[quote]pushharder wrote:
Sorry, Joe, but the US judicial system was NOT accessible to German/Austrian/Hungarian/Bulgarian/Ottoman combatants during WWI. That’s just how it worked then. That’s how it works now. [/quote]
That was very different though. They weren’t US citizens for one thing.
The precedent of killing Awlaki could prove to be more dangerous than he ever was.
If armed bank robbers, already responsible for deaths, were making a getaway that could not be halted by non-deadly force, would they have the option of using deadly force to protect the public?
[quote]squating_bear wrote:
[quote]pushharder wrote:
Sorry, Joe, but the US judicial system was NOT accessible to German/Austrian/Hungarian/Bulgarian/Ottoman combatants during WWI. That’s just how it worked then. That’s how it works now. [/quote]
That was very different though. They weren’t US citizens for one thing.
The precedent of killing Awlaki could prove to be more dangerous than he ever was.[/quote]
Could?
When have they not run with a power they divined out of the constitution?
[quote]squating_bear wrote:
Sorry, Joe, but the US judicial system was NOT accessible to German/Austrian/Hungarian/Bulgarian/Ottoman combatants during WWI. That’s just how it worked then. That’s how it works now. [/quote]
Ah, and you of course immediately see the flaw in your oiwn argument, dont you?
If not:
Joint Resolution Declaring that a state of war exists between the Imperial German Government and the Government and the people of the United States and making provision to prosecute the same.
Whereas the Imperial German Government has committed repeated acts of war against the Government and the people of the United States of America; Therefore be it Resolved by the Senate and the House of Representatives of the United States of America in Congress Assembled, that the state of war between the United States and the Imperial German Government which has thus been thrust upon the United States is hereby formally declared; and that the President be, and he is hereby, authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial German Government; and to bring the conflict to a successful termination all of the resources of the country are hereby pledged by the Congress of the United States.
CHAMP CLARK
Speaker of the House of Representatives
THOS. R. MARSHALL
Vice President of the United States and President of the Senate
Approved, April 6, 1917
WOODROW WILSON
[quote]pushharder wrote:
[quote]squating_bear wrote:
[quote]pushharder wrote:
Sorry, Joe, but the US judicial system was NOT accessible to German/Austrian/Hungarian/Bulgarian/Ottoman combatants during WWI. That’s just how it worked then. That’s how it works now. [/quote]
That was very different though. They weren’t US citizens for one thing.
The precedent of killing Awlaki could prove to be more dangerous than he ever was.[/quote]
I would bet you a fair sum that if we looked hard enough we could find examples of US citizens who fought for the enemy in our past wars and they were NOT afforded US civilian judicial access. Let me know if you want to take my wager.
I feel very, very safe on this one.[/quote]
Haha
No, I wouldn’t take that wager. But that’s still different.
Anyways, what I’m talking about is a precedent. This was a pretty clear cut case - I’m not aware of anyone defending Awlaki here… but what happens down the line when it’s not really a clear cut case?
[quote]pushharder wrote:
No flaw in my argument at all. It’s a sound one.
Joe, a declaration of war is not some kind of release that disallows enemy combatants access to our civilian judicial system. If so, as I mentioned in my above examples, NVA, Vietcong, North Korean and Chinese enemy soldiers (from the Vietnam and Korean Wars) could have marched into our courts with lawyers for them running willy nilly e’erywhere.
It Doesn’t Work That Way.
Your above post is a fail.
[edit] Besides…enemy combatants do have access, at times, to our court system but it’s our military court system.[/quote]
Ah well, but it is supposed to work that way.
The executive branch gets a lot of leeway when a war is declared, which is exactly why it does not get the power to declare a war.
What the Obama administration did was murder, plain and simple, in broad daylight.
The fact that American politicians shit all over the constitution for at least a hundred years now is neither here nor there.
Interestingly enough you do not get to do whatever the fuck you want just because you have been doing it long enough, at least there is nothing about it in the constitution, the SCOTUS however reaches verdicts that way.
For the younger ones among us, the above was a formal declaration of law, in case you have never seen one.
[quote]squating_bear wrote:
[quote]pushharder wrote:
[quote]squating_bear wrote:
[quote]pushharder wrote:
Sorry, Joe, but the US judicial system was NOT accessible to German/Austrian/Hungarian/Bulgarian/Ottoman combatants during WWI. That’s just how it worked then. That’s how it works now. [/quote]
That was very different though. They weren’t US citizens for one thing.
The precedent of killing Awlaki could prove to be more dangerous than he ever was.[/quote]
I would bet you a fair sum that if we looked hard enough we could find examples of US citizens who fought for the enemy in our past wars and they were NOT afforded US civilian judicial access. Let me know if you want to take my wager.
I feel very, very safe on this one.[/quote]
Haha
No, I wouldn’t take that wager. But that’s still different.
Anyways, what I’m talking about is a precedent. This was a pretty clear cut case - I’m not aware of anyone defending Awlaki here… but what happens down the line when it’s not really a clear cut case?[/quote]
I do.
He has a right to say whatever he wants, including death to America.
If that is not legal in the country he resides in, let them deal with it, hell, let the US hire a lawyer and drag him in to a court.
If he does it within the US and it is against some law, let them prosecute him in a court of law and not these military kangaroo courts either.
If I made the argument that freedom of speech is ok in normal times but not when the shit hits the fan most (being optimistic here) would see the flaw.
However, the very same people think that the rule of law is a sunshine rule… it isnt. Exactly when times are dire we need it most, because who in his right mind seriously believes that politicians of all people would be reigned in by their conscience?
[quote]pushharder wrote:
[quote]orion wrote:
[quote]pushharder wrote:
No flaw in my argument at all. It’s a sound one.
Joe, a declaration of war is not some kind of release that disallows enemy combatants access to our civilian judicial system. If so, as I mentioned in my above examples, NVA, Vietcong, North Korean and Chinese enemy soldiers (from the Vietnam and Korean Wars) could have marched into our courts with lawyers for them running willy nilly e’erywhere.
It Doesn’t Work That Way.
Your above post is a fail.
[edit] Besides…enemy combatants do have access, at times, to our court system but it’s our military court system.[/quote]
Ah well, but it is supposed to work that way.
The executive branch gets a lot of leeway when a war is declared, which is exactly why it does not get the power to declare a war.
What the Obama administration did was murder, plain and simple, in broad daylight.
The fact that American politicians shit all over the constitution for at least a hundred years now is neither here nor there.
Interestingly enough you do not get to do whatever the fuck you want just because you have been doing it long enough, at least there is nothing about it in the constitution, the SCOTUS however reaches verdicts that way.
For the younger ones among us, the above was a formal declaration of law, in case you have never seen one. [/quote]
You can dance around it anyway you wish but there is no precedent and their is no constitutional authority to allow enemy combatants access to the civilian judicial system. We can go clear back to the Barbary pirates of Jefferson’s day when the Constitutions’s ink was barely dry if we want.
It Just Doesn’t Work That Way. Never Has.[/quote]
Teaching orion Con Law is like teaching a pig to sing; the results are not pretty, and it only aggravates the pig.
Others, however, may be interested in the following, from Ex parte Quirin.
"Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, [317 U.S. 1, 38] guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war…
Nor are petitioners any the less belligerents if, as they argue, they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations. The argument leaves out of account the nature of the offense which the Government charges and which the Act of Congress, by incorporating the law of war, punishes. It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose. The offense was complete when with that purpose they entered-or, having so entered, they remained upon-our territory in time of war without uniform or other appropriate means of identification. For that reason, even when committed by a citizen, the offense is distinct from the crime of treason defined in Article III, 3 of the Constitution, since the absence of uniform essential to one is irrelevant to the other. Cf. Morgan v. Devine, 237 U.S. 632 , 35 S.Ct. 712; Albrecht v. United States, 273 U.S. 1, 11 , 12 S., 47 S.Ct. 250, 253, 254.
But petitioners insist that even if the offenses with which they are charged are offenses against the law of war, their trial is subject to the requirement of the Fifth Amendment that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, and that such trials by Article III, 2, and the Sixth Amendment must be by jury in a civil court. Before the Amendments, 2 of Article [317 U.S. 1, 39] III, the Judiciary Article, had provided: ‘The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury’, and had directed that ‘such Trial shall be held in the State where the said Crimes shall have been committed’.
Presentment by a grand jury and trial by a jury of the vicinage where the crime was committed were at the time of the adoption of the Constitution familiar parts of the machinery for criminal trials in the civil courts. But they were procedures unknown to military tribunals, which are not courts in the sense of the Judiciary Article… As this Court has often recognized, it was not the purpose or effect of 2 of Article III, read in the light of the common law, to enlarge the then existing right to a jury trial. The object was to preserve unimpaired trial by jury in all those cases in which it had been recognized by the common law and in all cases of a like nature as they might arise in the future, District of Columbia v. Colts, 282 U.S. 63 , 51 S.Ct. 52, but not to bring within the sweep of the guaranty those cases in which it was then well understood that a jury trial could not be demanded as of right.
The Fifth and Sixth Amendments, while guaranteeing the continuance of certain incidents of trial by jury which Article III, 2 had left unmentioned, did not enlarge the right to jury trial as it had been established by that Article…
All these are instances of offenses committed against the United States, for which a penalty is imposed, but they are not deemed to be within Article III, 2 or the provisions of the Fifth and Sixth Amendments relating to ‘crimes’ and ‘criminal prosecutions’. In the light of this long-continued and consistent interpretation we must concluded that 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts."
In short, enemy belligerents do not have the rights of citizens. Even if orion says they do.
Great post doc
[quote]DrSkeptix wrote:
In short, enemy belligerents do not have the rights of citizens. Even if orion says they do.
[/quote]
Then what exactly is an enemy belligerent? …whoever the president says?
[quote]DrSkeptix wrote:
"Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, [317 U.S. 1, 38] guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war…
[/quote]
I bolded some parts that don’t seem to fit in the Awlaki case. If he actually had a trial and a lawyer… blah blah blah
Fuck Awlaki.
But what about the next guy?
[quote]pushharder wrote:
[quote]squating_bear wrote:
[quote]pushharder wrote:
[quote]squating_bear wrote:
[quote]pushharder wrote:
Sorry, Joe, but the US judicial system was NOT accessible to German/Austrian/Hungarian/Bulgarian/Ottoman combatants during WWI. That’s just how it worked then. That’s how it works now. [/quote]
That was very different though. They weren’t US citizens for one thing.
The precedent of killing Awlaki could prove to be more dangerous than he ever was.[/quote]
I would bet you a fair sum that if we looked hard enough we could find examples of US citizens who fought for the enemy in our past wars and they were NOT afforded US civilian judicial access. Let me know if you want to take my wager.
I feel very, very safe on this one.[/quote]
Haha
No, I wouldn’t take that wager. But that’s still different.
Anyways, what I’m talking about is a precedent. This was a pretty clear cut case - I’m not aware of anyone defending Awlaki here… but what happens down the line when it’s not really a clear cut case?[/quote]
SAYING it’s different doesn’t make it different.[/quote]
No it doesn’t. But I didn’t really want to keep bickering on some tiny points like this… I just couldn’t leave it when you took a half a page on comparisons that didn’t seem to fit. Maybe I should have
They were killed on the field of battle just like the rest of the opposing armies. How could you even separate the citizens from the regular ones? In the event that they were captured and found to be citizens -
Now I’m just guessing -
I would expect them to be treated differently than the rest of the prisoners. I would guess that they were put on trial for treason. Maybe a military tribunal (… i admit that i don’t even know what that means). Whatever it is - I would expect some type of trial
And then what we have here is an assassination. I would say “still different”
[quote]orion wrote:
[quote]squating_bear wrote:
[quote]pushharder wrote:
[quote]squating_bear wrote:
[quote]pushharder wrote:
Sorry, Joe, but the US judicial system was NOT accessible to German/Austrian/Hungarian/Bulgarian/Ottoman combatants during WWI. That’s just how it worked then. That’s how it works now. [/quote]
That was very different though. They weren’t US citizens for one thing.
The precedent of killing Awlaki could prove to be more dangerous than he ever was.[/quote]
I would bet you a fair sum that if we looked hard enough we could find examples of US citizens who fought for the enemy in our past wars and they were NOT afforded US civilian judicial access. Let me know if you want to take my wager.
I feel very, very safe on this one.[/quote]
Haha
No, I wouldn’t take that wager. But that’s still different.
Anyways, what I’m talking about is a precedent. This was a pretty clear cut case - I’m not aware of anyone defending Awlaki here… but what happens down the line when it’s not really a clear cut case?[/quote]
I do.
He has a right to say whatever he wants, including death to America. [/quote]
Do you really?
He doesn’t have a right to say whatever he wants. Almost but not quite. *
To my knowledge… he actually could say “death to America” and really nothing would happen except he would look like an idiot (assuming it was in America)
simply saying “death to America” isn’t the same thing as actually attempting to carry that out. That’s the charge.
I’m not saying he was innocent of that charge… I’ve only really said that it’s an extremely dangerous precedent to assassinate him without being able to defend against the charge.
I’m using words like “extremely dangerous” and it’s STILL an understatement
[quote]squating_bear wrote:
[quote]DrSkeptix wrote:
In short, enemy belligerents do not have the rights of citizens. Even if orion says they do.
[/quote]
Then what exactly is an enemy belligerent? …whoever the president says?
[quote]DrSkeptix wrote:
"Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, [317 U.S. 1, 38] guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war…
[/quote]
I bolded some parts that don’t seem to fit in the Awlaki case. If he actually had a trial and a lawyer… blah blah blah
Fuck Awlaki.
But what about the next guy? [/quote]
You have raised a series of questions, some of which I may reframe for clarity.
Is a declaration of war necessary to define a state of war for purposes of ex parte Quirin?
This issue is not directly addressed. But no one–not Congress and not any President–has challenged the War Powers Act, despite its deficiencies…for fear of losing the argument! Therefore, the state of war is defined in the WPA by the acquiescence of Congress and its funding provisions, but Congress cannot interfere with the President’s powers to conduct war.
What? Is there no rule of law? (One of Orion’s weak arguments, among many)
Yes, there is always the law and review.
Ex parte Quirin was a unanimous decision (Justice Murphy not participating), and maintained that military tribunals were legal, and legally constituted through the Executive Branch. But consider the unpublished memo by Justice Jackson–later to argue against Executive privilege in war-related civil privilege cases–which outlines remarkably the ambivalence about the President’s powers in wartime.
http://www.pegc.us/archive/Journals/goldsmith_9_%20Green_Bag_2d_223.pdf
Was Awlaki an enemy belligerent? Do you need a belligerent enemy “government” to define and prosecute an enemy belligerent?
“Citizens who associate themselves with the military arm of the enemy government, and with its aid… guidance and direction”
If a citizen so engaged can be prosecuted, a fortiori, then a citizen who himself “aids, guides and directs” belligerency can be prosecuted in a military tribunal. There is no doubt that Awlaki was targeted not for speech, but for action: he was engaged in Yemen in exactly such belligerency.
“But what about the next guy?” Or, “who decides?”
So where is the “military tribunal” by which Awlaki or the next Awlaki may be tried and “assassinated.”
Ex parte Quirin was written in the summer of 1942–different time, different technologies.
The current “theatre of war” may stretch from North Las Vegas UAV consoles to Yemen, or Pakistan.
The President’s power to wage war does not include assassination of political persons, but the rules of engagement do allow attacks on military officers and directors, uniformed or not. Awlaki was not assassinated.
But the question is unanswered, “Who decides that a distant character is an enemy belligerent–subject not to trial but to death-- based on what evidence, gathered how, and argued by whom, and with what recourse?”
I imagine there are “rules of engagement” for this, too, but why has no one in the Executive discussed them?
[quote]DrSkeptix wrote:
But the question is unanswered, "Who decides that a distant character is an enemy belligerent–
[/quote]
The president. The president wages war so the president decides who he is waging war against. It’s not a blank cheque of course. Congress holds the purse strings and there remains the possibility of censure or in extreme cases impeachment.
Subject to being treated as a combatant(unlawful or otherwise) - they can be captured alive for whatever reason then they would receive treatment according to their status(unlawful combatant/enemy combatant.)
Waging war is not a legal process. In fact it’s a political process(Clausewitz - ‘continuation of policy by other means.’) The judiciary can play no role in the waging of war. The president or his generals/advisors must make those decisions. No recourse. War is not a democratic process whereby the courts look into who we kill before we kill them. Orders come from the top. Simple as that - except of course if those orders are demonstrably and manifestly immoral.
[quote]squating_bear wrote:
I’m not saying he was innocent of that charge… I’ve only really said that it’s an extremely dangerous precedent to assassinate him without being able to defend against the charge.
I’m using words like “extremely dangerous” and it’s STILL an understatement
[/quote]
No it’s not. Try to think of it like this: When Benedict Arnold invaded Virginia the militias that fought him were trying to kill him - i.e. annihilate his forces. They weren’t trying to bring him to trial. IF he had been captured alive, for whatever reason, then that’s a completely different issue.