Skip to comments.How One Piece of Paper Destroyed Your Right to a Trial
Posted on 07/27/2014 11:38:09 AM PDT by OneWingedShark
You cant get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: No person shall be
deprived of life, liberty, or property, without due process of law. In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redactedabout one-third of the text is missingJustice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury and executioner.
(Excerpt) Read more at thenation.com ...
Is difficult for me to admit that I agree with anything published by The Nation. But I do.
Hey, if Eric Holder says the government can kill anyone they want at any time, then that’s good enough for me! [/s]
Lincoln did much worse. Now the National Defense Act recently signed, that's NOT an exaggeration. We need it repealed.
No person shall be
deprived of life, liberty, or property, without due process of law.
Secondly, he was engaged in a war against the United States. Imagine a German American in 1942 going to Germany and joining the Wehrmacht and shooting at Americans. Do we worry he was killed without "due process?" There is a regular disease in our society where everyone worries about the criminal and not the victim.
Kill them, kill them all.
It must be recognized that this is war. Not a classic set piece kind of thing like 1812, but a completely fluid, invisible enemy, they can be anywhere kind of thing.
To serve the interests of the country, the President and his people need to be able to act.
That being said, it is necessary that those in power have the best interests of the people at heart.
THIS IS CLEARLY NOT THE CASE.
So either the Obamites get us or the others do.
What? Ya wanna live forever?
There appears to be evidence that he was an active Al Qaeda terrorist, not just preaching Islamic terrorism. It is hard to sympathize with him, or consider him a US citizen.
BTW, this placement in Nation magazine alongside all sorts of Israel bashing doesn’t exactly help his case.
I just can’t get all worked up over killing this piece of Shiite. We should be deporting them all (muslims. Including the HMIC himself.
While I agree with the arguments presented in this piece, I disagree with the entire premise. This guy, together with the rest of Al Qaeda are outside the law. They are waging war against the United States and we have every right to take the war to them, killing them whenever and where ever we can. They need not be armed with an AK-47, you can wage war with a laptop just as well.
As combatants, they are entitled to treatment as POWs should they be captured and we can keep them as long as the war continues. They can be tried by military tribunals for crimes that they may have committed during the conflict. For example, we did this to members of Kampfgruppe Peiper for the murder of U.S. POWs during the battle of the bulge. Several were hanged.
Where we have gone astray is by pretending that we can treat acts of war as ordinary criminal behavior and deal with it within our civilian legal system which is patently absurd on its face. The fact that Al Qaeda chose to ignore the laws of land warfare and refuses to wear uniforms and observe the international conventions of warfare does not entitle them to treatment as criminal suspects entitled to presumption of innocence and due process of a jury trial with full disclosure of all lawfully obtained evidence. They are declared enemies and anyone who joins their ranks should receive the same treatment, even it they happen to be American citizens.
While the United States has generally avoided the targeting of enemy leaders, we are certainly entitled to do so. We shot down a Mitsubishi “Betty” bomber carrying Admiral Yamamoto during World War II. We knew he was on board and we knew where the plane was going. We ambushed the plane and shot it down. Admiral Yamamoto never shot an American soldier or sailor, he never planted a bomb. But, he was an enemy combatant and he was killed during the performance of his duties. That’s what happened to this guy.
The result was good, the convoluted rationale put forward by the Obama Administration is not.
What part exactly in the entire defense budget do you object to, or are you calling for the entire defense budget to be repealed?
The Obamanites can kill you if they want, for whatever reason, but an illegal invader gets a welcome, a lawyer, a hearing date, bail-free release and a `wink-and-a-nod’ that he won’t see another courtroom ... until he’s arrested for vehicular homicide, at which time he will get a lawyer, a hearing date ...
Obviously true. Even more so when they are illegal enemy combatants and operating in territory outside of US jurisdiction. By extension of the authors argument, all Al Qaeda would have to do is keep one American with each unit and we could never attack them.
What a well thought out and cohesive argument for drone strikes against me. I am the enemy of this government, but not an enemy of the republic. I often use a laptop. Who defines “ordinary crimes “ vs. Acts of war? Why, the government, of course.
I am not defending either the dead terrorist, or the article, but this needs a little more thought before we start granting the regime Constitutional exemptions.
Waging the legal system against our enemies won’t produce very satisfactory results, I’m afraid. If it would, we would require fighter pilots to have law degrees.
You do have a point given the rise of stateless entities for the very purpose of carrying out wars on superpowers. I think that the distinction of who is a combatant and who is just a curmudgeon is something we can handle unless you are doing the mental gymnastics of the Obama Administration by trying to deny that we are at war against radical Islam.
Please do not presume to know with whom I am at war. Islam is a cancer, a festering boil on the arse of humanity; but it is not a legitimate target for war by the United States. 5th century culture, practiced by political Islam may be. Back to my point : this exemption from the fifth amendment does not only cover militant Islam, but covers anyone they decide it covers.
I am not defending the document that the Obama Administration is foisting. It is a travesty for the reasons that you cite. For over one hundred years, The United States has waged war, both declared and undeclared against our enemies. We have a considerable body of law and precedent to rely upon when deciding who is an enemy combatant. Our dead parrot qualified on numerous counts had the idiots in the White House chosen to do what we have done for many years. It’s the Administration that wants to pretend that we are not at war with Islam, otherwise they would not have to craft this pile of nonsense.
The rationale that they have put forward is a danger to ordinary citizens, especially in the hands of a regime so willing to commit illegal acts in pursuit of their political goals.
Understood and agreed. Evil, in all its various forms is the true enemy and there are very few things that approach Islamic terrorism in that regard. Like you, I’m uncomfortable with this kind of power in the wrong hands. I don’t believe the police and the courts are equipped to deal with these vermin either.
Exactly how many traitors did Lincoln have shot without benefit of a trial?
General comment: When one bears arms against the US (not just the government, but the nation) they , regardless of citizenship, become targets, law enforcement and/or military (dependent on location).
Sometimes these targets are caught, sometimes they are destroyed by high order detonations, etc. The ones who are caught, become illegal combatants (not POWS), criminals and otherwise sorry examples of the detritus of humanity.
To disagree with the administration is one thing, to actively undertake the violent overthrow of the nation, the government and our way of life, makes one regardless of citizenship a criminal.
I had great respect for the uniformed enemies of our nation that I met on the field of battle. None whatsoever for “insurgents” and I did not ask prior to targeting them with small arms or standoff systems what their citizenship was. We indeed discovered that many of them carried passports from places like Canada, Great Britain, Norway, Eastern European nations, all of the mid eastern nations and Asia. They ran to the guns in IRQ and AFG, we dealt with them there, thank goodness!
If an American desires to change things, he becomes a voter, an activist, a lobbyist a grassroots organizer to sway opinion, not a person who directs and or participates in the destruction of office buildings or aircraft, or the raising of resources (fiscal, human or material etc) for that cause. Doing so is unacceptable, except when a long train of abuses demonstrating a pattern of tyranny is clearly and obviously apparent. The case must be made out legally, as in our founders’ Declaration of Independence. Indeed, they clearly stated that suffering until the systematic deprivation of representative government was certain and unequivocally proven, that rebellion was necessary and even moral.
The character in this discussion made none of those claims, he rather waged illegal war against the people of the US. I speak solely of the case against him, and no other, as each situation must be examined in its own merits.
Lincoln didn't have any combatant to deal with in Yemen, nor to my knowledge, anyone outside of the US that bore a threat to an American citizen.
I give you one out of three on your response. Yes, Lincoln did, without congressional approval suspend the writ of Habeas Corpus. “Scores of confederate soldiers starved to death in Yankee prisons”. Can you say Andersonville. Neither the United States nor the Confederacy can claim the least bit of moral high ground when it comes to the way prisoners of war were treated, both sides were equally brutal. You mean the Buchanan administration failed to redress Southern grievances. Lincoln did not become President of the United States until March 4 1861. By that date, Georgia, S.Carolina, Florida, Alabama, Mississippi, Louisiana, and Texas had all seceded from the Union. What court actions had these states initiated to redress their grievances? What legislation did their Senators and Representatives introduce into Congress to redress their grievances? For that fact what grievances were so dire that secession was the only answer, not the courts nor the Legislature could redress. IMO, the Democrats in the South panicked when Lincoln was elected. A Republican President, House and Senate were seen as a direct threat to the institution of slavery as it existed in the South.
You really think slavery was the reason. Hahahahahaha. Public school. Nice.
States rights is the lamest excuse offered up by the lost cause crowd for civil war.
It was commerce and the right of a state to freely engage. DC and the Northern states disagreed with the South.
The Mississippi River was a huge player in the Northern Aggression.
Understand history, not political BS from your “changing history 101” class.
Exactly how was it “commerce”. How did the Buchanan administration interfere with southern commerce. Did they forbid the South the right to sell cotton or tobacco to whom ever they pleased. Did they confiscate southern goods and products. Did the Buchanan administration order southern planters to stop farming cotton, tobacco, indigo or rice. Explain how it was commerce, if you can.
And the EP not including the northern slaves and slave owners, is not even mentioned in public school. Wow. Because someone can bear to let the masses know the real reasons are being visited among us once again.
By EP is presume you mean the Emancipation Proclamation.
Of course the EP did not address slaves in Missouri, Kentucky, Maryland, Delaware or the District of Columbia, where the institution was legal. Nor did to apply in areas occupied by the Union Army such as New Orleans or much of Northern Tennessee. The Dred Scott Decision stated that the Federal Government could not interfere with slavery in any state where it was legal, it was a State Right. Lincoln recognized that fact. Since 11 states had seceded from the Union and were in armed rebellion against the United States, Lincoln reasoned that freeing the slaves in only those states in secession was within his authority as the Commander and Chief of the United States armed forces. Slave were used to build fortification, produce food for Confederate armies, work in factories manufacturing weapons and munitions for the Confederate army, driving wagons, and repairing rail roads to transport provisions, equipment, weapons and ammunition to Confederate forces. Slave were being used to support the Confederate war effort against the United States. That is why the EP did not include northern slaves and slave owners. It was aimed at limiting the Confederacies ability to make war. OBTW, the EP was discussed quite extensively in the public schools I went to, but maybe not the ones you went to.
Now if you could complete your education and investigate why they seceded. Which by the way, the Founding Fathers provided for.
I never claimed slaver was the cause of the Civil War. Slavery was the issue that drove secession. The Confederate Government started a Civil war by firing on a Federal fort. Exactly which article of the Constitution of the United States provides a method for a state to legally withdraw from the Union. No legal theory, provide the exact language in the Constitution, if you can.
Uh .no. You lost all credibility. I'm sure you were a promising child at one point.
Don't bother replying, I won't be reading.
If you had any creditability at all you would answer the question. What article of the Constitution of the United States give a state a method of leaving the United States.
You were the one that claimed such a provision was in the Constitution. Put up or shut up. Obviously you have opted for the shut up mode due to a lack of knowledge of the subject you have tried to discuss and the Constitution of the United States. I guess the validity of the old adage that “ignorance is bliss” is substantiated by you.
Arguably Amendments 9 & 10
As there is nothing in the Constitution denying to the states the power to leave they must still retain it. (Such prohibitions are explicitly laid out: prohibition of ex post facto law, prohibition of entering into treaty/alliance/confederation, prohibition against bills of attainder, etc.)
To my knowledge none of the states that seceded in 1861 cited either amendment in their ordnances of secession.
Nor did any of those states try to make a court case based on those amendments.
What is really interesting is that none of the confederate officers [or politicians] was charged with Treason.
Why is this?
I posit that it is because the Constitutional definition is as follows:
Art 3, Section. 3.Which, when combined with Art 1, Sec 10, Para 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.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.— places the north's aggression as treasonous as well as gives the States legal grounds for saying
we were defending ourselves from invasion.
Moreover, the Federal Government's claim (that the Confederate states could not secede) means that by that logic the aggression against the Confederate states was indeed Treason. (IOW, the federal argument is self-defeating: in order to be legitimate it has to grant the power to secede, which it does not.) — In short, to take up any CW Treason case was to lose. Period.
The biggest problem here is that it is setting up precedent.
All the government now has to do to murder you is declare you to be a terrorist; they've already effectively suspended habeus corpus and have shut up the right to trial so it is pretty much dependent on their whim (see
standing)… with this particular case they are setting the groundwork for legalizing the killing of citizens directed by the executive without trial or defense.
Remember — when it's precedent against the Constitution the Constitution loses because the Constitution inherently limits governmental power. This means that those government-agents in power would be surrendering power, something experience has shown mankind is disinclined to do.
Not sure what your point is. It belays the fact that the President of the Confederacy directed Confederate forces to open fire on a Federal Fort. Had ships of the Royal Navy fired on Ft. Sumter, war would have been declared. Japanese bombs drop on Pearl Harbor, war is the result. Fire rockets into Israel and you get a war for your efforts. SOP in the real world. Not a single seceded state made an claim of Constitutional authority to secede. Not one chapter, line or verse from the Constitution was cited in the Ordnances of secession to justify their actions. Finding “Constitutional Authority” to explain secession is, in my opinion, an ex post facto attempt to justify the unjustifiable.
"We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States. Those States have assume the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution; they have denounced as sinful the institution of slavery; they have permitted open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States. They have encouraged and assisted thousands of our slaves to leave their homes; and those who remain, have been incited by emissaries, books and pictures to servile insurrection.
For twenty-five years this agitation has been steadily increasing, until it has now secured to its aid the power of the common Government. Observing the forms of the Constitution, a sectional party has found within that Article establishing the Executive Department, the means of subverting the Constitution itself. A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that "Government cannot endure permanently half slave, half free," and that the public mind must rest in the belief that slavery is in the course of ultimate extinction.
This sectional combination for the submersion of the Constitution, has been aided in some of the States by elevating to citizenship, persons who, by the supreme law of the land, are incapable of becoming citizens; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its beliefs and safety."
No, it doesn't belay anything.
belay verb (used with object), belayed, belaying.The word you're looking for is
1. Nautical. to fasten (a rope) by winding around a pin or short rod inserted in a holder so that both ends of the rod are clear.
2. Mountain Climbing.
a. to secure (a person) by attaching to one end of a rope.
b. to secure (a rope) by attaching to a person or to an object offering stable support.
a. to cease (an action); stop.
b. to ignore (an announcement, order, etc.): Belay that, the meeting will be at 0900 instead of 0800.
verb (used without object), belayed, belaying.
4. to belay a rope: Belay on that cleat over there.
5. Mountain Climbing. a rock, bush, or other object sturdy enough for a running rope to be passed around it to secure a hold.
belie(to show to be false, contradict; to misrepresent to act unworthily according to a standard) and it doesn't belie Ft. Sumpter either — the definition of treason uses the plural
themwhich means that the
United Statesreferred therein can only be the several states (Legally there are three possibilities) — therefore it is conceivable to not commit Treason even though violently attacking federal troops.
The term "United States" may be used in any one of several senses.  It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in the family of nations.  It may designate the territory over which the sovereignty of the United States extends, or  it may be the collective name of the states which are united by and under the Constitution. [Hooven & Allison Co. vs Evatt, 324 U.S. 652 (1945)]
Had ships of the Royal Navy fired on Ft. Sumter, war would have been declared. Japanese bombs drop on Pearl Harbor, war is the result. Fire rockets into Israel and you get a war for your efforts. SOP in the real world.
Occupation of a fort by a government that the people of the state no longer consider their own?
Again, Treason is
levying War against them [the several states] — it matters jack-shit if congress declared war on them definitionally: it would still fulfill the action.
Not a single seceded state made an claim of Constitutional authority to secede. Not one chapter, line or verse from the Constitution was cited in the Ordnances of secession to justify their actions.
Finding Constitutional Authority to explain secession is, in my opinion, an ex post facto attempt to justify the unjustifiable.
Just because someone fails to justify some claim does not make it unjustifiable: see Fermat's Last Theorem.
This is why [traditionally] lawyers were held to be good/respectable — John Adams providing an excellent example when he secured acquittal of the British soldiers who were involved in the Boston Massacre (despite the emotion and chaos of the incident the soldiers still had the right to defend themselves).
“. . .they’ve already effectively suspended habeus corpus and have shut up the right to trial so it is pretty much dependent on their whim (see standing) with this particular case they are setting the groundwork for legalizing the killing of citizens directed by the executive without trial or defense.”
Where is this in law?
I’d like to read the actual legislation.
Enhancement of capacity of the United States Government to analyze captured records.
Sec. 1021. Affirmation of authority of the Armed Forces of the United States to detain covered persons pursuant to the Authorization for Use of Military Force.
Subsec (b)(2) of the latter [NDAA12, Sec 1021] has a nice gem of
associated forces that are engaged in hostilities against the United States or its coalition partners, which the federal gov could certainly take to mean any militia or state daring to go against the federal government (i.e. what happens when a gov sends NG forces to actually secure the border? Likely the FedGov will retaliate in some manner; possibly sending federal forces to make them stop… if the state's forces reject that, then this can come into effect — moreover, it could be applied to the likes of the militia around Bundy's place. [I'm of the opinion that they wanted to spark a civil war.])
Those two sections alone should raise alarm-bells in your head; but take the two laws together and it's not pleasant to contemplate.
Thank you, but the link is obsolete because that version is a version before the House marked the Bill. The House passed a different version (the section you refer to addresses reporting gifts and such).
I can’t find references listed in previous defense budgets.
What I find are:
FY12 NDAA, Section Title X, General Provisions. It is in this section we find what is causing the reactions we are observing.
Subsection D-Counterterrorism, para C (1), pg 1562
The relevant Section reads:
Subsection D Counterterrorism
SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) IN GENERAL.Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 10740; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) COVERED PERSONS.A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) DISPOSITION UNDER LAW OF WAR.The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 11184)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the persons country of origin, any other foreign country, or any other foreign entity.
(d) CONSTRUCTION.Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
. . .thus far. Sec 1021, c(1), appears to support the case. . .but not:
In the next paragraph, 1021 e, it clearly and plainly states:
(e) AUTHORITIES.Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.
And, very important to note,
(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL
(1) UNITED STATES CITIZENS.The requirement to detain
a person in military custody under this section does not extend to citizens of the United States.
So, we can plainly see that Americans cant be snatched up off the street and held indefinitely. The law clearly says NO.
And in the FY13 NDAA (http://www.gpo.gov/fdsys/pkg/BILLS-112hr4310enr/pdf/BILLS-112hr4310enr.pdf):
SEC. 1029. RIGHTS UNAFFECTED.
Nothing in the Authorization for Use of Military Force (Public Law 10740; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 11281) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.
In plain language it is clear US citizens cant be scooped up and held indefinitely.
FY14 has not passed the Senate yet and like I said, I found no references like FY12/13. So, that means FY12/13 provisions remain in force.
I contacted Cruz’s office (my Senator) and they sent vague language expressing opposition but were unable to provide specific parts that they disagree with). Same with my Congressman’s office (Burgess).
If you find something more or with better information, please send. Thanks.