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InvisibleAnnapurna1
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habeas corpus poll (repost)...
    #6143590 - 10/07/06 02:37 PM (17 years, 7 months ago)

the suspension clause (I.9) of the US constitution reads as follows ..

Quote:

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.




several legal experts..including sen arlen specter..claim that suspension of habeas corpus under the torture act is illegal because the conditions of the suspension clause..above..do not apply...

of course sen specter knows infinitely more about the law than me...but OTOH..there are prolly other experts who could make a very strong case that the terrorist threat constitutes an invasion..which is the topic of our poll ..
does a condition of invasion exist that warrants suspension of habeas corpus?...
You may choose only one


Votes accepted from (10/07/06 02:36 PM) to (No end specified)
You must vote before you can view the results of this poll



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


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

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OfflineRedstorm
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Re: habeas corpus poll (repost)... [Re: Annapurna1]
    #6143672 - 10/07/06 03:14 PM (17 years, 7 months ago)

No, not right now.

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OfflineEconomist
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Registered: 10/11/05
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Re: habeas corpus poll (repost)... [Re: Annapurna1]
    #6143984 - 10/07/06 04:41 PM (17 years, 7 months ago)

Quote:

Annapurna1 said:
several legal experts..including sen arlen specter..claim that suspension of habeas corpus under the torture act is illegal because the conditions of the suspension clause..above..do not apply...

of course sen specter knows infinitely more about the law than me...but OTOH..there are prolly other experts who could make a very strong case that the terrorist threat constitutes an invasion..which is the topic of our poll ..



This is misleading.

The bigger legal question is not if the war on terror justifies a suspension of the writ of habeas corpus, but rather if non-citizens of the US should have this right.

The constitution does not specifically guarantee any rights to non-citizens, and while the Supreme Court has upheld that the Bill of Rights applies to non-citizens, habeas corpus is not part of the Bill of Rights, showing up instead in Article 1. Furthermore, habeas corpus itself used to be defined very narrowly, prior to several decisions written by the Supreme Court during the 1950s and 1960s. But, as with all Supreme Court decisions, future decisions can set new precedent and change the interpretation.

Thus if the Supreme Court upholds the ideas expressed in the military tribunal bills (which their previous decision suggests they will) it will have nothing to do with suspension of the writ, and everything to do with whether or not it applies to non-citizens.

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OfflineTurn
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Registered: 12/14/04
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Re: habeas corpus poll (repost)... [Re: Economist]
    #6147101 - 10/08/06 05:20 PM (17 years, 7 months ago)

RE: Economist Oh no the Military Commissions Act of 2006 just removed Habeous Corpus for US Citizens. If you are deemed an "unlawfull enemy combatant" aka a terrorist then you get tried in a military court, no habeus corpus there, you can just rot in some dungeon. Don't take my word for it though look this new law up its really unsetteling. I voted no for the poll how could anyone think we are currently under invasion, unless by illegal aliens, certainly not by terrorists.

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OfflineEconomist
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Re: habeas corpus poll (repost)... [Re: Turn]
    #6148664 - 10/08/06 11:40 PM (17 years, 7 months ago)

I'm sorry but I think you're mistaken.

quoting from the bill itself:

HR6166
Section 7 Habeas Corpus Matters:

"(a) In General- Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and the subsection (e) added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477) and inserting the following new subsection (e):

`(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by 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.'.

(b) Effective Date- The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001."

You can see that the changes to habeas corpus VERY clearly applies only to aliens, and not to US citizens.

Furthermore, the Supreme Court stated in Hamdi v. Rumsfeld that the right of habeas corpus could not be revoked for citizens of the US, so it is extremely unlikely that this would change any time soon. (And hence the extensive use of the term "alien" in the Military Commissions Act)

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OfflineTurn
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Re: habeas corpus poll (repost)... [Re: Economist]
    #6149979 - 10/09/06 01:01 PM (17 years, 7 months ago)

Wow if you can understand that I will take your word for it. I was going by interpretations of others, I tried reading it but 80 pages of legal shit was too much

http://tikkun.org/rabbi_lerner/milcommissions_1007

This guy is a constitutional lawyer and Former Bar Association Prez, I enjoyed his annalisis of the Bill

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Invisiblezorbman
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Re: habeas corpus poll (repost)... [Re: Economist]
    #6150204 - 10/09/06 02:19 PM (17 years, 7 months ago)

You can see that the changes to habeas corpus VERY clearly applies only to aliens, and not to US citizens.

I agree with you that the word 'alien' is applied "extensively" but it is not used exclusively. For instance, what about this section:

"26) WRONGFULLY AIDING THE ENEMY.—Any person subject
to this chapter who, in breach of an allegiance or duty to
the United States, knowingly and intentionally aids an enemy
of the United States, or one of the co-belligerents of the enemy,
shall be punished as a military commission under this chapter
may direct."


--------------------
“The crisis takes a much longer time coming than you think, and then it happens much faster than you would have thought.”  -- Rudiger Dornbusch

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OfflineEconomist
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Re: habeas corpus poll (repost)... [Re: zorbman]
    #6150255 - 10/09/06 02:26 PM (17 years, 7 months ago)

It will be up to the Supreme Court, however, since the document itself only removes the protection of habeas corpus from aliens (and does so explicitly) I see no reason why the protection would not still be available to citizens, even if they are tried by military commission. As I already stated, the decision in Hamdi v. Rumsfeld would also seem to support this viewpoint.

Sure, you won't get a jury trial, but you also won't be subject to indefinite detention.

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Invisiblezorbman
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Re: habeas corpus poll (repost)... [Re: Economist]
    #6150343 - 10/09/06 02:44 PM (17 years, 7 months ago)

If the section I quoted only applies to non-citizens or "aliens" then why is that word omitted?

Who is the following section referring to?


"26) WRONGFULLY AIDING THE ENEMY.—Any person subject
to this chapter who, in breach of an allegiance or duty to
the United States
, knowingly and intentionally aids an enemy
of the United States, or one of the co-belligerents of the enemy,
shall be punished as a military commission under this chapter
may direct."

Who other than a United States citizen would have an "allegiance" to the United States?


--------------------
“The crisis takes a much longer time coming than you think, and then it happens much faster than you would have thought.”  -- Rudiger Dornbusch

Edited by zorbman (10/09/06 03:37 PM)

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OfflineTurn
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Registered: 12/14/04
Posts: 367
Loc: The fabled catbird seat
Last seen: 14 years, 1 month
Re: habeas corpus poll (repost)... [Re: Economist]
    #6150970 - 10/09/06 05:19 PM (17 years, 7 months ago)

Quote:

Economist said:
Sure, you won't get a jury trial, but you also won't be subject to indefinite detention.




Haha, yeah fuck the constitution

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Invisiblezorbman
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Registered: 06/04/04
Posts: 5,952
Re: habeas corpus poll (repost)... [Re: Annapurna1]
    #6150999 - 10/09/06 05:27 PM (17 years, 7 months ago)

Would those who voted "yes" care to come forward and explain why you consider the U.S. under an "invasion"?


--------------------
“The crisis takes a much longer time coming than you think, and then it happens much faster than you would have thought.”  -- Rudiger Dornbusch

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OfflineEconomist
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Re: habeas corpus poll (repost)... [Re: zorbman]
    #6151127 - 10/09/06 06:09 PM (17 years, 7 months ago)

@zorbman

That section very clearly relates to citizens of the US. However, that section also does not deal with habeas corpus, it merely outlines who may be subject to a military tribunal.

Thus, citizens may be called to answer before a military tribunal, however, that does not automatically mean that they lose habeas corpus, just that they will be tried before a tribunal instead of a jury. Additionally, not everyone tried before a military tribunal automatically loses their protection under habeas corpus, and the bill is explicit about taking that away only from aliens.

US Military officers charged with crimes are routinely placed before military tribunals, but none of them have ever lost their habeas corpus protections. The only habeas corpus protections this bill removes are those that may have been applied to non-citizens.

Therefore, the question at heart is still whether or not aliens are automatically guaranteed habeas corpus protections.

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Invisiblezorbman
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Re: habeas corpus poll (repost)... [Re: Economist]
    #6152834 - 10/10/06 01:06 AM (17 years, 7 months ago)

That section very clearly relates to citizens of the US.

Thank you for admitting that and being honest. It is more than I can say for this bill however. What is the purpose of the the weasel words? If this section applies to U.S. citizens why not simply state "U.S. citizens"?

citizens may be called to answer before a military tribunal

And from what I understand of this bill they are forced to accept a military lawyer chosen by the prosecution. They cannot even represent themselves. The use of evidence acquired through coercive interrogation is allowed. Hearsay is admissible as evidence. Evidence obtained without following proper procedure can be admissible. A majority verdict is not needed for a conviction. And all this is done in secret. How hard do you think it would be to obtain a conviction based upon these rules?

This sounds like a kangaroo court.

On the surface it appears that a citizen would have redress to habeas corpus, but there are still questions that need to be answered.

Take a look at the bill's definition of an unlawful enemy combatant. (Note that it does not exclude U.S. citizens).

948a(1)(ii) a person who, before, on, or after the date of
the enactment of the Military Commissions Act of 2006,
has been determined to be an unlawful enemy combatant
by a Combatant Status Review Tribunal or another competent
tribunal established under the authority of the
President or the Secretary of Defense.


So just because Pres. Bush says you are an unlawful enemy combatant that makes you one in the eyes of the law.

What if Donald Rumsfeld decides that a U.S. citizen is an alien in a Combatant Status Review Tribunal and further claims he is an unlawful combatant and that his determination is conclusive under section 948a(1)(ii) and ships the person off to Guantanamo?


--------------------
“The crisis takes a much longer time coming than you think, and then it happens much faster than you would have thought.”  -- Rudiger Dornbusch

Edited by zorbman (10/10/06 01:30 AM)

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