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On May 13 2011 08:11 domovoi wrote:Show nested quote +On May 13 2011 08:07 TheFrankOne wrote:
Technically, most "enemy combatants" are historically PoWs, which exist in a different realm. Dating back to the 1600s PoWs were regularly returned at the end of hostility (between two states) without ransom. I.e. detained indefinitely. Show nested quote +From then the treatment of PoWs has steadily gotten better for the most part. As we are not at war with another state Ex parte Quirin doesn't apply as precedent. Terrorists should go through the criminal justice system. I'm not sure why the presence of a state should make a difference. Show nested quote +"Enemy combatant" in the vernacular (in the US) means those who have been detained indefinitely outside the rule of law as part of the war on terror I was not thinking of PoWs in my response, they are detained under completely different circumstances. Terrorists are unlawful combatants. They are not outside the rule of law; there's a whole body of law that regulates their detention.
Detained indefinitely until a cessation of hostilities between two states is entirely different than the holding of prisoners until the cessation of... terror? You can use the term "indefinite" to describe both but one "indefinite" has a clear and defined end, even if the date is uncertain, while the other has no clear end point or condition for release whatsoever.
All those who have been detained do not belong to one specific group, not all of them should reasonably be considered civilians. There is not even one clear group that we have been engaged in combat with since the invasion of Iraq/Afghanistan and so a blanket term to describe all of these terrorists that requires them to be civilians is unreasonable.
They should be prosecuted for whatever criminal acts they have engaged in, as criminals.
A state is relevant because it is then clear who is lawful and who is unlawful, (solders or civilians) without an opposing state things become much less clear. Also in the decision itself:
"the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants."
Peaceful populations of belligerent nations is a clear reference to states engaged in hostilities.
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On May 13 2011 08:46 smokeyhoodoo wrote:Show nested quote +On May 13 2011 08:33 domovoi wrote:
In America, "blatantly unconstitutional" really just means "I have no idea what the constitution says or how it's been interpreted over the past 220+ years, but I don't like the policy!!1"
I wonder what's the equivalent term for a country with no codified constitution. It doesn't give the president the authority to go to war on a whim. It explicitly states that that authority lies with congress. Why would you just assume something about someone you don't know, and then attack them personally for it?
You've proven my point, thanks. The power to declare war is not the same as the power to deploy military force under constitutional jurisprudence. Otherwise every single war the US has been in since World War 2 is unconstitutional. You're taking a simple clause and trying to interpret it in plain english when it's had hundreds of years of judicial gloss added onto it.
So, like I said, you have no idea what that clause means.
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On May 13 2011 08:47 TheFrankOne wrote:
Detained indefinitely until a cessation of hostilities between two states is entirely different than the holding of prisoners until the cessation of... terror? You can use the term "indefinite" to describe both but one "indefinite" has a clear and defined end, even if the date is uncertain, while the other has no clear end point or condition for release whatsoever.
I agree, I made that point earlier.
A state is relevant because it is then clear who is lawful and who is unlawful, (solders or civilians) without an opposing state things become much less clear. Also in the decision itself:
Just so it's clear, unlawful combatant generally means a combatant dressed up as a civilian, a lawful combatant is one in a uniform. My question is why should terrorists, who have no allegiance to any state, be treated differently than other unlawful combatants, like spies?
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On May 13 2011 08:58 domovoi wrote:Show nested quote +On May 13 2011 08:46 smokeyhoodoo wrote:On May 13 2011 08:33 domovoi wrote:
In America, "blatantly unconstitutional" really just means "I have no idea what the constitution says or how it's been interpreted over the past 220+ years, but I don't like the policy!!1"
I wonder what's the equivalent term for a country with no codified constitution. It doesn't give the president the authority to go to war on a whim. It explicitly states that that authority lies with congress. Why would you just assume something about someone you don't know, and then attack them personally for it? You've proven my point, thanks. The power to declare war is not the same as the power to deploy military force under constitutional jurisprudence. Otherwise every single war the US has been in since World War 2 is unconstitutional. You're taking a simple clause and trying to interpret it in plain english when it's had hundreds of years of judicial gloss added onto it. So, like I said, you have no idea what that clause means.
Yes, every war since world war 2 has been unconstitutional. Furthermore, judicial decree doesn't determine what the constitution means. They are actually capable of interpreting it incorrectly. Shocking I know. Btw, deploying military force against another nation is an ACT OF WAR, meaning congress needs to declare war for it to occur.
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On May 13 2011 09:15 smokeyhoodoo wrote:
Furthermore, judicial decree doesn't determine what the constitution means
Yes, how could I have been so foolish. What the Constitution means is obviously what smokeyhoodoo decrees.
But, wait, what happened to that whole checks and balances thing.
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On May 13 2011 09:03 domovoi wrote:Show nested quote +On May 13 2011 08:47 TheFrankOne wrote:
Detained indefinitely until a cessation of hostilities between two states is entirely different than the holding of prisoners until the cessation of... terror? You can use the term "indefinite" to describe both but one "indefinite" has a clear and defined end, even if the date is uncertain, while the other has no clear end point or condition for release whatsoever. I agree, I made that point earlier. Show nested quote +A state is relevant because it is then clear who is lawful and who is unlawful, (solders or civilians) without an opposing state things become much less clear. Also in the decision itself: Just so it's clear, unlawful combatant generally means a combatant dressed up as a civilian, a lawful combatant is one in a uniform. My question is why should terrorists, who have no allegiance to any state, be treated differently than other unlawful combatants, like spies?
Why should ANY criminal be treated differently from an unlawful combatant?
If a member of the Crips is killing American citizens, how does that make them different from a member of Al Qaeda that kills American citizens?
Could the Congress validly declare actual War on specific street gangs, what about internet pirates.. they are performing illegal acts reslting in losses to the US? Could the US declare war on Anonymous ..and any associated groups as a cyber terrorist group?
The problem with unlawful combatants v. lawful combatants comes because a Lawful combatant Declares that they are a combatant (through their uniform), so there is no problem with the authority to detain them. Unlawful combatants provides a different situation, because any unlawful combatant is an Alleged unlawful combatant. And the executive branch of government that is detaining them is the one judging whether they are unlawful combatants or not.
Personally I would like to see ALL "unlawful combatants"/"foreign or domestic criminals" given some type of a trial. If they are an unlawful combatant then they should NOT be treated as POWs but as criminals, ie a trial then either released (as a noncombatant/not guilty person) OR sentenced as any other criminal that was attempting/conspiring/aiding in the murder of federal workers/sabotage of federal property.
Then there is the international issue. The US is initiating military action against citizens of another country, who are living in another country without either the permission of those countries or declaring war on them.
TLDR
On a national level, "unlawful combatants" Should be treated as criminals (to prevent the executive branch from having too much power)
On an international level, congressional authorization specific to the country should be required for any military operations in a country without its permission. (or in any way that would violate a treaty)
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On May 13 2011 09:19 domovoi wrote:Show nested quote +On May 13 2011 09:15 smokeyhoodoo wrote:
Furthermore, judicial decree doesn't determine what the constitution means Yes, how could I have been so foolish. What the Constitution means is obviously what smokeyhoodoo decrees. But, wait, what happened to that whole checks and balances thing.
I never said that. I obviously can interpret it incorrectly too. I wasn't the one claiming its not open to debate though. Damn, you really shot yourself in the foot there.
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On May 13 2011 09:03 domovoi wrote:Show nested quote +On May 13 2011 08:47 TheFrankOne wrote:
Detained indefinitely until a cessation of hostilities between two states is entirely different than the holding of prisoners until the cessation of... terror? You can use the term "indefinite" to describe both but one "indefinite" has a clear and defined end, even if the date is uncertain, while the other has no clear end point or condition for release whatsoever. I agree, I made that point earlier. Show nested quote +A state is relevant because it is then clear who is lawful and who is unlawful, (solders or civilians) without an opposing state things become much less clear. Also in the decision itself: Just so it's clear, unlawful combatant generally means a combatant dressed up as a civilian, a lawful combatant is one in a uniform. My question is why should terrorists, who have no allegiance to any state, be treated differently than other unlawful combatants, like spies?
I don't think you were making the same point about the idea of "indefinite detention". I was trying to say there is no condition of release and that is different from the historical context of conditional release at the end of conflict. So different that it is not an acceptable standard for release.
As a side note, they are not actually treated like unlawful combatants, they are denied legal counsel.
Unlawful combatant is actually a highly ambiguous term. According to the Red Cross an enemy combatant is: "generally understood as encompassing all persons taking a direct part in hostilities without being entitled to do so and who upon falling into the power of the enemy are not entitled to prisoners of war status."
It is because they have no allegiance to a state that the typical standard release at the end of hostilities is not applicable. The laws and precedents created to govern war between states are not designed to adjudicate these situations, our criminal justice system has a long history of prosecution of terrorists, do you think Timothy McVeigh should have been sentenced by a military tribunal? He did commit the second deadliest terrorist attack in American history.
Also, are you a history major or in law school?
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I think it would be highly impractical to treat all illegal combatants as criminals (and note that no country on earth does this as far as I know). First, the civil courts are not equipped to handle that increase in caseload, even in a time of relative peace. Think how disastrous it would be if we actually had a real war going on.
Second, the evolution of criminal procedure has never factored in the circumstances of unlawful combatants. In other words, how criminals and unlawful combatants are detained are sometimes very different, as is the practical amount of evidence that can used, especially if detained in a warzone.
Third, in relation to the second, our criminal laws would gradually be shaped to accommodate the exigencies of war, and that would likely be detrimental to our criminal laws. E.g., say goodbye to Miranda. Say hello to relaxed procedures for searches and seizures, because it's simply impractical to wait for a warrant before detaining a combatant.
Basically, war is very unlike the commission of a crime, and it would be foolish to try to shoehorn the former into the body of law that governs the latter.
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On May 13 2011 09:32 smokeyhoodoo wrote:
I wasn't the one claiming its not open to debate though.
lol, you must not know the meaning of "blatantly."
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On May 13 2011 09:32 smokeyhoodoo wrote:Show nested quote +On May 13 2011 09:19 domovoi wrote:On May 13 2011 09:15 smokeyhoodoo wrote:
Furthermore, judicial decree doesn't determine what the constitution means Yes, how could I have been so foolish. What the Constitution means is obviously what smokeyhoodoo decrees. But, wait, what happened to that whole checks and balances thing. I never said that. I obviously can interpret it incorrectly too. I wasn't the one claiming its not open to debate though. Damn, you really shot yourself in the foot there.
He did not put it in the nicest way but he is right, at any given moment the constitution's meaning is determined by judicial review. Unless of course you're one of those people who think the supreme court doesn't actually have that power. That's a different argument.
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On May 13 2011 09:38 TheFrankOne wrote:
It is because they have no allegiance to a state that the typical standard release at the end of hostilities is not applicable.
Well, if the "war on terror" ever did end, they could technically be released to their country of origin. Though I understand this would create a whole host of other problems.
The laws and precedents created to govern war between states are not designed to adjudicate these situations, our criminal justice system has a long history of prosecution of terrorists, do you think Timothy McVeigh should have been sentenced by a military tribunal? He did commit the second deadliest terrorist attack in American history.
Our criminal justice system could accommodate some terrorists, perhaps ones found on American soil through traditional investigative means, like McVeigh or that Christmas bomber. But it's not designed to accommodate, for example, unlawful combatants detained in a war zone.
Also, are you a history major or in law school?
I'm gainfully employed.
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On May 13 2011 09:45 domovoi wrote:Show nested quote +On May 13 2011 09:32 smokeyhoodoo wrote:
I wasn't the one claiming its not open to debate though. lol, you must not know the meaning of "blatantly."
Wow, just wow. This is retarded, go pick your next cyber fight.
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Because this totally led to awesome stuff when we passed it before Vietnam...
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On May 13 2011 09:53 smokeyhoodoo wrote:Show nested quote +On May 13 2011 09:45 domovoi wrote:On May 13 2011 09:32 smokeyhoodoo wrote:
I wasn't the one claiming its not open to debate though. lol, you must not know the meaning of "blatantly." Wow, just wow. This is retarded, go pick your next cyber fight.
Ok, so when you say something is "blatantly unconstitutional" you're actually saying "I think it's unconstitutional, but I could be wrong, after all, I'm no constitutional scholar and I generally don't pay attention to what the Supreme Court says having determined they are an illegitimate institution."
Makes sense.
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Vatican City State733 Posts
The President has been more or less granted the power to make war whenever he feels like it. Congress acts as little more than a rubber stamp when it comes to approving troop deployment. This is really nothing new and will not make these actions any more constitutional.
To be honest Congress has been disturbingly content to hand over its power to the President over the past decades. The post has far exceeded the power it was given in the Constitution.
Interesting fact: Under Rousseaun philosophy, the United States would be considered a monarchy
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On May 13 2011 09:44 domovoi wrote:
I think it would be highly impractical to treat all illegal combatants as criminals (and note that no country on earth does this as far as I know). First, the civil courts are not equipped to handle that increase in caseload, even in a time of relative peace. Think how disastrous it would be if we actually had a real war going on.
Second, the evolution of criminal procedure has never factored in the circumstances of unlawful combatants. In other words, how criminals and unlawful combatants are detained are sometimes very different, as is the practical amount of evidence that can used, especially if detained in a warzone.
Third, in relation to the second, our criminal laws would gradually be shaped to accommodate the exigencies of war, and that would likely be detrimental to our criminal laws. E.g., say goodbye to Miranda. Say hello to relaxed procedures for searches and seizures, because it's simply impractical to wait for a warrant before detaining a combatant.
Basically, war is very unlike the commission of a crime, and it would be foolish to try to shoehorn the former into the body of law that governs the latter.
Not necessarily, you have modifications for "a warzone" which means picked up in Afghanistan=yes, picked up in America=no.
A speedy and fair trial... well fair>speedy already in the US, people picked up in a warzone would have to wait somewhat longer for their trial.
Search and seizure is already relaxed if there is imminent danger, in a warzone, there is definitely more danger.
Those have to do with how evidence is gathered and when the trial happens,ie actions before arrest.
The problem is with a war on alqaeda/the Taliban v. war on a state, the entire world is considered a "war zone" anyone suspected of the crime of unlawful combatant could be treated the same. This should Not be the case, in places where there is a reasonably effective+cooperative government in control (like the US), it should Not be under "war zone" rules.
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it's not like the president can't already start a war without congressional approval, I guess bush was a hipster
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At times I feel like the U.S. is following in Romes footsteps, founded as a republic, evolved into an empire. Ironically if you look at Washington D.C. the government buildings are all Roman styles. (Domes, pillars, ornate statues, cascading steps, ect.) Is history going to repeat itself?
It's also ironic that the constitution clearly states congress must declare war, I believe the last time congress did so was WWII, (maybe the first gulf war, but I'm not sure if it was considered a formal declaration) Every other war ( seem to have at least 2 per decade, or "Conflicts") the U.S. has entered since was unconstitutional and illegal under some interpretations of the constitution.
President Eisenhower warned against the military industrial complex getting out of control, and he was a WW2 General before he was president. Several other U.S. presidents both pre and post WW2 have warned of such things, always in a negative light. I am profoundly worried about what is rearing it's ugly head within the political structure of the U.S. The ONLY real reason I can see this kind of change being pushed through is so that the increasing pace of wars and conflicts can continue into the foreseeable future. To think they gave Obama the Nobel Peace Prize makes my head spin.
The constitution was written for reasons. To limit the powers of government was the main one. Holding people without trials or legal council, killing foreign leaders, torture, no warrant surveillance of U.S. citizens, are all illegal and the people running the U.S. who have broken these laws should be prosecuted. This is only the tip of the ice burg, I'm sure the more the U.S. government was properly investigated the more violations of the law would be found. All of these people swore an oath to uphold the constitution, I am only suggesting they be held responsible to that oath under the law.
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On May 13 2011 07:27 Euronyme wrote:
The problem is that the US already declares way too many wars that are heavily critizised by the UN, which means that they appear reckless.
The United States wages war very frequently, but it almost never declares war. Declarations have only been made for five wars in the United States' entire history.
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EPT
