The ninth circus in action again

[Twocubdad]

I believe the knuckleheads at Gitmo have been declared "illegal enemy combatants," and are not officially POWs. I'm not sure of the exact legal distinction, but one reason is that they don't have to be afforded all the protections of the Geneva Conventions. The other reason is that the Geneva Conventions were written to cover conventional POW, i.e., uniformed members of regular armies. In many respects, the international law to cover these guys just doesn't exist.

 

I don't see where we have an obligation to provide these guys access to American attorneys or courts. On the otherhand, I don't see how we have the right to keep them for years on end without. If they aren't POWs but are being held for conducting "illegal combat", then they need to be charged, tried and sentenced for their crimes. Of course the problem is who tries them. They've not necessarily committed war crimes, per se, so The Hague won't work. We could send them back to their countries of origin, but I imagine they would be immediately released in some cases and immediately executed in others. We need to figure out what we're going to do with them. Unfortunately, the administration doesn't seem to be in any hurry. But two years is time enough to get going with it.

 

As to Padilla, until Congress declares war and/or suspends habeas corpus, Padilla has the same rights as any other citizen. If he is suspected of treason, arrest him. If he is convicted, hang him. That, at least, is in the constitution.

 

That Mssrs. Bush and Ashcroft think the civil rights of an American citizen on American soil can be so easily dismissed is of much greater concern to me than anything Al Qeda could concoct.

[NWScouter]

FOG,

Taxation without representation was just one of the causes of the Revolution. Most of the issues were concerning due process, civil and economic rights. In fact taxation without representation is not wanting no taxes but protesting the (due) process that how taxes are determined.

 

A few examples from the listing in the Declaration:

 

For depriving us, in many cases, of the benefits of Trial by Jury:

 

For transporting us beyond Seas to be tried for pretended offences:

 

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

 

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

 

[Fat Old Guy]

NW Scouting Dude said, " Most of the issues were concerning due process"

 

The leaders were business men and were concerned with business issues. The other stuff only came into play because they weren't being treated nicely because they were rebels.

 

 

 

[ScouterPaul]

FOG

Regarding my innocent until found guilty statement you replied with the following:

 

"Nope, unless I missed something, the Constitution simply guarantees a speedy trial by a jury of peers. What sort of peers should a terrorist have on his jury? More terrorists?"

 

If he isn't innoncent until these peers find him guilty why is he guaranteed a trial? Using your logic a person on trial for murder would have to have a jury of murderders. Why don't we just forget all of the legal stuff and allow Bush and Ashcroft to be the sole judge on who is guilty. Sure would save a lot of time.

[evmori]

Doesn't the Constitution apply to American citizens? The terrorists at Gitmo aren't American citizens therefore they are not entitled to the rights the Constitution provides.

 

A blessed Christmas to all!

Ed Mori

1 Peter 4:10

[Fat Old Guy]

"If he isn't innoncent until these peers find him guilty why is he guaranteed a trial?"

 

My point is that there is nothing in the constitution about "innocent until proven guilty" just as there is nothing about "separation of church and state."

 

Ed asked, "Doesn't the Constitution apply to American citizens?" It applies to everyone. That's why if a border jumper commits a crime, he still must be Mirandized.

 

TwoCubDad opined, "The other reason is that the Geneva Conventions were written to cover conventional POW, i.e., uniformed members of regular armies."

 

You need to read a copy of the Geneva Convention, many irregulars are covered, it all depends on their actions.

[NWScouter]

Nowhere in the Constitution or its amendments limits the rights to only citizens. Courts through out our history have ruled that those rights are for all persons, who are on US soil. Now Gitmo has been used to house detainees for years in order to deny them civil rights granted under the constitution. That is why the Coast Guard grabs up boat people before the get their feet dry in Florida. If you go back before the Civil War, the important fact in the ruling was Drew Scott was a slave and therefore not a person.

[NJCubScouter]

FOG says:

 

My point is that there is nothing in the constitution about "innocent until proven guilty" just as there is nothing about "separation of church and state."

 

It is true that the words "innocent until proven guilty" are not stated in the constitution. It is not correct that there is nothing "about" it. The fifth and fourteenth amendments (applicable to the federal and state government, respectively) guarantee that there shall be no deprivation of life, liberty or property without "due process of law." The courts, left with that very vague statement, had to figure out what it meant. They looked both at English legal precedents and the developing American legal tradition, and determined that in a criminal case, "due process" includes the following:

 

A presumption of innocence until a person is proven guilty.

 

That the "burden of proof" in a criminal case, as to all elements of the crime charged, be on the government.

 

That the government be required to prove guilt "beyond a reasonable doubt" rather than the "lesser" standards applicable to civil cases (the two most common of which are "preponderance of the evidence," applicable to most civil cases, and the somewhat higher "clear and convincing evidence" standard applicable to things like involuntary committments to mental institutions, and other types of specialized cases or issues.

 

So, although the Constitution does not specifically mention the presumption of innocence, or the government's burden to prove guilt beyond a reasonable doubt, they are nevertheless constitutional rights, through the due process clauses. If anybody doesn't like this they can send a letter to the U.S. Supreme Court, but I don't think this is going to change anytime soon.

[NJCubScouter]

Just to add one thing to that. I have pointed out a number of times that while "separation of church and state" is not mentioned in the constitution itself -- nor is "innocent until proven guilty" -- there are a number of other things not mentioned in the constitution that have been interpreted as constitutional guarantees anyway. One of those is the "right to expressive association," which is not mentioned in the constitution, but if it were not a constitutional right, there would be openly gay leaders in the BSA right now. That principle was the basis for the Supreme Court's decision in the Dale case (despite the widespread but incorrect belief that the BSA won the case solely because it is a "private organization"; if you read the decision, you see that that is not true.)

 

So if you would like to ignore any constitutional rights except those specifically mentioned in the constitution, I'd say be careful what you wish for, you may get it. I would also point out the language of the Ninth Amendment:

 

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

 

If that seems somewhat vague and open-ended, it is, and the courts have been struggling with it since it was adopted in 1790 (+-). But it clearly does mean that you can't just look at the words of the constitution and expect to see every constitutional right neatly laid out.

[LovetoCamp]

if I was an illegal enemy combatant I know I sure would rather be a prisoner of the United States than north korea, cuba, the former iraq and taliban regimes, iran, lybia, syria, and on and on with the exception of Monnaco. Being a POW of Prince Ranier would probably be a better lot in life than sitting in a can at Gitmo.

[eisely]

It is certainly correct that constitutional rights are not limited to citizens of the US. One of the interesting questions about the detainees at Guantanamo is the jurisdiction question. While the constitution assigns original jurisdiction to the Supreme Court for certain types of cases, the constitution gives the congress the duty and power to establish other lesser courts and to specify the jurisdiction of those lesser courts. As far as I know the district courts of the US and the appellate circuits do not have jurisdiction outside the United States and its territories. The district court system may also have limited jurisdiction over certain types of US "territories" such as the grounds of consular and embassy establishments.

 

Enclaves such as Guantanamo fall under the authority of the military. US military bases not on US soil would fall under the jurisdiction of the US Uniform Code of Military Justice, and any "status of forces" agreement with the host government. This is one of the areas where I think the ninth circus went awry, by creating jurisdiction for itself, essentially usurping the powers of congress.

[NJCubScouter]

Eisely says:

 

Enclaves such as Guantanamo fall under the authority of the military. US military bases not on US soil would fall under the jurisdiction of the US Uniform Code of Military Justice, and any "status of forces" agreement with the host government. This is one of the areas where I think the ninth circus went awry, by creating jurisdiction for itself, essentially usurping the powers of congress.

 

I have finally gotten the opportunity to print out the full decision, though I have only read the part that discusses jurisdiction. The Ninth Circuit spends a lot of time discussing the very issue you mention, Eisely, and it comes to the opposite conclusion. First it concludes that "territorial jurisdiction" rather than "sovereignty" is sufficient for the U.S. courts to have jurisdiction over a petition filed by a prisoner, and that the U.S. has "territorial jurisdiction" over Guantanamo. Second, in deference to past precedents that apparently do require "sovereignty" for jurisdiction, the court made an extensive analysis of the lease between the U.S. and Cuban governments for Guantanamo and the history of the performace of the governments under that lease. The Ninth Circuit concludes that Guantanamo is "sovereign U.S. territory." Most interestingly (and I never knew this before) the U.S. does not comply with the terms of the lease (written in 1903), and specifically the U.S. uses the base for purposes not permitted in the lease. One snippet from this discussion: "Today, the Base is in every way independent of Cuba and in no way reliant on Cuba's cooperation." And here is the conclusion to that section (I took out the footnotes and citations because they make it a bit hard to follow):

 

If "sovereignty" is "the supreme, absolute, and uncontrollable power by which any independent state is governed," "the power to do everything in a state without accountability," or "freedom from external control: autonomy, independence," it would appear that there is no stronger example of the United States' exercise of "supreme power," or the adverse nature of its occupying power, than this country's purposeful actions contrary to the terms of the lease and over the vigorous objections of a powerless "lessor." ("The plain and ordinary import of jurisdiction without exception is the authority of a sovereign."). Any honest assessment of the nature of United States' authority and control in Guantanamo today allows only one conclusion: the U.S. exercises all of "the basic attribute of full territorial sovereignty." Accordingly, we conclude that, under any reading, Johnson does not bar this Court's jurisdiction over Gherebi's habeas petition.

 

Those are just the facts; I have not yet gotten around to giving my opinion on this subject. I would, however, note that even without the Ninth Circuit decision, the issue is already in front of the U.S. Supreme Court. That Court has already decided to review a case brought by another Guantanamo prisoner, in which the Court of Appeals (the D.C. one, I believe) ruled that the U.S. courts did not have jurisdiction. So this Ninth Circuit ruling is hardly worth all the fuss, it does not change anything other than making life easier for the Supreme Court law clerks, who now have a fully written analysis on each side of the issue to choose from and present to their bosses, who will make the ultimate decision.

[dsteele]

Man, I don't know what NJCubscouter charges per hour, but he's spending boat-loads on these boards!

 

I don't have an opinion on Guatanamo prisoners. I do wish that my friend, whom I served with as a DE, could stop guarding the prisoners there and come home to his family.

 

DS

[evmori]

I stand corrected. Actually, after I though about what I posted I realized I was wrong. Sorry!

 

Ed Mori

A blessed Christmas to all!

1 Peter 4:10

[NJCubScouter]

DS: Just doing my bit to try to increase the mutual understanding of constitutional law. Or trying to, anyway -- this is a tough crowd!