faustuz

Especially since the “war on terror” can be expected to open ended. In the past courts have found that it is legitimate to suspend due process in wartime. Now that we have an open-ended war, we have an indefinite suspension of due process. Since the definition of “enemy combatant” is contingent on how you define the war, anybody considered a terrorist can be called an enemy combatant. Since the court has said it has no jurisdiction the executive can consider anybody it want an enemy combatant.

On an aside, since everybody knows atheists have no morals, they must all be terrorists. Of course, papa Bush said that atheists aren’t even citizens, so I guess this whole issue doesn’t apply to us anyway.

faustuz

No, but the only reason is because the court did say that it only applies to people detained on foreign soil. So, just make sure you don’t leave the country. There is another case where the Bush administration is trying to argue that it also applies also to enemy combatants detained in this country(Padilla v. Bush). It remains to be seen how the courts will rule, but the point is that this is what the Bush administration is arguing for. Hopefully there are still enough liberals in the courts that some reason will prevail.

I take issue with something else in your post. You use the term “less due process”. What is “less due process”? It seems to me that process is either “due” or it’s not “due”. Part of due process, as established in the Constitution, is the right to consult a lawyer (is it not?) All you are saying is that there was some kind of process within the courts. I suppose I’ll concede this point. How that constitutes “due process”, however, is still beyond me.

pug846

blah, see below

Toto

I followed a link on the CNN site -

Handi v. Rumsfeld

A relatively short opinion - the list of attorneys involved takes up about a quarter of the webpage.

pug846

I didn’t see the last comment in your last post. It was directed to Toto, but I’d like to give my answer.

Faustuz said:

I think (?) Toto was being lazy with his language, like I was. He should have said “less process” as opposed to “less due process.” So, yes, process is either due or it’s not, but clearly different situations require differing amounts of due process. The Constitution doesn’t define what is due process, so it’s up to the courts to decide whether or not procedural due process is up to the (obviously ambiguous) Constitutional standard. Nowhere does the Constitution say that a criminal defendant has a right to see a lawyer right away. Court’s have interpretated the due process clause to say you have a right to consult an attorney right away, but the court in this case is saying the fact that the person in question is an enemy combatant and not a normal criminal requires less process than normal; more deference should be given to the government during times of war. I don’t have any problem with the proposition that an “enemy combatant” should be afforded less procedural process, but I don’t believe that the amount of process here is in fact due. The Bush team obviously feels that the affidavit is enough due process, but no where do they say no process should be afforded to the accused.

pug846

I probably shouldn’t have responded until I read the decision and not just what the AP said about it.

I’m having trouble following what the court actually DID say, as opposed to what I assumed they said. It seems really peculiar. The court doesn’t seem to deal with the 5th and 14th amendments (although at one point they seem to claim that the war powers vested in the President can allow him to ignore the bill of rights and later they argue that the 14th and 5th amendments don’t apply since this isn’t a criminal proceeding and he has been charged with no crime.)

The court says:

I’m not sure if this means what I had previously stated, that Hamdi is entitled to due process, but that due process would be less in his case since he is not a “normal” criminal and is an enemy combatant or that the 14th and 5th amendments just don’t apply to him at all since he hasn’t been charged with a crime. The former argument would make sense and that later would just be bizarre. The 14th and 5th amendments would apply since this is clearly a case of a government-sponsored deprivation. But in the very next paragraph, the court does seem to say that the amendments don’t apply:

That doesn’t make any sense at all. There is clearly a state sponsored deprivation. Why would it matter if the deprivation was because of war or not? Granted, you would treat an “enemy combatant” differently than a “normal” American criminal, but if the enemy combatant was in fact American, the state is depriving him of his liberty and the due process clause is invoked. Again, it would make sense that the due process clause would require less process for an enemy combatant, but I don’t understand how they can claim it just doesn’t apply.

edited to add: thanks for the link Toto!

Fromtheright, do you have any problems with this decision?

faustuz

It’s obvious that we’ve been getting tripped up over semantic issues. We should probably be specific and say “the due process guarantees of the Fifth and Sixth Amendments”. Then I think we can all agree that these are being denied in Hamdi’s case. Apparently, based on the snippet Pug quoted, there is judicial precedent for this. The question we should be debating is not whether due process is being denied. It obviously is (again, due process being contingent upon the definition above). The question is whether or not this is an appropriate case in which to deny due process.

During WWII we had a close ended conflict where everybody knew what the exit condition would be. We had an extremely well defined adversary. Everybody knew who the adversary was. Of course, even then there were exceptions to this: the Japanese internments being the well known case. Most people now think the Japanese internments were wrong headed, however.

We now have an open ended conflict with an ill defined enemy. The administration has chosen to call this conflict a war and is choosing to treat it as a war in the traditional sense (at least for the sake of these detentions). This, as far as I’m concerned, is a dangerous precedent. It leaves the executive extreme leeway. If the executive designates an individual as an enemy combatant, due process can be denied. A person can be held without access to a lawyer, without a right to defend themselves before a jury of their peers, without even the right to necessarily know why they are being held. Since the war may never end, they can potentially be held indefinitely. I once read a story by Franz Kafka that describes this situation, but I used to think that the Constitution of the United States protected citizens from such things.

copernicus

This case makes a mockery of constitutional law. A writ of habeas corpus should be all that is needed to free Hamdi. The whole point of such a writ is to require the government to prove that its detention of a citizen is legal. If Hamdi has not been charged with a crime, then he is being held illegally. Otherwise, the police could throw anyone in jail indefinitely without charging that person with a crime. Habeas corpus would be meaningless. Our "government of law" has suddenly transformed itself into a "government of men".

It is nonsensical to claim that there are no crimes that Hamdi could be charged with. He could be charged with treason or conspiracy to commit murder. The apparent problem with that approach is that the government doesn't have enough evidence to prove such criminal behavior. If they don't, then they have to release him. That's the whole point of a government of law. :banghead:

Stephen Maturin

Guess who's on Pickering's side. That's right, it's cross burner Daniel Swan, Pickering's fellow policital "victim."

hezekiah jones

LOL. What a heart-warming fucking tale that is!