32) (Edited)
Please show the slightest evidence that al-Aulaqi had anything to do with "the terrorist attacks that occurred on September 11, 2011."
He met with and, IIRC, harbored two of the 9/11 hijackers and became an integral member of AQ as a spokesman and a plotter and had himself called for "jihad" against the US and acts of terror against us.
Please show that "appropriate force" permits targeted assassination.
Please show me where "appropriate force" means "Shoot but not kill".
Thanks.
And we killed Izzy Yamamoto...
While the AUMF related to September 11, 2001 is often cited, that AUMF is directly related to the events of 9/11.
And the Delcaratio of War on 12/8/41 was directly related to the events of 12/7/41.
That said, the resolution, as I highlighted, extends to those who gave aid and comfort to the plotters or were members of the organization. You may also wish to consider that the resolution clearly states that under the USCON a POTUS may take military action to kill terrorists.
U.S. Const., Amdt 5: "No person shall be … deprived of life, liberty, or property, without due process of law…." If the AUMF is interpreted to bypass any provision of the Constitution, then it must be unconstitutional.
The Congress is charged with making the rules for war and the use of the military. Were the B/R effective in restrainiing all acts and orders of the executive in his role as CIC, any use of the military resulting in death would be so violative of 5A.
This argument will not be ultimately resolved until Congress directly addresses it, and the judicial branch rules on it.
The Congress did when in its 9/18/01 resolution it authorized force against AQ. On the juducial branch ruling - we agree. I'm not the one who will be disappointed were it to be so adjudicated.
America...My Kind Of Place...
"I truly am not that concerned about [bin Laden]..."
--GW Bush
"THE MILITIA IS COMING!!! THE MILITIA IS COMING!!!"
--Sarah Palin's version of "The Midnight Ride of Paul revere"
I lurk to see if someone other than Myst or Pookie posts anything...
#34. To: war (#33)
[war #33] He met with and, IIRC, harbored two of the 9/11 hijackers and became an integral member of AQ as a spokesman and a plotter and had himself called for "jihad" against the US and acts of terror against us.
As far as I know, he stood neither indicted nor charged with any criminal act, much less tried or convicted. I know of no assertion that he "harbored" 9/11 hijackers. Even if there were evidence that two people who later became hijackers stayed with him, absent knowledge that he was a co-conspirator with foreknowledge of future criminal plans, it's nothing. In 2000, he met two of the future hijackers at his mosque in San Diego. The FBI investigated and found no cause to detain al-Aulaqi. The 9/11 commission found they respected al-Aulaqi as a religious leader.
http://en.wikipedia.org/wiki/Anwar_al-Awlaki
Al-Awlaki allegedly spoke with, trained, and preached to a number of al-Qaeda members and affiliates, including three of the 9/11 hijackers, alleged Fort Hood shooter Nidal Malik Hasan, and alleged "Christmas Day bomber" Umar Farouk Abdulmutallab; he was also allegedly involved in planning the latter's attack.
Born in New Mexico in 1971 to Yemeni parents al-Awlaki left the U.S. as a child as his family returned to Yemen. He then came back to America in 1991 as a mosque preacher where he conducted his university studies. He was not seen by his congregations as radical.While in San Diego, he preached at a local mosque, where in 2000 he met two of the 9/11 hijackers, Khalid al-Midhar and Nawaf al-Hazmi. The FBI questioned him at the time but found no cause to detain him.
The U.S. government's 9/11 Commission report says the men 'respected al-Awlaki as a religious figure and developed a close relationship with him.' They were aboard the plane that crashed into the Pentagon.
He then preached at a mosque in Virginia before leaving the U.S. to return to the Middle East where he rose to become one of the CIA's most wanted.
After 9/11 al-Awlaki became the public face of al Qaeda in the Arabian Peninsula and one of the CIA's most wanted men in the world.
Counterterrorism cooperation between the United States and Yemen has improved in recent weeks, allowing better intelligence-gathering on al-Awlaki's movements, U.S. officials said. The ability to better track him was a key factor in the success of the strike, U.S. officials said. Officials spoke on condition of anonymity to discuss intelligence matters.
Al-Awlaki's death is the latest in a run of high-profile kills for America under President Obama. But the killing raises questions that the death of other al-Qaida leaders, including bin Laden, did not.
Al-Awlaki is a U.S. citizen, born in New Mexico to Yemeni parents, who had not been charged with any crime. Civil liberties groups have questioned the government's authority to kill an American without trial.
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[war #33] Please show me where "appropriate force" means "Shoot but not kill".Thanks.
And we killed Izzy Yamamoto...
Please show where AUMF pertains to anything other than military force in combat? How do you translate it to non-military force engaged in assassination?
Do you really find the status of American/Yemini citizen Al-Aulaqi comparable to that of Admiral (Japanese Naval General) Yamamoto?
- - -
[nc #32] While the AUMF related to September 11, 2001 is often cited, that AUMF is directly related to the events of 9/11.[war #33] And the Delcaratio[n] of War on 12/8/41 was directly related to the events of 12/7/41.
That said, the resolution, as I highlighted, extends to those who gave aid and comfort to the plotters or were members of the organization. You may also wish to consider that the resolution clearly states that under the USCON a POTUS may take military action to kill terrorists.
You cannot possibly equate a general declaration of a state of war existing between two nations with the congressional Authorization for the Use of Military Force (AUMF). Your interpretation of the AUMF makes it an open-ended authorization to kill anybody, anywhere, by the non-military CIA, based solely on the person's name being placed on some assassination or kill list.
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.(a) IN GENERAL.—That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) WAR POWERS RESOLUTION REQUIREMENTS.—
(1) SPECIFIC STATUTORY AUTHORIZATION.—Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
Section 5(b) of the War Powers Resolution of 1973.
(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has dedared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces
Section 4 of the War Powers Resolution of 1973.
REPORTINGSEC. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the President shall submit within 48 hour's to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—
(A) the circumstances necessitating the introduction of United States Armed Forces;(B) the constitutional and legislative authority under which such introduction took place; and
(C) the estimated scope and duration of the hostilities or involvement.
(b) The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad.
(c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.
- - -
#35. To: war (#33)
[nc #32] U.S. Const., Amdt 5: "No person shall be … deprived of life, liberty, or property, without due process of law…." If the AUMF is interpreted to bypass any provision of the Constitution, then it must be unconstitutional.[war #33] The Congress is charged with making the rules for war and the use of the military. Were the B/R effective in restrainiing all acts and orders of the executive in his role as CIC, any use of the military resulting in death would be so violative of 5A.
Of course, nobody asserted that "the B/R [is] effective in restrainiing all acts and orders of the executive in his role as CIC."
The 5th Amendment has no applicability to killing in accordance with the laws of war. If I am wearing my DoD warsuit and kill a uniformed enemy on the field of battle during a declared war, it is a lawful act according to the laws of war. Killing of American civilians, not on a battlefield, not engaged in combat, not charged with any crime, by non-military CIA, in the complete absence of due process, is a different matter.
The President is the Commander-in-Chief of the Armed Forces. He is not the commander-in-chief of anything else.
This argument will not be ultimately resolved until Congress directly addresses it, and the judicial branch rules on it.The Congress did when in its 9/18/01 resolution it authorized force against AQ. On the juducial branch ruling on it we agree. I'm not the one who will be disappointed were it to be so adjudicated.
This is an incorrect assumption. The U.S. Courts have repeatedly ruled that it is a political question that has not been decided. If your interpretation were judicially accepted, the Courts would have had subject matter jurisdiction to rule.
I believe it will not be adjudicated while it is a real and present issue. When it is no longer the same real and present issue, the court may rule. At such time, a judicial ruling would find the action to be unlawful.
Basically, the judiciary has somewhat of a history of tolerating or finding ways not to comdemn some Executive Department action during some claimed time of necessity, and then properly opining later that it was unlawful. This may be in recognition of the established fact that if it rules against the Executive, and the President decides to flip them off as Lincoln did in the Merryman case, there is not much the judiciary can do but take note of it and bide its time.
After the Civil War came the case of Ex parte Milligan which spoke directly to the issue of the so-called Law of Necessity which was invoked repeatedly during the war.
THE LAW OF NECESSITY
The alleged "LAW OF NECESSITY" as addressed by the Supreme Court in 1866:
United States Supreme Court, Ex parte Milligan, 71 US 2 (1866), pages 118-127:
No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole
people, for it is the birthright of every American citizen when charged with crime to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and, if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be or how much his crimes may have shocked the sense of justice of the country or endangered its safety. By the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle, and secured in a written constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it, this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direct to leave room for misconstruction or doubt of their true meaning. Those applicable to this case are found in that clause of the original Constitution which says "That the trial of all crimes, except in case of impeachment, shall be by jury," and in the fourth, fifth, and sixth articles of the amendments. The fourth proclaims the right to be secure in person and effects against unreasonable search and seizure, and directs that a judicial warrant shall not issue "without proof of probable cause supported by oath or affirmation." The fifth declares"that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury, 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, nor be deprived
of life, liberty, or property without due process of law."And the sixth guarantees the right of trial by jury, in such manner and with such regulations that, with upright judges, impartial juries, and an able bar, the innocent will be saved and the guilty punished. It is in these words:
"In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence."
These securities for personal liberty thus embodied were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that, when the original Constitution was proposed for adoption, it encountered severe opposition, and, but for the belief that it would be so amended as to embrace them, it would never have been ratified.
Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times
and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.Have any of the rights guaranteed by the Constitution been violated in the case of Milligan?, and, if so, what are they?
Every trial involves the exercise of judicial power, and from what source did the military commission that tried him derive their authority? Certainly no part of judicial power of the country was conferred on them, because the Constitution expressly vests it "in one supreme court and such inferior courts as the Congress may from time to time ordain and establish," and it is not pretended that the commission was a court ordained and established by Congress. They cannot justify on the mandate of the President, because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws, and there is "no unwritten criminal code to which resort can be had as a source of jurisdiction."
But it is said that the jurisdiction is complete under the "laws and usages of war."
It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that, in Indiana, the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances, and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life in nowise
connected with the military service. Congress could grant no such power, and, to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise. One of the plainest constitutional provisions was therefore infringed when Milligan was tried by a court not ordained and established by Congress and not composed of judges appointed during good behavior.Why was he not delivered to the Circuit Court of Indiana to be proceeded against according to law? No reason of necessity could be urged against it, because Congress had declared penalties against the offences charged, provided for their punishment, and directed that court to hear and determine them. And soon after this military tribunal was ended, the Circuit Court met, peacefully transacted its business, and adjourned. It needed no bayonets to protect it, and required no military aid to execute its judgments. It was held in a state, eminently distinguished for patriotism, by judges commissioned during the Rebellion, who were provided with juries, upright, intelligent, and selected by a marshal appointed by the President. The government had no right to conclude that Milligan, if guilty, would not receive in that court merited punishment, for its records disclose that it was constantly engaged in the trial of similar offences, and was never interrupted in its administration of criminal justice. If it was dangerous, in the distracted condition of affairs, to leave Milligan unrestrained of his liberty because he "conspired against the government, afforded aid and comfort to rebels, and incited the people to insurrection," the law said arrest him, confine him closely, render him powerless to do further mischief, and then present his case to the grand jury of the district, with proofs of his guilt, and, if indicted, try him according to the course of the common law. If this had been done, the Constitution would have been vindicated, the law of 1863 enforced, and the securities for personal liberty preserved and defended.
Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country
have differed on the correct interpretation to be given to various provisions of the Federal Constitution, and judicial decision has been often invoked to settle their true meaning; but, until recently, no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed, but if ideas can be expressed in words and language has any meaning, this right -- one of the most valuable in a free country -- is preserved to everyone accused of crime who is not attached to the army or navy or militia in actual service. The sixth amendment affirms that, "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury," language broad enough to embrace all persons and cases; but the fifth, recognizing the necessity of an indictment or presentment before anyone can be held to answer for high crimes, "excepts cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger," and the framers of the Constitution doubtless meant to limit the right of trial by jury in the sixth amendment to those persons who were subject to indictment or presentment in the fifth.The discipline necessary to the efficiency of the army and navy required other and swifter modes of trial than are furnished by the common law courts, and, in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial, and the manner in which they shall be conducted, for offences committed while the party is in the military or naval service. Everyone connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and, while thus serving, surrenders his right to be tried by the civil courts. All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity. When peace prevails, and the authority of the government is undisputed,
there is no difficulty of preserving the safeguards of liberty, for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion -- if the passions of men are aroused and the restraints of law weakened, if not disregarded -- these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.It is claimed that martial law covers with its broad mantle the proceedings of this military commission. The proposition is this: that, in a time of war, the commander of an armed force (if, in his opinion, the exigencies of the country demand it, and of which he is to judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies and subject citizens, as well as soldiers to the rule of his will, and, in the exercise of his lawful authority, cannot be restrained except by his superior officer or the President of the United States.
If this position is sound to the extent claimed, then, when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper, without fixed or certain rules.
The statement of this proposition shows its importance, for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law established on such a basis destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power" -- the attempt to do which by the King of Great Britain was deemed by our fathers such an offence that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure
together; the antagonism is irreconcilable, and, in the conflict, one or the other must perish.This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew -- the history of the world told them -- the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued human foresight could not tell, and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this and other equally weighty reasons, they secured the inheritance they had fought to maintain by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus.
It is essential to the safety of every government that, in a great crisis like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character wicked enough to counsel their fellow-citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies, and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible, and yet the period to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit in the exercise of a proper discretion to make arrests, should not be required to produce the persons arrested
in answer to a writ of habeas corpus. The Constitution goes no further. It does not say, after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy, by the use of direct words, to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.It will be borne in mind that this is not a question of the power to proclaim martial law when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service during the late Rebellion required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them, and it is urged that this, in a military sense, constituted them the theater of military operations, and as, in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and, with
it, all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration.It is difficult to see how the safety for the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal, and as there could be no wish to convict except on sufficient legal evidence, surely an ordained and establish court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.
It follows from what has been said on this subject that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society, and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration, for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion, it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed and justice was always administered. And so, in the case of a foreign invasion, martial rule may become a necessity in one state when, in another, it would be "mere lawless violence."
Regarding the Japanese relocation program, the Court held that in order to prevent espionage and sabotage, the authorities could restrict movement by curfew order,1 or by regulation excluding them from defined areas,2 but a citizen of Japanese ancestry whose loyalty was conceded could not be detained in a relocation camp.3
1. Hirabayashi v. United States, 320 U.S. 81 (1943).
2. Korematsu v. United States, 323 U.S. 214 (1944).
3. Ex parte Endo, 323 U.S. 283 (1944).
Were a president to determine that such a class of people were to be placed on a kill list and exterminated, it would clearly be a war crime. At what point does a kill list and the resulting kills become a war crime?
After the fact, the detention of loyal citizens of Japanese ethnicity is considered shameful. Not to belabor the obvious, but we did not also detain loyal citizens of German or Italian ethnicity.
Detention or restriction of resident aliens, still citizens of Germany or Italy, did take place but teir status was quite different than that of an American citizen. They were citizens of a foreign power with whom we were at war.
#36. To: nolu chan, war (#35)
people, for it is the birthright of every American citizen when charged with crime to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and, if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be or how much his crimes may have shocked the sense of justice of the country or endangered its safety. By the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle, and secured in a written constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it, this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direct to leave room for misconstruction or doubt of their true meaning. Those applicable to this case are found in that clause of the original Constitution which says "That the trial of all crimes, except in case of impeachment, shall be by jury," and in the fourth, fifth, and sixth articles of the amendments. The fourth proclaims the right to be secure in person and effects against unreasonable search and seizure, and directs that a judicial warrant shall not issue "without proof of probable cause supported by oath or affirmation." The fifth declares"that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury, 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, nor be deprived
War isn't a constitutionalists. He says he is but it is just to give him cover as he attacks it. Ever notice he always taxes the position of the elites in DC?
#37. To: nolu chan (#34)
Please show where AUMF pertains to anything other than military force in combat?
Please cite your authority for claiming that a) the resolution requires that all military actions be "combat" when the resolution clearly states "all necessary and appropriate force" and that command and control structures and personnel would be immune from any type of military strike or that b) a drone attack is not "military force"?
And please don't cite wikipedia as being some sort of authority.
Thanks.
You do know that the Ft. Hood shooter is not being tried in civilian court?
You cannot possibly equate a general declaration of a state of war existing between two nations with the congressional Authorization for the Use of Military Force (AUMF). Your interpretation of the AUMF makes it an open-ended authorization to kill anybody, anywhere, by the non-military CIA, based solely on the person's name being placed on some assassination or kill list.
AUMF dated 9/18/01 is not a general declaration of a state of war between two nations. It is a resolution which authorized the use of military force against AQ to both retaliate for the 9/11 attack and to thwart future attcks from the same organization. "a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
The resolution cannot be interpreted in the narrow sense that you want it to be which would be to allow for force for who the hell knows what. The resolution specifically authorizes preemptive strikes to thwart future acts of terrorism by AQ. The Congress understood this when it required DumbDubv43 to seek a separate resolution to invade Iraq. I doubt that you'd find 5 Congressmen who would agree that the original 9/18/01 resolution did not authorize continued action against AQ anywhere they may be.
As for you citation of the War Powers Act, what makes you believe that Obama is not consulting with the Congress?
America...My Kind Of Place...
"I truly am not that concerned about [bin Laden]..."
--GW Bush
"THE MILITIA IS COMING!!! THE MILITIA IS COMING!!!"
--Sarah Palin's version of "The Midnight Ride of Paul revere"
I lurk to see if someone other than Myst or Pookie posts anything...
#38. To: nolu chan (#35)
The 5th Amendment has no applicability to killing in accordance with the laws of war. If I am wearing my DoD warsuit and kill a uniformed enemy on the field of battle during a declared war, it is a lawful act according to the laws of war. Killing of American civilians, not on a battlefield, not engaged in combat, not charged with any crime, by non-military CIA, in the complete absence of due process, is a different matter.
The Resolution does not limit the use of force to that which can only be undertaken by the military. If you believe that it does please cite the appropriate section of the resolution which so limits the use of force to that initiated by the military.
America...My Kind Of Place...
"I truly am not that concerned about [bin Laden]..."
--GW Bush
"THE MILITIA IS COMING!!! THE MILITIA IS COMING!!!"
--Sarah Palin's version of "The Midnight Ride of Paul revere"
I lurk to see if someone other than Myst or Pookie posts anything...
#39. To: A K A Stone (#36)
Shh...watch and learn for once...
America...My Kind Of Place...
"I truly am not that concerned about [bin Laden]..."
--GW Bush
"THE MILITIA IS COMING!!! THE MILITIA IS COMING!!!"
--Sarah Palin's version of "The Midnight Ride of Paul revere"
I lurk to see if someone other than Myst or Pookie posts anything...
#40. To: war, nolu chan (#39)
Shh...watch and learn for once...
I am watching. I'm watching nolu chan kick your ass.
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