12-03-2003 07:55									#31
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Quote by Berzerker:

Do you think Lincoln should have had every Confederate soldier tried in a court of law to determine guilt or innocense via due process?

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Every confederate soldier was actually given a official pardon by the President. No confederate soldiers were tried for treason. That isn't why Lincoln suspended Habeus Corpus. Lincoln suspended Habeus Corpus because he wanted to control rioting anti-draft protestors.

	12-03-2003 07:57									#32
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The courts have been very consistent. People caught in the U.S. or held in American terrority have to go through the normal legal process; those persons who are not citizens and whom are located outside the U.S. (like in Cuba) are fair game.

	12-03-2003 08:43									#33
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Knight -

quote: Every confederate soldier was actually given a official pardon by the President. No confederate soldiers were tried for treason. That isn't why Lincoln suspended Habeus Corpus. Lincoln suspended Habeus Corpus because he wanted to control rioting anti-draft protestors.

I know why he did it, I'm merely offering Ramo an example of an extreme circumstance that might warrant suspending habeus corpus. His motives aside, did Lincoln need to observe due process for all those Confederate soldiers? How could he hold them in prison camps until the end of the war without due process and provide trials for each and every one of them if no pardon was forthcoming? Yes, he pardoned them once the war was over, to help the healing process start combined with the realisation that trying millions of insurgents wasn't practical. But that doesn't change the fact the Civil War is an excellent example for why the Framers allowed an exception to habeus corpus in the Constitution. It wasn't so much a concern about a few Americans supporting a foreign invader, but a rebellion from within like the Whiskey Rebellion in Pennsylvania.

	12-03-2003 11:48									#34
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quote: So, what are these extreme circumstances? How about a rebellion instigated by hispanics in the southwest, or neo-Nazi skinheads in the Pacific northwest, or maybe a bunch of whacked out drug addicted libertarians all over the country burdening the courts with thousands, if not millions of insurgents.

I don't see the legitimacy of detention if a fair trial isn't allowed. Considering the number of prisoners in our prison system, I don't think that increasing the caseload of the courts by thousands or even a million is impossible. I do see the legitimacy of temporary detention (a short, well defined period of detention before trial so everything can get a chance of being sorted out), however.

quote: Do you think Lincoln should have had every Confederate soldier tried in a court of law to determine guilt or innocense via due process?

You mean Confederate PoW's? Yes, I'd say so. Of course, a speedy trial would have to be better defined.

quote: Every confederate soldier was actually given a official pardon by the President. No confederate soldiers were tried for treason. That isn't why Lincoln suspended Habeus Corpus. Lincoln suspended Habeus Corpus because he wanted to control rioting anti-draft protestors.

Lincoln suspended habeas corpus to prevent Maryland from seceding. He suspended it right after Fort Sumter, the draft riot took place a couple years later.

	12-03-2003 13:11									#35
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A positive surprise, but how long will it last?

I'd put an 80 % chance on the appeals court or this SC to overturn it.

	12-03-2003 14:41									#36
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Ramo -

quote: I don't see the legitimacy of detention if a fair trial isn't allowed. Considering the number of prisoners in our prison system, I don't think that increasing the caseload of the courts by thousands or even a million is impossible. I do see the legitimacy of temporary detention (a short, well defined period of detention before trial so everything can get a chance of being sorted out), however.

If there was a rebellion with several million insurgents, habeus corpus and due process would suffer because the system would be overwhelmed. It doesn't matter if it's 'legitimate", only if it's practical. The Framers foresaw situations that could overwhelm the judiciary and made provision in the Constitution to deal with the potential problem. After all, they saw the Whiskey Rebellion in their own day so they had experience with just such a situation.

quote: You mean Confederate PoW's? Yes, I'd say so. Of course, a speedy trial would have to be better defined.

According to the north, they weren't POW's, they were rebels, insurgents, American citizens who were violating the law. So, how in the hell could northern courts give every Confederate soldier, sympathiser, hell, just about every southernor excluding slaves, a trial with due process? You wanted an extreme situation and I gave you one - a somewhat popular rebellion.

	12-03-2003 14:51									#37
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Shouldn't someone be able to appeal their designation as an enemy combatant

	12-03-2003 16:01									#38
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quote: I'd put an 80 % chance on the appeals court or this SC to overturn it.

You seriously underestimate the value currently placed on search/seizure and fair trial constraints here in the USofA. So did Ashcroft's people in directing such action.

	12-03-2003 16:03									#39
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Maybe. But this SC has been quite leniant on search/seizure.

As for fair trial, it's dead.

	12-03-2003 16:27									#40
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quote: Originally posted by HershOstropoler A positive surprise, but how long will it last? I'd put an 80 % chance on the appeals court or this SC to overturn it.

I'll put $100 (U.S.) against your $400 (U.S.) that it isn't overturned. Constitutional law is simple, and this judge is right.

	12-03-2003 16:31									#41
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"Constitutional law is simple"

Unfortunately, it is not.

"and this judge is right"

He is. But if being right were the key, how do you explain Roe v Wade or Bush v Gore?

	12-03-2003 16:55									#42
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quote: Originally posted by HershOstropoler "Constitutional law is simple" Unfortunately, it is not.

It's certainly much simpler than any other sort of law. All I have to do is read a few pages to get the idea behind the law, rather than volumes of common law.

quote: Originally posted by HershOstropoler "and this judge is right" He is. But if being right were the key, how do you explain Roe v Wade or Bush v Gore?

Those were Supreme Court decisions, and not subject to review by another court. I find that the vast majority of the time a good decision by a lower court ends up prevailing in the end, which is why I am willing to put my money down.

	14-03-2003 14:29									#43
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quote: If there was a rebellion with several million insurgents, habeus corpus and due process would suffer because the system would be overwhelmed. It doesn't matter if it's 'legitimate", only if it's practical. The Framers foresaw situations that could overwhelm the judiciary and made provision in the Constitution to deal with the potential problem.

Yes, and I don't think it's right to be able to completely deny due process. That's too dangerous. It can be abused and it had been. The Constitution is amendable, that should be enough. If the situation warrants it, the country could amend the Constitution to temporarily change the period of detention prior to trial regarding the insurgents.

quote: After all, they saw the Whiskey Rebellion in their own day so they had experience with just such a situation.

Yeah, and they were a bunch of bastards for formenting and crushing it.

quote: According to the north, they weren't POW's, they were rebels, insurgents, American citizens who were violating the law. So, how in the hell could northern courts give every Confederate soldier, sympathiser, hell, just about every southernor excluding slaves, a trial with due process? You wanted an extreme situation and I gave you one - a somewhat popular rebellion.

Again, I don't see why trials are impossible. They would be somewhat delayed, true, But if the US had the ability to organize PoW camps, I don't see why it wouldn't have the ability to organize trials eventually. And their status as citizens is irrelevent as I think due process should always apply.

As for sympathizers or other noncombatants, they shouldn't have been locked up.

	14-03-2003 15:03									#44
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Ramo -

quote: Yes, and I don't think it's right to be able to completely deny due process.

Right or wrong, the Framers disagreed.

quote: That's too dangerous. It can be abused and it had been.

You haven't provided a viable alternative.

quote: The Constitution is amendable, that should be enough.

Yup, and suspending habeus corpus is in the Constitution so changing that requires an amendment.

quote: If the situation warrants it, the country could amend the Constitution to temporarily change the period of detention prior to trial regarding the insurgents.

I suppose the Framers believed the country would be pre-occupied with the situation to waste time trying to amend the Constitution.

quote: Again, I don't see why trials are impossible. They would be somewhat delayed, true, But if the US had the ability to organize PoW camps, I don't see why it wouldn't have the ability to organize trials eventually.

Millions of trials? Taking a POW is not the same as trying him in a court of law with witnesses, jurors, court officals, etc...

quote: And their status as citizens is irrelevent as I think due process should always apply.

So we should have tried every Axis soldier too?

quote: As for sympathizers or other noncombatants, they shouldn't have been locked up.

Why not, they were guilty of "treason" too by giving aid and comfort to the enemy. Why prosecute only the soldiers and not the people who hired and sent the soldiers?

	14-03-2003 15:30									#45
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quote: Right or wrong, the Framers disagreed.

Well yeah, isn't that the whole basis of the argument?

quote: Yup, and suspending habeus corpus is in the Constitution so changing that requires an amendment.

Umm.. yes. That's why I brought up that this was an error in the Constitution.

quote: I suppose the Framers believed the country would be pre-occupied with the situation to waste time trying to amend the Constitution.

What else would the government do? Raise taxes, draft people? Better this, IMO. If the situation warrants it, the change in the Constitution would have overwhelming popular support.

quote: Millions of trials? Taking a POW is not the same as trying him in a court of law with witnesses, jurors, court officals, etc...

Use the army infrastructure... We should have made the effort wherever possible.

quote: So we should have tried every Axis soldier too?

Yep, at least we should have tried to. As long as the war didn't end first.

quote: Why not, they were guilty of "treason" too by giving aid and comfort to the enemy. Why prosecute only the soldiers and not the people who hired and sent the soldiers?

I don't accept the legitimacy of the treason charge. I think there should be a charge so that PoW's can be detained up to the remainder of the war (if necessary).

	14-03-2003 16:35									#46
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quote: Originally posted by Sikander It's certainly much simpler than any other sort of law. All I have to do is read a few pages to get the idea behind the law, rather than volumes of common law.

Simpler for the rough idea. But its inherent ambiguity can make it very complicated on specific issues.

"I find that the vast majority of the time a good decision by a lower court ends up prevailing in the end, which is why I am willing to put my money down."

Yes, it raises the chances. But then it's a politically charged case. I just have very little confidence in this SC to make a political stand against this administration.

But maybe the extreme asscrawling in Bush v Gore is not a general rule.

	14-03-2003 17:30									#47
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quote: Originally posted by HershOstropoler Simpler for the rough idea. But its inherent ambiguity can make it very complicated on specific issues.

Fortunately I don't generally deal with the law at that level. I am enough of an amateur lawyer to guess with a decent probability what sort of defense a lawyer might use, or how the SC is going to rule on a given set of cases.

quote: Originally posted by HershOstropoler "I find that the vast majority of the time a good decision by a lower court ends up prevailing in the end, which is why I am willing to put my money down." Yes, it raises the chances. But then it's a politically charged case. I just have very little confidence in this SC to make a political stand against this administration. But maybe the extreme asscrawling in Bush v Gore is not a general rule.

Why would they need to make a political stand? Bush owes them, not vice versa. They gave him the presidency, and he didn't appoint a single one of them. Most importantly the law is on their side in regards to this case. In comparison to the election mess, this case also seems to be fairly simple. Finally, there is no reason why they even have to take the case if they don't want to deal with Bush and company.

My only worry is that the court has been no friend to the various protections from unreasonable search and seizure. Bryer tends to line up with the conservative block a lot here for some reason. But this case has so many connections to core constitutional issues that it will probably be upheld for several reasons, depending on which Justice you ask.

	14-03-2003 18:38									#48
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"They gave him the presidency"

I do not think that's the case, but if so, why would they do it? The interpretation they used is absurd.

"My only worry is that the court has been no friend to the various protections from unreasonable search and seizure."

Seeing how far the police state has grown, I can't have faith in this court. It is easy to cook up some "war"-related excuse.

	14-03-2003 18:39									#49
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This isn't the first ruling of this kind. Last year the courts ordered that Padilla be allowed to see his lawyer, and the government refused. Just as it has refused court orders to release transcripts of its energy policy meetings. In the 1980s, a suspected Irish Republican terrorist was held illegally by the US government for well over a decade, despite courts repeatedly ordering the US government to release him into the US (and not deport him).

When the Administration refuses to listen to the courts, what do we do?

	14-03-2003 18:42									#50
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quote: Originally posted by Berzerker Wartime and rebellion allow for suspending habeus corpus.

Bush hasn't suspended habeus corpus, so this is a moot point.

	15-03-2003 01:19									#51
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quote: When the Administration refuses to listen to the courts, what do we do?

Nothing. The executive has that right.

	15-03-2003 02:40									#52
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Since when?

	15-03-2003 02:42									#53
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quote: Originally posted by HershOstropoler Since when?

Since Jackson uttered the words "John Marshall has made his decision, now let him enforce it.".

	15-03-2003 02:51									#54
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Which is descriptive, not normative.

	15-03-2003 02:54									#55
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quote: Originally posted by chegitz guevara This isn't the first ruling of this kind. Last year the courts ordered that Padilla be allowed to see his lawyer, and the government refused.

Refused subject to litigation on the issue, which has ended unless the government wishes to appeal.

quote: Just as it has refused court orders to release transcripts of its energy policy meetings.

That was appealed and overruled, on (correct) grounds of Executive Privilege.

quote: In the 1980s, a suspected Irish Republican terrorist was held illegally by the US government for well over a decade, despite courts repeatedly ordering the US government to release him into the US (and not deport him).

Case? People can be held pending appeals, unless bail is set - and in certain immigration and extradition cases, bail need not be set.

quote: When the Administration refuses to listen to the courts, what do we do?

Cite the officials involved for contempt of court, and imprison them for up to two years on each count. And impeach, since contempt of court is falls within the standard for high crimes and misdemeanors. Nixon backed down with SCOTUS, and if the government outright defies the FDC on this matter (as opposed to legally filing appeals) , it will have no sympathy anywhere in the judicial system to a challenge of judicial branch authority.

	15-03-2003 03:38									#56
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quote: And impeach, since contempt of court is falls within the standard for high crimes and misdemeanors.

The President won't be impeached for not following the court when dealing with someone like Padilla or IRA members.

As DD said, Jackson has showed the precedent that the executive branch enforces the laws and the judiciary can't make it do anything by itself.

	15-03-2003 04:00									#57
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So the rule of law has been dead since Jackson's days?

	15-03-2003 04:07									#58
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chegitz -

quote: Bush hasn't suspended habeus corpus, so this is a moot point.

Tell that to Jose Padilla.

Ramo -

quote: What else would the government do? Raise taxes, draft people? Better this, IMO. If the situation warrants it, the change in the Constitution would have overwhelming popular support.

Like I said, the government and the people would be pre-occupied with the situation and wouldn't need another lengthy legal process to deal with. We are invaded and you want everyone to try and amend the Constitution before denying the invaders due process?

quote: Use the army infrastructure... We should have made the effort wherever possible.

Oh, you mean like Bush wants to do with military tribunals? Look at the population for the South and North during the Civil War before suggesting the effort was even feasible.

quote: Yep, at least we should have tried to. As long as the war didn't end first.

Why? Trying millions of Axis soldiers during WWII would have tied up our infrastructure at a time we were fighting for our lives.

quote: I don't accept the legitimacy of the treason charge. I think there should be a charge so that PoW's can be detained up to the remainder of the war (if necessary).

Neither do I, which is why I put "treason" in quotes, but you didn't respond to my charge that southernors who supported the rebellion were just as "guilty" as the soldiers. But these POW's, wouldn't you have to convict them first before detaining them for the remainder of the war?

	15-03-2003 04:45									#59
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quote: So the rule of law has been dead since Jackson's days?

Only if Congress doesn't have a backbone... oh wait, when is the last time they had a backbone .

Usually Presidents are wary to do this because it is a PR nightmare.

	15-03-2003 14:31									#60
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Like Truman's steel industry nationalisation ?