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| 7/8 |
| 2005/11/7-8 [Politics/Domestic/911, Politics/Domestic/President/Bush] UID:40476 Activity:moderate |
11/07 So psb and all other experts in Constitutional law, I just
read Section 2 of the Constitution and it seems pretty
clear that everyone in the American legal system is entitled
to a trail by jury. How did this get overturned? When did
the Executive gain the right to run its own alternative (kangaroo?)
court system?
Section. 2.
Clause 1:
The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority; ...
and between a State, or the Citizens thereof, and foreign States,
Citizens or Subjects.
Clause 3:
The Trial of all Crimes, except in Cases of Impeachment, shall be by
Jury; and such Trial shall be held in the State where the said
Crimes shall have been committed; but when not committed within any
State, the Trial shall be at such Place or Places as the Congress
may by Law have directed.
-ausman
\_ Just about the same time the supreme court has refused to hear
and/or sent back down the cases to lower courts where in the cases
where American citizens are being held without trial. The exec-
utive and judicial branches of the government are both at fault
here. Unfortunately, we are in danger of loosing our most basic
\_ "losing"
and fundamental civil rights if the supreme court chooses to ignore
logic and support the bush regime on this. If so, its only a matter
of time before we have American citizens who are "suspected terror-
ists" being held without council, trial, or indictment and with
\_ "counsel"
the new position on torture, they will be tortured too. -mrauser
\_ SCOTUS will be considering the constitutionality of military
tribunals (vs. application to be tried in the U.S. court system) for
terror suspects who are not U.S. citizens.
SCOTUS has already decided that all U.S. citizens (including those
designated terror suspects by Dubya) can be tried in the U.S. court
system. (Previously, the Bush administration had asserted the right
to indefinitely bar a U.S. citizen from accessing the U.S. court
system, if designated by Dubya as a terror suspect.)
\_ How does this explain Jose Padilla who is a US citizen "captured"
on US soil, but has not been officially processed via the courts?
\_ See: http://www.chargepadilla.org
\_ I made a mistake actually. For U.S. citizens, SCOTUS decided
that /some judge/ (even just a judge on a military tribunal)
needs to look at the case of a U.S. citizen designated as a
terrorist / enemy combatant. I was wrong when I said U.S.
court system. My bad.
http://en.wikipedia.org/wiki/Hamdi_v._Rumsfeld
\_ I made a mistake actually. For U.S. citizens, SCOTUS has
already decided that /some judge/ needs to look at the case
of a U.S. citizen designated as a terrorist / enemy combatant.
I was wrong when I said U.S. court system.
I was wrong when I said U.S. court system. My bad.
http://en.wikipedia.org/wiki/Hamdi_v._Rumsfeld
\_ Art 3 Sec 1 and Sec 2 cl 2 may answer your question. The original
and appellate jx of the Fed Cts is determined by Congress as per
Art 3 Sec 1 - it can refuse to set up Fed Cts or to give them any
jx over cases involving terrorists and choose instead to vest this
jx in Military Cts setup by the Exec, which I believe is the case
presently.
Although the USSC's original jx is determined by Art 3 Sec 2 cl 2,
notice that Congress can regulate and strip the USSC's appellate
jx. Congress has not restricted the USSC from hearing appeals by
terrorists yet, but conceivably it could.
As it relates to the jury trial right, a terrorist probably has
the right to trial by jury, but note this may not be the same
trial by jury right as in regular fed ct (12 ppl, unanimous ver-
dict may not be a requirement) and it is not clear to what level
the fifth and sixth amend. protections would apply.
I think the BIGGER issue is whether the writ of habeas corpus
can be used by non-citizens to challenge their detentions - note
that Hamdi does not answer this b/c he was a citizen. The other
problem is whether the writ can reach those held in Afghanistan
or somewhere else that is more than 100 miles from the nearest
Fed Dist. Ct. This is the bigger issue to me b/c under certain
circumstances the Exec. may have the pwr to strip a person of
US citizenship w/o following due process.
Fed Dist. Ct.
\- in addition to PADILLA and HAMDI, you may wish to follow HAMDAN
v RUMSFELD [which the USSC just agreed to look at, and ROBERTS
has just recused himself ... that is the OSAMA CHAUFFER CASE].
an older case [ww2] is Ex parte Quirin. in re: the checks and
balanaces issue, YMWTGF: "constitutional trifecta". |
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| www.chargepadilla.org Charge Jose Padilla No person shall be held to answer for a capital, or otherwise infamous cr ime, unless on a presentment or indictment of a Grand Jury, except in ca ses arising in the land or naval forces, or in the Militia, when in actu al service in time of War or public danger; nor shall any person be subj ect for the same offence to be twice put in jeopardy of life or limb; no r shall be compelled in any criminal case to be a witness against himsel f, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just c ompensation. ka Abdullah Al Muhajir--was transferred from control of the US Department of Justice to military control. Sin ce that time, Padilla has been held in a navy brig in South Carolina. Padilla has not been charged with a crime, and does not have access to a lawyer in his detention. It is also a clearly abominable violation of the democratic traditions of the United States. Padilla has been accused of plotting heinous acts of terrorism, particula rly the setting off of a "dirty bomb". He has been accused of conspiring with members of al-Queda, and planning to scout for that terrorist orga nization, using the benefits of his US citizenship. President Bush has designated Padilla an "enemy combatant". These are frightening accusations, and they may be true. Accusations do n ot give the President the authority to lock someone away, however. Accor ding to the laws and traditions of the US, the way to determine who ge ts imprisoned is through the due process of a trial by jury. But he was not captured in Afghanistan with a gun in his hand. If Jose Padilla can be held without criminal charges, strictly o n the say-so of the President, then any American can be. It is essential that Padilla be either freed or charged with a crime. |
| en.wikipedia.org/wiki/Hamdi_v._Rumsfeld search Hamdi v Rumsfeld Supreme Court of the United States Argued April 28, 2004 Decided June 28, 2004 Full case name: Yaser Esam Hamdi and Esam Fouad Hamdi as next friend of Y aser Esam Hamdi, Petitioners v Donald H Rumsfeld, Secretary of Defense , et al. Court membership Chief Justice William Rehnquist Associate Justices John Paul Stevens, Sandra Day O'Connor, Antonin Scalia , Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, S tephen Breyer Case opinions Plurality by: O'Connor Joined by: Rehnquist, Kennedy, Breyer Concurrence/dissent by: Souter Joined by: Ginsburg Dissent by: Scalia Joined by: Stevens Dissent by: Thomas Laws applied US Const. The Court recognized the power of t he government to detain unlawful combatants, but ruled that detainees mu st have the ability to challenge their detention before an impartial jud ge. Bush administration claimed that because Hamdi was caught in arms against the US, he could be properly detained as an unl awful combatant, without any oversight of presidential decisionmaking, o r without access to an attorney or the court system. Four th Circuit reversed the District Court's order, ruling that the District Court had failed to give proper deference to the government's "intellig ence and security interests," and that it should proceed with a properly deferential investigation. When the case was then sent back to the District Court, it denied the gov ernment's motion to dismiss Hamdi's petition. The District Court ordered the government to produce numerous documents for review by the judge in chambers that would enable it to perform a "meaningful judicial review," such as the statements by the Northern Alliance regarding Hamd i's capture, the dates and circumstances of his capture and interrogatio ns, and a list of all the officials involved in the determination of his "unlawful combatant" status. The government appealed the order to produce the evidence, and the Fourth Circuit once again reversed the District Court. Because it was "undispu ted that Hamdi was captured in a zone of active combat in a foreign thea ter of conflict," the Fourth Circuit stated that it was not proper for a ny court to hear a challenge of his status. separation of powers pr ohibited courts from interfering in this vital area of national security . After the Fourth Circuit denied a petition for rehearing, Hamdi's fath er appealed to the Supreme Court, which granted review and reversed the Fourth Circuit's ruling. O'Connor di d not write at length on Hamdi's right to an attorney, because by the ti me the Court rendered its decision, Hamdi had already been granted acces s to one. However, O'Connor did write that Hamdi "unquestionably has the right to access to counsel in connection with the proceedings on remand ." The plurality also argued that separation of powers required the cour ts to be involved with the detention process rather than forbidding it; to decide otherwise would merely consolidate power in the Executive Bran ch. O'Connor wrote that "a state of war is not a blank check for the Pre sident when it comes to the rights of the Nation's citizens." Ruth Bader Ginsburg, conc urred with the plurality's judgment that due process protections must be available for Hamdi to challenge his status and detention, providing a majority for that part of the ruling. However, they dissented from the p lurality's ruling that AUMF established Congressional authorization for the detention of unlawful combatants. John Paul Ste vens, went the farthest in restricting the Executive power of detention. Scalia asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus (a power provided for under the Constitution only in t imes of "insurrection" or "rebellion"), which hadn't happened; Scalia wrote that the plurality , though well meaning, had no basis in law for trying to establish new p rocedures that would be applicable in a challenge to Hamdi's detentioni t was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable proce ss for detention. Clarence Thomas was the only justice who sided entirely with the government and the Fourth Circuit's ruling, based on his view of the important security interests at stake and the President's broad war-mak ing powers. |