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  1.    #121  
    I don't have as much time or brain power as I would like to engage in this talk because I am up against a code cutoff deadline, specifically SamKim's statements about the 5th amendment, but lets take another simpler look at this.

    If the President were empowered at his own lesiure, and on his own authority alone to capture and imprision anyone he sees fit around the world, and imprision them indefinitely without habeus corpus, how are we different from the facists we are fighting?

    It is not facism if it is us?
  2. TomUps's Avatar
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    #122  
    If the President were empowered at his own lesiure, and on his own authority alone to capture and imprision anyone he sees fit around the world, and imprision them indefinitely without habeus corpus, how are we different from the facists we are fighting?
    I never said that, but it seems that there is nothing in the 5th Amendment that says he cant do this.
  3.    #123  
    Quote Originally Posted by TomUps
    I never said that, but it seems that there is nothing in the 5th Amendment that says he cant do this.
    lol, i told you i cant get in to that now, i am up to my neck here

    The 5th amendment is not the only one dealing with this issue. The first amendment talks about habeas corpus, and i forget, i think there was somethign in the 9th as well.

    Each of these has a long history of case law to go along with them spelling out exactly how where when and why we can suspend habeas corpus. The most recent of which happening just this month.

    But again, i will try to get in to that more later.

    And yes that is the substance of what you said. You said that if there was not a law on the books allowing us to put these people in prision that we should let them rot in the cells they are in.
  4. #124  
    Quote Originally Posted by TomUps
    I never said that, but it seems that there is nothing in the 5th Amendment that says he cant do this.
    I agree. The constitutional protections are usually not extended to a person who is not a us citizen and who is not on american soil.
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  5.    #125  
    Quote Originally Posted by t2gungho
    I agree. The constitutional protections are usually not extended to a person who is not a us citizen and who is not on american soil.
    That is not true at all. There is a lot of case law on this. I think there is even an amendment. Look at number 11. I will look it up later if you dont find it.
  6. #126  
    Now as far as I see it:

    1. The President needs to work with the Congress to create the tribunals and try these people.

    2. You bring them to the US and try them in civilian courts.

    3. You continue to hold them abroad.

    4. Or you release them.
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  7.    #127  
    Quote Originally Posted by t2gungho
    Now as far as I see it:

    1. The President needs to work with the Congress to create the tribunals and try these people.

    2. You bring them to the US and try them in civilian courts.

    3. You continue to hold them abroad.

    4. Or you release them.
    You had him all the way up until #4.

    As far as I am concerned, I dont care where they are tried or imprisioned afterward as long as the process is open so that we can all see that it is fair, and not under the control of the administration.

    Again, I believe it was a part of the recent supreme court ruling that the detainees cannot be tried by their military advarsaries.
  8. #128  
    Quote Originally Posted by theBlaze74
    That is not true at all. There is a lot of case law on this. I think there is even an amendment. Look at number 11. I will look it up later if you dont find it.
    I don't think its 11:

    http://en.wikipedia.org/wiki/Elevent...s_Constitution

    The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
    This is a great article about constitutional rights abroad:

    Does the Constitution follow the flag?

    In his article, Kal Raustiala is advocating that Gitmo detainees should have constitutional protections, but he admits that as it is now (and as the government submitted in its brief this last February), that habeas corpus pleas are automatically barred because the detainees are not on american soil.

    Do combatants have any constitutional rights?

    What if, however, the U.S. pursues suspected terrorists abroad not as criminals. but rather as combatants? In that instance, must it still honor their constitutional rights?

    A war paradigm rather than a criminal justice paradigm provides a very different set of legal rules. Within the U.S., courts have upheld, albeit with much controversy, treatment for "enemy combatants" – specifically, indefinite detention without access to an attorney that would be unconstitutional in a criminal prosecution. While this is an evolving area of the law, it is plain that U.S. agents are even less restrained when they act against enemy combatants outside U.S. territory.

    Guantanamo presents an unusual situation, in which the U.S. is clearly the de facto sovereign. Cuban sovereignty over Guantanamo is formal at best. The U.S. leases Guantanamo from Cuba, but does so pursuant to an agreement that Cuba cannot terminate without US consent.

    Given the realities of Guantanamo, U.S. courts ought to treat Guantanamo as if it were U.S. soil. That would not necessarily alter the treatment that the detainees receive. But it would mean that habeas corpus pleas would not be per se barred based on the fiction that Guantanamo is really Cuban territory.

    Put simply, Odah and similar precedents holding the base on Guantanamo to be the equivalent of a foreign country ought to be overruled.
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  9.    #129  
    I just skimmed the article. When I read it, it seemed like more of a balanced article talking about how the reach of the Constitution around the world has not fully been hashed out. I thought, the portion you quoted was only half of the story.
  10. #130  
    Quote Originally Posted by theBlaze74
    I just skimmed the article. When I read it, it seemed like more of a balanced article talking about how the reach of the Constitution around the world has not fully been hashed out. I thought, the portion you quoted was only half of the story.
    I agree...it hasnt been hashed out. He does distinguish though that part of the constitutional rights argument stems from the issue of how they are classified and if they are on american soil. The part I quoted for you was actually less than 1/2 of the article but it was the relevant part for this discussion.

    Do combatants have any constitutional rights?

    Edit: sorry, I thought I put the link to the article...here it is:
    http://www.cnn.com/2003/LAW/04/14/fi...austiala.iraq/
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  11. #131  
    Also, if you look at the holding of the recent Hamdan v. Rumsfeld case, the court doesnt invoke a constitutional rights argument for detainess.

    link
    The Supreme Court announced its decision on 29 June 2006. The Court reversed the ruling of the Court of Appeals, holding that President Bush did not have authority to set up the war crimes tribunals and finding the special military commissions illegal under both military justice law and the Geneva Convention.[12][13]
    Its more of a military rights argument and international law argument.
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