quote:The US Senate has passed a measure that would prevent terrorist suspects held at Guantanamo Bay, Cuba from challenging their detention in US courts, which the US Supreme Court allowed last year.
quote:It would nullify a July 28, 2004, Supreme Court ruling that allowed US courts to hear appeals from foreign detainees held as enemy combatants at Guantanamo, most of whom -- there are some 600 from 42 countries -- have been held without charge and access to court.
quote:"If we don't rein in prisoner abuse, we're going to lose the war, but if we don't rein in legal abuse by prisoners, we're going undermine our ability to protect ourselves," the Senator for South Carolina told his colleagues.
"Do not give the terrorists, the enemy combatants, the people who blow up folks at weddings, who fly airplanes into the twin towers, the ability to sue our own troops all over the country for any and everything," he added.
quote:Opposers to the amendment included Judiciary Committee chairman Arlen Specter, who felt Graham's proposal was the wrong response to the legal imbroglio surrounding the US government's classification of detained foreign terrorist suspects as enemy combatants
"I am not prepared at this time to support legislation that calls for the removal of habeas corpus," the Republican from Pennsylvania said of the right of a detainee to go to court.
-------------------- On the crusade to eliminate Moral Asshattery wherever it exists Member: AAMAH Posts: 2940 | From: Michigan | Registered: Feb 2004
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quote:Clause 2: 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.
Sigh...
-------------------- ÒIf you shut up truth and bury it under the ground, it will but grow, and gather to itself such explosive power that the day it bursts through it will blow up everything in its way.Ó -Emile Zola Posts: 1046 | From: Massachusetts | Registered: Apr 2002
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In a way, I am glad this is coming up now, because I am writing a resarch paper on the constitutionality of indefinite detentions and closed removal proceedings. Because they are/were settled issues, I was having difficulty filling the minimum word requirement.
Thanks, Senator Graham. Your disdain for the Constitution could not have come at a better time!
-------------------- "When a stupid man is doing something he is ashamed of, he always declares that it is his duty."--George Bernard Shaw Posts: 19266 | From: Nashville, TN | Registered: Jun 2002
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posted
now...I'm asking for a clarification here...not starting an argument.
Is it true, or not, that if a captured individual is declared an enemy combatant that they have no access to the capturing bodies legal system...whereas if they were captured as a criminal offender they would have access?
I hope that makes sense...
and if someone could please cite it for me as I've not been able to find it yet, but then again it's a busy morning here at work.
-------------------- "People demand freedom of speech to make up for freedom of thought, which they avoid." --Kierkegaard Posts: 303 | From: Ashland, KY | Registered: Oct 2005
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posted
"Enemy combatants" is a made-up term with no legal meaning whatsoever. It is not found in any legislation nor in any international treaty. It was made up in order to dodge compliance with Geneva Conventions.
That said, the SCOTUS decision sought to be undone by this legislation is Zadvyda v. Davis, et al. (533 US 678), in which SCOTUS ruled that detainees at Guantanamo have the right to challenge their detentions, and indefinite detention is illegal. The Court also said that
quote:The due process clause of the Federal Constitution's Fifth Amendment applies to all "persons" within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent.
-------------------- "When a stupid man is doing something he is ashamed of, he always declares that it is his duty."--George Bernard Shaw Posts: 19266 | From: Nashville, TN | Registered: Jun 2002
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I'm referring to what the difference would be between a person declared to be a POWs access to a countries legal system (versus that countries military justic system) vs. a person deemed a normal criminal...
I say that because it seems to me that, logically, there would be a difference in what legal system the person would have access to.
Meaning that if those people in Gitmo were deemed POWs they'd have access to the US Military Justice system, not the civilian equivalent and/or the rights brought forth in the Geneva convention.
*edited to clarify* I misplaced my wordings...I mean that the POW would have access to the military justice system and/or the systems setup through the geneva convention...sorry for that..I just re-read it and it came across wrong.
-------------------- "People demand freedom of speech to make up for freedom of thought, which they avoid." --Kierkegaard Posts: 303 | From: Ashland, KY | Registered: Oct 2005
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quote:If there is any doubt as to whether the person is a lawful combatant they must be held as a POW until they have faced a "competent tribunal" (GCIII Art 5) to decide the issue. Combatants who may be deemed to be unlawful combatants include, spies, mercenaries, members of militias not under the command of the armed forces who do not fit into the categories specified above, and those who have breached other laws or customs of war (for example by fighting under a white flag).
quote:The "Detaining Power" may choose to accord detained unlawful combatants the rights of prisoners of war as described in the Third Geneva Convention (GCIII), but is not required to do so. Unlawful combatants may retain rights under the Fourth Geneva Convention in that they must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial". (Other terms occasionally used include illegal combatant or unprivileged combatant.)
At least it's a decent starting point
-------------------- On the crusade to eliminate Moral Asshattery wherever it exists Member: AAMAH Posts: 2940 | From: Michigan | Registered: Feb 2004
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I usually do this research on my own, but it's been a hectic morning so far.
I just wanted to find out for myself before I jumped in a said something completely stupid.
-------------------- "People demand freedom of speech to make up for freedom of thought, which they avoid." --Kierkegaard Posts: 303 | From: Ashland, KY | Registered: Oct 2005
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posted
You're right, KGH: a POW doesn't really have the right to a country's (in this case, his captor's) non-military judicial system. From the Geneva Conventions:
quote: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.
So, as an example, a POW held by the US would subject to the UCMJ. But, and I may be wrong about this, the POW can only be tried for violations which were committed after his/her capture.
-------------------- "When a stupid man is doing something he is ashamed of, he always declares that it is his duty."--George Bernard Shaw Posts: 19266 | From: Nashville, TN | Registered: Jun 2002
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quote:Originally posted by Troodon: How can a law override a Supreme Court ruling? The article in the OP didn't really explain.
Article 3, Section 2, Clause 2 of the U.S. Constitution,
quote: ... the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Pogue
-------------------- Let's drink to the causes in your life: Your family, your friends, the union, your wife. Posts: 11325 | From: Kentucky | Registered: Nov 2000
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posted
So this new law isn't even trying to say that what is being done to the prisoners is constitutional, but instead it just removes the authority of the supreme court to say that it is unconstitutional?
-------------------- Fools! You've over-estimated me! Posts: 3745 | From: New York City | Registered: Jan 2004
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-------------------- "People demand freedom of speech to make up for freedom of thought, which they avoid." --Kierkegaard Posts: 303 | From: Ashland, KY | Registered: Oct 2005
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quote:Originally posted by AnglRdr: [SNIP] So, as an example, a POW held by the US would subject to the UCMJ. But, and I may be wrong about this, the POW can only be tried for violations which were committed after his/her capture.
quote:ART. 2. PERSONS SUBJECT TO THIS CHAPTER (a) The following persons are subject to this chapter... (9) Prisoners of war in custody of the armed forces.
This is the only mention of the status of POWs (other than members of the armed forces under arrest cannot be confined with POWs).
-------------------- Ad astra per asparagus. Posts: 4806 | From: Groton, CT | Registered: Jul 2005
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quote:A bipartisan group of senators reached a compromise yesterday that would dramatically alter U.S. policy for treating captured terrorist suspects by granting them a final recourse to the federal courts but stripping them of some key legal rights.
The compromise links legislation written by Sen. Lindsey O. Graham (R-S.C.), which would deny detainees broad access to federal courts, with a new measure authored by Sen. Carl M. Levin (D-Mich.) that would grant detainees the right to appeal the verdict of a military tribunal to a federal appeals court. The deal will come to a vote today, and the authors say they are confident it will pass.
Graham and Levin indicated they would then demand that House and Senate negotiators link their measure with the effort by Sen. John McCain (R-Ariz.) to clearly ban torture and abuse of terrorism suspects being held in U.S. facilities.
"McCain's amendment needs to be part of the overall package, because it deals with standardizing interrogation techniques and will reestablish moral high ground for the United States," Graham said.
-------------------- On the crusade to eliminate Moral Asshattery wherever it exists Member: AAMAH Posts: 2940 | From: Michigan | Registered: Feb 2004
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posted
Finally! It's high time that Congress starts asserting itself in representing the interests of the nation instead of repeating the party line of Emperor Bush the lesser.
Torture is wrong. Always. Without exception. It's NOT a Christian value or a democratic one and its high time that someone holds this administration accountable. Holding suspected terrorists indefinitely without any hope of representation is equally wrong. "And Justice for ALL" and "ALL men are created equal" are fundamental to what America is and what it holds itself as standing for. For all the American people and the world know, we could be holding pizza delivery guys in Guitmo. We're better than that and we need to make it clear to our own officials and the world.
Please oh please oh please let this pass both houses in veto-proof numbers. Let EVERY American involved in the torturing of others and anyone who implicity or explicitly endorses it be held accountable under American and International law.
Furthermore, let common sense prevail. We got beat on 9-11 by a handful of people that made it into the country and trained and plotted on our own soil for years, not people in camps in the Middle East. The best way to fight terrorism here is to make bloody sure that those who would do us harm never make it here in the first place.
Let us define "U.S. Interests" clearly so that we know just what it is we're trying to protect here. If Israel as an ali requests protection, let's protect her. If Jordon needs help and requests it, lets look into it. But pre-emptive war on (knowingly) incomplete intelligence is neither wise nor legal. Let us never again confuse military might with wisdom.
Edited to add additional thoughts.
-------------------- "If I didn't see it and didn't know it was a real news report, I wouldn't believe it. I mean, how nutty can you get?"-Pat Robertson Oct 26, 2006. Posts: 2936 | From: Mean Streets of West Virginia | Registered: Feb 2003
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