Wither Due Process

I find it irritating that folks like President Obama feel like the power to indefinitely detain people, without due process, is Constitutionally OK as long as the President does not abuse the power.  Sorry, but the very existance of this power is a violation of the Constitution.  The whole point of that great document was to always assume that state powers would be abused, and I think history has taught that this is a fair assumption

  • me

    Yup, this is the "America jumped the shark" moment of history... rights are now privileges, and it's more than ok to cause bodily injury to people who have been *gasp* sitting on sidewalks(!), but to not prosecute war criminals, financial criminals and officials committing election fraud. Because those were of course our guys and we have to look forward not backward.

  • caseyboy

    Its why we have a 2nd amendment right to bear arms.

    "Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!" Benjamin Franklin

    Never forget, "It is when a people forget God that tyrants forge their chains." Patrick Henry

    These guys were good.

  • Mark

    But what is "people"? YOur claim makes it seem that the government is willy-nilly locking up people indefinitely. Sorry, that is not the case. The Executive has always had the power to lock up enemy combatants "indefinitely". For example, the Federal government had the power to "lock up" soldiers fighting in the armies of the Confederate States of America that they captured (mostly in conditions far worse that Guatanomo) indefinitely. The same with individuals caught spying, in the Civil War or even World War II.

    The problem with all of these libertarian chants of "Wither Due Process" is that they are trying to make something that is specific into something general, and not really doing a very good job of it, and because of creating these generalities, going beyond reason in claiming violations of the Constitution were none exist.

    About the only real argument is "Is the government abusing its power to classify terrorist as enemy combatants?" And, the obvious answer to that question is no. THe federal government has done this in the past, such as incarcerating American citizens of Japanese decent during World War II. But even that was a very specific issue, and there is very little evidence that the government is abusing its power now.

  • caseyboy

    Mark, give em an inch and they'll take a mile. Congress' ability to govern interstate commerce has morphed into governing non-activity. Government encroachment rarely reverses without strong opposition.

    "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." Thomas Jefferson

  • caseyboy

    Uh-Oh did I write that out loud? I hope the thought police don't read this blog.

  • Goober

    Mark;

    You are missing the point entirely. Absolutely and positively, without question, missed it by a mile.

    Warren never claimed that the government is locking people up "willy nilly." That is a straw man. It only takes one man, suspected of terrorism, locked up indefinitely, and denied his constitutional rights to habeas corpus and due process, to make this wrong. There is no high or low limit to this being okay. In fact, it doesn't even have to happen once. Just the fact that the government has the ability to do this is absolutely wrong and anti-constitutional. Your example of soldiers fighting for the Confederate side is invalid because those people were citizens of another ocuntry - the Confederate States of America - and had renounced their US citizenship. They were truly enemy combatants.

    Additionally, you are absolutely wrong about spys during WWII. US citizen spys were not held indefinitely - the indefinite "enemy combatant" thing only applied if they were non-citizens. If they were US citizens caught spying for the other side, they were arrested, charged with treason, given a trial, and either convicted or acquitted of treason by a jury of their peers - exactly like it says they have to do in the Constitution. Hell, in cases where we wanted to nail the non-citizen spies for crimes, we gave them a trial.

    Doesn't it occur to you that it is a bad idea to let the governmen use its judgement on who to brand an "enemy combatant" and ship off to Guantanamo, especially given that they sent out a memo recently saying that returning soldiers and people with right wing bumper stickers are likely terrorists?

    As far as claiming no violations of the Constitution exist in holding a citizen indefinitely without trial or representation, I'm wondering where in the constitution you read that. As far as i can tell, the words written here:

    " nor be deprived of life, liberty, or property, without due process of law; "

    where "due process" is later described to be a speedy trial by a jury of the peers where they are entitled to representation and presumed innocent until proven guilty.

    I'm curious how you don't see that an indefinite internment is a violation of those rights.

    As for your assurances that the government won't abuse this power, you give a very good example in the internment of the Japanese during WWII - THEY ALREADY HAVE! It isn't a question about whether they will or won't - the abuses continue unfettered every single day. When a guy smuggling baby food in Maine loses his constitutional protecttions against search and seizure because they unleashed the Patriot act on him, I can't help but think that you are either terminally atupid or delusional to not see that this is not a case of "if" or "when" but IT IS ALREADY OCCURING.

  • Hunt Johnsen
  • GoneWithTheWind

    During WW II the U.S. held 625,000 German prisoners within the U.S. Was that wrong? The plan was to hold them indefinitely, i.e. until the war ended and a treaty was signed. There was never a plan to try them in our courts or provide them with lawyers. We were at war! We are at war today. The opposing side/army choose not to play by the rules and wear uniforms and fight on designated battlefields but I don't see how that suddenly translates into a situation were we could not hold a prisoner of war (terrorists or whatever) indefinitely. Maybe you believe we should give these terrorists welfare, a new home and free health care.

  • Mark

    "suspected of terrorism, locked up indefinitely"

    Sorry, the claims that such an individual, classified as an enemy combatant, has the rights you claim is absolutely false.

    "Your example of soldiers fighting for the Confederate side is invalid because those people were citizens of another country"

    Ummm, absolutely false. The Federal government, and no other government for that matter, ever recognized the Confederate States of America as another country. THey recognized that organization as an organization in rebellion to the proper government of the United States. Soldiers fighting for the SOuth were citizens of the United States but in rebellion, and hence held as "enemy combatants." A terrorist allied with a terrorist organization is the same, citizen of the United States or not, an enemy combatant and can be held indefinitely.

    "give em an inch and they’ll take a mile"

    Well, I totally disagree with your premise because it is not supported by historical fact. For example, during the Civil War, Abraham Lincoln suspended the writ of habeus corpus. Somehow, after the rebellion was over the writ was reinstated?? During WWI and WWII the government placed many restrictions on the press and citizens, countered espionage with some very strong measures, and after these wars were over normal peace time life was restored.

    The government has the power to classify people as enemy combatants and then hold them indefinitely. Only a government intent on self suicide would not retain this power because it no longer would be able to protect itself. Luckily, in this country, we have the mechanisms to evaluate how the government operates and to make changes. The unfortunate election of Barrack Obama was supposed to be such a "change"; he heavily criticized the Bush Administration's policies on most of these matters and very hastily claimed that within one year he would close down "Gitmo". The problem with such claims is that they are fanciful. The actions of the Bush Administration were legal and in almost every case, correct, and there really did not exist any possible alternatives. That is why the Obama Administration, instead of being "change agents", have continued the very same policies that they considered to be illegal and simple-minded.

  • Rob

    The next step into expand the definition of terrorism.

  • Gil

    I agree with Mark and others seem to imply that the citizens always have the right to execute politicians whenever they feel like they deserve it and won't face repercussions.

  • Mark

    "The next step into expand the definition of terrorism"

    If the "next step" comes, then we can address it when it comes. The "slippery slope" argument is a very weak one because it is not based on the merits of the policy, and basically concedes that you have no valid arguments against the current policy.

  • Matt M

    Mark,

    You don't seem to get it. Arguing about the wrongs or methods used in the past disproves your point. The point is that all governments throughout history, including here in America, have abused their power. Any increase in the power of these tyrants is a step towards utter totalitarianism.

    Your quote here: The government has the power to classify people as enemy combatants and then hold them indefinitely. Only a government intent on self suicide would not retain this power because it no longer would be able to protect itself.

    This shows your ignorance. It is a ruse. The all-encompassing nature of all these laws allow the government to do anything to you. But clearly that is how you view government. You view that government is a thing that needs "to protect itself" My view of government is that it is formed of representatives of a group of people in order to protect them.

    The next step is already here. Slippery slope ? I suppose in 1935 you would have said the same thing about the Nuremberg Laws as well??

    Check out this "suspicious activity" http://www.pbs.org/wgbh/pages/frontline/are-we-safer/suspicious-activity/

    Rand Paul also noted that having missing fingers, 7 days of stored food and other silly things are also on the books as potential signs. I can not confirm this however.

  • M Heiss

    Wither, indeed.

  • mahtso

    Qs: What process is due? And what is the legal authority for the answer(s)?

    I know the 5th A has some language that does appear to show that in criminal cases due process is required before one can be deprived of liberty, but it does not (to my knowledge) define either "crininal case" or "due process."

  • mahtso

    Ok, and it also does not define "criminal case" -- read first, post second!

  • Gil

    Matt M your ramblings are the sort that'd get Libertarians into a lot of trouble.

  • Matt M

    Gil,
    Explain?? What trouble?

  • Mark

    "The point is that all governments throughout history, including here in America, have abused their power."

    The term "abused" is ridiculous. For example, Abraham Lincoln did not "abuse" power during the Civil War. The Constitution clearly gave him the powers that he used including the suspension of habeus corpus and create the Emancipation Proclamation, which was essentially a military order made by the commander in chief.

    Further, what you claim to be abuse, I claim to be proper measures in time of emergency and rebellion. Would I support those measures in "normal" times? No. Is there some things that I think may have went too far? Sure. But clearly to preserve the union and defeat the rebellion certain measures that would be abhorrent in peacetime were clearly appropriate, including suspension of free speech, trial by jury, and classifying individuals as enemy combatants and holding them indefinitely in detention. In an era when there are terrorist organizations intent on damaging the safety of the citizens of the United States, many of the same "abuses" need to occur to protect the safety of the citizens of the country.

    AS far as "indefinite detention", almost everyone held as enemy combatants would have already been prosecuted except by their own actions. Eventually, all of these individuals will be tried in military court and receive their justice.

  • chrispy

    "The Constitution clearly gave him the powers that he used including the suspension of habeus corpus..."
    Really? Can you please show me where? My copy seems to be missing that clause.

  • Matt M

    Mark, After those comments you have cleared it up for me. You are just sadly mis-informed. You need to read Lincoln Unmasked by DiLorenzo.

    Also, the concept that you think that is okay for governments to overstep their bounds in time of "crisis" or various dangerous circumstances shows your true colors. Scary that you vote.

  • Mark

    "Really? Can you please show me where? My copy seems to be missing that clause"

    What, obviously your copy of the Constitution is missing this:

    The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

    There is some debate as to which branch of government has the power to suspend. There are reasonable arguments that claim that only Congress has this power, and one of the basic reasons for this claim is that this language was found in Article I. However, when the Constitution was adopted the Framers clearly understood that Congress, which was in session for only a few months out of the year and in 1787 it could take months to form a quorum because of the communications and travel requirements of the day, would be powerless to react to many of the emergency conditions that necessitated any consideration of suspension. Only the Executitve branch was "in session" 100% of the time, and only the Executive branch had the real power to enforce it (for example, in Ex Parte Merryman Roger Taney, of Dred Scott fame, ruled against Lincoln but Lincoln just ignored him because he controlled the army).

    The "solution" used in 1863 is pretty much the process that should be followed for such issues: the Executive acts in an emergency and Congress then backs him up, just as Congress backed President Bush up with the Patriot Act and other such measures.

  • Mark

    "Also, the concept that you think that is okay for governments to overstep their bounds in time of “crisis” or various dangerous circumstances shows your true colors"

    Seriously? Again, the government never overstepped their bounds. ALl of the actions were clearly allowable in times of crisis and war. So, your statement is false from the very beginning.

    If you want to argue a specific case, then that is a different matter. Maybe in your opinion President Lincoln should not have suspended the writ of habeus corpus. Maybe there are other actions that you disagree with. But, that is just your opinion and Lincoln clearly had the power to do the actions that he undertook to save the country as it existed. Maybe, even, you think that they should have just let the southern states leave the union? I think there are reasonable arguments that can be made on that issue, but overall, they are wrong. The Constitution was clearly a binding compact and the southern states were in rebellion to the laws of the country, triggering mostly proper responses.

  • http://www.rashynullplanet.com/blog/ Matt

    "Mark" wrote:
    "there is very little evidence that the government is abusing its power now"
    "the government never overstepped their bounds"

    Don't feed that sycophantic troll.

  • Dwall

    We need a new word. What should we call these people before they move back to the fringe and shadows after rejection by American voters 11/6/2012? They are a strange combination of Fabian Socialists, communists/marxists, Soros open society, Democracy Alliance Billionaire globalists, Apollo Alliance felons, SDS, OWS, Sunstein wack jobs, mother Gaia unicorn greenies, progressives, Van Jones/soros American Dream, clinton/soros Center for American destruction and far left deranged Keynesians. We do need a new label since they will be around for a while before they burn through the tens of billions stolen from the kids.

  • Gil

    Since Libertarians see governments as evil and unnecessary then by definition its abusive by existing at all.

  • mahtso

    My questions have gone unanswered. I assume that is because those asserting a Constitutional violation exists cannot provide any legal authority to support that position.

  • Ted Rado

    The problem is that noone knows how to define insurgents and terrorists. They do not fit neatly into the definition of enemy soldiers or ordinary criminals. Perhaps some new category needs to be invented, along with rules on how to deal with them. In the meantime, we are spinning our wheels arguing whether these people should be treated as enemy combataants or criminals. The USG does the best they can under the circumstances. Are mistakes made? Of course.

    Prisoners of war obviously cannot be handled as criminals in jail. In WWII, the Germans captured over ten million prisoners. The US captured several hundred thousand. They were all held until the war ended. Obviously each one could not be furnished with a lawyer and processed in court.

  • NormD

    Thinking about it, Warren's fanatical claim that a US citizen has an absolute "right" to never be indefinitely detained, no matter what the situation, is a religious argument. Where else does this "right" come form? Certainly not Nature. The Founding Fathers thought these rights were ordained by God, but I doubt Warren is claiming this.

    Hummmmmmmmm

    The Constitution? OK. But, reality check, no judge will use the Constitution to interpret the law in a way that 99% of the people disagree with. Can you imagine what would have happened if a court had declared Gay Marriage a constitutional right in 1820???

    I worry that Warren's absolutism could easily lead to a wholesale junking of the Constitution.

    If we had a situation like in Israel a few years back where suicide bombers were constantly blowing up crowds and Warren insisted that the Constitution prevented detaining suspects then his absolutism could easily result in a repudiation of the Constitution.

    Does he think an alien police force is going to arrive from space to enforce it?

    I am reminded of the Rwandan massacre. After the genocide had been ended in flew planeloads of human rights lawyers to ensure that the "rights" of the monsters who perpetrated the massacre where protected.

    Legal structures (Constitution, laws) only have value if they have some level of practicality and they are supported by an appreciable portion of the population.

  • steve

    I am curious Mark. Just what does it take to constitute an abuse of power by the government in your mind?

    Suspension of habeous corpus during the civil war resulting in the arrest of critics of Lincoln including U.S. congressmen? Clearly, justified I am sure. How about the sedition act during World War I where anti-war protestors where imprisoned. Again a clear case of justice for all. Or how about, the internment of american civilians with Japanese ancestry during WWII. All justified by the dangers of the moment no doubt.

    And of course, now that a few hundred Al-Qaida terrorists exist along with millions of Muslims it is absolutely necessary to remove all formality and any and all paperwork that might greatly hamper the U.S. justice system from processing the overwhelming number of terrorist cases it is forced to deal with every day. God forbid that we take the time to listen to the accused side of the story before locking them away forever. That would just overwhelm our fragile system of justice with maybe dozens of terrorist cases, and provide the terrorists with a propoganda platform from which to prosletyze our fragile American ears.

  • http://johnsterling.wordpress.com John Sterling

    I think you mean to write whither, not wither, unless you mean that due process itself is withering.

  • Smock Puppet, Frequent Fantasy Flyer

    >>> But what is “people”? YOur claim makes it seem that the government is willy-nilly locking up people indefinitely. Sorry, that is not the case. The Executive has always had the power to lock up enemy combatants “indefinitely”.

    This is technically true, but if it were that simple, then why do we need a new law about it?

    And it's not that they're doing this NOW, it's that they're acting like it should not be something very rare and very occasional, or that involvement of actual US CITIZENS, acting on US Soil, in the mix should not be causing a very serious "WHOA!" doubletake.

    Unfortunately, the whole War on Terror is an unconventional war and as such is playing havoc with the notions of the rights of citizens. And the bad part is, the bad guys are just fine and dandy with that.

  • Smock Puppet, Frequent Fantasy Flyer

    Much more of concern is not JUST this, but use of it in connection with the now-claimed fact that "national security" can be used to not only DENY FOIA requests, but the government can now actually deny the information even EXISTS.

    Now put the two together.

    President IL has protesters raising a ruckus against his administration. These protesters are led by Protester X. So Mr. IL arranges for him to be arrested and detained, quietly, using unconventional forces and means. He then detains him "indefinitely" for trial.

    People ask "What happened to X?" Some reporters get wind, through an inside informant, of some documents which detail that he has been arrested and detained. The reporters file FOIA requests for the specific documents. The IL administration denies that there are any such documents.

    X has now become what is known in Newspeak as an "unperson". He pretty much doesn't exist any more, as far as anyone in the public knows, or has reference to.

    Let's create an even worse scenario.

    The special forces that were sent out to pick up 'X' make an error, and pick up his neighbor, 'Y', instead. 'X' gets wind of the fact that they are after him, and just missed, and goes into hiding, staying quiet for a while.

    The detaining forces fail to realize, despite his protestations, that he's not 'X'. The process of realization of this takes long enough that to release 'Y' would be a public humiliation to the IL administration. So they keep him there, indefinitely, and continue to deny all efforts to find out what happened to 'Y'... "for national security reasons".

    NAWWWW, can't happen in a modern, industrial society, cannot possibly be that innocents would continue to suffer for the protection of the political embarrassment of the members of a bureaucracy?

    Are you really, really sure about that?

  • Smock Puppet, Frequent Fantasy Flyer
  • Smock Puppet, Frequent Fantasy Flyer

    Hmmm. Appears to have eaten one.

    "Keep Your Powder Dry"

  • Not Sure

    How do you know somebody is an enemy combatant and should be locked up? Because the government says they are. And you can trust the government because the people running it don't lie about what they do and why.

    Right?

  • Smock Puppet, Frequent Fantasy Flyer

    >>> How do you know somebody is an enemy combatant and should be locked up? Because the government says they are. And you can trust the government because the people running it don’t lie about what they do and why.

    No no no:

    "How do you know somebody is an 'enemy combatant' and has been locked up?"

    Because the government denies all knowledge of their disappearance. No, you don't need to know what that man behind the curtain is... wait, what man? There's no man behind that curtain. No, there's not even a curtain there. What are you, paranoid? Clearly you should be locked up for your own protection!

  • Aedigus

    Come on, people: governments never abuse their powers. Everything they do to us is for our own good. The very notion that a politician - any politician, anywhere, ever - would have less than pure motives or a less than perfect assessment of justice and right is laughable.

    In fact, since the government *is* the people, we would really just be detaining ourselves indefinitely. Nothing wrong with that!

  • Mark

    "Perhaps some new category needs to be invented"

    No, a new category does not need to be "invented", it already exists: enemy combatant. And the rules on how to treat an enemy combatant already exist. Most countries around the world have a very simple rule on how to handle such an individual; a swift execution. It is a joke that other nations around the world are pretending that they have the moral high ground on this issue: Russia, China, Britain and France? Laughable. These Gitmo prisoners might really have something to complain about if we treated them in the same manner as the English treated Irish prisoners or the French any of the myriad of colonials under their domain.

    "Suspension of habeous corpus during the civil war resulting in the arrest of critics of Lincoln including U.S. congressmen? "

    You better believe I think that this was justified. These individuals were in rebellion to the government and the People have the right to defend themselves. Preserving the union justified these measures.

    " How about the sedition act during World War I where anti-war protestors where imprisoned."

    Governments have the right to create laws regarding sedition. Most governments around the world have much stronger sedition laws even in peacetime than anything the United States has ever contemplated. Although the concept has been modified over time, "Clear and Present Danger" is a pretty useful concept and I think modern courts have watered it down too much. And, the fact that most of these sedition laws were relaxed after the wars and habeas corpus restored after emergencies pretty much validate the point I make: The measures need to be evaluated in their own time and the history of the United States demonstrates that we will return to "normal" once any emergency, rebellion, or war is over.

    "Or how about, the internment of american civilians with Japanese ancestry during WWII. All justified by the dangers of the moment no doubt."

    I do not justify this, although I can understand why they happened. Japanese spies in Hawaii greatly aided the Japanese attack. This unfortunate fact, along with the anti-Asian prejudice found on the West Coast for decades, fueled this action. It was a very ineffective way of creating security, but again, compared to how other contemporary countries handled similar issues the Japanese internment was mild. In almost every other country in the world during these emergencies, handling such problems was shoot first and ask questions later. That does not justify the action of the government, but it is not as if they were shipped to Auschwitz either.

    "God forbid that we take the time to listen to the accused side of the story before locking them away forever. "

    YOu seem to be very ignorant of what actually happens to these individuals. These people receive due process under the laws of war.

    It gets tiring listening to all of this sorrow for a bunch of terrorists and claiming that they somehow should be allowed access to US civil courts, even though this is a right most US servicemen do not even have.

  • steve

    "You better believe I think that this was justified. These individuals were in rebellion to the government and the People have the right to defend themselves."

    You seem to think the suspensions were aimed solely at the rebels in the south. They weren't. From Slate:

    "If Lincoln's Maryland actions were dubious, a wave of arrests the following summer under another habeas corpus suspension was downright indefensible. The wave began after Congress instituted the first-ever military draft in July 1862. Because the draft proved highly unpopular and hard to enforce.

    The exceedingly broad mandate precipitated a civil liberties disaster. It allowed local sheriffs and constables to decide arbitrarily who was loyal or disloyal, without even considering the administration's main goal of enforcing the draft. At least 350 people were arrested in the following month, an all-time high. Some of the accused had done nothing worse than bad-mouth the president.

    But the full question of whether the Constitution gave the president a special power to suspend the writ of habeas corpus during wartime never got to the Court. In large part that's because the administration made sure it didn't. It had a valid fear that the Court would rule against there being such a power under the Constitution, and such a ruling would undermine the war effort. On the other hand, by keeping the matter away from the Court, the administration could largely accomplish its policy."

    "It gets tiring listening to all of this sorrow for a bunch of terrorists and claiming that they somehow should be allowed access to US civil courts, even though this is a right most US servicemen do not even have."

    This is an example of the basic problem. You have labeled and condemed them as terrorists simply by the fact that they were arrested under these laws. This suspension specifically cites U.S. civilians on U.S. soil who didn't voluntarily join the U.S. Army by the way. We are simply to take the governments word for it that they are terrorists. No, I have no sympathy for people who blow people up as you imply. However, unlike you, to make my own snide implication, I have little fear that any juries will either. So, I see no problem with trying them under civilian law. I do, however, fear giving the legal power of "dissapearing people" to the government. It is especially worisome considering the war on scary pissed off people will end as soon as scary pissed off people no longer exist.

    "YOu seem to be very ignorant of what actually happens to these individuals. These people receive due process under the laws of war."

    Yeah okay I will give you this one, this shift from civilian to military courts isn't aimed at reducing the paperwork it is aimed at making convictions a near certainty on accusations alone.

  • steve

    Marks argument in a nutshell.

    Heck, things aren't as bad as under Stalin or Hitler or some other regime so get over it. Besides, as long as bad guys exist, the government needs more power to deal with them.

  • Rusty_Shackleford

    Any government that comes right out and declares that it unequivocally reserves the power to summarily kill or imprison it's citizens without trial or due process has put it self into a state of war with the people.

  • Not Sure

    "It gets tiring listening to all of this sorrow for a bunch of terrorists..."

    Terrorists according to whom? And by what evidence? That you appear to believe the government is infallible in their determinations is in no way evidence that they, in fact, are infallible.

    Innocent people are often enough accused and convicted at trial by government agents who play fast and loose with the law, yet you'd have us believe the same government can be trusted to be honest and straighforward when all they need is their own say-so to lock people away or execute them? You're awfully trusting.

  • Goober

    What is the point of all of this anyway? If they committed a crime, charge them with a crime. If they haven't committed any crime, why the hell do you need to lock them up, and what right do you have to do so?

    What triggers this? I mean, think about it. If a guy breaks a law by committing a crime against the US, he should be arrested and charged and sent to prison. The only reason the government would want this power is to imprison people who haven't committed any crime.

    What other purpose could you find? Sending money to terrorist organizations is aiding the enemy. BAM! Treason charges.

    Fighting with the enemy is aiding the enemy. BAM! Treason charges.

    What's left? Propaganda? Well, material propaganda in aid of the enemy's cause is pretty clearly providing aid and comfort to the enemy. BAM! Treason charges.

    Speech in support of their cause that doesn't foment violence or incite violence? Anti-American speech? Sorry, pal, you don't get to imprison people for speaking their mind as long as they aren't obviously fomenting violence. This is the grey area where I fear the government will tread in this issue. All other violations are chargeable with a crime, so why worry about this indefinite detainment? If the crime exists, charge and sentence. How hard is that?

    The problem is that they want to use this when no crime exists. Otherwise, why ask for it at all? Are we looking at a future when we have a bunch of "Code Pink" protestors sitting in a cell for the rest of their natural lives because they are aiding and abetting the enemy and don't get a trial, just a punishment? Mark, I'd be interested to see your response.

    Just a warning, if your response is essentially "I am okay with the government locking anyone up that speaks negatively about the United States and hasn't committed any crime at all" then two things are true:

    1.) I am ashamed to call you my countryman, and so would be every single one of our founding fathers;

    2.) You are a dangerous, deluded person who has no grasp whatsoever on the workings of the real world. For your own good, you need to deal with that quickly, because the sooner you do, the sooner you will realize that government isn't there for your benefit - it is there for it's own benefit.

  • Gil

    Dammit Goober treason has always been a crime. No you can't go into the White House with a gun and shooting politicians dead because Jefferson mentioned something about liberty trees needing refreshing with blood and pretend that's legal.

  • Mark

    "reserves the power to summarily kill or imprison it’s citizens without trial or due process has put it self into a state of war with the people."

    And, this claim is utterly false. Enemy combatants do get "due process" under the laws of war. Like the uniformed members of the United States military, they are part of the military judicial system. Courts martial is a part of justice that is recognized all throughout the world and serves as necessary due process.

    "You seem to think the suspensions were aimed solely at the rebels in the south"

    No, I said individuals in rebellion. Most of these activities took place in the border states like Kentucky and Maryland that were strategic battlegrounds critical to the war. Suspending the writ of habeas corpus was a proper and necessary war measure. To argue otherwise is plain lunacy.

    "We are simply to take the governments word for it that they are terrorists. "

    Again, there is a very thorough process that happens in determining if an individual is an enemy combatant.

    "That you appear to believe the government is infallible in their determinations is in no way evidence that they, in fact, are infallible."

    And in no means have I ever implied. However, the process of trying enemy combatants in courts martial is the proper means of due process for these individuals. For almost every individual the evidence is overwhelming. Most of the detainees have already been through most of the process. In total 775 detainees were brought to Guananamo. Many have been released based upon review of their case. To pretend that this process is some sort of blind alley of justice is simply misleading at best.

    In the end, the detainees have been whittled down to a small handful of the most dangerous of terrorists, and if you want to claim their innocence, go right ahead. That some people were swallowed up in the War on Terror is unfortunate, but that is what happens in such conflict. The United States did not wish this upon ourselves. We found ourselves at war with militant Islamic groups who attacked our soil using terroristic methods. Nothing is pretty in such conflicts, and the US has done its best to make sure that "rights" are balanced with national security. To pretend that such a tradeoff does not exist is foolish and suicidal.

  • steve

    Well with all the due process and justice afforded U.S. citizens suspected of terrorism I see no reason to limit them solely to terrorist cases on American soil. Why not just use them in all cases? At least drug cases actually are clogging up the justice system so maybe some expiditing is warranted. Surely, there must be some qualitative or quantitative difference.

    "A military tribunal, or commission, is different from a regular civilian criminal court. In a tribunal, military officers act as both judge and jury. After a hearing, guilt is determined by a two-thirds majority vote of the commissioners. The presiding officer will have the authority to admit or exclude evidence. The officer may also conduct the trial in closed session. The procedures do not provide for appeals from a guilty verdict."

    Nope, I don't see anything that could be abused here.

  • Smock Puppet, Frequent Fantasy Flyer

    >>> “The Constitution clearly gave him the powers that he used including the suspension of habeus corpus…”
    Really? Can you please show me where? My copy seems to be missing that clause.

    The general argument used, including by the SCotUS, is that the PotUS, as the executive branch authority, has extensive powers to act in the event of war. Given that we have the War on Drugs and the War on Terrorism to deal with, you can presume we now are in a perpetual state of war and that the PotUS can do pretty much anything he wants.

    Whether or not the FFs would have gone with such an interpretation on any of several levels is a very rational question.

  • Smock Puppet, Frequent Fantasy Flyer

    >>> because Jefferson mentioned something about liberty trees needing refreshing with blood and pretend that’s legal.

    It's legal if you shoot enough of them :-D

  • steve

    Oh, I found some more differences with civilian trials and military tribunals.

    1.) Evidence can be withheld from the defendant and his civilian counsel (even though such counsel must have a security clearance).

    2.) Conversations between the defendant and his defense counsel are monitored.

    and, finally the best one of all (not sure this was there under Bush. It may just be new since the article was all about Obama.)

    3.) Even if an acquittal were declared under the military tribunal procedures, a detainee could still be held until such time as the Administration determined (under procedures and criteria not made public) that he is no longer a threat to national security or a source of information.

    So basically, the point of military tribunals is to get the verdict desired by the administration unless of course that doesn't actually happen at which time they claim the power to do what they intended to do all along.