Go over and read everything Charley's been writing at ObWi. His take is that yes, the habeas stripping is unconstitutional, but it won't get to the SC before 2008, and goodness only knows what they'll actually do.
Anyone who's affected by the bill by definition is not allowed to appeal to the civilian court system. It's a nice trick to prevent an unconsitutional law from being overturned- state in the bill that anyone affected by it may not appeal to the federal courts.
4 -- Yes, but the Suspension clause provides the handle for getting around that problem. With regard to habeas, but not other claims, because only habeas is protected in the Constitution.
Specter read Ken Starr's letter into the record yesterday. It's exhibit A for the unconstitutionality of the bill.
We may well not win this argument at the DC Circuit, depending on where and how it comes up. The panel hearing Al Odah/Boumedienne has Judges Randolph and Sentelle. The former is very smart, and a truly formidable adversary. He wrote the decisions that were overturned in Rasul and Hamdan, and is well versed in the laws at issue. About Judge Sentelle I have nothing good to say, and will say nothing. One can google up his record with regard to the Clinton investigation foolishness and get an idea of how politics and law rank with him.
Don't forget his throwing out the Iran-Contra convictions.
One of my favorite bits of the Clinton stuff is Sentelle lunching with Helms and Faircloth before appointing Starr on the stupidest grounds possible. Of course Rehnquist had insisted that Sentelle remain on the panel that appointed independent counsel. Rehnquist was an utter shit, one of the worst Americans ever, and he should have died much sooner.
I don't know if it's an issue the US Supreme Court would consider, but an apparent contradiction in the bill can be found in the statement:
"A military commission established under this chapter is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions." (p. 15, lines 9-13)
Together with:
"The procedures for military commissions set forth in this chapter are modeled after the procedures established for courts-martial in the Uniform Code of Military Justice. However, it would be neither desirable nor practicable to try unlawful enemy combatants by court-martial procedures." (p. 14, lines 17-22)
The phrase 'regularly constituted court' appears in GC Common Article 3. The apparent intent, reinforced by subsequent articles, is that the detaining power is to use its existing judicial processes, either civilian or military according to status, if there is cause to prosecute a detained person, viz.:
GC3; 82: A prisoner of war shall be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power ...
GC3; 84: A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war. In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.
It's been discussed before in many places, but it's worth repeating: the status of 'unlawful enemy combatant' is not found in the Geneva Conventions: there are only PoW or civilians. It's been argued that terrorists are best treated as civilians.
That is a good point -- the statement in the bill that military commissions are 'regularly constituted courts' under the Geneva Conventions are nonsense. You don't make something so by saying it.
Not long ago I saw no reason to renounce my U.S. citizenship, but if this atrocity passes, there would be some real value in being a citizen of a country that believes in due process.
25: That's what the Times article looks like, but Reid's, Clinton's, and Schumer's offices all said the decision hasn't been made one way or the other. They may be blowing smoke, but I think the possibility is still open.
I think I could still cash in Irish citizenship -- last time I checked all you needed was a grandparent born there. Not going to do it unless things get worse, though.
I'm not picking a fight, I'm serious. I've come near tears of rage today owing to my frustration at living in Texas and thus having absolutely no effective options open to me today. All I can do is sit back and hope one (preferably several) of your senators filibusters this thing.
Texas passed the Anti-Gay amendment to the state constitution and that was the first time in my life I was fully embarassed to be a Texan. Now this, and for the first time in my life, I'm seriously considering emmigration.
I've long since given up on the idea of widespread protests by Americans, and the way things are going a revolution will be the only way to get our country back. I wouldn't want my family to sit through something like that and I can't even really hold out hope that it would ever come.
Perhaps I'm just feeling it too much, and tomorrow I'll wake up feeling refreshed and forget all about this. But right now, I can't see that it will even be 10 years before we're all looking back, reminiscing on a time when you could walk down the street knowing that, whatever else, at least we could walk down the street...
So, seriously, what's worse? I should wait for what line to be crossed before I justly decide to give up on this country that has so consitently eat itself alive for the last half-decade. I feel like I'm over reacting, but I can't figure why I feel that way.
Posted by
I Can't Put Esquire After My Name |
Link to this comment |
09-28-06 1:59 PM
32
Re-reading that last makes me think it sounds like I'm attacking LB, I'm not, my frustration is with the situation, not with you.
Posted by
I Can't Put Esquire After My Name |
Link to this comment |
09-28-06 2:13 PM
33
31/32: can't because you're not a lawyer? Or what?
It's from a comment of mine complaining about the low-hanging fruitedness of IANAL and suggesting ICPEAMN as an alternative. I'd be wondering where the guy who took their name from a comment of mine had gone, and in fact forgotten exactly what that name was until now.
Seriously, I don't know where the line is. I have irrational hope that the Democrats (who, uselessly craven as they are, aren't as actively evil as the Republicans) will take back some portion of Congress in the fall, and some decent human being will take the White House in two years, and we can start unwinding this nightmare. I still love this country, I'm just so desperately ashamed of our government and the things it does.
But if things don't start turning around soon? I don't know.
33, there are several "can't"s in 31. I'm assuming you mean my handle though so, as it happens, I think I can put esquire after my name. But people get confused/irritable when you go changing handles willy-nilly, so even though I haven't commented in a while, I try not to confuse the situation.
Posted by
I Can't Put Esquire After My Name |
Link to this comment |
09-28-06 2:23 PM
37
35: I still love this country, I'm just so desperately ashamed of our government and the things it does.
But why? It's not like its a coincidence that this is coming up right before an election. Rove is pushing this because he believes this to be a vote winning issue and the dems are not fighting it because they believe that would be a vote-losing act. I see no reason to argue with them.
This is not the act of an evil government. It's the act of an evil people. Short of disolving the electorate, what solution is there?
Posted by
I Can't Put Esquire After My Name |
Link to this comment |
09-28-06 2:24 PM
39
36 -- I think removing the apostrophe-t from your handle would be a subtle enough change that continuity would be preserved, and the community would continue to recognize you.
This is not the act of an evil government. It's the act of an evil people.
No, it isn't. Becks, somewhere up above, wondered how many people knew what habeas even meant. I'm a lawyer, and I'm really interested in this stuff, and I have a hell of a time figuring out what's going on. I don't do it as well as I'd like to.
The evil thing that's being done isn't a vote getter. The story that can be told about it is what they're hoping to win votes with.
I think if we framed it as 'You know your neighbor, the nice doctor guy who moved here from the Phillipines a couple of years ago and was so happy to get a visa and loves this country and his kids go to school with your kids, and your daughter's friends from college, the Korean girl who worked hard to come here to learn mathematics, or the nice Indian restaurant owner who always gives you extra naan, or the nice British guy who runs the shop on the corner? Yeah, if the government fucks up and mistakenly thinks they're a terrorist, and ships them off somewhere, this law means they don't even get to ask anyone for help and have to hope the government figures it out on its own. And come on, these guys can't even get the [insert hated government agency here] to work right, and we're going to trust them never to screw up with all the pressures of catching terrorists?"
[sip on a beer.] Fuck that shit, man. Get these dudes a lawyer.
Can't someone make a joke about how the title of this post is like an answer on Jeopardy, and we could say things like: sex! the right to challenge your detention! and so on?
46 - I was going to ask Ogged if "It Takes About 60 Seconds" was a logical followup to "Something I'm Not Getting", but didn't think people were in the mood.
Charley?
(But keep in mind, four of those evil fuckers dissented on the military tribunals.)
Posted by Matt Weiner | Link to this comment | 09-28-06 10:47 AM
Go over and read everything Charley's been writing at ObWi. His take is that yes, the habeas stripping is unconstitutional, but it won't get to the SC before 2008, and goodness only knows what they'll actually do.
Posted by LizardBreath | Link to this comment | 09-28-06 10:51 AM
Thanks.
Posted by ogged | Link to this comment | 09-28-06 10:53 AM
Anyone who's affected by the bill by definition is not allowed to appeal to the civilian court system. It's a nice trick to prevent an unconsitutional law from being overturned- state in the bill that anyone affected by it may not appeal to the federal courts.
Posted by SP | Link to this comment | 09-28-06 11:02 AM
4 -- Yes, but the Suspension clause provides the handle for getting around that problem. With regard to habeas, but not other claims, because only habeas is protected in the Constitution.
Specter read Ken Starr's letter into the record yesterday. It's exhibit A for the unconstitutionality of the bill.
Posted by CharleyCarp | Link to this comment | 09-28-06 11:09 AM
We may well not win this argument at the DC Circuit, depending on where and how it comes up. The panel hearing Al Odah/Boumedienne has Judges Randolph and Sentelle. The former is very smart, and a truly formidable adversary. He wrote the decisions that were overturned in Rasul and Hamdan, and is well versed in the laws at issue. About Judge Sentelle I have nothing good to say, and will say nothing. One can google up his record with regard to the Clinton investigation foolishness and get an idea of how politics and law rank with him.
Posted by CharleyCarp | Link to this comment | 09-28-06 11:14 AM
Don't forget his throwing out the Iran-Contra convictions.
One of my favorite bits of the Clinton stuff is Sentelle lunching with Helms and Faircloth before appointing Starr on the stupidest grounds possible. Of course Rehnquist had insisted that Sentelle remain on the panel that appointed independent counsel. Rehnquist was an utter shit, one of the worst Americans ever, and he should have died much sooner.
Posted by Matt Weiner | Link to this comment | 09-28-06 11:17 AM
I just feel that needs to be said every so often.
Posted by Matt Weiner | Link to this comment | 09-28-06 11:18 AM
Sentelle is an evil, evil North Carolinian. One of the slimy spawn of Jesse Helms' racist machine.
He also has terrible taste in glasses.
Posted by apostropher | Link to this comment | 09-28-06 11:41 AM
I don't know if it's an issue the US Supreme Court would consider, but an apparent contradiction in the bill can be found in the statement:
"A military commission established under this chapter is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions." (p. 15, lines 9-13)
Together with:
"The procedures for military commissions set forth in this chapter are modeled after the procedures established for courts-martial in the Uniform Code of Military Justice. However, it would be neither desirable nor practicable to try unlawful enemy combatants by court-martial procedures." (p. 14, lines 17-22)
The phrase 'regularly constituted court' appears in GC Common Article 3. The apparent intent, reinforced by subsequent articles, is that the detaining power is to use its existing judicial processes, either civilian or military according to status, if there is cause to prosecute a detained person, viz.:
GC3; 82: A prisoner of war shall be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power ...
GC3; 84: A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war. In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.
It's been discussed before in many places, but it's worth repeating: the status of 'unlawful enemy combatant' is not found in the Geneva Conventions: there are only PoW or civilians. It's been argued that terrorists are best treated as civilians.
I am not a lawyer
Posted by Charlie Whitaker | Link to this comment | 09-28-06 11:45 AM
That is a good point -- the statement in the bill that military commissions are 'regularly constituted courts' under the Geneva Conventions are nonsense. You don't make something so by saying it.
Posted by LizardBreath | Link to this comment | 09-28-06 11:48 AM
10 -- David Luban of Balkinization calls the bit from p. 14 of the bill "eally nothing more than decoration."
Posted by Clownæsthesiologist | Link to this comment | 09-28-06 11:53 AM
really.
Posted by Clownæsthesiologist | Link to this comment | 09-28-06 11:54 AM
Damn -- I mean "from page 15 of the bill".
Posted by Clownæsthesiologist | Link to this comment | 09-28-06 11:55 AM
9: Those glasses could probably get him on the Cobra Snake or Last Night's Party. (Witness.)
If you don't know what those sites are, you're better off not.
Posted by Armsmasher | Link to this comment | 09-28-06 11:59 AM
Hey, Senator Reid's office says that a filibuster has not been ruled out as a possibility. Anyone who wants to call and beg, it's (202) 224-3542.
Posted by LizardBreath | Link to this comment | 09-28-06 12:03 PM
Is anyone who reads here from Nevada?
Posted by LizardBreath | Link to this comment | 09-28-06 12:04 PM
Teofilo, practically.
Posted by Clownæsthesiologist | Link to this comment | 09-28-06 12:06 PM
Close only counts in horseshoes and handgrenades.
Posted by LizardBreath | Link to this comment | 09-28-06 12:11 PM
And torture?
Posted by Clownæsthesiologist | Link to this comment | 09-28-06 12:12 PM
Not long ago I saw no reason to renounce my U.S. citizenship, but if this atrocity passes, there would be some real value in being a citizen of a country that believes in due process.
Posted by neil | Link to this comment | 09-28-06 12:15 PM
Anyone who wants to call and beg, it's (202) 224-3542.
I get "this number is no longer in service." It's the one on his website and the only one I can find, though.
Posted by Felix | Link to this comment | 09-28-06 12:39 PM
Hope? International law is a hope. Peaceful revolution is a hope.
Posted by Nathanael Nerode | Link to this comment | 09-28-06 1:00 PM
22: I got through earlier -- it must be a fluke. Try again.
Posted by LizardBreath | Link to this comment | 09-28-06 1:04 PM
I've read that Democrats agrees yesterday to a fixed amount of debate, so there will be no cloture vote. Accurate?
Posted by neil | Link to this comment | 09-28-06 1:06 PM
25: That's what the Times article looks like, but Reid's, Clinton's, and Schumer's offices all said the decision hasn't been made one way or the other. They may be blowing smoke, but I think the possibility is still open.
Posted by LizardBreath | Link to this comment | 09-28-06 1:08 PM
I got through to Reid's office this time. They say "no final decision's been made."
Posted by Felix | Link to this comment | 09-28-06 1:13 PM
9: And, ISTM, toupées.
Posted by Matt Weiner | Link to this comment | 09-28-06 1:13 PM
21 reminds me of one of my favorite internet exchanges:
- "If you don't like living in the United States then LEAVE."
- "I WOULD, but I don't want to be VICTIMIZED by our FOREIGN POLICY."
Posted by Becks | Link to this comment | 09-28-06 1:27 PM
That's excellent.
I think I could still cash in Irish citizenship -- last time I checked all you needed was a grandparent born there. Not going to do it unless things get worse, though.
Posted by LizardBreath | Link to this comment | 09-28-06 1:29 PM
LB, How much worse?
I'm not picking a fight, I'm serious. I've come near tears of rage today owing to my frustration at living in Texas and thus having absolutely no effective options open to me today. All I can do is sit back and hope one (preferably several) of your senators filibusters this thing.
Texas passed the Anti-Gay amendment to the state constitution and that was the first time in my life I was fully embarassed to be a Texan. Now this, and for the first time in my life, I'm seriously considering emmigration.
I've long since given up on the idea of widespread protests by Americans, and the way things are going a revolution will be the only way to get our country back. I wouldn't want my family to sit through something like that and I can't even really hold out hope that it would ever come.
Perhaps I'm just feeling it too much, and tomorrow I'll wake up feeling refreshed and forget all about this. But right now, I can't see that it will even be 10 years before we're all looking back, reminiscing on a time when you could walk down the street knowing that, whatever else, at least we could walk down the street...
So, seriously, what's worse? I should wait for what line to be crossed before I justly decide to give up on this country that has so consitently eat itself alive for the last half-decade. I feel like I'm over reacting, but I can't figure why I feel that way.
Posted by I Can't Put Esquire After My Name | Link to this comment | 09-28-06 1:59 PM
Re-reading that last makes me think it sounds like I'm attacking LB, I'm not, my frustration is with the situation, not with you.
Posted by I Can't Put Esquire After My Name | Link to this comment | 09-28-06 2:13 PM
31/32: can't because you're not a lawyer? Or what?
Posted by Brock Landers | Link to this comment | 09-28-06 2:15 PM
It's from a comment of mine complaining about the low-hanging fruitedness of IANAL and suggesting ICPEAMN as an alternative. I'd be wondering where the guy who took their name from a comment of mine had gone, and in fact forgotten exactly what that name was until now.
Posted by washerdreyer | Link to this comment | 09-28-06 2:17 PM
Seriously, I don't know where the line is. I have irrational hope that the Democrats (who, uselessly craven as they are, aren't as actively evil as the Republicans) will take back some portion of Congress in the fall, and some decent human being will take the White House in two years, and we can start unwinding this nightmare. I still love this country, I'm just so desperately ashamed of our government and the things it does.
But if things don't start turning around soon? I don't know.
Posted by LizardBreath | Link to this comment | 09-28-06 2:17 PM
33, there are several "can't"s in 31. I'm assuming you mean my handle though so, as it happens, I think I can put esquire after my name. But people get confused/irritable when you go changing handles willy-nilly, so even though I haven't commented in a while, I try not to confuse the situation.
Posted by I Can't Put Esquire After My Name | Link to this comment | 09-28-06 2:23 PM
35:
I still love this country, I'm just so desperately ashamed of our government and the things it does.
But why? It's not like its a coincidence that this is coming up right before an election. Rove is pushing this because he believes this to be a vote winning issue and the dems are not fighting it because they believe that would be a vote-losing act. I see no reason to argue with them.
This is not the act of an evil government. It's the act of an evil people. Short of disolving the electorate, what solution is there?
Posted by msw | Link to this comment | 09-28-06 2:24 PM
Weiner-pwned
Posted by I Can't Put Esquire After My Name | Link to this comment | 09-28-06 2:24 PM
36 -- I think removing the apostrophe-t from your handle would be a subtle enough change that continuity would be preserved, and the community would continue to recognize you.
Posted by Clownæsthesiologist | Link to this comment | 09-28-06 2:26 PM
I've already chosen once, and I'm staying. I could do dual, just by going back, but that doesn't seem to me like it'll do any good.
Posted by I don't pay | Link to this comment | 09-28-06 2:27 PM
This is not the act of an evil government. It's the act of an evil people.
No, it isn't. Becks, somewhere up above, wondered how many people knew what habeas even meant. I'm a lawyer, and I'm really interested in this stuff, and I have a hell of a time figuring out what's going on. I don't do it as well as I'd like to.
The evil thing that's being done isn't a vote getter. The story that can be told about it is what they're hoping to win votes with.
Posted by LizardBreath | Link to this comment | 09-28-06 2:28 PM
This is not the act of an evil government. It's the act of an evil people.
Six of one, a half-dozen of the other.
Posted by SomeCallMeTim | Link to this comment | 09-28-06 2:33 PM
That's right. Just as you "cannot indict a people," neither can you hold a people morally culpable.
Posted by I don't pay | Link to this comment | 09-28-06 2:34 PM
I think if we framed it as 'You know your neighbor, the nice doctor guy who moved here from the Phillipines a couple of years ago and was so happy to get a visa and loves this country and his kids go to school with your kids, and your daughter's friends from college, the Korean girl who worked hard to come here to learn mathematics, or the nice Indian restaurant owner who always gives you extra naan, or the nice British guy who runs the shop on the corner? Yeah, if the government fucks up and mistakenly thinks they're a terrorist, and ships them off somewhere, this law means they don't even get to ask anyone for help and have to hope the government figures it out on its own. And come on, these guys can't even get the [insert hated government agency here] to work right, and we're going to trust them never to screw up with all the pressures of catching terrorists?"
[sip on a beer.] Fuck that shit, man. Get these dudes a lawyer.
Posted by Cala | Link to this comment | 09-28-06 2:36 PM
44 is likely right, of course. But your redneck impression there needs a little work.
Posted by sam k | Link to this comment | 09-28-06 2:48 PM
Can't someone make a joke about how the title of this post is like an answer on Jeopardy, and we could say things like: sex! the right to challenge your detention! and so on?
Posted by FL | Link to this comment | 09-28-06 2:51 PM
Christ, I didn't even phrase those lame pieces of mockery in the form of a question. I blame my crumbling faith in our great republic.
Posted by FL | Link to this comment | 09-28-06 2:53 PM
46 - I was going to ask Ogged if "It Takes About 60 Seconds" was a logical followup to "Something I'm Not Getting", but didn't think people were in the mood.
Posted by Becks | Link to this comment | 09-28-06 3:18 PM
But your redneck impression there needs a little work.
Wasn't an impression, but, um, thanks?
Posted by Cala | Link to this comment | 09-28-06 3:37 PM