U.S. citizen tried by military

[Byron Quick]

It just means that a "beyond the shadow of a doubt" standard to convict them was not satisfied in their cases, but it was in hers.

The standard is "beyond a reasonable doubt." What happened to innocent until proven guilty? If the others charged were acquitted then they are innocent as far as the legal system is concerned. The way prosecutors usually handle this is by claiming "un-indicted conspirators" in various court papers.

Bringing logic to a legal fight is like bringing a knife to a gunfight.

Agreed. Just pointing out that emperor has no clothes.

[Blackhawk]

Keith_Yorktown:

Innocent until proven guilty...

That's one of the most misunderstood fables in American jurisprudence, and that's because so many words regarding it are missing.

Stated in context it is "All parties appearing before a court in the United States must be presumed innocent by the court until proven guilty." IOW, the law must presume an accused person innocent when in court until guilt is proven after considering all the evidence and applying the law. If a court violates that presumption, a convicted defendant has grounds for overturning the conviction on appeal and getting a new trial.

The doesn't mean a person has to be presumed innocent when NOT in court. An accused person can be detained, reasonably searched, interrogated, and suffer all kinds of other infringements of his civil and natural rights based on the "civil authorities" presuming that he IS guilty. For example, he can quite legally be deprived of his life simply by reaching for and displaying his wallet when the police tell him to freeze.

[Blackhawk]

Christopher II,

The fact that Congress hasn't declared war is not a 'technicality,' it's the prevalent fact. Without Congress, there is no war.

I sure met a lot of Korean "War" veterans who would never believe they weren't in a war. You'll never convince me I wasn't in a war in Vietnam either....

I guess that since no death certificate exists where a doctor or other "official" has certified that Adolph Hitler is dead, you think he's still alive, right?

Didn't FDR say to Congress on December 8, 1941, that "A state of war exists between the United States and the Empire of Japan..."? In effect, Congress said "Yeah...!"

President Bush said more or less the same thing to Congress as FDR did, and Congress said more or less the same thing in response.

What does your copy of the Constitution say the form and text of a "Declaration of War" must be?

Seems to me that if it looks, walks, sounds, smells, and acts like a duck -- well, you know....

[Justin Moore]

citizen offenders against the law of war otherwise triable by military commission

Except for one little minor detail: they aren't TRYING HIM FOR ANYTHING!

The part of 10 USC that allows the President to use military comissions in time of war should only apply if you are CHARGED with a crime and TRIED. It has to be as close an approximation as is possible in the circumstances to the civilian courts. The Nazi's that everyone likes to spout off so much about were captured, CHARGED, and then TRIED in a comission.

I fail to see how being indefinitely detained even comes close to what was done to the Nazi's spies. Nonetheless some of the tv-impaired, beer drinking, so called 'conservatives' here on this board will continue think that these usurpations by the Executive are just hunky dory because they value 'safety' more than liberty.
They value their big screen TV, jet boats, and their six pack in the fridge more than they value freedom.

Freedom will only fail us, if we fail IT!

I can't wait till some neo-facist is in the office of the President and starts declaring members of this board as 'unlawful combatants'. You must keep in mind that even HITLER was democratically elected. Then when he deemed the Jews as a THREAT to the security of Germany, what did he then do? Please tell me that you took a history class in school gentlemen?

[Blackhawk]

Don Gwinn,

Also, if an American citizen is accused of engaging in a conspiracy to commit murder, he has the right to be considered innocent under the law until he has been proven guilty at the aforementioned trial--WITHOUT violating his rights to be free from unreasonable searches and seizures, to confront his accusers, not to incriminate himself, etc. Mujahir, instead, has been assumed to be guilty and is not even being allowed a chance to prove his innocence.

A conspiracy to commit murder is a crime. Mujahir is not a murderer, a conspirator, a combatant or a ballerina as far as our government is concerned until he has been proven to be one.

Keep your day job....

In the meantime, you might do well to actually find out what "innocent until proven guilty" actually means....

[Zander]

Except for one little minor detail: they aren't TRYING HIM FOR ANYTHING!

They don't have to try him.

For pete's sake, how many times must we provide proof that the government is following precedent? Precedent affirmed by the highest court in the land on more than one occasion.

Dadgummit, you can't argue it both ways for the sake of advancing your personal opinion.

It's legal...get over it or offer your services to those conspiring with our mortal enemies to come here to murder us.

[Marko Kloos]

Precedent is not sufficient justification for invalidating the Bill of Rights. Remember, the same "highest court" has in the past decided that owning black people is legal, that you don't have a right to own non-militia related guns, and that you may not post the Ten Commandments on classroom walls.

[Blackhawk]

Precedent is not sufficient justification for invalidating the Bill of Rights.

True, but irrelevant.

The BOR has not been invalidated. Infringed often, but not invalidated.

The SCOTUS is the interpreter of the Constitution. IOW, the Constitution means what the SCOTUS says it means, so while its precedents are not "sufficient justification" for thee and me in all situations of fact and fancy, they are the law.

We have ways of changing intolerable precedents and interpretations built right into the Constitution. They start with the ballot box....

Was swabbing my shoes and laptop computer at the Nashville airport last month an "unreasonable" search? In a different time and place, yes. But I didn't mind.... Was having to show my 3-state away photo ID THREE times to board a private conveyance according to an arbitrary federal rule unreasonable? I didn't mind that either....

You see, the Executive Branch has the Constitutional obligation to do lots of things that depend on varying and unforeseeable circumstances, and whaddayaknow, it also has the power under that very selfsame Constitution to do them! How about that?

The term "police powers" comes up now and again. That's what the Executive Branch has. It's a good one to consider and contemplate....

[Zander]

Remember, the same "highest court" has in the past decided that owning black people is legal, that you don't have a right to own non-militia related guns, and that you may not post the Ten Commandments on classroom walls.

Good counterpoint, but lacking in historical perspective.

This precedent has been affirmed consistently for two centuries.

And there's no need to denigrate the highest court in the land by putting your reference in quotes.

It is the highest court in the land and you can find that in the Constitution.

[Dennis]

Zander,

When the "highest court" will not support the Bill of Rights (e.g. not hearing Second Amendment cases) it has earned some level of denigration.

Also, as for precedents in addition to slavery we have some 20,000 unconstitutional firearms laws, and we've been "blessed" (that's quotes again ) with such precendents as Waco; Ruby Ridge; U.S. Army cavalry charges against unarmed civilians (including women, children, babies and the handicapped) who were then termed communists and criminals; denial of promised medical care to military personnel hurt in the service of their country; and presidents who have been crooks, liars, and perverts--to just hit a few of the high spots. Illegal precedents don't validate future violations of the Constitution.

If a President successfully usurps powers not granted by the Constitution (and/or in violation of the Constitution) that does not make the precedent Constitutional.

If the definition of the term "legal" means "It ain't been outlawed by the Supreme Court......yet," then our government can be free of any restrictions so long as the Supreme Court refuses to hear any pertinent cases.

If the definition of the term "legal" is restricted to compliance with the U.S. Constitution, then our government is routinely illegal in its day to day activities.

Also, having Congress illegally delegate both authority and responsibility to the President in order to avoid blame (in the case of problems and failures) and/or claim credit (for successes both real and imagined) does not create compliance with our ruling document.

Most of all, just because we want something to be true (or legal) does not make it true (or legal, ie in compliance with the Constitution).

If we agree that our government can void the fourth and fifth amendments at their whim (citing "necessity") then we have NO argument to support the First, Second, Third (look it up) or any of the others.

"Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves." (William Pitt the Younger, 1759-1806, British statesman, Speech, House of Commons, 18 November 1783)

(By the way, I do admire your persistence if not your viewpoint on this subject. )

[Don Gwinn]

Blackhawk, you're right, I'm a layman. Therefore, please point out the error in my usage of the concept of presumption of innocence. In particular, how is it possible that Mujahir's right to be presumed innocent *while in court* has been preserved even though he has been denied the right to his his day in court?



For the record, I'm also getting tired of this "precedent" stuff. (That's how you spell it correctly, by the way.) Precedent is a legal justification for doing what courts did before you. It does NOT mean your actions are correct, or moral, or even make sense--only that previous courts accepted them as legal. Many of the worst decisions in our history were legal precedent for years. It didn't make them any better; it just made it more difficult to change them.

LOTS of things happened in WWII that should not have happened. CMichael says "at least they're not rounding up thousands of Arabs." If they were, what would be the harm? We'd be following precedent set during WWII. If that justifies the kind of abuses we're talking about today, it surely justifies Arab Concentration Camps. :barf:

[johnAK]

hooray, now we just sit and wait to see some-time-later-day somebody decides to put "potential terrorist"(gun-nuts, gun-owners, thought-police-suspect, or whatever you want to call it) into military barracks somewhere indefinately until "subject got subjected" without evidence (secret evidence IS no evidence)

[Blackhawk]

Don Gwinn,

Blackhawk, you're right, I'm a layman. Therefore, please point out the error in my usage of the concept of presumption of innocence. In particular, how is it possible that Mujahir's right to be presumed innocent *while in court* has been preserved even though he has been denied the right to his his day in court?

See my reply to Keith_Yorktown that's second from the top on this page (6).

The presumption is before the trial court only. It has nothing to do with anything that happens otherwise. A person doesn't have a "right" to be presumed innocent in the sense that a right is something you have all the time everywhere. A trial court has a legal obligation to treat a defendant as if he is innocent during all proceedings when he appears before that court up until an adverse judgment is rendered.

For a contrasting example, when a defendant is held over for trial, bail can be set for a large amount, he can be jailed, or released on his own recognizance. That court isn't treating him as though he's innocent if he's jailed, is it? He hasn't had a trial, has he?

If that doesn't cover the topic sufficiently, let me know.

I'm aware of how to spell precedent and what it means. Did I misspell or misuse it somewhere? OJ didn't set a precedent. It just appears that he got away with murder.

[Don Gwinn]

I saw your reply to Keith. It didn't answer my question, which was how you can argue the man has not been robbed of his right to be presumed innocent by the court that tries him when he has been denied the trial itself.

And for the record, I didn't mean to accuse you of misspelling precedent, but we've had about three or four different spellings in the last five pages. Natural, normal, but irritating, at least to me.

I believe that the right to be presumed innocent rather than guilty is the underpinning of most of the rights involving a suspect's trial. That would mean that it is important even when the suspect is not actually at trial. For instance, what would be the point of guaranteeing a speedy trial to someone you assume is guilty anyway? A guilty man could be made to wait as long as you want. How about the right to a trial by jury? After all, a guilty man can have his sentence pronounced by a judge as easily as a jury. The jury is only important if your purpose is to find out whether the accused actually did anything wrong BEFORE you punish him.

But you're probably right. I'm probably just overreacting. After all, he probably is guilty (and I can say that in all seriousness) so I guess there's no harm done if we just tuck him away, hamstring his lawyer, and hope for the best. After all, the Supreme Court said it was OK 50 years ago, and they've so rarely steered us wrong.

I just hope that 50 years in the future the feds have shown as much restraint with these powers as they now show with RICO, the asset forfeiture laws, the environmental regulations we love to hate, Executive Orders, expanded search and seizure powers from the war on drugs, and the income tax.

Since bandwidth is cheap, I'll further chime in that I hope these measures will truly by temporary, like the long-forgotten "Toll Roads" that were set up temporarily around Chicago decades ago. I know you probably don't remember those; they only planned to keep 'em for about five years and I think that was in the 1960's. Just a memory by now, right?

Hell, I don't know what I'm worried about. SCOTUS will protect our rights! If abuses begin to occur, they'll HAVE to. They can't just sit back and refuse to hear any cases that will cut federal power for, say, about 70 years at a time while oppression and abuses of power run rampant.
Can they?

[Waterdog]

Smoke and mirrors, this whole thing is designed to
keep the sheeple focused on the attack and it's alleged attackers.

DC and their masters, want us to believe the
US bureacracy has the power to imprison (US CITIZENS) without lawful charges.

Henceforth the ((BOOGEYMAN! laws)). I say this, because we all remember when the BOOGEYMAN! was going to GET US!!.

Now they got this guy, who by the way looks like the OKC John Doe, in custody, on BOOGEYMAN charges.

It is obvious to me, this guy was set up, either by the AQ or the US feds.

Was probably recruited specifically by the AQ this reason.

(I am curious as to why the AQ would give this
guy access to the leadership of the AQ?). Could this guy really be OKC John Doe??, and could there be some ties to T McVeigh. Remember, some rumors floating around OKC, implicating people of middleastern descent?

Out of 1000s of muslims, we got 2 dudes, one on conspiracy, and the other on BOOGEYMAN charges, it don't make no sense.

If this guy isn't allowed to talk to the media, I will suspect him having ties to US intelligence
or federal law enforcement.

IMHO

Waterdog

[Seeker]

Sat Jun 15,12:22 PM ET

MIAMI (Reuters) - A man has been arrested in south Florida on immigration charges after federal agents discovered he had ties to an alleged "dirty bomb" plotter, the Miami Herald reported on Saturday

We have suspicions; that's it," a federal source told the Herald. "We are working hard right now to run this all out. We have reason to believe this man has extremist views. They were friends and they attended the same Fort Lauderdale mosque."

story

"extremist views" I hope I don't have extremist views.

[johnAK]

>>"extremist views" I hope I don't have extremist views.

no, you have to hope they DON'T think you have extremist views, we all DO hope.
It seems these days suspicion is only thing required to be arrested.

[Blackhawk]

Don Gwinn,

It didn't answer my question, which was how you can argue the man has not been robbed of his right to be presumed innocent by the court that tries him when he has been denied the trial itself.

Let me turn your question around? The "right" to be presumed innocent exists only in a trial court, so if one has never been brought to trial, how can one be "robbed" of that right?

The real question involves habeas corpus. If detained, an American has the right to know what the charges against him are. If there are none, he must be released within a relatively short time span.

In extreme circumstances (cf. "national emergency"), habeas corpus can be suspended generally. It can also be suspended on a case by case basis if a judge of competent authority so orders, which can be done ex parte. How might that happen?

The government snags Padilla based on information and belief that he is bent on commiting a terrorist act. After detaining him, the investigation turns up other connections that may link him to other terrorists bent on commiting other acts, or more importantly, it may expose other terrorists linked to Padilla. The rights of the people always trump individual rights, and the government is obligated to either charge Padilla with a crime or crimes or to release him. However, if the government can convince a judge that releasing Padilla is likely to endanger other people, e.g., by blowing them up or exposing them to radiation, the judge may suspend Padilla's right of habeas corpus for a reasonable time to allow the government to pursue the investigational leads to other malefactors. The judge will require the government to report its progress in sufficient detail for him to remain convinced that suspension of some of Padilla's rights is justified in the best interest of other citizens.

Does Padilla have the right to know what's going on in this process? In a word, no.

Instead of barking up the "wrong tree" of the "right to be presumed innocent," many on this thread should be barking about Padilla's right to know the charges against him (habeas corpus) being stomped on.

The answer's the same, though. Somewhere, somebody of competent authority, has had that right of Padilla's suspended due to exigent circumstances.

[CMichael]

Justin >>I fail to see how being indefinitely detained even comes close to what was done to the Nazi's spies. Nonetheless some of the tv-impaired, beer drinking, so called 'conservatives' here on this board will continue think that these usurpations by the Executive are just hunky dory because they value 'safety' more than liberty.
They value their big screen TV, jet boats, and their six pack in the fridge more than they value freedom. <<

Could you please explain what liberty exactly was taken from you? The liberty for your city to not be nuked?

The powers that the government is using this was has been used very sparingly. It was also reviewed by the Senate Intelligence Committee.

I would rather side with caution on keeping the terrorists on ice rather than risking them being put back in society to target civilians.

Bush has been doing a phenomenal job fighting this war.

Don >>For the record, I'm also getting tired of this "precedent" stuff. (That's how you spell it correctly, by the way.) Precedent is a legal justification for doing what courts did before you. It does NOT mean your actions are correct, or moral, or even make sense--only that previous courts accepted them as legal. Many of the worst decisions in our history were legal precedent for years. It didn't make them any better; it just made it more difficult to change them.<<

This precedent stuff is important because some here seem to be stating that it is unconstitutional and making a legal argument. Since there is precedent for this that has been upheld by the courts it is in fact legal.

Dennis>> If the definition of the term "legal" means "It ain't been outlawed by the Supreme Court......yet," then our government can be free of any restrictions so long as the Supreme Court refuses to hear any pertinent cases.

If the definition of the term "legal" is restricted to compliance with the U.S. Constitution, then our government is routinely illegal in its day to day activities.

Also, having Congress illegally delegate both authority and responsibility to the President in order to avoid blame (in the case of problems and failures) and/or claim credit (for successes both real and imagined) does not create compliance with our ruling document.

Most of all, just because we want something to be true (or legal) does not make it true (or legal, ie in compliance with the Constitution). <<

That is exactly true. Just because some here say it violates the law doesn't necessarily mean that it does. In fact, the government has the legal right to put Jose on ice and to treat him as a combatant


Michael

[jimpeel]

The question is:

How is it that a foreign national, Zaccharias Moussoui, is afforded a trial and allowed to act in his own defense; while an American born citizen of the United States is denied same and is held without an indictment, without charge, and without a finding by a Grand Jury?

[Zander]

How is it that a foreign national, Zaccharias Moussoui (sic), is afforded a trial ... -- jimpeel

Because we did not learn from our mistakes in 1993 after the World Trade Center was bombed.

[agricola]

hey,

since Christopher II has summoned me from the flask i shall donate my two pence into this argument:

i) people (whether or not they are US citizens) should only be detained where it is legal - detaining someone indefinately without charge (and apparently without a great deal of evidence) is in no way part of civil law and, if he is regarded as an "enemy combatant" then he is a POW and must be treated as such. We had "internment" over here and I dont think any of you would state that it was a good idea

ii) this is a war irrespective of whether the Congress has said it is, just as Korea and Vietnam were (and was Desert Storm passed by Congress?)

iii) the Germans mentioned in the 1942 case were betrayed by one of their number and his story was backed by evidence, there was a clear case against them. With what's in the public domain the same cannot be said against Mujahir. You should all be very wary of this since, as so many of you have said to me, once the government has the precedent (which this action would set) and the power to do this it will not let it go. Considering how strongly you feel about issues of freedom I am amazed that some of you can ever support this.

Of course, al-Qaeda are a threat, albeit an overstated one. As the WTC, Pentagon and USS Cole sadly showed it is far easier to use simple methods than such untried methods as "dirty bombs", anthrax and the like.

agricola

[johnAK]

This is typical Republicans BS, double standard, hypocrites,
They all insist this is the "WAR" (even though Constitution clearly says ONLY Congress has power), but still insist that those captured are not POW, and international law says POW has certain rights (they only need to say name, rank, etc), and they all still angry over WWII nazi and jap's POW treatments.

[Christopher II]

Okay, I know that I said I wouldn't, but...

Ancient chinese proverb: "The beginning of wisdom is to call a thing by its right name." Like I keep saying, you can only have a war between two states (and sometimes not even then, I don't think that Vietnam or Desert Storm qualify as wars.) Call it a police action, regional conflict, whatever. It ain't a war, and we shouldn't be treating it like one if we want to see real results.

Ag makes an excellent point (Gah! Me, agreeing with Agricola! A pig just flew past my third-floor window!) Al-Qaeda is a threat, but a very minor and diffuse one. The government wants to play up every possible shred of a threat, no matter how unlikely, because the government gains more power the longer this state of emergency is in effect. To deny that is to deny reality.

"The rights of the people always trump individual rights..." Right. I've heard this before, and it is totally untrue and ridiculous on its face. What are the rights of the people? Who grants them these rights? How are they different from the rights of an individual? There are no collective rights. Only individuals have rights, and as such the rights of one individual trump the collective good. This is one of the ideas this country was founded on.

With that in mind, we should quit arguing about the minutae of the law, and start discussing whether the law in question is right or wrong.

- Chris

[Blackhawk]

"The rights of the people always trump individual rights..." Right. I've heard this before, and it is totally untrue and ridiculous on its face. What are the rights of the people? Who grants them these rights? How are they different from the rights of an individual? There are no collective rights. Only individuals have rights, and as such the rights of one individual trump the collective good. This is one of the ideas this country was founded on.

Amazing that you've heard that before without understanding it. Maybe I can help.

Imagine that a whole lot of people agreed that each one of them is created equal and has individual rights of life, liberty, and the pursuit of happiness as each one sees fit. As things go on, some will be more comfortable than others through their industriousness, good fortune, or Capitalistic talent. Inevitibly, others will realize that they're unhappy in their penury and come to believe that some of what the better off ones have would make them happier, so they help themselves to it by doing what we might call stealing. But the "contributors to their happiness" begin to think they would be happier if their property wasn't stolen.

You can see where this is going, at least I hope you can. As things escalate and degenerate, the majority agrees that they would all be happier if the individuals who steal, rob, murder, and do the other things that transfer the property of others to themselves were dead. They establish rules or "laws" by agreement to allow that to take place. So what we end up with is "the rights of the people" to pursue happiness end up trumping the rights of certain individuals to "life".

That's just a hypothetical example of the maxim. Get it?