Thank the (US) Founding Fathers for an independent judiciary!

[Knight2003]

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.

[Dinner]

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.

[Berzerker]

Knight -

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.

[Ramo]

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.

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.

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.

[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.

[Berzerker]

Ramo -

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.

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.

[TheStinger]

Shouldn't someone be able to appeal their designation as an enemy combatant

[Straybow]

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.

[HershOstropoler]

Maybe. But this SC has been quite leniant on search/seizure.

As for fair trial, it's dead.

[Sikander]

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.

[HershOstropoler]

"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?

[Sikander]

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.

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.

[Ramo]

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.

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.

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.

[Berzerker]

Ramo -

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

Right or wrong, the Framers disagreed.

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

You haven't provided a viable alternative.

The Constitution is amendable, that should be enough.

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

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.

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...

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

So we should have tried every Axis soldier too?

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?

[Ramo]

Right or wrong, the Framers disagreed.

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

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.

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.

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.

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.

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).