This is something that I struggle with: that the rights in our Constitution, including habeas corpus, do not automatically apply to people who are not American citizens.

Posted by: SusanD at October 7, 2006 10:15 AM

This is one purpose of the act, to restore the power of President to deprive habeas corpus to the pre-Eisentrager standard. However, the new MCA also allows the president to deny American citizens the right of h.c., provided he deems them "enemy combatants."

Posted by: Nick at October 7, 2006 7:47 PM

Also, if you refer to the Constitution (always a good instinct when discussing the suspension clause!), Article I, section 9 reads "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."

We are not currently in a state of invasion or rebellion. While we are certainly at war (more or less, permanently), habeas corpus was not designed to be used in such a case.

Posted by: Nick at October 7, 2006 7:53 PM

Nick, it sounds kind of like you are implying that the President would use it against an American citizen without good reason. It could also be argued that we have been invaded. Certainly those enemy combatants that flew the planes into the World Trade Center towers were on American soil with hostile intentions. I'd say that counted as an invasion.

Posted by: smmtheory at October 8, 2006 4:37 PM

Yes, that was an invasion, and the president would have been justified in suspending habeas during that emergency, and perhaps for a short time immediately after (i.e., long enough to prevent that specific plan from being fully enacted). However, that emergncy was five years ago, and the threat of future invasions alone does not give the president power to suspend, from a Constitutional angle.

As to your "good reason" argument, I really don't care if the reason is good or not. My concern is simply that the Constitution, excepting the emergency/invasion clause discussed above, does not authorize the president to suspend h.c. from citizens, EVEN IF if he has "good reason" to do so.

Posted by: Nick at October 8, 2006 4:58 PM

Yeah, yeah, I get it. Terrorism is a law enforcement issue as far as you are concerned. You're implication is that infiltration is not invasion until they've actually plowed the airplanes into the buildings. As far as I'm concerned, a citizen performing subversive acts has renounced his citizenship by demonstration if not by physical document. What you lack is a case where a bona fide citizen has had habeus corpus suspended by the President.

Posted by: smmtheory at October 8, 2006 9:08 PM

Dear Theory,

There's a small problem with your question:

In order to name someone who's rights have been suspended, we would actually have to know all the names of the different kinds of detainees. Then, to satisfy SusanD's point, we would have to check citizenship status on all of them.

Due to the way the program has been carried out, including the use of oversea's prisons, this is not possible.

Not being able to name anyone neither confirms nor denies whether anyone's individual rights have been violated.

Lastly, according to the UCMJ, the Twin Towers attack, disgusting as it was, does not rise to the standard of an "invasion". You can of course petition the Congress to make it so if you choose.

Posted by: Bobby Oliveira at October 8, 2006 11:25 PM

Good point, Bobby. I'd add that it is not MY implication that terrorism "is a law enforcement issue." I am basing my discussion on the way the courts have interpreted an "invasion" in the past. It's quite a stretch to claim that a plan to invade is the same as an invasion. Even if you want to equate the two, a plan to invade is enough to arrest and indict somebody for treason (which is, to this day, a capital offense). Thus there is no need in that event to suspend h.c. Finally, I'm not sure what you mean by "bona fide" citizen. I'm not concerned that a non-citizen will be deprived of his h.c. (well, I am, but from a moral perspective and not necessarily a legal one). I am concerned with the language of the text that allows the president to deprive h.c. of a citizen. It does not limit this deprivation to the type of person that you describe (one who has renounced his rights to citizenship). It merely says anybody whom the president deems an enemy combatant falls into the classification, without giving boundaries as to what exactly constitutes an enemy combatant. And incidentally, citizenship is not a right, it's a legal relationship between person and state that may only be renounced through a legal process. Plotting a crime of any kind will not cause someone to cease to be a citizen. This is good, because non-citizens have an easier time fleeing the country without fear of later extradition.

Posted by: Nick at October 9, 2006 12:48 AM

Bobby, you might fool somebody that doesn't know anything about it with that Uniform Code of Military Justice crap, but not me. Indeed, maybe not even anybody who can think and Google for themselves.

There is no problem with my question, because I posed no question. I stated bluntly that even an erstwhile American citizen that might not actually have gotten caught while performing a subversive act has in effect renounced their citizenship to this country by virtue of the performance of that subversive act. You can continue arguing with that if you wish, but you might want to start by dropping the assumption that I am easily fooled. To whit, there is nothing needed to satisfy SusanD's point when it is already satisfied. Her point was... she struggles with the fact that the U.S. Constitution only applies to U.S. citizens. It is still open to conjecture what kind of struggle that is, but checking the citizenship of everybody detained by the military during an engagement does nothing to resolve that struggle.

Posted by: smmtheory at October 9, 2006 1:35 AM

Nick, point out for me where I said citizenship was a right. So which court cases are you referring to that actually determine what constitutes invasion by a foreign entity? I think you are trying to blow smoke up my nose with that one. I should also warn you that I am not impressed with the opinion that it is good that a non-citizen should be able to commit a crime in the U.S. and have an easier time avoiding prosecution by virtue of being able to flee the country. It suggests a cavalier disregard for justice.

Posted by: smmtheory at October 9, 2006 2:14 AM

1. If we are splitting hairs on discussing the difference between a “plan to invade” and an “invasion”, then why are we being so sloppy in describing what the Military Commissions Act allows with respect to American citizens? The MCA does not allow the President to singlehandedly declare American citizens to be enemy combatants or any similar nonsense. It allows a “Combatant Status Tribunal”, which operates under the well-established procedures of the Uniform Code of Military Justice, to make that designation. Most importantly for the Federal-Courts-are-the-source-of-all-that-is-good-in-the-universe crowd, the decision of a combatant status tribunal is appealable eventually to the D.C Circuit Court of Appeals, and then the United States Supreme Court.

2. Pearl Harbor wasn’t an “invasion” either. Under the standards that terrorist-rights advocates want to apply today, Japanese and German saboteurs captured on the battlefield should have been allowed to petition civilian courts for their release in World War II.

3. But the biggest problem in the MCA debate is how it illustrates the contemporary left’s creepy position on civil liberties. When there are terrorists potentially involved, then the left demands that the American constitution should apply to everyone in the world. But when discussing the rights of some regular Joe or Jane living under the threat of the secret police in a foreign country, well, that’s different. That’s none of our business, because we have no right to apply our standard of what’s right to other people -- until we have reason to suspect they are terrorists trying to attack us, of course!

Posted by: Andrew at October 9, 2006 10:09 AM

Smmtheory,

1. I apologize for putting words into your mouth. I merely disintiguished right from legal relationship because it seemed you were implying that one renounced a right to citizenship by invading the country, which is untrue. Citizenship can be deprived only de jure, not de facto. 2. I'm not blowing smoke up your nose and I don't want to spend more time arguing the definition of invasion with you. If you believe that a plan to invade is the same as an invasion, that's fine, but I doubt many people share your view. In the end, it does not even matter, since both are illegal and punishable by law and not within the parameters of the MCA. 3. YOu need to read more carefully. I said it's good when terrorists are citizens because it makes it harder for them to flee. Clearly, if you've been reading anything I've written, I have a deep respect and faith in the justice system.

Andrew,
Why wouldn't we distinguish between a plan to invade and an invasion? We distinguish between a plan to murder and a murder and a conspiracy to steal and theft. In distributing justice to lawbreakers we always look first at causation: what the criminal planned and what it accomplished. To ignore the distinction, as you suggest we should, would be to ignore the tenets our legal system had held fundamental since the coutry's inception. It MATTERS because the language in the CONSTITUTION includes "invasion" and if we are going to rule on the constitutionality of the MCA I thin kwe should probably look at the Constitution very closely, don't you?

2. I don't think may would argue that foreign enemy soldiers need to have rights to our courts. But I do think American citizens should, no matter their crime. If we deprive due process because we suspect a citizen is plotting against our government, there is nothing stopping us from depriving due process because we suspect someone of murder, or theft, or rape. The Constitution must be honored. If any law violates it, it must be struck down. For those who want to the law anyway, they can try to amend the Constitution. If you deny this you deny the whole mechanism of our government.

3. I think it's Orwellian and "creepy" to start depriving American citizens Constitutional rights.

Nick

Posted by: Nick at October 9, 2006 10:41 AM

Dear Theory,

Would you like my copy of the UCMJ? Would you like my notes from when we studied this topic at the Legal Specialist School at Fort Jackson? Would you like to take a trip to the 3rd JAG in Boston and them for their interpretation? It says what it says.

SusanD is on point in wondering when a person receives Habeas protection. We've never really decided that one.

You said, "What you lack is a case where a bona fide citizen has had habeus corpus suspended by the President." That begs a question: Can you show me one?

I answered why that's not possible.

Posted by: Bobby Oliveira at October 9, 2006 10:58 AM

Nick,

1. I agree there’s a distinction between a plan to invade and an invasion. But let’s apply a similar level of precision to the difference between saying that the President can deem someone an enemy combatant (the imprecise claim that is often made) versus saying that a combatant status tribunal, which operates under well-established procedures and whose decision can be appealed, can deem someone an enemy combatant (the accurate description of what the MCA allows).

2. David Souter argued that foreign enemy soldiers needed to have rights in our courts in the Rasul v. Bush decision.

3. How is due process is being denied by the use of procedures carried out under the Uniform Code of Military Justice that are appealable to civilian courts?

4.

I think it's Orwellian and "creepy" to start depriving American citizens Constitutional rights.

A. I feel the same way whenever the subject of campaign finance reform comes up, especially when Russ Feingold, aka Mr. No-First-Amendment-Protection-for-American-Political-Speech, Maximum-Fourth-Amendment-Protection-for-Foreign-Terrorists discusses it.

B. I’ll ask a question I don’t know the answer to...

• An American citizen enlists in a foreign army. He engages in an attack on Americans and is captured. After being captured he says “I wasn’t read my Miranda rights on the battlefield when I was captured, so I should be released immediately”. What’s the proper way to dispose of this matter?
• What’s the proper way to dispose of a matter the same as above, save for the fact the person who is captured didn’t put on the uniform of a foreign army?

Posted by: Andrew at October 9, 2006 11:49 AM

1. Citizens should not be subjected to the military tribunals required to deem them enemy combatants unless they are invading the US. At least that's what the suspension clause of the Const. states. You have heard of that, right?

2. My constitutional opposition to the MCA is in regards to citizens, not foreign enemy soldiers, but thank you for the interesting information.

3. Under the new MCA, enemy combatant staus can not be appealed.

4a. I have an opinion on Feingold, but it is irrelevant to the debate over the suspension clause and the MCA.

4b. The suspension clause would allow that person to be arrested without having his miranda rights read. The issue of the uniform is not important. By fighting with the US in a foreign army, he is "in rebellion." Unfortunately, the new MCA is not limited to such cases of rebellion, but can be consterued to extend to many, many different types of crimes.

Posted by: Nick at October 9, 2006 1:53 PM

2009
No habeas corpus.
Hillary President.
Thanks a lot neo-con scum.

Posted by: Mike at October 9, 2006 3:01 PM

Nick,

I'm pretty sure the section about enemy combatant status not being appealable applies only to foreign nationals, not American citizens. I'll try to find some authoritative references.

But you're wrong to say that most people aren't arguing for extending constitutional rights to foreigners. Here for example, is a link to Patrick Leahy railing against the MCA bill...

And I agree with more than 30 former U.S. Ambassadors and other senior diplomats, who say that eliminating habeas corpus for aliens detained by the United States will harm our interests abroad, and put our own military, diplomatic, and other personnel stationed abroad at risk.

If everyone has lost their right to habeas review, then why is Leahy feel it necessary to single out "aliens"? His Bush-bashing would be much more effective if he was claiming the HC restrictions applied to everyone.

Also, I'm unable to reconcile your point 4b with your point 1. In point 4b you basically say any citizen attacking the United States in is rebellion, which kind of makes 1 unnecessary.

Posted by: Andrew at October 9, 2006 4:10 PM

I close with this thought: The MCA is important not only because of how it affects the current Guantanamo Bay detainees, but also how it affects every alien in the future, including people living in the United States. There are many non-citizens living in this country who are our friends, neighbors, and members of our community. They are people who you see every day on the streets, people you regularly do business with, people who may cook your food or care for your children. The Military Commissions Act allows the government to seize these people off the streets and detain them because they are non-citizens, and, by accusing them of being unlawful enemy combatants, throw them into a parallel system where neither habeas corpus nor the Bill of Rights apply. It takes even resident aliens who have lived in the country for years out of the criminal justice system and into the world of military prisons and CIA interrogations. The MCA allows the government to make mistakes-- very grievous mistakes-- in detention and interrogation that will severely harm these people and that it may never have to account for. A system of laws that can do this-- even if its primary victims are not citizens-- is inconsistent with the principles of a democratic republic.

Posted by: Nick at October 9, 2006 6:33 PM

Would you like my copy of the UCMJ? Would you like my notes from when we studied this topic at the Legal Specialist School at Fort Jackson? Would you like to take a trip to the 3rd JAG in Boston and them for their interpretation? It says what it says.

Bobby, you have a greater need of it than I do if you think it pertains to anything other than lawful behavior of U.S. military personnel. Yes, it says what it says, but it would have to say a whole lot more than what it actually says to even come close to saying anything about what you have said it says earlier. It says nothing about what constitutes an invasion by foreign entity, so you might as well replace your "according the the UCMJ" phrase with something like "according to Visual Basic 6 for Dummies" or some such other nonsense.

And no, I was not begging the question "Can you show me one?", you were. You see, I know if a citizen could have been produced that had habeus corpus suspended unjustly, somebody would have done so long ago. The good Lord knows people have been trying to manufacture one just to spite President Bush. I've no doubt some have even dedicated their careers toward that end. Next time, wait until I truly ask a question.

Posted by: smmtheory at October 9, 2006 11:19 PM

Nick, why are you apologizing for putting words in my mouth in the same paragraph where you do it again? That doesn't make much sense. If you are not blowing smoke up my nose, then why did you make the comment about your basing your discussion on the way the courts have interpreted an "invasion" in the past when won't cite the case law to substantiate that claim? For the record, infiltration of our country is much different than planning an invasion because it involves a substantial commission of said plan. I equated infiltration with invasion, not planning such actions. It beats me why it should be good that terrorists are citizens or vice versa. Maybe it would be best if you refrain from pursuing that line of argumentation. I'd also like to know how you translated my statements about performance of subversive acts by citizens being evidence that they have renounced their citizenship to losing citizenship by planning or committing a crime. I suppose that might be possible if a person equated subversive acts with run of the mill crime. Just the same, were a person to be renouncing their citizenship through commission of a subversive act that would not necessarily translate into revocation of citizenship by the government. But that certainly leaves the option open for the government to suspend habeus corpus if that citizen were caught in the commission of a subversive act. I don't see the suspension happening except in cases of catching U.S. citizens in combat situations.

Posted by: smmtheory at October 10, 2006 12:17 AM

Dear Smmtheory,

Thanks for proving you have not read it or its appendices.

I suggest you spend some time reading Article 18 and reviewing the testimony of Scott Silliman before the Judciary Committee. I would also refer you to the War Crimes Act of 1996.

In short, in order to have an invasion, you have to be able to define what an enemy combatant is. You must also be able to define what combat is. Lastly, you must be able to define what "state of war" is. All those things are in there.

Your suggestion that if this had happened, we would know is laughable. If there is a human denied Habeus locked away in a prison in another country, who would we know?

You make a blanket statement, and in what seems to be tradiditon on this blog, (gays can't parent; marriage for the state is about kids; the founders did not want a living, breathing document) follow it with no evidence whatsoever.

This is why Habeus is so important. When the state violates it, in cooperation with a foriegn state, its almost impossible to discover.

For instance, we know President Lincoln suspended Habeus during the Civil War. Can you name everyone who was subject to deprivation of liberty while the suspension was in effect? Obviously, no one can.

Therefore, why is it any different now? Maybe more importantly, do you really believe that any current member of this Adminstration is as gifted intellectually as any one of the Founders?

Posted by: Bobby Oliveira at October 10, 2006 9:33 AM

Dear Theory,

Furthering the Civil War point, if what you say is true, why did Southerners not have to reapply for citizenship after they carried out acts of violence and the states they resided in had left the union?

Posted by: Bobby Oliveira at October 10, 2006 11:16 AM

Theory,

If I could make sense of your rambling disjointed prose I would attempt a response, but I'm not sure I can sift out the meritotious criticism from all the self-righteous grandstanding. Without going into detail (I am a busy law student), I will say that I stand by the statements I made. I think if you had read them a little more closely you would understand the error in your opprobriations.

Nick

Posted by: Nick at October 10, 2006 4:50 PM

Article 18 of the UCMJ is about Jurisdiction of General Courts-Martial Bubba. As Scott Silliman said in his testimony before the Senate Committee on the Judiciary... "Article 18 of the Code gives general courts-martial jurisdiction to prosecute violations of the law of war, and the President need only make the policy decision to use them."

And you think I don't know what's in the UCMJ. If it will help your understanding, I can even publish the full text of Article 18 and explain it in detail to you that it is utterly non pertinent to whether or not flying planes into buildings qualifies as an invasion or not. So pick soemthing else to reference when making your blanket statements.

Posted by: smmtheory at October 10, 2006 11:21 PM

If I could make sense of your rambling disjointed prose I would attempt a response

Okay, next time I'll try to use smaller words. Seeing as you are a busy law student, far be it from me to take up your precious time which you obviously need for studying.

Posted by: smmtheory at October 10, 2006 11:35 PM

Dear Theory,

What are we going to do with you? (The continuing insults from you folks on the fringe right, just because someone disagrees with you, are getting a little tired.)

I don't have to go through an explanation of what "elements" are, do I??

In order to have something, all the elements must be in place. In order to make sure it is not something else, those elements cannot be present.

However, we need not engage in that anymore since a review of UN documents will reveal that in order for an "invasion" to take place, both the territorial integrity of the nation being invaded and its right to self determination and governence needs to be disturbed in order for the term to be proper.

On 9/11, we were still in control of our own borders and our government stayed in place without disruption. Inconvenience, yes, disruption, no.

Under UN General Resolution 3314, 9/11 was an act of aggression, not invasion. Since the resolution mentions "invasion or aggression", by definition, the resolution considers them to be different things.

In 1812, the British decided to burn Washington DC but not occupy it. In 1861, the South, if given the opportunity, certainly would have fully occupied any territory available.

Therefore, your supposition fails.

Posted by: Bobby Oliveira at October 10, 2006 11:58 PM

Ahhhh, now we get down to brass tacks... I see you've given UN documents preferential recognition over U.S. documents. Give me one good reason why I should accept the UN definition of invasion over my own.

Yep, about 3000 people died and it's just an inconvenience, eh? Hardly worth treating it like an act of warfare, eh? I mean, once the building has been turned to dust, and the airplane slagged, they're not an element anymore, eh?

Here's another supposition for you... you finally figured out the UCMJ doesn't mean what you thought it meant a couple of days ago.

Posted by: smmtheory at October 11, 2006 11:20 PM

Dear Smmtheory,

I'm no fan of the UN either but since Kellogg-Briand, which we still observe, there are times where we accept international definitions. Your friends on the right would tell you that the founders never intended anything outside the words and your words don't exist. I don't need to be that harsch.

It is an act of war, just not an invasion. The UCMJ makes clear all the elements you need. They don't exist here.

My advice would be to get the UCMJ changed, as well as some international traties, to better suit your definition if that's what you like. I don't think anyone will complain if the next time, god forbid, a 9/11 or Pearl Harbor event happens it rises automatically to the invasion standard.

Posted by: Bobby Oliveira at October 11, 2006 11:46 PM

There again, you proved my next supposition wrong... tsk, tsk. When will I quit making suppositions?

Okay, here you go --
Straight from the UCMJ

§ 818. Art. 18. Jurisdiction of general courts-martial

Subject to section 817 of this title (article 17), general courts-martial have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized by this chapter. General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war. However, a general court-martial of the kind specified in section 816 (1)(B) of this title (article 16(1)(B)) shall not have jurisdiction to try any person for any offense for which the death penalty may be adjudged unless the case has been previously referred to trial as a noncapital case.

And there you have... the first sentence is about jurisdiction - specifically, who may be tried. The second sentence is about jurisdiction - specifically, who else can be tried. Lastly, the third sentence is about jurisdiction again - specifically, who may not be tried.

Hmmmm.... nope nothing about differentiating between various acts performed by foreign entities that might or might not be considered war-like, inconvenience, or disturbance.

Strike one, two, and three. You're out!

Posted by: smmtheory at October 13, 2006 12:04 AM

Dear Smmtheory,

Holy mixed metaphors batman.

You take section of the UCMJ totally out of context and try to make a point?

The UCMJ is a document in toto and should be treasted as such just as the Constitution is living and breathing.

I offered you a chance to work together on something and in typical right wing "that's not good enough" fashion, you fumbled it. Nice job.

Posted by: Bobby Oliveira at October 13, 2006 11:08 AM

Nice job all around, smmtheory.

Posted by: SusanD at October 13, 2006 10:38 PM

You offered me (little old me?) a chance to work together on something? I must have missed the offer Dorothy. We aren't in Kansas any more.

The UCMJ Subchapters (in toto BTW)

I. General Provisions 801 1
II. Apprehension and Restraint 807 7
III Non-Judicial Punishment 815 15
IV. Court-Martial Jurisdiction 816 16
V. Composition of Courts-Martial 822 22
VI. Pre-Trial Procedure 830 30
VII. Trial Procedure 836 36
VIII. Sentences 855 55
IX. Post-Trial Procedure and Review of Courts Martial 859 59
X. Punitive Articles 877 77
XI. Miscellaneous Provisions 935 135
*XII Court of Military Appeals 941 141

Now, since the headers of a great deal of law generally have bearing on what appears in the individual articles, there ought to be at least a hint of something other than laws applicable to U.S. Military personnel, eh? At least according to YOUR blanket statement about how according to the UCMJ the Twin Towers attack does not rise to the standard of an "invasion".

Could it be under I. General Provisions? Well, let's look at the Articles shall we?

801. 1. Definitions
802. 2. Persons Subject to this chapter.
803. 3. Jurisdiction to try certain personnel.
804. 4. Dismissed officer's right to trial by court-martial.
805. 5. Territorial applicability of this chapter.
806. 6. Judge advocates and legal officers.
*806a 6a. Investigation and disposition of matters pertaining to the
fitness of military judges.

Ah! There's a section on Definitions! But, wait a minute, what's this?

(1) "Judge Advocate General" means, severally, the Judge Advocates General of the Army, Navy, and Air Force and, except when the Coast Guard is operating as a service in the Navy, the General Counsel of the Department of Transportation.
(2) The Navy, the Marine Corps, and the Coast Guard designated as such by appropriate authority.
(4) "Officer in Charge" means a member of the Navy, the Marine Corps, or the Coast Guard designated as such by appropriate authority.
(5) "Superior commissioned officer" means a commissioned officer superior in rank of command.
(6) "Cadet" means a cadet of the United States Military Academy, the United States Air Force Academy, or the United States Coast Guard Academy.
(7) "Midshipman" means a midshipman of the United States Naval Academy and any other midshipman on active duty in the naval service.
(8) "Military" refers to any or all of the armed forces.
(9) "Accuser" means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another person who has an interest other than an official interest in the prosecution of the accused.
(10) "Military Judge" means an official of a general or special court-martial detailed in accordance with section 826 of this title (article 26).
(11) "Law specialist" means a commissioned officer of the Coast Guard designated for special duty (law).
(12) "Legal officer" means any commissioned officer of the Navy, Marine Corps, or Coast Guard designated to perform legal duties for a command.
(13) "Judge Advocate" means--
(A) an officer of the Judge Advocate General's Corp of the Army or the Navy;
(B) an officer of the Air Force or the Marine Corps who is designated as a judge advocate; or
(C) an officer of the Coast Guard who is designated as a law specialist.
(14) "Record", when used in connection with the proceedings of a court-martial means--
(A) an official written transcript, written summary, or other writing relating to the proceedings: or
(B) an official audiotape, videotape, or similar material from which sound and visual images, depicting the proceedings may be reproduced.

Curiouser and curiouser about how there aren't any definitions about enemy, or territory, or even actual perpetration of crimes.

Posted by: smmtheory at October 13, 2006 10:49 PM