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Ashcroft defends holding Americans as `enemy combatants'
AP | 3/06/03 | CURT ANDERSON

Posted on 03/06/2003 3:04:51 PM PST by kattracks

WASHINGTON (AP) -- A Democratic congressman told Attorney General John Ashcroft on Thursday that the federal government's continued detention of two U.S. citizens without charges or access to lawyers is frightening.

New York Rep. Jose Serrano said there is a widely held perception that the detentions of Jose Padilla and Yaser Esam Hamdi as "enemy combatants" are unfair.

"You've got to be concerned that these are American citizens detained without charges," Serrano said. Such action is frightening, he said.

Padilla, arrested at a Chicago airport, is accused of plotting to detonate a radiological "dirty bomb" in the United States and Hamdi, who was born in Louisiana, was captured fighting with Taliban forces in Afghanistan. They are classified as enemy combatants and are being held in military brigs without access to lawyers.

Ashcroft, testifying before the House Appropriations Committee that oversees the Justice Department's budget, pointed to jurisprudence, upheld by the Supreme Court, giving the president the power to hold people until hostilities cease and to try them before military tribunals.

Court trials could open the government to questioning by defense lawyers that might reveal intelligence secrets, sources and methods, Ashcroft said.

"We are aware that this is a matter of serious concern," Ashcroft said. "These are tough issues to be balanced."

Ashcroft also defended the government's detention of hundreds of foreigners after the Sept. 11 terrorist attacks, telling the committee that the vast majority have been deported or left the country willingly.

In response to questions from Serrano, the panel's ranking Democrat, Ashcroft said that 766 aliens were detained in the aftermath of the attacks on Sept. 11, 2001, mostly for overstaying visas. Of those, 489 have been deported or left the United States willingly.

Another 29 are still in custody, of which three continue to be investigated by the FBI for suspected ties to al-Qaida or other terrorist groups, Ashcroft said. In addition, 108 people have been convicted or pleaded guilty to what Ashcroft called terror-related charges in the 18 months since the attacks.

"No people have been held by the Justice Department who have not been charged," Ashcroft said. "No one has just been rounded up."

Ashcroft also came into tough questioning from Rep. Patrick Kennedy, D-R.I., over his decisions this year to overrule local U.S. attorneys who had not wanted to seek the death penalty. Kennedy contrasted that with studies he said show that capital punishment is "overwhelmingly" unfair to blacks and other minorities.

Ashcroft defended his decisions in the federal cases, saying that his goal is to ensure that the federal death penalty is applied in a "fair and uniform manner" around the country. He said he had little power over state capital punishment practices.

TOPICS: Foreign Affairs; Front Page News; News/Current Events; War on Terror
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1 posted on 03/06/2003 3:04:51 PM PST by kattracks
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To: kattracks
If they start handling burglars and rapists this way, I'll be concerned.

2 posted on 03/06/2003 3:07:37 PM PST by RobRoy
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To: kattracks
Can we toss in human shields?
3 posted on 03/06/2003 3:07:37 PM PST by Caipirabob (Democrats.. Socialists..Commies..Traitors...Who can tell the difference?)
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To: kattracks; FreeTheHostages
Treating citizens as enemy combatants was upheld by the Supreme Court in the Quirin case in 1942.
4 posted on 03/06/2003 3:10:32 PM PST by aristeides
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To: kattracks
Court trials could open the government to questioning by defense lawyers that might reveal intelligence secrets, sources and methods, Ashcroft said.

I heard an interesting little tidbit yesterday from a friend of mine with a lot of contacts overseas.

He says that the attempt by the U.S. to justify this war in Iraq is so lame because they can't reveal 95% of the things that would dispel all doubts about what the U.S. is doing.

The reason for this, he says, is that if the American public was made aware of the gross incompetence, malfeasance, dereliction of duty, etc. that has been tolerated in any number of government agencies over the last ten years, the ability of the U.S. government to function in any capacity would be severely compromised.

Item #1 on his list was the asinine approach of the Clinton administration to the first attack on the World Trade Center in 1993. I was quite startled at what this guy knew, considering he wasn't even a U.S. citizen until recently.

5 posted on 03/06/2003 3:19:53 PM PST by Alberta's Child
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To: kattracks
"You've got to be concerned that these are American citizens ..."
merely because their parents were passing through when they were born.

They care nothing for America, and rightfully owe their allegiance to another country.

We're too generous. Citizenship must require some allegiance.

6 posted on 03/06/2003 3:21:25 PM PST by mrsmith
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To: kattracks
New York Rep. Jose Serrano said there is a widely held perception that the detentions of Jose Padilla and Yaser Esam Hamdi as "enemy combatants" are unfair.

Waaaaaahhhhhhhhhhh...It's not faaaaaaair...waaaaaaaaaaaahhhhhhhhhhh....

7 posted on 03/06/2003 3:29:38 PM PST by Luna (Evil will not triumph...God is at the helm)
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To: Luna
New York Rep. Jose Serrano

This individual is a well known enemy of this country. It is well past time for a purge.
8 posted on 03/06/2003 3:36:28 PM PST by Crusader21stCentury
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To: kattracks
Failing that, "traitor" might work. Don't they give the death penalty to traitors?
9 posted on 03/06/2003 3:42:04 PM PST by MizSterious
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To: Alberta's Child
Your contact may not have a lot of inside info, but I suspect he's right. Bush is trying very hard, I think, not to reveal the f-ups that preceded him. And I think that you are right: it's not a political issue. The problem is simply that learning these things would fatally undermine US prestige abroad, and would be pretty devastating at home, too.
10 posted on 03/06/2003 3:46:34 PM PST by livius
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To: MizSterious
Yours ...unfortunatly is the only sensible response. You have the "left wing wacos" who don't want anything to happen to these traitors, and then you have the "right wing wacos" who throw up their hands and say "to hell with the law" lets just do what feels good and get revenge instead of holding these traitors to the law, they would rather do the traitor version of the Salem Witch Trials.

Yes, they should be held account before a jury and punished accordingly. Ashcroft is no better, in this instance, I could give a crap what the SCOTUS said in I believe they said 1949. The SCOTUS is not the end all to what the truth is, the People and Natural/Common Law are. Innocent until proven guilty I don't care if it threat, rape, or terrorism/being a traitor. To many people have forgotten their roots

.....Hold on, putting on flame proof underwear...ok, flame away...
11 posted on 03/06/2003 3:57:40 PM PST by borntodiefree
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To: livius
This guy probably doesn't have any inside information at all -- but apparently there are a lot of things that are fairly common knowledge in the Middle East that Americans are never told.

And this has nothing to do with one administration or another -- he believes that Saddam Hussein has been directly or indirectly involved in every act of terrorism against the U.S. since 1993. And the government under the Bush Administration hasn't been any more competent than under the previous administration. The fact that George Tenet is still the director of the CIA just about shreds any credibility this administration has in this matter, as far as I'm concerned.

According to this guy, the U.S. has been carrying out a massive propaganda effort over the last ten years. What is most fascinating is that this effort has been aimed primarily at the U.S. public.

Think about it -- We can't ever let anyone know that Iraq has been waging a small-scale guerrilla war in the U.S. for ten years, even if it means we have to cover the @ss of some jackass from Arkansas with a disco haircut and a personality disorder.

12 posted on 03/06/2003 3:58:51 PM PST by Alberta's Child
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To: kattracks
Controlling legal precedent in this matter is Ex-parte Milligan, 71 U.S. 2 (1866). Key quotes form the Supreme Court ruling:

No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole [p*119] people, for it is the birthright of every American citizen when charged with crime to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and, if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be or how much his crimes may have shocked the sense of justice of the country or endangered its safety. By the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle, and secured in a written constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it, this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direct to leave room for misconstruction or doubt of their true meaning. Those applicable to this case are found in that clause of the original Constitution which says "That the trial of all crimes, except in case of impeachment, shall be by jury," and in the fourth, fifth, and sixth articles of the amendments. The fourth proclaims the right to be secure in person and effects against unreasonable search and seizure, and directs that a judicial warrant shall not issue "without proof of probable cause supported by oath or affirmation." The fifth declares that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by 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 be deprived [p*120] of life, liberty, or property without due process of law.

And the sixth guarantees the right of trial by jury, in such manner and with such regulations that, with upright judges, impartial juries, and an able bar, the innocent will be saved and the guilty punished. It is in these words:

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 defence.

Time has proven the discernment of our ancestors, for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times [p*121] and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.

Every trial involves the exercise of judicial power, and from what source did the military commission that tried him derive their authority? Certainly no part of judicial power of the country was conferred on them, because the Constitution expressly vests it "in one supreme court and such inferior courts as the Congress may from time to time ordain and establish," and it is not pretended that the commission was a court ordained and established by Congress. They cannot justify on the mandate of the President, because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws, and there is "no unwritten criminal code to which resort can be had as a source of jurisdiction."

But it is said that the jurisdiction is complete under the "laws and usages of war."

It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that, in Indiana, the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances, and no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life in nowise [p*122] connected with the military service. Congress could grant no such power, and, to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise. One of the plainest constitutional provisions was therefore infringed when Milligan was tried by a court not ordained and established by Congress and not composed of judges appointed during good behavior.

Key quote: they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed.

13 posted on 03/06/2003 4:00:53 PM PST by sourcery (The Oracle on Mount Doom)
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Comment #14 Removed by Moderator

To: sourcery; aristeides
Controlling legal precedent in this matter is Ex-parte Milligan, 71 U.S. 2 (1866)

Apparently not - see aristeides' #4:

Treating citizens as enemy combatants was upheld by the Supreme Court in the Quirin case in 1942.

15 posted on 03/06/2003 4:27:01 PM PST by secretagent
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To: kattracks



16 posted on 03/06/2003 4:43:28 PM PST by eshu
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To: sourcery

U.S. Supreme Court


317 U.S. 1 (1942)

Ex parte QUIRIN, Ex parte HAUPT, Ex parte KERLING, Ex parte BURGER, Ex parte HEINCK, Ex parte THIEL, Ex parte NEUBAUER.

Nos. -- Original and Nos. 1, 2, 3, 4, 5, 6 and 7-July Special Term, 1942


In these causes motions for leave to file petitions for habeas corpus were presented to the United States District Court for the District of Columbia, which entered orders denying the motions. Motions for leave to file petitions for habeas corpus were then presented to this Court, and the merits of the applications were fully argued at the Special Term of Court convened on July 29, 1942....

The Court holds:

(1) That the charges preferred against petitioners on which they are being tried by military commission appointed by the order of the President of July 2, 1942, allege an offense or offenses which the President is authorized to order tried before a military commission. (2) That the military commission was lawfully constituted. (3) That petitioners are held in lawful custody, for trial before the military commission, and have not shown cause for being discharged by writ of habeas corpus. The motions for leave to file petitions for writs of habeas corpus are denied.... T

Mr. Justice MURPHY took no part in the consideration or decision of these cases.

Mr. Chief Justice STONE delivered the opinion of the Court.

These cases are brought here by petitioners' several applications for leave to file petitions for habeas corpus in this Court...The question for decision is whether the detention of petitioners by respondent for trial by Military Commission, appointed by Order of the President of July 2, 1942, on charges preferred against them purporting to set out their violations of the law of war and of the Articles of War, is in conformity to the laws and Constitution of the United States.

In view of the public importance of the questions raised by their petitions and of the duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty, and because in our opinion the public interest required that we consider and decide those questions without any avoidable delay, we directed that petitioners' applications be set down for full oral argument at a special term of this Court, convened on July 29, 1942. The applications for leave to file the petitions were presented in open court on that day and were heard on the petitions, the answers to them of respondent, a stipulation of facts by counsel, and the record of the testimony given before the Commission....

The following facts appear from the petitions or are stipulated. Except as noted they are undisputed.

All the petitioners were born in Germany; all have lived in the United States. All returned to Germany between 1933 and 1941. All except petitioner Haupt are admittedly citizens of the German Reich, with which the United States is at war. Haupt came to this country with his parents when he was five years old; it is contended that he became a citizen of the United States by virtue of the naturalization of his parents during his minority and that he has not since lost his citizenship. The Government, however, takes the position that on attaining his majority he elected to maintain German allegiance and citizenship or in any case that he has by his conduct renounced or abandoned his United States citizenship. For reasons presently to be stated we do not find it necessary to resolve these contentions. After the declaration of war between the United States and the German Reich, petitioners received training at a sabotage school near Berlin, Germany, where they were instructed in the use of explosives and in methods of secret writing. Thereafter petitioners, with a German citizen, Dasch, proceeded from Germany to a seaport in Occupied France, where petitioners Burger, Heinck and Quirin, together with Dasch, boarded a German submarine which proceeded across the Atlantic to Amagansett Beach on Long Island, New York. The four were there landed from the submarine in the hours of darkness, on or about June 13, 1942, carrying with them a supply of explosives, fuses and incendiary and timing devices. While landing they wore German Marine Infantry uniforms or parts of uniforms. Immediately after landing they buried their uniforms and the other articles mentioned and proceeded in civilian dress to New York City.

The remaining four petitioners at the same French port boarded another German submarine, which carried them across the Atlantic to Ponte Vedra Beach, Florida. On or about June 17, 1942, they came ashore during the hours of darkness wearing caps of the German Marine Infantry and carrying with them a supply of explosives, fuses, and incendiary and timing devices. They immediately buried their caps and the other articles mentioned and proceeded in civilian dress to Jacksonville, Florida, and thence to various points in the United States. All were taken into custody in New York or Chicago by agents of the Federal Bureau of Investigation. All had received instructions in Germany from an officer of the German High Command to destroy war industries and war facilities in the United States, for which they or their relatives in Germany were to receive salary payments from the German Government. They also had been paid by the German Government during their course of training at the sabotage school and had received substantial sums in United States currency, which were in their possession when arrested. The currency had been handed to them by an officer of the German High Command, who had instructed them to wear their German uniforms while landing in the United States.

The President, as President and Commander in Chief of the Army and Navy, by Order of July 2, 1942, appointed a Military Commission and directed it to try petitioners for offenses against the law of war and the Articles of War, and prescribed regulations for the procedure on the trial and for review of the record of the trial and of any judgment or sentence of the Commission. On the same day, by Proclamation, the President declared that 'all persons who are subjects, citizens or residents of any nation at war with the United States or who give obedience to or act under the direction of any such nation, and who during time of war enter or attempt to enter the United States ... through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war, shall be subject to the law of war and to the jurisdiction of military tribunals'.

The Proclamation also stated in terms that all such persons were denied access to the courts.

Pursuant to direction of the Attorney General, the Federal Bureau of Investigation surrendered custody of petitioners to respondent, Provost Marshal of the Military District of Washington, who was directed by the Secretary of War to receive and keep them in custody, and who thereafter held petitioners for trial before the Commission.

On July 3, 1942, the Judge Advocate General's Department of the Army prepared and lodged with the Commission the following charges against petitioners, supported by specifications:

1. Violation of the law of war.

2. Violation of Article 81 of the Articles of War, defining the offense of relieving or attempting to relieve, or corresponding with or giving intelligence to, the enemy.

3. Violation of Article 82, defining the offense of spying.

4. Conspiracy to commit the offenses alleged in charges 1, 2 and 3.

The Commission met on July 8, 1942, and proceeded with the trial, which continued in progress while the causes were pending in this Court. On July 27th, before petitioners' applications to the District Court, all the evidence for the prosecution and the defense had been taken by the Commission and the case had been closed except for arguments of counsel. It is conceded that ever since petitioners' arrest the state and federal courts in Florida, New York, and the District of Columbia, and in the states in which each of the petitioners was arrested or detained, have been open and functioning normally....

Petitioners' main contention is that the President is without any statutory or constitutional authority to order the petitioners to be tried by military tribunal for offenses with which they are charged; that in consequence they are entitled to be tried in the civil courts with the safeguards, including trial by jury, which the Fifth and Sixth Amendments guarantee to all persons charged in such courts with criminal offenses. In any case it is urged that the President's Order, in prescribing the procedure of the Commission and the method for review of its findings and sentence, and the proceedings of the Commission under the Order, conflict with Articles of War adopted by Congress-particularly Articles 38, 43, 46, 50 1/2 and 70-and are illegal and void.

The Government challenges each of these propositions. But regardless of their merits, it also insists that petitioners must be denied access to the courts, both because they are enemy aliens or have entered our territory as enemy belligerents, and because the President's Proclamation undertakes in terms to deny such access to the class of persons defined by the Proclamation, which aptly describes the character and conduct of petitioners. It is urged that if they are enemy aliens or if the Proclamation has force no court may afford the petitioners a hearing. But there is certainly nothing in the Proclamation to preclude access to the courts for determining its applicability to the particular case. And neither the Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission. As announced in our per curiam opinion we have resolved those questions by our conclusion that the Commission has jurisdiction to try the charge preferred against petitioners. There is therefore no occasion to decide contentions of the parties unrelated to this issue. We pass at once to the consideration of the basis of the Commission's authority.

We are not here concerned with any question of the guilt or innocence of petitioners. Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty. But the detention and trial of petitioners-ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger-are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.

Congress and the President, like the courts, possess no power not derived from the Constitution. But one of the objects of the Constitution, as declared by its preamble, is to 'provide for the common defence'. As a means to that end the Constitution gives to Congress the power to 'provide for the common Defence', Art. I, 8, cl. 1; 'To raise and support Armies', 'To provide and maintain a Navy', Art. I, 8, cls. 12, 13; and 'To make Rules for the Government and Regulation of the land and naval Forces', Art. I, 8, cl. 14. Congress is given authority 'To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water', Art. I, 8, cl. 11; and 'To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations', Art. I, 8, cl. 10. And finally the Constitution authorizes Congress 'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.' Art. I, 8, cl. 18.

The Constitution confers on the President the 'executive Power', Art II, 1, cl. 1, and imposes on him the duty to 'take Care that the Laws be faithfully executed'. Art. II, 3. It makes him the Commander in Chief of the Army and Navy, Art. II, 2, cl. 1, and empowers him to appoint and commission officers of the United States. Art. II, 3, cl. 1.

The Constitution thus invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war.

By the Articles of War, Congress has provided rules for the government of the Army. It has provided for the trial and punishment, by courts martial, of violations of the Articles by members of the armed forces and by specified classes of persons associated or serving with the Army. But the Articles also recognize the 'military commission' appointed by military command as an appropriate tribunal for the trial and punishment of offenses against the law of war not ordinarily tried by court martial.  Articles 38 and 46 authorize the President, with certain limitations, to prescribe the procedure for military commissions. Articles 81 and 82 authorize trial, either by court martial or military commission, of those charged with relieving, harboring or corresponding with the enemy and those charged with spying. And Article 15 declares that 'the provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions ... or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military commissions ... or other military tribunals'. Article 2 includes among those persons subject to military law the personnel of our own military establishment. But this, as Article 12 provides, does not exclude from that class 'any other person who by the law of war is subject to trial by military tribunals' and who under Article 12 may be tried by court martial or under Article 15 by military commission....

From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. By the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals. And the President, as Commander in Chief, by his Proclamation in time of war his invoked that law. By his Order creating the present Commission he has undertaken to exercise the authority conferred upon him by Congress, and also such authority as the Constitution itself gives the Commander in Chief, to direct the performance of those functions which may constitutionally be performed by the military arm of the nation in time of war.

An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. It is unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation. For here Congress has authorized trial of offenses against the law of war before such commissions. We are concerned only with the question whether it is within the constitutional power of the national government to place petitioners upon trial before a military commission for the offenses with which they are charged. We must therefore first inquire whether any of the acts charged is an offense against the law of war cognizable before a military tribunal, and if so whether the Constitution prohibits the trial. We may assume that there are acts regarded in other countries, or by some writers on international law, as offenses against the law of war which would not be triable by military tribunal here, either because they are not recognized by our courts as violations of the law of war or because they are of that class of offenses constitutionally triable only by a jury. It was upon such grounds that the Court denied the right to proceed by military tribunal in Ex parte Milligan, supra. But as we shall show, these petitioners were charged with an offense against the law of war which the Constitution does not require to be tried by jury.

It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which that law condemns....Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts. It chose the latter course.

By universal agreement and practice 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. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

Such was the practice of our own military authorities before the adoption of the Constitution, and during the Mexican and Civil Wars....

By a long course of practical administrative construction by its military authorities, our Government has recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission. This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War.

Specification 1 of the First charge is sufficient to charge all the petitioners with the offense of unlawful belligerency, trial of which is within the jurisdiction of the Commission, and the admitted facts affirmatively show that the charge is not merely colorable or without foundation.

Specification 1 states that petitioners 'being enemies of the United States and acting for ... the German Reich, a belligerent enemy nation, secretly and covertly passed, in civilian dress, contrary to the law of war, through the military and naval lines and defenses of the United States ... and went behind such lines, contrary to the law of war, in civilian dress ... for the purpose of committing ... hostile acts, and, in particular, to destroy certain war industries, war utilities and war materials within the United States'.

This specification so plainly alleges violation of the law of war as to require but brief discussion of petitioners' contentions. As we have seen, entry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States.... The law of war cannot rightly treat those agents of enemy armies who enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less belligerent enemies than are agent similarly entering for the purpose of destroying fortified places or our Armed Forces. By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment.

Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused.

Nor are petitioners any the less belligerents if, as they argue, they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations. The argument leaves out of account the nature of the offense which the Government charges and which the Act of Congress, by incorporating the law of war, punishes. It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose. The offense was complete when with that purpose they entered-or, having so entered, they remained upon-our territory in time of war without uniform or other appropriate means of identification. For that reason, even when committed by a citizen, the offense is distinct from the crime of treason defined in Article III, 3 of the Constitution, since the absence of uniform essential to one is irrelevant to the other.

But petitioners insist that even if the offenses with which they are charged are offenses against the law of war, their trial is subject to the requirement of the Fifth Amendment that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, and that such trials must be by jury in a civil court...In the light of this long-continued and consistent interpretation we must conclude that Section 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts....We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury.

Petitioners, and especially petitioner Haupt, stress the pronouncement of this Court in the Milligan case that the law of war 'can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed'. Elsewhere in its opinion, the Court was at pains to point out that Milligan, a citizen twenty years resident in Indiana, who had never been a resident of any of the states in rebellion, was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerents. We construe the Court's statement as to the inapplicability of the law of war to Milligan's case as having particular reference to the facts before it. From them the Court concluded that Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war save as-in circumstances found not there to be present and not involved here-martial law might be constitutionally established.

The Court's opinion is inapplicable to the case presented by the present record. We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries, and were held in good faith for trial by military commission, charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform-an offense against the law of war. We hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission....

Exploring Constitutional Conflicts

17 posted on 03/06/2003 4:52:03 PM PST by jwalsh07
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To: secretagent
Ex Parte Quirin dealt with Nazi saboteurs, at least one of whom was a U.S. citizen. "Enemy combatants," said the Court in that case, are either lawful - for example, the regular army of a belligerent country - or unlawful - for example, terrorists. When lawful combatants are captured, they are prisoners of war, POWs. As POWs, they cannot be tried (except for war crimes). They must be repatriated after hostilities are over, and they only have to provide their name, rank, and serial number if interrogated. Clearly, that's not what the Justice Department had in mind for Mr. Hamdi.

Unlawful combatants are different. When unlawful combatants are captured, they can be tried by a military tribunal. That's what happened to the Nazi saboteurs in Quirin. But Hamdi has not been charged, much less tried. Indeed, the president's executive order of November 2001 excludes U.S. citizens from the purview of military tribunals. If the president were to modify his order, the Quirin decision might provide legal authority for the military to try Hamdi. But the decision provides no legal authority for detaining a citizen without an attorney solely for purposes of aggressive interrogation. The Ex-parte Milligan decision is still the controlling precedent on the question of the writ of habeas corpus.

All persons have the inalienable right to have a court determine whether their detention is lawfull--especially including the issue of whether or not they are properly classified as "enemy combatants" or "prisoners of war." The key point to the Quirin decision is that the court decided that the Nazi agents were in fact properly classified as illegal combatants. In so deciding, the Court explicitly affirmed its authority to review any writ of habeas corpus that alleges that a person is wronfully held as either a POW or an illegal combatant.

Moreover, the Constitution does not distinguish between the protections extended to ordinary citizens on one hand and unlawful combatant citizens on the other. Nor does the Constitution distinguish between crimes covered by the Fifth and Sixth Amendments and terrorist acts. Still, the Quirin Court justified those distinctions, noting that Congress had formally declared war and thereby invoked articles of war that authorized the trial of unlawful combatants by military tribunal. Today, the situation is different. We've had virtually no input from Congress: no declaration of war, no authorization of tribunals, and no legislative suspension of habeas corpus.
18 posted on 03/06/2003 4:55:25 PM PST by sourcery (The Oracle on Mount Doom)
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To: sourcery
You should read the fourth circuit opinion on Hamdi.
Your post is a softball "set-up" for it to hit out of the park.


19 posted on 03/06/2003 6:10:25 PM PST by mrsmith
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To: Alberta's Child
We can't ever let anyone know that Iraq has been waging a small-scale guerrilla war in the U.S. for ten years

Probably true - think OKC and Flight 800. I'm NOT a conspiracy buff, but it's clearly apparent that there are many things nobody wants to admit.

20 posted on 03/06/2003 7:11:36 PM PST by livius
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