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InvisibleAnnapurna1
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boumediene..al-odah v bush...
    #8321924 - 04/24/08 03:01 AM (15 years, 11 months ago)

no..the sky isnt falling just yet..but what little is still holding it up will be gone within the next two months ..

http://www.scotuswiki.com/index.php?title=Boumediene/Al-Odah_v._Bush

tragically..this SCOTUS has proved itself all too easy to predict.. and bush will win by a 5-4 vote...

given this outcome..the 2008 election..and all future elections..now resemble one of saddam husseins' "reelection" campaigns...so much for hillary vs obama...


--------------------


"anchor blocks counteract the process of pontiprobation..while omalean globes regulize the pressure"...

Edited by Annapurna1 (04/24/08 11:52 AM)

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Re: boumedien..al-oda v bush... [Re: Annapurna1]
    #8321953 - 04/24/08 03:43 AM (15 years, 11 months ago)

how do you claim the outcome is foretold? (ignoring your silly and confusing election mumbo jumbo)

How is the court easy to predict, and that the detaines will lose? Where is the evidence for that? This sounds like conspiracy theory garbage honestly.

I predict that the law will be struck down, that the detaines will be allowed habeas.

If the justices vote like they have in the previous two,. that I know of, cases decided by the court, the detainees will win.


What about everyone else?

Should the detaines have access to habeas corpus irregardless of the law saying they don't?

Should the detaines have habeas corpus at all (if you were king of the us)?


I think its immoral to deprive them of such. The millitary tribunals have been so shitty and disorganized, with congress not getting their act together, and the president stalling and screwing around.

I think as long as the government has some evidence the court should let the tribunals procede, given that they will happen in a year or so for the petitioners, and then review those outcomes.


As a legal matter, the constitution says:

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.


I don't think we're in invasion or rebellion, and the public safety doesn't require it, so they should get it, providing you accept the court's determination previously that everyone in gitmo is properly able to get habeas despite not being in the states.

What do yall think?

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InvisibleAnnapurna1
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Re: boumedien..al-odah v bush... [Re: johnm214]
    #8322011 - 04/24/08 04:45 AM (15 years, 11 months ago)

this isnt about "the detainees"...its about YOU...a bush win in this case means quite simply that all civil liberties will cease to exist for every american ..

millitary commissions act of 2006[PDF]

Quote:

‘‘(e)(1) No court, justice, or judge shall have jurisdiction tohear or consider an application for a writ of habeas corpus filedby or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

‘‘(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained
by the United States and has been determined by the United
States to have been properly detained as an enemy combatant or is awaiting such determination.’’.




so what does all that mumbo-jumbo mean??...it means that they can disappear your ass off the street and into guantanamo at the drop of a hat.. where you will be "awaiting such determination" under torture for the rest of your life...

but it says "alien" and im a US citizen..you say...i would challenge you to prove that when this law doesnt give you a day in court..as your "awaiting such determination"...and dont even think about just whipping out your passport..which could be summarily presumed to be a forgery...

Quote:

I don't think we're in invasion or rebellion, and the public safety doesn't require it, so they should get it, providing you accept the court's determination previously that everyone in gitmo is properly able to get habeas despite not being in the states.




the neocons would argue that 9/11 constitutes just such an invasion...and that might well be what the rubber stamp says...

Quote:

(ignoring your silly and confusing election mumbo jumbo)




a ruling in this case is due before the end of the 2007-2008 SCOTUS term on 2008/06/30..some 4 months before the 2008 election...under the provisions of the MCA..the govt would be allowed to haul your ass in as a UAEC so that you dont vote for the other guy (gender-neutral)...

of course the implementation of the MCA up to this point has been far more limited...this i believe is simply because the SCOTUS hasnt rubber-stamped it yet...but once it does get the stamp..a hillary or obama bumper sticker on your car will suddenly constitute a "terrorist plot to disrupt the election"...

Quote:

how do you claim the outcome is foretold?




how do you claim that tomorrow is friday??...


--------------------


"anchor blocks counteract the process of pontiprobation..while omalean globes regulize the pressure"...

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Invisiblejohnm214
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Re: boumedien..al-odah v bush... [Re: Annapurna1]
    #8322024 - 04/24/08 05:04 AM (15 years, 11 months ago)

well sure the government can do whatever, we're talking about what's legal and what is reasonably forseeable


Further ignoring election silliness....


The bush administration doesn't claim that citizens aren't due habeas, besides Gonzales' stupid testimony

The constitution allows habeas to citizens in all cases. The Supreme Court says so, the Bush administration says so.

A law cannot deprive you of a right to habeas guarenteed by the constitution, as americans and foreigners alike share. We're not in an invasion or rebellion.

You're access to the court, or your family/friend/lawyer's access if you're secreted away, is guarenteed by the first amendment. You're right to habeas is guarenteed by article I (i recall, maybe not, but its in there). That's it. The law can't stop you from appearing in court, the law can't stop the constitution. I agree the law was poorly written, and is ridiculous, but it can't stop the constituional protections from being in effect. We'll see how the cour trules.

Second, the law you refer to does provide for court review. Once you've had your military tribunal or whatever you can applal to the DC Circuit for relief, where you can get a civilian judge to order you released on constitutional grounds, even if you don't collaterally attack via habeas.


And I still don't get your confidence re: the supreme courts ruling. Their were at least 5 people who wanted to hear this case, despite not wanting to previously. These four are likely leaning towards overturning the law, as they should. And the past decisions would seem to suggest they'll get 5 justices for that action.


edit: should be "these five" in all cases of last paragraph

Edited by johnm214 (04/24/08 05:13 AM)

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Re: boumedien..al-odah v bush... [Re: Annapurna1]
    #8322029 - 04/24/08 05:09 AM (15 years, 11 months ago)

Quote:


‘‘(e)(1) No court, justice, or judge shall have jurisdiction tohear or consider an application for a writ of habeas corpus filedby or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.




Luckily I'm a US citizen, so this doesn't apply to me at all.

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Re: boumedien..al-odah v bush... [Re: Redstorm]
    #8322035 - 04/24/08 05:16 AM (15 years, 11 months ago)

yeah, I still think its immoral and unconstitutional, but anna has a point in that the law doesn't really provide much reassurance you'll get to challenge whether or not your an alien. It was happened in the history of this country that folks have been wrongly determined to be aliens when they were really citizens.

As I explain above, I still think the constituion trumps this, and you do get an appeal to the DC circuit where you can presumably address this even in absence of habeas, but its still a sloppy and unreassuring law. I hate these blanket provisions where outcomes are presupposed and thus not addressed, i.e. of course its an alien not a citizen, seems to be the mindset of the drafters.

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Re: boumedien..al-odah v bush... [Re: Redstorm]
    #8322036 - 04/24/08 05:16 AM (15 years, 11 months ago)

Quote:

johnm214 said:
The bush administration doesn't claim that citizens aren't due habeas, besides Gonzales' stupid testimony

The constitution allows habeas to citizens in all cases. The Supreme Court says so, the Bush administration says so.




Quote:

Redstorm said:
Quote:


‘‘(e)(1) No court, justice, or judge shall have jurisdiction tohear or consider an application for a writ of habeas corpus filedby or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.




Luckily I'm a US citizen, so this doesn't apply to me at all.




neither of you twits bothered to read my earlier post..so ill repeat myself for your convenience ..

Quote:

but it says "alien" and im a US citizen..you say...i would challenge you to prove that when this law doesnt give you a day in court..as your "awaiting such determination"...and dont even think about just whipping out your passport..which could be summarily presumed to be a forgery...




in other words..you must first prove your citizenship in order to be entitled to habeas protections.. but you need the habeas protections first in order to prove your citizenship...the MCA is a catch 22 against which your passport isnt worth poop...

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Re: boumedien..al-odah v bush... [Re: Annapurna1]
    #8322040 - 04/24/08 05:19 AM (15 years, 11 months ago)

You made the claim so it is your burden to prove that a citizen would not receive habeas corpus.

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Re: boumedien..al-odah v bush... [Re: Annapurna1]
    #8322041 - 04/24/08 05:20 AM (15 years, 11 months ago)

I did read your post


I agree its troubling that they could wait forever to give you your hearing, but where does it say that the courts are bound by the determination of the commision as to citizenship? I'd argue they can't be, as citezenship is relevant as to habeaus rights, and thus its a question of constitutional, not statutory law, and cannot be legislated away by the law. So you could file for habeas, something nobody contends could be applied to a citizen.

And after the hearing you get an appeal anyways, so you will get in court, and the law expresely allows for constitutional issues to be raised, as well as a reviw of the hearing itself.

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Re: boumedien..al-odah v bush... [Re: Annapurna1]
    #8322042 - 04/24/08 05:21 AM (15 years, 11 months ago)

:smile:


--------------------
Just another spore in the wind.

Edited by Seuss (04/24/08 05:23 AM)

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InvisibleAnnapurna1
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Re: boumedien..al-odah v bush... [Re: Redstorm]
    #8322053 - 04/24/08 05:33 AM (15 years, 11 months ago)

Quote:

Redstorm said:
You made the claim so it is your burden to prove that a citizen would not receive habeas corpus.




i make no such claim that a citizen would not receive habeas corpus...only that you have to prove that your a citizen first..which is a catch-22 under the provisions of the MCA...


--------------------


"anchor blocks counteract the process of pontiprobation..while omalean globes regulize the pressure"...

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Re: boumedien..al-odah v bush... [Re: johnm214]
    #8322068 - 04/24/08 05:43 AM (15 years, 11 months ago)

Quote:

johnm214 said:
where does it say that the courts are bound by the determination of the commision as to citizenship?




the portion of the MCA quoted above says that no court has any jurisdiction over anyone in military custody..which means that there wont be any opportunity to prove citizenship in a court-of-law *unless* and until you get a CSRT review...that might (and prolly will) be never..and even if so the DC circuit court would prolly say "FOAD..toad"...


--------------------


"anchor blocks counteract the process of pontiprobation..while omalean globes regulize the pressure"...

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Re: boumedien..al-odah v bush... [Re: Annapurna1]
    #8322085 - 04/24/08 05:53 AM (15 years, 11 months ago)

Yes, but the constitution says otherwise, so you or your next friend file the petition. It will probably be dismissed, and righfully so, if you've not waited a decent amount of time for the hearing in front of the commision, but the statute can't trump the constitution. You'll get your habeas lawsuit. Rights to the court is another right of the constitution. Once you get in, establish your rights to habeas, the court has jurisdiction under article three. But this presumes the government refuses to grant you a hearing, the worst case situation. When you get the hearing you just appeal to the DC Cir.

Again, everybody, except that toad gonzales, agrees the constitution guarantees Americans habeas rights. Everyone.

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Re: boumediene..al-odah v bush... [Re: johnm214]
    #8322871 - 04/24/08 11:50 AM (15 years, 11 months ago)

whether or not the constitution says otherwise is what this case is all about...and apart from gonzales..there are at the very least 5 neocons on the SCOTUS.. 44 senate repugnicans.. bush.. cheney.. and their cabinet.. that would vehemently argue the constitutionality of the MCA...

however..i would agree that its difficult to imagine a plausible logical convolution that roberts and alito could produce to rubber-stamp the MCA..but its not at all difficult to imagine them using an implausible one instead...

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Re: boumediene..al-odah v bush... [Re: Annapurna1]
    #8323884 - 04/24/08 05:07 PM (15 years, 11 months ago)

1. Please stop twisting the name of "republican" to get whatever repugnican is supposed to mean. What does that mean?


2. Roberts and Alito likely believe the writ doesn't extend to non citizens in foreign lands. i think guantanamo bay isn't a foreign land, as d the majority of justices, and I further believe habeas extends to all people in US custody. But this is their view, so their isn't an inconsistancy, they view the detainess as having no rights anyways.


Who the hell are the 5 neocons? I don't think its fair to call them all that, at all. Demeans their varrying opinions. I'm guessing you put roberts, alito, thomas, scalia, and kennedy in one boat?

It is kennedy that will be your undoing, and who has voted for the detaines in the past. He feels they have the right to habeas. Since we know this, we know he will overturn the judgement of the appellate court. He would have to determine that the habeas right he previously was for was only rooted in statute, and ignore the constitution. How could he do this? The only other way you're right is if he suddenly reverses course, which he won't do.

When the first petition for cert was denied, kennedy joined stevens with this statement as to why they denied it:


w
Quote:

e are persuaded that traditional rules gov-
erning our decision of constitutional questions, see Ash-
wander v. TVA, 297 U. S. 288, 341 (1936) (Brandeis, J.,
concurring), and our practice of requiring the exhaustion
of available remedies as a precondition to accepting juris-
diction over applications for the writ of habeas corpus, cf.
Ex parte Hawk, 321 U. S. 114 (1944) (per curiam), make it
appropriate to deny these petitions at this time. However,
“[t]his Court has frequently recognized that the policy
underlying the exhaustion-of-remedies doctrine does not
require the exhaustion of inadequate remedies....
Were the Government to take
additional steps to prejudice the position of petitioners in
seeking review in this Court, “courts of competent jurisdic-
tion,” including this Court, “should act promptly to ensure
that the office and purposes of the writ of habeas corpus
are not compromised.” Padilla v. Hanft, 547 U. S. 1062,
1064 (2006) (KENNEDY, J., concurring in denial of certio-
rari). And as always, denial of certiorari does not consti-
tute an expression of any opinion on the merits. ...






I think Kennedy will vote with the majority and overrule the act in question. Why do you think he wouldn't?

He almost has to, unless he finds the commision to be an adequate substitute, whihc I don't believe he would.

Kennedy will be the fifth vote, and it will be overturned.


Here's what he himself wrote in Rasul v. Bush. DOesn't jive with your analysis, does it?

Quote:

First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities. The opinion of the Court well explains the history of its possession by the United States. In a formal sense, the United States leases the Bay; the 1903 lease agreement states that Cuba retains "ultimate sovereignty" over it. Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418. At the same time, this lease is no ordinary lease. Its term is indefinite and at the discretion of the United States. What matters is the unchallenged and indefinite control that the United States has long exercised over Guantanamo Bay. From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the "implied protection" of the United States to it. Eisentrager, supra, at 777-778.

The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status. In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. Having already been subject to procedures establishing their status, they could not justify "a limited opening of our courts" to show that they were "of friendly personal disposition" and not enemy aliens. 339 U. S., at 778. Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal-court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager. For these reasons, I concur in the judgment of the Court.



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Re: boumediene..al-odah v bush... [Re: johnm214]
    #8324667 - 04/24/08 08:46 PM (15 years, 11 months ago)

in both the rasul and hamdan cases..kennedys' votes against bush were based on statutory and not constitutional grounds (for example..in hamdan kennedy said that the military commissions were illegal merely because congress had not yet authourized them)...congress subsequently amended the statutes to remove the restrictions...

i should also point out that kennedy is no longer the swing vote he was at the time of hamdan and has since voted solidly with the roberts bloc...


--------------------


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Re: boumediene..al-odah v bush... [Re: Annapurna1]
    #8326923 - 04/25/08 12:42 PM (15 years, 10 months ago)

?

They didn't address the constitution cuz the cases didn't require it- though some, like Specter, claim Rasul was a constitutionaly based decision.

Either way, how do you jive Kennedy's statements I've quoted above w/ the position you're advancing?

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Re: boumediene..al-odah v bush... [Re: johnm214]
    #8338108 - 04/28/08 04:05 PM (15 years, 10 months ago)

the position im advancing is based on the language kennedy used in his verdict on hamdan ..

http://www.law.cornell.edu/supct/html/05-184.ZC1.html

Quote:

Military Commission Order No. 1, which governs the military commission established to try petitioner Salim Hamdan for war crimes, exceeds limits that certain statutes, duly enacted by Congress, have placed on the President’s authority to convene military courts. This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President’s authority. Where a statute provides the conditions for the exercise of governmental power, its requirements are the result of a deliberative and reflective process engaging both of the political branches. Respect for laws derived from the customary operation of the Executive and Legislative Branches gives some assurance of stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.




Quote:

The proper framework for assessing whether Executive actions are authorized is the three-part scheme used by Justice Jackson in his opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952) . "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate."




what kennedy is saying is that congress has the authourity to authourize the practices at guantanamo and elsewhere..but had not done so when the hamdan verdict was rendered...the MCA was draughted 6 weeks later .. carefully taylored to address the issues kennedy raised above...


--------------------


"anchor blocks counteract the process of pontiprobation..while omalean globes regulize the pressure"...

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Re: boumediene..al-odah v bush... [Re: johnm214]
    #8515700 - 06/12/08 02:31 PM (15 years, 9 months ago)

Quote:

johnm214 said:

Who the hell are the 5 neocons?  I don't think its fair to call them all that, at all.  Demeans their varrying opinions.  I'm guessing you put roberts, alito, thomas, scalia, and kennedy in one boat? 

It is kennedy that will be your undoing, and who has voted for the detaines in the past.  He feels they have the right to habeas.  Since we know this, we know he will overturn the judgement of the appellate court.  He would have to determine that the habeas right he previously was for was only rooted in statute, and ignore the constitution. How could he do this?  The only other way you're right is if he suddenly reverses course, which he won't do.





And.... I win :smile:  As predicted, Kennedy was not a "repugnican" or whatever bullshit you call him, and he wrote the majority opinion.  All this bitching was for nothing, and the court ruled how I said they would, nah nah.


From syllabus:
Quote:

Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension
Clause’s protections because they have been designated as enemy
combatants or because of their presence at Guantanamo. Pp. 8–
41.The Suspension Clause has full effect at Guantanamo. The Government’s argument that the Clause affords petitioners no rightsbecause the United States does not claim sovereignty over the naval station is rejected. Pp. 22–42.
(i)
The Court does not question the Government’s position thatCuba maintains sovereignty, in the legal and technical sense, over Guantanamo, but it does not accept the Government’s premise that de jure sovereignty is the touchstone of habeas jurisdiction. Common-
law habeas’ history provides scant support for this proposition,and it is inconsistent with the Court’s precedents and contrary tofundamental separation-of-powers principles

....
The Government’s sovereignty-based test raises troubling separation-of-powers concerns, which are illustrated by Guantanamo’s
political history. Although the United States has maintained
complete and uninterrupted control of Guantanamo for over 100 years, the Government’s view is that the Constitution has no effect
there, at least as to noncitizens, because the United States disclaimed
formal sovereignty in its 1903 lease with Cuba. The Nation’s basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of,and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution
on or off at will would lead to a regime in which they, notthis Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177. These concerns have particular bearing upon the Suspension
Clause question here, for the habeas writ is itself an indispensable
mechanism for monitoring the separation of powers



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