Bill of Rights trashed in "war" on terrorism

[Jac de Molay]

don't think anyone is suggesting that he should be let out on bail, Dave. But to hold him indefinitely, with any future trial being a military tribunal--that is clearly
antithetical to American law.

The indefinite part i will agree with, and I am uncomfortable with the fact that Padillo may have been held for entirely political reasons relating to the FBI/CIA and the new cabinet.

The military tribunal is a trial, but with a different structure. A defendant does have access to counsel, and can appeal any verdict. However, the big differences are that these, both trial and appeal, are conducted before panels of military personnel only- A panel of five in the trial and three in the appeals. It's questionable whether a terror defendant could get impartiality under such circumstances since so few have been conducted, the last one being 1949. It is a trial, though.

I think one of the main reasons for the tribunal is the use of secret evidence. The government, in any way shape or form, does not want to tip its hand in how intelligence is being gathered against qaeda, and this I can agree with. Keep in mind that the defense does have access to this evidence in discovery, but it is not otherwise made public.

[Ramo]

A few things to note...

First of all, indefinite detention would be legal due to the Patriot Act, if this guy were not a citizen (even then, it is unconstitutional due to a court decision in 2001 - before the Patriot Act - Reno vs. Kim Ho Ma). AFAIK, there is no legal justification whatsover, either through our laws or courts, to indefinitely detain citizens, and certainly no moral justification.

[red_jon]

Originally posted by SlowwHand
Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, to assure the survival and success of liberty.
--John F. Kennedy

But if liberty is killed in the process of preserving it, what is the point?

[SpencerH]

Originally posted by DetroitDave
Fyi. The precedent on which the current military tribunal system is based on involved 8 Nazi saboteurs in 1943, one of which was a US citizen. The SCUSA ruled at the time that all wartime enemies of the state, regardless of citizenship, were still considered "enemy belligerents".

Based on this tenuous precedent, Padilla can be tried in a military tribunal. On the question of indefinite detention, two recent Federal court rulings (that I dont have handy) ruled against the government in keeping material witnesses indefinitely in criminal investigations, as well as granting access to counsel to persons being held as enemy combatants (in the case of one Yasser Esam Hamdi)

DAve

The question is "are we legally at war" ?

I dont see anything in the constitution to OK tribunals except for this taken from article II section 2

The trial of all crimes, except in cases of impeachment, shall be by jury

Since jury isnt defined here maybe its interpreted that a tribunal is a jury ?

Amendments V and VI dont appear to support tribunals

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

As an aside, "treason" is an interesting article of the constitution

Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

[Giancarlo]

Redjon, will you stop going on your anti american crusades... jeez... you hardly know anything about America... I really don't know much either but that isn't the point.

[SlowwHand]

A lot of people forget, or think it humorous, when it's pointed out that "Freedom isn't free".
Like it or not, that's just the way it is.

[Arrian]

The point of "Freedom isn't free" isn't that you may have to sacrifice liberty to protect it... it's that you may have to sacrifice something like your life for it. Sacrificing freedom in the name of protecting it is oxymoronic.

-Arrian

[SlowwHand]

That's not true. Show me one "free" military member.
You're ill-informed.

[red_jon]

Originally posted by Giancarlo
Redjon, will you stop going on your anti american crusades... jeez... you hardly know anything about America... I really don't know much either but that isn't the point.

America is a democracy, like Britain. I can comment on democracy.

Are Americans who criticise the Bush administration anti-american?

[SlowwHand]

No just mouthy; because as you've seen elsewhere, very little could be changed.

[red_jon]

Originally posted by SlowwHand
No just mouthy; because as you've seen elsewhere, very little could be changed.

Oh, I admit I'm mouthy

I'm not anti-American though. I'm not against the democratic freedoms America stands for, nor the friendly American citizens.

Criticism of the government is a good thing and a healthy expression of democracy.

[SlowwHand]

You asked about Americans, RJ. Youuuu wannabe.

[red_jon]

Originally posted by SlowwHand
You asked about Americans, RJ. Youuuu wannabe.

]

Bah, you've always wanted to be English and you know it

[Dr Strangelove]

I guess it all really hinges on whether or not the current conflict qualifies as a legal war and whether the terrorists can be legally viewed as enemy combatants. AL-queda was associated with the former government of Afghanistan, but it is debatable whether it was an integral part of it. The US arguably waged war (was war formally declared?) on the government of Afghanistan, the Taliban, and vanquished the enemy, who has still not technically surrenedered.

[David Floyd]

(was war formally declared?)

Nope, and as such I think there is a possible argument that the military actions were unconstitutional - the use of military force against a nation could be construed as a de facto declaration of war, a power held only by Congress.