I'm getting even grumpier.
 

Damn.

I was in a pretty good mood, until I saw this on the Washington Post website a little while ago:
Gaaaaaaah. Ewwwww. Yuck. I feel dirty just reading it.

I couldn't find any further information about this, not even the text of the executive order itself. Google was no help, neither were the White House or Dept. of Justice websites. Have any Dwellars seen anything further on this? Are there any Constitutional scholars in our little community? IANAL, but I have a few questions I'd like to kick around:

• From whence would a "special military commission" derive it's authority to conduct such a trial? Surely not the Constitution. Or did I miss the section on "Special Military Commissions"?
  
• Would this commission try foreign nationals only? Or would it be empowered to try American citizens, too? Does Article III, Section 2 of the Constitution not apply anymore? How about the Sixth Amendment?
  
• How would a person end up in front of this commission? Would there be an indictment by a Grand Jury? Or are we gonna take a pass on the Fifth Amendment, too?

Does this bother anyone else? Or am I just being a paranoid nutcase?

p.s.- Hello Kitty is worried, too.

Very interesting...

Obviously, Dubya and his buddies found a loophole. Or could this somehow be related to the anti-terrorism bill passed recently?

Accprding to Dubya staff there is precedent for this action in the FDR, LIncoln and Washington administrations.

It still kinda has a Nightwatch-type feel to it, I'll admit.

Re: I'm getting even grumpier.
 

Found a story on it on foxnews.com at http://www.foxnews.com/story/0,2933,38707,00.html

It *does* sound potentially ugly...

http://ocelet.hypermart.net/detention.jpg

*June 2002 Evil Terrorist Mastermind Hello Kitty is put on trial at the Special Military Commission for crimes against patriotism.
(FoxNews)

;)

So when did Congress declare war? In each precedent, the US was at war. We have not declared war on anyone which is also why Silverstein can collect his $billion on WTC insurance.

Remember, these are the same people who wanted to bomb China over a Navy spy plane. It gets rather scary that they make decisions based upon people's fears rather than facts. Last time a White House administration use fear to get what the people did not want: Gulf of Tonkin - which we now know to be a total lie and which another President sued in the Supreme Court to keep us from learning that truth.

What is wrong with civilian courts that they cannot be 'trusted' to do justice? Or is it that civilian courts might first require proof? OK, I was surprised at the expression "Homeland Security" which is used in governments that aspire to military dictatorship. However to declare military justice when we are not at war? These are right wing extremists in power. Maybe we just forgot how extremist their thinking really is? The only government that works is a dicatorship dominated by right wing extremists?

"... A state of actual war may exist without any formal declaration of it by either party, and this is true of both a civil and a foreign war" in which the President is "bound to meet it in the shape it presented itself." The Prize Cases, 67 U.S. 635 (1863)

and

The President may introduce the US armed forces into hostilities in the event of

• 1) a declaration of war,
• 2) specific statutory authorization, or
• 3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces

--50 USC 33, § 1541(c)

There's no question that we're at war.

My question was about the authority of a "special military commission" to try civilians. MaggieL's right... it's all been done before. German saboteurs who were captured in the US during WWII were handled this way. And Lincoln certainly played fast & loose with the Constitution during the War of Northern Aggression. There are plenty of precedents... but were they LEGAL? I still haven't found the answer.

Like most people in this room I am not a lawyer nor do I profess to be a authority on the constitution. But I do think the administration is taking the attitude that everyone involved with the Sept. 11 attack is in fact part of a militia, regardless of the citizenship or nationality of these individuals. When you think this through, what you then have, is not an assault on the constitution, or the law abiding citizens of this country. I would like to think this is what is happing and not a suspension of our constituently rights.I hope I am right.
:D

Re: I'm getting even grumpier.
 

There's some precedent for this, in the American colonies pre-Revolution. I believe it was called the Star Chamber. Perhaps this is the perfect post-Mayoral job for Giuliani -- he can be the prosecutor.

You've got means and ends reversed, I'm afraid. The removal of civil rights through things like this and the PATRIOT act is the end. The excuse of fighting terrorism is the means.

What makes the President think he can override Article III (the judiciary) by fiat, I don't know. But it seems likely he'll get away with it.

Star Chamber
 

Actually, the Star Chamber was an English court used by the monarchs to try nobles and suppress dissent, very secretive, lottsa torture ect... http://encarta.msn.com/index/concise...?z=1&pg=2&br=1

Pretty creepy parallels to Bush's new tool especially when you hear people complaining about our "unfortunate" inability to torture all the foreign nationals we've been picking up.

As far as the colonials go, this is the kind of thing those guys would have started a revolution over, think I'll look at the Dec of Ind seems like proper courts used to be a big deal... Rep. Ron Paul actually used the "R" word this week. How long do you see these courts and the supposed temporary PATRIOTIC Act lasting? I'm thinking they'll become a permanent part of the empire... war without end and all that.

Reminds me vaguely of Leni's War Communism policy at the turn of the centuary except in a litigatory framework not an economic one.

Did he really? The "R" word, eh? Heh. I'm not surprised. Ron Paul's probably the only member of Congress who'd have the balls to use it. Do you remember where you saw it, Griff? It's probably a gem; I'd like to check it out.

You mean H.R. 3162? The "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001"? <sarcasm>Who knows? I don't think anybody's ever read it. Certainly not the people in Congress who voted for it. Wasn't it Leahy who complained that there were only two copies of the bill in the entire Senate, and that nobody'd had time to read it before the vote?</sarcasm>

Seriously, though, I seem to recall reading that most (but not all) of the provisions in the bill have a 4-year sunset limit. But a lot can happen in 4 years. Bush's executive order is another matter. I don't think there's any limit on executive orders, is there?

Gotta go... gonna run out to the store and stock up on .30-30 ammo before they decide that my Winchester Model 94 is an assault rifle. :mad:

I think Ron Paul was quoted in an Insight magazine article, Hafta look for it.

Nice choice in assault rifles there. Dad bought me the same for my 16th birthday, good little brush gun.

here it is
 

http://insightmag.com/main.cfm?inclu...storyid=143236

Read the last paragraph in the article.

There is no doubt that we are in hostilities. But I don't see where that meets the legal definition of 'a declared war'.

50 USC 33, § 1541 only says arm forces may be sent into combat without a declaration of war. It does not say that, by sending troops, we have automatically declared war.

The Prize Cases, 67 U.S. 635 only says that international, neutral merchants may have their cargos embargoed, as if a condition of war exists, even though war has not been formally declared. That does not mean that war was declared; just that international shipping may be blockaded if the US conducts military operations as defined by "2) specific statutory authorization, or 3) a national emergency...".

Of course this could be enough to have the Supreme Court hear the case. But as I read these two cited precedents, I don't see anything that says the US has declared war without Congressional approval. We have not formally declared war - which is significant to the rest of this post.


Clearly this Bush 'need' for a military court of justice is scary to those who fear a violation of Constitutional rights. But why did he do it? There is good reason to fear the finding. But there may be another reason for its declaration.

What happens when bin Laden is taken prisoner. We have not declared war on his country, therefore he will not be subject to an international tribunal (ie. Nurenberg or what is happening to Yugoslavian war criminals). Do we put bin Laden before another OJ Simpson jury? Can you imagine the publicity? It would play into extremists seeking a martyr.

Look at the 1993 WTC bombing trial. The jurors could not sentence them to death. Is bin Laden to be a prisioner for life in Marion Ohio? He is not Noriega or John Goddi. bin Laden in Marion Ohio is a whole new ballgame about prision security. In a military tribunal, bin Laden would be held in a military prision with tight security inside (as in Marion) and military security outside (as not in Marion).

This Bush finding may be how the President has bin Laden tried and sentenced to death without much publicity and without exposing sensitive material used to collect evidence against bin Landen. Furthermore, the prosecutor does not have to worry about the jury being full of emotional types. Three people could not see an open and shut case against a Cherry Hill rabi whose own siblings accuse him of the murder. Can the Bush administration withstand a hung jury with bin Laden? No worry in a military court where judges are more logical rather than emotional.

Lastly, I can think of no other trial format that would be more accepted by international observers. Do you really think that bin Landen could get a fair trial in a jury of "his American peers"? How to get a mistrial: ask for a jury trial, then claim that he did not get a fair trial because the jurors were biased. He could play this out for a decade, all the while making himself more a martyr in the Arab world. All the while exposing jurors to future terrorist attacks.

The more I write this, then the more I can appreciate why the US might reinstate a military court of justice. Remember, WE have not declared a formal declaration of war on any other nation. That creates legal problems for the prosecution of bin Laden, and probably more important, for the prosecution of other Al queda leaders.

Then what happens if Taliban leaders are also found guilty of attacks on the US. We are to try officials of another government when we did not even declare war on that government? We did this against Noriega. But then Noriega had no international support and was proven, by Jimmy Carter, et al, of having stolen his elections. We don't have that same nicity with Taliban leaders.

Damn. I did it again. I wrote too much.

Unfortunately, its possible that in creating this court for bin Laden, the Bush administration has created something broad enough to try US citizens in. Has anyone got a link to the actual Executive Order?

That's the whole point... a state of war can exist whether Congress declares it or not. Why? Because the Supreme Court says so. The Prize Cases is a Supreme Court decision. TW, you got bogged down reading the details of the decision and missed one of the main points. One more time:We are at war... de facto and de jure.

I haven't been able to find it, Griff. That was one of my motivations for starting this thread- sort of a Cellar-wide APB. I've been trying to find it all week, and still haven't managed to come up with it. It's been frustrating... as far as I can tell, there's no equivalent to the Thomas Register for executive orders. Pity. Anybody else had any luck?

Straight from the horse's mouth.

(Now this just sucks...using Dubya for post # 700. Ah, but it's in the name of helping fellow Dwellars, so it's all good.)

The Supreme Court says nothing of the kind. You confuse 'state of war' with a 'declaration of war'. To be pragmatic, there is very little difference - especially to the soldier. But we are not being pragmatic. We must be legal. Legally a 'state of war' can exist with or without a 'declaration of war'. Domestic laws are applied differently based upon those definitions.

We can be in a 'state of war' - a police action such as VietNam, an internationally sanctioned peace mission such as Korea, or a declared war such as WWII. The first two involve no formal declaration of war. The third does. Big difference to lawyers. Little difference to soldiers.

As suggested, the difference was so great that the Bush administration may have released a finding that non-citizens can be tried in military courts. Normally that could be automatic IF we had declared war. We have not declared war. Big difference because top secret intelligence information and classified intelligence sources from our allies would have to be disclosed in open, civilian court - because we had not declared war.

It is irrelevant whether a state of war exists. Only relevant is whether war has been formally declared. I really hope I don't have to repeat this a fourth time. It does not matter whether you 'feel' we are at war. It only matters how lawyers define the conflict. 'State of war' and 'formal declaration of war' are not equal concepts. One is a subset of the other.

What worries me is the inevitable result of this decision. The mil-trib tries Bin Laden, convicts him, gives him the death sentence, kill him, and you know what you get? A martyr, and 20 people like him where there was one.

If I had my way, I would like to have seen him tried in The Hague. Have more people in the ruling (which would be guilty, just because of literally, the whole Western world being against this man), spread the fault around, perhaps not even have an American on whatever body renders the verdict.

Vainly wishful,

~Mike

Hague or the US, in the eyes of an already distrustful to say the least muslim world i doubt it'd make that much difference. Unless the court had a decent muslim contingentthe effect wil be the same.